DIRITTI DI STOLA

RIGHTS OF THE STOLE: V. STOLA, DIRITTI DI.

This noun, which may be said to be common patrimony in the languages of civilized peoples, derives etymologically, in the immediate sense, from the Latin *dirigere*, but is traced back by a longer path to Sanskrit roots (*rta*, *r̥ju*) which signify direction, physical (geometric) and moral rectitude, uprightness, and order. Whatever may be the case regarding the Sanskrit origin, it is observed that both Latin etymology and modern usage clearly point to the complex idea of rectitude and order.

It should also be noted that in the Romance languages the noun *d.* has replaced the original *ius*, of which only the adjectival form (*giuridico*, "juridical") has been preserved, and around which the ancients had amassed a rich proliferation of etymological derivations, often quite disparate and sometimes scarcely reliable (from *iustitia*, from the verbs *iubere* or *iurare*, and even from the name of Jupiter himself, to which the verb *iurare* was sometimes linked). Setting aside the problem of etymological truth—still difficult even for the most advanced philological science—it is fitting to limit oneself to observing that those who proposed these derivations saw in *d.* (*ius*) close ties with justice and religion, intertwined with elements of command and mutual aid among men. Comparing the old Latin term with the modern one, it is evident that in antiquity greater emphasis was placed on the imperative and religious character of *d.*, whereas today the character of rectitude with an ethical coloring has come more clearly to the fore. The religious connection of the Latin *ius* is also attested by another term, *fas*, which always had a distinctly sacred flavor and was always associated with *ius*, now as its synonym, now as its parallel equivalent.

**Summary:**

I. General Notions

II. Natural and Divine Law

III. Canon Law

IV. Roman and Germanic Law

V. Common Law

VI. International Law

VII. Ecclesiastical Law

VIII. Missionary Law

IX. Law among Primitive Peoples.

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### I. General Notions

#### I. The Concept
The frequent use of the term by jurists and non-jurists alike has ended by accumulating around it such a variety of meanings that it becomes difficult to impose order and clarity upon this tangled mass. Today, the two most common senses of the word *d.* are: "law" and "faculty." The first is objective; the second, subjective. In the objective sense, *d.* is law or a complex of laws, and thus its imperative nature is indicated. Yet not every law is *d.*; to be such, it must possess certain characteristics that constitute its juridicity. Not all authors agree on the enumeration of these characteristics. The character of statehood, required by many positivists—so that only a law emanating from the State can be juridical—must certainly be excluded; so too must the character of politicality, insofar as it is claimed that only the political society (i.e., the so-called perfect society) can create and bear *d.* Instead, one may accept the widely held opinion that requires the character of sociality, by which it is affirmed that, to be juridical, a law must be social, i.e., it must regulate interhuman relations. Thus, all norms or laws that govern human life in its individual aspects are excluded from the field of *d.*, while the laws of any society, even if not state-based or "perfect," are included. The social character necessarily entails, or presupposes, two other characteristics: externality and alterity of the matter that is the object of juridical law; that is, it requires that what is regulated by *d.* be an external human act and have significance or value for others, i.e., for human subjects distinct from the agent (or the one obliged to act). Closely related to liberty is the bilateral nature, by which those others who have an interest in the observance of the law can demand its execution. It should be noted that these others are not necessarily specific individuals but may also be society as a whole. Lastly, mention must be made of the character of coercibility, by virtue of which the execution of juridical law is made possible even when the obligated subject refuses to comply.

In the subjective sense, *d.* is faculty. The conception of *d.* as physical faculty must certainly be rejected; this is a crude doctrine that abandons the juridical world to the dark play of brute forces and ultimately annihilates all human value. Subjective *d.* must instead be conceived as a moral faculty, the object of which possesses the characteristics of juridicity outlined above. The ethical exigency thus made explicit has three aspects: the first concerns the object of the faculty itself, which must be in harmony with moral laws; the second pertains to the subject, who is obliged not to exercise the faculty except in ways permitted by ethical norms; the third is directed toward others and imposes upon them the duty to respect the faculty of the subject, by virtue of its moral weight alone, even if in a given case the bearer of the right lacks the physical means to compel such respect.

To the two meanings ("law" and "faculty") which have been said to be the most frequent today, two others, somewhat less common but no less important, must be added.

A third meaning, habitual among the ancient Scholastics, including St. Thomas Aquinas, saw in *d.* the just thing, the thing owed to another—what today represents the object of juridical law and faculty. Thus, through the appeal to justice, the intimate and indissoluble bond between *d.* and morality was affirmed; and by fixing the thing as the primary juridical element, it was immediately made clear that the world of *d.* cannot be left to the whim of the legislator or the insatiable greed of one who claims a faculty, but must conform to an objective reality that transcends and dominates both the power of those above and the caprice of those below.

A fourth meaning is today tending to gain acceptance: that of order, or rather of legal system, whereby *d.* comes to be conceived in a more complex manner than in the three senses already explained. This might be called the integral concept, for it embraces law, faculty, and the just thing; it synthesizes them into a system of relationships that binds together the subject of the faculty and that of the obligation, the acting person and the things surrounding his action, the individual and the social body in which the life of *d.* is realized.

If one wishes to define *d.* from this last point of view, it may be said that it is the coercible order of human actions in matters of justice. The mention of coercibility seems sufficient to recall all the other characteristics of *d.* listed above. The reference to justice serves to define its field of action.

II. D. AND MORALS

Much has been written and discussed (especially since Kant) about the relationship between these two orders. From what has been said above, it is clear that law has necessary ties with morals. These ties are evident to anyone who considers that morals is the universal form or norm of human activity; and therefore every norm that claims to regulate this same activity comes to share a necessary commonality of subject matter with morals, and through this, indirect contacts. In the legal world, the situation is further complicated by the fact that both morals and law are imperatives, indeed law is also coercive. This means that if the two orders were to disagree about the object of their commands, the subject would find themselves in a tragic situation, with no possible way out. Therefore, every doctrine that, like the extreme forms of positivism, posits unbridgeable chasms between the two orders and preaches their reciprocal independence is theoretically false and practically harmful.

Yet one must not confuse them. There are irreconcilable differences between them, both in content and in form.

As regards content, they differ: a) in the breadth of their subject matter: morals governs the whole of human life, in its four provinces, which bear the classical names of prudence, justice, fortitude, and temperance; whereas law is limited to the field of justice. It must nonetheless be recalled that this field is not as narrow and closed as it might at first appear, because, without wishing to complicate matters by recalling the formal distinction of the four provinces, it is easy to see that in particular historical situations many acts which we are not accustomed to attribute in propria to the other virtues may assume the character of justice and thus become suitable matter for legal ordering. The name of justice, which enters into the definition of law, must therefore be understood in the broad sense it has in the expression “social justice”; b) in the aspect of the matter they take as their object: both morals and law look to the human act, but from different points of view: morals governs and judges it by looking at its point of origin, which lies in the conscience of the acting subject; law, instead, governs and judges it by fixing on its point of arrival or external reference (ad alterum). This shift in perspective imposes on law particular criteria of evaluation: an act may be perfect in its outward form and in social estimation, even though it may be vitiated in its inner structure by the malice of the subject who performs it hypocritically; hence the different judgment that may be passed on the same act in the tribunal of ethical conscience and in that of legal order.

They also differ in form. It would be wrong to locate the formal difference in the intrinsic force of the command, as if law contained true imperatives and morals only counsels and suggestions, always left to the subject’s discretion. Morals too is imperative; indeed, its commands often have, for ethical conscience, greater force than legal ones. Nor would it be accurate to say that morals is the doctrine or field of duty, while law is the realm of faculties. This way of seeing things assumes an adequate subjective definition of law, which instead indicates only one of its elements. It must nonetheless be recognized that morals and law differ: a) in the extrinsic force of their commands, inasmuch as legal order, as has been said, is coercible, that is, it resorts even to physical compulsion to obtain what is due, whereas morals shuns such methods, which would be useless to II. The root of this divergence is to be sought in what has been said about the different point of view regarding the subject matter. Morals is oriented toward the interior of the subject, and therefore it would avail nothing to compel a person: no one becomes good by force! Law, instead, being oriented toward the exterior and toward others, can profit even from an act exacted by force. Hence St. Thomas said that law is the just thing, but considered in its objective value, which is actualized by the disposition of the acting subject: “etiam non considerato aliquo ab agente fiat” (Sum. Theol., 2a-2ae, q. 57, a. 1); b) in the formulation of norms: the moral norm does not need to be enunciated with that apparatus of material exactitude which is instead one of the constant aspirations of the legal norm; hence law, in comparison with morals, always has a greater heaviness of movement, a necessary cult of formula and letter, which often stifles the spirit; a constant need for pre-established schemata, which fragment between universal principles and concrete facts, and make judgment easier but also less exact, less adherent to reality, modeled on artificial types; hence it is rightly recognized that morals has the merit of concreteness and law the drawback of a necessary abstractness.

III. LAW AND RELIGION

The same affinities and divergences that exist between law and morals also exist between law and religion, insofar as the latter is a moral virtue. Yet religion is also a social fact, and in its name particular societies are formed, which will have particular legal orders. The question remains whether the subject matter of such legislation is only that common to every society or may also be provided by acts that are truly religious. The difficulty arises from the requirement of full adherence of the soul to religious practices, without which the external act loses its value. It must nonetheless be recalled that religion has acts which, within certain limits, retain a social value for others, even if the good disposition of the one performing them is lacking. Such is, for example, the administration of a sacrament, which, for the recipient, retains all its value even if conferred by an unworthy minister who performs the rite solely under the threat of canonical sanctions. The possibility of a religious legal order is thus preserved. However, since even these acts, though they have value ex opere operato, require a minimum of will in the one performing them, the legislation of the religious society will necessarily impose limits, unknown to civil society, in the exercise of coercion.

Giuseppe Graneris

IV. DIVISIONS OF LAW

From the time of Roman jurists, it has been traditional to distinguish the whole of objective law into two broad branches: public law and private law (cf. D. I, 1, 1, 3). This distinction has been founded on criteria not always uniform from country to country and from writer to writer; but, even after the critical elaborations to which it has been subjected, it remains fundamental that (though no longer exclusive) the criterion substantially indicated by Roman jurists still holds: namely, that public law consists of those norms which directly have as their object and end the organization and activity of the State and other lesser political entities, and thus also the relations between private individuals and these organizations; whereas private law is the complex of norms which, having as their end the direct protection of the interests of individuals (and only indirectly and mediately the interest of society), regulate the relations among individuals themselves.

