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| A B C D E F G H I J K L M N O P Q R S T U V W X Y Z |
This subject will be treated under the following heads:
I. General Notion and Divisions
II. Canon Law as a Science
III. Sources of Canon Law
IV. Historical Development of Texts and Collections
V. Codification
VI. Ecclesiastical Law
VII. The Principal Canonists
Canon law is the body oflaws and regulations made by or adopted byecclesiastical authority, for the government of theChristian organization and its members. The wordadopted is here used to point out the fact that there are certain elements in canon law borrowed by theChurch fromcivil law or from the writings of privateindividuals, who as such had no authority inecclesiasticalsociety. Canon is derived from the Greekkanon, i.e. a rule or practical direction (not to speak of the other meanings of the word, such as list or catalogue), a term which soon acquired an exclusivelyecclesiastical signification. In the fourth century it was applied to the ordinances of the councils, and thus contrasted with the Greek wordnomoi, the ordinances of thecivil authorities; the compound word "Nomocanon" was given to those collections of regulations in which thelaws formulated by the two authorities onecclesiastical matters were to be found side by side. At an early period we meet with expressions referring to the body ofecclesiastical legislation then in process of formation:canones, ordo canonicus, sanctio canonica; but the expression "canon law" (jus canonicum) becomes current only about the beginning of the twelfth century, being used in contrast with the "civil law" (jus civile), and later we have the "Corpus juris canonici", as we have the "Corpus juris Civilis". Canon law is also called "ecclesiastical law" (jus ecclesiasticum); however, strictly speaking, there is a slight difference of meaning between the two expressions: canon law denotes in particular thelaw of the "Corpus Juris", including the regulations borrowed fromRoman law; whereas ecclesiastical law refers to alllaws made by theecclesiastical authorities as such, including those made after the compiling of the "Corpus Juris". Contrasted with the imperial or Caesarian law (jus caesareum), canon law is sometimes styled pontifical law (jus pontificium), often also it is termed sacred law (jus sacrum), and sometimes evenDivine law (jus divinum: c. 2, De privil.), as it concerns holy things, and has for its object the wellbeing ofsouls in thesociety divinely established byJesus Christ.
Canon law may be divided into various branches, according to the points of view from which it is considered:
As we shall see in treating of the gradual development of the material of canon law (see below, IV), though a legislative power has always existed in theChurch, and though it has always been exercised, a long period had necessarily to elapse before thelaws were reduced to a harmonious systematic body, serving as a basis for methodical study and giving rise to general theories. In the first place, the legislative authority makeslaws only when circumstances require them and in accordance with a definite plan. For centuries, nothing more was done than to collect successively the canons of councils, ancient and recent, the letters ofpopes, and episcopalstatutes; guidance was sought for in these, when analogous cases occurred, but no one thought of extracting general principles from them or of systematizing all thelaws then in force. In the eleventh century certain collections group under the same headings the canons that treat of the same matters; however, it is only in the middle of the twelfth century that we meet in the "Decretum" of Gratian the first really scientific treatise on canon law. The School of Bologna had just revived the study ofRoman law; Gratian sought to inaugurate a similar study of canon law. But, while compilations of texts and official collections were available forRoman law, or "Corpus juris civilis", Gratian had no such assistance. He therefore adopted the plan of inserting the texts in the body of his general treatise; from the disordered mass of canons collected from the earliest days, he selected not only thelaw actually in force (eliminating the regulations which had fallen into desuetude, or which were revoked, or not of general application) but also the principles; he elaborated a system of law which, however incomplete, was nevertheless methodical. Thescience of canon law, i.e. the methodical and coordinatedknowledge of ecclesiastical law, was at length established.
Gratian's "Decretum" was a wonderful work; welcomed, taught and glossed by the decretists at Bologna and later in the otherschools anduniversities, it was for a long time the textbook of canon law. However his plan was defective and confusing, and, after the day of the glosses and the strictly literal commentaries, it was abandoned in favour of the method adopted byBernard of Pavia in his "Breviarium" and by St.Raymund of Pennafort in the official collection of the "Decretals" ofGregory IX,promulgated in 1234 (seeCORPUS JURIS CANONICI). These collections, which did not include the texts used by Gratian, grouped the materials into five books, each divided into "titles", and under each title thedecretals or fragments ofdecretals were grouped in chronological order. The five books, the subject matter of which is recalled by the well-known verse: "judex, judicium, clerus, connubia, crimen" (i.e. judge, judgment,clergy,marriages, crime), did not display a verylogical plan; not to speak of certain titles that were more or less out of place. They treated successively of the depositaries of authority, procedure, theclergy and the things pertaining to them, marriage, crimes and penalties. In spite of its defects, the system had at least the merit of being official; not only was it adopted in the latter collections, but it served as the basis for almost all canonical works up to the sixteenth century, and even to our day, especially in theuniversities, each of which had a faculty of canon law.
However, the method of studying and teaching gradually developed: if the earlydecretalists made use of the elementary plan of the gloss and literal commentary, their successors in composing their treatises were more independent of the text; they commented on the titles, not on the chapters or the words; often they followed the titles or chapters only nominally and artificially. In the sixteenth century they tried to apply, not to the official collections, but in their lectures on canon law the method and division of the "Institutes" of Justinian:persons, things, actions or procedure, crimes, and penalties (Institutes, I, ii, 12). This plan, popularized by the "Institutiones juris canonici" of Lancellotti (1563), has been followed since by most of the canonist authors of "Institutiones" or manuals, though there has been considerable divergence in the subdivisions; most of the more extensive works, however, preserved the order of the "Decretals". This was also followed in the 1917 code. In later times many textbooks, especially inGermany, began to adopt original plans. In the sixteenth century too, the study of canon law was developed and improved like that of othersciences, by the critical spirit of the age:doubtful texts were rejected and theraison d'être and tendency or intention of laterlaws traced back to the customs of former days. Canon law was more studied and better understood; writings multiplied, some of an historical nature, others practical, according to the inclination of the authors. In theuniversities andseminaries, it became a special study, though as might be expected, not always held in equal esteem. It may be noted too that the study ofcivil law is now frequently separated from that of canon law, a result of the changes that have come oversociety. On the other hand, in too manyseminaries the teaching of ecclesiastical law is not sufficiently distinguished from that ofmoral theology. The publication of the new general code of canon law will certainly bring about a more normal state of affairs.
