CODEX IURIS CANONICI
II. Preliminary matters of codification
From the very beginning of the preparatory work of the Vatican Council in 1864, most of the cardinals, led by Cardinal de Reisch, expressed the wish that the Council itself should address the reform of ecclesiastical discipline (Coll. Lacensis, VII, p. 1013, note). However, the codification of the entire canon law did not seem practically feasible. A special commission was nevertheless constituted with the task of preparing drafts for reform.On 12 September 1867, the commission began its work but was unable to complete it due to the interruption of the Council. Even earlier, on 2 September 1869, the bishops of Campania, led by Cardinal Diario Sforza, Archbishop of Naples, insisted on the compilation of a new Corpus iuris canonici, particularly to facilitate and expedite the handling of cases, while at the same time rejecting the idea of a code similar to civil ones, which, by merely stating the norm, fail to explain its rationale. Eleven French bishops requested that the Council establish a commission to prepare a new Corpus iuris to be approved by the Council itself. The bishops of Germany, Austria, and Belgium believed that the initiative should be taken and carried out by the Pope rather than the Council. The first to demand a true code, analogous to civil ones, were the Belgian bishops, joined by those of the provinces of Québec and Halifax. Finally, on 19 February 1870, 33 bishops from various nations signed a petition to the Pope for the compilation of a code to be promulgated by the Supreme Pontiff: “Opus sane arduum; sed quo plus difficultatis habet, eo magis est tanto Pontifice dignum” (Coll. Lacensis, VII, p. 889).
The occupation of the Papal States and the anticlericalism raging in Italy at the time prevented the Holy See from carrying out these wishes. Nevertheless, various and profound reforms and simplifications were introduced into ecclesiastical discipline: suffice it to recall the Apostolicae Sedis of 18 October 1869 on latae sententiae censures, which is like a particular codification of canon penal law; the Officiorum et munerum of 25 January 1897 on censorship and the prohibition of books; the Instruction of the Sacred Congregation of Bishops and Regulars, dated 11 June 1880, “de modo quo oeconomice procedere debent Curiae ecclesiasticae in causis disciplinaribus et criminalibus clericorum”; and the constitution Conditae a Christo of 8 October 1900 on religious with simple vows.
Meanwhile, some canonists had privately undertaken attempts at codification. In 1873, Gaspare de Luise published in Naples a Codex canonum Ecclesiae in which, alongside disciplinary prescriptions, dogmatic truths were included, along with both private and public law, albeit with many redundancies and omissions. Another Italian, Em. Colomiati, from 1888 to 1907 published, likewise in Turin, a Codex iuris pontificii seu canonici in 9 volumes: more a collection of constitutions and decrees than a true code. In Rome, from 1896 to 1902, E. M. Pezzani published his Codex S. Catholicae Romanae Ecclesiae: an unfinished work, though superior to its predecessors, yet burdened with too many dogmatic and public law elements. A similar work had appeared in Paris in 1890 under the title Ius canonicum generale distributum in articulos by A. Pillet: it presented various norms in brief and precise articles and aimed to demonstrate the practical possibility of canon law codification. Partial codification attempts were not lacking: P. Peries, in Canoniste Contemporain, in 1892 and 1893, arranged matrimonial canon procedure into articles; similarly, in Madrid in 1895, J. Cadena and Iletta produced a Proyecto de Código procesal canonico; I. Hollweck attempted instead in 1899 to codify penal law with Die kirchlichen Strafgesetze (Mainz 1899). In general, however, especially among the Germans, codification was considered extremely difficult, if not impossible: thus R. Scherer, H. Lämmer, J. B. Sägmüller, F. X. Wernz, along with various lay professors, among whom F. Ruffini (La codificazione del diritto ecclesiastico, Prato 1904) is remembered. Even those who deemed it possible debated its scope and the system to be followed: most believed the new code should also encompass external public law, while others wanted it to include explanatory notes alongside the norms; some advocated preserving the traditional order, while others proposed a new one.
