Nature, function, fundamental principles of Canon Law

 

36. Nature, function, fundamental principles of Canon Law in the Church. Reference to the most important contents of the different books of the Code.

Introduction: The Church being an independent and self-governing society, needs a code of laws.canon law is how the Church organizes and governs herself. The word “canon” basically means rule.Canon law deals with all the issues that any legal system does — for example, rights, property issues, procedures, administration, personnel, crimes and trials. It also does some things that civil law cannot, such as laws regarding sacraments, sacred places and magisterial teachings.

Part I: Nature of Canon Law in the Church

What is Law: Law means a rule of conduct imposed by authority. An ordinance of reason promulgated for the common good of the people, made by one who has the charge of the community (St. Thomas Aquinas). We can put some characteristics of law. They are: * Ordinance of practical reason * Law is always reasonable * Law is for the common good * Law should be published by the competent authority * Law should be promulgated * There should a community capable of receive it.

What is Canon Law: The word Canon in its proper sense means - "a measuring rod". It is used metaphorically to mean - a rule or a norm. It was used latter to mean a "collection of sacred books authentically recognized by the church." In the 4th century the council of Nicesea (325) called the church's disciplinary measures "canons" to distinguish them from the Legislation in the western church the law of church as "canon law".

So, Canon law is the organized body of laws by which the pastoral ministry of the church is guided and the structures of the church are defined. Code of Canon law is not meant to be a book for academic in structure but an effective instrument to guide the life of the faithful.

1st code of canon law promulgated 27, May, 1917 and come into effect 19 May, 1918. It was during the time of pope Benedict XV. There were 5 books (consisted with) 1. General norms, 2. Persons, 3. Things, 4. Proceduce and 5. Penalties, all together 2414 canons. 

2nd code of canon law promulgated 66 years after 1st one, 25 January, 1983 and come into effect on 27 November, 1983. It was during the time of pope John Paul II.

To gain an even fuller understanding of the place and role of law is the church, let us look at the law’s origin, purpose and nature.

Origin: The origin of Canon Law is both in the humanity of the church and in the divine gifts possessed by the community. Some norms are born from a human need for order and ordered operations: some norms are demanded and generated by divine revelation. In each case reason is the operating agent in bringing order into the life of community, that is reason enlightened by and united with the word of God and energized by divine grace. In this sense, the defenition of Aquinas holds: Law is an ordinance of reason”.

Purpose: The canon law is to assist the church in fulfilling its task which is to reveal and to communicate God’s saving power to the world. Law can help by creating order in the community, an order that leads to tranquility and peace: a good disposition for the ‘assembly’ to become ‘light of the nations’. The law can be also a teacher to the people as the torah once was: guiding them towards the kingdom.

Nature: The nature of Canon Law reflects the nature of the church: it is truly human because the church is a human community; it has an affinity with the divine because it is an integral part of the church as sacrament. In the law itself, human prudence bends with divine wisdom in a close union but without fusion or confusion. The complex nature gives to canon law incarnation character.

 

1. By its very nature it is pastoral orientated differ from any civil law.

2. It guides faithful to the salvation, to eternal life.

3. Its concern is individual man/person.

4. It is based on divine authority.

5. It has also legislative (legal) executive (administrative) and juridical aspect.

6. It extends to all territory of the church.

 

Canon law place in the Christian living:

1. Doctrinal, 2. Moral behaviour, 3. Disciplinary, 4. Exhortation, 5. Structure of the church, 6. Explain the roles of the clergy and lay, 7. Liturgical matter, 8. Relation between state and church.

 

Part II: Function of Canon law in the Church:

The place of law is in the church of Christ where the drama of our redemption is enacted; the role of law is to assist the people in the redemption of God’s saving mysteries.

 

1. Providing good orders in the church (promotion of stability, security &  peace)

2. Providing legal protection of the church institutions; including Sacraments, Canon law is closely related to theology.

3. Setting forth of rights and duties of the Christ's faithful; individual and groups.

4. Protection of rights through proper legal procedures.

5. Determined from evil as guide to Christian living.

6. The ultimate purpose of the canon law is to assist the Holy Spirit.

7. It helps to perform different functions of the church. i.e. administrative.

8. IT helps to maintain a minimum uniformity in the faithful and morality of the church.

9. It helps to see the reagrace of God and work of the Holy Spirit in the individual life.

10. It helps to see obedience to the authority of the church which comes form God.

11. It helps the faithful to have perfection of life in Christ.

12. Preserve the dignity of each Christians in the church.

13. It helps to harmonize to the dignity and teaching of the church.

14. It defends the human person and to form the Christian so that they may participate in a community way in catholic life.

