GIURISDIZIONE

JURISDICTION. - Iurisdictio (from ius and dicere), in Roman legal sources, denotes the activity of those who administer justice.

OUTLINE:

I. Concepts

II. Distinctions

III. Active Subject

IV. Passive Subject

V. Interpretation

VI. Exercise

VII. Appeal

VIII. Cessation

IX. Supplementary Jurisdiction

X. Presumed Jurisdiction.

I. Concepts

In modern civil law, jurisdiction is understood as the activity of the State directed toward the enforcement of legal norms in cases of dispute or transgression. Since its aim is always the enforcement of objective law, it may be said that jurisdiction in the State is unitary. However, since objective law is subdivided into civil, administrative, and penal law, there is also civil, administrative, and penal jurisdiction: the first for private law relations, the second for certain relations in which the public administration is a party, and the third for the application of penal norms.

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

As a public or governing power, jurisdiction belongs to the Church, as it does to the State, insofar as it is a necessary and perfect society, and therefore also to the parts and organs deriving from II. By reason of its public character, jurisdiction is essentially distinct from every private power (dominative, domestic, etc.). The acts or measures which the Church issues by virtue of its jurisdictional power impose an obligation to obey: they are, that is, imperative and obligatory in character. In this respect, jurisdiction agrees with the power of the internal forum, but differs essentially from it, because the former, unlike the latter, is directly ordered to the common good. It also differs from the power of order, although, like it, it is directed to the ultimate end of the salvation of souls; this, which is man’s supernatural end, can be attained through grace and the cooperation of the will; however, whereas the power of order concerns the means that produce grace (the sacraments) or that command it (sacramentals), the power of jurisdiction has as its object the activity of subjects. There is, however, no essential difference between jurisdiction and the power of the magisterium, inasmuch as the latter is the power to teach revealed truths and truths connected with them in an authoritative manner, that is, with the faculty of imposing the obedience of intellect and will to such teaching; in this respect, the magisterium is nothing other than a part of the power of jurisdiction.

II. Distinctions

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

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

III. Active Subject

Only clerics can possess jurisdictional power. Indeed, in most cases, the quality of priest is required (cf. can. 154, 232 § 1; 331 § 1, n. 3; 367 § 1; 1573 § 4; 1598 § 2). Other particular requirements are also established for individual offices.

According to common doctrine, the incapacity of the unbaptized (and, according to some, also of women), to obtain jurisdiction in the Church is of divine right. The incapacity of baptized laity, on the other hand, is of ecclesiastical right, from which the Supreme Pontiff can dispense. Other limitations on the capacity of clerics themselves derive from ecclesiastical penalties (cf. can. 2264; 2265; 2275, n. 3; 2284; 2294 § 1; 2298, n. 5; 2303 § 1).

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

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

Not all these persons and organs, however, possess jurisdiction to the same degree or extent. To the Supreme Pontiff belongs supreme and universal power of government, limited only by divine, natural, and positive law. Bishops, however much one may dispute whether they receive it immediately from God or through the Roman Pontiff, in fact depend in its exercise on the Pope of Rome, who appoints them and assigns to them the territory (diocese) in which they are to exercise II. Even when considered collegially, bishops could not govern or teach the Church independently of the Pope, because, even gathered in council, they do not cease to depend on him. The same ecumenical council, according to the majority of theologians, does not possess in the disciplinary field a distinct authority of its own, because there is only one primacy in the Church. The Pope, however, who can depose individual bishops and limit their authority, could not suppress the episcopate or empty it of its powers, because this is of divine institution. Apart from the Roman Pontiff, no bishop possesses jurisdiction over other bishops by divine right: the degrees of patriarchal (even in the Eastern Churches), primatial, and metropolitan jurisdiction are participations in the Roman primacy.

The pontifical power of jurisdiction is not only supreme and universal, but also immediate and complete over all the baptized and confirmed, so that it can be exercised everywhere, without other persons, even if invested with jurisdiction, being able to prevent or limit II. For all other prelates, jurisdiction is limited according to their office. Since ordinary jurisdiction is inherent in the office, it is acquired in the same way as the office itself, namely: by free collation by the superior, by institution, by confirmation, or by simple election (cf. can. 148). It may have limits in exemption (cf. can. 239 § 1, n. 18; 615; 618), in reservation (for the external forum: cf. can. 1431; 1434; 1435 § 1; 1487 § 3; 2251; for the internal forum: cf. can. 893 and 896) and in appeal (cf. can. 1889).

