Jurisdiction

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

SUMMARY:

I. Notions

II. Distinctions

III. Active subject

IV. Passive subject

V. Interpretation

VI. Exercise

VII. Appeal

VIII. Cessation

IX. Supplemented jurisdiction

X. Presumed jurisdiction.

I. NOTIONS

In modern civil law, by jurisdiction is meant the activity of the State directed toward implementing the legal norm in cases of dispute or transgression. Since the aim toward which it is directed is in every case the implementation of objective law, it may be said that jurisdiction is also one and indivisible in the State. Nevertheless, since objective law is subdivided into civil, administrative, and criminal law, there is likewise civil, administrative, and criminal jurisdiction: the first concerning relations governed by private law, the second concerning certain relations in which the public administration is a party, and the third concerning the application of criminal norms.

In canon law, at the outset the term iurisdictio designated public authority in general (cf. epist. of s. Gregorio Magno: 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 authority alone; but, according to the meaning that subsequently became prevalent and is common today, jurisdiction is equivalent to public authority and encompasses all its forms: 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 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 that derive their authority from II. By virtue of this public character, jurisdiction differs essentially from every private power (dominative, domestic, etc.). The acts or measures issued by the Church in virtue of its jurisdictional power give rise to an obligation to obey: that is, they have an imperative and binding character. In this respect jurisdiction accords with the power of the internal forum, but differs essentially from it, because the former, unlike the latter, is directly directed toward the common good. It also differs from the power of order, although, like the latter, it is directed toward the ultimate end of the salvation of souls; this, which is the supernatural end

of man, can be attained through Grace and the cooperation of the will; now, whereas the power of order concerns the means that produce Grace (Sacraments) or obtain it (sacramentals), the power of jurisdiction has as its object the activity of subjects. There is, on the other hand, no essential difference between jurisdiction and the teaching power, insofar as the latter is the power to teach revealed truths and truths connected with them authoritatively, that is, with the faculty of imposing the assent of the intellect and will to such teaching; in this respect, the teaching office is nothing other than a part of the power of jurisdiction.

II. DISTINCTIONS

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

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

III. ACTIVE SUBJECT

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

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

In concrete terms, ordinary jurisdiction in the external forum (the persons who have ordinary jurisdiction in the sacramental internal forum are indicated in can. 873) is possessed by: the Supreme Pontiff; the ecumenical council; the congregations, tribunals, and offices of the Roman Curia; plenary and provincial councils; all those whom the law designates by the name of Ordinaries (cf. can. 198 § 1), whether as individuals or assembled in a regional or provincial college (can. 292), or in a capitular college (cann. 435 § 1, 431 § 1, 391 § 1); metropolitans, independently of the jurisdiction they possess over their own dioceses (cf. cann. 274, nn. 1 and 5; 432 § 2; 434 § 3, 1594 and 1612); the officialis and judges of regional tribunals; and the officialis (can. 1573 § 1) and synodal 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 bodies, however, possess jurisdiction to the same degree and with the same extent. The Supreme Pontiff possesses the supreme and universal power of governance, limited only by divine, natural, and positive law. As regards the bishops, although it may be debated speculatively whether they receive it immediately from God or through the Roman Pontiff, in practice its exercise depends on the Pontiff of Rome, who appoints them and assigns them the territory (diocese) in which they are to exercise II. Even considered collegially, the bishops could not govern or teach the Church independently of the Pope, because, even when assembled in a college, they do not cease to depend on him. The ecumenical Council itself, according to the majority of theologians, does not possess a distinct authority of its own in disciplinary matters, because there is only one primacy in the Church. Nevertheless, the Pope, who can depose individual bishops and limit their authority, could not suppress the episcopate or deprive it of its powers, because it is of divine institution. With the exception of the Roman Pontiff, no bishop has jurisdiction over other bishops by divine law: the degrees of patriarchal (also among 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, so that it can be exercised everywhere, without other persons, even when invested with jurisdiction, being able to impede or limit II. For all other prelates, jurisdiction is limited according to the office. Since ordinary jurisdiction is inherent in the office, it is acquired in the manner in which the office is obtained, namely: by free collation on the part of the superior, by institution, by confirmation, or by simple election (cf. can. 148). It may be limited by exemption (cf. cann. 239 § 1, n. 18; 615; 618), by reservation (for the external forum: cf. cann. 1431; 1434; 1435 § 1; 1487 § 3; 2251; for the internal forum: cf. cann. 893 and 896), and by appeal (cf. can. 1889).

