Dictionary of Canon Law

ABSOLUTE

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(L. absolutus). 1. Unqualified; free from external restraint or limitation (as in CIC, c. 1096). 2. Free from doubt (as in the case of CIC, c. 129: absolute majority). 3. Complete and outright (as in CIC, cc. 695, 627, 683.1096, 1407). 4. Final and not liable to modification or termination (as in CIC, c. 1084).

ABSOLUTE RIGHT

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Having complete right. By the “absolute right” of individuals is meant those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. The rights of personal security, of personal liberty and private property do not depend upon the will of the legislator for their existence. The canon law does not use the term ‘absolute right;’ however, the concept finds it expression in the Codes. E.g. CIC, c. 747 declares “…and inherent right of the church independent of any human authority, to preach the Gospel to all the peoples…” Thus, it is a part of the nature of the church to proclaim the Gospel and therefore its absolute right. Similarly, CIC, c. 1260 asserts, “The church has the inherent right to acquire from the faithful whatever is necessary for its proper objective.”

ABSOLUTE OWNER

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The person capable of disposing the whole interest in immovable property although it is charged or encumbered.

ABSOLUTE INCOMPETENCE

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Positively and unquestionably not legally qualified; having no power whatsoever to do an act. E.g. the lower tribunals are absolutely incompetent to judge bishops, supreme moderator of a religious congregation of pontifical rite etc. in contentious matters (c. 1406 § 2).

ABSOLUTE INCOMPETENCE OF TRIBUNAL

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Incompetence of the tribunal is said to be absolute: a) when a tribunal is incompetent to hear the case due to the quality of the contested issue (e.g. a case concerning an administrative act placed in a judicial tribunal), b) when it is already pending in another court (e.g. a case which was taken up by another tribunal and has already cited the respondent), c) when it is concerning certain persons of dignity reserved to the apostolic tribunal (e.g. A case wherein an apostolic legate is a party), or d) when it is placed in a grade tribunal which cannot hear the case (e.g. a tribunal is appealed to a tribunal of first instance again).

If the judge acts under absolute incompetence, the sentence is null. Such a case can be challenged at any stage of the trial and the competent tribunal cannot use the acts of the case.

This principle is based on the motive of effective administration of justice in the church. In certain cases such as cases involving heads of State, cardinals, legates of the Apostolic See, bishops in penal cases and other cases that the Holy Father reserves to himself, the lower courts are absolutely incompetent for the reason that these courts would be intimidated and justice will be disparaged.

ABSOLUTE IMPOTENCY

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Impotency in man or a woman who due to a physiological sexual defect cannot have an intercourse with the opposite sex at all times and with any person (CIC, c. 1084) in that given state of the person; e.g. physiological defect of the vagina or penis of a person. This can be ascertained by the physical examination of the person by a competent physician. Antecedent absolute impotency is a diriment impediment for marriage (see “impotency”).

ABSOLUTE IMPEDIMENT

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CIC 1917 term for impediments, which render a person incapable of making a juridical act with any person. E.g. impediment of ordination, impediment of previous bond, impediment of perpetual vow of chastity of one in Religious Institute of Pontifical right for marriage etc. are absolute impediments for contracting marriage. The CIC and CCEO has suppressed the distinctions of absolute impediment, simple impediments etc. (see “impediment”).

ABSOLUTE DUTIES

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A duty is a moral obligation that an agent has towards another person. Often duties have a corresponding right; but, certain duties do not have corresponding rights. These are duties that one must not do-no matter what. Thomas Aquinas argued that we have specific duties or obligations to avoid committing specific sins. Since sins such as theft are absolute, then our duty to avoid stealing is also absolute, irrespective of any good consequences that might arise from particular acts of theft. In the order of faith, Ten Commandments can be said to be absolute duties of a Christian.

ABSOLUTE CERTAINTY

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Positively certain that there is no error. Since reasons for human behavior pause number of reasons it is seldom reached in human behaviour. Circumstantial evidence should so cogent and compelling as to leave no ground for reasonable doubt but to lead to rational hypothesis. In absolute certainty, the person is convinced that there can be no possibility of error. A judge need not have reached absolute certainty in his decision-making, but only moral certainty. In moral certainty, there can be a possibility of error but there is no probability of error (see “moral certainty”).

