Codex Iuris Canonici

CODEX IURIS CANONICI. - This is the name given to the code, promulgated in 1917, containing the universal law of the Latin Church.

I. NECESSITY OF CODIFICATION

The causes that led to the gathering of the universal laws of the Church into an authentic and systematic collection are analogous to those that gave rise to the civil Codes.

The plurality and confusion of the legislative sources of the various States: Roman, canonical and common, royal laws, municipal statutes, general and local customs, and the consequent multitude and confusion of the collections that contained them, brought it about that, beginning in the 16th century, ever more numerous and authoritative voices, among them those of F. Bacon, G. Leibniz, L. A. Muratori, prompted profound innovations capable of removing uncertainty and disorder. The methods proposed were three: the ancient system of compilation, so as to unify in a single collection all the laws in the form in which they were promulgated, but at the same time to remove all existing contradictions; an intermediate system between compilation and codification that would allow the primitive texts to be included as well but would add new ones in still greater number and unify the law in force throughout the nation; finally the system of codification (proposed by Leibniz in 1716), that is, the gathering into a single collection of the law of each Country, so that the ancient laws too would find a place in it, but corrected and adapted to circumstances, and expressed in a new and concise form, omitting the old useless formulas.

Criticism did not spare the collections of ecclesiastical laws. Tommaso Campanella even turned to Paul V so that a single code might be compiled that would comprise both canon law and civil law.

The Corpus iuris canonici (v.) no longer in fact answered the needs of modern times: of the six collections that compose it, the Decretum of Gratian, the Extravagantes of John XXIII and the Extravagantes communes remained private collections; the other three, namely the Decretales of Gregory IX, the Sextus of Boniface VIII and the Clementinae, were official collections, but incomplete and outdated: the last of them had been promulgated in 1317. The Decretales Clementis VIII, more commonly called Liber septimus Clementis VIII, the Liber septimus decretalium of Pietro Matteo, and the Institutiones iuris canonici of P. Lancelotti, attempted to meet a need ever more keenly felt after the reforming work of the Council of Trent; but these three works did not have an official character. The first volume of the Bullarium of Benedict XIV did have it, for in his sensitivity as a jurist he must have realized the defective state of the legislative sources, but he did not find himself in the conditions suited to providing a remedy. Meanwhile the laws multiplied; to the pontifical acts were added the decrees of the Roman congregations, but both the one and the other were scattered in volumes and collections, always incomplete and private: hence it was possible for very few to have a perfect knowledge of ecclesiastical legislation.

For while for the laws included in the three authentic collections of the Corpus the principles of interpretation of universal laws held, for all the others it was necessary to investigate their scope and their nature, territorial or personal. For all of them, moreover, whether or not included in the Corpus, one had to inquire whether they were still in force, or whether the intrinsic or extrinsic circumstances that had deprived them of their binding force had occurred. Laws in fact, even if contained in the official collections, in some cases went back to the first centuries of the Church, sometimes were repeated and therefore useless, many expressly abrogated, others fallen into desuetude. Nor were there lacking laws promulgated for the universal Church that were in fact particular, because in very many places they had ceased by virtue of concordats, privileges, dispensations, customs or later laws; nor were there lacking true and irreconcilable contradictions between norms issued on the same matters in times and circumstances so distant and different. Interpretation was then made more difficult by the too confused and prolix form in which the laws had been drafted, involved and subdivided into narrative, motive and dispositive parts, and complicated by clauses and by formulas devoid of normative content. While, finally, for certain matters the number of laws was excessive, for others they were entirely lacking.