For some time now, the question has been raised whether in the legal system of the Church there exists or does not exist a distinction between public law and private law analogous to that in use in the legal systems of States, or rather in the juridical science that has these systems as its object.

The problem is partly reduced to a theoretical question, especially since it is difficult to see what practical consequences the classification of a norm in one field rather than another might have for the ordering of the Church, as it is not possible to determine a set of principles valid for public law and not for private law, or vice versa.

However, both doctrinal principles and positive norms of the CIC (cf. can. 1586, 1618, 1619 § 2, 1655 § 2, 1925 § 1) suggest that this distinction should also be considered as existing in canon law (cf. P. Cipriotti, *Lezioni di diritto canonico*, Padova 1943, pp. 64-67).

In a somewhat narrower sense, the expression "public law" has been used (since the last century) when referring to ecclesiastical public law, which is defined as the complex of norms (largely of divine law) concerning the constitution of the Church and the rights that pertain to it as a perfect society with a supernatural end. It is usually distinguished into internal ecclesiastical public law and external ecclesiastical public law: the former comprises the principles on the constitution and rights of the Church as a perfect society considered in itself and in its relations with its subjects; the latter, instead, comprises the principles on the legal position of the Church in its relations with other societies, especially with the State. Cf. A. Ottaviani, *Institutiones iuris publici ecclesiastici*, 3rd ed., I, Roma 1947, pp. 1-31.

In the law of the State, further subdivisions are commonly made of both public law and private law into various branches.

Public law is divided into: constitutional law, which comprises the norms regulating the fundamental organization of the State, its supreme powers, and the supreme principles relating to the relations between the State and its citizens; administrative law, which comprises the norms governing the action of the State in the exercise of its administrative or executive functions (a subdivision of this is so-called financial law); criminal law; procedural law; international law (in contrast to which all other branches of public law are also called internal public law; V. infra); ecclesiastical law (v. infra).

Private law is usually divided into two branches (though this distinction has been much debated in modern times): civil law, which comprises all the norms relating to legal acts in general, to persons, to things and to real rights, to the family, to succession upon death, to non-commercial obligations; and commercial law, which regulates the legal relationships arising in the exercise of commerce and some others that, by reason of their connection with commerce or for historical reasons, are included in II.
II. NATURAL AND DIVINE LAW

The idea that positive law is not founded solely on the arbitrary will of the authorities that enact it, but on a natural law, has occurred to and imposed itself upon human minds from the most remote ages, but it was given particular emphasis by Christian thought (for a fuller presentation of the Christian conception of natural law, V. LEGGE NATURALE). From the very beginning, the idea of natural law was often associated with that of divinity as the source and artificer of nature in general, and more especially of human nature.

The belief in an absolute foundation of law is manifested, implicitly or explicitly, in all religions. When critical thought awakens, especially in Greece, the possibility is conceived of an antithesis between what is just by nature (φύσει) and what is just by law (νόμιμα), where by law is meant positive law; and the antithesis sometimes takes a sharp form, to the point of denying the very existence of the first term and admitting only the second: thus, for example, in the case of Archelaus, a disciple of Anaxagoras (5th century B.C.), and with greater dialectical developments among the Sophists (5th-4th century B.C.), and then among the Skeptics, such as Pyrrho and Carneades, etc. But these very denials served as a stimulus to reflection and reaffirmations, which in a way confirmed the many manifestations of that first belief: such as, for example, the famous invocation in Sophocles' *Antigone* (444 B.C.), where, against the unjust order of a tyrant, she appeals to the «unwritten and unshakable laws of the gods» (454 sqq.). To the Sophists' arguments were opposed the doctrines of Socrates, Plato, and Aristotle, in which the idea of a fundamental juridical truth, not subject to human arbitrariness but superior to it, stands out in harmony with the entire philosophical system they respectively elaborated. In the Aristotelian system, particular emphasis is placed on the distinction between natural justice, which has equal force everywhere, and positive or legal justice, which is variously determined (Eth. Nicom., V, 7 [1134b], 1; cf. Rhet., I, 13, 2). According to the Stoics, justice is not a mere imposition (θάσεις), but a dictate of right reason (ὁρθός λόγος), which corresponds to the supreme law of nature and is uniformly inherent in the soul of every man.

Both Stoic theories and those of Plato and Aristotle inspired Cicero, who eloquently upheld the idea of natural law (especially against the skeptical objections of Carneades): «Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans, sempiterna», etc. (De re publica, III, 22; cf. De legibus, I, 6, 12, 15, etc.). In general, Roman jurists adopted the fundamental notions of law elaborated by Greek philosophy. These speculative concepts, and particularly those of the Stoic school (which also had notable representatives in Rome, as is well known), in a way coincided with the practical experiences of the Romans themselves, who gave them numerous applications and concrete developments throughout the field of law (cf. on this P. Sokolowski, *Die Philosophie im Privatrecht*, Halle 1902-1907; P. Barth, *Die Stoa*, 2nd ed., Stuttgart 1908, p. 194 sqq.). Thus the concept of *naturalis ratio*, i.e., of a rationality that is not peculiar to human intellect alone but belongs to the order of nature in general, was unanimously admitted: it serves as the basis of juridical institutions and moreover as a guide in their progressive development. The definitions that Roman jurists gave of natural law are quite varied (Paul, frg. 11, Dig. I, 1: «Id, quod semper aequum ac bonum est, ius dicitur, ut est ius naturale». Inst., I, 2, § 11: «Naturalia quidem iura, quae apud omnes gentes peraeque servantur»).

The Christian conception of natural law, which is closely linked to the idea of divine law, was developed above all by St. Thomas Aquinas, who distinguished between natural law and divine law, considering the latter as a higher law, directly revealed by God, which perfects and elevates natural law. According to St. Thomas, natural law is inscribed in human reason by God Himself, and its precepts are universally valid and immutable. Divine law, on the other hand, is contained in the revealed law (the Old and New Testaments) and in the ecclesiastical laws derived from II. It serves to guide man towards his supernatural end and to correct the deficiencies of natural law in matters pertaining to salvation.

Hugo Grotius, in his *De iure belli ac pacis* (1625), laid the foundations for a secularized conception of natural law, asserting that even if God did not exist, natural law would still retain its validity (*etiamsi daremus non esse Deum*). He maintained that natural law is based on human sociability and reason, and that its principles are universally valid and immutable. Grotius' theory had a profound influence on the development of modern international law and the philosophy of law.

The immutability of natural law is also emphasized by other thinkers, such as Samuel Pufendorf, who argued that natural law is founded on the social nature of man and the necessity of preserving society. According to Pufendorf, natural law prescribes duties that are universally valid and obligatory for all men, regardless of their cultural or historical context.

In conclusion, the idea of natural and divine law has played a fundamental role in the development of juridical thought, both in the philosophical and theological spheres and in the practical application of law. It has served as a foundation for the principles of justice, equity, and the rights of man, and has influenced the development of both canon law and secular legal systems.

The work of Grotius, which soon gained great renown, was followed by numerous others that, despite sometimes considerable divergences, share certain characteristics with it; hence it is not altogether unjust to speak of a “school of natural law” in the strict sense, which flourished precisely in the 17th century and throughout the following one. The principal characteristic of this school is an abstract rationalism that is not critically examined and is therefore often fallacious. Even with the laudable aim of seeking in human nature the foundation of law, the authors belonging to this school frequently present as universal truths mere aspirations of their individual conscience, suggested by contingent political circumstances. The methodological uncertainty is also evident in the tendency to give the appearance of historical and pseudo-historical narrative to philosophical deduction, confusing logical priority with chronological priority and representing natural law as the positive law of a supposed remotest age. This is especially apparent in the conception of a status naturae that would have preceded the state of society; the transition from one to the other would have occurred through a contract, which some authors of this school conceive as a single act, while others see it as distinct in two successive acts (pactum unionis and pactum subjectionis). For the distinctive features of the various doctrines, it is necessary to refer to the individual treatments (v. CONTRATTUALISMO). We shall mention here only some of the most significant theories after that of Grotius.

According to Th. Hobbes (De cive, 1642; Leviathan, 1651), “homo ad societatem non natura, sed disciplina aptus factus est,” and the natural state of men is a war of all against all, each having by nature a right over all things. From mutual fear, that is, from the need for peace, the State arises by virtue of a contract in which men, renouncing entirely the original natural law, submit to an absolute power. Not very different are the doctrines of B. Spinoza (Tractatus theologico-politicus, 1670; Tractatus politicus, 1677), for whom natural law extends as far as the physical power of each individual; the State arises when men agree to live “ex solo rationis dictamine.” The conception of S. Pufendorf (De iure naturae et gentium, 1672) is closer to that of Grotius: the fundamental law of nature, in his view, is that which imposes on every man the cultivation and preservation toward others of a peaceful sociability (“pacifica socialis”), in conformity with the nature and end of the human race (op. cit., bk. II, ch. 3, § 15).

G. Locke (Two Treatises of Government, 1690) maintains that the “state of nature” is not (as other jurists had understood it) a condition of personal life, and much less a state of war among individuals, but rather a state of coexistence in which men already possess certain rights (to liberty, equality, labor, and property). But these natural rights must be guaranteed, and this occurs insofar as a group of men agrees to constitute a political society, that is, a State, which has precisely as its end, and hence also as the limit of its power, the protection of those same rights.

C. Thomasius (Institutiones iurisprudentiae divinae, 1688; Fundamenta iuris naturae et gentium, 1705) continues the preceding tradition, with particular reference to the doctrines of Grotius and Pufendorf. He distinguishes a “lex divina naturae” and a “lex positiva”; natural law “cognoscitur ex ratiocinatione animi tranquilli,” whereas positive law “requirit revelationem et publicationem.” To the same tradition, with broad and systematic developments inspired in part by Leibnizian philosophy, C. Wolff also adhered (Ius naturae methodo scientifica pertractatum, 1740–48).