ABROGATION

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(L. abrogare); to repeal or annul a law; rogare literally means “to ask,” to propose a law. Total revocation of a law or an earlier law made directly and expressly or implicitly by the one who has legislative power or by later law. Abrogation, which is the total annulling of a law, is to be distinguished from the term derogation, which is used where a law is only partially abrogated. Abrogation may be either express or implied. It is express either when the new law pronounces the annulment in general terms, as when in a concluding section it announces that all laws contrary to the provisions of the new one are repealed, or when in particular terms it announces specifically the preceding laws which it repeals. It is implied when the new law contains provisions that are positively contrary to the former laws without expressly abrogating those laws, or when the condition of things for which the law had provided has changed and consequently the need for the law no longer exists. The abrogation of any statute revives the provisions of the common law that had been abrogated by that statute (see “abrogate”).

Abrogation of law takes place due to a number of reasons such that the philosophy or theology which informs the law has been changed (e.g. abolition of capital punishment), change in circumstances for which the law was made (e.g. abolition of laws pertaining to slavery) etc.

ABROGATE

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(L. abrogatus , pp. of abrogare) to ask, propose a law—more at right. To abolish by an official, authoritative or formal action; or in other words, to annul, destroy, revoke or cancel a formal law by an act of the legislative power. A later law abrogates the earlier law, unless the law provides expressly, laws contrary to it or if it integrally reorders the whole subject matter of the earlier law (CIC, c. 20). However, the divine or natural law cannot be abrogated since it has an eternal character to it.

An abrogation can be made expressly or implicitly. It is made expressly when a later law states that it is revoking an earlier law. Abrogation is implicit when a canon uses the expressions such as “notwithstanding anything to the contrary,” “anything presently in force contrary to this law is abrogated,” “derogating from other laws in force,” etc. In the implicit revocation, no mention is made about the fact that the previous law is revoked. Thus, in implicit abrogation the earlier law is contrary or contradictory to the later law or when the later law completely reorders the entire subject matter of the earlier law.

In doubt, the previous law is not presumed to be abrogated (CIC, c. 21). The CIC 1983 abrogated the 1917 code, laws contrary to it (unless expressly provided in respect of particular laws), all penal laws enacted by the Apostolic See pervious to the promulgation of it or any other universal disciplinary law, which are integrally reordered by it (CIC c.6 § 1).

ABOUT OF

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(L.circa meaning around); slightly more or slightly less. When the canon uses the term “about of” it gives the person certain liberty to act according to his discretion. Thus, when CIC, c. 498 says that for the priest’s senate about half of the members should be elected, the diocesan bishop has the liberty to nominate half, little less than half or little more than half of its members.

Undergoing MyBlogLog Verification

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Undergoing MyBlogLog Verification

ABORTIVE TRIAL

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A trial in which no verdict is reached due to an improper act or conduct of the parties to the case (see “peremption,” “abatement of a case”).

ABORTION

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Traditionally abortion is understood as deliberate ejection of an immature fetus before it is viable outside mother’s womb. However, after the authentic interpretation issued by the Pontifical Commission for Authentic Interpretation of Legislative Texts on 13 May 1988, abortion includes also feticide; that is, deliberate killing a foetus within the womb anytime after its conception (cf. AAS 80 (1988) p. 1818).

One who procures abortion and all those who cooperated in procuring an effective abortion incur latae sententiae excommunication (cf. CIC, c. 1398, CCEO, c. 1450 § 2).

The penalty can be remitted by the ordinary of the place where the offender actually resides (CIC, c. 1355§2,). Diocesan bishop can grant the faculty to absolve from the crime of abortion to all priests to whom he has given the faculty in accordance with CIC c. 966 § 1. A priest cooperated in abortion is irregular for the exercise of orders (CIC, c. 1044, 3º). A person who has cooperated in abortion is also irregular for the reception of orders (cf. CIC, c. 1041, 4º). The Crime of abortion committed by member of an Institute of Consecrated Life must be dismissed from the Institute unless the dismissal is indispensable (CIC, c. 695). These penalties also existed in the 1917 Code.

Historically, right from the earliest times, church considered any intentional killing of human being a grave sin. Didache, for instance, insisted, “You shall not commit infanticide.” However, because of the misconceptions regarding the “ensouling” of foetus abortion was not a serious moral concern in the early church.