To eliminate similar inconveniences and difficulties that were lamented for civil legislation, various States had systematic collections in which, once superfluous and contradictory elements were removed, common law, customary law and even statutes were left as supplementary sources. Thus had Victor Amadeus II of Savoy done with the Regie Costituzioni of 1723; Charles Felix with the Leggi civili e criminali pel Regno di Sardegna of 1827, and Pope Gregory XVI with his Regolamento legislativo per gli Stati pontifici of 1834. Under the impulse of the same causes the Prussian Code of 1794 and the French (or Napoleonic) Code of 1804 were promulgated; between the one and the other, however, there were profound differences: the Prussian Code contained, besides private law, public law as well, and was therefore extremely extensive (nineteen thousand paragraphs), whereas the Napoleonic Code contained only private law; the Prussian Code replaced common law, but left local, provincial and customary law in force; the Napoleonic Code, on the other hand, was exclusive.

II. PRELIMINARIES OF CODIFICATION

From the very beginning of the preparatory work of the Vatican Council, in 1864, the majority of the cardinals, headed by Card. de Reisach, expressed the wish that the Council itself should deal with the reform of ecclesiastical discipline (Coll. Lacensis, VII, p. 1013, in note). The codification of the whole of canon law did not, however, seem practically possible. A special commission was nevertheless set up, with the task of preparing drafts of reform.

On Sept. 12, 1867, the commission began its work, but could not complete it because of the interruption of the Council. Even earlier, that is, on Sept. 2, 1869, the bishops of Campania, with Card. Riario Sforza, archbishop of Naples, at their head, insisted on the compilation of a new Corpus iuris canonici, especially in order to make the handling of cases easier and more prompt, while at the same time rejecting the idea of a code similar to the civil ones which, limiting themselves to stating the rule, cause its reasons to be ignored. Eleven French bishops asked that the Council set up a commission for the preparation of a new Corpus iuris to be approved by the Council itself. The bishops of Germany, Austria and Belgium thought that the initiative should be taken and led by the Pope, rather than by the Council. The first to ask for a true and proper code, analogous to the civil ones, were the Belgian bishops, joined by those of the provinces of Québec and Halifax. Finally, on Febr. 19, 1870, 33 bishops of 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 did not then permit the Holy See to carry out these wishes. Various and profound reforms and simplifications were, however, introduced into the discipline: it is enough to recall the Apostolicae Sedis of Oct. 18, 1869 on latae sententiae censures, which is like a particular codification of canon criminal law; the Officiorum et munorum of Jan. 25, 1897 on the censure and prohibition of books; the Instruction of the S. Congregation of Bishops and Regulars, dated June 11, 1880 «de modo quo oeconomice procedere debent Curiae ecclesiasticae in causis disciplinaribus et criminalibus clericorum»; the constitution Conditae a Christo of Oct. 8, 1900 on religious with simple vows.

Some canonists had meanwhile made private attempts at codification. In 1873 Gaspare de Luise published in Naples a Codex canonum Ecclesiae in which, among the disciplinary prescriptions, dogmatic truths were included, along with private law also public law, with many superfluities and omissions. Another Italian, Em. Colomiatti, from 1888 to 1907 published, likewise in Turin, a Codex iuris pontificii seu canonici in 9 vols.: more than a code, a collection of constitutions and decrees. In Rome, from 1896 to 1902, E. M. Pezzani published his Codex S. Catholicae Romanae Ecclesiae: a work left unfinished and, although superior to the preceding ones, stuffed with too many dogmatic and public-law elements. A similar work was published in Paris in 1899, with the title: Ius canonicum generale distributum in articulos, by A. Pillet: it set out the various norms in short and precise articles and intended to demonstrate in practice the possibility of a canonical codification. There was no lack of attempts at partial codifications: P. Peries, in Canoniste Contemporain, in 1892 and 1893 arranged canonical matrimonial procedure in articles; likewise, in Madrid, in 1895, J. Cadena y Eleta, with a Proyecto de Código procesal canónico; I. Hollweck attempted instead in 1899 to codify criminal law: Die kirchlichen Strafgesetze (Mainz 1899). In general, however, especially by the Germans, codification was held to be extremely difficult, if not impossible: thus R. Scherer, H. Lämmer, J. B. Sägmüller, F. X. Wernz, besides various lay professors, among whom are remembered F. Ruffini (La codificazione del diritto ecclesiastico, Prato 1904). But even those who held it possible discussed its scope and the system to be followed: most held that the new code should also embrace external public law, others wanted it to contain, besides the norms, also explanatory notes; some asked for the preservation of the traditional order, against others who proposed a new one.

