Fr. Francis X. Wernz, S.J. (1842-1914) and Fr. Peter Vidal, S.J. (1867-1938)
Concerning the Division of Ecclesiastical Law
from the Ius Canonicum (Volume 1, 1938)
Exclusive English Translation
50. Ecclesiastical law is divided: I. By reason of origin or source, into divine or natural or positive law, which has God as [its] author [1], and into human [law] set forth by the authority of the Church.
II. By reason of matter or object, [ecclesiastical law is divided] into public [2] and private [3]. These words have different meanings.
a) In fact, public law takes its name from the efficient cause, because it has been established by the public authority of the Church, and the opposite to it [is] private [law], which takes its origin from pacts or agreements of private [individual] men. Cf. L [= lex, law]. 38 D[igest]. II 14. ‹‹Public law cannot be changed by pacts of private persons.››
b) Moreover, public law is called that which is common to all and pertains to the whole of the subject faithful. In that sense it is distinguished from a privilege, which does not pertain to all, but rather to individuals and is said to be a private legal right. Cf. R. I [= “Rules {i.e., axioms} of the Ancient Law”] 116 § 1, D[igest]. L [= bk. 50]. 17.
c) Next, it is termed public law in its proper and ordinary sense because it is ordered to the common good or directly and chiefly to the public advantage, for example, with relation to the constitution of the Church, [and] the organization of ecclesiastical tribunals, and only remotely and undefinedly and afterwards to the good of individuals. In contrast, private law, which is the opposite of this public law, directly and chiefly regards the advantage of individuals, for example, with relation to agreements of private men, and only remotely and afterwards [does it regard] the common good. Cf. § [Justinian’s] I[nstitutes]., de iust. 1, 1; L [=lex, law]. 1 § 2, D[igest] de iust. I, 1. [4]
d) Finally, in a specific sense, public law is called a system or a combining of divine laws, by which the constitution (i.e., power [of magistracy] and its subject) of the Church as a perfect society is ordered; but private law gives ear to the system or the combining (of all remaining) legislation proposed and passed by the Church, to which is ordered the Church’s agency of management (direction, governance, administration through laws, judicial proceedings, enforcement of the obedience of all members). [5]
III. By reason of scope, [ecclesiastical law is divided] a) into universal [6], which is in force in the whole of the Catholic world; b) into particular, which only has force in some limited territory; c) into general, by which all the faithful are bound, and into special-exception, to which only certain persons, for example, clerics, religious, minors under guardianship, are subject; d) into common [7], which constitutes a rule to be normally observed and can be general or special purpose, for example, the common law of regulars; e) into specific, which includes an exception, either favorable or vexatious, from the normal rule. But if that exception, for instance, be favorably regarded, it is said to be a privilege.
IV. By reason of form, [ecclesiastical law is divided] into written and non-written. The former has been expressly established by the legislator himself, recorded in registers, [and] promulgated; the second one includes both tralatitious [=handed down] law and customary law, which has not been given and promulgated by the legislator himself, at least in written form.
V. By reason of [historical] time [period], [ecclesiastical law is divided] into early-period law [ius antiquum] established from the time of the founding of the Church up to the Decretum of Gratian; into the law of the Middle Ages, which was established from the Decretum of Gratian up to the Council of Trent; into post-Tridentine law [ius novum], which we used to employ from the time of the Council of Trent up to the promulgation of the new [1917] Code of Canon Law: and into the most recent law [ius novissimum], which is chiefly contained in the new Code.
VI. By reason of effect, [ecclesiastical law is divided] into favorable and vexatious, to the extent that a certain specific favor is granted or a certain specific burden is imposed. [8] But if the effects of the law be closely examined, here [one] can make use of the division a) into coercive law and dispositive law. The former is binding absolutely, the latter only conditionally, that is to say, provided that the transaction were to have been ordered to private agreements; b) into permissive, preceptive, prohibitive, invalidating, [and] penal; c) into perfect law, to which has been added the binding clause, nullity of the act performed to the contrary [9]; [and] into less-than-perfect law, the violation of which does not render the act null, but rather legally answerable by a certain other penalty; [by reason of effect it is further divided] into more-than-perfect law, which invalidates an act performed illegally and furthermore adds a specific penalty; [and also it is divided] into imperfect law, to which a specific binding clause respecting performance has not been expressly added, but the penalty to be imposed is left to the prudent determination of a magistrate. [10]
VII. By reason of relation to outside civil and religious societies and persons, ecclesiastical law is called external after the fashion of international law whether public or private, although it may be called the internal law, whereby the Church in itself is constituted and directed as regards its own proper subjects. [11]
VIII. By reason of rite, [ecclesiastical law] is divided into the law of the Western Church and the law of the Eastern Church. [12]
51. Scholium. Even in our times, one calls to mind pseudo-natural and pseudo-historical ecclesiastical law. And, indeed, the things that, for example, Hinschius and Schulte (after his defection from the Catholic faith) and others advance often under a certain appearance of historical learning are not firmly-grounded historical investigations, but rather pseudo-historical ecclesiastical laws gathered from historical documents in accordance with their own opinions formed in advance.[13]
[1] Laynez [Laínez], loc. cit. in the edition cited p. 2ff., 7ff. These [terms], which Schulte loc. cit. p. 30 opines are contrary to the explanation of divine law given by Gratian, are not derived from solid reasons.