St. Augustine (AD 354-430) said, “ There cannot yet be said to be a live soul in a body that lacks sensation,” and held that abortion required penance only for the sexual aspect of the sin. He and other early Christian theologians believed, as had Aristotle centuries before, that “animation,” or the coming alive of the foetus, occurred forty days after conception for a boy and eighty days after conception for a girl. The conclusion that early abortion is not homicide is contained in the Corpus iuris Canonici.

At the beginning of the 13^th century, Pope Innocent III wrote that “quickening”—the time when a woman first feels the foetus move within her – was the moment at which abortion became homicide; prior to quickening, abortion was a less serious sin. Pope Gregory XIV agreed, designating quickening as occurring after a period of 116 days (about 17 weeks). His declaration in 1591 that early abortion was not grounds for excommunication continued to be the abortion law of the Catholic Church until 1869. In 1869, Pope Pius IX officially eliminated the catholic distinction between an animated and a non-animated foetus and required excommunication for abortions at any stage of pregnancy

1917 Code of Canon Law also imposed latae sententiae excommunication reserved to the Ordinary for the crime of abortion (CIC, c. 2350). Similarly, those who procured actual abortion are also irregular for Ordination. However, according to this Code the abortion was deliberate ejection of an immature foetus before it is viable outside mother’s womb.

ABLEGATE

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An envoy of the Roman pontiff who as a special representative carries the biretta to a person elevated to the dignity of a cardinal who cannot present himself personally to receive it. He acts in the name of the Pope and not as his delegate.

ABET

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(L. Abettum); to induce another to commit a crime; to bait or to excite; to aid, encourage or incite another to commit a criminal act. In civil law the crime has been described thus, “ A person abets the doing of a thing who- first-instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place pursuance of that conspiracy and in order to the doing of that thing; or third-intentionally aids, by any act or illegal omission, the doing of that thing (Indian Penal Code, section 107).” The word, though, is not used in the Codes, its certain implications are found in the Codes.

CIC, cc. 1369 and 1373, and CCEO, cc. 1448 § 1, and 1447 § 1 envisage punishments for certain types of abetment. CIC, c. 1369 and the corresponding canon of CCEO no. 1448 § 1 lays down the perceptive penalty for abetment of hatred or contempt against religion, to commit immorality etc. According to CIC, c. 1373 and CCEO, c. 1447 § 1, those who abet disobedience to Ordinaries or Apostolic See are to be punished with an interdict or other just penalties. The punishment for abetment is ferendae sententiae.

ABDUCTION

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(L. Abduction); an act whereby a person (or persons) is taken out of his or her place of residence or place where he or she presently stays, or he or she is confined in a custody of another person who is not his or her lawful guardian, forcefully against his or her will, with a criminal intension. In short, it is the act of taking away a person by fraud or force, or to induce a person to go from any place by force or deceitful means.

Abduction of a woman with the intention of marrying her invalidates the marriage, unless the woman consents to the marriage after her freeing from the abductor and established in a free and safe place (cf. CIC, c. 1089). Unlike CIC, according to CCEO both men and women can incur the impediment of abduction. Thus, woman who abducts a man with the intention to marry invalidates the marriage according to CCEO (cf. CCEO, c. 806). Both CCEO and CIC impose a perceptive penalty on crime abduction (cf. CIC 1397).

Abduction was made an impediment for marriage by the Council of Trent for the first time. The Council decreed, “The holy Synod ordains, that no marriage can subsist between the abductor and her who is abducted, so long as she shall remains in the power of the abductor. But if she that has been abducted, being separated from the abductor, and being in a safe and free place, shall consent to have him for her husband, the abductor may have her for his wife” (Decree on the Reformation of Marriage, ch. VI).

The Council of Trent also established the punishment from the crime of abduction. According to the Decree on the Reformation of Marriage, “the abducted himself and all who lent him advice, aid, and countenance, shall be ipso jure excommunicated, for ever infamous, and incapable of all dignities; and if they be clerics they shall forfeit their rank. The abductor shall furthermore be bound, whether he marries the person abducted, or marries her not to settle on her a handsome dowry at the discretion of the judge” (Ibid).

ABDICATION

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(L. abdicationem ); 1) The voluntary surrender of the crown by the monarch ; 2) Voluntary renunciation of an office takes effect only when the renunciation is made freely, manifested in a legitimate form and accepted by the competent superior. This is based on the principle that when an office is created or a provision is made by the superior, the same superior has to accept the renunciation. However, in the cases of resignation of a Roman Pontiff and a Diocesan Administrator acceptance is not required (see “resignation”).

