Canon law (from Latin ius canonicum) is the system ofreligious laws and ecclesiastical legal principles made and enforced by thehierarchical authorities of theCatholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church.[1][2]
It is the first modernWestern legal system[3] and is the oldest continuously functioninglegal system in the West,[4][5] while the unique traditions ofEastern Catholic canon law govern the 23Eastern Catholicparticular churchessui iuris.
Positive ecclesiastical laws, based directly or indirectly upon immutabledivine law ornatural law, derive formal authority in the case of universal laws frompromulgation by the supreme legislator—thesupreme pontiff, who possesses the totality of legislative, executive, and judicial power in his person,[6] or by theCollege of Bishops acting in communion with the pope. In contrast, particular laws derive formal authority from promulgation by a legislator inferior to the supreme legislator, whether an ordinary or a delegated legislator. The actual subject material of the canons is not just doctrinal or moral in nature, but all-encompassing of the human condition.
The canon law of the Catholic Church has all the ordinary elements of a mature legal system: laws,courts,lawyers, judges.[7] The canon law of the Catholic Church is articulated in thelegal code for theLatin Church[8] as well as acode for the Eastern Catholic Churches.[8] This canon law has principles oflegal interpretation,[9] and coercive penalties.[10] It lacks civilly-binding force in most secular jurisdictions. Those who are versed and skilled in canon law, and professors of canon law, are calledcanonists[11][12] (or colloquially,canon lawyers[11][13]). Canon law as a sacred science is calledcanonistics.
Thejurisprudence of canon law is the complex of legal principles and traditions within which canon law operates, while thephilosophy, theology, and fundamental theory of Catholic canon law are the areas of philosophical, theological, and legal scholarship dedicated to providing a theoretical basis for canon law as a legal system and as true law.
The term "canon law" (ius canonicum) was only regularly used from the twelfth century onwards.[14] The termius ecclesiasticum, by contrast, referred to the secular law, whether imperial, royal, or feudal, that dealt with relations between the state and the Catholic Church.[14] The termcorpus iuris canonici was used to denote canon law as legal system beginning in the thirteenth century.[15]
Other terms sometimes used synonymously withius canonicum includeius sacrum,ius ecclesiasticum,ius divinum, andius pontificium,[16] as well assacri canones[17] (sacred canons).
Ecclesiastical positive law is thepositive law that emanates from thelegislative power of theCatholic Church in its effort to govern its members in accordance with theGospel ofJesus Christ.[18] Fernando della Rocca used the term "ecclesiastical-positive law" in contradistinction tocivil-positive law, in order to differentiate between the human legislators of church and state, all of which issue "positive law" in the normal sense.[19]
Examples of ecclesiastical positive law are fasting during theliturgical season ofLent, and religious workers (monks, nuns, etc.) requiring permission from their superiors to publish a book.[18][20]
The word "canon" comes from the Greekkanon, which in its original usage denoted a straight rod, was later used for a measuring stick, and eventually came to mean a rule or norm.[21] In 325, when the first ecumenical council,Nicaea I, was held,kanon started to obtain the restricted juridical denotation of a lawpromulgated by asynod orecumenical council, as well as that of an individual bishop.[21]
The term source or fountain of canon law (fons iuris canonici) may be taken in a twofold sense: a) as the formal cause of the existence of a law, and in this sense of thefontes essendi (Latin: "sources of being") of canon law or lawgivers; b) as the material channel through which laws are handed down and made known, and in this sense the sources are styledfontes cognoscendi (Latin: "sources of knowing"), or depositaries, like sources of history.[22]
TheCatholic Church has the oldest continuously functioning legal system in the West,[4] much later thanRoman law but predating the evolution of modern Europeancivil law traditions. What began with rules ("canons") said to have been adopted by theApostles at theCouncil of Jerusalem in the first century has developed into a highly complex legal system encapsulating not just norms of theNew Testament, but some elements of theHebrew (Old Testament),Roman,Visigothic,Saxon, andCeltic legal traditions. As many as 36 collections of canon law are known to have been brought into existence before 1150.[23]