More concerned with the problem of the intrinsic justice of the State than with the formal elaboration of juridical concepts was J. Rousseau (Discours sur l’origine et les fondements de l’inégalité parmi les hommes, 1753; Du contrat social, 1762), who upheld principles similar to those of Locke but with originality of outlook and new dialectical vigor. According to Rousseau, the state of nature, if it ever existed, must be conceived as the realm of freedom and equality among men; and since these goods are in fact lost, it is necessary to restore them as far as possible by organizing the State in such a way that it is truly the synthesis of the equal freedom of all: that is, in such a way that those natural rights reappear in it as civil rights.

Among the thinkers who, without belonging to the school of natural law in the strict sense, expounded in the same period important ideas on this subject, special mention must be made of G. Leibniz. In his Nova methodus discendae docendaeque Iurisprudentiae (1667) and in the Dissertatio I prefixed to the Codex iuris gentium diplomaticus, he distinguishes jurisprudence into “divina, humana, civilis,” with regard to the bond of subordination of man to God, then to the human race, and finally to the State. Correspondingly, natural law, according to Leibniz, would comprise three degrees: pietas, aequitas, and ius strictum.

Vico (De universi iuris uno principio et fine uno, 1720; Principi di una scienza nuova intorno alla comune natura delle nazioni, 1725) affirms that natural law “constat aeterno vero,” and has its principle in God; but if the true is an essential element of law, there is in it also another element, the certain; the former constitutes the “ratio legis,” the latter represents its authority. Vico thus seeks in a way to reconcile natural law with positive law, opening the way to that synthetic vision of history that is the characteristic motif of his New Science. In this work he distinguishes three kinds of natural law: the first divine, the second heroic, the third human; and he also draws other distinctions according to various criteria, which do not however destroy the unity of his conception of a law that is at once ideal and historical. A conception undoubtedly profound, but in part obscure and not free from difficulties, as appears from the differing interpretations that have been and still are given of II.
After Rousseau, the natural-law school underwent further development and partial renewal through the work of I. Kant, who, while accepting not a few of the doctrines of that school, introduced into them notable corrections, eliminating above all the equivocation (already in part corrected by Locke and Rousseau) arising from the ambiguity of some of its formulas. For Kant (Metaphysische Anfangsgründe der Rechtslehre, 1797), natural law is founded exclusively on a priori principles, that is, it has a purely ethical and deontological value, independent of experience. Every man, insofar as he is a man, has an innate right to freedom. The school of natural law (Naturrecht) thus becomes the school of rational law (Vernunftrecht), and the two designations are used from then on almost as synonyms; though it must be noted that even the second designation, in a less rigorous sense, had sometimes been used in the preceding period. Following Kant’s doctrine, with greater or lesser adherence, were those of numerous other authors, among whom Fichte is of special importance; mention may also be made, for example, of the works of Zeiller, Rotteck, Baroli, Tolomei, etc.

BIBL.:
Gierke, Das deutsche Genossenschaftsrecht, IV, Berlin 1913; Stammler, Theorie der Rechtswissenschaft, Halle 1911; id., Lehrbuch der Rechtsphilosophie, Berlin 1923; Del Vecchio, Il concetto del diritto, Bologna 1906; id., La giustizia, Bologna 1924; id., Lezioni di filosofia del diritto, Roma 1933; Solari, Filosofia del diritto privato, Torino 1920; id., Il pensiero politico di G. B. Vico, Torino 1922; id., Studi storici di filosofia del diritto, Torino 1930; Battaglia, La dottrina del diritto naturale nella storia, Roma 1936; id., Il problema della guerra e le dottrine giuridiche internazionali, Roma 1936; id., La concezione dello Stato nella storia del pensiero giuridico, Roma 1937; id., Il diritto naturale cristiano, Roma 1939; id., La giustizia, Roma 1946; Capograssi, Il problema della scienza del diritto privato, Padova 1937; id., Analisi dell’esperienza comune, Padova 1938; id., Studi sull’esperienza giuridica, Padova 1939; id., Il diritto dopo la catastrofe, Padova 1945; Jemolo, Lo Stato moderno e la sua crisi, Torino 1946; Battaglia, La libertà nella storia del pensiero giuridico, Roma 1946; id., Il problema della guerra e la coscienza giuridica europea, Roma 1947; id., Il problema della guerra e la dottrina di Kant, Roma 1947; id., Il problema della guerra e la dottrina di Vico, Roma 1947.

A strong reaction against natural law theories in general began to manifest itself from the early 19th century, both because these theories were blamed for the excesses of the French Revolution, which had announced itself with a program of legal reform, and, above all, because historical or positive studies were generally preferred—even by jurists—over purely speculative research. It is true that historicism itself sometimes assumed an idealistic aspect (one need only mention Hegel’s system, which identifies the rational and the real, and declares the relationship between natural law and positive law analogous to that between Institutes and Pandects). Yet opposition to natural law became, for many, a kind of dogma under the influence of Comtean positivism, evolutionism, and relativism in their various forms.

It is noteworthy, however, that while the new theory of evolution was generally understood as compatible with the idea of an absolute natural law, its principal author, Spencer, explicitly admitted alongside a relative ethics an absolute ethics and maintained that natural laws of the individual arise. It may also be recalled that the leading representative of Italian positivism, R. Ardigò, admitted into his system a certain “natural law,” but only in the sense of a psychological fact that would prepare the way for future positive law.

None of the numerous “deniers” of natural law (among whom may be cited, for example, Bergbohm and Vanni) ever provided a demonstration of the assumption that law should be studied exclusively as a positive phenomenon and not also as an eternal idea. That this exclusive thesis rests on a mere prejudice was clearly demonstrated by various recent scholars of legal philosophy.

The idea of natural law continued, therefore, to be vigorously upheld and defended, albeit in different ways, even in the most recent age, both by followers of Scholastic philosophy and by others who, starting from a critical analysis of knowledge, arrived at results substantially in accord with those of the *philosophia perennis*.

Canon law is called the complex of legal norms established, directly or indirectly, by the Church through its organs to regulate matters within its competence.

The phrase “directly or indirectly” is used to include both norms formulated directly by Church organs and those that, though already existing in some form, are approved and enforced by the aforesaid organs as norms issued by the Church. This second category consists especially of customary norms (v. CONSUETUDINE) and norms issued by the State (v. CANONIZZAZIONE DELLE LEGGI); and in a certain sense, divine law norms may also be included here.

The limitation “to regulate matters within its competence” has been added because, especially in past ages, the Church has sometimes found itself compelled to issue norms in matters falling within the competence of civil authority, in cases where such authority was lacking. These norms, issued by the Church for the realization of ends foreign to it and by virtue of a power derived from factual situations (devolutive power), do not form part of canon law. Similarly, norms issued by organs of the Church not in their capacity as Church organs but as organs of a State or other secular organization (Papal States, Vatican City State, fief, etc.) do not form part of canon law.

The name “canon law” (ius canonicum) derives from the fact that the legal norms, or, as is also commonly said, the disciplinary decisions (in contrast to doctrinal ones) issued by the earliest ecumenical councils—which were among the most important sources of canon law—were called *canons* (κανόνες), in contrast to the *laws* (νόμοι) of the emperors, which were instead the most important sources of State law.

However, this was not always the only name by which the juridical order of the Church was designated. The most common among other denominations used is that of ius ecclesiarum, which is still found today in the CIC, though sometimes it indicates only a part of canon law, namely human law as opposed to divine law (cf. can. 27 § 1, 727 § 1, 1043, 1133 § 2, 1139 § 1, 1513 § 1, 1926, 2364). Less common were other denominations, which today are almost obsolete or have other meanings: for example, ius sacrum, ius pontificium, ius divinum, ius decretalium.

Canon law is one of the means (though not the only or principal one) by which the Church seeks to attain its supernatural end, which is the salvation of souls or eternal happiness of men. Therefore, the object of canon law is to determine, through obligatory precepts, the conduct of men in relation to this end, that is, to regulate human activity in the best way for attaining this end. It thus has its foundation in the power of jurisdiction in the external forum, which, by divine will, belongs to the Church (v. CHIESA; FÓRO; GIURISDIZIONE; CHIESA).

CHARACTERISTICS. — The essential characteristics of canon law are the same as those of the law emanated by the State, namely, besides its social nature (since it is issued by the Church), its imperative or obligatory force, its alterity or intersubjectivity (which distinguishes it from moral theology), and its coercibility.

How these characteristics (which some have wrongly denied to canon law) can be reconciled with the Church’s otherworldly end can easily be understood if one considers that obstacles to the salvation of souls may arise not only from the souls themselves but also (though only indirectly and not insurmountable ones) from other causes: causes, that is, which either influence more or less intensely the will of each person, inducing him to behave in a way different from what would be most useful for the salvation of his soul, or which prevent him from carrying out the will to behave in this more useful way.

Now when the Church, in order to remove such obstacles as far as possible, forbids or commands certain behaviors that might hinder or render difficult for others the attainment of the ultimate end, or respectively facilitate it; when it provides the means to ensure in advance obedience to such commands or prohibitions, and to repress any possible transgressions; when, in other words, it safeguards, through commands, what may be called the supernatural interest of each wayfarer in relation to others, it is evident that it issues commands that have all the essential characteristics to be qualified as juridical commands.

If, however, in the very legislative texts in which the Church issues such commands, and in the very CIC which now contains the most important of them, there are found commands lacking the above characteristics, or even statements that are not even true commands, this does not mean that canon law lacks the essential characteristics of law, but rather that those commands and statements do not form part of canon law.

**III. DIVINE LAW IN THE ORDER OF THE CHURCH.** — Divine law, whether natural or positive (v. above), constitutes a source of canon law insofar as it relates to the matter that is its object. Moreover, all divine precepts, whether juridical or not, constitute a limit to the activity of the Church, since they must be observed even by the highest authorities of the Church, for any commands given by them in contrast to these divine precepts are devoid of any juridical value.

It should be noted, however, that divine law precepts which are not explicitly or implicitly reproduced in positive norms do not form part of canon law in the strict sense, even though they remain equally obligatory.

