Moral Theology Part 20

518. As to the force of precepts: (a) morally or as to fault, they oblige, so that the violator is guilty of disobedience and of sin against any particular virtue the superior willed to impose under precept; (b) juridically or as to the penalty prescribed, they do not oblige, unless the precept was given legally--i.e., by a written doc.u.ment, or in the presence of two witnesses, etc. (Canon 24).

Example: If a precept was given under the penalty of loss of office, but without the legal formalities, the canonical process and sentence of deprivation could not be resorted to.

519. A precept expires of itself with the expiration of the authority that gave it (e.g., at the death or cessation of office of the superior), unless the precept was given by doc.u.ment or before witnesses (Canon 24).

520. A rescript is a written reply made by the Holy See or the Ordinary to a request, statement, or consultation. Replies of this kind are employed in reference to the concession of benefices and to dispositions to be made concerning litigation and judicial procedure.

Usually they grant favors, either transitory--e.g., a dispensation--or permanent--e.g., a privilege (Canons 36-62).

521. A privilege is a special and permanent right granted by a ruler to an individual or community to act contrary to or beyond the law.

(a) It is a permanent right, and so resembles law, which is also stable and forbids interference with what it grants.

(b) It is a special right, and so it differs from law, which is general and imposes obligation. It is sometimes styled "private law." Moreover, law requires promulgation, privilege requires only acceptance.

(c) It is granted by the ruler (i.e., by the Pope, bishop, or other legislator), and thus it differs from permission granted by a simple superior.

(d) It is granted to a person, that is, to an individual (t.i.tus, Caius, Balbus, etc.) or to a congregation or community; for, if granted to all, it would not be special.

(e) A privilege gives the right to act contrary to the general law (e.g., by exempting from a tax) or beyond the general law (e.g., by granting the power to dispense). Thus, a privilege differs also from prerogatives that are set down in the Code itself (e.g., the special rights and faculties of Cardinals, bishops, regulars, etc.), all of which are laws and not privileges in the strict sense.

522. The rules for interpretation of privileges are similar to those for the interpretation of law (see 483 sqq.). They should be neither extended nor restricted, but should be understood according to the meaning of the words themselves (Canon 67), yet so that the party receiving the privilege will seem to have obtained a favor (Canon 68).

If the meaning intended is doubtful, the following rules of the Code (Canons 50, 68) should be followed: (a) wide interpretation is to be given to the privileges that are beyond or outside of the law and that are not prejudicial to others, as well as to privileges that were given as a reward of merit; (b) strict interpretation is to be given to privileges that are contrary to law (saving the cases of privileges granted to pious causes or in favor of a community), to privileges granted because of an agreement made, and to privileges that are prejudicial to third parties.

523. A privilege is a favor, and hence does not as such impose the duty of acceptance or use; but obligations owed to others often make it necessary to avail oneself of a privilege (Canon 69).

(a) Prerogatives granted in the law cannot be renounced by individuals, since their preservation is required by the common good. Example: A cleric has no right to abandon an immunity which the law gives to his state.

(b) Privileges granted to a community can be renounced by the community, but not by its individual members. An individual member is not bound, however, to use the privilege, unless there be accidental reasons, such as the command of a superior, that require him to do so.

(c) Privileges granted to individuals need not be used by them, unless there be accidental reasons that call on one to use a privilege.

Example: A priest who has the privilege of a private oratory is not bound to establish such an oratory; but a priest who has the privilege of absolving from reserved cases is bound in charity to use it, if a penitent would otherwise suffer.

524. Dispensation differs from privilege: (a) because the former from its nature is temporary, the latter permanent; (b) because the former is always contrary to the law, whereas the latter may be only beyond the law.

525. The Pope can dispense as follows: (a) in all ecclesiastical laws he can grant a dispensation strictly so-called (Canon 81); (b) in divine laws in which the obligation depends on an act of the human will (such as the laws of oaths, vows, contracts, etc.), he can grant a dispensation improperly so-called (see above, 313 sqq., 357), In other divine laws, he can interpret or declare, but he cannot dispense.

