Summa Theologiae Moralis, vol. I: De Principiis

On the Interpretation of Ecclesiastical Law.

367. Ecclesiastical law, as being human, often needs interpretation, which can be merely declarative or comprehensive, or extensive and restrictive, and by reason of the author by which it is made, is called authentic or legal, usual, judicial or doctrinal (cf. n. 294). Moreover in ecclesiastical law not only legal is authoritative, but also usual from the use of subsequent law, given the conditions required for custom, about which we will say below (can.

27-29) ; item iudicialis sed quoad partes causae tantum ; doctrinalis vero est mere privata.

368. The Supreme Pontiff can delegate the Roman Congregations to authentically interpret laws by special mandate, or even by general mandate such as he gave to the Congregation of Rites for laws pertaining to rites, and to the Congregation of the Council for decrees concerning the morals and discipline of Trent ; now however according to the const. Sapienti 28 June 1908, each [Congregation] for the competence committed to it enjoys this right saving the approval of the Roman Pontiff (can. 244) ; moreover a special commission was instituted for declaring the canons of the Code (ex motu proprio 15 Sept. 1917). Whose acts enjoy not the same authority but such and so great as each one attributes to them. For :

1. Either they issue a solemn and general decree, approved by the special authority of the Pontiff, by which they settle the controversy : it has the same force as the law and can even extend it.

2. Or under approval in common form they give resolutions, declarations, general decisions, by which they set forth expressly the sense of the law : these are a merely declarative but authentic interpretation which holds for all cases.

3. Or they give responses to Dubia proposed for a particular case, without issuing a general decree : these are authoritative really for the case proposed and for the persons to whom they pertain, as a judicial interpretation (can. 17, § 3), — for others and as to similar cases they are not an authoritative interpretation nor of themselves obligatory, they however exhibit a probable and prudent reason for acting and have a greater doctrinal value than if they were given by private doctors, and so much the greater as they rest on firmer arguments, have been more often repeated, and the occurring cases are more similar. Indeed if there were a uniform, general, constant practice, it would be wrong to go against it : then the contrary would not be probable ; whence in responses sometimes is added : « given the constant practice of the Sacred Congregation ».

369. Does interpretation need promulgation? — Authentic extensive (or also restrictive) interpretation requires new promulgation, because it is really an extension (or change) of obligation which was not contained in the law, or a new law with respect to some point : such interpretation made by him who is deputed to simply interpret laws, does not have the force of law, unless it be given by special mandate of the legislator and by him legitimately promulgated, as is wont to be done for decrees of the Congregations (can. 17, § 2).

Comprehensive interpretation which declares the sense which is clearly enough contained in the law or necessarily deduced from it, does not require promulgation because it was sufficiently promulgated with the law ; but that which declares the sense which is obscurely contained in it so that before and of itself it would be doubtful or only probable, requires new promulgation. According to natural law this can be disputed : according to others it does not require promulgation because it does not make a new law but discovers the sense which was previously hidden ; according to others it requires [it] because that which was doubtfully or probably contained in the law was not sufficiently promulgated, whence the law was not totally promulgated. Regarding however the new ecclesiastical law, it must be promulgated according to can. 17, § 2.

370. Doctrinal interpretation must be made according to the rules established in law ; namely

1° « Ecclesiastical laws are to be understood according to the proper signification of the words in the text and context considered ; which if it remains doubtful and obscure, recourse is to be had to parallel places of the code, if there are any, to the end of the law and the circumstances, and to the mind of the legislator » (can. 18).

2° « Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law, are subject to strict interpretation » (can. 19).

3° « If there is lacking an express prescription of law, whether general or particular, about a certain matter, the norm is to be taken, unless it is a question of applying penalties, from laws enacted in similar matters ; from general principles of law with canonical equity observed ; from the style and practice of the Roman Curia ; from the common and constant opinion of the doctors » (can. 20).

4° « Laws enacted to prevent a general danger, are urgent, even if in a particular case the danger is not present » (can. 21).

5° « A later law, enacted by competent authority, derogates from a prior one, if it expressly so declares, or is directly contrary to it, or entirely reorders the whole matter of the prior law ; but a general law (of itself) in no way derogates from the statutes of particular places and singular persons, unless it is otherwise expressly provided in it » (can. 22).

6° « In doubt, the revocation of a pre-existing law is not presumed, but later laws are to be drawn to the prior ones and, as far as possible, to be reconciled with them » (can. 23).

371. Ecclesiastical law admits private interpretation of epikeia, and indeed in a threefold case : 1) if the law in a particular case becomes harmful or evil, e.g. if it cannot be observed without sin, as if you wished to leave for Mass one sick and in need of your help ;

2. if it is an impediment to good, or very burdensome, and too difficult to be urged by an equitable legislator, as if it exceeds human powers or causes grave unproportioned harm, e.g. if one gravely ill were held to fast ;

3. even if it is not sufficiently burdensome that it cannot strictly be imposed, if, the circumstances of time, place, persons being considered and especially the ordinary manner of prescribing with moderation, it is presumed that such was not the mind of the legislator : thus you are not bound to hear Mass lest an extraordinary great gain be lost.

But ordinarily epikeia does not occur in laws which render invalid, because of the common good, from which not even ignorance excuses ; unless it is expressly said (can. 16, § 1).

The interpretation of epikeia can be made by any private person, if the cause is evident ; — if it is doubtful, it is full of dangers, since man in his own cause is wont quickly to incline to the more favorable part ; whence the superior must be approached, who for such cases has the power of dispensing (can. 15) ; — but if it is a cause which does not admit of delay in having recourse to the superior and is sufficiently founded, so that there is positive doubt that the law still obliges, the very necessity dispenses : for then it suffices that the law has probably ceased to oblige.