Law

LAW. – This noun, which can be considered a common heritage in the languages of civilized peoples, derives etymologically in an immediate sense from the Latin dirigere, but is traced further back to Sanskrit roots (rta, rgu) signifying direction, physical (geometric) and moral rectitude, order. Regardless of its Sanskrit origin, it is evident that both the Latin etymology and modern usage clearly point to the complex idea of rectitude and order.

It should also be noted that in Romance languages, the noun "law" has replaced the original ius, of which only the adjectival form ("juridical") has been largely preserved, and around which the ancients had accumulated a rich array of etymological derivations, often disparate and frequently unreliable (from iustitia, the verbs iubere or iurare, and even from the name of Jupiter itself, to which the verb iusare was sometimes linked). Setting aside the problem of etymological truth—a question still difficult even for the most advanced philological science—it is appropriate to observe that those who proposed these derivations saw in law (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 the ancients emphasized the imperative and religious character of law, whereas today its ethical rectitude has gained clearer prominence. The religious connection of the Latin ius is further attested by another term, fas, which always retained a distinctly sacred flavor and accompanied ius, now as its synonym, now as its parallel or analogue.

OUTLINE:

I. General Notions

II. Natural Law 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.

### I. GENERAL NOTIONS.
### I. GENERAL NOTIONS.

#### I. THE CONCEPT.

The frequent use of the term by jurists and non-jurists alike has led to such a variety and imprecision of meanings that it becomes difficult to bring order and clarity to this tangled skein. Today, the most common senses of the word "law" (diritto) are two: "law" and "faculty." The first is called objective; the second, subjective. In the objective sense, law is thus a statute or a body of statutes. This indicates its imperative nature. However, not every statute is law: to be such, it must possess certain characteristics that constitute its juridicity. Not all authors agree on the enumeration of these characteristics. Certainly, the characteristic of statehood, required by many positivists—almost as if only a statute issued by the State could be juridical—must be excluded; the characteristic of politicality also seems to be rejected, insofar as it is claimed that only the political society (that is, as it is sometimes explained, the so-called perfect society) is the creator and bearer of law. Instead, the opinion, now widely held, that requires the characteristic of sociality can be accepted. This affirms that, to be juridical, the statute must be social, that is, it must regulate interpersonal relationships, thereby excluding from the realm of law all norms or statutes that regulate human life in its individual zones and aspects, while including the laws of any society, even if non-state and non-perfect. The social characteristic necessarily entails, or presupposes, two other characteristics: the externality and alterity of the matter that is the object of juridical law. That is, it requires that what is regulated by law be an external human act and have importance or value for others, that is, for human subjects other than the agent (or the one obliged to act). Related to alterity is bilaterality, whereby those others for whom the observance of the law is of interest can demand its execution. It should be noted that these others are not necessarily determined individuals but can also be society as a whole. Finally, the characteristic of coercibility must be recalled, by virtue of which the execution of juridical law is made possible even when the obliged subject refuses to comply.

In the subjective sense, law is a faculty. The conception of law as a physical faculty must certainly be rejected—a savage doctrine that abandons the juridical world to the dark play of brute forces and ultimately annihilates all human value. The subjective law must instead be conceived as a moral faculty, the object of which possesses the aforementioned characteristics of juridicity. 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 touches the subject, who is obliged not to use his faculty except in ways permitted by ethical norms; the third is directed toward others and imposes upon them the duty to yield before the subject’s faculty, by its moral weight alone, even if in the concrete case the bearer of the law does not have at his disposal sufficient physical means to compel their respect.

To the two meanings (law and faculty) that have been called the most frequent today, two others must be added, somewhat less usual but no less important.

Thus, a third meaning emerges, which was customary among the ancient Scholastics, including St. Thomas, who saw in law the just thing, the thing due to another—that is, what today represents the object of juridical law and faculty. In this way, through the reference to justice, the intimate and indissoluble bond of law with morality was affirmed; and by fixing the thing as the primary juridical element, it was immediately evident that the world of law cannot be left to the whim of the legislator or to the insatiable thirst of those who claim faculties, but must be modeled on objective reality, which transcends and dominates both the power of those on high and the caprice of those below.

A fourth meaning tends to assert itself today, that of order, or better, of ordinamento (legal system), whereby law comes to be conceived in a more complex manner than in the three meanings already explained. This could be called the integral concept, because 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 man and the things around which his action unfolds, the individual and the social body in which the life of law is realized.

Wishing to define law from this last point of view, one would say that it is the coercible ordering of human actions in matters of justice. The emphasis on coercibility seems sufficient to recall all the other characteristics of law listed above. The mention of justice serves to define its field of action.
II. LAW AND MORALITY. – Much has been written and debated (especially after Kant) on the relationship between these two orders. From what has been said above, it is clear that law has necessary ties with morality. These appear evident to anyone who considers that morality is the universal form or norm of human activity; thus, every norm that claims to regulate this same activity comes to share a necessary commonality of subject matter with morality, and therefore, through this, indestructible points of contact. In the juridical world, the situation is further complicated by the fact that both morality and law are imperative, and law is also coercive. This means that if the two orders were to disagree on the object of their commands, the subject would find themselves in a tragic situation, with no possible way out. It is therefore theoretically false and practically harmful any doctrine that, like the extreme forms of positivism, digs unbridgeable chasms between the two orders and preaches their mutual independence.

However, they must not be confused either. There exist between them indelible differences, both in content and in form.

In terms of content, they differ: a) in the breadth of their subject matter: morality governs the whole of human life, in its four classical provinces, which bear the names prudence, justice, fortitude, and temperance; whereas law is limited to the field of justice. It should be remembered, however, that this field is not as narrow or as closed as it might appear at first glance, because—without wishing to overly complicate matters with the formal distinction of the four provinces—it is easy to observe that, in particular historical situations, many acts we are accustomed to attribute to the other virtues may take on characteristics of justice and thus become suitable matter for juridical ordering. The name of justice, which enters into the definition of law, must therefore be understood in that broad sense it has in the expression "social justice"; b) in the aspect of the subject matter they regulate: morality and law both regard the human act, but from a different point of view. Morality 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 it at its point of arrival or external reference (ad alterum). This shift in perspective imposes particular criteria of evaluation on law: an act may be perfect in its external appearance and in social estimation, even if it is perhaps vitiated in its intimate structure by the impurity of the subject who performs it with hypocrisy; hence the different judgment that may be pronounced on the same act in the tribunal of ethical conscience and in that of juridical ordering.

They also differ in form. It would be mistaken to locate the formal difference in the intrinsic force of the command, as if law contained true imperatives while morality offered only counsels and suggestions, always left to the discretion of the subject. Morality, too, is imperative; indeed, its commands often have, for the ethical conscience, greater force than those of law. Nor would it be accurate to say that morality is the doctrine or domain of duty, while law is the realm of faculties. This view assumes the subjective definition of law to be sufficient, whereas it indicates only one of its elements. It must nevertheless be recognized that morality and law differ: a) in the extrinsic force of their commands, in that juridical ordering is coercible, as has been said, that is, it resorts to physical constraint to obtain what is due, whereas morality shuns such methods, which would be useless to II. The root of this divergence lies in what has been said regarding the different point of view on the subject matter. Morality is oriented toward the interior of the subject, and thus it would serve no purpose to compel a person: no one becomes good by force! Law, instead, being oriented toward the exterior and toward others, can derive benefit even from an act extorted by force. Hence St. Thomas said that law is the just thing, considered, however, in its objective value, which abstracts from the internal dispositions of the acting subject: «etiam non considerato qualiter ab agente fiat» (Sum. Theol., 2ᵃ-2ᵃᵇ, 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 juridical norm; hence law always has, in comparison with morality, a greater heaviness of movement, a necessary cult of formula and letter, which often stifles the spirit; a constant need for pre-established schemes, which fragment between universal principles and concrete facts, making judgment easier but also less exact, less adherent to reality, modeled on artificial types; hence it is rightly acknowledged that morality has the merit of concreteness, while law suffers from the drawback of a necessary abstractness.

III. LAW AND RELIGION

The same affinities and divergences that exist between law and morality also exist between law and religion, insofar as the latter is a moral virtue. However, religion is also a social fact, and in its name particular societies are formed, which establish their own legal systems. The question remains whether the subject matter of such legislation is only that which is common to every society or whether it may also be drawn from strictly religious acts. The difficulty arises from the requirement of full inner adherence to religious practices, without which the external act loses its value. It should be remembered, however, that religion includes acts that, within certain limits, retain a social value for others even if the good inner disposition of the one performing them is lacking. Such is, for example, the administration of a Sacrament, which, for the recipient, retains its full value even if conferred by an unworthy minister who performs the rite solely under the threat of canonical sanctions. Thus, the possibility of a religious legal system is preserved. Nevertheless, since even the acts just mentioned, though effective ex opere operato, require a minimum of will in the agent, the legislation of the religious society

will necessarily impose limits upon itself, unknown to civil society, in the exercise of coercion.

Giuseppe Graneris
IV. PARTITIONS OF LAW — From the time of the Roman jurists, the traditional distinction of all objective law into two great branches has been that of public law and private law (cf. D. 1, 1, 1, 3). This distinction has been founded on criteria that are not always uniform from country to country and from scholar to scholar; yet, even after the critical elaborations to which it has been subjected, the criterion already substantially indicated by the Roman jurists remains fundamental (though no longer exclusive): namely, that public law consists of those norms which directly have as their object and purpose the organization and activity of the State and of other lesser political entities, and thus also the relations between private individuals and these organizations; whereas private law is the body of norms which, having the purpose of directly protecting the interest of individuals (and only indirectly and mediately the interest of society), regulate the relations among individuals.