The first object of thescience of canon law is to fix thelaws that are in force. This is not difficult when one has exact and recent texts, drawn up as abstractlaws e.g. most of the texts since theCouncil of Trent, and as will be the case for all canon law when the new code is published. But it was not so in theMiddle Ages; it was the canonists who, to a large extent, formulated thelaw by extracting it from the accumulated mass of texts or by generalizing from the individual decisions in the early collections ofdecretals. When thelaw in force is known it must be explained, and this second object of thescience of canon law is still unchanged. It consists in showing thetrue sense, the reason, the extension and application of each law and each institution. This necessitates a careful and exact application of the triple method of exposition, historical,philosophical, and practical: the first explains thelaw in accordance with its source and the evolution of customs; the second explains its principles; the last shows how it is to be applied at present. This practical application is the object ofjurisprudence, which collects, coordinates and utilizes, for more or less analogous cases, the decisions of the competent tribunal. From this we may learn the position of canon law in thehierarchy ofsciences. It is a judicialscience, differing from thescience ofRoman law and ofcivil law inasmuch as it treats of thelaws of an othersociety; but as thissociety is of the spiritual order and in a certain sensesupernatural, canon law belongs also to thesacred sciences. In this category it comes aftertheology, which studies and explains in accordance with revelation, thetruths to be believed; it is supported bytheology, but in its turn it formulates the practical rules toward whichtheology tends, and so it has been called "theologia practica", "theologia rectrix". In as far as it is practical thescience of canon law is closely related tomoral theology; however, it differs from the latter which is not directly concerned with the acts prescribed or forbidden by the external law, but only with the rectitude ofhuman acts in the light of the last end of man, whereas, canon law treats of the externallaws relating to the good order ofsociety rather than the workings of the individualconscience. Juridical, historical, and above alltheologicalsciences are most useful for the comprehensive study of canon law.
This expression has a twofold meaning; it may refer to the sources from which thelaws come and which give the latter their judicial force (fontes juris essendi); or it may refer to the sources where canon law is to be found (fontes juris cognoscendi), i.e. thelaws themselves such as they occur in the texts and various codes. These sources are also called the material and the formal sources of canon law. We shall consider first the sources under the former aspect.
The ultimate source of canon law isGod, Whose will is manifested either by the very nature of things (naturalDivine law), or by Revelation (positiveDivine law). Both are contained in the Scriptures and in Tradition. PositiveDivine law cannot contradictnatural law; it rather confirms it and renders it more definite. TheChurch accepts and considers both as sovereign bindinglaws which it can interpret but can not modify; however, it does not discovernatural law by philosophic speculation; it receives it, with positiveDivine law, fromGod through His inspired Books, though this does not imply a confusion of the two kinds ofDivine law. Of theOld Law theChurch has preserved in addition to theDecalogue someprecepts closely allied tonatural law, e.g. certain matrimonial impediments; as to the otherlaws given byGod to His chosen people, it considers them to have been ritual and declares them abrogated byJesus Christ. Or rather,Jesus Christ, the Lawgiver of the spiritualsociety founded by Him (Con. Trid., Sess. VI, "De justif.", can. I), has replaced them by the fundamentallaws which He gave HisChurch. ThisChristianDivine law, if we may so call it, is found in the Gospels, in the Apostolic writings, in the living Tradition, which transmitslaws as well asdogmas. On this positiveDivine law depend the essential principles of theChurch's constitution, the primacy, theepiscopacy, the essential elements of Divine worship and the Sacraments, the indissolubility of marriage, etc.
Again, to attain its sublime end, theChurch, endowed by its Founder with legislative power, makeslaws in conformity with natural andDivine law. The sources or authors of this positive ecclesiastical law are essentially the episcopate and its head, thepope, the successors of the Apostolic College and its divinely appointed head, Saint Peter. They are, properly speaking, the active sources of canon law. Their activity is exercised in its most solemn form by the ecumenical councils, where the episcopate united with its head, and convoked and presided over by him, with him defines its teaching and makes thelaws that bind the whole Church. The canons of the Ecumenical councils, especially those ofTrent, hold an exceptional place in ecclesiastical law. But, without infringing on the ordinary power of thebishops, thepope, as head of the episcopate, possesses in himself the same powers as the episcopate united with him. It istrue that the disciplinary and legislative power of thepopes has not always, in the course of centuries, been exercised in the same manner and to the same extent, but in proportion as the administration became centralized, their direct intervention in legislation became more and more marked; and so thesovereign pontiff is the most fruitful source of canon law; he can abrogate thelaws made by his predecessors or by Ecumenical councils; he can legislate for the whole church or for a part thereof, a country or a given body ofindividuals; if he is morally bound to take advice and to follow the dictates ofprudence, he is not legallyobliged to obtain the consent of any otherperson orpersons, or to observe any particular form; his power is limited only byDivine law, natural and positive, dogmatic and moral. Furthermore, he is, so to say, the living law, for he is considered as having all law in the treasury of his heart ("in scrinio pectoris";Boniface VIII. c. i, "De Constit." in VI). From the earliest ages the letters of theRoman pontiffs constitute, with the canons of the councils, the principal element of canon law, not only of theRoman Church and its immediate dependencies. but of allChristendom; they are everywhere relied upon and collected, and the ancient canonical compilations contain a large number of these precious "decretals" (decreta, statuta, epistolae decretales, andepistolae synodicae). Later, the pontificallaws arepromulgated more usually as constitutions, Apostolic Letters, the latter being classified asBulls orBriefs, according to their external form, or even as spontaneous acts, "Motu proprio". Moreover, the legislative and disciplinary power of thepope not being an incommunicable privilege, thelaws and regulations made in his name and with hisapprobation possess his authority: in fact, though most of the regulations made by the Congregations of thecardinals and other organs of theCuria are incorporated in the Apostolic Letters, yet the custom exists and is becoming more general for legislation to be made by mere decrees of the Congregations, with thepapal approval. These are the "Acts of the Holy See" (Acta Sancte Sedis), and their object or purpose permitting, are reallaws (seeROMAN CURIA).