Such was the state of things at the time of the election of Pius X. Msgr. P. Gasparri, secretary of the S. C. for extraordinary ecclesiastical affairs, showed the new Pope how a codification was possible (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 Card. C. Gennari confirmed to the Supreme Pontiff the advisability of the suggestion, so that, by letter of Jan. 11, 1904, Pius X charged the same Card. Gennari with preparing the motu proprio «to be sent to all those eminent cardinals and consultors whom we shall together designate as the most able for such work» (Il Monitore ecclesiastico, 1917, p. 269 ff.). At the beginning of March 1904, the Pope several times assembled the cardinals resident in Rome, in order to learn their opinion on the matter. This too having proved 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, p. 219-22; Acta Apostolicae Sedis, 36 [1903-1904], p. 549 ff.).

III. THE WORKS OF CODIFICATION

With this document the constitution of a commission of cardinals and of consultors was announced. These were to elaborate the material and present the drafts at their meetings, presided over by the secretary of the cardinalitial commission. Once approved by the consultors, the draft was submitted to the cardinalitial commission, and once it too had approved it, it was submitted for the approval of the Holy Father; the secretary of the cardinalitial commission was Msgr. Gasparri. For this reason too the administrative and chancery work concerning the codification was entrusted to the Sacred Congregation for Extraordinary Ecclesiastical Affairs, of which Msgr. Gasparri was secretary. Besides the consultors, canonists and theologians, Italian and foreign, residing outside Rome and called "collaborators," were also asked for help. In accordance with the promise of the motu proprio, according to which the whole episcopate was to be invited to collaborate, Cardinal Merry del Val, Secretary of State, on 25 March 1904 addressed a circular to all metropolitans, so that, after obtaining the opinion of the suffragans and of the other Ordinaries who in any case had the right to take part in the provincial council, they might report to the Holy See, not later than 4 months from the date on which they had received the letter, their opinion on the changes and corrections to be made to ecclesiastical legislation.

The circular authorized the bishops of individual nations to appoint by common accord one or two particularly capable persons, to be numbered among the consultors. The bishops, however, could, if they so preferred, designate their representative from among the members of the commission, or, finally, appoint a fellow countryman of theirs who, even though residing outside Rome, might correspond with the commission itself (Acta Sanctae Sedis 36 [1903-1904], p. 603). From the motu proprio "Arduum sane munus" it did not appear clearly whether the intention was to draft a true and proper code, or another collection like the ancient ones. However, the letter of the secretary of the commission to the Catholic universities, dated 6 Apr. 1904 (Acta Sanctae Sedis, 37 [1904-1905], pp. 130-31), removed all doubt. In that letter the plan of the work was outlined in broad strokes, susceptible of amendments, and it was said that the work to be done was twofold: the Code, to be drafted in canons or articles like the recent civil codes, and the collection of legislative acts later than 1317, that is, the collection of the sources.

The rectors of the ecclesiastical universities were asked to notify which professors were willing to draft in articles or canons one or another part of canon law, so that they might be numbered among the collaborators. A similar invitation was also extended to certain professors of the universities of the State.

