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general Cano Executi make a decree by which an executive gives effect to the
executor n 31 ve s regulation in US law. It can change without changing t
y decree norm It applies to all to whom the law applies. These are ofte
s distinguish from a general decree
more
precis
e
singular Cano Executi An application of law for one or a small group - bill of a
decree n 48 ve
decree in Boo Judiciar During a trial, contentious or marriage, etc. E.g. the a
the k VII y the libellus, the decree of publication. However, you c
judicial this.
sphere
* Note, c.29-30 are on legislative acts (lex) properly part of Title I. C.31-34
are on executory norms (to execute, explain, instruct about a positive law).
No mention is made of independent norms which have no underlying lex.
This makes it more difficult to understand the role and assess the weight of
Vatican statements.
First five titles go from general to specific, this is the turning Title.
Canon 29 General Decrees The word decree is ambiguous could be
legislative acts (laws) or executive / administrative acts applying the law. A
general decree is a legislative text, it must be promulgated by a person or
group with legislative power, for a community capable of receiving law.
Even the law isnt specific 4551 includes executive acts in decrees via
Authentic Interpretation. E.g. Bishop can make law for a diocese, but pastor
of parish doesnt have legislative authority. As laws, decrees are subject to
title I above, not this title III
Canon 30 Limits of Executive Power One with executive power can't issue
laws, they only implement them. An executive can however legislate if that
power is specifically delegated by a competent legislator (canon 135.1), the
only one who can do this is the Roman Pontiff or an ecumenical council.
Canon 31 General Executory Decrees Purpose / Issuance of General
Executory Decrees administrative is executive. Distinguish the term acts
of administration which are generally use of temporal goods: e.g. canons
638 and 1277. Executive is day to day activity of applying laws which may
at times be quasi-legislative or quasi-judicial. This canon regulates the quasi-
legislative function. Roman congregations issue general executory decrees,
not laws. Thus they depend on the laws, and are interpreted according to
c31-33. Though they are not laws, they are promulgated like laws and have a
grace period before application, like laws.
Canon 32 General Executory Decree Coverage of general executory
decree is the same as that of the underlying law law. However, this is true
only if executor had same jurisdiction as legislator. Otherwise it binds only
those bound by the law AND under the jurisdiction of the executive.
Canon 33 Relation to laws 1 Decrees cannot derogate from law. 2
Decrees may be revoked, they fail when the underlying law ceases.
However, they don't fail with expiry of the promulgator's term, unless
specifically so stated.
Canon 34 Instructions
1 Instructions are not laws, and laws cannot be enacted under the title of
instruction. A Decree specifies or encourages observance to those bound. An
instruction gives practical application to executives. An Instruction is a
guideline, handbook, manual. Those with executive power can issue
instructions within the limits of their competence. 2 Instructions can't
derogate from the law. 3 Decrees may be revoked, they fail when the
underlying law ceases. Like POMS in the US.
Ratzinger used the instruction a lot, it is used a lot in current Roman
practice. Theoretically, instructions clarify and elaborate the law for
executors and oblige executors. Issued by executors for other executors, not
for the people or for clerics. In the 60s, there were even secret instructions. It
cannot be more than explanation of what is already there, so it can't narrow
or limit rights. It is an inferior document, and isn't necessarily even a public
document. Recently, however, the instructions are being approbata sub
forma specifica. Some argue the approval change the nature of the document
to be a law disguised as an instruction. In the past documents are sometimes
used for other purposes. E.g. Pius X Pascendi condemned the ideas of
modernism in a encyclical. However, technically, it remains an instruction
but with the formal support of the pope. It may be a technique to support a
particular application of the law - it may add a quality seal on the document.
It may seem softer than a stricter law.
Title IV: Singular Administrative Acts
Administrative act: juridic act performed by administrator as a function of
that office. A singular administrative act that resolves a controversy or
makes a provision is a decree. A precept imposes an injunction. A rescript
answers a request for favor (where petitioner has no right). Indult is a
singular administrative act, e.g. releasing from vows.
Ch. I : Common Norms
(Cann. 35-47) English Latin
Canon 35 Author
Author competent administrator within the scope of their power. Decree
and rescript described 48. Precept can be given to just one person, can be
given to overcome the prohibition against retroactivity.
