ON THE MUTABILITY OF ECCLESIASTICAL LAW.

372. Ecclesiastical law, like every human law, can be changed, indeed in a twofold way :

a) Some causes are excusing from the law, which do not remove the obligation but prevent it from being applied to someone here and now, and excuse from the transgression of law, namely. 1) ignorance which in the subject prevents only the formal and subjective obligation, and 2) impotence which also prevents the material and objective obligation.

b) Other causes are exempting from the law, which remove the obligation either in a particular case, with respect to some only, so that the law itself does not cease, which is done by 3) dispensation, and 4) privilege, or in general so that the law ceases, either intrinsically, by 5) cessation of the end, or extrinsically, by 6) abrogation and derogation, and 7) custom. Of which it remains now to speak in particular.

On Ignorance.

373. Does ignorance excuse from fault? — Ignorance on the part of the subject does not make it so that the law does not reach him in the first act, but it can make it so that it does not oblige in the second act and the transgressor is excused from fault. For invincible ignorance (antecedent or concomitant), whether of right or of law, or of fact determining the application of law, excuses from fault because it removes the voluntary : for we will nothing unless foreknown ; on the contrary vincible ignorance because it does not remove the voluntary, this nevertheless diminishes fault, unless it be affected for liberty of sinning or for having an excuse from sin (n. 82).

374. Does ignorance of law excuse from penalty? — Invincible ignorance, whether of right or of fact, in the internal forum excuses from penalty because it excuses from fault ; on the contrary vincible does not excuse from a proportioned penalty, it excuses however from an improportioned one, whence if the fault is light, a grave penalty is not incurred (can. 2199-2203)¹. In the external forum however, « ignorance or error about the law or penalty or about one's own fact or about another's notorious fact is not generally presumed ; about another's not notorious fact it is presumed, until the contrary is proved » (can. 16, § 2) ; and « an external violation of law being posited, fraud (i.e. deliberate will of violating the law) is presumed in the external forum, until the contrary is proved » (can. 2200, § 2). Which often does not happen, and therefore (if sufficient proof is lacking) sometimes one is bound to undergo the penalty for a just cause, the common good requiring it, at least when the judgment of a judge is added ; but then it is not a penalty properly so called but rather a burden to be undergone for the common good.

375. Does ignorance of penalty excuse from penalty? — Ignorance (even invincible) of the penalty alone does not excuse from a proportioned penalty, because reason dictates to each one that evil according to its nature is to be punished, e.g. homicide by death, theft by prison. Whence can. 2202, § 2 : « Ignorance of the penalty alone does not remove the imputability of the offense, but diminishes it somewhat ». Likewise it does not excuse from invalidation, for can. 16, § 1 : « No ignorance of irritant or inhabilitating laws excuses from them, unless something else is expressly said ». — Indeed not even ignorance of law exempts from any vindictive penalty latae sententiae in the external forum (can. 2229, § 3, 1°) ; whence can. 988 : « Ignorance of irregularities whether from offense or from defect and of impediments, does not excuse from them ».

Ignorance of law or penalty excuses however a) if the penalty supposes communion and therefore communication of the knowledge, as for medicinal [penalties] and censures, unless the ignorance is gross or sluggish (can. 2229, § 3, 1°) ; b) if the legislator requires knowledge or temerity, by which he does not wish to punish except him who has acted knowingly, rashly, deliberately, studiously, with presumption, or has dared (can. 2229, § 2), unless the ignorance is affected, because this in law is equated with knowledge and excuses from no penalty latae sententiae (can. 2229, § 1).

On Impotence.

376. Impotence is the incapacity of the subject to fulfill the law : one is absolute when the prescribed work cannot be placed, whether it be corporal or physical when the physical power to place it is lacking, e.g. from defect of strength, of means, of liberty because of violence, external coercion, as with one sick and fixed in bed or incarcerated ; whether it be spiritual when the work cannot be placed without sin because of a higher law ; — another is moral when the law cannot be fulfilled without great fear or danger of grave harm or of bodily or spiritual inconvenience, which accidentally is joined with the fulfillment, e.g. if it requires extraordinary labor, or notably harms health or fortune, or gives occasion for scandal or grave scruples, or is an impediment to a great good, e.g. of an excellent work of charity not prescribed.