It is impossible to enumerate the persons who possess delegated jurisdiction: this depends, in fact, on the free grant of the delegating authority. Anyone who possesses ordinary jurisdiction may delegate it in whole or in part, unless an express provision of the law prohibits this. Thus, for example, he could not delegate all his jurisdiction in perpetuity without the consent of his superior, because such a delegation would amount to an abdication and to the creation of a new magistrate. The Roman Pontiff could resign, but he could not entrust all his jurisdiction to a delegate or vicar, because by such a delegation he would in effect create another pope; moreover, the prerogative of infallibility could never be delegated.

It may be subdelegated: a) the jurisdiction delegated by the Holy See, either habitually or for a single act, unless this power was delegated on account of the personal qualities of the delegate himself, or subdelegation was prohibited; b) the power ad universitatem negotiorum delegated by one inferior to 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 may be subdelegated only by express grant of the delegating authority. Nevertheless, even without an express grant, delegated judges may always subdelegate a non-jurisdictional power. No subdelegated power may itself be subdelegated, except by an express grant from the person who, by ordinary power, delegated it (can. 199).

The powers of the delegate begin on the date of the rescript if the rescript is granted in forma gratiosa; from the moment of execution if the rescript is in forma commissoria (can. 38); if the delegation is granted orally by the delegating authority directly to the delegate, it begins at the moment of the grant; if the delegation is entrusted by the delegating authority to a necessary executor, it begins at the moment of the grant by the delegating authority; if it is entrusted by the delegating authority to a free executor, it begins at the moment of the grant by the executor. For its validity, the exercise of jurisdiction does not depend on knowledge of its grant. Outside a case of necessity, however, the use of this power while its possession is still unknown would be illicit, in view of the danger of performing invalid acts (cf., for example, P. Laymann, Theologia moralis, Venezia 1714, lib. I, tract. IV, cap. 23, § 10, p. 79).

The limits of delegated jurisdiction depend on the will and power of the delegating authority. Since delegation is a fact, it is not presumed but must be proved by the delegate (can. 200 § 2).

IV. PASSIVE SUBJECT

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

V. INTERPRETAZIONE

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

VI. EXERCISE

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

As regards the extent of jurisdiction with respect to the forum, the following principles apply: if jurisdiction is conferred without specification or restriction, it is understood to be conferred both for the internal forum and for the external forum, unless the very nature of the matter precludes this (can. 202 § 3); power conferred for the internal forum is understood to be conferred both for the sacramental internal forum and for the non-sacramental internal forum, unless, as occurs in the absolution of sins, the sacramental forum is required (can. 202 § 2). An act of jurisdiction, ordinary or delegated, performed for the external forum is also valid for the internal forum, so that the absolution from a censure granted in the external forum is also valid in 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 its exceptions: a matrimonial dispensation from a occult impediment, granted by the S. Penitentiary in the non-sacramental internal forum, is also valid for the external forum if the occult impediment subsequently becomes public, unless the rescript of the S. Penitentiary provides otherwise (can. 1047). One who has been absolved from a censure in the internal forum may, except in the case of scandal and within the terms set out in can. 2251, make use of the absolution also in acts of the external forum.

The delegate’s power has its foundation and its limit in the mandate: if he exceeds this limit, whether it concerns persons or things, the delegate acts without power and therefore invalidly (can. 203 § 1). Nevertheless, unless the delegating authority has also determined, as an essential condition, the manner in which the delegated power is to be exercised, its limits are not considered to have been exceeded if the delegate exercises it in a manner different from that intended by the delegating authority (can. 203 § 2).

Jurisdiction may also be delegated to several persons, physical or juridical (a Chapter, a religious institute, etc.). These persons may be delegated jointly or collegially. In delegation jointly, each of the delegates may freely exercise his power; in collegial delegation, the delegates must act collegially. If there is doubt whether the delegation is joint or collegial, it is presumed to be collegial « in re iudiciali », and joint in other cases (can. 205 § 1). In the exercise of joint delegation, the principle of priority applies, so that the person who first takes up the matter excludes the others, unless he is subsequently prevented or refuses to continue (can. 205 § 2). In the exercise of collegial delegation, the co-delegates must instead proceed altogether, and acts not performed collegially are invalid, unless the mandate provides otherwise (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 whose mandate is earlier, provided that it has not been expressly revoked by the later one (can. 206).

