GeneralNorms

For more on specific canons, see Book One Tab above

General norms and Church's Property law

Introduction

• Theme: Introduction that will be developed in Captia Selecta. GN not an overview but technical details. Most legal technical of all classes.

situation: 1983 succedes pio-benedictine 1917 which suceeded corpus j.c. The codification came because national states established codes in the 19th C. Unification of Italy and Germany, Napoleonic Code. In that context, the Church had to maintain itself as a perfect society, especially when papal states were lost, with its own code. Single primary author - Gaspari, internally coherent, correct, good latin.

• 1917 CIC was outdated from the start, because few codifications were being made.
  

• E.g. Sacraments were put in as 'goods' property of the church. Main concepts from codes. Church 'Stuff'. Theologically impoverished.
  

Criticized from the start (Gaspari - politician - started teaching canon law Institute Catholique in paris (sent statue with bill). Sole authorship gave it uniformity. Current code is weaker in this regard. It was however to positivistic - businesslike; lacked spiritual dimension. Code for experts.
Vatican II John XXIII announced in 1958 council and code. Took 18 more years. Many collaborators, esp. Msgr. Willie Onclin - vp of commission. JPII officially thanked him. Flavor if VCII is there:

• literary genre is different,
  

• less uniform - less consistent because from different authors. Different statuses of norms. Many texts taken over from theological texts. Exhortations. Soft law - unenforceable. Technical parts. Hard to enforce.
  

• more complex
  

• VCII rejected idea of marriage as contract alone (reduces marriage). Before VCII was it institute or contract- Institute = take it as it is. or Contract = negotiate.
  

• VCII theology said marriage is beautiful and both a contract and covenant - two truths. Contracts - two agree, meeting of minds; covenant is highly relational, more rich and complex, something grows and matures. Problem is the theologians like this language - they deal with contradictions by calling to a higher truth.
  

• E.g. 1055: contract still is the basis of law because it is usable. First canon gives the theological background. But the succeeding legislation treats it as a Contract, with covenant as an ornamental addition. In law choices have to be made - as theologians can skirt the issues, remain abstract.
  

• The marriage covenant, by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children, has, between the baptised, been raised by Christ the Lord to the dignity of a sacrament.
  

• Consequently, a valid marriage contract cannot exist between baptised persons without its being by that very fact a sacrament.
  

  E.g.: czek girl and dutch boy - brilliant - married. Couldn't understand each others. Every year she had to join compulsary celebrations. He was a student May - 1968. Demonstration was liberation. In the book, there were continuous differences in the streams of conversation. This is the type of different semantic rivers. This remains a problem with the 1983 Code.
  

Outline CL:

• Book I- 1-203 General Norms. 1st part of book will be dealt with more - it has the 'rules of the game'. The later canons in book one, the more detailed and precise and less subject to interpretation.
  

• Book II- 204-755 Populo Dei - People of God. The first part is on the people, then other groups: obligations and rights. Then Clerics, Then Heirarchs, Religious Institutes (skeletal)
  

• Book III - 756-833 Teaching Function - schools, universities, communication
  

• Book IV - 834-848 Sanctifying function - sacraments. Divine worship, sacred times and places.
  

• Book V - Temporal Goods 1254-1310
  

• Book VI - Penal Law 1311-1399 There was discussion whether or not there should be a penal section - should be more internal fraternal, etc. Today this is more important due to Sexual Abuse crisis. Does the church have the tools for penal trials.
  

• Book VII -1400-1752 Process - contentious trials are on the wane: benefices, liturgical fights; penal trials very complicated; marriage tribunal; removal or transfer of pastors

Canon 1 – Code of the Latin rite - Some envisioned a Lex ecclesia fundamentalis - but this never came to fruitition.

Canon 2 – The scope of application. Not dealing with liturgical norms in pple.

