Jurisdiction

JURISDICTION. - Iurisdictio (from ius and dicere), indicates, in Roman legal sources, the activity of one who administers justice.

I. NOTIONS

In modern civil law, jurisdiction (g.) means the activity of the State directed to the implementation of the legal norm in the case of a dispute or a transgression. Since the end to which it tends is in every case the implementation of objective law, it may be said that even in the State jurisdiction is one. Nevertheless, since objective law is subdivided into civil, administrative and criminal, there is also a civil, administrative and criminal jurisdiction: the first for relations of private law, the second for certain relations to which the public administration is a party, the third for the application of criminal norms.

In canon law the term iurisdictio at the outset designated public power in general (cf. the epist. of St. Gregory the Great: PL 77, 611 and 1212; Liber diurnus [ed. Th. Sickel, Vienna 1889], formularies 32, 77, 86; cf. also Nov. 11; 120 cap. 6, 2; 131, c. 3). In some passages of the Corpus Iuris Canonici (cf. c. 16, X, I, 33; cap. un. II, 2, in Clem.) it is restricted to judicial power alone; but, according to the meaning that later prevailed and is now common, jurisdiction is equivalent to public power, and comprises all its species: legislative, executive and judicial. It is therefore defined as: the public or governmental power by which the Church directs the activity of its members toward the attainment of the common good, that is, of its social end.

Insofar as it is public or governmental power, jurisdiction belongs to the Church, as to the State, inasmuch as it is a necessary and perfect society, and therefore also to the parts and organs that derive it from her. By reason of this public character, jurisdiction is substantially distinct from every private power (dominative, domestic, etc.). The acts or measures that the Church issues by virtue of her power of jurisdiction induce the obligation to obey: that is, they have an imperative and obligatory character. In this respect jurisdiction agrees with the power of the internal forum, but differs from it substantially, because the former, unlike the latter, tends directly to the common good. It differs also from the power of order, although, like the latter, it is directed to the ultimate end of the salvation of souls; this end, which is the supernatural end of man, can be attained through Grace and the cooperation of the will; now, while the power of order concerns the means that produce Grace (the Sacraments) or that implore it (the sacramentals), the power of jurisdiction has as its object the activity of subjects. There is, on the other hand, no substantial difference between jurisdiction and the power of the magisterium, inasmuch as the latter is the power to teach revealed truths and truths connected with them in an authoritative manner, that is, with the faculty of imposing the assent of the intellect and the will upon such teaching; from this standpoint the magisterium is nothing but a part of the power of jurisdiction.

II. DISTINCTIONS

As has been said, the power of jurisdiction belongs to the Church as a perfect society; in concrete terms this power resides in organs or physical persons to whom such power can be conferred in two ways: ipso iure, that is, by the fact that the person obtains a determined office to which such power is joined by law; or by direct concession of another person invested with such power: in the first case there is ordinary jurisdiction, in the second delegated jurisdiction (can. 197 § 1). The ordinary is in turn subdivided into proper and vicarious (can. 197 § 2), according to whether it is exercised in one's own name (as is that of the Supreme Pontiff or of residential bishops), or in the name of others (as is that which administrators, vicars and apostolic prefects exercise in the name of the Roman Pontiff; that of vicars general, capitular, etc.).

Given the breadth of its meaning, jurisdiction in canon law is also distinguished into voluntary and judicial (cf. can. 201 §§ 2 and 3): the first comprises the legislative and administrative power, although in a more proper and restricted sense it concerns acts of an administrative nature by which new entities are created, juridical capacity is completed, the juridical status of persons is constituted; the second, also called contentious, is exercised in the manner of a judgment and presupposes two parties in dispute. There is furthermore immediate and mediate jurisdiction, according to the relationship of dependence, whether direct or through another superior.

III. ACTIVE SUBJECT

Only clerics can have the power of jurisdiction. Indeed, in most cases the quality of priest is required (cf. cann. 154, 232 § 1; 331 § 1, no. 3; 367 § 1; 1573 § 4; 1598 § 2). Other particular requirements are moreover laid down for individual offices.