The history of Latin canon law can be divided into four periods: theius antiquum, theius novum, theius novissimum and theCodex Iuris Canonici.[24] In relation to the Code, history can be divided into theius vetus (all law before the1917Code) and theius novum (the law of the code, orius codicis).[24]
The Eastern Catholic canon law of theEastern Catholic Churches, which had developed some different disciplines and practices, underwent its own process ofcodification, resulting in theCode of Canons of the Eastern Churches promulgated in 1990 byPope John Paul II.[25]
St. Raymond of Penyafort (1175–1275), a SpanishDominican priest, is thepatron saint of canonists,[26][4] due to his important contributions to canon law in codifying theDecretales Gregorii IX. Other saintly patrons includeSt. Ivo of Chartres and theJesuitSt. Robert Bellarmine.[citation needed]
The period of canonical history known as theius antiquum ("ancient law") extends from the foundation of the Church to the time ofGratian (mid-12th century).[24][27] This period can be further divided into three periods: the time of the apostles to the death ofPope Gelasius I (A.D. 496), the end of the 5th century to the spurious collection of the 9th century, and the last up to the time of Gratian (mid-12th century).[28]
In theEarly Church, the first canons were decreed bybishops united in "Ecumenical" councils (the Emperor summoning all of the known world's bishops to attend with at least the acknowledgement of theBishop ofRome) or "local" councils (bishops of a region or territory). Over time, these canons were supplemented withdecretals of the Bishops of Rome, which were responses to doubts or problems according to the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, the case is closed"). A common misconception, the Catholic Encyclopedia links this saying toSt Augustine who actually said something quite different: "jam enim de hac causa duo concilia missa sunt ad sedem apostolicam; inde etiam rescripta venerunt; causa finita est" (which roughly translate to: "there are two councils, for now, this matter as brought to the Apostolic See, whence also letters are come to pass, the case was finished") in response to the hereticalPelagianism of the time.[citation needed]
In the first millennium of theLatin Church, the canons of various ecumenical and local councils were supplemented withdecretals of thepopes; these were gathered together into collections.[citation needed]
The period of canonical history known as theIus novum ("new law") ormiddle period covers the time fromGratian to theCouncil of Trent (mid-12th century–16th century).[24][27]
The spurious conciliar canons and papal decrees were gathered together into collections, both unofficial and official. In the year 1000, there was no book that had attempted to summarize the whole body of canon law, to systematize it in whole or in part.[29] The first truly systematic collection was assembled by theCamaldolese monkGratian in the 11th century, commonly known as theDecretum Gratiani ("Gratian's Decree") but originally calledThe Concordance of Discordant Canons[30] (Concordantia Discordantium Canonum). Before Gratian there was no "jurisprudence of canon law" (system of legal interpretation and principles). Gratian is the founder of canonical jurisprudence, which merits him the title "Father of Canon Law".[31] Gratian also had an enormous influence on the history ofnatural law in his transmission of the ancient doctrines of natural law toScholasticism.[32]
Canon law greatly increased from 1140 to 1234. After that, it slowed down, except for the laws of local councils (an area of canon law in need of scholarship), and secular laws supplemented.[33] In 1234PopeGregory IX promulgated the first official collection ofcanons, called theDecretalia Gregorii Noni orLiber Extra. This was followed by theLiber Sextus (1298) ofBoniface VIII, theClementines (1317) ofClement V, theExtravagantes Joannis XXII and theExtravagantes Communes, all of which followed the same structure as theLiber Extra. All these collections, with theDecretum Gratiani, are together referred to as theCorpus Iuris Canonici. After the completion of theCorpus Iuris Canonici, subsequentpapal legislation was published in periodic volumes calledBullaria.
In the thirteenth century, the Roman Church began to collect and organize its canon law, which after a millennium of development had become a complex and difficult system of interpretation and cross-referencing. The official collections were theLiber Extra (1234) of PopeGregory IX, theLiber Sextus (1298) ofBoniface VIII and theClementines (1317), prepared forClement V but published byJohn XXII. These were addressed to the universities by papal letters at the beginning of each collection, and these texts became textbooks for aspiring canon lawyers. In 1582 a compilation was made of the Decretum, Extra, the Sext, the Clementines, and theExtravagantes (that is, the decretals of the popes fromPope John XXII toPope Sixtus IV).