In recent times, the question has been raised whether, in the legal order of the Church, there exists or not a distinction between public law and private law analogous to that in use in the legal orders of States, or rather in the juridical science having such orders as its object.

The problem is partly reduced to a theoretical question, all the more so since it is difficult to see what practical consequences the classification of a norm in one field rather than the other might have in the legal order of the Church, it being impossible in any case to determine a body of principles valid for public law and not for private law, or vice versa.

However, both doctrinal principles and the positive norms of the CIC (cf. cann. 1586, 1618, 1619 § 2, 1655 § 2, 1923 § 1) suggest that such a distinction should also be considered to exist in canon law (cf. P. Ciprotti, Lezioni di diritto canonico, Padova 1943, pp. 64-67).

In a somewhat narrower sense, the expression public law is used (since the last century) when speaking of ecclesiastical public law, which is defined as the body of norms (largely of divine law) concerning the constitution of the Church and the rights pertaining to it as a perfect society having a supernatural end. It is customarily divided 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, the principles on the juridical position of the Church in its relations with other societies, especially with the State. Cf. A. Ottaviani, Institutiones iuris publici ecclesiastici, 3ᵃ ed., I, Roma 1947, pp. 1-31.

In the law of the State, both public law and private law are further subdivided into various other 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 concerning 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 which is the 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 the distinction is much debated in modern times): civil law, which comprises all norms concerning juridical acts in general, persons, things and real rights, the family, successions mortis causa, and non-commercial obligations; and commercial law, which regulates the juridical relations arising in the exercise of commerce and some others which, due to their connection with commerce or for historical reasons, are included therein.

Pio Ciprotti

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 flashed and imposed itself upon human minds since the most remote ages, but it was particularly emphasized by Christian thought (for a broader presentation of the Christian conception of natural law, V. LEGGE NATURALE). Likewise, from the very beginning, the idea of the law of nature was often associated with that of the divinity, as the source and artificer of nature in general, and more especially of human nature.

The belief in an absolute foundation of law manifests itself, implicitly or explicitly, in all religions. When critical thought awakens, especially in Greece, the possibility of an antithesis between what is just "by nature" (φύσις) and what is just "by law" (νόμος) is conceived, the latter here meaning positive law; and the antithesis sometimes assumes an acute form, in the sense of denying altogether the existence of the first term and admitting only the second: thus, for example, with Archelaus, disciple of Anaxagoras (5th century B.C.), and with greater dialectical developments among the Sophists (5th-4th centuries B.C.), then among the Skeptics, such as Pyrrho and Carneades, etc. But these very negations served as a stimulus for meditated reaffirmations, which in a certain way came to validate the spontaneous manifestations of that first belief: such as, for example, the famous invocation of Sophocles' Antigone (442 B.C.), which, against the unjust order of a tyrant, appealed to the "unwritten and unshakable laws of the gods" (454 ff.). The Sophists' arguments were countered by 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, the distinction between natural justice, which has equal force everywhere, and positive or legal justice, which is variously determined, is particularly emphasized (Eth. Nicom., V, 7 [10], 1; cf. Rhet., I, 13, 2). According to the Stoics, justice is not a mere imposition (θέσις), but a dictate of right reason (ὁρθὸς λόγος), which corresponds to the supreme law of nature and is uniformly inherent in the mind of every man.

The theories of the Stoics, as well as 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, the Roman jurists accepted the fundamental notions of law elaborated by Greek philosophy. These speculative concepts, and particularly those of the Stoic school (which, as is known, also had notable representatives in Rome), in a certain way met with the practical experiences of the Romans themselves, who gave them numerous applications and concrete developments in the entire field of law (cf. on this P. Sokolowski, Die Philosophie im Privatrecht, Halle 1902-1907; P. Barth, Die Stoa, 2ᵃ ed., Stuttgart 1908, p. 194 ff.). Thus, the concept of naturalis ratio, that is, of a rationality that is not proper only to the human intellect but belongs to the order of nature in general, was unanimously admitted: it serves as the basis for juridical institutions and, moreover, as a guide in their progressive development. The definitions that the Roman jurists gave of ius naturale are indeed somewhat varied (Paulus, 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 servan-

The advent of Christianity brought about a great renewal in this matter as well. Through it, the human personality was recognized as a divine and eternal principle, charity was placed as the foundation of the entire moral and juridical order, and the lex naturae was conceived as an emanation of divine will and wisdom. In this sense, the treatises of S. Ambrogio and S. Agostino are particularly noteworthy. However, it was in the work of S. Tommaso that Christian thought found its most organic systematization. In his work, lex aeterna is distinguished from lex naturalis and lex humana. The first is the « ratio divinae sapientiae » that governs the world, knowable in its absoluteness only by God and the blessed, while men can have only an imperfect knowledge of it (Sum. Theol., 1-2ª, q. 91, 1 and 3, q. 93). The lex naturalis, on the other hand, is directly knowable by men through reason, being precisely a participation of the eternal law in the rational creature, according to its own capacity (« lex naturalis nihil aliud est quam participatio legis aeternae in rationali creatura »; « secundum proportionem capacitatis humanae naturae »; ibid., q. 91, 2 and 4, q. 94). Finally, lex humana is a human invention, through which, starting from the principles of natural law, the human mind proceeds to particular applications, « per modum conclusionum » or « per modum determinationis » (ibid., q. 91, 3; q. 93, a. 2). If lex humana goes against its own end, which is the bonum commune, it must nevertheless be obeyed when necessary to avoid greater harm (« propter vitandum scandalum vel turbationem »); however, not if it is contrary to divine precepts (« contra Dei mandatum »), for in such a case, according to the words of the Apostles (Act. 5, 29), « obedire oportet Deo magis quam hominibus » (ibid., q. 96, a. 4; cf. in the same sense the encyclicals Quod Apostolici muneris, of 28 December 1878, and Diuturnum illud, of 29 June 1881). Thus, in its principle, law has God Himself as its author; and the norms emanating from divinity, according to the ways in which they proceed from it, are distinguished into ius divinum naturale and ius divinum positivum (cf. CIC, can. 27; A. Van Hove, Pralegomena, II, Malines 1945, p. 19 ff.). In any case, ius divinum predominates and prevails over human law.

It is worth noting that the Christian conception of natural law, while constantly based on Revelation, also drew profit from Greek philosophy and Roman jurisprudence; and this was true both in the patristic period and in the scholastic period, giving rise to that tradition which was rightly called philosophia perennis, and which has demonstrated its vigorous vitality even in our own times.

In the Renaissance and subsequent eras, there emerged a tendency to treat the problem of natural law independently of theology. Even among theologians themselves, the question of the possibility of moral obligation in the damned hypothesis of God's nonexistence had been raised with subtle disquisitions. Thus, Gregorio da Rimini (d. 1358) had written: « Nam si per impossibile ratio divina sive Deus ipse non esset, aut ratio illa esset errans, adhuc si quis ageret contra rectam rationem angelicam vel humanam aut aliam aliquam si qua esset; peccaret » (Super secundo Sententiarum, D. XXXIV, q. 1, a. 2). The doctrines of this and other authors were examined and discussed by F. Suarez in his great work De legibus ac Deo legislatore (1612), l. II, cap. 6, § 3. From that hypothesis, though declaring it inadmissible, Grotius (De iure belli ac pacis, 1625, Proleg., § 11) drew inspiration to construct his system of natural and international law on the basis of human reason alone. Relying on concepts already elaborated by classical thought, and in particular on the Aristotelian principle of the sociability inherent in human nature, he defined ius naturale as: « dictatum rectae rationis, indicans actui alicui, ex eius convenientia aut disconvenientia cum ipsa natura rationali ac sociali, inesse moralem turpitudinem, aut necessitatem moralem » (op. cit., l. I, cap. 1, § 10, 1; cf. § 12, 1). Natural law, he adds, is immutable, because not even God could make it so that « quod intrinseca ratione malum est, malum non sit » (ibid., § 10, 5). As a consequence of the aforementioned principle, Grotius particularly emphasizes the maxim of the inviolability of pacts (« cum iuris naturae sit stare pactis », op. cit., Proleg., § 15): from which maxim the « iura civilis » would derive, that is, the validity of positive law in general, and notably the legitimacy of existing governments, insofar as they are founded on a presumed initial pact or consent.

DIRITTO CANONICO

Diritto canonico è l'insieme delle norme giuridiche che regolano la costituzione, l'attività e la disciplina della Chiesa cattolica. Esso si distingue in diritto divino e diritto umano. Il primo è quello che deriva direttamente da Dio, autore di ogni diritto, e si distingue in diritto naturale e diritto positivo divino. Il diritto naturale è quello che la ragione naturale conosce come conforme alla natura razionale dell'uomo e alla sua destinazione soprannaturale; il diritto positivo divino è quello che Dio ha rivelato positivamente, come, ad es., i precetti del Decalogo, le norme evangeliche, ecc. Il diritto umano è quello che la Chiesa stabilisce per mezzo dei suoi organi competenti, in conformità al diritto divino, per il raggiungimento dei suoi fini soprannaturali.

La storia del diritto canonico si può dividere in tre periodi principali: il periodo antico, che va dalle origini al Decreto di Graziano (sec. XII); il periodo classico, che va dal Decreto di Graziano alle Decretali di Gregorio IX (1234); e il periodo moderno, che va dalle Decretali di Gregorio IX ai nostri giorni.