15. It helps to maintain the essential features of juridical relation between the faithful, pastor and laity by means of it rules.

16. It is at the service of the mystical body of Christ.

 

The explanation of Canon Law:

1. Doctrinal statement, 2. Moral behavior/theology, 3. Exhortation,  4. Scientific statement, 5. It explain theology right & Duties of the faithful

Some Characteristics of the New Code

1. It’s most part based on Vat.II emphasizes on more implication. Pastoral renewal and reformation.

2. The new code treats with the structures introduces or re-emphasized by the council: i.e. the collage of Bishops, the synods of Bishops, conferences of Bishops, Episcopal vicar, presbyteral and pastoral councils.

3. The 1983 code of 1752 canons is considerably shorter that the 1917 code which had 2414 canons. 4. Most strucking differences between codes found in their organization (of the book) = the 1917 code had five books based on Roman law system of persons, things and actions. But the new code has seven books based on church’s threefold functions: teaching, sanctifying, governing role. Book II = the people of God = based on Lumen Gentium.

5. Emphasize on the pastoral care of the soul. Protection of the subjective rights of Christ's faithful - rights of the person.

6. The office of the bishop is presented in a positive pastoral way.

8. Penalty = law/last remedy according to the pastoral consideration. Penalty only regarding the universal church. It minimizes ecclestical penalties. 1917 = 220 canons and 1983 = 89 canons (73 old)

FS = 17; 4 interdict, 6 suspension and 7 excommunication.

9. No definition of sanction is offered.

10. Violation is to be grave for perceptive penalty.

Part III: Princilpes of Canon Law in the Church

10 Principles

1. Juridical nature of the canon law ( care-obligation, others, ecclesial, cult-communal salvation of the souls.

2. Harmony between internal and external forum (ms¯‹vi `Û cvc¯^xKvi ¶gv`vb I mvgvwRKkvw¯—)

3. Pastoral spirit in applying law (charity, temperance, justice, moderation _vK‡Zn‡e)

4. The temporal &  spiritual power of the bishops incised.

5. Equity (mKj Lªxóf³‡`I AwaKvi, `vwqZ¡ mggh©v`vc~Y© cÖ`vb (e¨vwZµg)

6. Subjective right (cÖ‡Z¨KAwaKvii¶vKiv)

7. Penalty should reduced (Kgv‡Zn‡ekvw¯—)

8. Principal of subsidiary mgch©v‡qhvh †h AwaKviZv kª×v Kivc¨vwi‡mie¨vcv‡I †mLv‡bBmgvavbKiv)

9. Principal of territorial nature (‡h hvimxgvbvqwekc/ag©cÖ‡`‡ki KZ©„Z¡ Ki‡Zcvi‡e)

10. Revelation-structured of the new code (5 to 7)

How should one go about interpreting and applying Canon Law?

Interpretation is the explanation of the true meaning of the law. There are different kinds of interpretation.  1. Authentic interpretation - it is given by the law giver. 2. Declarative interpretation, 3. Directive interpretation, 4. Explanatory interpretation, 5. Extensive interpretation, 6. Restrictive interpretation, 7. Doctrinal interpretation

There are two rules of interpretation:

1.Primary rule of interpretation, 2. Secondary rule of interpretation

"Equity" justice tempered with the sweetness of mercy. We have to explain and give interpretation according to the guide of the church, for the common good of the faithful and for the salvation of the souls.

Apply the law: 1. The juridical character of the canon law must be maintain.

 

2. Harmony between eternal forum and internal forum.

3. Promotion of the pastoral care of the soul (peace, justice, equality).

4. The office of the Bishops (spiritual and temporal) should be presented in a positive way according to councilor teaching (pastoral care). 5. The principle of subsidiary (equality) – coordination between higher and lower order.

6. The use of power in the church should not be arbitory.

7. Subjective right must be preserved (Tribunal of the church).

8. Territorial jurisdiction should be maintain the church.

9. Penalty should be kept in a minimum and remission limited to the eternal forum.

 

Part IV: Reference to the most important contents of the different books of the code

Book i. General norms

Title i. Ecclesiastical laws (cann. 7 - 22)

Title ii. Custom (cann. 23 - 28)

Title iii. General decrees and instructions (cann. 29 - 34)

Title iv. Singular administrative acts (cann. 35 - 93)

Title v. Statutes and rules of order (cann. 94 - 95)

Title vi. Physical and juridic persons (cann. 96 - 123)

Title vii. Juridic acts (cann. 124 - 128)

Title viii. The power of governance (cann. 129 - 144)

Title ix. Ecclesiastical offices (cann. 145 - 196)