Next to thepope, thebishops united in local councils, and each of them individually, are sources of law for their common or particular territory; canons of national or provincial councils, anddiocesanstatutes, constitute local law. Numerous texts of such origin are found in the ancient canonical collections. At the present day and for a long time past, thelaw has laid down clearly the powers of local councils and ofbishops; if their decrees should interfere with thecommon law they have no authority save in virtue of pontificalapprobation. It is well known thatdiocesanstatutes are not referred to thesovereign pontiff, whereas the decrees of provincial councils are submitted for examination and approval to theHoly See (Const. "Immensa" ofSixtus V, 22 Jan., 1587). We may liken tobishops in this matter various bodies that have the right of governing themselves and thus enjoy a certain autonomy; such areprelates with territorialjurisdiction,religious orders, some exempt chapters anduniversities, etc. The concessions granted to them are generally subject to a certain measure of control.
Other sources of law are rather impersonal in their nature, chief among them being custom or the unwritten law. In canon law custom has become almost like a legislator; not in the sense that the people are made their own lawgiver, but a practice followed by the greater part of the community, and which is reasonable and fulfills the legal requirements for prescription and is observed asobligatory, acquires the force of law by at least the tacit consent of the legislator. Under such circumstances custom can create or rescind a legalobligation, derogate from a law, interpret it, etc. But it must be remarked that in our days, owing to the fully developed body of written law, custom plays a much less important part than did the practices and habits of earlyChristian times, when there was but little written law and even that seldom of wide application. Thecivil law of different nations, and especially theRoman law, may be numbered among the accessory sources of canon law. But it isnecessary to explain more exactly its role and importance. Evidently secular law cannot be, strictly speaking, a source of canon law, the State as such having no competence in spiritual matters; yet it may become so by the more or less formal acceptation of particularlaws by theecclesiastical authorities. We pass by in the first place thelaws made by the mutual agreement of both parties, such as the legislation of the numerous assemblies in theVisigothic kingdom, and theFrankish kingdom and empire, where thebishops sat with the lords and nobles. Such also is the case of theconcordats of later ages, real contracts between the two powers. In these cases we have an ecclesiastico-civil law, the legal force of which arose from the joint action of the two competent authorities. It is in a different sense thatRoman law, Germanic law, and in a lesser degree modern law, have become a subsidiary source of canon law.
It must be remembered that theChurch existed for a long time before having a complete and coordinated system of law; that many daily acts of its administration, while objectively canonical, were of the same nature as similar acts in civil matters, e.g. contracts,obligations, and in general the administration ofproperty; it was quite natural for theChurch to accommodate itself in these matters to the existing flows, without positively approving of them. Later when the canonists of the twelfth century began to systematize the ecclesiastical law, they found themselves in presence, on the one hand, of a fragmentary canon law, and on the other hand of the complete methodical Roman code; they had recourse to the latter to supply what was wanting in the former, whence the maxim adopted by the canonists and inserted in the "Corpus Juris", that theChurch acts according toRoman law when canon law is silent (cap. 1. "De novi op. nunc.", X, i, V, tit. xxxii). Moreover, in the Teutonic kingdoms theclergy followed theRoman law as a personal statute. However, in proportion as the written canon law increased,Roman law became of less practical value in theChurch (cap. 28, X, "De priv.", X, lib. V, tit. xxxiii). Canon law, it may be said, adopted fromRoman law what relates toobligations, contracts, judiciary actions, and to a great extent civil procedure. Other Romanlaws were the object of a more positive recognition than mere usage, i.e. they were formally approved, those, for instance, which though of secular origin, concernedecclesiastical things, e.g. the Byzantine ecclesiastical laws, or againlaws of civil origin and character but which were changed into canonicallaws e.g. the impediment of marriage arising from adoption. The juridical influence of Teutonic law was much less important, if we abstract from the inevitable adaptation to the customs of barbarous races, yet some survivals of thislaw inecclesiastical legislation are worthy of note: the somewhatfeudal system ofbenefices; the computation of the degrees of kindred; the assimilating of the penitential practices to the system of penal compensation (wehrgeld); finally, but for a time only, justification from criminal charges on theoath of guarantors or co-jurors (De purgatione canonica, lib. V, tit. xxxiv).
Modern law has only a restricted and local influence on canon law, and that particularly on two points. On the one hand, theChurch conforms to the civillaws on mixed matters, especially with regard to the administration of itsproperty; on some occasions even it has finally adopted as its own measures passed by thecivil powers acting independently; a notable case is theFrenchdecree of 1809 on the "Fabriques d'église". On the other hand, modern legislation is indebted to the canon law for certain beneficial measures: part of the procedure in criminal, civil, and matrimonial cases, and to some extent, the organization of courts and tribunals.