First of all the index of the Code was discussed, which was then modified according as the progress of the work suggested. A list was then compiled of the best canonists of the whole Church, and to each of them (consultors or collaborators) was assigned the part whose canons he was to elaborate. On each chapter or part of the general schema at least two consultors wrote, and on the points of greater importance or difficulty, even three or four, but always in such a way that each did not know of the other. The works of the consultors and of the collaborators were ordered by a special law dated 11 Apr. 1904, which is reproduced, as regards its enacting part, in the preface of the Code. In order to proceed more rapidly, instead of one, two commissions were appointed for distinct subjects. Each commission was composed of about ten members: one met on Thursday morning, the other on Sunday morning. Msgr. Gasparri presided as president, assisted, later on, by Msgr. E. Pacelli, now Supreme Pontiff. Although the works of the codification proceeded in the strictest secrecy, the same motu proprio "Arduum sane munus" announced that the acts relating to it would be published. This is what Msgr. F. Roberti has begun to do, with the publication of the Schemata de processibus, I, Rome 1940.

Besides the two particular commissions, there was the plenary commission of all the consultors (about 25), to which was entrusted the examination of the canons approved by the particular commissions. But in the plenary commission each member considered it his duty to express his own opinion on each canon, and therefore the discussions dragged on excessively. The great commission was therefore no longer convened, and instead the printed schema that was to be discussed was sent to the individual members, with an order to each to write in the margin next to each canon his own opinion (P. Gasparri, Storia della codificazione, p. 7). Having examined the opinions of the members of the great commission, and eliminated those that did not deserve consideration, Msgr. Gasparri submitted the others to the cardinalitial commission, together with the schemas of the two particular commissions. The cardinals studied them first individually, then assembled, at least twice. Whenever the question presented particular difficulties, the opinion of the competent dicastery was also requested.

Created cardinal in 1907, Msgr. Gasparri was shortly afterwards also appointed ponens, that is, relator, of the cardinalitial commission; the secretary remained the secretary of the Sacred Congregation for Ecclesiastical Affairs: first Msgr. R. Scapinelli di Leguigno, and then Msgr. E. Pacelli. Cardinal Gasparri, however, always retained, even after his appointment as Secretary of State, the presidency of the commissions of the consultors.

The pontifical laws promulgated after the constitution of the commissions for the drafting of the Code were prepared by them. Among these, special mention deserves to be made of the decree Ne temere of 2 Aug. 1907 (Acta Sanctae Sedis, 40 [1907], p. 526), and the decree Maxima cura, of 20 Aug. 1910 (AAS, 2 [1910], p. 636). In this way it was possible to know, before inserting them in the Code, what reception was reserved for the new norms.

In 1912, when almost all the parts of the Code had been approved by the cardinalitial commission, Pius X, welcoming an idea of Cardinal Gasparri, willed that all the cardinals and prelates who are convoked to the ecumenical council be invited, so that they might express their judgment and their observations. On 12 March 1912, the first two books were sent: Normae generales and De personis. On 1 Apr. 1913 the third, De rebus, and on 1 July of the same year the one that until then was the fourth book: De delictis et poenis. On 13 Nov. 1914 the book De iudiciis ecclesiasticis was dispatched. On all the recipients (about 3000), the pontifical secret was imposed. Each of them, however, was authorized to entrust the work of revision to two or three persons of his confidence, from the secular or regular clergy. The observations of the episcopate were submitted directly to the cardinalitial commission. In consequence of them the draft underwent profound changes: the fifth book became the fourth, and this took the place of that one; various titles and rubrics were changed; norms not previously contemplated were introduced: others instead were suppressed.

The death of Pius X (20 Aug. 1914) and the world war did not interrupt the works of the codification. In July 1916, the cardinalitial commission finished the revision of the bishops' observations; and in the same year the Code was printed, ready to be promulgated. Benedict XV, however, willed 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 thought. Finally, on 4 Dec. 1916, the Pope in the consistorial allocution announced that the work was completed. Yet still in 1917 various provisions concerning the organization of the Roman curia (AAS, 9 [1917]) influenced the drafting of the Code (cf. cann. 247, 257, 258).

