Canon Law

Declarative – affirms meaning and applicability – no change – law is clear in itself. Retroactive. 2. Restrictive – narrows meaning and applicability – changes meaning. Not retroactive. 3. Expansive – broadens meaning and applicability – changes meaning. 4. Explanatory – explains without narrowing or broadening the meaning and applicability – puts meaning where it was ambiguous. * It must be in legal form and promulgated with vacatio for all but declarative. If interpretation is based on divine law, it is retroactive. In doubtful cases, no retroactivity. Interpretations that comes as part of talks, and magisterial acts don’t bind.

They allow continued jurisprudential development. * Judicial and administrative interpretations bind only the parties to the case. Roman Curial decisions have a kind of precedential value. They contribute to the praxis curiae and canonical tradition. * Sometimes the council gives instructions. Baptized male – what about sex change operation. Man who was a woman, or woman who was a man. (can he/she become a priest 1024) Man became woman at 60 – operations and hormones, about 2 years. Statistics are corrected retroactively. Wanted to get annulment from partner – also a woman. Mother was opposing annulment. * Summary of Interpretations Issued.

Liturgical Norms found in Liturgical books – Canon 2 shows the true flavor and scope of the CIC. Speaks of liturgical law without defining it. E.g. Two norms were issued after Vatican 2: (1970 and 1980). Both said that acolytes must be boys. Canon 230 §1 Lay men whose age and talents meet the requirements prescribed by decree of the Episcopal Conference, can be given the stable ministry of lector and of acolyte…. Does the use of stabiliter cancel out the use of laymen? After all, there are not many professional altar boys.

“Canon 230 §2 Lay people can receive a temporary assignment to the role of lector in liturgical actions. Likewise, all lay people can exercise the roles of commentator, cantor or other such, in accordance with the law.” Acolytes not mentioned. Included in the “other functions”? Within the “norm of law”? What law, code or liturgical books? E.g. Canon 1112 says Laymen may assist at a marriage under two conditions: 1) It is approved by the relevant conference of bishops, and 2) it is allowed by the Holy See. This is according to the norm of law: ad normam juris. Instruction doesn’t change the code, even when the pope approves it in forma specialis, however, often a change results. Canon 3 Diplomatic Agreements

* Secular hierarchy – int’l law, national, local. Code recognizes ‘treaties’ concordats, etc. * E.g. Concordat is a treaty with Holy See. E.g. Pius VI Napoleon 1801 – part of public laws. 1929 Lateran agreements with Mussolini Villa Matalma Two corrupt politicians * They consisted of three documents:

* A political treaty recognizing the full sovereignty of the Holy See in the State of Vatican City, which was thereby established. * A concordat regulating the position of the Catholic Church and the Catholic religion in the Italian state. * A financial convention agreed on as a definitive settlement of the claims of the Holy See following the losses of its territories and property. * In the 1980s they were on the wane though there are new ones with eastern European countries. Some say EU should do a concordat with Holy See. But this would be an interesting exercise, especially with some protestant state church. E.g. appointment of bishops

. 1917 code innovated the central church appoints bishops. This threw long traditions of interactions was rejected in its ideal. Some of these still exist. Lugano candidate bishop has to be a native, Italian speaker, another place submits 3 names, another place pope submits 3 names. * Pragmatic – recognizes supremacy of Int’l law, but the church is a party and can limit, etc. * Agreements. pacta sunt servanda. Agreements are observed. * Concordat – general agreement; Protocol, accord, partial agreement. Catholic, not Vatican State is party to agreement. The principle can be extended to local Church agreements. Canon 4 Acquired Rights

* E.g. 30 was former age to become bishop – 1983 made it 35, in the interim, the right was acquired and can’t be taken away. * Privileges are more shaky. Big part of canon law. Canons 76-84. E.g. Rota Hispanola as highest court. Structural inequality. Canon 85 relaxation of merely ecclesiastical law in a particular case; but consider Canon 90 requires a just and reasonable case. Systematic dispensation could become privileges or even abrogate law. E.g. Cistercian who collected privileges of his monastery, quite a list. * Acquired Rights and privileges. No ex post facto laws. Law doesn’t revoke rights and privileges unless it expressly so states (which it only does @ c.510 – dis-joining parish to Ch. of canons.) e.g. requirement of JCL or JCD for some tribunal offices doesn’t affect grand-fathered officers. * Natural rights cannot be abrogated. Legal rights (acquired rights) can be changed. Canon 5 Contrary Custom