Considered under the second aspect, the sources of canon law are the legislative texts, and the collections of those texts whence we derive ourknowledge of theChurch'slaws. In order to appreciate fully the reasons for and the utility of the great work of codification of the canon law, recently begun by order ofPius X, it isnecessary to recall the general history of those texts and collections, ever increasing in number up to the present time. A detailed account of each of the canonical collections is here out of place; the more important ones are the subject of special articles, to which we refer the reader; it will suffice if we exhibit the different stages in the development of these texts and collections, and make clear the movement to wards centralization and unification that has led up to the present situation. Even in the private collections of the early centuries, in which the series of conciliary canons were merely brought together in more or less chronological order, a constant tendency towards unification is noticeable. From the ninth century onwards the collections are systematically arranged; with the thirteenth century begins the first official collections, thenceforth the nucleus around which the new legislative texts centre, though it is not yet possible to reduce them to a harmonious and coordinated code. Before tracing the various steps of this evolution, some terms require to be explained. The name "canonical collections" is given to all collections ofecclesiastical legislative texts, because the principal texts were the canons of the councils. At first the authors of these collections contented themselves with bringing together the canons of the different councils in chronological order; consequently these are called "chronological" collections; in the West, the last important chronological collection is that ofPseudo-Isidore. After his time the texts were arranged according to subject matter; these are the "systematic" collections, the only form in use since the time ofPseudo-Isidore. All the ancient collections are private, due to personal initiative, and have, therefore, as collections, no official authority: each text has only its own intrinsic value; even the "Decretum" of Gratian is of this nature. On the other hand, official or authentic collections are those that have been made or at leastpromulgated by the legislator. They begin with the "Compilatio tertia" ofInnocent III; the later collections of the "Corpus Juris", except the "Extravagantes", are official. All the texts in an official collection have the force of law. There are also general collections and particular collections: the former treating of legislation in general, the latter treating of some special subject, for instance, marriage, procedure, etc., or even of the local law of a district. Finally, considered chronologically, the sources and collections are classified as previous to or later than the "Corpus Juris".
Until theChurch began to enjoy peace, the written canon law was very meagre; after making full allowance for the documents that must have perished, we can discover only a fragmentary law, made as circumstances demanded, and devoid of all system. Unity of legislation, in as far as it can be expected at that period, is identical with a certain uniformity of practice, based on the prescriptions ofDivine law relative to the constitution of theChurch, the liturgy, thesacraments, etc. Theclergy, organized everywhere in the same way, exercised almost everywhere the same functions. But at an early period we discover a greater local disciplinary uniformity between the Churches of the great sees (Rome,Carthage, Alexandria,Antioch, later Constantinople) and the Churches depending immediately on them. Further it is the disciplinary decisions of thebishops of the various regions that form the first nucleus of local canon law; these texts, spreading gradually from one country to another by means of the collections, obtain universal dissemination and in this way are the basis of general canon law.
There were, however, in the East, from the early days up to the end of the fifth century, certain writings, closely related to each other, and which were in reality brief canon law treatises onecclesiastical administration theduties of theclergy and thefaithful, and especially on the liturgy. We refer to works attributed to the Apostles, very popular in theOriental Churches, though devoid of official authority, and which may be called pseudo-epigraphic, rather thanapocryphal. The principal writings of this kind are the "Teaching of the Twelve Apostles" or "Didache", the "Didascalia", based on the "Didache"; the "Apostolic Constitutions", an expansion of the two preceding works; then the "Apostolic Church Ordinance", the "Definitio canonica SS. Apostolorum", the "Testament of the Lord" and the "Octateuch of Clement"; lastly the "Apostolic Canons". Of all this literature, only the "Apostolic Canons" were included in the canonical collections of theGreek Church. The most important of these documents the "Apostolic Constitutions", was removed by the Second Canon of theCouncil in Trullo (692), as having been interpolated by theheretics. As to the eighty-fiveApostolic Canons, accepted by the same council, they rank yet first in the above-mentioned "Apostolic" collection; the first fifty translated into Latin byDionysius Exiguus (c. 500), were included in the Western collections and afterwards in the "Corpus Juris".
As the later law of theseparatedEastern Churches did not influence the Western collections, we need not treat of it, but go on to consider only the Greek collection. It begins early in the fourth century: in the different provinces ofAsia Minor, to the canons of local councils are added those of theecumenical Council of Nicea (325), everywhere held in esteem. The Province ofPontus furnished the penitentiary decisions ofAncyra and Neocæsarea (314); Antioch; the canons of the famous Council "in encaeniis" (341), a genuine code ofmetropolitan organization; Paphlagonia, that of the Council ofGangra (343), a reaction against the first excesses of asceticism; Phrygia, the fifty-nine canons ofLaodicea on different disciplinary andliturgical matters. This collection was so highly esteemed that at theCouncil of Chalcedon (451) the canons were read as one series. It was increased later by the addition of the canons of (Constantinople (381), with other canons attributed to it, those of Ephesus (431). Chalcedon (451), and the Apostolic canons. In 692 theCouncil in Trullo passed 102 disciplinary canons, the second of which enumerates the elements of the official collection: they are the texts we have just mentioned, together with the canons ofSardica, and of Carthage (419), according toDionysius Exiguus, and numerous canonical letters of the greatbishops, SS.Dionysius of Alexandria,Gregory Thaumaturgus, Basil, etc. If to these be added the canons of the two ecumenical councils of Nicea (787) and Constantinople (869) we have all the elements of the definitive collection in its final shape. A few "systematic" collections may be mentioned as pertaining to this period: one containing fifty titles by an unknown author about 535; another with twenty-five titles of the ecclesiastical laws of Justinian; a collection of fifty titles drawn up about 550, by John theScholastic, apriest of Antioch. The compilations known as the "Nomocanons" are more important, because they bring together the civillaws and the ecclesiastical laws on the same subjects; the two principal are the Nomocanon, wrongly attributed to John theScholastic, but which dates from the end of the sixth century, with fifty titles, and another, drawn up in the seventh century, and afterwards augmented by the Patriarch Photius in 883.