526. The Ordinary can dispense as follows: (a) in the general law of the Church when he has an explicit or implicit faculty from the Pope or from the law (Canon 81); (b) in diocesan laws and, in particular cases, also in laws of provincial and plenary councils, when there is just reason (Canon 82); (c) in papal laws made for a particular territory, when faculty has been given explicitly or implicitly, or recourse to the Holy See is difficult (Canon 82); (d) in all ecclesiastical laws that are dispensable, when there is doubt of fact (Canon 15).

527. The pastor can dispense as follows: (a) from the general law concerning feasts of obligation and from the laws of fast and abstinence. The dispensation can be granted either to his own subjects or to strangers, but only for a just reason, in individual instances and for particular individuals or families. The bishop may dispense the whole diocese, but the pastor cannot dispense the whole parish (Canon 1245). (b) When there is danger of death, the pastor can dispense from matrimonial impediments as provided in Canon 1044.

528. Religious superiors, local superiors included, can dispense in the laws and statutes of their own inst.i.tutes, except where this is forbidden. In clerical and exempt inst.i.tutes the superiors can also dispense the subjects and all who live day and night in the religious house (such as students, guests and servants) from the general laws of the Church, as follows:

(a) The higher superiors, such as abbots, generals, provincials, have the same authority in this respect as the bishop has with reference to his own diocese. Hence, they can dispense in all ecclesiastical laws in which the Pope dispenses, when there is doubt of fact, or recourse to the Holy See is difficult (Canons 15, 81); in case of necessity, they can dispense from the laws of abstinence individuals, or an entire convent, or an entire province (Canon 1245, 2); they can dispense in irregularities as provided in Canon 990, 1.

(b) The other superiors, local superiors included, can dispense their subjects from the laws of fast and abstinence in the same manner as pastors are able to dispense their paris.h.i.+oners (Canon 1245, 3), Religious superiors are also able to dispense the private non-reserved vows of their subjects (Canons 1313, 2, 1314).

529. Confessors, when delegated, can dispense as follows: (a) with ordinary faculties, from impediments, irregularities and penalties, as provided in Canons 1044, 1045, 985, 990, 2290; (b) with privileged faculties, from simple vows not reserved to the Pope, if no injury is done to the rights of a third party; and from occult irregularity produced by delinquency, that from homicide excepted. (In the internal sacramental forum the confessor can dispense from the impediments indicated in Canons 1043-1045.)

530. Priests that a.s.sist at marriages can dispense from impediments as provided in Canons 1043-1045.

531. The manner of seeking dispensations is as follows: (a) for the usual dispensations (e.g., those from fast, abstinence, observance of feasts, and the vows that may be dispensed by confessors) no particular procedure is required; (b) for the dispensation that must be sought from the Holy See, if the matter belongs to the internal forum, the pet.i.tion is sent to the Sacred Penitentiary through the Confessor or Ordinary; if it belongs to the external forum, it is sent to the competent Congregation through the parish priest or Ordinary.

Dispensation from public marriage impediments must be sent through the Ordinary.

532. The manner of preparing a pet.i.tion for dispensation is as follows: (a) the name of the penitent must not be given in pet.i.tions to the Sacred Penitentiary, but the name and address of the party to whom the reply is to be sent should be clearly given; (b) the pet.i.tion should be sent by letter. It may be written in any language, and should state the case with its circ.u.mstances, the favor that is asked, and the true reason for asking it.

533. A dispensation is invalidated as follows: (a) through defect of the pet.i.tion, if it contains a substantial error, and the dispensation is given on condition of substantial truth (Canon 40); (b) through defect of the pet.i.tioner, if he is incapable of receiving the favor asked (Canon 46); (c) through defect of the dispensation, as when the requisite signature or seal is omitted; (d) through defect of the dispenser, as when he lacks jurisdiction, or grants without a just and proportionate reason a dispensation for which he has only delegated power (Canon 84).

534. If a dispensation is unjustly refused, note the following: (a) ordinarily, the subject has not the right to hold himself free from the law; (b) in extraordinary circ.u.mstances, when the law ceases, or no longer obliges (see 487 sqq.), the subject is free.

535. The faculty of dispensing should be interpreted as follows: (a) widely, when it was granted for cases in general (Canon 200, 1); (b) strictly, when it is granted for a particular case (Canon 85).