According to common doctrine, the incapacity of the unbaptized (and, according to some, also of women) to obtain jurisdiction in the Church is of divine right. The incapacity of the baptized laity, on the other hand, is of ecclesiastical right, from which the Supreme Pontiff can derogate. Other limitations on the capacity of clerics themselves derive from ecclesiastical penalties (cf. cann. 2264; 2265; 2275, no. 3; 2284; 2294 § 1; 2298, no. 5; 2303 § 1).

Concretely: they have ordinary jurisdiction of the external forum (the persons who have ordinary jurisdiction in the internal sacramental forum are indicated in can. 873): the Supreme Pontiff, the ecumenical council, the congregations, tribunals and offices of the Roman Curia, the plenary and provincial councils; all those who by law are designated by the name of Ordinaries (cf. can. 198 § 1), whether as individuals or gathered in a regional or provincial college (can. 292), or capitular college (cann. 435 § 1, 431 § 1, 391 § 1), metropolitans, independently of the jurisdiction they have for their own diocese (cf. cann. 274, nos. 1 and 5; 432 § 2; 434 § 3, 1594 and 1612); the official and the judges of the regional tribunals; the official (can. 1573 § 1) and the synodal judges.

All those who, whether secular or religious clerics, have ordinary jurisdiction in the external forum, are properly designated by the name of prelates (can. 110).

Not all of these persons and organs, however, possess jurisdiction in the same degree and extent. To the Supreme Pontiff belongs the supreme and universal power of government, limited only by divine, natural and positive law. As for bishops, however much one may dispute speculatively whether they receive it immediately from God or through the Roman Pontiff, in fact in its exercise they depend on the Pontiff of Rome, who elects them and assigns them the territory (diocese) in which to exercise it. Nor could bishops, even considered collegially, govern or teach the Church independently of the Pope, because, even gathered in a college, they do not cease to depend on him. The ecumenical council itself, according to most theologians, does not have in the disciplinary field a distinct authority of its own, because there is only one primacy in the Church. Nevertheless the Pope, who can depose individual bishops and limit their authority, could not suppress the episcopate, or empty it of its powers, because this is of divine institution. With the exception of the Roman Pontiff, no bishop has jurisdiction over other bishops by divine right: the degrees of patriarchal jurisdiction (also in the Eastern Churches), primatial and metropolitan, are participations in the Roman primacy.

The pontifical power of jurisdiction is not only supreme and universal, but also immediate and complete over all the baptized, so that it can be exercised everywhere, without other persons, even those invested with jurisdiction, being able to impede or limit its own. For all other prelates jurisdiction is limited according to office. Since ordinary jurisdiction is inherent in the office, it is acquired in the manner in which the office is obtained, namely: by free collation on the part of the superior, by institution, by confirmation, by simple election (cf. can. 148). It can have limits in exemption (cf. cann. 239 § 1, no. 18; 615; 618), in reservation (for the external forum: cf. cann. 1431; 1434; 1435 § 1; 1487 § 3; 2251; for the internal forum: cf. cann. 893 and 896) and in appeal (cf. can. 1889).

It is not possible to enumerate the persons who have a delegated power of jurisdiction: this depends in fact on the free grant of the delegator. Whoever has ordinary jurisdiction can delegate it in whole or in part, unless an express provision of law forbids it: thus, for example, he could not delegate in perpetuity without the consent of his superior his entire jurisdiction, because such a delegation would be equivalent to an abdication and to the creation of a new magistrate. The Roman Pontiff could resign, but he could not commit to a delegate or vicar his entire jurisdiction, because with such a delegation he would as it were create another pope; moreover the prerogative of infallibility would never be delegable.

It can be subdelegated: a) whether habitually or for a single act, the jurisdiction delegated by the Holy See, unless such power has been delegated by reason of the personal qualities of the delegate himself, or unless subdelegation has been forbidden; b) the power ad universitatem negotiorum, delegated by an inferior of the Roman Pontiff, can likewise be subdelegated but only "in individual cases." With the exception of jurisdiction delegated by the Holy See or ad universitatem negotiorum, delegated jurisdiction can be subdelegated only by express grant of the delegator. Nevertheless, even without an express grant, delegated judges can always subdelegate a non-jurisdictional power. No subdelegated power can in turn be subdelegated, except by an express grant of the one who, by ordinary power, delegated it (can. 199).