In the West, canonical collections developed as in the East, but about two centuries later. At first appear collections of national or locallaws and the tendency towards centralization is partially effected in the ninth century. Towards the end of the fourth century there is yet in the West no canonical collection, not even a local one, those of the fifth century are essentially local, but all of them borrow from the Greek councils. The latter were known in the West by two Latin versions, one called the "Hispana" or "Isidorian", because it was inserted in the Spanish canonical collection, attributed toSt. Isidore of Seville, the other called the "Itala" or "ancient" (Prisca), becauseDionysius Exiguus, in the first half of the sixth century, found it in use atRome, and being dissatisfied with its imperfections improved it. Almost all the Western collections, therefore, are based on the same texts as the Greek collection, hence the marked influence of that collection on Western canon law.
(1) At the end of the fifth century theRoman Church was completely organized and thepopes hadpromulgated many legislative texts; but no collection of them had yet been made. The only extra-Roman canons recognized were the canons of Nicea and Sardica, the latter being joined to the former, and at times even cited as the canons of Nicea. The Latin version of the ancient Greek councils was known, but was not adopted as ecclesiastical law. Towards the year 500Dionysius Exiguus compiled atRome a double collection, one of the councils, the other ofdecretals, i.e.papal letters. The former, executed at the request of Stephen,Bishop ofSalona, is a translation of the Greek councils, including Chalcedon, and begins with the fifty Apostolic canons; Dionysius adds to it only the Latin text of the canons ofSardica and of Carthage (419), in which the more ancientAfrican councils are partially reproduced. The second is a collection of thirty-ninepapal decretals, from Siricius (384) to Anastasius II (496-98). (SeeCOLLECTIONS OF ANCIENT CANONS.) Thus joined together these two collections became the canonical code of theRoman Church, not by officialapprobation, but by authorized practice. But while in the work of Dionysius the collection of conciliary canons remained unchanged, that of thedecretals was successively increased; it continued to incorporate letters of the differentpopes till about the middle of the eighth century whenAdrian I gave (774) the collection of Dionysius to the futureEmperor Charlemagne as the canonical book of theRoman Church. This collection, often called the "Dionysio-Hadriana", was soon officially received in allFrankish territory, where it was cited as the "Liber Canonum", and was adopted for the whole empire ofCharlemagne at the Diet ofAachen in 802. This was an important step towards the centralization and unification of the ecclesiastical law, especially as the LatinCatholic world hardly extended beyond the limits of the empire,Africa and the south ofSpain having been lost to theChurch through the victories ofIslam.
(2) The canon law of the African Church was strongly centralized atCarthage; the documents naturally took the form of a collection, as it was customary to read and insert in the Acts of each council the decisions of the preceding councils. At the time of the invasion of theVandals, the canonical code of the African Church comprised, after the canons of Nicea, those of theCouncil of Carthage under Bishop Gratus (about 348), under Genethlius (390), of twenty or twenty-two plenary council under Aurelius (from 393 to 427), and the minor councils of Constantinople. Unfortunately these records have not come down to us in their entirety; we possess them in two forms: in the collection ofDionysius Exiguus, as the canons of a "Concilium Africanum"; in the Spanish collection, as those of eight councils (the fourth wrongly attributed, being a document from Arles, dating about the beginning of the sixth century). Through these two channels the African texts entered into Western canon law. It will suffice to mention the two "systematic" collections ofFulgentius Ferrandus andCresconius.
(3) TheChurch in Gaul had no local religious centre, the territory being divided into unstable kingdoms; it is not surprising therefore that we meet no centralized canon law or universally accepted collection. There are numerous councils, however, and an abundance of texts; but if we except the temporary authority of the See of Arles, no church of Gaul could point to a permanent group of dependentsees. The canonical collections were fairly numerous, but none was generally accepted. The most widespread was the "Quesneliana", called after its editor (theJansenistPaschase Quesnel), rich, but badly arranged, containing many Greek,Gallic, and other councils, also pontificaldecretals. With the other collections it gave way to the "Hadriana", at the end of the eighth century.
(4) InSpain, on the contrary, at least after the conversion of theVisigoths, theChurch was strongly centralized in the See of Toledo, and in close union with the royal power. Previous to this, we must note the collection ofSt. Martin of Braga, a kind of adaptation of conciliary canons, often incorrectly cited in theMiddle Ages as the "Capitula Martini papae" (about 563). It was absorbed in the large and important collection of theVisigothic Church. The latter, begun as early as the council of 633 and increased by the canons of subsequent councils, is known as the "Hispana" or "Isidoriana", because in later times it was attributed (erroneously) toSt. Isidore of Seville. It comprises two parts: the councils and thedecretals; the councils are arranged in four sections: the East,Africa,Gaul,Spain, and chronological order is observed in each section; thedecretals, 104 in number, range from Pope St. Damasus toSt. Gregory (366-604). Its original elements consist of the Spanish councils from Elvira (about 300) to the Seventeenth Council of Toledo in 694. The influence of this collection, in the form it assumed about the middle of the ninth century, when theFalse Decretals were inserted into it, was very great.
(5) Of Great Britain andIreland we need mention only theIrish collection of the beginning of the eighth century, from which several texts passed to the continent; it is remarkable for including among its canons citations from the Scriptures and the Fathers.
(6) The collection of theFalse Decretals, or the Pseudo-Isidore (about 850), is the last and most complete of the "chronological" collections, and therefore the one most used by the authors of the subsequent "systematic" collections; it is the "Hispana" or Spanish collection together withapocryphaldecretals attributed to thepopes of the first centuries up to the time of St. Damasus, when the authenticdecretals begin. It exerted a very great influence.
(7) To conclude the list of collections, where the later canonists were to garner their materials, we must mention the"Penitentials", the "Ordines" or ritual collections, the "Formularies", especially the"Liber Diurnus"; also compilations oflaws either purely secular, or semi-ecclesiastical, like the "Capitularies" (q.v.). The name "capitula" or "capitularia" is given also to the episcopal ordinances quite common in the ninth century. It may be noted that the author of theFalse Decretals forged alsofalse "Capitularies", under the name of Benedict the Deacon, andfalse episcopal "Capitula", under the name of Angilramnus,Bishop ofMetz.