Title x. Prescription (cann. 197 - 199)

Title xi. Computation of time (cann. 200 - 203)

Book ii. The people of god

Part i. The christian faithful (cann. 204 - 207)

Title i. The obligations and rights of all the christian faithful (cann. 208 - 223)

Title ii. The obligations and rights of the lay christian faithful (cann. 224 - 231)

Title iii. Sacred ministers or clerics (cann. 232 - 293)

Title iv. Personal prelatures (cann. 294 - 297)

Title v. Associations of the christian faithful (cann. 298 - 329)

Part ii. The hierarchical constitution of the church

Section i. The supreme authority of the church (cann. 330 - 367)

Section ii. Particular churches and their groupings

Title i. Particular churches and the authority established in them (cann. 368 - 430)

Title ii. Groupings of particular churches (cann. 431 - 459)

Title iii. The internal ordering of particular churches (cann. 460 - 572)

Part iii. Institutes of consecrated life and societies of apostolic life

Section i: institutes of consecrated life

Title i: norms common to all institutes of consecrated life (cann. 573 - 606)

Title ii. Religious institutes (cann. 607 - 709)

Title iii. Secular institutes (cann. 710 - 730)

Section ii. Societies of apostolic life (cann. 731 - 746)

Book iii. The teaching function of the church (747 - 755)

Title i. The ministry of the divine word (cann. 756 - 780)

Title ii. The missionary action of the church (cann. 781 - 792)

Title iii. Catholic education (cann. 793 - 821)

Title iv. Instruments of social communication and books in particular (cann. 822 - 832)

Title v. The profession of faith (can. 833)

Book iv. Function of the church (cann. 834 - 848)

Part i. The sacraments

Title i. Baptism (cann. 849 - 878)

Title ii. The sacrament of confirmation (cann. 879 - 896)

Title iii. The most holy eucharist (cann. 897 - 958)

Title iv. The sacrament of penance (cann. 959 - 997)

Title v. The sacrament of the anointing of the sick (cann. 998 - 1007)

Title vi. Orders (cann. 1008 - 1054)

Title vii. Marriage (cann. 1055 - 1165)

Part ii : the other acts of divine worship

Title i: sacramentals (cann. 1166 - 1172)

Title ii. The liturgy of the hours (cann. 1173 - 1175)

Title iii. Ecclesiastical funerals (cann. 1176 - 1185)

Title iv. The veneration of the saints, sacred images, and relics (cann. 1186 - 1190)

Title v. A vow and an oath (cann. 1191 - 1204)

Part iii : sacred places and times

Title i: sacred places (cann. 1205 - 1243)

Title ii. Sacred times (cann. 1244 - 1258)

Book v. The temporal goods of the church

Title i. The acquisition of goods (cann. 1259 - 1272)

Title ii. The administration of goods (cann. 1273 - 1289)

Title iii. Contracts and especially alienation (cann. 1290 - 1298)

Title iv. Pious wills in general and pious foundations (cann. 1299 - 1310)

Book vi. Sanctions in the church

Part i. Delicts and penalties in general

Title i the punishment of delicts in general (cann. 1311 - 1312)

Title ii. Penal law and penal precept (cann. 1313 - 1320)

Title iii. The subject liable to penal sanctions (cann. 1321 - 1330)

Title iv. Penalties and other punishments (cann. 1331 - 1340)

Title v. The application of penalties (cann. 1341 - 1353)

Title vi. The cessation of penalties (cann. 1354 - 1363)

Part ii. Penalties for individual delicts

Title i. Delicts against religion and the unity of the church (cann. 1364 - 1369)

Title ii delicts against ecclesiastical authorities and the freedom of the church (cann. 1370 - 1377)

Title iii. Usurpation of ecclesiastical functions and delicts in their exercise (cann. 1378 - 1389)

Title iv. The crime of falsehood (cann. 1390 - 1391)

Title v. Delicts against special obligations (cann. 1392 - 1396)

Title vi. Delicts against human life and freedom (cann. 1397 - 1398)

Title vii. General norm (can. 1399)

Book vii processes

Part i. Trials in general (cann. 1400 - 1403)

Title i. The competent forum (cann. 1404 - 1416)

Title ii. Different grades and kinds of tribunals (cann. 1417 - 1445)

Title iii. The discipline to be observed in tribunals (cann. 1446 - 1475)

Title iv. The parties in a case (cann. 1476 - 1490)

Title v. Actions and exceptions (cann. 1491 - 1500)

Part ii. The contentious trial

Section i. The ordinary contentious trial

Title i. The introduction of the case (cann. 1501 - 1512)