From what has been said, it is clear that in the juridical order of the Church, divine law can be seen to perform two fundamental functions: a positive one and a negative one. It has, in fact, a positive function insofar as it determines the content of norms in the canonical order, which are either the reproduction or the specification of norms of divine law; among these norms, those (of positive law) regulating the constitution and fundamental powers of the Church, and the essential degrees of the hierarchy, are especially noteworthy, though not exclusively so. It has, on the other hand, a negative function insofar as it constitutes a limit to the activity of lawmaking, since commands that are in contrast with divine precepts have no juridical value, just as commands of an inferior that are in contrast with those of a superior have no juridical value. And as regards this second function, equal importance, even from the juridical point of view, attaches both to divine precepts that have a juridical character (regulating, that is, the relations of men among themselves) and to those that do not have such a character, the latter usually being included in the denomination of divine law, although strictly speaking they cannot be considered juridical precepts; and equally important for this second function are both the precepts of divine law that are expressly reproduced in a norm issued by the Church and those that are not. The Church cannot therefore derogate from any precept of divine law, nor grant dispensations from them, even though it has the power and duty to interpret them infallibly.

In contrast to the norms of divine law, all other norms of canon law are usually called norms of ecclesiastical law (or merely ecclesiastical or human law).

The distinction between norms of divine law and norms of ecclesiastical law produces some practical results analogous to the distinction, found in certain statutory legal systems, between constitutional norms and ordinary legislative norms, inasmuch as in the Church the organs of legislative power cannot issue norms contrary to those of divine law, just as in the State the organs of ordinary legislative power cannot issue norms contrary to constitutional ones. The analogy between the two distinctions is, however, only partial, since whereas the legal order of a State, in which constitutional laws are distinguished from ordinary laws, always provides for a special procedure by which even constitutional laws may be modified, in the Church there are no organs that, even by extraordinary procedures, may modify or derogate from norms of divine law.

Moreover, the existence of norms of divine law means that, although in the Church the ancient conception of the princeps legibus solutus (D. 1, 3, 31) is found, there is this limitation, namely that the supreme ruler is not released from all juridical norms, since there exist some (divine law) to which he too is subject, even though the juridical order lacks the technical means or procedure to ascertain the conformity of his acts to those norms, or to coerce their observance.

The CIC repeatedly refers to natural law, either to reproduce the commands or prohibitions (cann. 6 n. 6, 1068 § 1, 1405 § 1, 1509 n. 1, 1935 § 2), or to deny validity to positive precepts that are contrary to the precepts of natural law (cann. 27 § 1, 1499 § 1, 1513 § 1); in the same sense the CIC sometimes speaks of “the nature of things” (cann. 1110 and 2198), while at other times this expression is used in a literal sense, to indicate the true nature of things, on which the law makes juridical effects depend.

The divine positive law is sometimes expressly mentioned in the *Codex Iuris Canonici* (cc. 6 n. 6, 27 § 1, 1499 § 1, 1509 n. 1) or indicated with sufficient clarity (cc. 731 § 1, 948, 1012 § 1, 1322 § 1); at other times it is designated generically by the expression *ius divinum* (cc. 219, 727 § 1), or *divina institutio* or *ordinatio* (cc. 100, 107, 196, 329 § 1).

There are also some canons in which the expression *ius divinum* is used to indicate comprehensively both divine positive law and natural law, though rather the latter than the former (cc. 1038 § 1, 1529, 1926). Finally, various canons reproduce divine precepts without stating this expressly (cc. 1495 § 1, 1512, 1543).

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IV. SOURCES

Canon law arose with the foundation of the Church, which, being a society of men, could never dispense with juridical organization. At its origins, however, it was constituted by the fundamental norms of divine law and gradually developed, first in a fragmentary and somewhat rudimentary manner, and later in an increasingly complete way, as the laws issued by the Supreme Pontiffs and by councils (later called decretals for the former and canons for the latter) multiplied, and as the organization of the Church became ever more complex and refined.

Without attempting here to outline, even summarily, the features of this development, it is noted that, immediately after the sources of Revelation—namely, the Bible (v.) and Tradition (v.)—traces of canon law norms are found in the writings of the Apostolic Fathers, and later in the pseudo-apostolic sources, while at the same time true laws applicable to the whole Church or to specific territories were being issued by popes, bishops, and especially by councils, and sometimes even by emperors. These laws, which grew ever more numerous and important, were very often collected into compilations, either to facilitate their knowledge or to coordinate and update them (v. COLLEZIONI CANONICHE, and the entries cited therein).

In the 12th century, a notable development of canon law began, also because it can be said that the science of canon law was born in that century: from the first decades of the 12th century at the Studium (University) of Bologna, alongside the teaching of Roman law, practical theology had been established; and around the middle of the same century, the monk Gratian, who taught practical theology in Bologna, with his *Concordia discordantium canonum* gave birth to the science of canon law (v. CORPUS IURIS CANONICI; DECRETISTI; DECRETISTI; GRAZIANO, DECRETO di).

For information on the sources of canon law and their history, see also BOLLARIO; CODEX IURIS CANONICI; FONTI DEL DIRITTO; LEGGE. Here it is added only that, until the promulgation of the *Codex Iuris Canonici* (1917), the term *ius antiquum* was used to denote canon law prior to Gratian, *ius novum* for that of the *Corpus Iuris Canonici* and that which followed up to the Council of Trent, and *ius novissimum* for the period after; at present, however, the distinction has remained almost exclusively between *ius vetus* (i.e., prior to the *Codex*) and *ius novum* (i.e., currently in force), a distinction also alluded to in the *Codex Iuris Canonici* itself (can. 6 n. 2).

For distinctions between universal and particular, general and special law, see LEGGE.

On some sources of a special nature, see LIBER DURUNUS; LIBRI LITURGICI; PENITENZIALI, LIBRI; REGESTO; REGULAE CANCELLARIAE APOSTOLICAE.

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IV. ROMAN AND GERMANIC LAW

Roman law and Germanic law were the two most important legal systems with which the Roman Church came into contact in the period preceding the creation of a canon law system that was autonomous and self-sufficient, elevated to the status of a juridical science in its own right, and tending to separate from itself the moral, theological, and ceremonial norms with which it had previously been indifferently intermixed.

This process occurred especially in the 12th century through the work of Gratian and his followers.

The disentanglement of the Church’s law from Roman law and from the remaining civil law, in which Germanic law had prevailed, had already taken place in isolated instances before that time; but from then on it occurred in a more decisive form, inasmuch as canon law was able to replace with its own juridical principles a good part of the civil law that had been incorporated to complement its own body of norms. Certainly, the movement toward the independence of canon law was also fostered by the intensified papal legislation that followed Gratian’s work, thereby constituting an important and more numerous source of norms in the law of the Church.

In antiquity, the Roman period, it is beyond doubt that Roman law and the civilization in which the Church of Rome found itself inserted as a religious organism and system of norms exerted a certain determinative influence on the formulation of the juridical principles first posited by the Church, alongside the divine precepts of its governance. It is true, however, that the Roman Church resisted certain maxims and the application of institutions for which, by reason of the principles of the doctrine of Christ, its founder, it demanded a different regulation. The patristic doctrine, conciliar legislation, and papal enactments bear ample witness to this work of slow and continuous transformation of Roman principles and their adaptation.

This did not occur, however, without also influencing Roman law itself, which, after the recognition of the Church and of the Christian religion by the authority of the Empire, was bent by that same imperial authority—and by the direction of jurisprudence already moving in a more moral sense under Stoic influence—to broaden certain norms and to modify its institutions in accordance with a more direct inspiration from Christian principles.

It cannot be said, however, that in antiquity Germanic law had a comparable influence on the law of the Church, given the limited contacts it had at that time with Germanic peoples, except for some border groups and those introduced into the Empire as settled and auxiliary nuclei. Through these, especially in the late Empire and under the influence of some important military leaders who rose to the imperial throne, some infiltration of Germanic principles occurred in late Roman law, particularly in the areas of property and military law.

For some regions of the Empire, on the other hand, the invasions and conquests by Germanic peoples began before the fall of the Western Roman Empire (476 A.D.). From that time onward, a more direct rapprochement between Germanic law and Roman law took place in those regions, along with a more direct penetration of Roman juridical principles and norms into the prevailing Germanic customs.

The situation changed dramatically, however, becoming more general, with the collapse of the Western Roman Empire. Germanic law then represented more freely and generally the law of the conquerors, and while it sought on the one hand to superimpose itself upon Roman law, on the other it confronted the law of the Church with particular authority. Thus, while Roman law became, at least initially, the personal law of the Roman people, the Church began an unceasing and tireless effort to curb the impetus of barbaric customs, opposing them both with Roman law—which it had in fact adopted as its own—and with those norms that constitute the earliest core of canon law.

In the gradual transition of the Germanic peoples to the Catholic faith, Germanic law also adapted to the principles and rules of life directly proposed by the Church in its law. A typical example of this evolution in a Roman and Christian direction is offered by Lombard law, which held particular significance for Italy and exerted a specific influence on the more direct relations with the center of the Church in Rome. In that law, while the influence of Roman law is discernible even in its first written monument (the Edict of Rothari of 643), the slow penetration of Christian principles is also visible. It can be said that this Roman and Christian evolution of Lombard law reached its peak with the last Lombard legislators, especially with Liutprand. Under a more direct Christian influence, the predominance of consent in obligatory relationships is felt, the introduction of Christian principles in the regulation of marriage, the introduction of provisions for last wills with bequests for the soul, and so on.

The work of the Church in the Christianization of the Roman and barbarian West in the early period of Germanic rule is represented by luminous examples. Contemporaneous with the first Lombard domination was Pope St. Gregory the Great, who served as a strong bulwark in defending Roman law in a new Christian spirit. He sent Roman texts, suitably transformed in a Christian sense, to England and Spain. In the latter country, on the other hand, through the work of Bishop Isidore of Seville, author of the *Etymologiae*, many norms and institutions of Roman law were adopted, while the new concept of obligatory law was firmly asserted, insofar as it corresponded to the moral requirements of honesty and intrinsic goodness. The original source of law was determined to be *ratio*, which should also inform custom. With the establishment of the Holy Roman Empire, there was a greater consideration for Roman law and a better disposition among the national laws of the various Germanic peoples subject to the authority of the new emperor to adopt the norms of the Church. This was achieved especially through the imperial legislation of the *capitularia*.

However, it would not be until the 11th century, and even more so the 12th, that Germanic law encountered more vigorous opposition from the new interpreters of Roman law (among whom were also ecclesiastics, such as St. Peter Damian, who illustrated the Romanist trend in Ravenna, in their efforts to bring order to the rediscovered Justinianic sources). But even more, that work of revision was due to the creators of common law, who, based on the Justinianic texts, worked to create a comprehensive system suited to the life of their time. The use of Germanic customs was increasingly restricted to particular and isolated areas.