TheLatin Church was meanwhile moving towards closer unity; the local character of canonical discipline andlaws gradually disappears, and the authors of canonical collections exhibit a more personal note, i.e. they pick out more or less advantageously the texts, which they borrow from the "chronological" compilations, though they display as yet no critical discernment, and include manyapocryphal documents, while others continue to be attributed to the wrong sources. They advance, nevertheless, especially when to the bare texts they add their own opinions andideas. From the end of the ninth century to the middle of the twelfth these collections are very numerous; many of them are still unpublished, and some deservedly so. We can only mention the principal ones:
The "Concordantia discordantium canonum", known later as "Decretum", which Gratian published at Bologna about 1148, is not, as we consider it today, a collection of canonical texts, but a general treatise, in which the texts cited are inserted to help in establishing thelaw. It istrue that the work is very rich in texts and there is hardly a canon of any importance contained in the earlier collections (including the decisions of the Lateran Council of 1139 and recentpapal decretals) that Gratian has not used. His object, however, was to build up a juridical system from all these documents. Despite its imperfections, it must be admitted that the work of Gratian was as near perfection as was then possible. For that reason it was adopted at Bologna, and soon elsewhere, as the textbook for the study of canon law. (For an account of this collection seeCORPUS JURIS CANONICI; CANONS.) We may here recall again that the "Decretum" of Gratian is not a codification, but a privately compiled treatise; further, that the building up of a general system of canon law was the work of the canonists, and not of the legislative authorities as such.
Quite as the professors at Bologna commented on Justinian's "Corpus juris civilis", so they began at once to comment on Gratian's work, the personal element as well as his texts. The first commentators are called the "Decretists". In their lectures (Latinlecturae, readings) they treated of the conclusions to be drawn from each part and solved the problems (quaestiones) arising therefrom. They synopsized their teaching in"glosses", interlinear at first, then marginal, or they composed separate treatises known as "Apparatus", "Summae", "Repetitiones", or else collected "casus", "questiones", "Margaritae", "Breviaria", etc. The principal decretists are:
While lecturing on Gratian's work the canonists laboured to complete and elaborate the master's teaching; with that view they collected assiduously thedecretals of thepopes, and especially the canons of the Ecumenical councils of the Lateran (1179, 1215); but these compilations were not intended to form a complete code, they merely centred round and supplemented Gratian's "Decretum"; for that reason theseDecretals are known as the "Extravagantes", i.e. outside of, or extraneous to, the official collections. The five collections thus made between 1190 and 1226 (seeDECRETALS), and which were to serve as the basis for the work ofGregory IX, mark a distinct step forward in the evolution of canon law: whereas Gratian had inserted the texts in his own treatise, and the canonists wrote their works without including the texts, we have now compilations of supplementary texts for the purpose of teaching, but which nevertheless remain quite distinct; in addition, we at last find the legislators taking part officially in editing the collections. While the "Breviarium" ofBernard of Pavia, the first to exhibit the division into five books and into titles, which St.Raymund of Pennafort was later to adopt, is the work of a private individual, the "Compilatio tertia" ofInnocent III in 1210, and the "Compilatio quinta" ofHonorius III, in 1226, are official collections. Though thepopes, doubtless, intended only to give the professors at Bologna correct and authentic texts, they nevertheless acted officially; these collections, however, are but supplements to Gratian.
This is alsotrue of the great collection of "Decretals" ofGregory IX (seeDECRETALS andCORPUS JURIS CANONICI). Thepope wished to collect in a more uniform and convenient manner thedecretals scattered through so many different compilations; he entrusted this synopsis to hischaplainRaymund of Pennafort, and in 1234 sent it officially to theuniversities of Bologna andParis. He did not wish to suppress or supplant the "Decretum" of Gratian, but this eventually occurred. The "Decretals" ofGregory IX, though composed in great part of specific decisions, represented in fact a more advanced state of law; furthermore, the collection was sufficiently extensive to touch almost every matter, and could serve as a basis for a complete course of instruction. It soon gave rise to a series of commentaries, glosses, and works, as the "Decretum" of Gratian had done, only these were more important since they were based on more recent and actual legislation. The commentators of theDecretals were known as Decretalists. The author of the "gloss" wasBernard de Botone (d. 1263); the text was commented on by the most distinguished canonists; among the best known previous to the sixteenth century, we must mention:
For some time longer, the same method of collecting was followed; not to speak of the private compilations, thepopes continued to keep up to date the "Decretals" ofGregory IX; in 1245Innocent IV sent a collection of forty-twodecretals to theuniversities, ordering them to be inserted in their proper places; in 1253 he forwarded the "initia" or first words of the authenticdecretals that were to be accepted. LaterGregory X andNicholas III did likewise, but with little profit, and none of these brief supplementary collections survived. The work was again undertaken byBoniface VIII, who had prepared and published an official collection to complete the five existing books; this was known as the "Sextus" (Liber Sextus).Clement V also had prepared a collection which, in addition to his owndecretals, contained the decisions of the Council of Vienne (1311-12); it was published in 1317 by his successorJohn XXII and was called the "Clementina." This was the last of themedieval official collections. Two later compilations included in the "Corpus Juris" are private works, the "Extravagantes of John XXII", arranged in 1325 by Zenzelin de Cassanis, who glossed them, and the "Extra vagantes communes", a belated collection; it was only in the edition of the "Corpus Juris" by Jean Chappuis, in 1500, that these collections found a fixed form. The "Sextus" was glossed and commented by Joannes Andrae, called the "fons et tuba juris" (d. 1348), and by Cardinal Jean Le Moine (Joannes Monachus, d. 1313), whose works were often printed.
