EXEMPTION. - In canon law the term e., from its rudimentary etymological meaning (ex emere: to remove, to free from...), has come to denote the freeing of a person, physical or moral, from pre-existing and obligatory subjection to a superior.
SUMMARY:
I. Concept
II. The development of e. over the centuries. Modes of granting II. -III. The objective extent of e
IV. The e. currently in force in canon law. - V. e. of religious.I. CONCEPT
The divinely positive structure of the Church entails that all the faithful, in addition to being subject to the Supreme Pontiff, are in principle subject to a residential bishop, or to that local Ordinary who takes his place in one of the ways established by canon law (abbot or prelate nullius, apostolic vicar or prefect, apostolic administrator, capitular vicar). But although, on the basis of divine positive law, the principle of the subjection of all the baptized to the local Ordinary can and must be established with such absoluteness, an equally simple and precise principle cannot be laid down with regard to the objective extent of this subjection. Indeed, whereas the jurisdiction of the local Ordinary is necessarily linked to the territory, the universality of the Church leads most religious institutions to be pluridiocesan, having arisen providentially as a deduction ad consequentias from the very purpose of the society founded by Jesus Christ and recognized by canon law. Now, it is obvious that the pluridiocesan character of these institutions implies a need for freedom from the authority of the local Ordinary, without which the fulfillment of the purpose of such institutions would be impossible, or at least very difficult. This need, entailing a corresponding exclusion of the «obligatory subjection» (presupposed by the concept of exemption), thereby limits, with regard to its objective extent, the aforementioned principle of the subjection of all the baptized to their own Ordinary. Nevertheless, the difficulty of determining this proper sphere of freedom by precise rules led both in practice—that is, in the measures adopted by the competent ecclesiastical authority—and in doctrine to make the objective extent of subjection to the local Ordinary coincide with the principle of the subjection of persons; that is, to proceed from the presupposition of a total obligatory subjection, excluding any inherent freedom.This criterion also applied with regard to the other levels of the ecclesiastical hierarchy introduced by canon law; these, naturally, increased the possible and actual exemptions in equal measure. The increased number of ecclesiastical authorities also multiplied the active subjects of exemptions, that is, superiors who had the possibility of freeing their subjects from a subordinate superior, while the limiting rule remained in force that no superior can ever dispense from subjection to his own authority.
II. THE EVOLUTION OF EXEMPTION OVER THE CENTURIES. METHODS OF GRANTING II. — The granting of exemption, over the course of the centuries, was prompted by various causes, which may nevertheless be reduced to two groups, to be called respectively violent causes and normal causes. The first group includes simony, concubinage, the Western Schism, the interference of civil authority in ecclesiastical affairs, etc. (since it was not possible to depose an unworthy bishop, churches, monasteries, etc. were exempted). Once these violent causes ceased, the exemptions granted to remedy these exceptional situations should in themselves have disappeared, had it not been all too human for those concerned to seek to prolong, at least partially, the favorable condition in which they had come to find themselves.
But in a certain sense—and that is, in its profound effects—the most violent of all the causes of ecclesiastical exemption was the spread of the ecclesia propria, a product of Germanic law, whose criterion of the prevalence of rights arising from landed lordship over jurisdictional rights made it possible to arrive tout court at complete exemption from the Ordinary of the place.
Among the normal causes, on the other hand, one must first recall the cenobitic form of religious life, initially officially recognized and subsequently, from the time of the Fourth Lateran Council (1215), becoming an essential juridical element of the religious state. With it there arose, and with its gradual consolidation (monasteries, monastic congregations, centralized Orders) there developed, parallel to the ordinary hierarchy, the internal hierarchy of religious institutes. Around the nucleus of the natural liberties of any lawful association (which cannot be sacrificed in view of a greater supernatural good), this hierarchy adds at least that other liberty which prevents religious superiors from being reduced to mere vicars of the Ordinary of the place. One must also recall the character of a clerical religion officially recognized by canon law, through which clerical life is incorporated into religious life; the requirements of the latter exclude the possibility that, with regard to the priestly formation of those entrusted to him, the religious superior should stand in relation to the Ordinary of the place in the position of the rector of a diocesan seminary.