536. A dispensation itself should be interpreted strictly in the following cases: (a) when the dispensation has an odious side, as when it is contrary to law and advantageous to private interest or is detrimental to a third party; (b) when wide interpretation is dangerous, as favoring injustice, promoting ambition, etc. (Canons 50, 85).

537. A dispensation ceases intrinsically in the following ways: (a) by the lapse of the period of time for which it was granted; (b) by the entire and certain cessation of the motive of the dispensation, if the effect of the dispensation is divisible--that is, if the motive for dispensation has to be existent each time that the law calls for an act or omission (Canon 86). Example: If one is dispensed from the fast or Office on account of ill-health, and later recovers, the dispensation ceases.

538. A dispensation ceases extrinsically in the following ways: (a) by the act of the one who dispensed, if he validly recalls the dispensation, or by his cessation from office, if he limited the dispensation to his own term of authority (Canons 86, 73); (b) by the act of the one who was dispensed, if he renounces the dispensation without detriment to any third party, and with the consent of the superior (Canons 86, 72).

539. A dispensation does not cease in the following cases through the cessation of the motive for which it was given:

(a) If the motive ceases only partially or doubtfully, even though the effect of the dispensation be divisible--that is, requiring the existence of the motive for the grant each time the dispensation is used. For, if the dispensation ceased in such cases, its benefit would frequently be in great part lost on account of the worry and scruple to which the persons dispensed would be exposed. Example: Balbus has been dispensed from fast on account of poor health. Later on he improves, but has not recovered his strength entirely, or at least is not certain of his recovery. He may continue still to use the dispensation.

(b) A dispensation does not cease if the motive ceases entirely and certainly, but the effect of the dispensation is indivisible--that is, removing the entire obligation once for all.

Example: t.i.tus is a widower with several young children. He wishes to marry in order to have a home for the children, and this wish is the motive of a dispensation given him from an impediment of affinity to the marriage he contemplates. But before the marriage takes place, the children die, The dispensation still holds good.

540. A dispensation does not cease by reason of the grantor in the following cases:

(a) It does not cease through the grantor's cessation from authority, if it was given independently of his term of office. Example: Semp.r.o.nius received a dispensation "valid until recall," but never made use of it. Although now the grantor has died, the dispensation continues in force.

(b) It does not cease, if the grantor invalidly recalls the dispensation, as when he dispenses from delegated power and his authority ceases with the act of dispensation. Example: Balbus, a confessor, dispensed Caius from the law of abstinence, but now wishes to recall the dispensation. The dispensation remains.

541. A dispensation does not cease on account of the person dispensed in the following cases:

(a) It does not cease when he leaves the territory of the dispenser, if the dispensation was personal. Example: A person dispensed from the general law of fast by indult granted to his diocese cannot use that dispensation outside the diocese; but if he has a personal dispensation, he is dispensed everywhere.

(b) It does not cease when the grantee fails to use it, or acts contrary to it, if there is no renunciation on his part. Examples: Semp.r.o.nius has been dispensed from the fast of Lent, but he fasts on some days. This non-use of the dispensation on some days does not renew the obligation. Balbus has received a dispensation to marry Semp.r.o.nia, but he changes his mind and marries Claudia. This act contrary to the dispensation does not take away its force, and, if Claudia dies, he will be free to marry Semp.r.o.nia.

Art. 6: CIVIL LAW

542. Meaning.--Just as the Church has the right and duty to make laws which will promote the spiritual welfare of her members, so has the State the power and obligation to legislate for the temporal happiness of its citizens: "There is no power but from G.o.d and those that are, are ordained of G.o.d. He (the ruler) is G.o.d's minister to thee for good"

(Rom., xiii. 1, 4).

543. Origin.--The authority to make civil laws resides in that person or body to whom according to the const.i.tution of the State the legislative function belongs. (a) In an absolute monarchy, the legislative authority is vested in the prince; (b) in a state that has an appointed or hereditary aristocracy, the legislative power may be entrusted, at least in part, to a body of n.o.bles; (c) in a limited monarchy or republic the lawmaking function belongs to the people, who exercise it either directly or (as is the case in most modern states) indirectly through elected representatives.

544. The acceptance of civil law by the people is not necessary for its obligation, for obedience to higher powers is commanded (Rom., xiii, 5), and, if law has no authority, the common welfare is defeated.

Several points must, however, be noted.