Decree (Catholic canon law)
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Adecree(Latin:decretum,fromdecerno,"I judge" ) is, in a general sense, an order or law made by a superior authority for the direction of others. In the usage of thecanon lawof theCatholic Church,it has various meanings. Anypapal bull,brief,ormotu propriois a decree inasmuch as these documents are legislative acts of thepope.In this sense the term is quite ancient.[note 1]TheRoman congregationswere formerly empowered to issue decrees in matters which come under their particular jurisdiction, but were forbidden from continuing to do so underPope Benedict XVin 1917. Eachecclesiastical province,and also eachdiocesemay issue decrees in their periodicalsynodswithin their sphere of authority.
Decrees can be distinguished between legislative and executory decrees. Ageneral legislative decreeenacts law (lex) and stands on its own, while executory decrees determine the implementation of a legislative act and are dependent upon such for their efficacy.
Executory decrees can further be distinguished between general executory decrees and singular executory decrees. Ageneral executory decreebinds all those for whom the original law was made, while asingular executory decreemakes a decision or makes provision for the appointment of a specific office. Precepts are a kind of singular executory decree, which bind specific person(s) to do or refrain from some act, especially to observe the law. Singular executory decrees are administrative acts subject to administrative recourse.
Canon 29 definition[edit]
Canon 29 of the 1983 Code of Canon Law offers a definition of general legislative decrees:
General decrees, by which a competent legislator makes common provisions for a community capable of receiving a law, are true laws and are regulated by the provisions of the canons on laws.[1]
The canon reproduces substantial elements (later deleted) of the original draft of what would become canon 7. This canon incorporates a definition which takes its inspiration fromThomas Aquinas' definition of human law found in hisTreatise on Law.[2]
Codifications[edit]
The word is also used to denote certain specified collections of church law, e.g.Gratian's Decree (Decretum Gratiani). In respect of the general legislative acts of the pope there is never doubt as to the universal extent of the obligation; the same may be said of the decrees of ageneral council,e.g. those of theFirst Vatican Council.
TheCouncil of Trentwas the first to apply the term indiscriminately to rulings concerning faith and discipline (decreta de fide, de reformatione).
Decrees of Roman curial congregations[edit]
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The Roman congregations were formerly empowered to issue decrees in matters which came under their particular jurisdiction. The decrees of theRoman congregations(q. v.) are certainly binding in each case submitted for judgment. But there are varying opinions as to whether such judgment is to be taken as a rule or general law applying to all similar cases. The common opinion is that when the decisions are enlargements of the law (declaratio extensiva legis) the decisions do not bind except in the particular case for which the decree is made. If, however, the decision is not an enlargement, but merely an explanation of the law (declaratio comprehensiva legis), such decree binds in similar cases.
Benedict XV's restriction of curial decrees[edit]
On 15 September 1917, by themotu proprioCum Iuris Canonici,[3]Pope Benedict XVmade provision for apontifical commissioncharged with interpreting the code and making any necessary modifications as later legislation was issued. New laws would be appended to existing canons in new paragraphs or inserted between canons, repeating the number of the previous canon and addingbis,ter,etc.[4](e.g. "canon 1567bis"in the style of thecivil law) so as not to subvert the ordering of the code, or the existing text of a canon would be completely supplanted. The numbering of the canons was not to be altered.[5]
The Roman congregations were forbidden to issue new general decrees, unless it was necessary, and then only after consulting the pontifical commission charged with amending the code. The congregations were instead to issue instructions on the canons of the code, and to make it clear that they were elucidating particular canons of the code.[6]This was done so as not to make the code obsolete soon after it was promulgated. The1917 Codewas very rarely amended, and then only slightly.[7]
Particular law[edit]
The decrees of a national council may not be promulgated until they have received the approval of the pope. The decrees of a provincial synod have no force until they have been approved by Rome. This approval is twofold: ordinary (in formâ communi), and specific (in formâ specificâ). The former means that there is nothing which needs correction in the decrees of the synod, and they thereby have force in the province. This is the approval generally given to such decrees. If approval is given informâ specificâthe decrees have the same force as if they emanated from the Apostolic See, though they are binding only in the province for which they are made.
The decrees of a diocesan bishop deal with the administration and good order of his diocese. If they are made during a synod, they are diocesan laws, are usually known as "diocesan statutes", or "synodal statutes", and bind until revoked by the bishop or his successor. If the decrees are extra-synodal, they have force only during the lifetime of the bishop or until he revokes them himself.
See also[edit]
Notes[edit]
- ^Pope Siriciusspeaks (Ep. i, ad Himer., c. ii) of thedecreta generaliaofPope Liberius.
References[edit]
- ^Canon 29,1983 Code of Canon Law;accessed 30 March 2016.
- ^Exegetical commentary,pg. 261.
- ^Pope Benedict XV,motu proprioCum Iuris Canoniciof 15 September 1917, (Edward N. Peters,1917 Code, pg. 25)
- ^Pope Benedict XV,motu proprioCum Iuris Canoniciof 15 September 1917, §III (Edward N. Peters,1917 Code, pg. 26)
- ^Metz,What is Canon Law?pgs. 62-63
- ^Pope Benedict XV,motu proprioCum Iuris Canoniciof 15 September 1917, §§II-III (Edward N. Peters,1917 Code, pg. 26)
- ^Metz,What is Canon Law?pg. 64
Bibliography[edit]
This article incorporates text from a publication now in thepublic domain:David Dunford (1913). "Decree".In Herbermann, Charles (ed.).Catholic Encyclopedia.New York: Robert Appleton Company.- Caparros, Ernest.Exegetical Commentary on the Code of Canon Law, Volume I: Prepared under the Responsibility of the Martín de Azpilcueta Institute, Faculty of Canon Law, University of Navarre(Chicago, Illinois: Midwest Theological Forum, 2004) Edited by Ángel Marzoa, Jorge Miras and Rafael Rodríguez-Ocaña (English language edition General editor: Ernest Caparros; Review coordinator: Patrick Lagges).
- Metz, René.What is Canon Law?,translated from the French by Michael Derrick (New York: Hawthorn Books/Publishers, 1960).
- Peters, Dr. Edward N.(translator),The 1917 or Pio-Benedictine Code of Canon Law: in English Translation with Extensive Scholarly Apparatus(San Francisco: Ignatius Press, 2001).