Nel periodo antico, le fonti del diritto canonico furono principalmente le Sacre Scritture, i canoni dei concili, le decretali dei pontefici, le opere dei Padri della Chiesa e le consuetudini. In questo periodo, il diritto canonico si sviluppò in modo piuttosto disorganico, senza una sistemazione scientifica. Tuttavia, già nel sec. IV, con le collezioni canoniche, si cominciò a raccogliere e ordinare il materiale giuridico esistente. Tra le collezioni più importanti di questo periodo, si ricordano la Collectio Dionysiana (sec. VI), la Collectio Hispana (sec. VII) e la Collectio Anselmo dedicata (sec. IX).

Nel periodo classico, il diritto canonico raggiunse la sua sistemazione scientifica con l'opera di Graziano, il Decretum Gratiani (ca. 1140), che fu la prima grande compilazione sistematica del diritto canonico. Graziano, monaco camaldolese, raccolse e ordinò in modo organico le fonti del diritto canonico, distinguendo tra auctoritates (testi autorevoli) e dicta Gratiani (commenti e spiegazioni dell'autore). Il Decretum divenne ben presto il testo fondamentale per lo studio del diritto canonico e rimase tale fino alla promulgazione del Codex Iuris Canonici nel 1917. Dopo Graziano, il diritto canonico fu ulteriormente sviluppato dalle decretali dei pontefici, che furono raccolte in collezioni ufficiali, come le Quinque compilationes antiquae (sec. XII-XIII) e le Decretales Gregorii P. IX (1234), che costituirono il primo codice ufficiale del diritto canonico.

Nel periodo moderno, il diritto canonico fu caratterizzato da una crescente centralizzazione e codificazione. Nel sec. XVI, il Concilio di Trento (1545-1563) emanò numerose norme disciplinari, che furono raccolte nel Corpus Iuris Canonici (1582), una compilazione ufficiale che rimase in vigore fino al 1917. Nel sec. XX, il diritto canonico fu completamente riformato con la promulgazione del Codex Iuris Canonici nel 1917, sotto il pontificato di Benedetto XV. Questo codice, che consta di 2414 canoni, rappresenta la prima codificazione completa e sistematica del diritto canonico. Nel 1983, sotto il pontificato di Giovanni Paolo II, è stato promulgato un nuovo Codex Iuris Canonici, che ha sostituito quello del 1917 e che è attualmente in vigore.

BIBL.:
F. X. Wernz, Ius Decretalium, 6 voll., Roma 1898-1914; P. Gasparri, Fontes Iuris Canonici, Roma 1923-1933; A. Van Hove, Prolégomènes à l'étude du droit canonique, Malines 1945; E. Corecco, Il diritto canonico come sistema normativo, in Ius Ecclesiae, 1 (1989), pp. 7-32; V. D'IRITO CANONICO; CONCILIO; DECRETALI; GRAZIANO.

A. M. Stickler

DIRITTO CIVILE

Il termine diritto civile (dal lat. ius civile) designa, in senso ampio, il diritto proprio di una determinata comunità politica, in contrapposizione al diritto delle genti (ius gentium) e al diritto naturale (ius naturale). In senso più ristretto, esso indica il diritto privato romano, che regolava i rapporti tra i cittadini romani, in contrapposizione al diritto pretorio, che era invece applicato dal pretore per regolare i rapporti tra cittadini romani e stranieri o tra stranieri stessi.

Le origini del diritto civile romano risalgono alle XII Tavole (451-450 a. C.), che costituiscono la prima codificazione scritta del diritto romano. Tuttavia, il diritto civile si sviluppò soprattutto attraverso l'interpretazione dei giuristi e la giurisprudenza, che elaborarono i principi fondamentali del diritto romano classico. Tra i giuristi più importanti di questo periodo, si ricordano Quinto Mucio Scevola, Servio Sulpicio Rufo, Labeone, Sabino, Gaio, Papiniano, Paolo e Ulpiano.

Nel periodo postclassico, il diritto civile romano subì profonde trasformazioni, soprattutto a causa dell'influenza del diritto pretorio e del diritto imperiale. Con la costituzione di Costantino (313 d. C.), il cristianesimo divenne religione lecita e poi ufficiale dell'Impero, e ciò influenzò notevolmente il diritto civile, introducendo principi di carattere morale e religioso. Nel sec. VI, l'imperatore Giustiniano promosse una grande opera di codificazione del diritto romano, che culminò nella compilazione del Corpus Iuris Civilis (529-534 d. C.), composto dalle Institutiones, dal Digesto, dal Codex e dalle Novellae. Questa compilazione rappresenta la summa del diritto romano e ha avuto un'influenza enorme sullo sviluppo del diritto in Europa.

Nel Medioevo, il diritto civile romano fu studiato e insegnato nelle università, soprattutto in Italia, dove nacque la scuola dei glossatori (sec. XI-XIII) e poi quella dei commentatori (sec. XIV-XV). I glossatori, come Irnerio e Accursio, si dedicarono all'interpretazione letterale dei testi giustinianei, mentre i commentatori, come Bartolo da Sassoferrato e Baldo degli Ubaldi, svilupparono una giurisprudenza più pratica e sistematica. Il diritto civile romano, così interpretato e adattato, divenne la base del diritto comune (ius commune) europeo, che rimase in vigore fino all'età moderna.

Nell'età moderna, il diritto civile fu oggetto di profonde trasformazioni, soprattutto a causa dell'affermarsi degli Stati nazionali e della codificazione. Nel sec. XIX, con la codificazione napoleonica (1804), il diritto civile fu sistematizzato in modo organico e razionale, dando vita al Code civil francese, che divenne il modello per molte altre codificazioni europee e non solo. In Italia, il diritto civile fu codificato nel Codice civile del 1865, che fu poi sostituito dal Codice civile del 1942, attualmente in vigore.

BIBL.:
P. Bonfante, Storia del diritto romano, 4 voll., Milano 1958-1959; F. Schulz, Storia della giurisprudenza romana, Firenze 1968; M. Bretone, Storia del diritto romano, Roma-Bari 1987; V. anche CODICE CIVILE; DIRITTO ROMANO; GIURISPRUDENZA; GIUSTINIANO.

A. Guarino

The work of Grotius, which soon gained immense fame, was followed by numerous others that, despite sometimes considerable divergences, share certain characteristics with it; thus, one may not unjustly 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, not critically examined and therefore often fallacious. While with the commendable intent of seeking in human nature the foundation of law, the authors belonging to this school often present as universal truths mere aspirations of their individual conscience, suggested by contingent political circumstances. Methodological uncertainty also manifests in the tendency to give the appearance of historical or pseudohistorical 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 evident in the conception of a status naturae, which 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 divide it into two successive acts (pactum unionis and pactum subjectionis). For the specific characteristics of the various doctrines, it is necessary to refer to individual treatments (v. CONTRATTUALISMO). Here, only some of the most significant theories, following that of Grotius, are mentioned. 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 ius in omnia. From mutual fear, that is, from the need for peace, the State originates, by virtue of a contract through which men, entirely renouncing their primitive 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) instead aligns with that of Grotius: the fundamental law of nature, in his view, is that which imposes on every man the cultivation and preservation of peaceful sociability ("pacifica socialitas"), in accordance with the nature and end of the human race (op. cit., l. II, cap. 3, § 15). G. Locke (Two Treatises of Government, 1690) argues that the "state of nature" is not (as other natural law theorists had understood) a presocial condition of life, and even less a state of war among individuals, but rather a state of coexistence in which men already possess certain rights (to liberty, equality, labor, property). But these natural rights must be guaranteed, and this occurs when a group of men agree to constitute a political society, that is, a State, which has precisely the purpose—and thus also the limit of its power—in 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 naturalis" and a "positiva"; natural law "cognoscitur ex ratiocinatione animi tranquilli", whereas positive law "requirit revelationem et publicationem". The same tradition, with broad and systematic developments partly inspired by Leibnizian philosophy, was also followed by C. Wolff (Ius naturae methodo scientifica pertractatum, 1740-48). More than to the formal elaboration of legal concepts, J. J. Rousseau (Discours sur l'origine et les fondements de l'inégalité parmi les hommes, 1753; Du contrat social, 1762) turned to the problem of the intrinsic justice of the State, advocating principles similar to those of Locke, though with originality of views and new dialectical vigor. According to Rousseau, the state of nature, assuming it ever existed, must be conceived as the realm of freedom and equality among men; and since these goods have in fact been lost, it is necessary to restore them as far as possible by organizing the State in such a way that it truly becomes the synthesis of the equal freedom of all: that is, so 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 important ideas on this subject in the same period, Leibniz and Vico are especially worthy of mention. The former (Nova methodus discendae docendaeque Iurisprudentiae, 1667; Dissertatio I, prefaced to the Codex iuris gentium diplomatici, 1693, etc.) in a certain way reduces law to theology, distinguishing 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 would comprise, according to Leibniz, 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 "aeterno vero constat", and has its principle in God; but if truth is an essential element of law, there is also another element in it, the certum; the first constitutes the "ratio legis", the second represents its authority. Vico thus seeks to reconcile, in a certain way, natural law with positive law, opening the way to that synthetic vision of history which is the characteristic motif of his Scienza nuova. In this work, he distinguishes three kinds of natural law: the first divine, the second heroic, the third human; and he also traces other distinctions according to various criteria, which do not, however, destroy the unity of his conception of a law that is both ideal and historical. A conception undoubtedly profound, but in part obscure and not without difficulties, as appears from the different interpretations that have been and still are given of it in our time.