Such was the state of affairs at the time of the election of Pius X. Monsignor P. Gasparri, Secretary of the Sacred Congregation for Extraordinary Ecclesiastical Affairs, demonstrated to the new Pope the feasibility of codification (P. Gasparri, Storia della codificazione del diritto canonico, in Acta Congressus iuridici internationalis VII saec. a Decretalibus Gregorii IX et XIV a Codice Iustiniano promulgatis, Rome 1937, p. 4). A few days later, Cardinal C. Gennari confirmed to the Supreme Pontiff the advisability of the suggestion, so that, by a letter dated 11 January 1904, Pius X entrusted the same cardinal with preparing the motu proprio “to be sent to all the eminent cardinals and consultors whom we shall subsequently designate together as the most suitable for this work” (Il Monitore ecclesiastico, 1917, pp. 269 ff.). At the beginning of March 1904, the Pope met several times with the cardinals residing in Rome to ascertain their views on the matter. The response being favorable, on the feast of St. Joseph of the same year, he issued the motu proprio Arduum sane munus “de Ecclesiae legibus in unum redigendis” (Acta Pii X, I, Rome 1905, pp. 219–22; Acta Apostolicae Sedis, 36 [1903–1904], pp. 549 ff.).
The work of codification. — With this document, the establishment of a commission of cardinals and consultors was announced. These were to elaborate the material and present drafts in their meetings, presided over by the secretary of the cardinalatial commission. Once approved by the consultors, the draft was submitted to the cardinalatial commission, and, once approved by it as well, to the approval of the Holy Father; Monsignor Gasparri served as secretary of the cardinalatial commission. For this reason, the administrative and chancery work related to the codification was entrusted to the Sacred Congregation for Extraordinary Ecclesiastical Affairs, of which Monsignor Gasparri was secretary. In addition to the consultors, canonists and theologians, both Italian and foreign, residing outside Rome and called “collaborators,” were also enlisted for assistance. In accordance with the promise of the motu proprio, whereby the entire episcopate was to be invited to collaborate, Cardinal Merry del Val, Secretary of State, on 25 March 1904, addressed a circular to all metropolitans, requesting that, after obtaining the opinions of their suffragans and other Orders with a right to intervene in provincial councils, they report to the Holy See, no later than four months from the date of receipt of the letter, their views on the changes and corrections to be made in ecclesiastical legislation.
The circular authorized the bishops of individual nations to agree among themselves on the appointment of one or two particularly capable persons to be numbered among the consultors. The bishops, however, could, if they preferred, designate their representative from among the members of the commission, or, finally, appoint one of their countrymen residing outside Rome to correspond with the commission itself (Acta Sanctae Sedis 36 [1903–1904], p. 603). From the motu proprio Arduum sane munus it was not
A veritable code, or another collection like the ancient ones. However, a letter from the secretary of the commission to the Catholic universities, dated 6 April 1904 (*Acta Sanctae Sedis*, 37 [1904-1905], pp. 130-31), removed all doubt. In this letter, the outline of the work was sketched in broad terms, subject to amendments, and it was stated that the task to be undertaken was twofold: the Code, to be drafted in canons or articles like the recent civil codes, and the collection of legislative acts issued after 1317, that is, the compilation of the sources.
The rectors of the ecclesiastical universities were asked to notify which professors would be willing to draft in articles or canons one or another part of canon law, so that they might be enrolled among the collaborators. A similar invitation was extended to some professors at state universities.