When authors speak of the "closing" of the "Corpus Juris", they do not mean an act of thepopes for bidding canonists to collect new documents, much less forbidding themselves to add to the ancient collections. But the canonical movement, so active after Gratian's time, has ceased forever. External circumstances, it istrue, theWestern Schism, the troubles of the fifteenth century, theReformation, were unfavourable to the compiling of new canonical collections; but there were more direct causes. The special object of the first collections of thedecretals was to help settle thelaw, which the canonists of Bologna were trying to systematize; that is why they contain so many specific decisions, from which the authors gathered general principles; when these had been ascertained the specific decisions were of no use except forjurisprudence; and in fact the "Sextus", the "Clementinae", and the other collections contain texts only when they are the statement of a general law. Any changes deemednecessary could be made in teaching without the necessity of recasting and augmenting the already numerous and massive collections.
After the fourteenth century, except for its contact with the collections we have just treated of, canon law loses its unity. The actual law is found in the works of the canonists rather than in any specific collection; each one gathers his texts where he can; there is no one general collection sufficient for the purpose. It is not a case of confusion, but of isolation and dispersion. The sources of law later than the "Corpus Juris" are:
For local law we have provincial councils anddiocesanstatutes. It istrue there have been published collections of councils and Bullaria. SeveralRoman Congregations have also had their acts collected in official publications; but these are rather erudite compilations or repertories.
The method followed, both by privateindividuals and thepopes, in drawing up canonical collections is generally rather that of a coordinated compilation or juxtaposition of documents than codification in the modern sense of the word, i.e. a redaction of thelaws (all thelaws) into an orderly series of short precise texts. It istrue that antiquity, even theRoman law, did not offer any model different from that of the various collections, that method, however, long since ceased to be useful or possible in canon law. After the "closing" of the "Corpus Juris" two attempts were made; the first was of little use, not being official; the second, was official, but was not brought to a successful issue. In 1590 the jurisconsult Pierre Mathieu, ofLyons. published under the title "Liber septimus" a supplement to the "Corpus Juris", divided according to the order of the books and titles of theDecretals. It includes a selection of papal constitutions, fromSixtus IV toSixtus V (1471-1590), but not the decrees of theCouncil of Trent. This compilation was of some service, and in a certain number of editions of the "Corpus Juris" was included as an appendix. As soon as the official edition of the "Corpus Juris" was published in 1582,Gregory XIII appointed a commission to bring up to date and complete the venerable collection.Sixtus V hastened the work and at length Cardinal Pinelli presented toClement VIII what was meant to be a "Liber septimus". For the purpose of further studies thepope had it printed in 1598: thepontifical constitutions and the decrees of theCouncil of Trent were inserted in it in the order of theDecretals. For several reasonsClement VIII refused to approve this work and the project was definitively abandoned. Had this collection been approved it would have been as little used today as the others, the situation continuing to grow worse.
Many times during the nineteenth century, especially at the time of theVatican Council (Collectio Lacensis, VII, 826), thebishops had urged theHoly See to draw up a complete collection of thelaws in force, adapted to the needs of the day. It istrue, their requests were complied with in regard to certain matters;Pius X in his "Motu proprio" of 19 March, 1904, refers to the constitution"Apostolicae Sedis" limiting and cataloguing the censures "latae sententie", the Constitution "Officiorum", revising thelaws of the Index; the Constitution "Conditre" on the religious congregations with simplevows. These and several other documents were, moreover, drawn up in short precise articles, to a certain extent a novelty, and the beginning of a codification.Pius later officially ordered a codification, in the modern sense of the word, for the whole canon law. In the first year of his pontificate he issued theMotu Proprio "Arduum", (De Ecclesiae legibus in unum redigendis); it treats of the complete codification and reformation of canon law. For this purpose thepope requested the entire episcopate, grouped in provinces, to make known to him the reforms they desired. At the same time he appointed a commission of consultors, on whom the initial work devolved, and a commission ofcardinals, charged with the study and approval of the new texts, subject later to the sanction of thesovereign pontiff. The plans of the various titles were confided to canonists in every country. The generalidea of the Code that followed includes (after the preliminary section) four main divisions:persons, things (with subdivisions for thesacraments, sacred places and objects, etc.). trials, crimes and penalties. It is practically the plan of the "Institutiones", or manuals of canon law. The articles were numbered consecutively. This great work was finished in 1917.
The sources of canon law, and the canonical writers. give us, it istrue, rules of action, each with its specific object. We have now to consider all theselaws in their common abstract element, in other words Ecclesiastical Law, its characteristics and its practice. According to the excellent definition ofSt. Thomas (I-II:90:1) a law is a reasonable ordinance for the common goodpromulgated by the head of the community. Ecclesiastical law therefore has for its author the head of theChristian community over which he hasjurisdiction strictly so called; its object is the common welfare of that community, although it may cause inconvenience toindividuals; it is adapted to the obtaining of the common welfare, which implies that it is physically and morally possible for the majority of the community to observe it; the legislator must intend to bind his subjects and must make known that intention clearly; finally he must bring thelaw under the notice of the community. A law is thus distinguished from a counsel, which is optional notobligatory; from a precept, which is imposed not on the community but on individual members; and from a regulation or direction, which refers to accessory matters.
The object therefore of ecclesiastical law is all that isnecessary or useful in order that thesociety may attain its end, whether there be question of its organization, its working, or the acts of its individual members; it extends also to temporal things, but only indirectly. With regard to acts, thelaw obliges the individual either to perform or to omit certain acts; hence the distinction into "affirmative or preceptive"laws and "negative or prohibitory"laws; at times it is forced to allow certain things to be done, and we have "permissive"laws orlaws of forbearance; finally, thelaw in addition to forbidding a given act may render it, if performed, null and void; these are "irritant"laws. Laws in general, and irritantlaws in particular, are not retroactive, unless such is expressly declared by the legislator to be the case. The publication orpromulgation of thelaw has a double aspect: law must be brought to theknowledge of the community in order that the latter may be able to observe it, and in this consists the publication. But there may be legal forms of publication, requisite andnecessary, and in this consists thepromulgation properly so called (seePROMULGATION). Whatever may be said about the forms used in the past, today thepromulgation of general ecclesiastical laws is effected exclusively by the insertion of thelaw in the official publication of theHoly See, the "Acta Apostolical Sedis", in compliance with the Constitution "Promulgandi", ofPius X,dated 29 September, 1908, except in certain specifically mentioned cases. The law takes effect and is binding on all members of the community as soon as it ispromulgated, allowing for the time morallynecessary for it to become known, unless the legislator has fixed a special time at which it is to come into force.