The natural law school, after Rousseau, underwent further development and partial renewal through the work of I. Kant, who, while accepting many of the doctrines of that school, introduced notable corrections, eliminating above all the ambiguity (already partly corrected by Locke and Rousseau) arising from the equivocal nature 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, as such, has an innate right to freedom. The school of natural law (Naturrecht) thus asserts itself as the school of rational law (Vernunftrecht), and the two terms are used henceforth almost as synonyms; it should be noted, however, that the second term, in a less rigorous sense, had sometimes been used even in the preceding period. Kant's doctrine was followed, with greater or lesser adherence, by those of numerous other authors, among whom Fichte holds special importance; others, such as Zeiller, Rotteck, Baroli, Tolomei, and others, may also be mentioned.

A strong reaction against theories of natural law in general began to manifest itself at the start of the 19th century, both because those theories were blamed for the excesses of the French Revolution, which had been proclaimed under a natural-law program, and, above all, due to the preference generally accorded—even by jurists—to historical or positive studies over purely speculative research. It is true that historicism itself sometimes assumed an idealistic aspect (suffice it to mention Hegel’s system, which identifies the rational and the real, and declares the relationship between natural and positive law analogous to that between the Institutes and the Pandects). However, 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 understood by most as incompatible with the idea of an absolute natural law, its foremost proponent, Spencer, explicitly acknowledged, alongside a relative ethics, an absolute ethics, and became an advocate of the natural rights of the individual. It may also be recalled that the leading representative of Italian positivism, R. Ardigò, admitted a certain “natural law” into his system, though only in the sense of a psychological fact that would prepare the positive law of the future.

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

The idea of natural law thus continued to be validly upheld and defended, albeit in different ways, even in the most recent era, both by followers of Scholastic philosophy and by others who, proceeding from a critical analysis of knowledge, arrived at results substantially in conformity with those of the philosophia perennis.

III. CANON LAW

CANON LAW

### I. NOTION.

Canon law is the body of juridical 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 the organs of the Church and those which, though already formulated otherwise, are approved and enforced by the aforementioned organs as norms issued by the Church. This second category of norms consists especially of customary norms (v. CONSUETUDINE) and norms issued by the State (v. CANONIZZAZIONE DELLE LEGGI); in a certain sense, norms of divine law may also be included in this category.

The limitation "to regulate matters of its competence" is added because, especially in past eras, the Church has sometimes found itself in the position of issuing norms in matters within the competence of civil authority, in cases where the latter 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 authority), do not form part of canon law. Likewise, norms issued by organs of the Church not in their capacity as such, but insofar as they are also organs of a State or another secular organization (Papal States, Vatican City State, fiefdom, etc.), do not form part of canon law.

The name canon law (ius canonicum) derives from the fact that the juridical norms—or, as it is also customary to say, the disciplinary decisions (as opposed 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 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 ius ecclesiasticum, which is found, in this sense, even today in the CIC, though sometimes it indicates only a part of canon law, specifically human law as opposed to divine law (cf. cann. 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 nor the principal one) by which the Church pursues its supernatural end, which is the salvation of souls or the eternal happiness of men. Therefore, the object of canon law is to determine, through obligatory precepts, the conduct of men in relation to the aforementioned end, that is, to regulate human activity in the best way for the attainment of that 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).

II. CHARACTERISTICS

The essential characteristics of canon law are the same as those of law enacted by the State, namely, in addition to its social nature (as its author is the Church), its imperativeness or obligatoriness, its alterity or intersubjectivity (which distinguishes it from moral theology), and its coercibility.

How these characteristics (which some have wrongly denied to canon law) reconcile with the Church’s ultramundane end can be easily understood if one considers that obstacles to the salvation of the soul may arise not only from the souls to be saved themselves but also (though only as indirect and not insurmountable obstacles) from other causes: causes that either influence the will of each individual more or less intensely, inducing behavior different from what would be most conducive to the salvation of their soul, or prevent them from acting upon the will to behave in this more advantageous way.

Now, when the Church, in seeking to remove such obstacles as far as possible, prohibits or commands certain behaviors that might hinder or make it difficult for others to attain their ultimate end, or respectively facilitate it; when it provides the means to ensure preventive obedience to such commands or prohibitions and to repress their possible transgressions; when, in other words, it safeguards through commands what may be called the supernatural interest of each homo viator in relation to others, it is evident that it issues commands possessing all the essential characteristics required to be classified as legal commands.

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

III. DIVINE LAW IN THE CHURCH'S LEGAL ORDER

Divine law, whether natural or positive (v. above), constitutes a source of canon law insofar as it pertains to the matters that form the object of the latter. Moreover, all divine precepts, whether juridical or not, impose a limit on the Church's activity, as they must be observed even by the highest authorities of the Church. Any commands issued by these authorities in contradiction to divine precepts are devoid of juridical value.

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

From the foregoing, it is clear that within the Church's juridical order, divine law fulfills two fundamental functions: one positive and the other negative. It has a positive function insofar as it determines the content of canon law norms, which either reproduce or specify divine law norms. Among these, one must recall—though not exclusively—those (of positive divine law) that regulate the Church's constitution and fundamental powers, as well as the essential degrees of the hierarchy. Conversely, it has a negative function insofar as it sets a limit on the production of law, rendering juridically invalid any commands that conflict with divine precepts, just as commands from an inferior that contradict those of a superior are invalid. Regarding this second function, both divine precepts with juridical character (i.e., regulating relations among men) and those without such character hold equal importance, even from a juridical standpoint. The latter are also commonly included under the term divine law, though, strictly speaking, they cannot be considered juridical precepts. Similarly, for this negative function, equal importance attaches to divine precepts explicitly reproduced in a norm issued by the Church and those not so reproduced. The Church, therefore, cannot

derogate from any divine precept, nor can it grant dispensations from them, though it possesses the power and duty to interpret them infallibly.

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

The distinction between divine law norms and ecclesiastical law norms yields certain practical effects analogous to the distinction, present in some state legal systems, between constitutional norms and ordinary legislative norms. In the Church, the organs of legislative power cannot issue norms conflicting with divine law, just as in the state, the organs of ordinary legislative power cannot issue norms conflicting with constitutional ones. However, the analogy between the two distinctions is only partial. While the juridical order of a state that distinguishes constitutional laws from ordinary laws always provides a special procedure by which even constitutional laws may be modified, in the Church, no organs exist—even through extraordinary procedures—that can modify divine law norms or derogate from them.

Furthermore, the existence of divine law norms ensures that, while the ancient conception of princeps legibus solutus (D. 1, 3, 31) may be found in the Church, it is subject to this limitation: the supreme pontiff is not unbound from all juridical norms, as there exist some (divine law) to which even he is subject. Yet, the juridical order lacks the means or technical procedure to ascertain the conformity of his acts to those norms or to enforce their observance upon him.

The CIC repeatedly invokes natural law, either to reproduce its commands or prohibitions (cann. 6 n. 6, 1068 § 1, 1405 § 1, 1509 n. 1, 1935 § 2) or to deny validity to positive precepts that conflict with natural law (cann. 27 § 1, 1499 § 1, 1513 § 1). In the same vein, the CIC sometimes refers to the "nature of things" (cann. 1110 and 2198), while at other times this expression is used in a literal sense to denote the true nature of things, upon which the law bases juridical effects.

Positive divine law is sometimes expressly mentioned in the CIC (cann. 6 n. 6, 27 § 1, 1499 § 1, 1509 n. 1) or indicated with sufficient clarity (cann. 731 § 1, 948, 1012 § 1, 1322 § 1). At other times, it is designated generically by the term ius divinum (cann. 219, 727 § 1) or divina institutio or ordinatio (cann. 100, 107, 196, 329 § 1).

There are also some canons in which the expression ius divinum is used to denote both positive and natural divine law collectively, though with greater emphasis on the latter (cann. 1038 § 1, 1529, 1926). Finally, various canons reproduce divine precepts without explicitly stating so (cann. 1495 § 1, 1512, 1543).

BIBL.:
F. X. Wernz - P. Vidal, Ius canonicum, I, Roma 1938, pp. 153-160; M. Conte a Coronata, Institutiones iuris canonici, I, Taurini 1939, pp. 45-50; A. Van Hove, Prolegomena, Mechliniae 1945, pp. 137-145; E. Corecco, Il diritto divino nella Chiesa, in Ius Canonicum, 1969, pp. 11-44.

A. VANNUTELLI
### IV. SOURCES.

Canon law originated with the foundation of the Church, which, being a society of men, could never do without juridical organization. Initially constituted by the fundamental norms of divine law, it gradually developed—first in a fragmentary and somewhat rudimentary manner, then in an increasingly complete way—as laws issued by the supreme pontiffs and councils (later called decretals [v.] the former, canons the latter) multiplied, and as the Church’s organization became ever more complex and refined.

Without here outlining, even summarily, the contours of this development, it is noted that, immediately after the sources of Revelation—that is, Bible (v.) Tradition (v.)—traces of canon law norms are found in the writings of the Apostolic Fathers, then in the pseudo-apostolic sources, while at the same time true laws, valid for the entire Church or for specific territories, were issued by popes, bishops, and even more so by councils, and occasionally by emperors. These laws, growing ever more numerous and important, were frequently gathered into collections, 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, alongside the teaching of Roman law at the Studio (University) of Bologna, instruction in practical theology was established; and around the mid-century, the monk Gratian, who taught practical theology in Bologna, with his Concordia discordantium canonum gave life to the science of canon law (v. CORPUS IURIS CANONICI; DECRETALISTI; DECRETISTI; GRAZIANO, DECRETO di).