First, the index of the Code was discussed, and this was later modified according to the progress of the work. A list was then compiled of the best canonists in the entire Church, and each of them (consultors or collaborators) was assigned the part for which they were to draft the canons. At least two consultors wrote on each chapter or part of the general outline, and on points of greater importance or difficulty, even three or four, but always in such a way that each was unaware of the others. The work of the consultors and collaborators was regulated by a particular law on 11 April 1904, which is reproduced, in its operative part, in the preface of the Code. To proceed more rapidly, instead of one, two commissions were appointed for distinct subjects. Each commission consisted of ten members: one met on Thursday mornings, the other on Sunday mornings. Monsignor Gasparri presided in his capacity as president, later assisted by Monsignor E. Pacelli, now the Supreme Pontiff. Although the work of codification proceeded in the strictest secrecy, the same *motu proprio* "Arduum sane munus" made it known that the acts relating to it would be published. This is what Monsignor F. Roberti began to do with the publication of the *Schemata de processibus*, I, Rome 1940.
In addition to the two special commissions, there was a plenary commission of all the consultors (about 25), entrusted with examining the canons approved by the special commissions. However, in the plenary commission each member felt it his duty to express his own opinion on each canon, so that the discussions dragged on excessively. The large commission was therefore no longer convened; instead, the printed draft that was to be discussed was sent to the individual members, with instructions to write their opinions in the margin of each canon (P. Gasparri, *Storia della codificazione*, p. 7). After examining the opinions of the members of the large commission and eliminating those that did not deserve consideration, Monsignor Gasparri submitted the others to the cardinal commission, together with the drafts of the two special commissions. The cardinals studied them first individually and then in at least two meetings. If a question presented particular difficulties, the opinion of the competent dicastery was also sought.
Created a cardinal in 1907, Monsignor Gasparri was shortly afterwards appointed *ponens*, or rapporteur, of the cardinal commission; the secretary remained the secretary of the Sacred Congregation for Ecclesiastical Affairs: first Monsignor R. Scapinelli di Leguigno, and then Monsignor E. Pacelli. Cardinal Gasparri, however, always retained the presidency of the commissions of consultors, even after his appointment as Secretary of State.
The pontifical laws promulgated after the establishment of the commissions for the drafting of the Code were prepared by them. Among these, special mention should be made of the decree *Ne temere* of 2 August 1907 (*Acta Sanctae Sedis*, 40 [1907], p. 526), and the decree *Maxima cura* of 20 August 1910 (*AAS*, 2 [1910], p. 636). In this way, it was possible to know, before inserting them into the Code, what reception the new norms would meet.
In 1912, when almost all parts of the Code had been approved by the cardinal commission, Pius X, adopting an idea of Cardinal Gasparri, wished that they be sent to all the cardinals and prelates who would be known at the ecumenical council, so that they might express their judgment and observations. On 12 March 1912, the first two books were sent: *Normae generales* and *De personis*. On 1 April 1913 the third, *De rebus*, and on 10 July of the same year that which until then had been the fourth book: *De delictis et poenis*. On 15 November 1914 the book *De iudiciis ecclesiasticis* was dispatched. All the recipients (about 5,000) were bound by the papal secret. Each of them, however, was authorized to entrust the work of revision to two or three trusted persons, whether of the secular or regular clergy. The observations of the experts were submitted directly to the cardinal commission. As a result of these, the draft underwent profound changes: the fifth book became the fourth, and this took its place; various titles and rubrics were altered; new norms were introduced that had not been contemplated before, while others were suppressed.
The death of Pius X (20 August 1914) and the world war did not interrupt the work of codification. In July 1916, the cardinal commission completed the revision of the bishops' observations; and in the same year the Code was printed, ready for promulgation. Benedict XV, however, wished that it first be sent to the cardinals residing in the curia and to the dicasteries of the Holy See, so that they might express their views. Finally, on 4 December 1916, the Pope announced in a consistorial allocution that the work was completed. Even so, in 1917 various dispositions regarding the organization of the Roman curia (*AAS*, 9 [1917]) influenced the drafting of the Code (cf. can. 247, 257, 258).