1 Canon 1734 - You can appeal against it is found in canon 1732ff. First step is
to ask the author to revoke or amend the decree.
2 Canon 1735 - Take it to the hierarchical superior who decides on the legality
of the act, and the opportunity of the act. So they don't just review the
legality, but also whether or not they would have taken the same decision.
Sometimes the congregation in Rome doesn't have the information to
respond to this.
If you protest, it is for the person to made the decision to send your protest
to the higher authority. In extreme cases, the person can try to find someone
to get the bishop to do his job.
3 Canon 1445.2 - Apostolic Signatura decides on the legality only.
Administrative tribunal - this is the first time you have an actual judicial
tribunal. (There had been the idea that there would have been administrative
tribunals at the level of the episcopal conference, but it was seen that this
might have been against the unity of the bishops and pope.)
Canon 36 Interpretation similar to c. 17-18 on interpretation of laws. Act
is interpreted according to its words - narrowly in the case of litigation,
penalties, restricting rights or benefits; otherwise interpret broadly. These are
concrete and singular and are limited to a single application in the instant
case. You can broaden the a law to cover a lacuna, but an act is restricted to
the case for which it was issued.
Canon 37 Written Form Written Form required for legitimacy, not for
validity because that's not expressly stated. Only required for external forum.
Act must be communicated. E-mail / fax are considered not quite adequate.
Hard copy must at least follow. Commissorial form commission someone
to go to the person and execute the act. This is especially helpful when the
executive is distant from the person involved. It requires the commissioned
party to verify the facts are as stated.
Canon 38 Limits Limits actor must derogate, and must have power to do
so if its opposed to rights, law or custom.
Canon 39 Validity Conditions affecting validity. What about vernacular.
CCEO provides same latin and: similar words in the vernacular. Law favors
validity.
Canon 40 Invalid Anticipation Canon 40ff provisions for execution. If
otherwise, it should be clearly stated. If you dont get a dispensation, etc, but
the time comes to act, you can call to verify that it was issued.
Canon 41 Limits on acts of executor. Strikes the balance between
consistency and subsidiary. Other grave cause may be absence of a
derogating clause required by c.38. Dont apply if null, void, or conditions
not fulfilled.
Canon 42 Invalid Execution Fulfillment of norm of mandate and
instructions and conditions goes to validity. The conditions for validity
should be clearly stated as in c. 39.
Canon 43 Substitution Substitution is allowed unless otherwise provided.
Canon 44 Succession Assumption is that executor is chosen as officeholder,
not personally.
Canon 45 Remedy for Error Remedy for error Executor is charged to get
the job done.
Canon 46 Continuity Continuity Admin. Act is a public act, so doesnt
fail when executive fails.
Canon 47 Revocation
Revoked on actual notice.
There are three types of administrative acts: singular decree communicates
decisions; the singular precept impose injunctions; the rescript grant
dispensation or privileges. SD and SP in this Ch..
Ch. II : Sing Decrees and Prescripts
(Cann. 48-58) English Latin
Canon 48 (4) concerns content and distinguishes it from other admin. acts.
Dispute or controversy settled administratively. Also make provision i.e.
respond to a perceived need. Appoint to offices; establish public assn. of the
faithful; major superior of pont. cler. inst erects house.
Canon 49 Poorly drafted. SP is an ad. act which. Precept is more negative
injunction to do or not to do. Administrator must have subject matter and
personal jurisdiction.
Canon 50 Information & consultation before Decree. Though it only
mentions decrees, probably this and others should apply to precepts. A
common sense canon. Not necessary for validity.
Canon 51 Written form. C.37 requires writing for all acts concerning the
external forum. Not required in making provision for an office. Decisory
acts affect juridic rights and may be appealed. Best its in writing. Appeal of
reasons is to administrators superior. Appeal to Apost. Signatura is only
viable on grounds of substantive or procedural illegality. CCEO allows
reasons to be recorded secretly.
Canon 52 Limited application. Cannot be extended beyond person and
event for which it was issued.
Canon 53 Conflicting decrees. Same authority is presumed since higher
authority would trump lower.
Canon 54 Effective when communicated in an official writing.