For information on the sources of canon law and their history, V. also BOLLARIO; CODEX IURIS CANONICI; PONTI DEL DIRITTO; LEGGE. Here it is merely added that, until the promulgation of the CIC (1917), the custom was to call ius antiquum the canon law prior to Gratian, ius novum that of the Corpus iuris canonici and subsequent until the Council of Trent, and ius novissimum the law thereafter; currently, however, almost exclusively the distinction between ius vetus (i.e., prior to the CIC) and ius novum (i.e., in force) remains, a distinction hinted at in the CIC itself (can. 6 n. 2).

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

For some sources of a special nature, V. LIBER DIURNUS; LIBRI LITURGICI; PENITENZIALI, LIBRI; REGESTO; REGULAE CANCELLARIAE APOSTOLICAE.

### IV. ROMAN AND GERMANIC LAW.

Roman law and Germanic law were the most important legal systems with which the Roman Church came into contact in the era preceding the creation of a canon law order, autonomous and sufficient unto itself, erected into a system with the dignity of its own juridical doctrine and with a tendency to separate from itself moral, theological, and ceremonial norms, with which it had previously been indiscriminately mingled.

This 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 the remaining civil law, in which Germanic law had prevailed, had taken place before that time on specific points; but from then on, it occurred in a more determined form, as canon law was indeed able to replace with its own juridical principles much of the civil law previously adopted to complete its body of norms. Certainly, the movement toward the independence of canon law was also due to the pontifical legislation that became more intense following Gratian’s work, coming to constitute an important and more numerous source of norms in the Church’s law.

In the ancient Roman era, it is undeniable that Roman law and the very civilization in which the Church of Rome found itself inserted as a religious organism and system of norms had a certain determining influence on the formulation of the juridical principles first established 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 it demanded, by reason of the principles of Christ’s doctrine, its founder, a different regulation. Patristic doctrine, conciliar and pontifical legislation, are ample testimony to this work of slow and continuous transformation of Roman principles and their adaptation.

This did not occur, however, without influence also on Roman law, which, after the recognition of the Church and the Christian religion by the authority of the Empire, was bent by the same imperial authority, and by the orientation of jurisprudence already directed toward a more moral sense by the Stoic conception, to broaden certain norms and modify its own institutions according to a more direct inspiration from Christian principles.

It cannot be said, however, that in the ancient era Germanic law had an equal influence on the Church’s law, given the limited contacts the latter could have at that time with Germanic populations, except for some border groups and those introduced into the Empire as settled and auxiliary units. Through these, especially in the late Empire, and also through the influence of some important military leaders whom fortune raised to the imperial throne, some infiltration of Germanic principles into late Roman law occurred, particularly in patrimonial 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 Empire (476 A.D.). And thus, from that time in those regions, a more direct rapprochement between Germanic law and Roman law occurred, as well as a more direct penetration of Roman juridical norms and principles into the Germanic customs prevailing there.

However, the situation that arises with the collapse of the Western Roman Empire is quite different, because more general. Germanic law then represented more freely and generally the law of the victors and, while on the one hand it aimed to superimpose itself on Roman law, on the other it opposed itself, with particular authority, to the Church’s law itself. So that while Roman law became, at least initially, the personal law of the Roman people, the Church began its continuous and tireless work to stem the impetus of barbarian customs, opposing to them both Roman law, which it had in fact adopted as its own, and those norms that constitute the first nucleus of canon law.

In the historical era, when Germanic law (7th century A.D.) is systematized in the written redactions of the laws and customs of the various peoples of that stock, it had already undergone a profound transformation and an approximation to the principles and institutions of Roman law.

In the gradual transition of the Germanic peoples to the Catholic faith, Germanic law also yielded to the principles and rules of life directly proposed by the Church in its own law. A typical example of this evolution in a Roman and Christian sense is offered by Lombard law, which held particular significance for Italy and exerted a specific influence due to its more direct relations with the center of the Church of 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, one notes the prevalence of consent in obligatory relations, the introduction of Christian principles in the regulation of marriage, the introduction of last will dispositions with bequests for the soul, and so on.

The Church's work in Christianizing the Roman and barbarian West during the early period of Germanic dominations is represented by luminous examples. Contemporary with the first Lombard domination is Pope St. Gregory the Great,

who was a strong bulwark in defending Roman law in the new Christian spirit. He sent Roman texts, appropriately transformed in a Christian sense, to England and Spain. In the latter country, moreover, through the work of Isidore, Bishop of Seville, author of the book on the Etymologiae, many norms and institutions of Roman law were adopted, while the new concept of law as binding, insofar as it met the moral requirements of intrinsic honesty and goodness, was decisively affirmed, and the original source of law was determined to be ratio, which must also inform custom. With the constitution of the Holy Roman Empire, there was a greater consideration of Roman law and a better disposition of the national laws, proper to the various Germanic peoples subject to the authority of the new emperor, to accept the norms of the Church, and this was achieved especially through the imperial legislation of the capitularia.

However, it was not until the 11th century, and even more so the 12th, that Germanic law encountered more vigorous hostility from the new interpreters of Roman law (some of whom were ecclesiastics, such as St. Peter Damian, who illustrated the Romanist orientation of Ravenna, giving the first order to the rediscovered Justinianic sources). But even more, that revision work was due to the creators of ius commune, who worked on the basis of Justinianic texts to create a complex 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 still passed into the regulation of the feudal system of Frankish or Lombard type in the respective texts of the so-called Assizes of Jerusalem and the books or consuetudines feudorum, and were partly adopted in ecclesiastical feudalism.

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

Interesting is the reflection of Germanic customs on the law of the Church over time. Some of those influences were short-lived and then overcome, such as the acceptance, even among ecclesiastics, of certain proofs of the Germanic process, like the judgments of God, or contaminations, for example, of the institutions of property and possession.

It should be noted, however, that the numerous Germanic infiltrations in the juridical practice of the Church are mainly 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 the simple pact, the computation of kinship, and some features of the process with the form of inquisitio and the proofs proper to the Germanic tradition, as well as the more accelerated form of the extraordinary process or de plano et sine strepitu figurae, later definitively consecrated in the Clementina Saepe.

The Church thus retained what was most vital in Germanic law, but its law resulted in a structure principally conforming to Christian morality, based on divine precepts and vivified by the spirit of equity, while its structure and the technique of its elaboration remained more adherent to Roman law. And if popes and ecclesiastical jurists sometimes rose against it, it was to condemn only those 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, relived by the Christian conscience.

V. COMUNE.

Ius commune was the term used for the law that took shape, beginning in the 12th century, through the work of the schools of glossators, post-glossators, commentators, and treatise writers, from the interpretative elaboration of the Corpus iuris civilis (v.).

Ius commune was therefore fundamentally a "renewed and modernized Roman law" and came to constitute a general civil law, in whose formation jurists from all those countries that opened to the common use of this law collaborated. It held the value of general law for the various Christian states of Europe in which it spread and which, in the modern period, introduced it, with their expansion and political affirmation, also into other continents. It lasted in this function of general law until the era of codifications (19th century), and its regulatory action did not cease everywhere with the application of the codes.

The idea that Roman law constituted a general law binding above the political divisions that had occurred on the territory of the ancient sovereignty of the Roman Empire arose in the very first period of formation of this new law (12th-13th centuries), although the exegetical orientation of the gloss preferred to adhere to the conceptions expressed in the Roman sources.

Thus, on the one hand, the gloss appears to have employed the term and the idea of common law (diritto comune), following the Roman tradition, to designate rather the highest general laws considered in antiquity, namely ius naturale and ius gentium, while it tended to regard Roman law as the ius proprium of the Roman political unity.

Alongside, and in contrast to, this traditional conception, a new understanding of Roman law emerges within the same Bolognese school, according to which this law is conceived as valid for all. It is precisely this idea of indiscriminate extension, from the perspective of the existing political fragmentation, that leads the glossators to attribute the technical qualification of common law to a legal system capable of such transcendence, although the glossators themselves do not seem to arrive at the explicit proclamation of Roman law as common law.

Nevertheless, shortly thereafter, the technical designation of ius commune for the new law created from the Roman sources by the Bolognese masters appears, as seen in the Statutes of Bologna of 1288. There, in chapter 8 of book VIII, it is established that the contracts and last wills of scholars shall be valid if facte fuerint iure communi etiam si careant solemnitatibus que viderentur requiri ex forma alicuius statuti seu iuris municipalis.

In the term ius commune, Roman law is here identifiable, in contrast with any statute, the latter being valid as the ius proprium of the homeland of the individual scholars who had convened from all parts to the Bolognese Studium.

Common law thus consists, as a substantial entity of norms, solely in the law arising from the interpretation of the Justinianic sources by the juridical school, beginning with the glossators.

This law did not, nor could it, embrace within its substantive framework the other general laws that emerged 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 themselves as obstacles to the full application of common law.

The most radically opposed opinion to this historical understanding of the substantive content of common law has recently been formulated by Calasso, who holds that the substantial encounter, above all, of Roman law and canon law resulted in the formation of a universal law proper to the new Christian people. Nor, according to Calasso, is the substantive content of common law limited here, for it would have absorbed within itself even the particular elements of opposition, by virtue of the system of 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 their differing rationes, which presided over the formation of both canon law and feudal law, in comparison with Roman law. Particularly, canon law was a law whose principles appear to transcend the earthly consideration of life, in view of the supernatural end that governed the society it regulated. It was a law that could never be united with secular law, not only because of its own ratio, but also because of the different authority that presided over its formulation and interpretation, and because of the different field of its prevalent application.

