|CANON LAW AND ITS INTERPRETATION|
|Duane L.C.M. Galles
understand canon law and to be able to interpret it one needs to understand the
purpose of law in the Church, its nature, its characteristics, its scope and the
principles of interpretation of canon law. In recent years some have argued that
canon law is opposed to the gospel. Others have argued that law really is
inapplicable to a community of love such as the Church or that coercion (the
essence of law) is unsuitable to direct the life of a Christian or of the
In 1983 Pope John Paul II promulgated the revised Code of Canon Law by means of the apostolic constitution, Sacrae disciplinae leges. In that document he refuted both of these theories. He pointed out that Christ Himself said He had come to fulfill and not destroy the law, that even the charismatic community needs the order which law brings, and that Saint Paul was an outspoken exponent of Church discipline. In short, the community of love, peace and charity is not replaced but rather is facilitated by order. Indeed, as Saint Thomas reminds us, the peace so widely sought after nowadays is the "tranquility of order."
If law is necessary even for the People of God (the Church), what is it? Again, Saint Thomas is illuminating. He tells us that law is "a regulation in accordance with reason promulgated by the head of the community for the sake of the common good." A law, then, is first of all a command. It is not mere advice. It springs from a person with legislative authority.
By the universal law of the Church legislative authority is enjoyed by the supreme authority in the Church, by the diocesan bishop and by particular (i.e., provincial and plenary) councils. Episcopal conferences are pastoral (c. 447), not legislative bodies. They do possess certain limited legislative authority but it exists only in certain specified cases as set forth by law (c. 455). Put somewhat differently, episcopal conferences are legislators of limited jurisdiction. To legislate validly they must affirmatively show the source of their authority to legislate. And, in any case, the legislation of an inferior legislator (such as an episcopal conference or diocesan bishop) may not contravene the legislation of a superior legislator, such as the Holy See.
If law is a command, it is also a command that is permanent. While law is not immutable, it is presumed to continue in existence until abrogated, obrogated or derogated from by the legislator who promulgated it or by his superior. A law can outlive its usefulness, but it remains the law, nevertheless, until repealed.
It is also important to understand the scope of the Code of Canon Law. The Code does not codify all Church law. Only a small portion of the constitutional law of the Church has been codified. Furthermore, the first few canons of the Code at its outset disclose large bodies of law which have not been codified. Canon 1, for example, tells us that the Code applies only to the Latin Church. The recently promulgated Code of Canons of the Eastern Churches covers the Eastern rites of the Catholic Church. Canon 2 tells us that in general the Code does not treat liturgical law. Usually one looks to the liturgical books and their rubrics for liturgical law.
Canon 3 tells us that some canonical matters are governed by international agreements which supersede the Code. Thus the concordat with Germany gives cathedral canons there an important role in choosing bishops which the Code does not give. Canon 4 preserves acquired rights and privileges not expressly revoked by the Code. By implication these privileges are not codified. Canon 5 reminds us that custom apart from the law (praeter legem) retains its force and by implication is not to be found in the Code. Moreover, there are large bodies of special laws, e.g., the law governing the Roman curia, papal elections, the Pontifical Household, the canonization of saints, military ordinariates, the erection of basilicas, that are to be found in special documents and not in the Code. Furthermore, particular law governing a region or a diocese will not be codified nor will proper law governing a religious or secular institute of consecrated life.
Once one has found a legal text in whatever source there may be need to interpret it. There are various types of canonical interpretation. Interpretation may be authoritative, doctrinal or customary. Canon law follows the maxim, ubi legislatio, ibi interpretatio and interpretation is authoritative (and binding in itself) if given by the legislator, by his successor, or by someone to whom the legislator has committed the task of interpretation. In 1984 Pope John Paul II created the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law (Since 1989 called the Pontifical Council for the Interpretation of Legislative Texts). This commission may give binding interpretations of the Code and of other ecclesiastical laws much as the courts in the United States give binding interpretation of statutes.
Other types of interpretation are not binding. Interpretation is called doctrinal or private if given by those skilled in canon law. "Doctrinal" here has nothing to do with theology. In civil or Roman law countries one distinguishes "la doctrine," the opinion of jurists or law professors, from "la jurisprudence," judicial opinions or case law. Doctrinal interpretation derives its authority from the cogency of its legal reasoning and the clarity of its exposition.
Having discussed the source of interpretation, one may now discuss the manner of it. The rules of interpretation of law are, for the most part, set forth in canon 17 of the Code. This same canon also establishes a hierarchy for the application of these rules. The first rule is to consider the text itself, since people, even legislators, are presumed to say what they mean and since the drafters of laws usually do their work carefully and accurately. This consideration is particularly applicable to the Code, which was twenty-four years in the making. The final product was preceded by three drafts, each of which was copiously commented upon by cardinals, commissions and canonists around the world.
The explication of the text must also consider the textual context. This is particularly true of a code where canons are deliberately placed within a certain structure or framework which itself may help explicate the mind of the legislator. The headings of books, parts, titles and sections of the Code are official and are usable to interpret the law. It is said that "from red [title] to black [text] there is valid inference."
If doubt remains one may seek illumination in parallel passages, the purpose and circumstances of the law and the mind of the legislator. In addition, it is stated that laws which contain an exception to the general rule or laws which impose a penalty or restrict a right are to be interpreted strictly, i.e., narrowly (c. 18). Finally, custom or unwritten practice is said to be the best interpreter of law (c. 27).
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