No one is presumed to beignorant of thelaw; onlyignorance of fact. notignorance of law, is excusable (Reg. 1:3 jur. in VI). Everyone subject to the legislator is bound inconscience to observe thelaw. A violation of thelaw, either by omission or by act, is punishable with a penalty (q.v.). These penalties may be settled beforehand by the legislator, or they may be left to the discretion of the judge who imposes them. A violation of the moral law or what one'sconscience judges to be the moral law is asin; a violation of the exterior penal law, in addition to thesin, renders one liable to a punishment or penalty; if the will of the legislator is only tooblige the offender to submit to the penalty, thelaw is said to be "purely penal"; such are some of thelaws adopted by civil legislatures, and it is generally admitted that some ecclesiastical laws are of this kind. Asbaptism is the gate of entrance to theecclesiasticalsociety, all those who arebaptized, even non-Catholics, are in principle subject to thelaws of theChurch; in practice the question arises only when certain acts ofheretics and schismatics come beforeCatholic tribunals; as a general rule an irritant law is enforced in such a case, unless the legislator has exempted them from its observance, for instance, for the form of marriage. Generallaws therefore, bind allCatholics wherever they may be. In the case of particularlaws as one is subject to them in virtue of one's domicile, or even quasi-domicile, passing strangers are not subject to them, except in the case of acts performed within the territory.
The role of the legislator does not end with thepromulgation of thelaw; it is his office to explain and interpret it (declaratio, interpretatio legis). The interpretation is "official" (authentica) or even "necessary", when it is given by the legislator or by some one authorized by him for that purpose; it is "customary", when it springs from usage or habit; it is "doctrinal", when it is based on the authority of the learned writers or the decisions of the tribunals. The official interpretation alone has the force of law. According to the result, the interpretation is said to be "comprehensive, extensive, restrictive, corrective," expressions easily understood. The legislator, and in the case of particularlaws the superior, remains master of thelaw; he can suppress it either totally (abrogation), or partially (derogation), or he can combine it with a new law which suppresses in the first law all that is incompatible with the second (abrogation). Laws co-exist as far as they are reconcilable; the more recent modifies the more ancient, but a particular law is not suppressed by a general law, unless the fact is stated expressly. A law can also cease when its purpose and end cease, or even when it is too difficult to be observed by the generality of the subjects; it then falls into desuetude (see CUSTOM).
In everysociety, but especially in asociety so vast and varied as theChurch, it is impossible for every law to be applicable always and in all cases. Without suppressing thelaw, the legislator can permanently exempt from it certainpersons or certain groups, or certain matters, or even extend therights of certain subjects; all these concessions are known asprivileges. In the same manner the legislator can derogate from thelaw in special cases; this is called adispensation. Indults or the powers that thebishops of theCatholic world receive from theHoly See, to regulate the various cases that may arise in the administration of theirdioceses, belong to the category of privileges; together with thedispensations granted directly by theHoly See, they eliminate any excessive rigidity of thelaw, and ensure toecclesiastical legislation a marvellous facility of application. Without imperilling therights and prerogatives of the legislator, but on the contrary strengthening them,indults impress more strongly on thelaw of theChurch that humane, broad, merciful character, mindful of the welfare ofsouls, but also of human weakness, which likens it to the moral law and distinguishes it from civil legislation, which is much more external and inflexible.
It is impossible to draw up a detailed and systematic catalogue of all the works of special value in the study of canon law; the most distinguished canonists are the subject of special articles in this Encyclopedia. Those we have mentioned as commentators of the ancient canonical collections are now of interest only from an historical point of view; but the authors who have written since theCouncil of Trent are still read with profit; it is in their great works that we find our practical canon law. Among the authors who have written on special chapters of the "Corpus Juris", we must mention (the date refers to the first edition of the works):
Among the canonists who have followed the order of the titles of theDecretals:
The plan of the "Institutiones", in imitation of Lancelotti (Perugia, 1563), has been followed by very many canonists, among whom the principal are:
School manuals in one or two volumes are very numerous and it is impossible to mention all.
There are also canonists who have written at considerable length either on the whole canon law, or on special parts of it, in their own particular manner; it is difficult to give a complete list, but we will mention:
It is impossible to enumerate the special treatises. Among repertoires and dictionaries, it will suffice to cite the "Prompta Bibliotheca" of theFranciscanLudovico Ferraris (Bologna, 1746); the "Dictionnaire de droit canonique" of Durand de Maillane (Avignon, 1761), continued later by Abbé Andre (Paris, 1847) etc.; finally the other encyclopedias ofecclesiasticalsciences wherein canon law has been treated.
Onecclesiastical public law, the best-known hand books are, with Soglia,
For the history of canon law considered in its sources and collections, we must mention
APA citation.Boudinhon, A.(1910).Canon Law. InThe Catholic Encyclopedia.New York: Robert Appleton Company.http://www.newadvent.org/cathen/09056a.htm
MLA citation.Boudinhon, Auguste."Canon Law."The Catholic Encyclopedia.Vol. 9.New York: Robert Appleton Company,1910.<http://www.newadvent.org/cathen/09056a.htm>.
Transcription.This article was transcribed for New Advent by David K. DeWolf.
Ecclesiastical approbation.Nihil Obstat. October 1, 1910. Remy Lafort, Censor.Imprimatur. +John M. Farley, Archbishop of New York.
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