Summa Theologiae Moralis, vol. I: De Principiis

On the Division of Ecclesiastical Law.

336. Division of ecclesiastical law. — Ecclesiastical law is partly liturgical, which directly governs the acts of divine worship, partly disciplinary, which directly regards the morals of the faithful : this latter in the stricter sense is called canonical.

Each was gradually elaborated, both from the prescriptions of the Pontiffs and Councils, and from use and custom afterwards confirmed by writing.

Thus especially for liturgical law, which already from antiquity was consigned to books. What concerned Sacrifice was contained in the Roman and Gallican Sacramentaries, in the Antiphonals or Graduals, in the Lectionaries, Epistolaries and Evangeliaries : from which three the Missal was later made up. As to the Divine Office, there existed the Psalter, Antiphonal, Hymnbook, Book of Holy Scripture, Homiliary, Collectar, etc., from which various [things] were taken and united in the Breviary. For the administration of the Sacraments, are found Rituals, which were also called Manuals or Agenda.

Today liturgical laws are contained in 5 authentic books : the Missal, Breviary, Ritual, Pontifical and Caeremonial ; and in the decrees and declarations of the Sacred Congregation of Rites (can. 253). For certain things however the Ceremonial Congregation holds (can. 254) ; and for the rites of the Eastern Churches, the Congregation for the Eastern Church (can. 257).

Disciplinary law however existed at various times under various forms ; recently the law of the Latin Church was codified. About which some more particular things are conveniently noted

337. Division of older law. — Canon law was slowly formed in the course of centuries. Before the most recent codification of law, it was distinguished into old law, which extends from the age of the Apostles up to the 12th century, i.e. up to the Decretum of Gratian (1140-1150) ; new law, which extends from the Decretum of Gratian up to the 16th century or to the Council of Trent (1545-1563) ; and most recent or post-Tridentine law.

A. Old law. In the first centuries there existed syllogae and collections of canons especially published by Councils, e.g. by the Nicene, then also systematically formed. About the middle of the 12th century, however, the Benedictine monk Gratian gathered all the canons into one and undertook a new and unique ordering of ecclesiastical laws, which was afterwards called the Decretum of Gratian, and by which he laid, as it were, the foundations of the study of canon law.

The Decretum is divided into three parts : a) the first consists of 101 Distinctions, and each distinction contains several canons or chapters ; b) the second part is divided into 36 Causes, the causes into questions, and the questions into canons ; c) the third part, which treats of Consecration, i.e. of rites and sacred things, is distributed, like the first, into Distinctions and canons.

B. New law is contained in the Corpus of canon law. It contains

1° The Decretum of Gratian which, although emended, is nevertheless not authentic, and therefore has no other authority than the sources themselves from which it was drawn.

2° The Decretals of Gregory IX which by command of this Pontiff were published by S. Raymond of Pennafort O.P. (1234). This collection is truly authentic and has per se the force of law ; it contains the epistles of Gregory IX and of some predecessors, and the Pontiff wished that only those be used in courts and in schools. It contains Five Books which are divided into titles, and the titles into chapters.

3° The Sixth Book of the Decretals of Boniface VIII, which this Pontiff added (1298), with the same force and authority authentically attached as to the preceding. It has the same divisions as the collection of S. Raymond.

4° The Clementine Decretals, collected by Clement V and authentically promulgated by John XXII (1317), so that they have the force of law.

5° The Extravagants of John XXII, so called because they wandered outside the previous collections, collected and published by private effort, in 1325, they do not have the force of law as a collection, but only from the documents themselves which truly proceed from pontifical authority.

6° The Common Extravagants, in number 70, of other Pontiffs, collected by private authority about the end of the 15th century : they do not enjoy authentic value as collections but only the value of the documents themselves.

C. The most recent law is contained in the decrees and canons of general Councils, especially of Trent and the Vatican, in the Constitutions of the Roman Pontiffs, in the Declarations of the Sacred Congregations and Tribunals of the Roman Curia and in the Rules of the Apostolic Chancery.

To which almost innumerable laws now happily succeeds the Code of Canon Law, which was undertaken by Pius X, and was solemnly promulgated by Benedict XV on the feast of Pentecost of the year 1917, so that it would have the force of obliging from the day of Pentecost of the following year, i.e. from 19 May 1918.

338. Division of the new codified law. — The Code of law is divided into five parts or books :

The 1st book treats of General Norms, especially about Laws, Rescripts and Privileges, and Dispensations.

The 2nd book treats : of Persons, especially of Clerics in general and in particular, of Religious and of Laity.

The 3rd book is : about Things, namely about the individual Sacraments in particular, and sacramentals, about Sacred Places and Times, about Divine Worship, about the Ecclesiastical Magisterium, about Benefices and Ecclesiastical Institutes, and about the Temporal Goods of the Church.

The 4th book treats of Processes, namely of Trials in general and in particular, of Causes of beatification and canonization, and of the Manner of proceeding in certain affairs to be examined.

The 5th book finally is about Delicts and Penalties.

339. The value of the Code is indicated by the Code itself.

Can. 1 : « Although in the Code of canon law the discipline of the Eastern Church also is often referred to, it itself however regards only the Latin Church, nor does it bind the Eastern [Church], unless it concerns a right which from the nature of the thing itself also affects the Eastern [Church] ».

Can. 2 : « The Code, for the most part, decrees nothing about the rites and ceremonies which the liturgical books, approved by the Latin Church, prescribe to be observed in the celebration of the most holy sacrifice of the Mass, in the administration of the Sacraments and Sacramentals and in the performance of other sacred rites. All of which liturgical laws retain their force, unless some of them be expressly corrected in the Code ».

Can. 3 : « The canons of the Code do not in any way abrogate the covenants entered into by the Apostolic See with various nations, nor do they derogate from them ; these therefore continue to have force just as at present, and the contrary prescriptions of this Code are by no means to stand in the way ».

Can. 4 : « Rights acquired by others, likewise privileges and indults which, granted by the Apostolic See up to these times to physical or moral persons, are still in use and not revoked, remain intact, unless they are expressly revoked by the canons of this Code ».

Can. 5 : « Customs at present in force against the prescriptions of these canons, whether universal or particular, if indeed they are expressly reprobated by the canons themselves as corruptions of law, are to be corrected, even if they are immemorial, nor are they to be allowed to be revived in the future ; others, which indeed are centenary and immemorial, will be able to be tolerated, if the Ordinaries, for the circumstances of places and persons, judge that they prudently cannot be removed, the rest are to be held as suppressed, unless the Code expressly provides otherwise ».

Can. 6 : « The Code for the most part retains the discipline hitherto in force, although it brings opportune changes. Therefore :

1° Any laws, whether universal or particular, opposed to the prescriptions of this Code, are abrogated, unless it is expressly provided otherwise about particular laws ;

2° Canons which entirely reproduce the old law are to be judged from the authority of the old law, and therefore from the interpretations received among approved authors ;

3° Canons which agree only in part with the old law, insofar as they agree are to be judged from the old law ; insofar as they differ, they are to be judged from their own proper sense ;

4° In doubt whether some prescription of the canons differs from the old law, one is not to depart from the old law ;

5° As for penalties, of which no mention is made in the Code, whether spiritual or temporal, medicinal or, as they are called, vindictive, latae or ferendae sententiae, they are to be held as abrogated ;

6° If anything from the other disciplinary laws, which have been in force up to now, is contained neither explicitly nor implicitly in the Code, it is to be said to have lost all force, unless it is found in the approved liturgical books, or the law is of divine right, whether positive or natural ».