It is not possible to enumerate the persons who have a delegated power of jurisdiction: this depends, in fact, on the free concession of the delegator. Anyone who has ordinary jurisdiction may delegate it in whole or in part, unless expressly prohibited by law: thus, for example, one could not delegate in perpetuity without the consent of his superior all his own jurisdiction, because such a delegation would be equivalent to an abdication and the creation of a new magistrate. The Roman Pontiff could renounce it, but could not commit his jurisdiction to a delegate or vicegerent, because such a delegation would be tantamount to creating another pope; moreover, the prerogative of infallibility could never be delegated.

Delegated jurisdiction can be subdelegated: a) either habitually or by a single act, the jurisdiction delegated by the Holy See, unless such power was delegated on account of the delegate’s personal qualities, or unless subdelegation was forbidden; b) the power ad universitatem negotiorum, delegated by an inferior of the Roman Pontiff, may likewise be subdelegated, but only “in individual cases.” Except for jurisdiction delegated by the Holy See or ad universitatem negotiorum, delegated jurisdiction can be subdelegated only by express concession of the delegator. Nevertheless, even without express concession, delegated judges may always subdelegate a non-jurisdictional power. No subdelegated power may itself be subdelegated, except by express concession of him who, by ordinary power, delegated it (can. 199).

The powers of the delegate begin from the date of the rescript if the rescript is granted in gracious form; from the moment of execution if the rescript is in commissorial form; the disposition of the delegate granted verbally directly by the delegator to the delegate begins from the moment of the concession; if the delegation is remitted by the delegator to a necessary executor, it begins from the moment of the delegator’s concession; if it is remitted by the delegator to a free executor, it begins from the moment of the executor’s concession. The exercise of jurisdiction does not, for its validity, depend on knowledge of its concession. Outside the case of necessity, the use of this power of which possession is still unknown would, however, be illicit, in view of the danger of performing invalid acts (cf., e.g., P. Laymann, *Theologia moralis*, Venice 1714, lib. I, tract. IV, cap. 23, § 10, p. 79).

The limit of delegated jurisdiction depends on the will and power of the delegator. Since delegation is an act, it is not presumed but must be proved by the delegate (can. 200 § 2).

IV. PASSIVE SUBJECT

All those who have received baptism are subject to the Church’s jurisdiction, including apostates, heretics, and schismatics. In concreto, however, not all the faithful are subject to all persons or organs that have jurisdiction: the Supreme Pontiff, whether within or outside an ecumenical council, has jurisdiction over all the baptized and confirmed, whether he exercises it personally or through the Sacred Congregations, Tribunals, and Offices of the Holy See. Other persons and organs have jurisdiction only over a part of the faithful, determined by the office to which the jurisdiction itself is attached.

V. INTERPRETATION

The power of ordinary jurisdiction and that delegated *ad universitatem negotiorum* must be interpreted broadly; all other delegated powers must be interpreted strictly. To one who has delegated power, there are always understood to be granted all those faculties without which the delegated power could not be exercised (can. 200 § 1; thus, for example, whoever has the faculty to absolve a heretic may also receive it). Habitual faculties, which are granted in perpetuity or even for a determined time or for a certain number of cases, must be interpreted broadly (can. 66 § 1; can. 68 and 50).

VI. EXERCISE

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

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

The power of the delegate has its foundation and its limit in the mandate: if he exceeds this limit, whether with regard to persons or things, the delegate acts without power and therefore invalidly (can. 203 § 1). Unless, however, the delegator has made the manner of exercising the delegated power a condition essential to the mandate, the limits of the power are not exceeded if the delegate exercises it in a manner different from that desired by the delegator (can. 203 § 2).

Jurisdiction may be delegated also to several persons, whether physical or moral (a Chapter, a religious institute, etc.). These persons

Delegation may be granted either jointly and severally or collegially. In joint and several delegation, each delegate may exercise his power freely; in collegial delegation, the delegates must act collegially. In case of doubt whether the delegation is joint and several or collegial, it is presumed to be collegial "in re iudiciali," and joint and several in other cases (can. 205 § 1). In the exercise of joint and several delegation, the principle of prevention applies, so that whoever first takes up the matter excludes the others, unless subsequently prevented or refuses to continue (can. 205 § 2). In the exercise of collegial delegation, however, the co-delegates must proceed together, and acts not performed collegially are invalid, unless otherwise stated in the mandate (can. 205 § 3).

When the same delegation is granted to several persons at different times, the exercise of the delegated power belongs to the delegate who has the earlier mandate, provided that this is not expressly revoked by a later one (can. 205).

