Precept

PRECEPT. - I. NOTION. - It is a command given by the competent authority for a determined period of time, or even in perpetuity, to individual persons even if in fact numerous and constituting the totality of a community; or else, but only for a determined period of time, to a community as such; and its essential purpose is the private good of those same persons or of the community or of the authority, but not the perfect public and social good.

Jurisprudence was not and still is not in agreement in determining the essential elements common and specific to every kind of precept. The conflicting opinions of past times were not at all settled by the CIC which, without defining it, speaks in can. 24 of a single kind of precept. In a certain sense, under the name of precept there can very well be included, as in fact happened in the past and still happens today, any imperative command that the competent superior imposes on a capable subject. Jurisprudence has sought to identify elements that would not only be fitting to the precept, but would be exclusively its own. In the first place the precept was distinguished from law, although it is not always possible to identify all the formal reasons for this; in any case it is certain that law can be issued only by a power of empire or of jurisdiction and exclusively to perfect communities, and to imperfect ones only if they are recognized as subjects of law; it is also required that law be issued for an indeterminate time or in perpetuity, whereas the precept can be given even to individual persons for a determined time, and by a private power (dominative, domestic, contractual, etc.). Furthermore the precept, contrary to law, is presumed not territorial, but personal. Finally, and this also has a particular reflection for morality and the determination of sin in one who violates the command of the Superior, the precept issued by private authority alone (that is, without use of jurisdiction) does not create in society a norm constitutive of right.

II. DIVISIONS

A precept can be: 1) a precept issued by the holder of a jurisdictional power, that is, public, and a precept given by dominative power, that is, private, according to whether the author of the precept is invested with jurisdiction and intends to use it in giving the precept, or instead is without it or in any case does not intend to use it. Therefore not only those who are endowed with legislative or public power can give precepts, but also those who have dominion over the will of the subject; among the latter are to be numbered religious Superiors in religious orders that are not at the same time clerical and exempt from the local Ordinary; likewise parents, the husband, the employer, the master, in relation to their children, their wife, their workers, their servants; and generally all those who by private agreement have power legitimately established over others. For moral purposes, however, it must be remembered that since a jurisdictional precept is a source of law and creates constitutive norms, its observance is owed by virtue of the obligation inherent in the virtue that constitutes the matter of the precept, and therefore, to give examples: by virtue of justice, if the matter concerns justice; of charity if charity, of chastity if chastity, of mortification if fasting or abstinence; whereas a precept deriving from dominative power creates the obligation by virtue of the title for which the Superior imposes it, prescinding from the object of the virtue to which the imposed act belongs; therefore, again to give examples: by virtue of religion if it is a precept coming from an authority to which obedience was promised, by virtue of piety if from paternal or maternal authority, even if the imposed act belongs to the virtues of justice, charity, chastity, etc. Consequently, one who has, for example, eaten meat against the precept of his Superior invested with only dominative power, or of his parents, will have committed a sin against obedience and against piety, but will have committed a sin against mortification if the precept came from jurisdictional power; 2) territorial precept and personal precept. A precept is presumed personal and consequently binds the subject wherever he may be; however, there is also the territorial precept, which binds exclusively within the territory for which it was imposed by the relevant superior; 3) temporary precept and perpetual precept. While the former ceases by its nature at the foreseen moment, the latter, of indeterminate duration, can also cease, but only through the direct intervention of the competent authority (revocation, dispensation) or through the cessation of the purpose for which it was imposed or through impossibility of observance or also, with certain exceptions, with the cessation of the superior's power; 4) a precept given to a physical person and a precept given to a community. It should be noted that from the fact that a precept is given to all and each of the persons who constitute a particular community, it does not follow without further ado that it must be said to be imposed on the community. Consequently, a precept given to individuals (even if to all the subjects of the community) must be observed by those to whom it was given even outside the territory, but not by others who begin at a later time to be part of it, nor by one who is in the community only temporarily; 5) precept of the internal forum and precept of the external forum, according to the power from which it emanates and the superior's will to impose acts referring to conscience alone or also to exterior life. Not all, however, admit the possibility of a precept of the internal forum, nor does the CIC speak of it in can. 24; 6) a precept furnished with a penal sanction and a precept furnished with a disciplinary sanction. The nature and origin of the different sanction are not to be taken exclusively from the power of the Superior who gives the precept, that is, according to whether or not he enjoys jurisdiction, but also according to what he will have actually intended to dispose, if he is capable of the one and the other precept. However, by positive law and by the mandatory norm of can. 24 CIC, in order that its observance may be demanded in court and its violation furnished with an ecclesiastical penalty properly so called, the precept must be given in solemn form, that is, either with a legitimate document even private (all the more so if public), or before two witnesses who are qualified to act as witnesses in ecclesiastical tribunals according to can. 1756-58. Superiors without jurisdiction cannot impose precepts furnished with penalties in the strict sense, but only with penances (even grave and external) or with disciplinary measures or correction or extra-judicial admonitions. These norms are of capital importance in certain facts provided for by the CIC and therefore must be carefully weighed. Even a Superior invested with jurisdiction can, if he wishes, make use of penances alone and of the other disciplinary measures, excluding true penalties. Generally canonists admit that precepts, even jurisdictional ones but given only for the internal forum, cannot be furnished with a true and proper penal sanction. From a precept furnished with a penal or disciplinary sanction are to be distinguished the precept and also the law that are called purely penal: both canonists and moralists use the latter terms to indicate a command that produces in the subject only the legal and moral obligation to submit to a particular penalty attached to the violation of the precept, without however inducing in him a formal sin, whether grave or venial, if the precept is violated.