IV. THE CODE

On the day of Pentecost 1917, May 27, the Code was promulgated with the constitution Providentissima Mater Ecclesia. On June 28, 1917 it was published in the Acta Apostolicae Sedis, and on the same day Card. Gasparri presented the first copy of it to the Supreme Pontiff, in the presence of the cardinals, consultors and collaborators. In his reply, the Pope declared among other things the precise will not to give heed to requests for derogations and exemptions. According to the constitution Providentissima the Code was to enter into force on May 19, 1918, Pentecost of the following year. However, by decree of Aug. 20, 1917, it was provided that certain norms be applied in advance, namely cann. 239 § 1, 240, 600 no. 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 in past centuries quite rare. It is found however in the acts of the Council of Toledo IV of 633, to designate the Codex Ecclesiae Hispaniae; toward the end of the 8th century the Dionysio-Hadriana collection was likewise called Codex canonum; so too the collection of the constitutions of the African councils was published in 1645 by Chr. Justel under the title Codex canonum Ecclesiae Africanae; in 1675 P. Quesnel published his collection entitling it Codex Ecclesiae Romanae; Codex Carolinus was the name given to the collection of letters of various Popes to Charles Martel, Pepin the Short and Charlemagne; and Codex encyclicus to a collection of 41 letters, the main part of which was addressed to the emperor Leo I in 485 by synods that collectively represented the whole Christian world.

In civil law the name code designated a collection of laws, after the manner of the Code of Justinian, authentic, systematic and exclusive. So too, today, in canon law.

The new collection is called C. i. c. and not iuris ecclesiastici, both because of the more ancient and prevalent use of the first expression, and in order to avoid misunderstandings.

Already in Nov. CXXXVII of Justinian the ecclesiastical laws are called "canones" and contrasted with the civil laws, the "leges". By the name of canons were designated the decisions of the first councils, while the disciplinary definitions of the pontiffs were called Decretals or Decreta. The usage continues with Gratian (Praeemium, 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 that of Trent and in the schemas of the Vatican Council, on the other hand, the disciplinary decisions were called decrees, and the dogmatic declarations canons, but usage continued to designate by the name of canons the laws contained in the Corpus Iuris. The Protestant jurists of the 18th century then began to designate as "ius ecclesiasticum" the laws of the State in ecclesiastical matters. Such too is the sense attributed to this expression in the Italian universities. It is therefore evident that the title "Codex iuris ecclesiastici" could have generated misunderstandings.

The division of the CIC is, as in the Decretals, into 5 books, but the distribution of the material is new, and the method is new. Before the CIC is placed the constitution with which it was promulgated, the motu proprio "Cum iuris canonici" with which the Pontifical commission for authentic interpretation was instituted, 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 taken from the old law. The first, namely the Vacante Sede Apostolica dated Dec. 25, 1904 has now been replaced by the Vacantis Apostolicae Sedis of Dec. 8, 1945: this has deprived of all force also the second and the third, namely the Commissum Nobis of Jan. 20, 1904 and the Praedecessores Nostri of May 24, 1882, and furthermore the motu proprio "Cum proxime" of March 1, 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 canons (these are 2414).

Also in the exterior partition of the material, the CIC differs profoundly from the preceding collections. The internal form of the individual canons is distinguished even more profoundly. While in fact the Decretals were issued for particular cases and also reported the expository and motive parts, the canons contain in concise form only the norm. In the collections of the Decretals the text was reproduced, although abbreviated, with the same words as the sources, while the CIC, although generally reproducing pre-existing norms, generally uses different terms. For the same reason, the style of the Decretals was extraordinarily uneven; that of the CIC too bears the mark of the multitude of collaborators, but with less evident discordances. Finally the collections of the Decretals do not comprise all the canon law in force at the moment of promulgation, and instead contained, besides true and proper disciplinary norms, dogmatic definitions and liturgical prescriptions. The CIC omits the liturgical norms and also the dogmatic truths, except in the case in which they constitute the foundation of the disciplinary laws. The latter, on the other hand, are all comprised in it.