VII. Appeal

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

If the recourse is joined with the intention of not submitting to the Roman Pontiff or of not communicating with the faithful subject to him, the crime of schism (can. 1325 § 2 and 2314) or the crime of rebellion against the Supreme Pontiff (can. 2331) may be incurred; recourse to an ecumenical council against the commands of the Pope is punished with excommunication "speciali modo" reserved, and, if it concerns moral persons, with interdict likewise reserved "speciali modo" (can. 228 § 2 and 2332). Against acts of the congregations or offices of the Roman Curia, recourse may always be made in the way of grace to the Supreme Pontiff, or also to the congregation itself for the suspension, revocation, or reconsideration of the provision. Against provisions of inferior organs, recourse is likewise admitted to the hierarchical superior, and in every case to the Holy See. Judicial action, even for the compensation of damages, is however excluded against administrative acts (can. 1601, 2146).

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

These norms, however, do not apply to the internal forum, in which, even after recourse to the superior, it is always licit to approach the inferior, and the favor granted by the inferior after being denied by the superior is valid.

VIII. Cessation

Ordinary jurisdiction ceases in the same ways as the office to which it is attached is lost, namely, besides death, by resignation, translation, privation, and cessation of the office. It does not, however, cease if the superior who granted it loses his office (can. 208). Delegated jurisdiction ceases in the following ways: a) by the execution of the mandate for which it was granted. In judicial power, this occurs with the sentence, whether just or unjust, erroneous or not (except can. 1878); if, however, it is null, the jurisdiction continues, since what is invalid is considered as not done; for voluntary jurisdiction, can. 59 § 1 permits the executor who has in any way erred in executing the rescript to execute it again; b) by the expiration of the term prescribed in the mandate, or by the exhaustion of the number of cases for which the delegation was granted. However, acts placed inadvertently in the internal forum, sacramental and non-sacramental, remain valid even after the term has expired or the number of cases for which the power was granted has been exhausted (can. 207 § 2); c) by the cessation of the final cause of the delegation, that is, the reason for which the jurisdiction was delegated; this does not, however, cease if the final cause fails only in part, or if of several final causes any one remains; d) by revocation by the delegant. For the revocation to have effect, that is, to determine the end of the delegation, it must be notified directly to the delegate by the delegant, and takes effect only from the moment it is notified to the delegate (can. 207 § 1 and can. 60 § 1).

Just as the Ordinary may revoke delegated power, so the delegate may revoke a subdelegation; if, however, the delegate of the Roman Pontiff has subdelegated all his jurisdiction, revocation is no longer admitted after the subdelegate has begun to exercise it (cf. Wernz-Vidal, De Personis, II, n. 377); e) by the renunciation of the delegate, provided that this is, besides being intimated directly to the delegant, also accepted by him; f) the mere cessation of the power of the delegant does not entail the extinction of the delegated power, except in the two cases indicated by can. 61, namely: when in the rescript of delegation it is stated (with a clause, for example, "ad beneplacitum nostrum") that the delegation ceases with the power of the delegant; when it concerns a power delegated for the granting of a favor to particular persons expressly designated in the rescript, and at the moment when the right of the delegant is resolved, the delegate has not performed any act for the execution of the rescript; g) besides these ways, enumerated by can. 207 § 1, delegation may cease by the death of the delegate, by his deposition (can. 2303 § 1), degradation (can. 2303 § 5), by a sentence of excommunication (can. 2264; 2265 § 2), except can. 2261 § 3, by personal interdict (can. 2275, n. 3), by suspension (according to the terms established in can. 2284), by infamy of law (can. 2294 § 1). When the delegated power was conferred on account of the office or charge of the delegate, the delegation passes to the successor in the same office or function.

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

IX. Suppletory Jurisdiction

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

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

For jurisdiction to be supplied in case of doubt, it is required that this doubt be positive, that is, founded on reasons favoring the existence of the jurisdiction, and not merely negative.

A case is presumed when no argument militates in favor of the presumed jurisdiction (g.). It is also necessary that the doubt be probable, that is, it must be founded on solid and consistent reasons in favor of the jurisdiction. This is supplied, whether the doubt concerns the right, i.e., pertains to the existence, interpretation, or scope of the law, or whether it concerns the fact, such as, for example, the commencement of the term of the jurisdiction.

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

X. PRESUMED JURISDICTION (G.)

Presumed jurisdiction is so called when jurisdiction is not possessed, but is nevertheless exercised in the presumption that the acts performed will be ratified. A distinction is made between presumed jurisdiction *de praeterito* or *de praesenti*, and presumed jurisdiction *de futuro*: the former is based on the probability that the superior has granted the jurisdiction, though no proof of it exists; the latter is based on the presumption that the acts will subsequently be validated. The former resolves into a probable and doubtful jurisdiction, but it cannot be exercised when proof of the received power is necessary; the latter cannot be exercised either licitly or validly in all cases in which subsequent ratification cannot render the acts performed valid (assistance at a marriage, absolution from sins, etc.). In other cases (for example, the conferral of a non-curated benefice) it can be exercised licitly only for a grave and proportionate cause.

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