[2] Cf. c. 1, 1 [Justinian’s] D[igest] 1. “Public law is found in religious matters, priests, and civil offices,” from L. 1 § 2, D[igest]. de iust., I, 1, where one reads: “There are two facets of this study: public and private [law]. Public law is that which has in view the state of the Roman community; private [law is that] which [has in view] the intertest of individuals, since there are certain things advantageous publicly [and] certain things privately [advantageous]. Public law consists in religious matters, priests, and civil offices. Private law is tripartite, for it has been gathered from natural [law] norms, or from the [norms of the law] of nations, or from [the norms of] civil [law] (Ulpian [Roman jurist, † c. ad 228]).
[3] Phillips, loc. cit., t. I, § 3; Scherer, loc. cit., t. I, p. 112ff. Saegmueller [Sägmüller], loc. cit., p. 8, and others, e.g., Vering, think that this division of ecclesiastical law is not firmly founded, or rather [is] incompatible with it. If the authentic meanings of [the words] “public” and “private” be given attention, that opinion rests on no solid argument, and the merely spurious so-to-speak accepted connotations of those words are not contested, as it not infrequently seems to be the praiseworthy aim of the mentioned Catholic writers. (Cf. Soglia loc. cit. Praef. and § 6; Cavagnis loc. cit. P. I. p. 4ff. 10ff.; Tarquini, Inst. iur. eccl. publ. p. 1, n. 2; Mueller [Müller], De placito regio p. 127; Nilles in Act. theo. Oenip. t. I, p. 394ff.) For if opponents argue from it that the entire ecclesiastical law is public, they either set out from an entirely false assertion or they adopt a sense of public law that reasonably contains something of the truth but does not exclude other and more firmly founded explanations of the word law [iuris] (i.e., of statutes [legum]). Moreover, in ecclesiastical law very many statutes [leges] are found that obviously are assigned to private law, e.g., with respect to contracting marriage, separation from the conjugal bed, and cohabitation. But if these same opponents call ecclesiastical law public, to the extent to which it is coercive law [ius cogens, constraining or peremptory norm of law], they ought to admit, to begin with, that the entire ecclesiastical law is by no means coercive ecclesiastical law, that is, removed in its application in respect to subjects’ determination [arbitrio]; to be sure, in their assertions they add the words of limitation, “unless ecclesiastical laws permit such determination.” Cf. Saegmueller loc. cit. c. iunct. Nilles loc. cit. p. 396ff.
Furthermore, without question no one is prohibited from saying that ecclesiastical law is public in the true sense, inasmuch as it has been established not by private means but by the public authority of the Church, because it constitutes a proper system of the sacred law of a perfect religious society distinct from another system of civil law; ecclesiastical law cannot be regarded as a part of that law of a commonwealth or State. But it is manifestly evident that in such circumstances the whole debate is reduced to a dispute about language; for the former expression of the public law of the Church is taken in a completely broad sense, and here there is no consideration to treat, within the system itself, the division of ecclesiastical law along with the proper and strict meaning of expressions.
Further, the advocates of the contrary opinion also seem to fabricate for themselves a notion of private law that is not germane. For if here ecclesiastical law is also divided into private [law], subjective private laws are not taken as its closest meaning, but in fact objective [private laws are meant], i.e., the combining of ecclesiastical statutes [legum], by which the private good of each [member of the] faithful is immediately and directly advanced. Ecclesiastical statutes [leges] of this sort undoubtedly exist. Moreover, that mentioned notion of private law advanced by opponents under another aspect is too limited as well. The reason is that by no means can these laws be said to be only subjective and private, in respect to which any single person has the power to regulate on the basis of his own determination, forasmuch as there are other subjective and private laws that have not been left to the private determination of the faithful.
The opponents’ other reasons much less prove their case. To be sure, a division so to speak cannot be teased out therefrom, seeing that [this division] has been drawn from Roman law; otherwise many other divisions in canon law would have to be defended. Next, that very terminology of Roman law in itself is best and has a real foundation in the nature of a perfect or civil or ecclesiastical society. Any other reason must be utterly disregarded because private law is subordinate to civil power. Indeed, this is very well-founded with respect to private civil law, not with respect to ecclesiastical [law], which is under the sole power of the Church as the true perfect society. Wherefore, this difficulty can be pressed only in opposition to those, e.g., Schulte and others, who setting out with a false conception of the private law of the Church think that she in reality, e.g., in acquiring even de jure [“in accordance with law”] temporal goods, is subject to civil statutes [legibus]. Finally, the third difficulty therefrom is renewed because public law is said to aim at the general arrangement of a perfect society as a society, but private [law is said] to be ascribed to the good of individuals. If that explanation be rejected, either the inherently very-well-founded division in itself from Ulpian mentioned above [in footnote 2] is wrongly rejected (cf. also Cavagnis loc. cit. p. 15; Nilles loc. cit. p. 394ff.), or insufficient attention is being paid to the fact that the division of strict public and private law has been drawn from the object, not from the subject.