The authority of the CIC is defined in the aforementioned constitution Providentissima. According to its terms, the CIC must be called an authentic, universal and exclusive collection. All the laws therefore that are contained in it are obligatory for the whole Latin Church, nor does it matter whether previously they were particular or general laws or customary norms, or whether their provenance is from "pure" sources. The laws contained in the CIC, even if they arose previously in different epochs or from different legislators, have the same obligatory force, as all promulgated in the same instant. The CIC can also be called an exclusive collection, because it abrogates all legal or customary norms that it does not reproduce explicitly or implicitly (can. 6). It is not however exclusive in an absolute sense, because it leaves in force: Eastern ecclesiastical law; strictly liturgical prescriptions; concordat law; immemorial or centenary customary law, even if contrary to it, provided that in such case it is not expressly reproved and is tolerated by the Ordinaries; particular law even contrary to the CIC; acquired rights, privileges and apostolic indults still in use and not expressly revoked.

The individual canons have the force of universal laws. The inscriptions or rubrics of the books, parts, sections, titles, chapters, articles, are authentic, but they are not true laws, because they designate only the material that they comprise. They can however be a means of interpretation. The index that precedes the CIC is nothing but the list of the rubrics, and has therefore the value of these. The documents inserted at the end of the CIC have the same obligatory force as the canons, even if previously they were particular laws. Instead the preface, the notes, the analytical-alphabetical index have a purely private value. Since for the interpretation of the new law it is necessary, in the great majority of cases, to go back to the earlier law, the notes are an excellent aid. The indication however of a source does not entail that the new norm conforms to the old; nor does the omitted indication of this prove the independence of the new law. In some rare case in fact the indication of the source has escaped notice.

Variations and translations of the CIC into other languages have been forbidden, in order to avoid alterations of meaning. With the permission of the Holy See, however, the canons concerning lay and religious congregations have been translated, on account of the insufficient knowledge of the Latin language that those chiefly concerned may have. Recently permission has also been granted for some complete translations. All these translations, however, are not authentic.

V. THE AUTHENTIC INTERPRETATION OF THE CODEX IURIS CANONICI

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. Such power, however, does not comprise only declaratory interpretation, but also the properly explanatory interpretation of a doubtful law and the properly restrictive and extensive interpretation. In the plenary meeting of 9 Dec. 1917 the Pontifical Commission established that doubts of lesser importance and difficulty could be resolved by the cardinal president. In the same plenary meeting it was further decided to reply only to doubts proposed by Ordinaries and by the major superiors of religious Orders and congregations, not to the questions of private individuals unless they are proposed through their Ordinaries (AAS, 10 [1918], p. 77; 11 [1919], p. 476). The replies of the Commission have the same obligatory force that the canons have.

According to the motu proprio "Cum iuris canonici" the Pontifical Commission would also have the task of drafting in canons the new universal laws that change or supply the silence of the CIC, and of indicating in the code the respective canons to be replaced or completed. Such a function, however, has never been fulfilled.

VI. THE SOURCES OF THE CODEX IURIS CANONICI

They were gathered and published by Cardinal P. Gasparri and Cardinal G. Serèdi. Omitted from this collection were the sources drawn from the Corpus Iuris, from the Council of Trent and from the liturgical books, because they are easily available to every scholar. The other sources, previously scattered in many collections, are now gathered in 8 vols. and arranged in the following order: first the laws of the general councils that are not found in the Corpus Iuris, nor in the acts of the Pontiffs, nor in those of the Council of Trent are reported in chronological order. There follow, again in chronological order, the laws of the Supreme Pontiffs that are not in the Corpus Iuris; then the norms issued by the Sacred Congregations, tribunals and offices of the Holy See: the acts of each Sacred Dicastery are in chronological order, and the order of succession of the Dicasteries is that established by the CIC. The sources cited are 6464 in all.

Dino Staffa