VII. APPEAL

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

If recourse is accompanied by the intention of refusing obedience to the Roman Pontiff or of not maintaining communion with the faithful who are his subjects, the delict of schism may be incurred (cann. 1325 § 2 and 2314), or the delict of rebellion against the Supreme Pontiff (can. 2331); recourse to the ecumenical council against the commands of the pope is punished by excommunication « speciali modo » reserved, and, where moral persons are concerned, by interdict likewise reserved « speciali modo » (cann. 228 § 2 and 2332). Against acts of the congregations or offices of the Roman Curia, recourse may always be had by way of grace to the Supreme Pontiff, or also to the congregation itself, for the suspension, revocation, or reconsideration of the measure. Against measures of lower organs, recourse to the hierarchical superior is likewise admitted, and, in every case, to the Holy See. Judicial action against administrative acts is, however, excluded, even for the recovery of damages (cann. 1601, 2146).

Recourse to the superior does not suspend, according to the principle established in can. 204 § 1, the jurisdiction of the inferior, whether ordinary or delegated, and the measures of the inferior, even after recourse has been made, are valid, save for the exceptions expressly established for recourse with suspensive effect (cf. cann. 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 lawful for the inferior to intervene in a matter referred to the superior, except for a grave and urgent reason; and even in this case the inferior is obliged to inform the superior (can. 204 § 2).

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

VIII. CESSATION

Ordinary jurisdiction is extinguished in the same ways in which the office to which it is attached is lost, namely, in addition to death, by resignation, transfer, deprivation, 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) through 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 for can. 1878); if, on the other hand, the sentence is null, the jurisdiction continues, since what is invalid is regarded as not having been done; in the case of voluntary jurisdiction,

can. 59 § 1 allows the executor who has in any way erred in executing the rescript to execute it again; b) through the expiration of the period prescribed in the mandate, or through exhaustion of the number of cases for which the delegation was granted. Nevertheless, acts inadvertently performed in the internal forum, sacramental and non-sacramental, are valid even after the period has expired, or after the number of cases for which the power was granted has been exhausted (can. 207 § 2); c) through the cessation of the final cause of the delegation, that is, of the reason for which the jurisdiction was delegated; it does not, however, cease if the final cause disappears only in part, or if one of several final causes remains; d) through revocation by the delegating authority. For the revocation to take effect, that is, to bring the delegation to an end, it must be directly notified to the delegate by the delegating authority, and it takes effect only from the moment when it is notified to the delegate (can. 207 § 1 and can. 60 § 1).

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

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

IX. SUPPLIED JURISDICTION

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

The existence of common error may be presumed when it can prudently be held that the fact determining the error itself is known to the greater part of the community.

For jurisdiction to be supplied in a case of doubt, it is required that the doubt be positive, that is, founded on reasons favorable to the existence of jurisdiction, and not merely negative, which exists when no argument supports jurisdiction. It is also necessary that the doubt be probable, that is, founded on solid and substantial reasons supporting jurisdiction. Jurisdiction is supplied whether the doubt concerns the law—that is, the existence, interpretation, or scope of the law—or whether it concerns the facts, as, for example, the commencement of the period of jurisdiction.

In merely negative doubt, it is permissible to perform a jurisdictional act conditionally, provided that grave necessity so requires. Since, however, the validity of the act remains doubtful and the Church does not supply jurisdiction in this case, the subject should, in principle, be advised to provide, when possible, through a new act of certain validity.

X. PRESUMED JURISDICTION

The jurisdiction which one does not possess, but nevertheless exercises in the presumption that the acts issued will be ratified, is so called. 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, although there is no proof of it; the latter rests on the presumption that the acts will subsequently be validated. The former is resolved into doubtful and probable jurisdiction, but it cannot be exercised when proof of the power received is necessary; the latter can be exercised neither licitly nor validly in all cases in which subsequent ratification cannot render the acts performed valid (assistance at marriage, absolution from sins, etc.). In other cases (e.g., the collation of a non-curate benefice), it may be licitly exercised only for a grave and proportionate cause.

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