III. DOCTRINE OF THE CIC

What the CIC has on the precept refers to can. 24. The precept is here considered under a single aspect: "precepts given to individuals bind those to whom they are given wherever they may be, but they cannot be enforced in court and they expire with the cessation of the right of the one commanding, unless they have been imposed by a legitimate document or before two witnesses." After what has been said previously, for the correct interpretation of the canon it will suffice to note the following: it is a matter of a precept given to individual natural persons, even if these in fact correspond to an entire community; the said precept is personal and therefore follows the subject even outside the territory of the one who imposed it. This holds equally for a precept of the internal forum. However, no Superior can impose it beyond the actual time foreseen or accidentally expired of his governance; consequently the precept ceases with his death, with his deposition from office, with his resignation juridically accepted by the competent authority, with his transfer to another office even if higher; and it remains suspended for the time in which for any reason he remains juridically (not merely in fact) suspended from his power and office. The precept, on the other hand, given in canonical form, that is, with a legitimate document or before two witnesses, not only continues to bind the subject wherever he may be, but likewise wherever he may be it can be enforced in court, nor does it cease or remain suspended through the cessation or suspension of the power in the Superior commanding; in this case, in fact, every right over the subject to whom the precept was given passes Ipso iure to the successor in governance. It is not, however, yet beyond discussion of which precept the CIC intends to speak in can. 24. It is generally held that it speaks of a precept emanating from the power of jurisdiction, excluding all precepts imposed by dominative and private power. In any case, until the precise scope of the norm is authentically declared, can. 24 cannot be applied except to precepts proceeding from the power of jurisdiction. As regards the stricter interpretation, namely that which reduces can. 24 to jurisdictional precepts alone, the following two principal arguments may be adduced: first of all the principle that precepts not given by the power of jurisdiction can in no case be enforced in court, whereas this is precisely what can. 24 affirms if the conditions there referred to are met; and secondly because this requires the location of the same canon, placed under the title de legibus, and it is known that laws by their nature emanate exclusively from the power of jurisdiction. The last observation regarding can. 24 must be made with respect to the extension of the precept; canonists generally hold that it speaks only of a precept of the external forum.

As regards the precept not given to individuals but to a community, of which the CIC does not speak at all, nothing is expressly determined; therefore the conflicting opinions previously existing remain still free. It remains above all disputed whether the precept given by a Superior endowed with the power of jurisdiction, but lacking the legislative power, to a community as such, survives or instead ceases or is suspended at the moment of the cessation or suspension of the Superior himself from his office.

Lorenzo Simcone