The powers of the delegate begin from the date of the rescript, if the rescript is granted in gracious form; from the moment of execution, if the rescript is in commissory form (can. 38); if the delegation is granted orally directly by the delegator to the delegate, it begins from the moment of the grant; if the delegation is entrusted by the delegator to a necessary executor, it begins from the moment of the delegator's grant; if it is entrusted by the delegator to a free executor, it begins from the moment of the grant on the part of the executor. The exercise of jurisdiction does not depend, for its validity, on notice of its grant. Outside the case of necessity, the use of this power whose possession is still unknown would nevertheless be unlawful, given the danger of performing invalid acts (cf. for example, P. Laymann, Theologia moralis, Venice 1714, lib. I, tract. IV, cap. 23, § 10, p. 79).

The limit of delegated jurisdiction depends on the will and the power of the delegator. Delegation being a fact, it is not presumed, but must be proved by the delegate (can. 200 § 2).

IV. PASSIVE SUBJECT

All those who have received Baptism are subject to the jurisdiction of the Church, and therefore also apostates, heretics and schismatics. In concrete terms, however, not all the faithful are subject to all the persons and bodies that have jurisdiction: the Supreme Pontiff, whether within or outside an ecumenical council, has jurisdiction over all the baptized, whether he exercises it personally or through the Sacred Congregations, Tribunals and Offices of the Holy See. The other persons and bodies have jurisdiction only over a portion of the faithful, determined by the office to which that jurisdiction is attached.

V. INTERPRETATION

The power of ordinary jurisdiction and that delegated ad universitatem negotiorum must be interpreted broadly; the others strictly. However, to one who has delegated power there are always understood to be granted all those faculties without which the delegated power could not be exercised (can. 200 § 1; therefore one who has, for example, the faculty of absolving a heretic can also receive his abjuration). Habitual faculties, which are granted in perpetuity or even for a determined time or for a certain number of cases, are to be interpreted broadly (can. 66 § 1; cann. 68 and 50).

VI. EXERCISE

Jurisdiction is founded on a relationship of dependence between superior and subject: it therefore, whether ordinary or delegated, can be exercised directly only over subjects (can. 201 § 1); the ordinary over one's own subjects, the delegated over the subjects of the delegator. The relationship of subjection is determined by domicile, quasi-domicile and residence, in accordance with cann. 13-14. Indirectly it can also be exercised over pilgrims and absent persons (cann. 14, 1560-68). One who has judicial power, ordinary or delegated, cannot exercise it with regard to himself, because nemo iudex in causa propria (D. 2, 1, 10), nor outside his own territory (can. 201 § 2), except in the cases of cann. 401 § 1, 881 § 2 and 1637. Voluntary or non-judicial jurisdiction, on the other hand, can also be exercised in one's own favor, by the holder who is outside his own territory, or with regard to a subject absent from that same territory (can. 201 § 3).

As to the extent of jurisdiction with respect to the forum, these principles hold: if jurisdiction is conferred without determination or restriction, it is understood to be conferred both for the internal forum and for the external forum, unless the very nature of the matter forbids it (can. 202 § 3); power conferred for the internal forum is understood to be conferred both for the sacramental internal forum and for the non-sacramental one, unless, as happens for the absolution of sins, the sacramental forum is required (can. 202 § 2). An act of jurisdiction, ordinary or delegated, performed for the external forum, is valid also for the internal forum, so that the absolution of a censure, given in the external forum, is valid also for the internal one (can. 2251). Acts, however, of jurisdiction granted for the internal forum are not valid for the external forum (can. 202 § 1). This rule too, however, has exceptions: a matrimonial dispensation from an occult impediment, granted by the Sacred Penitentiary in the non-sacramental internal forum, is valid also for the external forum, even if the occult impediment later became public, unless the rescript of the Sacred Penitentiary provides otherwise (can. 1047). One who has been absolved from a censure in the internal forum may, barring the case of scandal and within the terms expressed by can. 2251, avail himself of the absolution also in acts of the external forum.

The power of the delegate has its foundation and its limit in the mandate: should he overstep this limit, whether it concerns persons or things, the delegate acts without power, and therefore invalidly (can. 203 § 1). Unless, however, the delegator has determined, as an essential condition, also the manner of exercising the delegated power, the limits of this power are not understood to have been overstepped if the delegate exercises it in a manner different from that intended by the delegator (can. 203 § 2).