To this twofold order of causes one must add, for certain periods, the search for ever-new privileges, to which the influence of the politico-social situation created by feudalism, corporatism, municipal fragmentation, etc., was not unrelated.
In any event, especially with the Council of Trent, canonical discipline systematically freed itself from exemptions which, owing to the changed conditions of the times, would have proved harmful to the ecclesiastical structure, directing the exemptions that survived and those that would subsequently be granted toward a rational framework, which will be described by setting forth the results derivable from the CIC with regard to religious.
To understand the current ecclesiastical discipline concerning exemptions, it is indispensable to know their various kinds; this, moreover, is connected with the historical development of canon law and, in particular, with the ways in which such exemptions were granted and with their content.
The first exemptions (taking the word in its broadest sense), by which the Roman pontiffs sought to ensure a suitable freedom from the Ordinary of the place for various monasteries of the West (the wise provisions of s. Gregory the Great are especially noteworthy), were granted directly to the juridical person constituted by the monastery. Later, however, as has already been mentioned, under the influence of Germanic law, the Church too came to declare certain places exempt, making them vehicles of exemption for particular persons residing in them. Thus, rightly, the first exemptions were called personal and the second local, although, as is obvious, the subject of exemption has always been persons. The new aspect assumed by religious life among the Mendicants through the systematic exercise of the apostolate, which often brought these religious outside the convent, made it necessary to protect their persons directly by means of special personal exemptions. To complete these, the places of their residence were also exempted,
thus creating a new type of exemption of places, not to be confused with local exemption and which might be called exempio locorum.
With this clarification, it is intuitively clear that the expression mixed exemption cannot be admitted to designate the combination of local and personal exemptions; the expression may instead be used for the combination of the exempiones locorum and personal exemptions, and thus may be applied to the current exemption enjoyed by regulars and other exempt religious.
From the diversity of the juridical effects attached to local exemption arises the distinction of this exemption into passive and active, and the division of passive exemption into plena and semi-plena. What happened was that certain monasteries and certain churches of particular importance, after obtaining a more or less extensive exemption in favor of the monks or clergy belonging to the monastery or church—an exemption consisting in removal from the authority of the diocesan bishop (that is, “negative” advantages, such as escaping his canonical penalties) and in the transfer of an almost equivalent authority to the abbot or prelate placed at the head of the monastery or church (that is, “positive” advantages)—obtained permission to extend part of the exemption to the population included within their territory. When only “negative” advantages passed to that population, there was exempio locali passiva plena; when, instead, the abbot or prelate could exercise a certain power over that population, that is, agere in some way in its favor, there was exempio locali activa; finally, when not even the negative advantages could be communicated, one spoke of exempio (localis) passiva minus plena. The apex of exempio activa was reached by abbeys and prelatures nullus. It should be noted that in the current exemption enjoyed by exempt clerical religious, a new type of “activity” occurs, inasmuch as, not by virtue of a local exemption but derivatively from the combination of the personal exemptions and the exemptions “of the places” that form the unified whole of the privilegium exemptionis (the prerogative of exempt religious institutes), even those who reside permanently, day and night, in religious institutes for reasons of education, illness, service, and hospitality (cf. can. 514 § 1) come in a certain way to enjoy exemption with regard to confessions, preaching, and vows, etc., being able to confess to confessors authorized solely by the legitimate religious superior, listen to preachers approved solely by him, etc.
