Precept

PRECEPT. —

I. NOTION

It is a command issued by the competent authority for a determinate period of time, or even in perpetuity, to individual persons, even if in fact numerous and constituting the whole of a community; or, but only for a determinate period of time, to a community as such; and its essential purpose is the private good of those persons or of the community or authority, but not the perfect public and social good.

Jurisprudence was not, and still is not, unanimous in determining the essential elements common and specific to every species of precept. The conflicting opinions of earlier times were not at all resolved by the CIC, which, without defining it, speaks in can. 24 of only one species of precept. In a certain sense, the name precept may quite properly include, as in fact it did in the past and still does, any imperative command imposed by a competent superior upon a capable subject. Jurisprudence has sought to identify elements that would not merely be applicable to a precept, but would belong exclusively to II. First of all, the precept was distinguished from the law, although it is not always possible to identify all the formal reasons for this distinction; in any case, it is certain that a law may be enacted only by a power of dominion or jurisdiction and exclusively for perfect communities, and for imperfect ones only if they are recognized as subjects of law. It is likewise required that the law be enacted for an indeterminate period or in perpetuity, whereas a precept may also be given to individual persons for a determinate period, and by private authority (dominative, domestic, contractual, etc.). Moreover, unlike the law, the precept is presumed to be non-territorial but personal. Finally—and this also has a particular bearing on morality and on the determination of the sin committed by one who violates the superior’s command—a precept issued solely by private authority (that is, without the exercise of jurisdiction) does not create in society a constitutive norm of law.

II. DIVISIONS

A precept may be: 1) a precept issued by the holder of jurisdictional, that is, public, power, and a precept given by dominative, that is, private, authority, according as the author of the precept is vested with jurisdiction and intends to use it in issuing the precept, or instead is without it or does not in any case intend to use II. Therefore, not only those endowed with legislative or public power may issue precepts, but also anyone who has dominion over the will of a subject; among the latter are to be numbered religious Superiors in religious institutes that are not at the same time clerical and exempt from the Ordinary of the place; likewise parents, the husband, the entrepreneur, and the master, in relation to children, wife, workers, and servants; and, generally, all those who by private agreement have legitimately constituted power over others. For moral purposes, however, it should 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 authority creates an obligation by virtue of the title by which the Superior imposes it, regardless of the object of the virtue to which the imposed act belongs; thus, again to give examples: by virtue of religion if it is a precept proceeding from an authority to which obedience was promised, by virtue of piety if it proceeds from paternal or maternal authority, even if the imposed act belongs to the virtues of justice, charity, chastity, etc. Consequently, someone who, for example, has eaten meat against the precept of his Superior invested only with dominative power, or against that of his parents, will have sinned against obedience and piety, but will have committed a sin against mortification if the precept proceeded from jurisdictional power; 2) a territorial precept and a personal precept. A precept is presumed to be personal and consequently binds the subject wherever he may be; nevertheless, there is also a territorial precept, which binds exclusively within the territory for which it was imposed by the respective Superior; 3) a temporary precept and a perpetual precept. Whereas the former ceases by its nature at the appointed time, an indeterminate-duration precept may 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 the impossibility of observing it, or also, subject to certain exceptions, through 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 the fact that a precept is given to all and each of the persons constituting a particular community does not necessarily mean that it should be said to have been 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 when outside the territory, but not by others who subsequently begin to belong to it, nor by one who is temporarily present in the community; 5) a precept of the internal forum and a precept of the external forum, according to the power from which it proceeds and the Superior’s intention to impose acts referring solely to conscience or also to external life. Not everyone, however, admits the possibility of a precept of the internal forum, nor does the CIC mention 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 differing sanction are not to be determined exclusively by the power of the Superior issuing the precept, according, that is, to whether or not he possesses jurisdiction, but also according to what he actually intended to decree if he is capable of issuing both one and the other kind of precept. Nevertheless, under positive law and by the mandatory provision of can. 24 CIC, in order that observance may be demanded judicially and its violation punished with a properly ecclesiastical penalty, the precept must be given in solemn form, that is, either in a legitimate document, even a private one (all the more so if public), or before two witnesses qualified to act as witnesses in ecclesiastical tribunals in accordance with can. 1756–58. Superiors without jurisdiction cannot impose precepts furnished with penalties in the strict sense, but only penances (even serious and external ones), or disciplinary or corrective measures, or extrajudicial admonitions. These norms are of capital importance in certain situations provided for by the CIC and must therefore be carefully weighed. A Superior vested with jurisdiction may also, if he so wishes, make use solely of penances and other disciplinary measures, excluding true penalties. Canonists generally admit that precepts which are also jurisdictional but given only for the internal forum cannot be furnished with a genuine penal sanction. From a precept furnished with a penal or disciplinary sanction there must be distinguished the precept and also the law called “purely penal”: both canonists and moral theologians use these 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, either grave or venial, should the precept be violated.

III. DOCTRINE OF THE CIC

What the CIC states concerning the precept is found in can. 24. The precept is considered here under a single aspect: “precepts given to individuals bind those to whom they are given wherever they may be, but cannot be enforced in court and expire when the right of the superior giving the precept ceases, unless they have been imposed by a legitimate document or before two witnesses.” After what has been said previously, for a correct interpretation of the canon it will suffice to note the following: it concerns a precept

given to individual physical persons, even if these in fact correspond to an entire community; this precept is personal and therefore follows the subject even outside the territory of the person who imposed II. This applies equally to the precept of the internal forum. Nevertheless, no Superior can impose it beyond the actual term fixed or accidentally expired for his government; consequently, the precept ceases upon his death, upon his removal from office, upon his resignation legally accepted by the competent authority, upon his transfer to another office, even a higher one; and it remains suspended for the period during which, for whatever reason, he remains juridically (and not merely de facto) suspended from his power and office. A precept, however, given in canonical form, that is, by a legitimate document or before two witnesses, not only continues to bind the subject wherever he may be, but may likewise be enforced in court wherever the latter may be; nor does it cease or remain suspended when the power of the Superior giving the precept ceases or is suspended. In this case, indeed, every right over the subject to whom the precept was given passes Ipso iure to the successor in government. It is not yet beyond dispute, however, what kind of precept the CIC intends to discuss in can. 24. It is generally held that it speaks of precepts proceeding from the power of jurisdiction, excluding all precepts imposed by dominative and private power. In any case, until the precise scope of the norm has been authentically declared, can. 24 cannot be applied except to precepts deriving from the power of jurisdiction. In support of the stricter interpretation, namely that which restricts can. 24 to jurisdictional precepts alone, the following two principal arguments may be adduced: first of all, the principle that precepts not given by jurisdictional power can in no case be enforced in court, whereas this is precisely what can. 24 affirms if the conditions there mentioned are fulfilled; and secondly, because this is required by the placement of the canon itself, under the title de legibus, and it is known that laws by their nature proceed exclusively from the power of jurisdiction. One final observation concerning can. 24 must be made regarding the scope of the precept: canonists generally hold that it speaks only of the precept of the external forum.

With regard to the precept given not to individuals but to a community, concerning which the CIC says nothing whatever, nothing is expressly determined; therefore the conflicting pre-existing opinions still remain open. It remains especially disputed whether a precept given by a Superior endowed with jurisdictional power but lacking legislative power, to a community as such, survives or rather ceases or is suspended when that Superior himself ceases or is suspended from his office.