– c. 230 – altar girls and women


§ 1 – viri laici – lectors and acolytes


§ 2 – laici (men and women) – only lectors or other functions according to the norms of the law (ab norman iuris)


Eg of ab norman iuris – c. 1112, § 1 CB favourable votes, permission of the Holy See

Remarks: All liturgical norms have been abolished by c. 230, § 2

Canon 3 – International Law

Canon 4 – Acquired rights and privileges. - Privilege – structural inequality, distinguished from dispensation (c. 85) “relaxation of merely eccl laws in a particular case. Measures: c. 90 – a. with a just and reasonable cause otherwise i) illicit and ii) invalid. Dispensations are acts of the executive authority

Canon 6 – Abrogation of the old code

“…completely reordered” – matrimonium ratum sed non consumatum

1. Compromise of the schools of Paris and Bologna - Alexandar III (1159-1181) – Marriage could be valid “ratum”, but could be dissolved without consummation
2. Privilegium fidei – Privilege of the faith – Pauline privilege (c. 1143): exists almost in the same wording as in 1917
3. Privilegium Petrinum – (20’s-30’s) 1983 repeated Pauline privilege and remained almost silent over Petrine. According to many, the elimination is b/c of the revolving topic of the Ecumenism

Canon 10 – One of the most important canons of the Code. Makes the difference b/w illicit and invalid canons

Canon 11 – Scope of application of the Code. The code contains all types of norms including merely eccl laws

Persona (person) and membrum (member) arguments

- Everybody is a person in the Xa
- 5 arguments:
1. Pio Ciproti – Everybody is a person in the Xa b/c it has unlimited message of salvation – Too easy argument
2. Pietro Gismondi (1960’s) – Everybody is by natural law a person, CL has to follow natural law

Error: Person, 2 meanings – human being, CL – membership.

3. Vermeersch (Greusen) – Everybody is a person. But we have complete and incomplete persons. Baptized are complete.

Errors: 1. Non-baptized are not half-members 2. Non-baptized have more rights

4. Pio Ciproti – That the code uses persona where person baptized is meant. Remarks – the code is not consistent in the use of persona
5. Most sophisticated – The fact of being a person in the Xa entails duties and rights. Eg. The right of going to the tribunal. Error: When u have no rights and duties you may not be a persona
Urutia – personalitas numquam totalitas amittitur a baptizato – Personality cannot be totally taken away from the baptized.

Canon 16 – Interpretation of the law. Needed when the law is unclear. Interpreted canons: 87, § 1 – Negative; 119, 1§ - 1st Negative, 2nd Affirmative; 127, § 1 – Negative; 230, § 2 – Affirmative…Canons 1367 and 1398 were interpreted in a broader sense against c.18

Canon 17 – Private interpretation – not binding
a. Look at the proper meaning of the word and context
b. The true meaning of the law counts more than what the legislator had in mind
2 ways of reasoning – a fortiori and a contrario
Teleological mtd – Interpretation of the goal the people have in mind contrary to exegetical mtd.

Canon 19 – Lacuna legis
1. General pples – Found in Boniface VII, Liber Sixtus of 1298. At the end of the bk we have Regulae iuris (88)
2. The great part is better
3. Lex specialis derogate generali
4. Potius ut valeat quam ut pereat
5. Canonical equity
6. Epiekea
7. The jurisprudence and practice of the Roman Rota
8. The common and constant opinion of learned persons

Customs 3 types – a) Secundum legem – custom following the law b) Praeter legem – custom fills the gap c) Contra legem – against the law

Diff b/w Custom and dispensation
1. Both are limited by divine law – cc. 24, § 1; 85, § 1
2. Dispensation has limits (c. 86) but not in custom
3. Dispensation does not change the law, custom does
4. Custom remains vulnerable – it can be stopped and can be revoked

Types of Decrees
1. General decrees (c. 29) – Law - Legislative field
2. General executory decrees (c. 31) – not law, explains the law – Executive
3. Singular decrees (c.48) – Executive
4. Book IV – Decrees in the judicial sphere – judicial

Canon 34 – Instructions
1. Meant to clarify laws and mtds of observing them
2. Given to those who have the duty of seeing the laws are executed
3. Made by those who possess the executive power to issue instructions

