STILUS et PRAXIS CURIAE. - These are two canonical juridical institutions, which differ very little from one another and are relevant in the CIC as a norm in the case of a lacuna in the law.
The first (stilus), from the formal point of view, refers to the forms and solemnities that are observed uniformly in the carrying out of ecclesiastical acts by the public ecclesiastical authority. If it refers to the norms used in the congregations, tribunals and offices of the Holy See, one speaks of Stilus Curiae Romanae. From the material point of view it refers to the principles constantly observed in the carrying out of particular acts or decisions, predominantly judicial. The second, that is, praxis, in the strict sense coincides with stilus taken in the material sense; in the broad sense it is equivalent to stilus. The two terms are sometimes taken in an even stricter sense, and then stilus indicates the formalities customarily used in the granting of favors; usus forensis formalis indicates the same formalities observed in contentious matters; praxis then designates stilus in the material sense, that is, the decisions in matters of favor and in contentious matters. In contentious matters, things decided in a uniform manner are also called usus forensis taken in the material sense, or else auctoritas rerum perpetuo similiter iudicatarum.
As has been said, a distinction is drawn between a stilus and a praxis of the Curia in general, and a stilus and a praxis proper to the congregations, tribunals and offices of the Holy See (S. et p. C. Romanae). As a general norm, stilus habet vim legis: this refers to stilus in the formal sense.
Although the CIC does not speak of the stilus and the praxis of the local diocesan curias, the one and the other can be invoked not to supply a defect of a universal law, but only to fill the lacunae of a particular diocesan law. This is so by analogy. The CIC, in fact, treats of the stilus and the praxis of the Roman Curia where it speaks of the ius suppletorium (can. 20). Since the law, however much drafted in general and abstract form, cannot foresee and regulate all the concrete cases of social life, there arise the opportunity and the necessity of providing particular norms that indicate the means by which the shortcomings and deficiencies of the written norms can be met (the so-called problem of the lacunae of the law, which receives particular solutions that vary from one juridical order to another). Since this grave problem also exists for the canonical juridical order (v. INTERPRETAZIONE), the ecclesiastical legislator has, among other subsidiary sources, expressly indicated in can. 20 also the stilus and the praxis of the Roman Curia. These can produce juridical effects only when certain conditions concur, namely: 1) the absence of provisions of the law for the concrete case, so that the application of the subsidiary norms becomes indispensable; 2) that such application be licit. Recourse to subsidiary sources is in fact expressly excluded in penal matters (nisi agatur de poenis applicandis), with regard to singular rights, to privileges and, in general, in the cases for which extensive interpretation is not admitted (cann. 19, 983, 2219 § 3).
The stilus and the praxis of the Roman Curia are not based on any juridical norm, but are applied only when recourse to analogy, whether iuris or facti, proves insufficient. A distinction is customarily drawn between stilus iuris and stilus facti. The first is true subsidiary law. Judicial sentences, in fact, and administrative acts (decrees, decisions), although they cannot produce new general law, can be taken into consideration when norms can be derived from them by which to resolve particular cases, in the absence of a provision of the law, and thus become binding. From this derive the usus forensis and the auctoritas rerum similiter iudicatarum, especially of the Apostolic Signatura and of the S. R. Rota. The second, on the other hand, is not true subsidiary law, inasmuch as it lays down norms that are obligatory and binding only for the officials of the Curia in the execution of the acts of their office. This also occurs in the case of the exercise of delegated power, as regards the validity of the acts.
It is a question of particular importance and one debated in doctrine whether the stilus can be productive of customary norms. In less recent authors one finds it affirmed that judicial sentences by themselves alone can give rise to a custom. But according to a better doctrine, the judge, inasmuch as he has power limited to declaring what the law is between the parties, cannot, by his sentences, however many times he repeats them, constitute law properly so called. And therefore the praxis of the Curia and of the tribunals acquires the force of customary law only when from the circumstances it appears that the people to whom the matter adjudged pertains conform to it, observing it as a legal norm for a certain time, thus forming, with the concurrence of the other conditions, a custom. Only then can it be said that those sentences produce laws properly so called, not by their own force, but by virtue of the rooted custom of the people, of which the judges themselves are a part (v. GIURISPRUDENZA).
Bibliography6 works
Francesco Ercolani