Jurisdiction can also be delegated to several persons, physical or moral (Chapter, religious order, etc.). These persons can be delegated jointly or delegated collegially. In joint delegation, each of the delegates may freely exercise his power; in collegial delegation, the delegates must act collegially. In doubt whether the delegation is joint or collegial, it is presumed collegial "in re iudiciali", joint in other cases (can. 205 § 1). In the exercise of joint delegation the criterion of prevention applies, so that he who has first taken the matter in hand excludes the others, unless he is subsequently impeded or refuses to continue (can. 205 § 2). In the exercise of collegial delegation, on the other hand, the co-delegates must proceed all together, and acts not performed collegially are invalid, unless the mandate says otherwise (can. 205 § 3).

When the same delegation is granted to several persons at different times, the exercise of the delegated power belongs to that delegate who has the earlier mandate, provided that this has not been expressly abrogated by the later one (can. 206).

VII. RECOURSE

Against the decisions of judicial power there is appeal. Against the acts of voluntary jurisdiction there is recourse to the superior. Since the Roman Pontiff has no human superior, for acts issued by him there exists only the so-called recourse by way of grace to the Supreme Pontiff himself. Such recourse has no suspensive effect on the measure, nor does it entail for the Pope the obligation to examine whether the measure should be confirmed or revoked.

If the recourse is joined with the intention of not submitting to the Roman Pontiff or of not communicating with the faithful who are his subjects, there may be the crime of schism (cann. 1325 § 2 and 2314) or the crime of rebellion against the Supreme Pontiff (can. 2331); recourse to an ecumenical council against the commands of the pope is punished with excommunication reserved "speciali modo," and, in the case of moral persons, with an interdict likewise reserved "speciali modo" (cann. 228 § 2 and 2332). Against the acts of the congregations or offices of the Roman Curia, one may always have recourse by way of grace to the Supreme Pontiff, or even to the congregation itself for the suspension, revocation, or a re-examination of the measure. Against the measures of lower organs, recourse to the hierarchical superior is likewise admitted, and, in every case, to the Holy See. On the other hand, judicial action against administrative acts is excluded, even for compensation of damages (cann. 1601, 2146).

Recourse to the superior does not suspend, according to the principle established in can. 204 § 1, the jurisdiction of the inferior, ordinary or delegated, and the measures of the inferior, even after the recourse, are valid, save for the expressly established exceptions of suspensive recourse (cf. cann. 498, 647 § 2, n. 4; 1465 § 1; 2146 § 3; 2153 § 1; 2243). It is clear, however, that if the inferior grants a grace denied by the superior, he acts invalidly. In no case is it lawful for the inferior to interfere in a matter referred to the superior, except for a grave and urgent cause, and even in this case the inferior has the obligation to inform the superior (can. 204 § 2).

These norms do not, however, apply to the internal forum, in which, even after recourse has been made to the superior, it is always lawful to approach the inferior, and the grace granted by the inferior after it has been denied by the superior is valid.

VIII. CESSATION

Ordinary jurisdiction is extinguished in the same ways in which the office to which it is attached is lost, that is, besides by death, by resignation, transfer, deprivation, or the cessation of the office. It does not cease, however, if the superior who granted it loses his office (can. 208). Delegated jurisdiction ceases in the following ways: a) with the execution of the mandate for which it had been granted. In judicial power this occurs with the sentence, just or unjust, erroneous or not (save for can. 1878); if, on the other hand, it is null, the jurisdiction continues, since what is invalid is regarded as not done; for voluntary jurisdiction, can. 59 § 1 permits the executor who has in any way erred in the execution of the rescript to execute it again; b) with the expiry of the term prescribed in the mandate, or with the exhaustion of the number of cases for which the delegation had been granted. Nevertheless, acts inadvertently performed in the internal forum, sacramental and non-sacramental, are valid even after the term has expired, or after the number of cases for which the power had been granted has been exhausted (can. 207 § 2); c) with the cessation of the final cause of the delegation, that is, of the reason for which the jurisdiction had been delegated; this, however, does not cease if the final cause fails only in part; or if, of several final causes, some still subsist; d) with revocation by the delegator. For the revocation to take effect, that is, to bring about the end of the delegation, it must be notified directly to the delegate by the delegator, and it has effect only from the moment in which it is notified to the delegate (can. 207 § 1 and can. 60 § 1).