Ch. III: Rescripts
(Cann. 59 - 75) English Latin from personal percepts ius to favors gratia. No
claim/rt to favors. Hierarchical principle prevails. Elements: competence,
matter, recipient, execution and cessation. Singular administrative act a
species of constitutive law.
Canon 59
Usually requires a permission, Ordinary Executive power. Second paragraph
is new. Code nevertheless favors writing / record. A rescript is for a
privilege, dispensation or other favor. Privilege means this law doesn't apply
to you ever - Dispensation means the law applies to you, but in this
particular case, there is a relaxation of the law.
Privileges are less popular today; however, many things that started as
privileges have later become laws, e.g. Pauline privilege, cardinals are only
judged by the pope (privilegium fori). Cardinal Joos - parish priest,
ecclesiastical judge, appointed cardinal because he was a friend of the pope.
The stress killed him, but in the interim, he was outside the law of the local
bishop.
Dispensations are less far reaching, however, it can be used to avoid the
application of law - e.g. dispense from every application of law - this ends
up being a privilege. For this reason dispensation is strictly organized, and
some dispensations can actually be invalid. E.g. Canon 90 says dispensation
can be illicit, invalid if not given by the legislator himself. Book six and
seven can't be dispensed by the bishop. 1435 requires jcl, jcd for judges.
Only Rome can dispense. With dispensation, there is almost a presumption
of abuse.
Ch. IV: Privileges
(Cann. 76 - 84) English Latin
Ch. V: Dispensations
(Cann. 85 - 93) English Latin
Abrogate step away from contrary to part or all of former law.
Dispensation made an executive power, not legislative. Exec power
interpreted broadly.
Canon 85 dispensations from those with ordinary executive power.
Diocesan bishop, vicar gen. Ep.vicar, etc. Clergy are habiles to govern, laity
can be appd to offices with executive power.
Canon 86 The essential constitutive elements can be dispensed because they
constitute the act. E.g. Ordinatio sacerdotalis say constitutive elements of
orders. Given for the spiritual good of the faithful.
Canon 87 complete reworking of 1917 (obrogates). bishops power of
dispensation is intrinsic to his power of governance. Cant dispense
constitutive, procedural or penal law. Reserved powers: 20 situations, but
authentic interpretation is expanding the list. Any ordinary, not just bishop,
can grant (1) if recourse is difficult [not impossible but more than
inconvenient] (2) if there is harm in delay and (3) Holy See usually grants.
Confidentiality is paramount, so use of fax, e-mail is considered to public.
Holy see regularly dispenses age, retroactive validation, law of alienation;
doesnt easily dispense celibacy, solemn profession, apostasy and almost
never episcopal ordination, irregularity of abortion or consanguinity in a
direct line. Authentic Interpretation
Canon 88 Competence. Broader than above. But singular person or
community. Episcopal conferences dont give laws, but general executory
decrees. Liturgical law, can dispense discipline, but not constitutive.
However, cant give carte blanche.
Canon 89 Especially in missionary situations. bishop should make it clear at
the beginning of any new assignment.
Canon 90 Motivating Cause substantially the same as 1917. Spiritual good
is a legitimate cause. There should be a proportionality between the cause
and the law. Should be free from dolus deceit.
Canon 91 Applies c. 136 on executive power to dispensation. Broader than
1917. Competence is personal and territorial.
Canon 92 Dispensation is an exception so that its strictly interpreted.
Canon 93 Permission faculty of doing or omitting something not
unlawful. A faculty is the extension of power from a superior with
jurisdiction. Indult is a favor for a time, privilege is in perpetuity. Positive
objective juridic norm. Absolution, sacramental or juridic releases from
penalties or censure. *New from 1917.
Title V: Statutes and Ordinances
(Cann. 94 - 95) English Latin
Statutes describe the nature of an organization, rules govern internal
governance. A general framework for statutes that still have to be worked out
- these are the minimum requirements, but they are more explicit in Canon
298.
Canon 94 Statutes Juridic persons and other aggregates. Purpose
compatible with churchs mission; Constitution indicates strategies to realize
purpose; governance indicates leadership; procedure is internal and external
operations. Legitimate members implies statutes will include issues of
admission and separation. Promulgated by legitimate power and approved
(canon 117).
Canon 95 Rules of order Those who wish to participate must freely assent
to the rules of participation.
Title VI: Physical and Juridic Persons