377. Rules about excuse because of impotence.

I. Absolute physical impotence always excuses from the observance of the law, because no one is bound to the impossible.

II. Absolute spiritual impotence excuses from the observance of the law, because no one is bound to evil.

III. Moral impotence, by reason of epikeia, regularly excuses from the observance of positive law, because law must prescribe acts morally possible ; hence the axiom : positive law does not oblige with grave harm or inconvenience extrinsic to it¹. How much difficulty however is required to excuse, is to be estimated morally from the importance of the law, the quality of persons, the circumstances of places, times, etc.

Exceptionally however it does not excuse :

1. of itself, by the force of the positive law itself, when the observance is necessary for the common good, which always takes precedence over private good ; thus e.g. even with danger of life the sacraments are to be administered to the dying by the parish priest, war is to be waged by soldiers ;

2. accidentally, by the force of natural law, when the violation would redound to contempt of God, of religion, of legislative power, or to grave scandal, e.g. the law of not celebrating without sacred vestments, the law of diriment impediments of matrimony, or the law of not eating meat if this were done out of hatred of religion.

378. He who cannot fulfill the whole law, is he bound to fulfill a part? — Resp. 1) he is bound to the possible part, if the law is morally divisible, the part is to some extent notable, and contributes to the end of the law, e.g. he who cannot fast is bound to abstain from meat. He who lacks a breviary is bound to the parts which he knows by memory or which are contained in the diurnal (prop. 34 damned by Inn. XI) ;

2. he is not bound a) if the law is at least morally indivisible, because it is impossible to observe even partially, e.g. fasting : thus he who cannot make a pilgrimage is not bound to begin the journey ; b) if the part is altogether trivial, so that it is considered as nothing, e.g. supplying the psalm iudica in Mass : thus if he would know little of the office, while lacking the breviary ;

c) if the reason of the precept is not preserved in the possible part, because this contributes nothing to the end ; e.g. he who cannot be present at the consecration is not bound to the rest of the Mass which is not prescribed except for the consecration.

He who seriously doubts whether he can observe the possible part, is not bound, because of the great inconvenience of the scruple.

379. Is it lawful to place an impediment to the observance of law? — Every precept in some way obliges, both to avoiding impediments and to removing those which hinder its fulfillment. Hence

1° to place impediments, whether proximate or remote, or not to remove them, is not lawful if it be done directly, i.e. with the end that the precept cannot be satisfied, e.g. to undertake a journey so that one cannot hear Mass : for this would be to wish to violate the law ;

2° indirectly, i.e. for another end, with the prevision however that the law cannot be fulfilled, it is illicit to place or not to remove proximate impediments, i.e. at the very time of the obligation or a little before when it morally and proximately already urges, e.g. to begin a journey on the evening before the day of precept ; unless however there is a proportionately grave cause, e.g. a grave inconvenience, or extraordinary means would have to be employed, e.g. to go to the church : for then the principle of the cause with a double effect, one good, the other evil, holds ;

3° to place or not to remove remote impediments is not prohibited, e.g. on Monday to begin a journey or to place the cause of sickness, because of which one cannot hear Mass on Sunday or fast on Friday : for it would be a great and grave inconvenience to oblige even to avoid remote impediments. These namely are not to be avoided as causes so that the precept may be fulfilled, or as remote and accidental causes, which, even if prohibited, are not precisely prohibited lest this effect follow.

380. Remark. — As from fault, so impotence in fulfilling the law avails also to excuse from penalty, or to diminish it (cf. can. 2199, 2203 § 2, 2205).

On Dispensation.

S. Th. I-II, q. 97, a. 4 ; 96, a. 6 ; II-II, q. 63, a. 2, ad 2 ; 88, a. 10 and 11, ad 2 ; 89, a. 9 ; 147, a. 4 and ad 1.

381. Dispensation is the relaxation of law in a particular case made by one having competent public power of jurisdiction (can. 80). It is called :

1. Relaxation, i.e. exemption, remission, suspension, removal.

So it is distinguished a) from interpretation and epikeia which only declare that the law does not oblige here and now (e.g. because of excusating causes) or according to the sense of the words or contrary to their sense ; b) from permission which only does not impede nor punish the violation of law ; c) from license which is had from this that law disposes something to be prohibited, not absolutely but only e.g. that it not be done without the will of the superior at least presumed, which condition being posited, the law is not suspended but never obliged, e.g. let no one export wheat without license, or go out of the house ; whence license is a faculty granted according to law (e.g. can. 1398) ; d) from absolution which is not the remission of an obligation to be fulfilled in the future, but of fault or penalty contracted in the past, and pertains to judiciary power, not legislative. All of these do not remove the obligation of the law itself nor are against but according to law.