The third canonical period, known as theius novissimum ("newest law"), stretches from theCouncil of Trent[27] to thepromulgation of the1917Code of Canon Law which took legal effect in 1918.[24] The start of theius novissimum is not universally agreed upon, however.Edward N. Peters argues that theius novissimum actually started with theLiber Extra ofGregory IX in 1234.[34]
The fourth period of canonical history is that of the present day, initiated by the promulgation of the 1917 Code of Canon Law[24] on 27 May 1917.[35]
Benedict XV, in his bull of promulgation, refers to themotu proprioArduum sane, which was issued by Pius X, March 17, 1904, and gave rise to the 1917 Code.[22] In that pronouncement, the Pontiff stated the reasons which prompted him as the supreme Pastor of souls, who has the care of all the churches, to provide for a new codification of ecclesiastic laws, with a view "to put together with order and clearness all the laws of the Church thus far issued, removing all those that would be recognized as abrogated or obsolete, adapting others to the necessities of the times, and enacting new ones in conformity with the present needs."[22]
It is sometimes referred to as theius codicis ("law of the code") or, in comparison with all law before it, theius novum ("new law").[24] From time to time, thePontifical Council for Legislative Texts issuesauthentic interpretations regarding the code. The pope occasionally amends the text of the codes.
By the 19th century, the body of canonical legislation included some 10,000 norms. Many of these were difficult to reconcile with one another due to changes in circumstances and practice. The situation impelledPope Pius X to order the creation of thefirst Code of Canon Law, a single volume of clearly stated laws. Under the aegis of the CardinalPietro Gasparri, the Commission for the Codification of Canon Law was completed underBenedict XV, who promulgated the Code on 27 May 1917,[36] effective on 29 May 1918.[36] The work having been begun byPius X, it was sometimes called the "Pio-Benedictine Code" but more often the1917 Code to distinguish it from the later1983 Code which replaced it. In its preparation, centuries of material was examined, scrutinized for authenticity by leading experts, and harmonized as much as possible with opposing canons and even other codes, from theCode of Justinian to theNapoleonic Code.
In the succeeding decades, some parts of the 1917Code were retouched, especially underPope Pius XII. In 1959,Pope John XXIII announced, together with his intention to call theSecond Vatican Council, that the 1917Code would be completely revised.[37][38] In 1963, the commission appointed to undertake the task decided to delay the project until the council had been concluded. After Vatican II closed in 1965, it became apparent that the 1917Code would need to be revised in light of the documents and theology of Vatican II. When work finally began, almost two decades of study and discussion on drafts of the various sections were needed beforePope John Paul II could promulgate the revised edition, which came into force on 27 November 1983,[39] having been promulgated via theapostolic constitutionSacrae Disciplinae Leges of 25 January 1983. Containing 1752 canons,[40] it is the law currently binding on theLatin Church.
This codification is referred to as the1983Code of Canon Law to distinguish it from the 1917Code. Like the preceding codification, it applies to Roman Catholics of theLatin Church.[41]
As the currently-in-force law for the Latin Church, it constitutes a major part of theIus vigens (Latin: "active law").
Eastern Catholic canon law is the law of the 23 Catholicsui iurisparticular churches of theEastern Catholic tradition. Oriental canon law includes both the common tradition among all Eastern Catholic Churches, now chiefly contained in theCode of Canons of the Eastern Churches, as well as the particular law proper to each individualsui iuris particular Eastern Catholic Church. Originating with the canons of particular councils and the writings of the Eastern Church Fathers, oriental canon law developed in concert withByzantine Roman laws, leading to the compilation of nomocanons. Oriental canon law is distinguished from Latin canon law, which developed along a separate line in the remnants of theWestern Roman Empire under the direct influence of the Roman Pontiff, and is now chiefly codified in the1983Code of Canon Law.
Anomocanon (nomokanon) is a collection ofecclesiastical law, consisting of the elements from both thecivil law (nomoi) and thecanon law (kanones). Collections of this kind were found only in Eastern law. The Greek Church has two principal nomocanonical collections, the "Nomocanon of John Scholasticus" of the sixth century and the "Nomocanon in 14 titles", which dates from the reign of the ByzantineEmperor Heraclius (r. 610–641), made by fusion of theCollectio tripartita (collection of Justinian's imperial law) and "Canonic syntagma" (ecclesiastical canons). The latter was long held in esteem and passed into the Russian Church, but it was by degrees supplanted by the "Nomocanon ofPhotios" in 883. Photius compiled systematically the canons of the East which amount to a counterpart of Gratian in the West. His 2-part collection, a chronological collection of synodal canons and his nomocanon revision with updated civil laws, became a classical source of ancient canon law for the Greek Church.[42]
For Eastern Catholics, two sections ofEastern Catholic canon law had already,under Pope Pius XII, been put in the form of short canons. These parts were revised as part of the application ofPope John XXIII's decision to carry out a general revision of the Church's canon law; as a result, a distinct Code for members of theEastern Catholic Churches came into effect for the first time on 1 October 1991 (Apostolic ConstitutionSacri Canones of 18 October 1990). TheCode of Canons of the Eastern Churches, as it is called, differs from the Latin1983 Code of Canon Law in matters where Eastern and Latin traditions diverge, such as terminology, discipline concerning hierarchical offices, and administration of the sacraments.