Principles of Germanic law also passed into the regulation of the feudal system of the Frankish or Lombard type, in the respective texts of the so-called *Assises of Jerusalem* and the *Libri Feudorum* or *Consuetudines Feudorum*, and in part were adopted in ecclesiastical feudal law.

Roman law and the Church, with its own law, emerged victorious from the struggle, and yet Germanic principles permeated the new construction of Roman law and passed into the still dogmatic construction of canon law.

Of interest is the reflection of Germanic customs on the law of the Church from time to time. Some of these influences were short-lived and then overcome, such as the adoption—even among ecclesiastics—of certain proofs from Germanic procedure, such as ordeals, or contaminations, for example, of the institutions of property and possession.

It should be noted, however, that the numerous Germanic infiltrations into the legal practice of the Church are best evidenced by the relations of monasteries living under Germanic law, such as, in our case, those of Farfa and Nonantola. Other changes, also due to Germanic influence, took root in canon law, such as the defense of simple agreements, the computation of kinship, and certain features of procedure with the form of *inquisitio* and the proofs proper to Germanic tradition, as well as the more expeditious form of extraordinary procedure or *de plano et sine strepitu figurae*, later definitively enshrined in the Clementine *Saepse*.

The Church thus preserved what was most vital in Germanic law, but its law, in its principal structure, became a construction conforming to Christian morality based on divine precepts and enlivened by the spirit of equity, while its structure and the technique of its elaboration remained more closely tied to Roman law. And if sometimes popes and ecclesiastical jurists rose against it, it was only to condemn isolated points unsuited and not conforming to Christian life and morality.

The law of the Church can therefore be considered the most spiritual derivation of the further evolution of Roman law as re-lived by Christian conscience.

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of norms only in the law arising from the interpretation of Justinianic sources by the legal school, beginning with the glossators.

This law did not, nor could it, in its substantive structure, encompass the other general laws that had arisen with their own *ratio* and sphere of application (canon law, feudal law), nor the other particular forms of law (statutes, particular laws, customs) that presented obstacles to the full application of common law.

The most radically opposing view to this historical understanding of the substantive content of common law has been recently formulated by Calasso, who believes that from the substantial encounter, above all, of Roman law and canon law, there resulted the formation of a universal law proper to the new Christian people. Nor does Calasso limit himself here; according to him, the substantive content of common law also absorbed the particular elements of opposition, by reason of the systematic mechanism that linked general law to particular law.

As for the supposed substantial union of the various general laws, one may first oppose the reason of the different rationes that governed the formation both of canon law and feudal law, in comparison with Roman law. Especially canon law was a law whose principles seem to transcend earthly considerations of life, in view of the supernatural end that governed the society it regulated. It was a law that could never be united with the law according to the series, not only because of its own ratio, but also because of the different authority that governed its formulation and interpretation and the different field of its predominant application.

Moreover, one must note the historical testimony of the strident clash between the two powers, the lay and the ecclesiastical, and the persistent struggle between the two laws, of which there is an echo at every turn in the testimony of jurists and legislation of the time.

The separation of civil law from canon law, at least as a substantial coexistence, is then demonstrated by the very declaration of the interpreters who presided over the elaboration of common law, who proudly declared that everything necessary for the regulation of legal life and the formation of the jurist was contained in the Corpus iuris civilis.

This does not, however, negate the fact that canon law exerted an influence as a factor in the transformation of the norms of Roman law through the interpretation of at least some of the jurists of common law, with a notable reception of the principles of faith, in the improvement of personal laws, in the regulation of marriage and other institutions. By the same path of interpretation, some elements of the feudal conception flowed back as modifications of the principles and institutions of civil law.

This does not, however, imply in any way a substantial unity of the various general laws, which was entirely lacking due to their fundamental incompatibility. As for the systematic reason of common law, which according to the opposing thesis might have led to the substantial coexistence of common law with the particular elements of statutory law and local custom, it seems to us that we must distinguish the reason for the connection of common law with particular law from the fact of the substantial and historical coexistence of common law itself.

This remained in fact what it was, and this was unaffected by the fact of the connection of common law with particular law, so much so that, even if one admits that common law could be set aside by a particular norm recognized as having derogatory value, this does not authorize one to affirm against the historical testimony that the particular norm thereby became a stable part of common law. It remained a norm of particular law, restricted and transient, just as the norms of particular law were restricted and transient. Moreover, it could happen that the same norm of common law, set aside in one place by the presence of a derogatory particular norm, might instead be applied in another place where it encountered no obstacle to its application from particular law.

A different conception would serve to indicate the phenomenon of common law in its application in a particular place, not common law in its essence.

That the historical coexistence of common law was always maintained on the basis of only the law arising from Roman sources appears to be declared, even in the full seventeenth century, by the great Cardinal Giovanni Battista De Luca, one of the most acute and brilliant theorists and systematizers of the now mature production of common law.

He specifies common law by indicating it as *illud Romanorum ius quod civile commune dicitur* (De officiis venalibus, cap. I, n. 3), and sees it recorded in the texts of Roman sources as follows: *Ius civile commune est proprie illud, quod ex auctoritate Romanae reipublicae, seu Romani Imperii conditum est, atque registratum iuxta compilationem Iustiniani* (Theatrum veritatis et iustitiae, I. XV, parte 1a [de iudiciis], disc. 35, n. 15).

Antonio Rota

VI. INTERNATIONAL LAW

I. DEFINITION

The complex of norms intended to regulate the conduct of the subjects of international society is most commonly called international law. The terminology has not always been uniform. Vitoria, one of the first theorists of this branch of law, called it *ius inter gentes*; Grotius defined it as a law that exists *inter plures populos*. For a long time, especially among French writers such as Vattel, it was called the law of nations, and the term remains in use even among German scholars. The opinion that would restrict the term international law to the boundaries of contractual or positive law, while assigning to the law of nations the more general and common norms of justice, must be regarded as unfounded. This distinction finds no support in doctrine, where the two denominations are considered equivalent: the former is, however, to be preferred, as it removes any possibility of confusion with the Romanistic *ius gentium*, a different concept that coincides with modern public international law only in a small number of institutions. The more modern denomination derives from Bentham, who distinguished *international law*, the law in force among nations, from *national* or *internal law*, or domestic law.

II. Historical Genesis

Regarding the historical genesis of international law, three different opinions exist. One, supported by a few isolated theorists, traces its origin to Greco-Roman antiquity; the second, which stands at the opposite extreme, places its appearance at the time of the Peace of Westphalia in 1648; the third recognizes its existence already in the Christian community or *Respublica Christiana* of the Middle Ages. It cannot certainly be excluded that in remote antiquity there existed norms which must have regulated relations among peoples. If among them there were commercial exchanges, wars and peace treaties, and agreements, there must also have been some normative rule. Human nature then expresses itself always in the same way, and since international law naturally regulates relations among rational subjects, a certain embryonic international law must have arisen among ancient peoples. From this, however, to affirm that international law was already formed at that time is a long way off. The few examples adduced to support the thesis have limited value. The laws of Manu, in which some prescriptions appear regarding prisoners taken in war, had a scope limited to certain peoples of India bound by racial community. The same must be said of the conventions of Hellenic peoples and the Amphictyonic leagues, which had as their object the citizens of the Greek city, not other peoples, considered as barbarians and outside every law. The attitude of the Romans was no different, as attested by the fragment of the Twelve Tables: *Adversus hostem aeterna auctoritas esto*. The *jus fetiale*, rather than international law, was a religious formality aimed at securing the favor of the gods for one’s own arms; the priest declared *bellum iustum* without regard to any juridical principle.

In Greco-Roman antiquity, although some general rules existed, such as the sanctity of envoys and of the word given, a true international law did not arise. Its appearance, instead, begins with the expansion of the Christian idea, which propagated the universal concepts of the brotherhood of all men and of their equal dignity, drew peoples closer together, breaking down ethnic barriers, moralized conceptions of power and the use of force, and prepared the ground for the recognition of the equality of all peoples and of their natural autonomy—indispensable presuppositions for the rise of international law. In Christian society, in fact, rules and institutions began to take hold, particularly regarding the conduct of war, such as, for example, truces, the inviolability of ambassadors, arbitration, the treatment of prisoners, and the justification of conflicts—principles substantially identical to those in force today. Proof of this origin is the fact that the first theorists who concerned themselves with systematizing international law emerged from the Christian community. St. Augustine alludes to the principles of just war; St. Thomas systematizes them; Vitoria, Suárez, and Soto develop them extensively, laying the foundations of the modern science of international law long before the famous Peace of Westphalia. Consequently, the opinion that traces its birth to this date must be considered historically unfounded, according to the findings of more recent research. It is true only that from the Peace of Westphalia states increasingly took on the consciousness of their autonomy and equality, and the scientific elaboration of international law progressed, acquiring greater systematization.

III. Division

International law is usually divided, first of all, into natural and positive. Natural law is that whose source is human nature and the essential constitution of the subjects of the international community, and it consists of those norms and general principles of justice dictated by moral conscience. Positive law is that whose source is the will of the same subjects, and it includes both the norms deriving from that will, recognized and accepted, and the norms that supplement and regulate contingent relations. It is universal if it extends to all subjects of the community, and particular if it concerns only a certain number of them. It is called public if it regulates their external relations as subjects of the international community, private if it serves to resolve issues arising from the variety of laws in force among the different subjects; conventional when its source lies in agreements and conventions, tacit when it is deduced from the constant usage of states. Another long-standing division is that between international law of peace, which includes the ordinary norms in force during periods of peaceful relations, and international law of war, which regulates the conduct of states during periods of hostilities.

Not all the distinctions mentioned are equally accepted by contemporary doctrine. The first division between natural law, also called rational or objective, and positive law is today rejected by most jurists, who have adopted the dogma of the positivist school, which recognizes as the source of law only the will of states and maintains the equation between law and positive law, attributing to natural law, at most, the character of a moral norm or an abstract demand of justice. The other distinction between public and private law is contested by not a few, inasmuch as they consider the private to be a part of the general theory of conflict of laws. It nonetheless retains its importance, at least to highlight that true international law is public law.