2. In a particular case : for it is given only to some, or if to all, not for all time, whence the law remains in general or for the community.

So it is distinguished : a) from abrogation and derogation, by which the law is extinguished totally or partially but with respect to the community, i.e. for all and forever ; b) from privilege which constitutes positive right while dispensation operates merely negatively ; moreover it is permanent and stable and not always against but often beyond law, e.g. the privilege of absolving or dispensing.

3. Made by one having competent public power of jurisdiction.

So it is distinguished a) from invalidation for which the dominative power of a superior over an inferior suffices ; and which only mediately regards the law ; b) from interpretation which can be made, and from epikeia which is always made by a private person ; for which knowledge can suffice, power is not necessarily required ;

382. Dispensation is given in human law because of the variation of cases and circumstances, which the legislator cannot foresee : for it happens that a precept which is for the common good for the most part, is not suitable for this person or in this case, because something better would be impeded or something evil induced. — It is however twofold : simple dispensation, if the bond of the law is simply relaxed ; and dispensation with compensation, if some burden is imposed in place of the law, and then it is called commutation. For a legitimate dispensation three things are required : the power of dispensing, the will of dispensing manifested, the just cause of dispensing.

383. For dispensation the power of dispensing is required. — The faculty of dispensing pertains to public power of jurisdiction. Therefore some have it :

A. Either by ordinary power, i.e. by the force of office : those namely who can enact laws, in their own laws, those of predecessors and inferiors : for « every thing, by whatever causes it is born, by the same is dissolved ». These are the Roman Pontiff with respect to all ecclesiastical laws, and bishops, and other local Ordinaries, with respect to diocesan laws including synodal (c. 82), unless they have been confirmed in specific form so that the Roman Pontiff has made them his own.

B. Or by delegated power : for an inferior cannot dispense in the law of a superior unless this be granted to him, because an inferior has no power over the will of a superior, on which the whole force of law depends. Inferiors however have the faculty :

Either a) by quasi-ordinary power or from right or custom : those are they who have an office to which right or custom has attached the power of dispensing in certain laws of superiors, namely

α) Local Ordinaries (bishops and vicars general, the see being vacant the capitular vicar, prelates nullius, administrators, vicars and prefects apostolic).

These « from the general laws of the Church... cannot dispense, except in some particular case, unless this power has been explicitly or implicitly granted to them » (c. 81) ; but it is implicitly granted, if the law says indefinitely : to be able to be dispensed, or until dispensed, or also explicitly, as is done for irregularities arising from occult offense, except that which arises from voluntary homicide or abortion, or another brought to the judicial forum (can. 990), and for penalties latae sententiae, according to the norm of can. 2237. This however they can generally

1. in certain lighter causes occurring more frequently : thus e.g. in singular cases they can dispense their subjects individual faithful individuals or families, even outside the territory and in the territory also for travelers, from the common law about the observance of feasts, likewise about the observance of abstinence and fasting or also of both, indeed for a particular cause of a great gathering of people or of public health they can also dispense the whole diocese or place from fasting and from abstinence or also from both laws (can. 1245 § 1 and 2) ; likewise for prohibited books (can. 1402) ; likewise by centenary custom in the recitation of the hours ;

2. in cases of urgent necessity, if there is difficulty of recourse to the Holy See and at the same time there is danger of grave harm in delay, and it concerns a dispensation which the Holy See is wont to grant (can. 81), e.g. in matrimonial impediments (can. 1043 and 1045) and from irregularities in case of danger of grave infamy for exercising orders (can. 990) ;

3. in doubt of fact, even for irritant laws, provided it concerns laws in which the Roman Pontiff is wont to dispense (can. 15) ;

4. as to laws of a provincial or plenary council, but only in particular cases and for a just cause (can. 82 and 291, § 2).

