Constitution

CONSTITUTION. - I. NOTION. - In diplomatics, a constitution is the document containing particular sovereign provisions: a distinction is drawn between pontifical constitutions, which are solemn acts (bulls) of the Roman pontiff in which grave problems concerning doctrine and discipline are treated, and sovereign constitutions, solemn acts issued to legislate especially in judicial matters.

In legal language, this term, which beginning from the era of imperial Roman law designated any legislative act of the emperor, is already found in ecclesiastical usage from the earliest centuries with the generic meaning of written law (c. 3, D. 1) and, more particularly, of lex saecularis (c. 4, D. 1) as opposed to canon, the specific and distinctive designation of the laws of the Church. From that time, however, it was also sometimes used in the meaning of ecclesiastical law, as is confirmed by that very ancient compilation of primitive canon law that goes under the original name of Apostolic Constitutions (v.).

Subsequently, while remaining a synonym for law in general, the term gradually became the most common predicate of episcopal laws and of the particular statutes of autonomous moral persons, especially of religious institutes (Constitutiones episcopales, synodales, capitulares, religiosorum). In the 13th century it already seems preferably employed to indicate specifically the legislative acts of the supreme pontiff, a usage that from then on would become ever more frequent and exclusive, although throughout the Middle Ages the more generic appellation of decretal (decretalis epistola) prevailed in this regard.

In modern times (especially from the 19th century onward) the word constitution is also used to indicate the fundamental law of the State.

In current canonical terminology, the term, while not excluding attributions of lesser value or of less constant application (for example, synodal constitutions, capitular constitutions, instead of statutes), is used predominantly to indicate pontifical constitutions and religious constitutions.

II. CONSTITUTION PONTIFICE

These are the legislative acts most solemn in form and most important in content, which the supreme pontiff issues motu proprio and directly, with the force of general laws. They are also called Apostolic Constitutions. Normally they concern definitions and decisions regarding the faith or the general discipline of the Church: they take the form of letters and are usually, though not necessarily, issued in the form of a bull (v.). They are clearly distinguished from the other pontifical legislative acts that relate to measures of lesser importance and of a particular character (motu proprio, chirographs, etc.) or that the pope issues through his dicasteries (decrees, instructions, circulars, etc.).

III. RELIGIOUS CONSTITUTION

With this denomination, always used in the plural, official canonical terminology designates the code of particular norms that govern individual religious institutes. Constitutions represent one of the primary sources, often indeed the sole source, of the particular law of individual Religious orders. From this standpoint "constitutions" and "rule" are two substantially equivalent terms. They are, however, two qualifications that are practically distinct from one another, although the difference is only of a historical and contingent character.

From the earliest centuries of religious life, the primary code, which gathered the constitutive and fundamental norms of individual institutions, bore the name of "rule," whereas the accessory compilations of the more minute norms, issued subsequently or adopted in the various institutes in subordination to the common rule professed, were designated, with varying terminology, as ordinationes, ordines, statuta, instituta, consuetudines, institutiones, until beginning in the 12th century the use arose of calling them predominantly constitutiones. When the creation of new religious institutes and new rules was prohibited at the Fourth Lateran Council (1215) (c. 9, X, 3, 36), while the qualification of "rule" remained exclusive to the four classic models, namely the rules of St. Basil, St. Augustine, St. Benedict and St. Francis, the term constitutiones remained the specific denomination of the complementary and particularistic legislation that subsequently grew up within the same Orders or in the collateral branches and reforms that adopted one of the above-mentioned rules. Thus there came to be various Orders and institutes professing a common rule as their fundamental code, with their own distinct constitutions.

From the 16th century onward the term was adopted, independently of any pre-existing common rule, to designate indiscriminately the proper legislation of the new religious Orders and Congregations. More recently, precisely in the reverse of what had been the practice before the 16th century, in certain institutes the custom arose of calling "constitutions" the body of primary and fundamental statutes, reserving the qualification of "rules," in the plural, for the collection of the more minute and complementary norms.

At present, to avoid confusion, for designating the proper legislation of religious Congregations the term "constitutions" is made obligatory and official, while the qualification of "rule" remains the denomination of the fundamental legislation of religious Orders alone. At present, therefore, there are the more ancient Religious orders that number among their normative sources the rule and the constitutions, while the more recent ones have only the constitutions.

In the currently prevailing discipline, constitutions take the form of a particular law and as such are interpreted and treated for all purposes. Consequently, they cannot be considered either revoked or in any way derogated from or corrected by any new general laws that might be promulgated, unless this is expressly provided for (can. 22). Those anterior to the new code retain their full force insofar as they are praeter or secundum the prescriptions of the code itself; they remain abrogated insofar as they are contra (cann. 489, and 6 n. 1, 6). The consequent general revision of the constitutions and their adaptation to the law of the CIC was imposed and carried out on the basis of the decrees of 26 June 1918 (AAS, 10 [1918], p. 290), and 26 Oct. 1921 (ibid., 13 [1921], pp. 538-39), of the Sacred Congregation of Religious, which nevertheless were not applied with regard to the ancient monastic rules.

At present religious constitutions acquire legal force through pontifical approval or that of the local Ordinary. In current practice, in fact, all new religious Orders or Congregations are subject to the obligation of pontifical approval, following prior approval and presentation by the local Ordinary. The approval process normally comprises three phases: dilatio cum animadversionibus, corresponding to the first examination with the official observations; approbatio ad experimentum, which is as a rule accompanied by the granting to the new institute of the decretum laudis; approbatio definitiva, which coincides with the definitive approval of the new institute and with its enrollment among the Religious orders of pontifical right (cf. Normae S. Congr. de Religiosis, 6 March 1921, artt. 19-21; AAS, 13 [1921], pp. 312-19). Definitive approval is given as a rule in common form, by means of the decretum approbationis; it may however also be given in specific form, by means of apostolic letters.

Pontifical approval withdraws the constitutions from the authority of the local Ordinary (can. 618 § 2), confers upon them greater stability and immutability, so that they cannot be changed or amended by a lower authority without license from the Holy See, and renders their authentic interpretation reserved to the same Holy See. It does not, however, according to the prevailing doctrine, inhibit the faculty traditionally attributed to the superiors of exempt clerical religious orders of dispensing from them in particular cases, when the dispensation does not entail a change in them, an injury to the vows, or a substantial derogation from the constitutive form of the institute.

In every religious house the constitutions must be read publicly at least once a year (can. 509 § 2 n. 1).

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