Just as the Ordinary can revoke delegated power, so the delegate can revoke a subdelegation; if, however, the delegate of the Roman Pontiff has subdelegated all his jurisdiction, revocation is no longer permitted after the subdelegate has begun to exercise it (cf. Wernz-Vidal, De Personis, II, n. 377); e) with the resignation of the delegate, provided that this is, besides being intimated directly to the delegator, also accepted by him; f) the cessation of the delegator's power does not entail the extinction of the delegated power, except in the two cases indicated by can. 61, namely: when in the rescript of delegation it is stated (with the clause, for example, "ad beneplacitum nostrum") that the delegation ceases with the power of the delegator; when it is a question of a power delegated for the granting of a grace to particular persons expressly designated in the rescript, and at the moment when the delegator's right is extinguished, the delegate has performed no act for the execution of the rescript; g) besides these ways, enumerated by can. 207 § 1, the delegation can cease with the death of the delegate, with his deposition (can. 2303 § 1), degradation (can. 2303 § 3), with a sentence of excommunication (cann. 2264; 2265 § 2), save for can. 2261 § 3, with personal interdict (can. 2275, n. 3), with suspension (according to the terms established in can. 2284), with infamia iuris (can. 2294 § 1). When the delegated power has been conferred by reason of the office or charge of the delegate, the delegation passes to the successor in the same office or position.

In collegial delegation, if one of the delegates dies or in any way loses the delegation, the jurisdiction ceases also in the others, unless the tenor of the delegation shows the contrary (can. 207 § 3). If, however, the college had begun to exercise its delegation in a particular matter before that delegate was removed, it may be held that the delegation does not cease (Wernz-Vidal, II, n. 377, note 40).

IX. SUPPLETORY JURISDICTION

That in the case of common error the missing jurisdiction was to be considered supplied had already been admitted by Roman law (D. I, 14, 3; Cod. 7, 45, 2). Canon law accepted (1, C. 3, q. 7) and applied the principle (1, X, V, 8; 24, X, II, 27; etc.), so that, already before the CIC, it was general doctrine that, for the good of the community, both ordinary and delegated jurisdiction was supplied. Canon 209 in fact removes all uncertainty, declaring that the Church (that is, the Supreme Legislator) supplies jurisdiction, both for the external forum and for the internal forum: a) in the case of common error; b) in positive and probable doubt, whether of law or of fact.

The existence of common error may be presumed when it can prudently be held that the fact giving rise to that error is known to the majority of the community.

For jurisdiction to be supplied in the case of doubt, it is required that this be positive, that is, founded on reasons favorable to the existence of jurisdiction, and not merely negative, which occurs when no argument militates in favor of jurisdiction. It is furthermore necessary that the doubt be probable, that is, founded on solid and consistent reasons in favor of jurisdiction. This is supplied whether the doubt concerns the law, that is, regards the existence, the interpretation or the scope of the law, or concerns the fact, as for example, regarding the running of the term of jurisdiction.

In merely negative doubt, it is lawful to place a jurisdictional act under condition, provided that a grave necessity requires it. Since, however, the validity of the act remains doubtful and the Church in this case does not supply, per se the subject must be advised so that, when he can, he may provide by a new act of certain validity.

X. PRESUMED JURISDICTION

This is the name given to jurisdiction that is not possessed but is nevertheless exercised in the presumption that the acts issued will be ratified. A distinction is made between presumed jurisdiction de praeterito or de praesenti, and presumed jurisdiction de futuro: the first is founded on the probability that the superior has granted the jurisdiction, without there being proof of it; the second is based on the presumption that the acts will subsequently be validated. The first resolves into doubtful and probable jurisdiction, but it cannot be exercised when proof of the power received is necessary; the second can be exercised neither licitly nor validly in all cases in which subsequent ratification cannot render the acts performed valid (assistance at marriage, absolution of sins, etc.). In other cases (for example, the collation of a non-curial benefice) it can be exercised licitly only for a grave and proportionate cause.

Dino Staffa