IV. THE CODE
On Pentecost Sunday 1917, 27 May, the Code was promulgated with the constitution *Providentissima Mater Ecclesia*. On 28 June 1917 it was published in the *Acta Apostolicae Sedis*, and on the same day Cardinal Gasparri presented the first copy to the Supreme Pontiff, in the presence of the cardinals, consultors, and collaborators. In his reply, the Pope declared, among other things, his firm resolve not to heed requests for derogations or exemptions. According to the constitution *Providentissima*, the Code was to come into force on 19 May 1918, Pentecost of the following year. However, by a decree of 20 August 1917, it was ordered that some norms be applied in advance, namely can. 239 §1, 240, 600 §3, 859 §2, 1108 §3, 1189, 1247 §1, 1250, 1254, 1401 (*AAS*, 9 [1917], p. 475). *Codex Iuris Canonici* is the title of the collection (it is customary to abbreviate it as CIC).In the Church, the use of the word "code" was very rare in past centuries. It is found, however, in the acts of the Fourth Council of Toledo of 633, to designate the *Codex Ecclesiae Hispaniae*; towards the end of the 8th century the *Dionysio-Adriana* collection was likewise called *Codex canonum*; similarly, the collection of the constitutions of the African councils was published in 1645 by Chr. Justo under the title *Codex canonum Ecclesiae Africanae*; in 1675 P. Quesnel published his collection under the title *Codex Ecclesiae Romanae*; *Codex Carolinus* was the name given to the collection of letters from various popes to Charles Martel, Pepin the Short, and Charlemagne; and *Codex encyclicus* was the name given to a collection of 41 letters, the principal part of which was addressed to the emperor Leo I in 485 by synods representing collectively the whole Christian world.
In civil law, the term "code" designated a collection of laws, in the manner of the Justinian Code, authentic, systematic, and exclusive. So too, today, in canon law.
The new collection is called CIC and not *Iuris ecclesiastici*, both because of the older and prior usage
The first expression’s lens was also used to avoid ambiguities.
Already in Nov. CXXXVII of Justinian, ecclesiastical laws are called “canones” and contrasted with civil laws, the “leges.” The term canones designated the decisions of the early councils, while the disciplinary definitions of the popes were called Decretals or Decreta. This usage continued with Gratian (Prooemium, and c. 2, D. III), the decretists (cf. J. F. Schulte, Die Geschichte der Quellen, I, Stuttgart 1875, p. 29, note 3 and p. 255), and the Decretals (cf. c. 11, X, I, 2; c. 2, V, 7, in VI). In the Councils of Basel and Constance, in the Tridentine Council, and in the drafts of the Vatican Council, disciplinary decisions were instead called decreta, while dogmatic declarations were called canones; yet the usage persisted of designating as canones the laws contained in the Corpus Iuris. Protestant jurists of the 18th century then began to designate as “ius ecclesiasticum” the laws of the State in ecclesiastical matters. This is also the sense given to the expression in Italian universities. It is therefore evident that the title “Codex iuris ecclesiastici” could have generated ambiguities.
The division of the CIC, like that of the Decretals, is into 5 books, but the distribution of material is new, and the method is new. Before the CIC is placed the constitution by which it was promulgated, the motu proprio “Cum iuris canonici” by which the Pontifical Commission for authentic interpretation was established, and the Profession of Faith: this recalls the title De Summa Trinitate et de Fide catholica with which, after the Code of Justinian, the authentic collections of the Decretals began. In the Appendix are placed 8 constitutions from the old law. The first, namely Vacante Sede Apostolica of 25 Dec. 1904, has now been replaced by Vacantis Apostolicae Sedis of 8 Dec. 1945: this has deprived of force also the second and third, namely Commissio Nobis of 20 Jan. 1904 and Praedecessores Nostri of 24 May 1882, and moreover the motu proprio “Cum proxime” of 1 March 1922 (cf. Apollinaris, 19 [1945], pp. 177–79).
Each of the five books of the Code is generally subdivided into parts, sections, titles, chapters, articles, and canones (there are 2,414 of these).