Furthermore, the historical testimony of the strident clash between the two powers, the lay and the ecclesiastical, and the persistent struggle between the two laws, is echoed at every step in the testimony of jurists and the legislation of the time.

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

This does not, however, preclude canon law from having influenced, as a factor of transformation, the norms of Roman law through the interpretation of at least a part of the common law jurists, as seen in the adoption of the principles of faith, the improvement of personal rights, the regulation of marriage, and other institutions. By the same path of interpretation, some elements of feudal conception flowed back as modifications of 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 inconciliability. As for the systematic reason of common law that, according to the opposing thesis, could have induced the substantive content of common law to include the particularistic elements of statutory law and local custom, it seems necessary to distinguish the reason for the connection between common law and particular law from the fact of the substantive and historical content of common law itself.

The latter remained, in fact, what it was, and this regardless of the connection between common law and particular law. Indeed, even admitting that common law could be set aside by a particular norm to which derogatory value was recognized, this does not authorize one to assert, contrary to the reality of historical testimony, that the particular norm thereby entered into the body of common law in a stable manner. It remained a norm of particular law, restricted and transitory, as were the norms of particular law. On the other hand, it could happen that the same norm of common law, set aside in one place due to the presence of a derogating particular norm, was instead applied in another place where it encountered no obstacle to its application from particular law.

A divergent conception would serve to indicate the phenomenon of common law in the application of a specific place, rather than common law in suo esse.

That the historical content of common law was always maintained on the basis of the law arising from the Roman sources is further declared, even in the full seventeenth century, by the great Cardinal Giovanni Battista De Luca, one of the most acute and brilliant theoreticians and systematizers of the by then mature production of common law.

He specifies ius civile commune by indicating it as illud Romanorum ius quod civile commune dicitur (De officiis venalibus, cap. 1, n. 3), and sees it recorded in the texts of the 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).

BIBL.:
F. Calasso, Medio Evo del diritto, I, Milano 1954; G. B. De Luca, Theatrum veritatis et iustitiae, Venezia 1699; id., De officiis venalibus, Roma 1682; P. del Giudice, Storia del diritto italiano, Milano 1923; F. Ercole, Da Bartolo all'Altusio, Firenze 1932; H. Kantorowicz, Studies in the Glossators of the Roman Law, Cambridge 1938; E. Genzmer, Die Justinianische Kodifikation und die Glossatoren, in Atti del Congresso internazionale di diritto romano (Bologna 1933), Pavia 1934; F. Schupfer, Il diritto delle obbligazioni in Italia nell'età del Risorgimento, Torino 1884; P. S. Leicht, Storia del diritto italiano. Il diritto privato, Milano 1936; A. Solmi, Storia del diritto italiano, Milano 1930.

A. C. Jemolo

Antonio Rota

VI. D. INTERNAZIONALE.

I. DEFINITION

The body of norms intended to regulate the conduct of the subjects of international society is most commonly referred to as international law. The terminology has not always been consistent. Vitoria, one of the earliest theorists of this branch of law, called it ius inter gentes; Grotius defined it as a law that inter plures populos intercedit. For a long time, particularly among French-language writers such as Vattel, it was termed law of nations, and this term remains in use even among German writers. The opinion that would restrict the term international law to contractual or positive law alone, while assigning to law of nations the more general and common norms of justice, must be considered unfounded. This distinction finds no support in doctrine, where the two terms are regarded as equivalent; nevertheless, the former is to be preferred, as it eliminates 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 designation derives from Bentham, who distinguished international law, the law in force among nations, from national or internal law.

II. HISTORICAL ORIGINS

Regarding the historical origins of international law, three distinct opinions exist. One, upheld by a few isolated theorists, traces its beginnings to Greco-Roman antiquity; a second, at the opposite extreme, places its emergence at the time of the Peace of Westphalia in 1648; the third recognizes its existence already within the Christian community or Respublica Christiana of the Middle Ages. It cannot be denied that in remote antiquity norms must have existed to regulate relations between peoples. If commercial exchanges, wars and peace, treaties and conventions took place among them, some normative rules must also have existed. Human nature, moreover, expresses itself in the same way throughout history, and since law naturally governs relations between rational subjects, a certain embryonic law must have arisen among ancient peoples. However, there is a great distance between this and asserting that international law was already fully formed at that time. The few examples cited in support of this thesis have limited value. The Laws of Manu, which contain some prescriptions regarding prisoners surrendering in war, had a scope of application limited to certain peoples of India bound by racial commonality. The same must be said of the conventions of the Hellenic peoples and the Amphictyonic Leagues, which concerned the citizens of the Greek city-states, not other peoples, regarded as barbarians and considered outside any law. The attitude of the Romans was no different, as attested by the fragment of the Twelve Tables: Adversus hostem aeterna auctoritas esto. The ius fetiale, rather than a body of law, was a religious formality aimed at propitiating the favor of the gods toward their 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 the given word—a true international law did not emerge. Its appearance, instead, begins with the spread of the Christian idea, which propagated the universal concepts of the brotherhood of all men and their equal dignity, brought peoples closer together by 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 their natural autonomy—indispensable presuppositions for the rise of international law. Within Christian society, in fact, rules and institutions began to assert themselves, 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, essentially identical to those in force today. This origin is reflected in the fact that the first theorists who systematized 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 the birth of international law to this date must be considered historically unfounded, according to the findings of more recent scholarship. It is true only that from the Peace of Westphalia onward, states increasingly acquire a vivid awareness of their autonomy and equality, and the scientific elaboration of international law progresses, gaining greater systematization.

III. DIVISION

International law is customarily divided, first of all, into natural and positive. Natural law is that which has as its source human nature and the essential constitution of the subjects of the international community, and consists of those norms and general principles of justice dictated by moral conscience. Positive law is that which has as its source the will of the same subjects, and includes both the norms of the former, recognized and accepted by that will, and the norms that supplement it and regulate contingent relations. It is universal if it extends to all subjects of the community to which it refers, particular if it concerns only a certain number of them. It is instead 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 practice of States. Another long-standing division is that between international law of peace, which comprises the ordinary norms in force during the period of peaceful relations, and international law of war, which regulates the conduct of States during the period of hostilities.

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

Public international law, which is the subject here, can be defined as the body of legal norms that regulate the conduct of the subjects of the international community. This definition requires a brief explanation to clarify its terms. It is affirmed that international law is a body of legal norms to exclude the opinion of those who consider it either a law in fieri, 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 law to produce a categorical obligation in the subject who must act according to its dictates, and also to emphasize that the subjects to which it refers are not only States, as an opinion now almost abandoned maintained, although States are the principal subjects.

IV. EXISTENCE

The existence of international law is denied by certain currents of thought. Some of these, with a political undercurrent, conceive the relations between States as relations of pure power, governed solely by force, and thus necessarily exclude the existence of juridical norms. Others, instead, rest on a theoretical foundation. Among these, some proceed from a false concept of law, which they define as a command endowed with coercion, and since in the international community there exists neither an imperious will nor a coercive apparatus, they conclude that the corresponding law is not true law. Others rely on an equally false concept of sovereignty, conceived as an absolute and unlimited power, to which it is impossible to assign an external limit, such as law.

Against these denials stands the simple argument that wherever a society exists, there law necessarily exists: ubi societas ibi ius. Now, that an international society exists is an incontrovertible truth both philosophically and historically. The objective study of human nature reveals within 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: the affective tendency, which moves man to expand into other beings, and the congenital insufficiencies of his nature, incapable of achieving all the ends of life by his own strength alone. The instinct of sociability, driven by the aforementioned causes, is realized in various degrees, first in the family, then in the tribe, the nation, the State—an organism broad enough to better fill human insufficiencies. Yet even the State is not self-sufficient: in order to achieve its civilizing purpose in favor of the human person, it must be integrated through collaboration with others, entering into communion of life with other political aggregates. Under the impulse of solidarity, a society of States then arises—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 times, though to varying degrees, have been bound by multiple 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 increasingly interdependent compared to the past. The existence of an international society is, therefore, an undeniable fact, and consequently, the existence of true international law is also an undeniable fact. The objections to the contrary, mentioned above, lack force, since the most serious proceed from the false notion that law is essentially a command endowed with coercion. Law, instead, is a norm that dictates a categorical ought to the will, which cannot proceed from the same will called to observe it: coercion or coercibility 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 regarding its nature and its source, so closely interconnected that they may be considered as one. In this regard, doctrine divides into three currents. The most substantial holds that the sole source of international law is the autonomous will of States. A more recent theory argues that not all international law is voluntary, but that within the international community there exist immanent institutional principles, which are determined by the very formation of society and impose themselves upon the will of States, since every society arises with a legal order with which it is identified: this is the institutionalist theory. The Catholic current rejects the first and aligns itself significantly with the second.

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

The Catholic doctrine thus approaches the institutional theory, insofar as it, like the latter, admits the existence of principles immanent to the international community, excluding the voluntarist thesis; it diverges from it insofar as, in its systematization, it traces 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 is not entirely free. The rationality of its position stems from a duly analyzed fact. It is an undeniable fact that every entity carries, connected with its nature, certain appropriate laws by which it is guided in the unfolding of its activity. These are the laws that science seeks and establishes through the study of nature. If such is the condition of all entities, man cannot be an exception, nor is he, since he too bears embedded in his nature the laws of his action, which, conforming to 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 assume a particular form so as not to violate the equality of subjects, and therefore prescribe conduct ad aequalitatem, which is the specific hallmark of the norm of justice or of law. There exists, therefore, an order of natural justice that extends to the State and to the international community, both effects of human nature and permeated with the perfection of their cause, both real entities and thus bearers of immanent principles of action like man, by which their relations are regulated. Given this, the nature of international law is clearly manifested: it is a natural law in its fundamental precepts, and positive in the integrations and determinations derived from the will of States.