III. THE OBJECTIVE EXTENT OF E
To supplement this brief informative introduction, three observations must be added concerning the extent that this special juridical-canonical provision may assume.1) The nature of the subject affected (according as it is a physical or juridical person, a clerical or lay religious institute, etc.) makes possible a greater or lesser objective extent of e. For example, in order for the secular clergy to be exempt from the Ordinary of the place, it is sufficient that the exercise of the latter’s authority be excluded in certain areas of canonical discipline; on the other hand, in order that clerical religious institutes—since it would be incongruous for the Holy See to exercise directly over them all the authority that would, in itself, belong to the Ordinary of the place—may in fact enjoy e. from that Ordinary, it is necessary that a power almost equivalent to that of the Ordinary of the place be transferred to their superiors. 2) Whenever—that is, with regard to any point of canonical discipline—a physical or juridical person is released from a pre-existing and obligatory subjection to a superior, e. thereby occurs; nevertheless, cases of e. must be distinguished from the various juridical institutions concerning e. 3) For centuries canon law has given the expression privilegium exemptionis the specific meaning of a systematic grant of e. from the Ordinary of the place, from which one departs only by means of certain exceptions (praeterquam in coilius a iure expressis). The qualification religio exempta (can. 483 n. 2), given to all Orders—with the exception of nuns who do not depend upon a regular prelate (can. 613)—and to religious institutes of simple vows to which the privilegium exemptionis has been specially granted (can. 618 § 1), is granted with this official meaning (cf., for example, cann. 616 § 1, 618 § 1) of the expression privilegium exemptionis. But, evidently, just as outside the unified complex of the privilegium exemptionis there is room for precise and effective e. limited to certain points of canonical discipline, so it is not excluded that religious not numbered among the “exempt” (and therefore, in this sense, “non-exempt”) may enjoy, and in fact do enjoy, certain exemptions from their pre-existing and obligatory subjection to the Ordinary of the place. Therefore, in order to respect the official designation religio exempta, while at the same time not contradicting reality, one must logically distinguish between e. properly so called (called privilegium exemptionis) and improper e. (the juridical and concrete release from some aspect of the normal subjection established by canonical discipline).
IV. EXEMPTIONS CURRENTLY IN FORCE IN CANON LAW
Turning now to the discipline of canon law currently in force, and taking into account the superior by whom one may be declared exempt, there is exemption, total or partial, from the local Ordinary, the metropolitan, religious superiors, the parish priest, and the Tribunals of the Holy See. The abbeys and prelatures nullius (cann. 319–28), cardinals (unless they themselves are local Ordinaries; the CIC expressly speaks of the exemption of the private chapel: can. 239 § 1, 18, but also implicitly indicates that concerning judicial cases in can. 1557 § 1, 2; moreover, a genuine exemption also arises from can. 239 § 1, 2, concerning the power to confess to priests not approved by the local Ordinary, etc.), heads of state, their sons and daughters, and those who have the right to immediate succession are entirely exempt from the local Ordinary with regard to judicial cases in general (can. 1557 § 1, 1), and matrimonial cases in particular (can. 1962), the imposition or declaration of ecclesiastical penalties (can. 2227 § 1), and the obligation to appear as witnesses at the seat of the diocesan tribunal (cann. 1770 § 2, 1); the religious, of whom more will be said below, are likewise exempt. Provision is also made for the exemption of soldiers (cf. can. 451 § 3) and of certain churches (cf. can. 344 § 1), within limits to be established on each occasion by the Holy See.The bishops immediately subject to the Holy See and exempt religious are exempt from the metropolitan.
Diocesan seminaries (can. 1368) and exempt religious are completely exempt from the parish priest; in practice, clerical religious institutes, even non-exempt ones, are also so exempt; moreover, religious houses and pious works may be exempt if the local Ordinary so determines and declares them to be such (can. 464 § 2). In addition, exemption applies with regard to the ius funerandi to cardinals (can. 1219 § 1), residential beneficiaries (can. 1220), religious and novices (cann. 1221 §§ 1–2, 1230 § 5), as well as to servants who permanently reside in the houses of these religious and die in those houses (can. 1221 § 3).
Heads of state, etc., cardinals, legates of the Holy See, and bishops, even titular bishops, are exempt from the ordinary tribunals of the Holy See with regard to criminal cases (can. 1557 § 1).
In the apostolic constitution Ad incrementum decepti of Pius XI (15 Aug. 1933, AAS, [1934], p. 497), the assessors and secretaries of the Sacred Roman Congregations, the protonotaries apostolic de numero, the prelature judges of the Sacred Roman Rota, and the clerics of the Reverenda Camera Apostolica, for as long as they retain their domicile in Rome, are declared exempt from the local Ordinary; the voting prelates and referendaries of the Segnatura are placed in the same condition as those mentioned above.
In the law of the Eastern Church, there is a juridical institution analogous to exemption, called the right of stauroregy.