Rescript – 3 forms
1. Privilege cc 76-84
2. Dispensation cc 85-93
3. Other forms of grace (c. 59ff)

Juridic persons – c. 113ff
1. Through the law
2. Created – a. Through the creation of public organization. b. Through the process – private organization

Ways of obtaining an office
1. Free conferral – c. 157
2. Presentation – c. 158ff
3. Election – c. 164ff
4. Postulation – c. 180ff

Ways of losing an office
1. Resignation – c.187ff
2. Transfer – c. 190ff
3. Removal – c. 192ff ; 1740ff
4. Privation – c. 196ff.

Actus Formalis Defectionis ab Ecclesia Catholica

In canons:
1. 1086, § 1 – marriage of a Catholic and non-baptized - invalid
2. 1117 - Extra-ordinary form of marriage
3. 1124 – Mixed marriage

The concept is new to canonical legislation and is distinct from the other — rather “virtual” (that is, deduced from behaviors) — forms of “notoriously” or “publicly” abandoning the faith.
Confer canons:
171, § 1, 4§ - Qualification of voters (defected notoriously)
194, § 1, 2§ - Removal from ecclesiastical office
316, § 1 – Invalidity of becoming a member of public association
694, § 1, 1§ - Dismissal of members from religious institutes
1071, § 1, 4§ - Assisting at marriage of those who have notoriously rejected the Catholic faith
1071, § 2 – Permission of the local ordinary to assist at marriage with the observation of c.1125
In the latter circumstances, those who have been baptized or received into the Catholic Church continue to be bound by merely ecclesiastical laws (cfr. can. 11).

The theological and doctrinal components of an actus formalis defectionis ab Ecclesia catholica - The substance of the act of the will must be the rupture of those bonds of communion — faith, sacraments, and pastoral governance — that permit the Faithful to receive the life of grace within the Church.

The requirements or juridical formalities that would be necessary so that such an action would constitute a true “formal act” of defection.
A. Conditions for a validly configured and true actus formalis defectionis ab Ecclesia, it is necessary that there concretely be:

1. The internal decision to leave the Catholic Church
   

2. The realization and external manifestation of that decision; and
   

3. The reception of that decision by the competent ecclesiastical authority.

The formal act of defection has a juridical-administrative character - the removal of one’s name from a Church membership registry maintained by the government in order to produce certain civil the consequences of which must be configured as a true separation from the constitutive elements of the life of the Church: an act of apostasy, heresy or schism – c. 751

The juridical-administrative act of abandoning the Church does not per se constitute a formal act of defection as understood in the Code, given that there could still be the will to remain in the communion of the faith.

Heresy (whether formal or material), schism and apostasy to constitute a formal act of defection must be externally concretized and manifested to the ecclesiastical authority in the required manner (3 conditions above)

B. To be a valid juridical act, it must be:
1. Placed by a person who is canonically capable, and
2. In conformity with the canonical norms that regulate such matters (cfr. cc.124-126 – Juridical acts).
3. The act must be taken personally, consciously and freely.
4. Be manifested by the interested party in written form or externally manifest
5. Before the competent authority of the Catholic Church: the Ordinary or proper pastor, who is uniquely qualified to make the judgment concerning the existence or non-existence of the act of the will as described above in n. 2.

Consequently, only the convergence of the two elements — the theological content of the interior act and its manifestation in the manner defined above — constitutes the actus formalis defectionis ab Ecclesia catholica, with the corresponding canonical penalties (cfr. C. 1364, § 1 – Apostasy, heresy and schism).

The competent ecclesiastical authority mentioned above is to provide that this act be noted in the baptismal registry (cfr. can. 535, § 2 – marriage celebrated secretly) with explicit mention of the occurrence of a “defectio ab Ecclesia catholica actu formali”.

The sacramental bond of belonging to the Body of Christ that is the Church, conferred by the baptismal character, is an ontological and permanent bond, which is not lost by reason of any act or fact of defection.