VI. OBLIGATORINESS

Closely connected with the question just resolved is the other concerning the foundation of the obligatoriness of international law, regarding which legal positivism has proposed various solutions that, however, neither satisfy reason nor uphold the law. It has been argued, based on Jellinek’s theory, that international law becomes an obligatory norm by virtue of an act of the very will of States, which, in creating the law, impose a limit upon themselves, thus self-limiting. It has not been difficult, however, to observe that such a self-limitation, imposed by a will defined as essentially free and remaining so even after the creation of the legal norm, is not an effective bond, a true obligation, since that will may dissolve it with a contrary act, which in turn would also be law. No one can be a legislator unto themselves.

To overcome this difficulty, Triepel imagined the existence of a collective will, which would result from the conjunction of individual sovereign wills and from which international law would proceed, thus possessing the power to impose itself upon the underlying wills. This expedient, however, does not resolve the problem, since the superior will from which the law would proceed reveals itself to be a fiction, as there can be no will without a substantially unified subject, and such a subject is only man. Moreover, the theory clearly derives from Grotian natural-law contractualism, whose terms it transposes into the international society, imagining the formation of a general will.

Setting aside the sparse current that sought to ground the obligatoriness of international law in the will of the great powers—too evidently anti-juridical, as it elevates force to the criterion of relations among States—a special mention is deserved by the solution proposed by Kelsen and developed by Verdross. According to these authors, law unfolds in a spiral, such that the validity of lower-order systems depends on higher degrees. The system at the top of the hierarchical scale would be the international one, and this, in turn, would have as its anchor, to which the entire descending spiral attaches, the principle pacta sunt servanda, indemonstrable, metajuridical, and to be accepted as an axiom. The undeniably ingenious construction collapses under critical scrutiny. The more objective theory of the plurality of autonomous systems among themselves successfully opposes the unity imagined by the Viennese school. Furthermore, a question of law cannot be coherently resolved by appealing to a metajuridical axiom, moreover indemonstrable, nor can the norm pacta sunt servanda serve as the foundation for all international law, which is not solely of conventional origin. Finally, this norm itself does not present itself as the apex of the spiral of law, since it postulates another, superior norm to distinguish between pacts that must be observed and those that cannot and must not be observed, such as, for example, an immoral pact.

Closer to the truth is Romano’s institutional theory, mentioned above. Catholic doctrine brilliantly overcomes the difficulty left unresolved by positivist legal theory. Once the existence of a natural law, of an objective and rational order of justice that imposes itself by its own virtue upon the will of States, is admitted, international law finds in it its firm foundation, 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 exigencies of justice. In other words, even international law requires a superior criterion of evaluation to distinguish unjust norms from just ones. Such a criterion cannot be the will of States, for in that case law would be abandoned to the whim of the most unbridled subjectivism; it must therefore be found outside it in an order of justice removed from its arbitrariness. Upon this order of justice, immanent in human nature, the State, and the international society, and at the same time transcendent because it derives from the will of the Supreme Being, all law, including international law, firmly rests.

VII. ECCLESIASTICAL LAW.

VII. ECCLESIASTICAL LAW

I. DEFINITION

The term ecclesiastical law was originally used as a synonym for canon law; even today, it is often employed in this sense, particularly by ecclesiastical writers and generally by those writing in Latin. Indeed, the CIC itself uses the term in this meaning (cann. 27 § 1, 727 § 2, 1513 § 1), sometimes to denote human canon law as opposed to divine law (cann. 1043, 1131 § 2, 1139 § 1, 1926, 2364). Others, however—or rather, others in the past—understood ecclesiastical law as comprising both divine and human canon law, reserving the term canon law in the strict sense only for that of human origin. Still others contrast ecclesiastical law, as encompassing all the law of the Church, with canon law, which would refer only to that contained in the CIC.

However, since the 17th century, Protestant writers and later those with jurisdictionalist tendencies began to use the term ecclesiastical law to designate the body of legal norms issued by the State in ecclesiastical matters. This usage has become increasingly common in modern times, especially in Italy, where, however, some—particularly after the Concordat—prefer the term concordatary law, an expression that others use to denote 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 same development as in Italy, terminology is more uncertain. Thus, treatises on this subject are sometimes titled in France as droit public ecclésiastique and sometimes as droit ecclésiastique; in Germany, the subject is generally referred to as Staatskirchenrecht; in Portuguese-speaking countries as Direito civil-ecclesiastico, a term also used in Belgium (droit civil-ecclésiastique); and finally, in Italian-speaking Switzerland, the term ecclesiastical law is used in the same sense. Latin-language writers employ various devices to avoid confusing this subject with canon law, speaking therefore of ius civile-ecclesiasticum, or ius civile de re ecclesiastica, or ius ecclesiasticum italicum, gallicum, germanicum, etc.

Ecclesiastical law is therefore, according to the most common usage of the term (at least today, and in Italy), the body of norms within the legal system of the State concerning matters that the State itself considers to have a religious purpose (in a narrower sense, this is understood as limited to the Catholic religion). In a broad sense, it also includes norms on matters that, while religious, are not considered as such by the State (e.g., norms on marriage where civil marriage prevails).

II. SOURCES.

It should be noted that this body of norms is partly constituted by norms directly issued and formulated by the State; however, it may also be partly constituted by norms not directly formulated by the State, but rather formulated by reference to the juridical order of the Church. Thus, even these norms of the Church, to which the State may grant the efficacy of juridical norms within its own order, form part of the State’s ecclesiastical law, just as, in the inverse hypothesis, canonized state norms form part of canon law.

These norms can be grouped into three main categories:

a) Norms of bilateral origin, that is, constituting provisions of an agreement between the Holy See and the State, and incorporated into the State’s internal order through the law that executes the agreement itself;

b) Norms of unilateral state origin, namely those directly formulated by the State to regulate ecclesiastical matters: many of these, however, are in turn 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, that is, juridical norms born within the order of the Church and adopted by the State, made effective as norms of its own order through a process that can be considered as renvoi by reception.

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

VIII. MISSIONARY LAW.

Missionary law refers to that law which is in force both in mission territories and outside them, and which in some way concerns missionaries and missions qua 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 the laws that regulate the work of missions. It is called canonical because it emanates from the Church and includes not only laws properly so called, but also less solemn dispositions and norms, which originate either from divine law or from ecclesiastical law. It concerns not only the persons who are in mission, but also others who are outside it, and not only the territories of evangelization, but indirectly also those of common law, with respect to the institutes and seminaries subject to Propaganda that may be found there.

External or civil missionary law derives its origin from civil States and is either international or national. The former comprises international treaties and 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 manner, concerns missions and missionaries and is issued by a State. This law is called metropolitan if it concerns the mother country; it is called colonial if it refers to the colonies. Both may exist in mission territories.

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

Notable examples include, besides concordats with certain South American States such as Colombia, the conventions between the Holy See and Portugal concerning India and Macao (1928) and the diocese of Meliapor (1929), as well as the missionary agreement with Portugal (1940), and the agreement with France regarding liturgical honors for French representatives (1926).

In general, missionary law has not developed logically but presents adaptations and improvements more in response to difficulties to be overcome than to doctrinal principles. It is a simple and expeditious law, not rigid and absolute, but flexible and varied, which pays less attention to the name of the juridical institutes created than to their utility. One of its characteristics derives from the fact that missions are entrusted, in the great majority, to religious. Furthermore, it includes many faculties, privileges, and indults, mostly granted in derogation of the norms of general canon law, with the aim of facilitating missionary work. Thus, missionary law does not place the clergy and faithful of nascent new Churches in a position of inferiority but aims to accelerate ever more 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 subsequent centuries, especially after the twelfth and particularly after the foundation of Propaganda. During the Vatican Council, an attempt was made to codify missionary law, which was not carried out due to the sudden interruption of the council itself. The CIC contains several canons concerning missions, but the prescriptions contained therein do not exhaust the vast subject in question. To obtain, therefore, the complete system of missionary law, one must refer not only to the canons of canon law but also to the numerous dispositions issued especially by Propaganda, some of which have not been made public and others contained in common and particular collections.

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

S. Paventi, La Chiesa missionaria. Manuale di missionologia dottrinale, ivi 1949, pp. 59-90. Saverio Paventi

IX. LAW AMONG PRIMITIVE PEOPLES.

I. GENERAL NOTES

Among primitive peoples, as well as among those of higher civilization, such as the Chinese, law is founded on morality and cannot be understood without it; particularly in the determination of punishment, justice and the greatest edification of the people are sought. Since the demands of daily communal life, the moral and religious ideal inspire and enliven reciprocal relations among the members of the community, the laws of the family, clan, and tribe—just as among historical peoples—so too among primitives there is no juridical stagnation, but law has its own characteristic life, like the civilization in which it is embedded. For example, the Miaoze of Southeast Asia hold a solemn assembly at the beginning of each agricultural year, in which they establish norms for the community to prevent the recurrence of past disputes; among the Giagga of East Africa, tradition attests that in ancient times the fine for a woman’s adultery was two goats (v. beyond).