But it must be granted that the advocates of this division in the definitions of public and private ecclesiastical law do not lightly disagree among themselves and to a much greater extent turn aside to different opinions, if they should apply this division to the systematic division into parts and treatment of the whole of canon law. Cf. Soglia loc. cit.; Cavagnis loc. cit.; Nilles loc. cit.; Schulte, Syst. d. k. K. p. 89ff.; Laemmer [Lämmer], Inst. d. k. K. p. 51ff.; Lega, De iudiciis eccl. t. I, p. 11ff.
[4] Schmalzgr.[= Schmalzgrueber] loc. cit. n. 149; Covagnis loc. cit. p. ff. [sic, no page number printed]; Cathrein. Moralphil. t. I, p. 535.
[5] If the different conceptions of public ecclesiastical law, particularly those given under c), be compared among themselves, it is readily evident that public law is not infrequently taken more broadly than it was defined under d), where public law likewise constituted in human statutes is not included. Cf. Cavagnis loc. cit. p. 12, where public ecclesiastical law is defined as the system of divine laws determining the laws and offices of the Church as a perfect society. That definition is so sweeping that, after removing the word ‹‹divine››, it also encompasses without difficulty at least the greatest part of private law described under d), namely, with relation to the agency of management of the Christian people.
Hence, it is clear why it seems better that the term “private law” defined in that same context must be exchanged for another, as even Cavagnis (loc. cit. p. 12) acknowledges. For assuredly the whole of the matter of that part cannot be subsumed under the species of private law, unless private law be taken in a very broad and quite improper sense. And it does not help much if, instead of private law, one uses the word canon law. That word is generic and also includes public law and does not clearly indicate the matter ascribed to the second part. Wherefore, in the interest of clarity and lucidity, it seems prudent if there be made a distinction between the law of the constitution and the law of the agency of management of the Church.
[6] Vering, Lehrb. d. k. K., § 10.
[7] Cap. 7, X. de procur. I, 38; cap. 51, X. de appell. II. 28.
[8] Suárez, De leg. 1. V, cap. 2
[9] But in the ecclesiastical forum, R. I. [“axiom of the law” no.] 64 in Sext. [Boniface VIII’s Sixth Book of Decretals] has not been received to the extent that it expresses: ‹‹Those things that are done against the law, must surely be regarded as null and void›› but rather one must give heed to the principle in [the Extravagantes] Innoc. III, cap. 16, X de regular. III, 31: ‹‹Many things that are forbidden to be done achieve the solidity of oak if they have been performed,›› that is to say, provided that an express invalidating clause is wanting; and likewise, too, in the new Code, can. 11: ‹‹Only those laws must be considered invalidating or disqualifying wherein it is expressly or equivalently established either that an act is null or that the person is incapable.›› Cf. L. 5, C. [= Codex Justinianus, Code of Justinian] de leg., I, 14; Gregor. M. (a[nno]. 598), in [Gratian’s Decretum] c. 13, C [=Causa]. XXV, 2; C. XXXV, q. 6, iunct. part. dec. cap. 3, X, qui matr. IV, 8, (Coelest. III, a[nno] 1191-1198?) de rigidiore sententia; Gasparri, De matrim. n. 246; Scherer loc. cit. t. II, p. 250, not. 6.
[10] Arndis, Iurist. Encyklop. § 22; Vering, Gesch. u. Pandekt. § 11; Scherer loc. cit. t. I. p. 11.
[11] Mueller, De placito reg. p. 127; Phil. Hergenroether, Lehrb. d. k. K. p. 11ff.
[12] Collect. Lac. t. II; Synod. Sciarf. Syror. (a[nno] 1888).
[13] Vering, Lehrb. d. k. K. §§ 3, 4; Phil. Hergenroether, Lehrb. d. k. K. p. 6ff.; Zallinger loc. cit. vol. II, pag. 352ff. 362ff.
Source: Ius Canonicum, vol. I, by Francis Xavier Wernz, S.J., and Peter Vidal, S.J. (Rome: Gregorian University, 1938), pp. 74-79. Imprimatur 1938. Translation into English by Novus Ordo Watch.
Note: An electronic copy of the original Latin work is accessible through the Internet Archive here.
Image source: canonlaw.info
License: fair use