Title ii. The joinder of the issue (cann. 1513 - 1516)

Title iii. The trial of the litigation (cann. 1517 - 1525)

Title iv. Proofs (cann. 1526 - 1586)

Title v. Incidental cases (cann. 1587 - 1597)

Title vi. The publication of the acts, the conclusion of the case, and the discussion of the case (cann. 1598 - 1606)

Title vii. The pronouncements of the judge (cann. 1607 - 1618)

Title viii. Challenge of the sentence (cann. 1619 - 1640)

Title ix. Res iudicata and restitutio in integrum (cann. 1641 - 1648)

Title x. Judicial expenses and gratuitous legal assistance (can. 1649)

Title xi. The execution of the sentence (cann. 1650 - 1655)

Section ii. The oral contentious process (cann. 1656 - 1670)

Part iii. Certain special processes

Title i. Marriage processes (cann. 1671 - 1707)

Title ii. Cases for declaring the nullity of sacred ordination (cann. 1708 - 1712)

Title iii. Methods of avoiding trials (cann. 1713 - 1716)

Part iv. The penal process (cann. 1717 - 1731)

Part v. The method of proceeding in administrative recourse and in the removal or transfer of pastors

Section i. Recourse against administrative decrees (cann. 1732 - 1739)

Section ii. The procedure in the removal or transfer of pastors (cann. 1740 - 1752)

Conclusion:The function of canon law in liturgy, preaching, and social activities involves the development and maintenance of those institutions that are considered to be most serviceable for the personal life and faith of members of the church and for their vocation in the world. This function is thus concerned with a continual adaptation of canon law to the circumstances of the time as well as to personal needs.The fundamental theory of canon law is a discipline covering the basis of canon law in the very nature of the church. Fundamental theory is a newer discipline that takes as is object "the existence and nature of what is juridical in the Church of Jesus Christ."

Optional for Study or in Short:Book I is called General Norms and is the backbone of the code. While it might not seem exciting, it informs the rest of the code, which cannot be understood without it. Book I deals with the various kinds of laws in the Church, how they are issued, who they pertain to, and how they are enforced. There are canons regarding juridic persons — things like your diocese or parish. Also there are canons on the officers who serve the Church. Some of these canons may seem like minor details, but the code is a complex thing. If one part of your car’s engine fails, even if it is just a small screw, it can cause the whole thing to malfunction. It is the same with the Code of Canon Law.

Book II is about the People of God. It sets out the obligations and rights of the lay faithful and clergy. If you want to know what rights you have in the Church, this is the book where you will find them. In addition, it contains the hierarchical constitution of the Church including the Pope, dioceses and religious orders. It shows how they are to be organized and governed.

Book III is on The Teaching Function of the Church. This book covers preaching, catechesis, missions and education. This book tells us what levels of authority there are for Church teachings. It also has rules for educational institutions, including Catholic universities.

Book IV is about The Sanctifying Function of the Church. This pertains to the sacraments. It tells us who can receive them, administer them and what is required for their validity. The section on matrimony is of particular interest since the recent synods on the family. It defines marriage and its valid celebration, and gives the legal reasons why a marriage may be ruled invalid in an annulment process. This book also covers other liturgical acts such as funerals. In addition, it contains regulations for churches, shrines and other places of worship.

Book V covers The Temporal Goods of the Church. This is basically the Church’s property law. It gives regulations on how to properly administer the Church’s property and finances. Also, it includes rules on contracts and wills.

Book VI is on Sanctions in the Church. This is the Church’s criminal law. It sets out the authority the Church has to punish crimes, who can be punished, what crimes may be punished, and what the penalties are for those crimes. It may surprise many people to find this in the Code of Canon Law, but every institution has disciplinary regulations. However, in our law, the goals are to repair scandal, restore justice and reform the offender. So there is more to it than simply punishing crime.

Book VII is about Processes. This book covers trials, their procedures, officers of the court, how to organize courts, the rights of the parties and appeals. Those who watch “Law & Order” on television would find Church trials not nearly as exciting. Normally, cases are handled in a documentary way. Rarely do the parties meet each other in an open court. This may strike us as odd, but, in fact, it is the norm in many judicial systems influenced by Roman law in other parts of the world.

In total, there are 1,752 canons in the code, so to cover them all would require a lengthy commentary. In fact, there are a variety of commentaries and other books that are helpful in understanding canon law.

Canon law includes both divine law and ecclesiastical law. Divine law is unchangeable and is applicable to every human being — for example, the law against murder. Ecclesiastical law is rooted in Church law and is not infallible, although it is authoritative — for example, the laws regarding fast and abstinence. Our system of law is human and not pe