V. E. DEI RELIGIOSI. - The categories to which all religions may be assigned with regard to their freedom from the Ordinary of the place according to
the common law (that is, leaving aside the special e. granted to individual religions) may be grouped into three fundamental sections: exempt religious institutes, non-exempt religious institutes of pontifical right, and congregations of diocesan right. The foundation of the freedom of the first section is the principle of systematic e. contained in the privilegium exemptionis, from which one may depart only in casibus a iure expressis (can. 615). The foundation of the second section is the principle of freedom with regard to internal governance, likewise not subject to derogation except in casibus in iure expressis. The foundation of the third section is the distinction between internal and external superiors.
The demands for greater freedom inherent in the clerical character of the religious institute, and also—but to a far lesser degree—in the fact that it is a male religious institute, have led to the subdivision of the sections into their respective categories. Thus, in the section of exempt religious institutes there are: clerical Orders, exempt clerical congregations, lay Orders of men, and nuns subject to a regular prelate; in the section of non-exempt religious institutes of pontifical right: clerical congregations, male lay congregations, women’s congregations, and nuns not dependent upon a regular prelate. In the third section: clerical congregations, male lay congregations, and women’s congregations.
The concrete content of the freedom enjoyed by each of these categories is given by the sum of the points of canon law in which those categories are exempted from episcopal authority. For exempt religious institutes, this sum emerges indirectly from the exhaustive enumeration of the cases of subjection that derogate from the fundamental principle of e.; for non-exempt religious institutes, on the other hand, it emerges directly from the enumeration of the cases of freedom limiting the contrary principle of subjection. But, for the purposes of an intuitive presentation of the first and second kinds of “sum,” it may also be useful to specify what can be derived from the prescriptions of the CIC in cases where exempt religious institutes enjoy freedom by virtue of the fundamental principle contained in the privilegium exemptionis, and, conversely, to specify all the cases in which the absence of the privilegium exemptionis, not mitigated by corresponding grants of freedom, keeps non-exempt religious institutes subject to the authority of the Ordinary of the place.
Since it is obviously impossible here to summarize, even by a simple enumeration of the respective canons, these juridical situations of the various categories of religious institutes with regard to their freedom from the Ordinary of the place, we shall confine ourselves to three examples. More as a matter of principle than as an example, can. 501 § 1 should be recalled, by which exempt clerical religious institutes are granted, in addition to the dominative power recognized to all religious institutes (insofar as it is capable of quantitative and qualitative specification according to the juridical standing of the various categories of religious institutes, and thus itself constitutes the source and measure of the corresponding degree of freedom from the Ordinary of the place), the power of jurisdiction in the external and internal forum. Through this power, clerical religious institutes attain in the matter of e. those positive advantages of freedom concerning confessions, preaching, punitive power, etc., without which—especially in view of what the clerical character of these religious institutes entails—the e. granted through a fundamental principle would in reality remain mutilated. The jurisdictional power granted causes the major superiors of such religious institutes to take their place among the Ordinaries (can. 198 § 1), so that normally, in all prescriptions of canon law in which the term Ordinary appears, exempt clerical religious institutes, instead of depending upon the Ordinary of the place, depend upon their own major superiors.
To non-exempt religious institutes of pontifical right, the current canon law recognizes, by means of a fundamental principle, freedom from the Ordinary of the place with regard to internal governance (can. 618 § 2, 2). Now, in order to give this principle its proper scope, one must bear in mind the extent attained by internal governance according to the character of the religious institute. In clerical religious institutes, since clerical life is incorporated into religious life, internal governance, juridically, acquires a considerably greater extension than that reached by the corresponding lay religious institutes, and thus becomes the source and measure of greater freedom from the Ordinary of the place (cf. above all A. Larmona, De potestate dominativa publica in iure canonico, in Acto Congressus Iuridici Intern. Romae, 12-17 nov. 1934, IV, pp. 145-86).
Finally—and also in order to justify the inclusion of congregations of diocesan right (plainly subject to the Ordinary of the place, but ad nominam iuris) within the framework of the various degrees of freedom from the Ordinary of the place recognized to religious institutes—it should be observed that everything which current canon law reserves to the Holy See (whereas under the earlier discipline it fell within the competence of the diocesan Ordinary) comes to constitute a genuine and absolute freedom from that Ordinary. Fundamental in this regard is the provision reserving to the Holy See the suppression of the sole house of which a congregation of diocesan right might consist. It is enough, in fact, to consider what a situation of dependence the absence of such a provision would entail—and has in fact entailed.