Even in the external arrangement of the material, the CIC differs profoundly from previous collections. The internal form of the individual canones is still more distinctive. While the Decretals were given for particular cases and included both expository and motivational parts, the canones contain in concise form only the norm itself. In the collections of the Decretals the text was reproduced, though abbreviated, with the very words of the sources, whereas the CIC, while generally reproducing pre-existing norms, usually employs different terms. For the same reason, the style of the Decretals was extraordinarily uneven; that of the CIC also bears the mark of the multitude of collaborators, but with less evident discrepancies. Finally, the collections of the Decretals did not comprise all the canon law in force at the time of their promulgation; instead, besides genuine disciplinary norms, they contained dogmatic definitions and liturgical prescriptions. The CIC omits liturgical norms and also dogmatic truths, except where these form the foundation of disciplinary laws. The latter, however, are all included.
The authority of the CIC is defined in the cited constitution Providentissima. According to its terms, the CIC must be called an authentic, universal, and exclusive collection. All the laws contained therein are therefore obligatory for the entire Latin Church, regardless of whether they were previously particular or general laws, customary norms, or whether their origin was from impure sources. The laws contained in the CIC, even if they arose previously at different times or from different legislators, have the same binding force as if all had been promulgated at the same moment. The CIC may also be called an exclusive collection because it abrogates all legal or customary norms that it does not explicitly or implicitly reproduce (can. 6). It is not, however, absolutely exclusive, for it leaves in force: Eastern canon law; strictly liturgical prescriptions; concordatory law; immemorial or centenary customary law, even if contrary to it, provided in such a case it is not expressly reprobated and is tolerated by Ordinaries; particular law even contrary to the CIC; acquired rights, privileges, and apostolic indults still in use and not expressly revoked.
The individual canones have the force of universal laws. The headings or rubrics of the books, parts, sections, titles, chapters, and articles are authentic but are not true laws, since they merely designate the subject matter they embrace. They may, however, serve as a means of interpretation. The index preceding the CIC is merely a list of the rubrics and thus has the same value as they do. The documents inserted at the end of the CIC have the same binding force as the canones, even if previously they were particular laws. The preface, the notes, and the alphabetical-analytical index, however, have only private value. Since, for the interpretation of the new law, it is necessary in most cases to refer back to the earlier law, the notes are a valuable aid. The indication of a source, however, does not imply that the new norm is in conformity with the old; nor does the omission of such an indication prove the independence of the new law. In some rare cases, indeed, the indication of the source has been omitted.
Translations and adaptations of the CIC into other languages have been forbidden, to avoid alterations of meaning. Permission of the Holy See has, however, been granted for the translation of those canones that concern lay and religious institutes, because those most concerned may have insufficient knowledge of Latin. Recently permission has also been granted for some complete translations. None of these translations, however, are authentic.
V. The authentic interpretation of the CIC
The authentic interpretation of the CIC, by virtue of the motu proprio “Cum iuris canonici” of 15 Sept. 1917 (AAS [1917], p. 483), is reserved to a special and permanent pontifical commission. The authority of the commission is not legislative but only interpretative. This power, however, includes not only declaratory interpretation but also properly explanatory interpretation of doubtful law and properly restrictive and extensive interpretation. At the plenary session of 9 Dec. 1917 the Pontifical Commission decided that doubts of lesser importance and difficulty could be resolved by the presiding cardinal. At the same plenary session it was also decided to respond only to doubts proposed by Ordinaries and major superiors of religious orders and congregations, not to queries from private individuals unless submitted through their Ordinaries (AAS, 10 [1918], p. 77; 11 [1919], p. 476). The responses of the Commission have the same binding force as the canones.According to the motu proprio “Cum iuris canonici,” the Pontifical Commission would also have the task of drafting into canones the new universal laws that modify or supply the silence of the CIC, and of indicating in the Code the respective canones to be replaced or supplemented. This function, however, has never been fulfilled.