β) Parish priests by right already firm custom, in laws about the observance of feasts and of abstinence and fasting.

But thus only in singular cases and for a just cause individual faithful and individual families, not however the whole community (can. 1245 § 1).

γ) Religious superiors, in exempt clerical religions.

They are Ordinaries, namely generals or provincials, in certain causes determined by law, less frequently however than local Ordinaries¹ ; and provincials for laws enacted in the provincial chapter, generals for laws enacted in the general chapter. Likewise these and superiors of the house for laws about the observance of feasts, fasting and abstinence, with their inferiors, but only in the manner of the parish priest (can. 1245 § 3).

δ) Confessors cannot do this however.

They can only declare laws, not indeed of themselves dispense in them, unless something of this is expressly granted.

Thus from delegated right in more urgent occult cases in which the Ordinary cannot be approached² : 1) in the case in which danger of grave harm or infamy is imminent, over all irregularities arising from occult offense but only for the exercise of the order received, except the irregularity arising from voluntary homicide or from the procurement of abortion, or another already brought to the judicial forum (can. 990) ;

2. likewise over the observance of a vindictive penalty latae sententiae, if the guilty party has otherwise betrayed himself with infamy and scandal ; but with the burden of having recourse within a month to the competent superior if it can be done without grave inconvenience (can. 2290) ;

3. over all ecclesiastical matrimonial impediments, except the impediments of priesthood and of affinity in the direct line from consummated marriage (can. 1044-1045).

Or b) by purely delegated power or from a man : those are they who have been expressly commissioned for this by those who have ordinary or quasi-ordinary power, or delegated power for the universality of causes or with the faculty of subdelegating.

Thus bishops by the force of quinquennial and triennial faculties and extraordinary faculty can dispense in many [cases].

About all of which the following rules hold.

384. Rules about the power of dispensing.

1. He who has ordinary power of dispensing can also commute, just as in to place of one obligation to impose another.

2. He who has delegated power of dispensing can also commute in laws which impose a burden, e.g. fasting, recitation of the hours, — not however in laws which were enacted for other ends pertaining to the common good, e.g. to be avoided inconvenience, to preserve order, such as are matrimonial impediments, because compensation can contribute nothing to their proper ends.

3. He who has power of dispensing of himself has the power of commuting, unless he be explicitly restricted to dispensations with respect to the case.

4. He however who has the power of commuting does not therefore have the power of dispensing, nor of commuting to less, otherwise he would dispense in part.

5. He who has the faculty « of commuting by dispensing », can commute to less, not simply dispense.

385. Whom they can dispense. — They can dispense of themselves with subjects (c. 201, § 1), also with vagrants (c. 14, § 2), with exempts at least with the presumed consent of their superior (because they are not of lesser condition, according to rule 61 ; What is granted for the favor of someone is not to be turned to his harm), and also with travelers who otherwise would be held to approach their own superior, which can often not be done without great inconvenience (c. 1245, 2233, § 3, 2237, 1043-1045), unless however the contrary be positively established as e.g. c. 990, § 1 and 1402, § 1 ; indeed with himself because they are not of lesser condition than subjects and because acting in the name of the superior he dispenses himself as subject to him, not however in his own laws, in which he does not need dispensation since he is not directly subject to them.

386. For dispensation the will of dispensing present or antecedent is required ; however a presumed will about the future does not suffice, because this is not an absolute will, e.g. if the superior knew he would dispense. And thus dispensation is distinguished from license : for in this case the action is not prohibited simply but only that it be not done without the consent of the superior, which suffices as presumed ; but when the action is absolutely prohibited and therefore evil, the will which removes the prohibition and evil is necessary at present. — This can be manifested 1) expressly, by words, writings, signs ; or 2) tacitly from facts : a) if the superior knows that the law is being acted against and does not contradict, when he easily can and should, so that from the circumstances the silence cannot be explained except by supposing dispensation ; b) if with certain knowledge he commands or grants what cannot be done without dispensation, e.g. the Pontiff knowing gives a benefice to an irregular, or commands to eat meat on a forbidden day.