ABBOT, TERRITORIAL

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(L.abbas territorialis); territorial abbot is a priest entrusted with the pastoral care of a territorial abbacy. He is the proper pastor because he is given his power by law itself, and is not exercising it in the name of the pontiff or the diocesan bishop. Even though they are not ordained bishops, they have the right of membership in the bishop’s conference (cf. c 450.1).

ABBOT

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ABBOT

L. Abbas; from the Aramaic ab (“father”) or aba (“my father”). The term refers to the juridical head of a monastic order. Late Latin and Greek Abbas refer to the superior of a monastic community that adheres to the Benedictine Rule (Benedictines, Cistercians, Camaldolese, Trappists) and of certain other orders such as Premonstratensians, Canons Regular of the Lateran, etc.

Abbot of an autonomous monastery is also a major superior. He can be a judge of the first instance in cases between the members of the abbacy (cf. CIC, c. 1427 § 1). In all cases, an abbot can be judged by Roman Rota alone (cf. c. 1405 § 3, 2º.). Unlike moderators of religious institute, they can hold office for indeterminate period if decided by the institute’s proper law.

Unlike the 1983 Code, 1917 Code prescribed that abbots in charge of an abbey must, within 3 months from their election, receive the blessing from the bishop of the diocese in which the abbey is situated (CIC 1917, c. 625). If he neglects this, he is suspended from jurisdiction latae sententiae (CIC 1917, c. 2402). The 1983 Code does not contain this provision in order to protect the legitimate autonomy of ICL.

ABBACY NULLIUS

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A territory which is set apart from any diocese and in which the clergy and the people are subject to an abbot as their local ordinary. The prelate who presides over abbacy nullius is called an abbot nullius.

The origin of the abbacies nullius goes back to the celebrated monasteries, which since 9^th and 10^th centuries were exercising pastoral care on the neighbouring people. They were gradually exempted from the bishops and the abbots obtained quasi-Episcopal jurisdiction. The popes from 11^th and 12^th centuries confirmed such exemption and gave the abbots the jus pontificalium. Since abbacy nullius were few, they were not mentioned in the Decretals of Gregory IX. However, we can find hints of it in the writings of Alexander IV (see for instance c. 3, 5, 7, VI).

The 1917 Code distinguished two types of abbacy nullius: abbacy nullius that consists of three or more parishes and abbacy nullius that consisted of less than three parishes. The former was directed by the canons of the Code, while the latter is directed by special laws (CIC, 1917, c. 319). The same Code sets out in canons 207-209 certain rights and privileges to the abbot nullius. Even though they were not consecrated bishops they had the right to consecrate churches, immovable altars, impart all blessings reserved to the bishops, except the pontifical blessing within their territory. They also could give confirmation, first tonsure, and minor orders. They in their territory could use insignia of a bishop with throne and canopy. Outside his territory they could wear pectoral cross, the right to wear the ring with the gem and purple cap.

The 1983 Code does not mention this type of ecclesiastical circumspition.

ABBACIES, TERRITORIAL

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(L. abbatia territorialis) ; a territorially defined specific section of the people of God, whose care is for certain reasons entrusted to a prelate or an abbot who governs it, akin to a diocesan bishop, as its proper pastor (cf. CIC, c.370).

Abbacies which has an exemption from the diocesan jurisdiction and this exemption extended to the communities outside which depended on the monastery for their pastoral care. They are to be seen as an interim arrangement in territories not dependent on the Congregation for Evangelization of Peoples, where there are yet insufficient ecclesiastical structures for a proper diocese.

ABATE

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(L. abattre – to beat down); 1. To put an end to, to curtail. 2. To put an end to legal proceedings without an order or judgement on merits in favor of the defendant.

ABATEMENT OF A CASE

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(L. Peremptio); generally, it is the interruption of a legal proceeding upon the pleading by a defendant of a matter that prevents the plaintiff from going forward with the action at that time or in that form. Pleas in abatement raise such matters as objections to the place, mode or time of the plaintiff’s claim. At one time, abatement of proceedings in equity differed from abatement in law, in that the former merely suspended the action, subject to revival when the defect was cured, whereas the latter terminated it, although the plaintiff could start the action anew.