The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both moderncivil law andcommon law[43][44][45] bear the influences of canon law.
From the days of Ethelbert onwards [say, from the year 600], English law was under the influence of so much of Roman law as had worked itself into the traditions of the Catholic Church.[46]
Much of the legislative style was adapted from that ofRoman Law[47] especially theJustinianicCorpus Iuris Civilis.[48][49] After the 'fall' of the Roman Empire and up until the revival of Roman Law in the 11th century canon law served as the most important unifying force among the local systems in the Civil Law tradition.[50] The Catholic Church developed theinquisitorial system in the Middle Ages.[51] The canonists introduced into post-Roman Europe the concept of ahigher law of ultimate justice, over and above the momentary law of the state.[52]
In one of his elaborate orations in the United States Senate Mr. Charles Sumner spoke of "the generous presumption of the common law in favor of the innocence of an accused person"; yet it must be admitted that such a presumption cannot be found in Anglo-Saxon law, where sometimes the presumption seems to have been the other way. And in a very recent case in the Supreme Court of the United States, the case of Coffin, 156 U. S. 432, it is pointed out that this presumption was fully established in the Roman law, and was preserved in the canon law.[53]
The primary canonical sources of law are the1983Code of Canon Law,[18][54] theCode of Canons of the Eastern Churches,[54] andPastor Bonus.[55] Other sources includeapostolic constitutions,motibus propriis, particular law, and—with the approbation of the competent legislator—custom. A law must bepromulgated for it to have legal effect.[56] A later and contrary lawobrogatesan earlier law.
Canonists have formulated interpretiverules of law for the magisterial (non-legislatorial)interpretation of canon laws. An authentic interpretation is an official interpretation of a law issued by the law'slegislator, and has the force of law.[57]
Although canonical jurisprudential theory of Catholic canon law generally follows the principles ofAristotelian-Thomisticlegal philosophy,[4]Thomas Aquinas never explicitly discusses the place of canon law in hisTreatise on Law.[58] However, Aquinas himself was influenced by canon law.[59] While many canonists apply theThomistic definition of law (lex) to Catholic canon law without objection, some authors dispute the applicability of theThomistic definition to canon law, arguing that its application would impoverishecclesiology and corrupt the very supernatural end of canon law.[60]
In the decades following theSecond Vatican Council, many canonists called for a more theological, rather than philosophical, conception of Catholic canon law,[61] acknowledging the "triple relationship between theology, philosophy, and canon law".[62] Some authors conceive of canon law asessentially theological and the discipline of canon law as a theological subdiscipline,[61] but Msgr. Carlos José Errázuriz contends that "in a certain sense, all postconciliar canonical scholarship has shown a theological concern in the widest sense, that is, a tendency to determine more clearly the place of the juridical in the mystery of the Church."[61]
The fundamental theory of canon law is a discipline covering the basis of canon law in the very nature of the church.[63] Fundamental theory is a newer discipline that takes as is object "the existence and nature of what isjuridical in theChurch of Jesus Christ."[64] The discipline seeks to better explain the nature of law in the church and engages in theological discussions in post-conciliar Catholicism[65] and seeks to combat "postconciliar antijuridicism".[66]
The academic degrees in canon law are the J.C.B. (Iuris Canonici Baccalaureatus, Bachelor of Canon Law, normally taken as a graduate degree), J.C.L. (Iuris Canonici Licentiatus,Licentiate of Canon Law) and the J.C.D. (Iuris Canonici Doctor,Doctor of Canon Law), and those with a J.C.L. or higher are usually called "canonists" or "canon lawyers". Because of its specialized nature, advanced degrees in civil law or theology are normal prerequisites for the study of canon law. Canon law as a field is called canonistics.
Under the1983Code of Canon Law, all seminary students are required to take courses in canon law.[67] Some ecclesiastical officials are required to have the doctorate (JCD) or at least the licentiate (JCL) in canon law in order to fulfill their functions: judicial vicars;[68] judges;[69] promoters of justice;[70]defenders of the bond;[70] canonical advocates.[71] In addition,vicars general and episcopal vicars are to be doctors, or at least licensed in canon law or theology.[72] Ordinarily, bishops are to have an advanced degree (doctorate or at least licentiate) in scripture, theology, or canon law.[73]
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