The law of primitives also exerts its influence on the written law of so-called historical peoples of high culture, for these naturally trace their existence back to a time when they did not yet use writing. Such influences are, however, more abundant in their customary law, in which, as in folklore, three layers must be distinguished. The first is an upper layer, the product of higher culture, into which, however, individual outgrowths of deeper layers also emerge; the second is a middle layer, consisting of byproducts of the upper layer and products of ancient primitive culture; the third is the lower layer, consisting solely of elements from the prehistoric period, that is, 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, called by Post jurisprudence ethnologique, but later more commonly and precisely legal ethnology. Starting from the comparative study of the juridical order existing at a given time—generally the present, which is ordinarily accessible to us—among a specific people, this discipline broadens its temporal perspective to trace the history of that people’s law; by then expanding its spatial or geographical perspective, it arrives at a universal history of law, always demonstrating the concrete causality of individual phenomena. It achieves its ideal aim by uniting all juridical phenomena observable in the history of human development into a system, obtained through the broadest possible extension of the functions of space, time, and causality. By its nature, therefore, it tends toward 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 set by evolutionist ethnologists, who regarded ethnology simply as a natural science of social life. Such were Bachofen, A. H. Post, Kohler, Bastian, Morgan, McLennan, Andrée, Giraud-Teulon, Steinmetz, Dargun, Max Schmidt, Mazzarella, and others. Among legal ethnologists, A. H. Post (1839-95) holds the most distinguished place, considered the founder of legal ethnology, having been the first to systematically and broadly frame its problems. He is a typical evolutionist ethnologist. Under the influence of positivist sociology, the noted historical school of law, the phenomenalist philosophy of Kant and Schopenhauer, and especially Darwin’s theory of evolution, he conceived of human history mechanistically, regarding all humanity as a unitary mass with an equal developmental tendency, in which the individual counts for nothing, unable to influence it with his will, being unconsciously placed within it, since evolution is a fatalistic phenomenon extending over centuries and millennia. All peoples would have passed through the same stages of evolution: man, a pure animal living in an animal society, knew no marital bonds, so the history of the human family begins with the transition from primordial promiscuity to group marriage, then to marriage by abduction, then to marriage by purchase; from polygamy, monogamy would have been reached, from matriarchy—when children knew only their mother—to patriarchy; while human society, first formed in a gentile type, would have then transformed into a territorial type, then into a seigneurial one, and finally into a corporate one.

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

A deeper examination of ethnological problems, achieved both through the application of the historical method in ethnology and through broader and more precise ethnographic documentation, has highlighted the unfoundedness 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 relations and the historical individuality of each primitive people. Since every type of civilization corresponds to a characteristic juridical order or system, the different juridical systems are as numerous as the different types of human civilization existing in the world, which depend on the diversity of social organization, economy, constitution of public authority and its extent, relations among different social groups within the scope of authority, stability or instability of residence, development of technical arts and crafts, the form of property of the individual, family, tribe, and clan, commerce and communications, and conceptions of life and the world.

II. LEGAL SYSTEMS AND CULTURAL FORMS

According to the findings of modern ethnology, eight distinct legal systems can today be distinguished, corresponding to eight characteristic forms of civilization, which are also genetically connected, at least with great likelihood. Since it is not possible to discuss all of them here, brief notes are provided on four of these, 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 labor is divided equally between the two sexes. Marriage is monogamous and freely entered into by the young man and woman according to exogamy. The modalities of marriage and betrothal vary widely among different gathering peoples.

2. Peoples who live by raising large herds of livestock form a characteristic type of civilization, called that of patriarchal nomadic herders. Since married sons remain in the family under the father’s authority, the extended family has developed, consisting of many generations of blood relatives and their wives, as long as the memory of the ancestor endures, or until it reaches five or nine generations before dividing, as among the Manchus, Tungus, and Yakuts. The father’s authority is very great, including even the right of life and death over family members, but it is often mitigated, in a later stage of development, by the assembly of elders. Since authority and membership of children belong to the father, patriarchy arises. The initiation of youth falls into disuse in a later phase of development. Marriage is exogamous.

Tribal authority handles common legal and economic matters, such as the allocation of pastures necessary for each clan, settles disputes, manages relations with other tribes, decides on vengeance or compensation for homicide, and especially organizes defense against enemy tribes. However, the state, in the form of the tribe, is generally, especially in the early stages of this civilization’s development, almost inactive, because the extended family manages everything independently, as if separate from the state.

Monotheistic religion, with the characteristic belief in the God of Heaven, imposes many observances and rites. Sacrifices to God are particularly notable during 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 hold special importance.

3. The law in totemic civilization, unlike that of nomadic herders, reflects a great development of the state with multiple social organizations and common artisanal and economic activities, as well as the development of artistic sensibility and commerce, but to the detriment of the family and the human person in its spiritual values.

The tribes and clans that compose it have as their ancestor the totem, usually an animal but also a plant or an object, in relation to which all descendants are bound to observe many taboos (prohibitions). A characteristic belief of totemism, which is not religious in nature but social, with multiple social and economic effects, must be distinguished from the totemism of the sexes, individual totemism, and nagualism. There is, therefore, a dual kinship: natural and totemic, of which only the latter serves as a rule of exogamy when contracting marriage. Each clan has its own totem, the name of which, along 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 placed on houses, weapons, and the body.

When totemic civilization intersects with matriarchal civilization, a much more complex social organization develops, depending on the prevalence of one or the other, with the formation of four or eight totemic clans and exogamous phratries and subphratries, and matrilineal or patrilineal descent. Marriage is not directly arranged by the interested parties, and the choice of bride is limited to one’s own class according to exogamic law and may be determined from childhood or even before birth, by choosing the future mother-in-law. Sororal polygamy is permitted, provided one can support multiple wives. There are no betrothal 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 one of inferiority relative to men.

In totemism, the concept and worship of God are obscured by the great development of magic and superstitions, as well as 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 matriarchy, in which within the family and tribe hereditary descent is matrilineal rather than patrilineal, was the Swiss jurist and philologist Bachofen, with his work of the same title, further specified as An Inquiry into the Gynaecocracy of the Ancient World According to Its Religious and Legal Nature (1861). He began with the Lycians of Asia Minor and from his inquiry inferred that all peoples had passed through matriarchy; today, however, it is demonstrated that this is not the case. Rather, this type of civilization is better characterized as the exogamous matriarchal agricultural civilization of small farmers (who use only the hoe and not the plow). The woman, likely the first inventor of agriculture, became the personal owner of the cultivated field, its produce, the house, and the means of labor. The right of property was inherited by daughters and not by sons, and this is still the case among many peoples. In one form of matriarchy, which would be the first phase of development, the woman does not go to the husband’s family after marriage; her husband visits her from time to time, becoming like a guest in her family. Thus, the wife’s brother, or in his absence her uncle, acquires, as administrator of his sister, special rights and duties regarding the nephews, for 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 matriarchy, 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 bina in Ceylon, which does not admit secondary wives or concubines but is monogamous, and no payment is made to obtain the bride.

In another form of matriarchy, which would be the third phase of development, the young man, before marrying, must serve in the house of his future in-laws for a set period, sometimes up to four years, as is done among the Italmi of northeastern Asia. This is the so-called service marriage. In another form of matriarchy, which would be the fourth phase of development, the groom, instead of working in the house of his in-laws, offers them gifts to obtain the bride, a marriage thus called by purchase. After the wedding, the woman goes to the house and tribe of the husband, but she and her children always belong to her own tribe; succession remains matrilineal. 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.

In this civilization, secret societies exist, to which only men may belong after submitting to various ceremonies and trials, sometimes extremely harsh and immoral. Special trials and consecrations are required to ascend the different ranks of these secret societies, which they ordinarily possess—ranks, however, reserved for those who can afford the required gifts, unattainable for the poor. These are anti-feminine societies, perhaps created specifically to react against the preeminence of women in this civilization, and they practically hold the administration of justice and the preservation of state order. They perform masked dances, in which the dancers must not be recognized, even in public before women and the uninitiated, to instill fear and terror in them.

Exceptionally, true gynaeocracy has existed, that is, with women at the head of assembly and government, as among the Hurons of North America; in most cases, however, even in these instances, she has always had men at her side. When this civilization and the totemic one intersect with that of nomadic herders, the formation of aristocracy and dynasties in secondary and tertiary civilizations occurs, from which those of historical peoples derive.

Religion has as its particular feature the cult of the dead and of spirits, which requires sacrifices and rites in private and in public; in secret societies, it is the cult of male ancestors alone. Monotheism weakens.

III. THE ORIGIN OF LAW

Legal ethnology of the evolutionist school maintained that law, like every other cultural manifestation, originated from elementary forms emerging from man's first evolution from pure animality to his long development as Homo sapiens. Today, however, most ethnologists, anthropologists, linguists, and prehistorians have rejected the polygenist thesis and accepted the monogenetic origin of man, tending to demonstrate this unity in terms of civilization, race, and language. Therefore, all legal systems currently existing in the world presuppose a first legal system, distinctly human, reflecting the cultural conditions of the first human family and the first people on earth. It is no longer possible to ascertain this in its reality, but it can be deduced from what is observed among the ethnologically oldest peoples, as is done for religion, economy, and other cultural manifestations.

Religious law cannot derive from magic, as it is impossible to create law between anonymous forces and men, and even less so bonds among members of a religious community; it can only arise when both a transcendent and personal spiritual Being is recognized, with whom man can interact and who can be the object of collective worship, and when principles of spiritual life sufficiently coherent and rational exist to form the basis of a religious community.

Luigi Vannicelli

RIGHT OF ASYLUM: ASYLUM, RIGHT OF.