ABUSE. — It is the illicit, unreasonable use of a thing or of a right. Moral theology has not yet elaborated a true doctrine of abuse; this must therefore be derived from the principles underlying the moral order. In general terms, however, it may be said that whenever man, using beings immoderately, fails to respect their nature or makes unreasonable use of them—that is, outside an honest purpose—he commits the sin of abuse.
1. CANONICAL LEGISLATION
In the juridical field, among the various forms of abuse, particular importance attaches to what is usually designated by the expression abuse of authority or of power or of office. This consists in maliciously exceeding, whether with regard to the end, the substance, or the manner, the limits imposed by law upon the exercise of certain powers, generally connected with a public office. Such abuse—which presupposes that the subject legitimately and effectively possesses the authority or office, and is therefore not to be confused with the usurpation of titles or powers—is generally considered from different aspects, according as it appears: a) as a constituent element of those offenses that can be committed only by persons invested with particular functions; b) as a special aggravating circumstance of certain offenses; c) as a common aggravating circumstance, applicable to any violation of the penal law; d) as an offense in itself.The Code of Canon Law provides for the first hypothesis in can. 2334, no. 1 (promulgation of laws or decrees against the freedom and rights of the Church), 2364 ff. (arbitrary administration of the sacraments), 2369 (violation of the sacramental seal), 2373 (unlawful conferral of sacred orders), 2406 (documentary forgery committed by a parish priest or a curial official), and in other similar provisions intended to safeguard, in addition to the juridical interests directly protected by them, the normal exercise of the power of order and of jurisdiction.
As a special aggravating circumstance, abuse of authority or office is contemplated, for example, by can. 2331, § 2, and 2342, no. 2, under which the status of cleric or religious in one who incites subjects to disobedience and in one who violates monastic enclosure determines the application of more severe sanctions.
As a common aggravating circumstance, it is dealt with by can. 2207, where it is stated: « praeter alia adiuncta aggravantia, delictum augetur : . . . 2° ex abusu auctoritatis vel officii ad delictum patrandum ». It is not clear in doctrine whether the term authority should here be understood in its broader sense (and therefore also include authority deriving from private relationships, such as that of a father over his children, a master over his servants, a teacher over his pupils, etc.), or whether it refers only to the exercise of public legislative, administrative, or judicial functions. It is widely held that, for the purposes of the aggravating circumstance in question, abuse of a purely civil office is also relevant; and it is certain that the aggravating circumstance can and must be applied insofar as the abuse of authority or office has facilitated the commission of the offense.
Abuse of power as an offense in itself is provided for by can. 2404, which expressly prescribes that any abuse of ecclesiastical power be punished according to the prudent judgment of the legitimate superior, in proportion to the gravity of the fault, unless particular legal provisions establish a determinate penalty for certain abuses. This canon’s general formulation—where the words potestatis ecclesiasticae clearly indicate the exclusion of every power that is not public—covers all those abuses, difficult to classify under equally specific criminal definitions, which under the law of the decretals went under the name of excessus praelatorum. Examples include imposing excessively burdensome obligations upon subjects; threatening unjust censures; conferring benefices upon unworthy persons; the arbitrary granting of indulgences, etc. If the authority with which the agent privilege (v.), abusing it may entail, in addition to the appropriate penalties to be determined from case to case by the superior, the loss of the privilege itself (can. 78).
2. SECULAR LEGISLATION
The system followed by secular legislation is substantially analogous to that in force in canon law. The Italian Penal Code in fact considers the abuse of powers inherent in a public office and, in general, abuse of authority, not only as an element constituting certain offenses (and especially those listed under the heading « Offenses of public officials against public administration »: art. 314 ff.), but also as a special aggravating circumstance of certain offenses (e.g., violation of domicile, art. 615), as a common aggravating circumstance (art. 61, no. 9), and as an offense in itself (art. 323). Unlike the repealed code—which devoted a special chapter, rightly regarded as injurious to ecclesiastical dignity, to the so-called abuses of the clergy (consisting principally in the act of a minister of religion who, taking advantage of his status, incited the faithful to contempt for institutions or non-observance of the laws, or compelled someone to perform acts or make declarations contrary to them)—the current code merely treats a minister of religion—whatever that religion may be, therefore including a non-Catholic religion—in the same manner as a public official and a person entrusted with a public service, both for the purposes of the common aggravating circumstance under art. 61, no. 9, and with regard to the offense of « incitement to contempt and vilification of institutions, laws, and acts of authority », provided for by art. 327. Abuse of ecclesiastical office is therefore equated, for this purpose, with abuse of public office.Among the other particular forms of abuse contemplated by secular criminal law, we may recall: abuse of means of correction or discipline (art. 571); abuse of popular credulity (art. 661); abuse of a blank form (art. 486); abuse of narcotic substances (art. 729).
Finally, mention should be made of the so-called abuse of right, which, according to a recent doctrine inspired by highly moral considerations and accepted, at least in part, by certain modern legislations (e.g., art. 135 of the Code of Obligations for Poland), occurs when the holder of a right uses it solely for the purpose of harming another (subjective abuse, acts of emulation) or performs acts contrary to the purpose of the right itself (objective abuse). It should be noted in this connection that the ministerial draft of the new Italian Civil Code (general part) contained an article stating: « No one may exercise his own right in conflict with the purpose for which that right is recognized to him ». In the Civil Code, the principle has remained only with regard to the right of ownership, art. 833 providing that « the owner may not perform acts having no other purpose than to harm or cause annoyance to others ».
BIBLI: For canon law, cf. E. Magnin, Abus de pouvoir, in DDC, I, cols. 135–42; F. Roberti, De delictis et poenis, I, I, Rome 1930, p. 171 ff.; G. Michiels, De delictis et poenis, I, Lublin-Brasschaat 1934, p. 229 ff. — For secular law: M. Rotondi, L'a. del diritto, in Riv. di diritto civile, (1923), pp. 104 ff., 208 ff., 416 ff.; V. Manzini, Trattato di diritto penale italiano, 10 vols., 2nd ed., Turin 1932–39, passim; E. Jasserand, De l'esprit des droits et de leur relativité. Théorie dite de l'abus des droits, 2nd ed., Paris 1939. Ferruccio Liuzzi