* Contrary Customs. Custom: practice introduced by the community. 6 expressly abrogated. Centenary: >100 yr. Immemorial predate memory of the oldest persons in the community. Canon 6 Prior Law

* Previous Laws encompasses ius lesser juridical norms and statutes of institutes and societies. 1. 1917 code abrogated midnight 11/27/83. Validity of acts before that date are judged by the 1917 code. Laws implementing VCII not dependent on 1917 code, thus not abrogated. 2° laws contrary to the code abrogated whether universal = everybody; particular = local. 3° only AAS penal laws abrogated, particular laws remain unless specifically abrogated by the code. 4° non-technical meaning of disciplinary law: church as op-posed to divine. §2 ‘also’ means it’s not the only source. * 1.2: Lex specialis derogat generali – special laws derogate the general. Now there is a new general law, but there may be reason, with the new general law to keep some of the special laws.

1.3: Penal law abrogated unless specifically taken up. Criminals need warning. 1313, retroactive law only if it is more favorable. Except 1399 – Administrative action allows punishment without law. * 1.4: Matters completely reordered. hard to tell. E.g. Marriage but no divorce. Even with terrible marriage, it is a sign of God’s love. Nullity looks at the moment of consent: force and fear, simulation, * But there are possibility of dissolution ec. divorce: Matrimonum ratum sed non consummatum. Paris says valid with consent, Bologna says need consent. Alex III a Paris marriage (consent) can be dissolved, not a bologna marriage (consent +).

Privilegium fidei – Pauline privilege for a long time. Canon 1143 The second marriage need not be with a baptised person. Not so pauline this privilege. Faith more important than indissolvability of marriage. * Also present in 1917 code. In 20s and 30s scope of application enlarged – baptized non-Catholic, and pope sometimes narrowed. Privilegium petrinum – all other cases. PP+pp=PF * When the new code comes what do we do? It kept paulinum and remained silent about petrinum – was it reordered and if so what? Is it still being developed?

2 Law works from top to bottom, Custom works from bottom up. Previously there was more action at the bottom. * Ius remonstrandi – Not in the code and not abrogated by Canon 6. Voice of the bottom was hear. Given shape during the pontificate of Alex III 1159-1181 Power of pope was limited at that time, bishops were also civilly powerful. Receptio legis also had to be taken into account.

Alex issued a norm that wasn’t followed. Since he couldn’t enforce, he said in a decretal: the bishop could remonstrate against the pontifical law. On remonstration, the law is suspended on the territory of the bishop/s, unless and until the pope reacts. Pope could repeat the law (veto). There was more equilibrium in the lawmaking process. Puza says Ius remonstrandi still stands. The 1917 code didn’t speak to the issue, nor 1983. Ordinatio Sacerdotalis 1994 JPII confirmed 1976 against priesthood of women.

NO it’s divina constitutio – so can’t happen. 3 chambers 2/3 majority of Church of England allowed women priesthood. He left out the word putatur – “it is” It took God a long time to make up his mind. * This is the end of the discussion – which of course started the discussion anew. * Pree (of Munich) gives a list of examples of ‘divine law’ changing. E.g. change of purpose of marriage. 19th C popes said religious freedom is madness, but now…. ‘completely in line with my predecessor’ * Inter insignious 1976 Seven arguments against female priesthood putatur ‘supposed to be’

Biblica Commission 1975 said many good arguments for and many good arguments against.  Can this be remonstrated – bishop solo makes choice. He doesn’t have to follow the people. He can’t go against theology, so divina constitutio is safe. End of discussion – is a legal position, then this could be remonstrated. This was misinterpreted to be saying you can ordain. * Belgium / Flanders were more Catholic then sociologically. Today not a front page issue. Danieels: I don’t want to choose between people here and Rome – but I choose for Rome, and I’ll communicate the sadness of the people. “I can’t sell it to the people here.” * Role of bishops today is more hitmen for the pope. When you have to reaffirm collegiality, it means it is not empirically evident. * Later we will see there are ways for custom to be tweaked. Moving of bishops from smaller diocese to larger