Public international law, of which we treat here, may be defined as the complex of juridical norms that regulate the conduct of the subjects of the international community. The definition requires a brief clarification to bring its terms into focus. It is affirmed that international law is a complex of juridical norms to exclude the opinion of those who consider it either a law in the making, or imperfect, or an abstract moral rule. It is added that such norms are intended to regulate the conduct of the subjects of the international community, first because it is essential to international law to produce a categorical obligation in the subject, which must regulate itself according to its dictates, and second to emphasize that the subjects to which it refers are not only states, according to an opinion now almost abandoned, although states are the principal subjects.

IV. Existence

The existence of international law is denied by some currents of thought. Some of these, with a political slant, which configure relations among states as relations of pure power, regulated only by force, necessarily exclude the existence of juridical norms. Others, instead, rest on a theoretical foundation. Of these, some start from a false concept of law, defined by them as a command backed by coercion, and since in the international community there exists no ruling will nor coercive apparatus, they conclude that such law is not true law. Others rely on an equally false concept of sovereignty, conceived as an absolute and unlimited power, to which no external limit, such as law, can be assigned.

Against these denials stands the simple argument that wherever there exists a society, there necessarily exists law: *ubi societas ibi ius*. That an international society exists is an incontrovertible truth, both philosophically and historically. The objective study of human nature reveals in it the presence of a stimulus of solidarity, which effectively moves man to seek the company of his fellows in order to initiate a stable communion of life. This stimulus is activated by two causes: from

Affective tendency, which moves man to expand toward other beings, arises from the congenital insufficiencies of his nature, which is incapable of achieving all the ends of life by its own strength alone. The instinct for sociality, moved by the aforementioned causes, is realized in various degrees: first in the family, then in the tribe, in the nation, and in the State—the broadest organism that can best fill human insufficiencies. Yet even the State is not sufficient unto itself: in order to achieve the end of civilization in favor of the human person, it must be integrated by the collaboration of others, entering into communion of life with other political aggregates. Under the impulse of solidarity, there arises then a society of States, the international society, which, like the family and other social formations, has a natural foundation.

History confirms the philosophical argument. States have never lived in isolation, but in all ages, though to varying degrees, they have been bound by manifold relations. Today, moreover, their union is rendered even more evident by the ease of communications, which have shortened distances, making the world morally small, and by technical progress, which renders them ever more interdependent than they were in the past. The existence of an international society is, therefore, an undeniable fact, and consequently the existence of a true international law is likewise an undeniable fact. Objections to the contrary, hinted at above, have no force, since the most serious ones stem from the false notion that law is essentially a command backed by coercion. Law, rather, is a norm that dictates a categorical ought-to-be, which cannot proceed from the same will called to observe it: coercion or enforceability does not belong to its essence but is an aid to its greater efficacy, presupposing the norm already existing and operative in the subject’s conscience.

V. SOURCE

Once the existence of international law is established, questions arise concerning its nature and its source, which are intimately connected and may be considered as one. On this point, doctrine divides into three currents. The most numerous holds that the sole source of international law is the autonomous will of States. A more recent view maintains that not all international law is voluntary, but that within the international society there exist immanent institutional principles which are determined with the very formation of society and impose themselves upon the will of States, since every society is born with a legal order with which it is identified: this is the institutionalist theory. Catholic doctrine rejects the first and comes close to the second.

It maintains the existence of a twofold source, one natural and the other voluntary. The first resides proximately in human nature itself and in the social aggregate, and from it emanate the fundamental norms of justice that regulate human conduct in its multifarious social relations, even on the international plane. There exists, that is, an objective and rational order that posits itself by its own intrinsic value, deriving from the intelligence and will of the Supreme Being, upon which it depends in its design and realization, and which therefore presents itself to the will of States as an order to be accepted in an absolute manner. This is natural law. The second source resides in the free will of States, through conventions or treaties, which either give positive form to natural law or determine and integrate it when it is expressed vaguely or leaves the relationship without norm.

Catholic doctrine thus approaches the institutionalist theory, inasmuch as it, like that theory, admits the existence of principles immanent to international society, excluding the voluntarist thesis; yet it departs from it inasmuch as, in its systematization, it traces law back to the transcendent source of all law, does not accept the equation between legal order and society, and consequently rejects the sociological and ultimately positivist explanation of international law, from which the institutionalist theory does not free itself. The rationality of its position emerges from the facts duly analyzed. It is an undeniable fact that every being carries with it, connected to its nature, certain appropriate laws by which it is guided in the exercise of its activity. These are the laws that science investigates and establishes through the study of nature. If this is the condition of all beings, neither can man make an exception, nor does he, since in his nature too are implanted laws of his operation, which, in keeping with his perfection as a rational being, take the form of moral precepts that, while leaving him free in choice, dictate a duty to him.

Within the range of such natural and rational laws are included those that regulate social activity toward equals, which take on a particular form so as not to violate the equality of the subjects and therefore prescribe a behavior ad aequalitatem, which is the specific hallmark of the norm of justice or of law. There thus exists an order of natural justice that extends to the State and to the international society, both effects of human nature and permeated by the perfection of their cause, both real entities and therefore bearers of immanent principles of action like man, by which their relations are regulated. Once this is posited, the nature of international law becomes very clear: it is natural law in its fundamental precepts, positive in the integrations and determinations arising from the will of States.

VI. OBLIGATORINESS

Connected with the question just resolved is the other concerning the foundation of the obligatoriness of international law, to which legal positivism has proposed various solutions that, however, do not satisfy reason nor preserve law. It has been argued, on the basis of Jellinek’s theory, that international law becomes a binding norm through an act of the will of States themselves, which, in creating law, impose a limit upon themselves, an autolimitation. It has not been difficult, however, to see that an autolimitation imposed by a will essentially free and remaining such after the creation of the legal norm is not an effective bond, a true obligation, since that will may dissolve it by a contrary act, which in turn will itself be law. No one can be a legislator unto himself.

To overcome this difficulty, Triepel imagined the existence of a collective will, resulting from the conjunction of individual sovereign wills, from which international law would proceed and by which it would impose itself upon the wills below. This expedient, however, does not resolve the problem, since the superior will from which law would proceed proves to be a fiction, there being no will without a substantially one subject, and such is only man. Moreover, the theory clearly derives from natural-law contractualism, transferring its terms to the international society and imagining the formation of a general will.

Leaving aside the sparse current that has sought to ground the obligatoriness of international law in the will of the great powers—clearly antijuridical, since it makes force the criterion of relations among States—a special mention must be made of the solution proposed by Kelsen and developed by Verdross. According to these authors, law unfolds in a spiral, so that the validity of lower orders depends on higher ones. The order at the summit of the hierarchical scale would be the international order, and this in turn would have as its hook, to which the entire spiral is attached in descending order, the principle pacta sunt

The principles *servanda*, *indimostrabile*, *metagjuridico* and to be accepted as an axiom must be observed. The undoubtedly ingenious construction collapses at the touch of criticism. The most objective theory of the plurality of autonomous legal systems opposes, first and foremost, the imagined unity of the Vienna school with decisive success. A question of ecclesiastical law (*diritto ecclesiastico*) cannot consistently be resolved by appealing to a *metagjuridico* axiom, moreover one that is unprovable, nor can the norm *pacta sunt servanda* serve as the foundation of all international law, which is not solely of conventional origin. Finally, it does not present itself as the apex of the spiral of law, since it postulates another, superior one, to distinguish agreements that must be observed from those that cannot and should not be observed, such as, for example, an immoral pact.

Closer to the truth is the institutional theory of Romano, mentioned above. Catholic doctrine brilliantly overcomes the difficulty left unresolved by positivist legal doctrine. Once the existence of natural law is admitted—an order of objective and rational justice that imposes itself by its own force upon the will of States—the foundation of international law is found in it, whether it assumes, through a receptive act, the norms of the natural order, or whether this order is supplemented by positive laws, which have binding force insofar as they do not oppose the more general demands of justice. In other words, even international law requires a higher criterion of evaluation to distinguish unjust norms from just ones. This criterion cannot be the will of States, for in that case law would be abandoned to the caprice of the most unrestrained subjectivism; it must therefore be found outside of it, in an order of justice beyond its arbitrary power. Upon this order of justice, immanent in human nature, in the State, and in international society, and at the same time transcendent because it derives from the will of the Supreme Being, rests securely all law, including international law.

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VIII. ECCLESIASTICAL LAW

I. DEFINITION

The term *diritto ecclesiastico* was originally used as a synonym for canon law; and even now it is often employed in this sense, especially by ecclesiastical writers and generally by those writing in Latin. Indeed, even in the *Codex Iuris Canonici* (*CIC*) the term is used in this sense (cf. cann. 27 § 1, 727 § 2, 1513 § 1), sometimes to designate human canon law in contrast to divine law (cf. cann. 1043, 1133 § 2, 1139 § 1, 1926, 2364). Others, however, understand—or rather understood—by *diritto ecclesiastico* divine and human canon law, reserving the term *diritto canonico* in the strict sense only for that of human origin. Still others contrast *diritto ecclesiastico*, as encompassing all the law of the Church, with *diritto canonico*, which would be only that contained in the *CIC*.

Since the 17th century, however, Protestant writers and then those with jurisdictionalist tendencies have used the term *diritto ecclesiastico* to designate the complex of legal norms issued by the State in ecclesiastical matters; and this usage has become increasingly common in modern times, especially in Italy, where, however, after the Concordat, some consider the preferable designation to be *diritto concordatario*, an expression which others use to indicate the general theory of concordats or the comparative study of concordats. Outside Italy, where the science of State law in ecclesiastical matters has never reached the development it has in Italy, the terminology is more uncertain. Thus, treatises on this subject in France are sometimes designated as treatises on *droit public ecclesiastique*, and sometimes as treatises on *droit ecclesiastique*; in Germany the subject is generally indicated as *Staatskirchenrecht*; in Portuguese-speaking countries as *Direito civil-eclesiástico*, an expression also used in Belgium (*droit civil-eclésiastique*); and finally, in Italian-speaking Switzerland, the same sense is conveyed by the term *diritto ecclesiastico*. Writers in Latin employ various devices to avoid confusing this subject with canon law, speaking instead of *usus civile-ecclesiasticum*, or *usus civile de re ecclesiastica*, or *usus ecclesiasticum italicum*, *gallicum*, *germanicum*, etc.

*Diritto ecclesiastico* is therefore, according to the most common usage of this expression (at least now, and in Italy), the complex of norms of the State’s legal system in matters which the State itself considers to have religious ends (in a narrower sense, this is understood only with reference to the Catholic religion); in a broader sense, it also includes norms in matters that, although religious, are not so considered by the State (e.g., norms on marriage, where civil marriage prevails).

