Abuse

ABUSE. - It is the unlawful, unreasonable use of a thing or of a right. Moral theology has not so far elaborated a true doctrine of abuse; this must therefore be derived from the principles that are laid down as the basis of the moral order. In any case, in general terms it may be said that whenever man, using beings immoderately, does not respect their nature or makes an unreasonable use of them, that is, outside of an honest purpose, he commits a sin of abuse.

1. CANONICAL LEGISLATION

In the juridical field, among the various forms of abuse, particular importance attaches to the one usually designated by the expression abuse of authority or of power or of office, which consists in maliciously exceeding, whether as to purpose or as to substance or manner, the limits imposed by law on the exercise of certain faculties, for the most part inherent in a public office. Such abuse - which presupposes on the part of the subject the legitimate and effective possession of the authority or office, and is therefore not to be confused with the usurpation of titles or powers - is generally considered under different aspects, according as it presents itself: a) as a constitutive element of those crimes that cannot be committed except by persons invested with determinate functions; b) as a special aggravating circumstance of certain crimes; c) as a common aggravating circumstance, that is, applicable to any violation of the penal law; d) as a crime in itself.

The Code of Canon Law provides for the first hypothesis in cann. 2334 no. 1 (promulgation of laws or decrees against the liberty 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 by an official of the curia) and in other similar provisions, intended to safeguard, besides the juridical goods directly protected by them, the normal exercise of the power of order and of jurisdiction.

As a special aggravating circumstance, abuse of authority or of office is contemplated, for example, by cann. 2331, § 2, and 2342, no. 2, according to which the status of cleric or of 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 said that « 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 broadest meaning (and therefore also include the authority deriving from private relationships, such as that of a father over his children, of a master over his servants, of a teacher over his pupils, etc.), or refer only to the exercise of public functions, legislative, administrative or judicial. It is a widespread opinion that, for the effects of the aggravating circumstance in question, the abuse of a purely civil office also comes into consideration; and it is certain that the aggravating circumstance itself can and must be applied only insofar as the abuse of authority or of office has facilitated the commission of the crime.

Abuse of power as a crime in itself is provided for by can. 2404, which textually 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 provisions of law establish a determinate penalty for certain abuses. Within the generic formulation of this canon - where the words potestatis ecclesiasticae indicate rather clearly the exclusion of any power that is not public - fall all those abuses, difficult to fit into as many specific criminal configurations, which under the law of the decretals went by the name of excessus praelatorum. Such, for example, are the imposition on subjects of excessively heavy burdens; the infliction of unjust censures; the conferral of benefices on unworthy persons; the arbitrary granting of indulgences, etc. If the authority with which the agent is invested derives from a privilege (v.), the fact of abusing it may entail, besides the fitting penalties to be established from time to time by the superior, the loss of that same privilege (can. 78).

2. SECULAR LEGISLATION

Substantially analogous to the system in force in canon law is that followed by secular legislation. The Italian Penal Code indeed considers the abuse of the powers inherent in a public office and, in general, abuse of authority, not only as an integral element of determinate crimes (and especially of those listed under the heading « Of the crimes of public officials against the 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 a crime in itself (art. 323). Unlike the abrogated code - which devoted a special chapter, rightly considered injurious to ecclesiastical dignity, to the so-called abuses of the clergy (consisting principally in the act of a minister of worship who, availing himself of his own status, incited the faithful to contempt of the institutions or to non-observance of the laws, or compelled someone to acts or declarations contrary to them) - the code in force limits itself to considering the minister of a worship - whatever it may be, therefore also of a non-Catholic worship - in the same position as the public official and the person charged with a public service, both for the effects of the common aggravating circumstance of art. 61, no. 9, and as regards the crime of « incitement to contempt and vilification of the institutions, the laws and the acts of authority », provided for by art. 327. The abuse of ecclesiastical office is therefore placed on the same footing, for this purpose, as the abuse of public office.

Among the other particular figures of abuse contemplated by secular penal law, we shall recall: the abuse of the means of correction or discipline (art. 571); the abuse of popular credulity (art. 661); the abuse of a blank sheet (art. 486); the abuse of narcotic substances (art. 729).

Finally, a mention is due to the so-called abuse of right; which, according to a recent doctrine, inspired by highly moral motives and accepted, at least in part, by some modern legislation (e.g.: art. 135 of the Code of Obligations for Poland), occurs when the holder of a right uses it for the sole purpose of harming others (subjective abuse, acts of emulation) or by carrying out acts contrary to the purpose of that same right (objective abuse). It should be noted, in this regard, that the ministerial draft of the new Italian Civil Code (general part) contained an article, where it was said: « No one may exercise his own right in conflict with the purpose for which that same right is recognized to him ». In the Civil Code the principle has remained only for the right of property, art. 833 establishing that « the owner may not perform acts which have no other purpose than that of harming or causing annoyance to others ».

Ferruccio Liuzzi