In canon law particularly, abatement is a way through which legal proceedings in a tribunal end without a judgement either upon the plea of the defendant or by the judge himself. Abatement in canon law proceeds from the presumption that the court without the active interest of the litigant. If certain time-limit set by law ends without any procedural acts being performed by the petitioner, then it is presumed that litigant is not interested in the case; e.g. when over six months or another period of time established by a particular law the parties perform no procedural acts and when nothing has impeded them from doing so ceases the court terminates the proceedings of the case (cf. CIC c.1520).

At the abatement of a case, the procedural acts remain extinguished. However, the acts of the case can be utilized in another trial when the case is between the same parties on the same matter (cf. CIC, c. 1521).

The 1917 Code prescribed similar laws regarding abatement of a litigation pending before the tribunal.

ABANDONED CHILDREN

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(L. Infans expositus); children forsaken or who are without a legal guardian.

Abandoned children are presumed to be baptized, unless contrary is proven. Thus, abandoned children are to be baptized only after diligent inquiry whether they were baptized earlier (cf. CIC, c.870). This is an exception to the rule that the infant baptism is to be conferred on the assurance that the children are brought up in Christian faith by the parents or guardian. However, abandoned children should not be baptized until it is ascertained that the child will be entrusted or brought up by Catholic persons.

Abandoning physically and mentally handicapped children or illegitimate children to die had been common in both ancient Roman Empire and in Greek world. Law and the thinkers of the time like Cicero justified it. The Twelve Tables of Roman Law held: “Deformed infants shall be killed” (De Legibus, 3.8). Tacitus condemned the Jews for their opposition against infanticide saying, “sinister and revolting practices” of the Jews. Even Seneca, known for his relatively high moral standards, stated, “We drown children at birth who are weakly and abnormal” (De Ira 1.15). Christianity right from the early days condemned the practice of killing the orphans and unwanted children. The Didache (90-110 AD) commanded, “You shall not commit infanticide.”

In many instances, the Christians rescued the abandoned children, baptized them and brought them up by the Christian funds. After the edict of Milan, Emperor Constantine enacted two measures targeting the problem of infanticide: 1) Constantine provided funds out of the imperial treasury for parents over-burdened with children: and 2) Constantine gave all the rights of property of abandoned infants to those who saved and supported them. Constantine also gave funds to the churches to support the poor, the widow and orphans (see: adoption”).

A PARI

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(L. "from the similar”); a rhetorical method used in legal field for arguing from similar propositions. If the proposition A is similar in certain aspects with the proposition B, it follows that they be treated alike in those aspects in which they are similar. E.g., Proposition 1, Stability of the office of the parish priest is mandatory according to canon law since it entails the full care of souls. Proposition 2, A priest who has care of a quasi parish also has the full care of souls. Conclusion, The office of the parish priest and the quasi parish should be stable.

A FORTIORI

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(L. “from a stronger [reason]’); the term used for an argument, which justifies an assertion by a reference to a proved conclusion, which is included in the assertion. It can be depicted thus: if a statement A is proved less than B, and is understood to be greater than C, it follows a fortiori that C is less than B without further proof. The argument is frequently based merely on a comparison of probabilities, when it constitutes an appeal to common reasoning. E.g. 1. “But if God so clothes the grass of the field, which today is alive and tomorrow is thrown into the oven, will he not much more clothe you, O men of little faith?’ (Mt 6:30); 2. All the citizens are to abide by the law of his State. The president of the State being its first citizen should abide by the law.

A

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A CONTRARIO

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(L. “from the contrary [of the accepted conclusion]”): a rhetorical method of arguing from an accepted conclusion to the rejection of its contrary. Grecian in his Decretum had employed this rhetorical method. E.g., only clerics have the power of the governance in the church. The emperor is not a cleric. Therefore, emperor cannot depose a bishop even of his own territory since this requires the exercise of power of governance in the church.

Introduction

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Many have tried to post canon law materials in the internet, some have been successful but a lot have have not progress in continuing their post. If there is enough matials in the internet and can easily be accessible, I will not try to make one like this. It is but emperative to continue this project for a better understanding of the law of the Church which we call Canon law or Ecclesiatical law. I am not a Canon lawyer, but as catholic priest, I believe that I am capable of understanding the basics of the said law and I would like to extend this materials for those who would like to undertand better the subject of the law of the Roman Catholic Church. This will only covers the law in the Latin Rite, out brethren in the Orthodox Catholic have a separate Canon Law of which I will leave it as a separate materials and project for those who belong to the eastern Rite.