II. SOURCES

It should be noted that this complex of norms is partly constituted by norms issued and formed directly by the State; but it may also be partly constituted by norms not formulated directly by the State, but rather by reference to the legal system of the Church. Thus, even those norms of the Church to which the State grants legal force within its own system form part of the State’s *diritto ecclesiastico*, just as, conversely, State norms canonized by the Church form part of canon law.

These sources can be grouped into three main categories:
a) norms of bilateral origin, i.e., constituting provisions of an agreement between the Holy See and the State, and incorporated into the internal legal system of the latter by the law that gives execution to the agreement itself;
b) norms of unilateral State origin, i.e., those formulated directly by the State to regulate ecclesiastical matters; many of these, however, are themselves based on concordatory provisions or are in fact established by agreement between the Holy See and the State (cf., for Italy, art. 45, final paragraph, of the Concordat);
c) norms of unilateral ecclesiastical origin, i.e., those juridical norms born within the legal system of the Church and adopted and enforced by the State as norms of its own system through a process that can be considered as receptive reference.

In Italy, the principal sources of *diritto ecclesiastico* are constituted by the Lateran Pacts (v.), by the various legislative and regulatory norms issued by the State for their implementation and execution, and by certain provisions of the Constitution (cf. especially arts. 7, 8, 19 and 20). V. ITALIA, condizione giuridica della Chiesa.

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VIII. MISSIONARY LAW

By missionary law is understood that law which has force both in missionary territories and in those outside missionary territories, and which in some way pertains to missionaries and missions as such. It is divided into internal or canonical missionary law, external or civil missionary law, and mixed or concordatory missionary law.

Internal or canonical missionary law, considered objectively, is the sum of laws governing missionary work. It is called canonical because it is proper to the Church and includes not only proper laws but also less solemn dispositions and norms that derive either from divine law or from ecclesiastical law. It pertains not only to persons who are in mission territories but also to those outside them, and not only to territories of evangelization but also, indirectly, to those of common life, insofar as they contain institutes and seminaries subject to the Propaganda Fide that are located there.

External or civil missionary law derives its origin from civil states and is either international or national. The former comprises treaties and international conventions that directly or indirectly concern missions, as well as general norms and often particular treaties between nations. The latter is that law which in any way concerns missions and missionaries and is issued by a state. This law is called metropolitan when it pertains to the mother country; it is called colonial when it refers to colonies. Both types can exist in missionary territories.

Mixed or concordatory missionary law is that established through a bilateral agreement or convention between ecclesiastical and civil authority.

In addition to the concordats with certain South American states, such as Colombia, mention should also be made of the conventions between the Holy See and Portugal regarding India and Macao (1928), the diocese of Meliapore (1929), and the missionary agreement with Portugal (1940), as well as the agreement with France relating to liturgical honors for French representatives (1926).

In general, missionary law has not had a logical development but presents adaptations and refinements more in response to difficulties to be overcome than to doctrinal principles. It is a simple and expedient law, not rigid or absolute, but flexible and varied, which pays less attention to the names of the juridical institutes created than to their utility. One of its characteristics derives from the fact that missions are entrusted, in the vast majority of cases, to religious institutes. Moreover, it comprises many faculties, privileges, and indults, granted mostly in derogation of the norms of general canonical law, with the aim of facilitating missionary work. Thus, missionary law does not place the clergy and faithful of the newly founded Churches in a position of inferiority but seeks to accelerate the work of Christianizing the local environment.

Before the publication of Gratian’s Decree (c. 1140), elements of missionary law can already be discerned, which multiplied in the following centuries, especially after the twelfth century and in particular after the foundation of the Congregation for the Propagation of the Faith (Propaganda Fide). During the Vatican Council there was an attempt to codify missionary law, which was not carried out due to the sudden interruption of the council itself. The Code of Canon Law contains several canons concerning missions, but the prescriptions contained therein do not exhaust the vast subject at hand. To have, therefore, the complete system of missionary law, one must have recourse not only to the canons of canonical law but also to the manifold dispositions issued especially by the Propaganda Fide, some of which have not been made public and others are contained in common and particular collections.

Among these, mention should be made of the general bullaria and those of the various religious institutes and of the Portuguese and Spanish Patronato. Special mention is due to the Pontifical Bullarium of the S.C.D.P.F., Propaganda Fide (v.), the Collectanea first published in Paris and then in Hong Kong (1905) by the Paris Foreign Missions Society, the Collectanea of the Propaganda Fide itself, and, most recently, the Sylloge.

IX. MISSIONARY LAW AMONG PRIMITIVE PEOPLES

I. General considerations

Among primitive peoples, as among peoples of higher civilization, e.g., the Chinese, law is founded on morality and cannot be understood apart from morality; and especially in the determination of penalties, justice and the edification of the people are sought. Since the exigencies of daily communal life, moral and religious ideals inspire and enliven the reciprocal relations among members of the community, the laws of the family, clan, and tribe, as among historical peoples, so also among primitive peoples there is no juridical stagnation; rather, law has its own characteristic life, as does the civilization in which it is embedded. Thus, for example, the Miaotse in Southeast Asia, at the beginning of each agricultural season, hold a solemn assembly in which they establish norms for the community so that past contentious cases are not repeated; among the Chagga in East Africa, tradition attests that formerly the fine for a woman’s adultery was two goats (v. infra).

The law of primitive peoples also exerts influence on the written law of the so-called historical peoples of high culture, for these peoples naturally trace their existence back to a time when they did not yet have the use of writing; these influences are, however, more abundant in their customary law, in which, as in folklore, three strata must be distinguished. The first is an upper stratum, which is the product of higher culture, though it also receives individual outgrowths from the deeper strata; the second is a middle stratum, consisting of by-products of the upper stratum and products of ancient primitive culture; the third is the lower stratum, consisting solely of elements from the prehistoric period, i.e., before history based on written documents.

Since primitive peoples do not know the use of writing, their law, like every other manifestation of their culture, is the object of ethnology, which Post called ethnological jurisprudence, but which later was ordinarily and more precisely called legal ethnology. Starting from the comparative study of the legal order existing at a given time, generally the present one (the one ordinarily accessible to us) among a given people, this discipline, by broadening the temporal perspective, arrives at reconstructing the history of the law of that people; and then, by broadening the spatial or geographical perspective, it arrives at constructing a universal history of law, always showing the concrete causality of individual phenomena. Its ideal end is reached when all legal phenomena observable in the history of human development are brought together into a system, achieved by the widest possible extension of the functions of space, time, and causality. Thus, by its very nature, it tends to produce a general history of law and cannot, in itself, be a philosophy of the history of law, nor a general theory of the evolution of law, nor a theoretical or explanatory science, nor can it reconstruct the elementary forms of law.

The search for and study of the general laws and causes that would govern the evolution of human law was the goal proposed by the evolutionist ethnologists, who considered ethnology simply as a natural science of social life. Such were the views of Bachofen, A. H. Post, Kohler, Bastian, Morgan, McLennan, Andrée, Giraud-Teulon, Steinmetz, Dargun, Max Schmidt, Mazzarella, and others. Among legal ethnologists, the most prominent figure is A. H. Post (1839–95), who is considered the founder of legal ethnology, having been the first to formulate its problems in a broad and systematic way. He was a typical evolutionist ethnologist. Under the influence of positivist sociology, the historical school of law, the phenomenalist philosophy of Kant and Schopenhauer, and especially Darwin’s theory of evolution, he held a mechanistic conception of human history, viewing all humanity as a unitary mass with an equal tendency toward development, in which the individual counts for nothing, since, consciously or not, he cannot influence it with his will, evolution being a fatalistic phenomenon that unfolds over centuries and millennia. All peoples would have passed through the same stages of evolution: man, a pure animal living in an animal society, knows no marital bonds; thus the history of the human family begins with a transition from primordial promiscuity to group marriage, then to marriage by capture, and then to marriage by purchase; from polygamy one would arrive at monogamy; from matriarchy (when children knew only their mother) to patriarchy; while human society, first formed along clan lines, would then be transformed into a territorial type, then into a feudal type, and finally into a corporate type.

The parallelism observed in the legal institutions of the most diverse peoples at the most diverse times was explained by A. Bastian, given the uniform psychic nature of all men, by elementary thought and ethnic thought. He maintained the polygenesis of civilization, which, due to the uniform nature of man, evolves everywhere in the same direction (elementary thought), a direction that is only slightly deviated by geographical, climatic, and economic conditions (ethnic thought). Bastian’s theory, like evolutionism, was dominated by the idea that everything is subject to natural laws, whether in the world of natural phenomena or in that of social, legal, and in general spiritual phenomena.

A deeper investigation of ethnological problems, achieved both by applying the historical method in ethnology and by more extensive and precise ethnographic documentation, has revealed the groundlessness of all these evolutionist positions, which ultimately arose from a priori philosophical principles, and has led to the recognition of many and varied types of civilization, demonstrating their reciprocal and genetic relationships and the historical individuality of each primitive people. Since each type of civilization corresponds to a characteristic legal order or system, there are as many legal systems as there are types of human civilization in the world, which depend on differences in social organization, economy, the structure and extent of public power, the relations among different social groups within the framework of authority, the stability or instability of settlement, the development of technology, arts, and crafts, the form of property of the individual, the family, the tribe, and the clan, trade and communications, and conceptions of life and the world.

II. LEGAL SYSTEMS AND CULTURAL FORMS

According to the results of modern ethnology, eight different legal systems can now be distinguished, corresponding to eight characteristic forms of civilization, which are also genetically related, at least with a high degree of probability. Without being able to discuss all of them here, brief notes are given on four of them, which are fundamental in relation to the others but arose independently from a single common type.

1. The ethnologically oldest legal order is that of the so-called gathering peoples. Among these, men and women, sons and daughters enjoy the same legal position, without any distinction. Daily work is equally divided between the two sexes. Marriage is monogamous and freely contracted by the young man and woman according to exogamy. The modalities of marriage and wedding rites vary widely among different gathering peoples.

2. Peoples who live by raising large herds of livestock form a characteristic type of civilization called patriarchal nomadic pastoralism. Since married sons remain in the family under the authority of the father, the extended family develops, consisting of many generations of blood relatives and their women, as long as the memory of the patriarchal ancestor endures, or up to five or nine generations, after which it divides, as among the Manchus, Tungus, and Yakuts. The father’s authority is very great, including even the right of life and death over members of the family, though this is often mitigated in later development by the assembly of elders. Since the authority and belonging of the sons is a matter of paternal right, patriarchy results. The initiation of youth falls into disuse at a later stage of development. Marriage is exogamous.

Tribal authority handles legal and economic matters common to the group, such as the assignment of pastures necessary to each clan, regulates disputes, manages relations with other tribes, decides on vengeance or fines for homicide, and especially organizes defense against enemy tribes. But generally the state, in the form of the tribe, is, especially in the early stages of this civilization, almost inactive, because the extended family manages everything independently of the state.

Monotheistic religion, with its characteristic belief in the Sky God, imposes many observances and rites. Particular importance is given to sacrifices to God at the seasons of the year: in spring, when the herds give birth; at the end of summer, when they return from the mountains; and at the winter and summer solstices. Two forms of shamanism are especially prominent.

3. The law in the civilization of totemists, in contrast to that of nomadic pastoralists, reflects a high degree of state development with multiple social organizations, common craft and economic activities, and a developed sense of art and commerce, but at the expense of the family and the spiritual values of the individual.

The tribes and clans of which it is composed have as their common ancestor the totem, ordinarily an animal but also a plant or an object, in relation to which all the descendants are bound by many taboos (prohibitions). It is a characteristic belief of totemism, which is not of a religious nature but social, with manifold social and economic effects, and is to be distinguished from sex totemism, individual totemism, and nagualism. There is, therefore, a double kinship, natural and totemic, of which only the latter serves as a rule of exogamy when marriage is contracted. Each clan has its own totem, the name of which, together with that of the tribe and the personal name, serves to distinguish each of its members. The totem, being a distinctive sign like a coat of arms or emblem, is affixed to houses, on weapons, and on the body.

When totemist civilization intersects with matriarchal civilization, a much more complicated social organization develops, according to the predominance of one or the other, with the formation of four or eight totemic clans and exogamous fraternities and sub-fraternities and maternal or paternal descent. Marriage is not arranged directly by the interested parties, and the choice of a spouse is limited to one’s own class according to the law of exogamy and may be determined even in childhood or before birth, by choosing the future mother-in-law. Sororal polygamy is permitted, provided one can support multiple wives. There are no marriage ceremonies. It is permitted to lend one’s wife to another man, provided he belongs to the class of brothers. The legal status of women is inferior to that of men.

In totemism the concept and cult of God is obscured by the great development of magic and superstitions and of vain beliefs and practices; many rites and festivals are common and tribal; later, the cult of the dead is also practiced.

4. The first to reveal matriarchate, in which in the family and tribe hereditary descent is matrilineal rather than patrilineal, was the Swiss Bachofen, jurist and philologist, with his work of the same title, thus specified: An investigation into gynaecocracy in the ancient world according to its juridical and religious nature (1861). He began from the Lycians of Asia Minor and from his investigation inferred that all peoples had passed through matriarchate; today, however, it is demonstrated that this is not the case, indeed this type of civilization is better characterized by the name of matriarchal exogamous agricultural civilization of small farmers (they use only the hoe and not the plough). The woman, the first inventor of agriculture, at least very probably, became the personal owner of the cultivated field, its fruits, the house, and the means of work. The right of ownership was inherited by daughters and not by sons, and thus it is still taken in many peoples. In one form of matriarchate, which would be the first phase of development, the woman does not go into the family of the groom after marriage; her husband visits her from time to time, becoming like a guest in her family. Therefore, the brother or, failing him, the wife’s uncle acquires, as administrator of the sister, special rights and duties with respect to the nephews, to whom he acts almost as a father and head of the family, so much so that in a fourth phase they may inherit from him.

In another form of matriarchate, which would be the second phase of development, the husband goes to live with the wife and becomes a member of her family and tribe. This is the marriage called in Ceylon bina, which does not admit secondary wives or concubines, but is monogamous and no payment is made for the bride.

In another form of matriarchate, which would be the third phase of development, the young man, before having a wife, must serve in the house of the parents-in-law for a fixed time, sometimes up to four years, as is done among the Itelmen of north-eastern Asia. This is the so-called service marriage. In another form of matriarchate, which would be the fourth phase of development, the groom instead of working in the house of the parents-in-law offers them gifts to obtain the bride, a marriage therefore called by purchase. The woman, after marriage, goes into the house and tribe of the husband, but she and her children always belong to her tribe; succession remains matrilineal; the children inherit not from the father but from the maternal uncle, who is also the guarantor of their rights as well as those of their mother, his sister.

To facts occurring before its promulgation, it enunciates the fundamental principle of the non-retroactivity of laws in the following terms: Leges respiciunt futura, non praeterita, nisi nominatim in eis de praeteritis caveatur.

This principle does not resolve the problem of the efficacy of the new norm upon the relationship which, though governed by the old law, continues to exist under the new discipline. To safeguard the d. q., that is, those rights for which, before the entry into force of the new law, the requirements for acquisition which the old law demanded have been fulfilled, can. 4 provides: «Iura aliis quesita... integra manent, nisi huius Codicis canonibus expresse revocantur». Thus, the canon law legislator, among the many theories proposed to resolve the aforementioned problem, has adopted the theory of d. q.

Although it has been doubted whether the norm regarding respect for d. q., formulated in can. 4, contains a principle different and in itself distinct from that of the non-retroactivity of the law of which can. 10 speaks, it seems certain to us that the respect for d. q., established in can. 4, must be considered as an application of the general principle of the non-retroactivity of the law. It has been noted that the only difference between can. 4 and can. 10 consists in this: whereas in the latter the principle of the non-retroactivity of the law is expressed with an objective formula, in the former the same principle has a subjective formulation, in the sense that the efficacy of the new law with respect to the subjective juridical condition of certain determined subjects at the moment of its entry into force is established (G. Michiels, op. cit. in bibl., p. 69 ff.).

Here one must consider the principle of the non-retroactivity of the law from the aspect of subjective right, that is, according to the formulation contained in can. 4. The principle of the integrity of d. q., established by this canon, postulates that those who had derived their rights not immediately from the general anterior laws regulating capacity, status, the relations of persons and ecclesiastical institutions, but had individually acquired and preserved them by virtue of an act or fact occurring under the empire of that law, should retain their own rights, even though the CIC has in general abolished them for the future.

But these must be true d. q., that is, rights which had already entered into the patrimony of the subject under the empire of the old law, even though the occasion to assert and exercise them presents itself under the new. It is not always possible or easy to distinguish true rights from simple expectations, which are nothing other than hopes of rights. But this difficulty concerns the practical application of the theory of d. q., since, from the theoretical point of view, the distinction between d. q. and expectation is not, as some have thought (cf. R. Naz, Droits acquis, in DDC, XXIV, col. 1514), a didactic expedient useful only to determine the notion of d. q. nor is it so artificial and unfounded, as it has seemed to those who have maintained that it is impossible to give satisfactory definitions of both d. q. and expectation and who have held that neither category presents a single characteristic peculiar to it and differentiating II.
When discussing *d. q.* (acquired rights), it must be borne in mind that the right remains intact in its conceptual and practical unity, whereas its content of powers and faculties does not, since the former, once acquired, is never lost, while the latter—and the manner of exercising the right itself—may be modified by new legislation. For example, once the status of spouse is acquired, subsequent law cannot deprive a person of it, but it may alter the various rights comprised within that status (A. Trabucchi, *Istituzioni di diritto civile*, Padua 1948, pp. 20 ff.).

Although the principle that facts and their effects are governed by the law in force at the time they occur does not coincide with the principle that the law respects *d. q.*, the former principle nonetheless has as a consequence—at least in many cases—the respect of these rights. For if a juridical act performed under the authority of one law has resulted in a person acquiring a subjective right and thus the power to assert it and its effects, since subsequent law does not regulate that act or its past or future effects, it follows that the subjective right is not extinguished and the person may assert the right and its effects even after the new law enters into force. Thus, for instance, a law altering the requirements for ordination or the acquisition of an office would respect the right acquired by the ordained to exercise the Order and by the incumbent to perform the acts of office; a law abolishing acquisitive prescription would respect the right of one who had previously acquired it by completing the prescription; a law modifying election procedures would respect the right of one who had been elected and had accepted the election (Falco, op. cit. in bibliography, p. 98).

If the juridical act necessary for acquiring a right depends upon the completion, within a fixed period, of a series of acts that are independent of one another, and some of these acts were performed at the time the law changed, the acts already completed retain the validity they had under the law in force when they were performed, while the acts yet to be performed are subject to the provisions of the new law. Conversely, if the juridical act necessary for acquiring a right depends upon the completion of acts that stand in a cause-and-effect relationship, and some of these acts were performed at the time the law changed, the interested party has an *d. q.* to perform the subsequent acts according to the old law, with the exception of the form of the acts, which is governed by the new law.

It goes without saying that if the juridical act from which an *d. q.* derives depends upon a title of a contractual nature, the effects of the contract remain normally governed by the conditions stipulated therein, even if changes occur in the legislation relating to II.
Since an *d. q.* is distinct from its consequences, these are governed by the law in force at the time they occur. Thus, for example, in accordance with a response of 23 June 1918 from the commission interpreting the *Codex Iuris Canonici*, the judicial action arising from betrothal concluded before the *CIC* entered into force may no longer be exercised after its promulgation, since the *CIC* eliminated that action.

With regard to the form of acts, the law in force at the time the acts are performed applies, by virtue of the principle *tempus regit actum*; the status and capacity of persons must be determined according to the law in force at the time the capacity is exercised.

In matters concerning rescripts, reference is made to canon 46, which provides that rescripts, even those granted *motu proprio*... "against a right already acquired by another," are not sustained unless an express derogatory clause is appended to the rescript. In matters concerning vows and promissory oaths, it must be borne in mind that dispensation from a vow or oath that would prejudice an *d. q.* is reserved to the Holy See (canons 1313, 1320).

While with regard to rights acquired by virtue of concordats the principle of the integrity of *d. q.* holds without exception, with regard to rights acquired by virtue of other titles—even privileges and indults of the Holy See—the principle does not have absolute force (cf. examples cited by M. Falco, op. cit. in bibliography, pp. 69 ff.).