387. For dispensation a just cause known and examined with mature counsel is required. — For a) if the dispenser dispenses according to his own will, either he will be unfaithful, or imprudent ; unfaithful if he has no just cause, for he exercises power for a private good, and thus sins by destruction, while he disturbs the right order of society, and (by committing acceptance of persons) gives occasion for complaints, by exempting one while others are pressed by the law ; — imprudent if he ignores the reason of dispensing. Moreover b) because to exempt from the law him who is not to be exempted from the law, is acceptance of persons ; c) because it is base and against natural law that a part without cause should not be conformed to the whole.

1. If the just cause is lacking, a) and it be done in the law of a superior, the dispensation is illicit as being an abuse of another's power, and indeed gravely or lightly according as the law obliges under grave or under light, and ordinarily invalid because the superior is not considered to commit the power of dispensing without cause, which he could not grant without sin (can. 84, § 1) ;

b) if it be done in his own law, the dispensation is valid because positive law does not bind without the will of the superior, but illicit gravely or lightly according to the degree of disturbance following : although it is a sin, acceptance of persons which is grave of its kind, against distributive and legal justice, which is apt to generate scandal and harm the common good, nevertheless in a particular case in fact it will often be light, because ordinarily it is not very harmful ; it is however grave if notable scandal arises, or harm to the dispensed, or burden to others ;

c) the subject knowingly asking for a dispensation without legitimate cause, sins gravely or lightly, according as he leads the dispenser to grave or light sin (even if the superior be of good faith) ; however using the dispensation, if it is valid, apart from scandal he does not sin.

2. If only the knowledge of the cause is lacking : a) if it be done in the law of a superior, the dispensation is illicit, and also invalid if the delegating party has posited the examination of cause as a condition of dispensation, or even just cause and the cause be lacking ; otherwise its validity is probable ;

b) if it be done in his own law, the dispensation is valid but illicit ;

c) if with diligence employed, it is not certain but probable that the cause suffices, the dispensation is licitly and validly granted, because in moral matters evidentness cannot always be had but a prudent and probable reason suffices (can. 84, § 2).

In doubt about the validity of a dispensation it is considered valid : one must stand for the value of the act.

388. The just cause of dispensing can be : necessity e.g. a grave headache or weakness from fasting, piety e.g.

service of worship for dispensing from irregularity, or utility at least mediately redounding to the common good, whether intrinsic or extrinsic.

Intrinsic is the preservation, difficulty or inconvenience of the observance of the law accidentally joined, e.g. preservation from scruple or temptations, difficulty of journey in winter. Extrinsic is the good of the dispenser e.g. so that he may show himself liberal or benign ; the good of the dispensed e.g. utility for a good merit, dignity of the petitioner ; the common good e.g. to prevent too many transgressions, to increase common joy. So also the payment of money for the utility of the Church, compensation of merits, reconciliation of peace³.

It is namely as it were a cause with a double effect : the good coming from the dispensation must compensate the evil caused by it, — The cause however must not be so great that it certainly excuses of itself from the observance of the law, or probably if the superior cannot be approached, because then dispensation is not needed, since the law has probably ceased ; nor can it be minimal or whatever is small, but an intermediate cause suffices.

The cause of dispensation need not exist when the dispensation is asked for or when it is inchoatively (e.g. mandatorily) granted, but when it is definitively and effectively granted or promulgated (can. 41). Moreover it must remain up to the inchoate use and during the use, if it has been given for a morally divisible and revocable act and the cause by its nature is temporary ; whence dispensation is given under a tacit condition if the cause endures, e.g. dispensation from the recitation of the hours or from fasting because of infirmity ; — but it need not remain if it has been given for a morally indivisible and irrevocable act, and the cause by its nature is perpetual and therefore, if it ceases, it is accidental ; whence dispensation is given absolutely, e.g. dispensation from irregularity because of poverty is valid even if the poverty has ceased ; dispensation from a matrimonial impediment for legitimating offspring is valid even if, the dispensation having been granted, the offspring dies.

389. Dispensation can be vitiated by violence, fear, and error.

A. Violence strictly so called or perfect and absolute invalidates it because it renders it involuntary (can. 103, § 1).

B. Fear of itself does not invalidate, because it does not remove the will of dispensing, unless it has been so grave as altogether to disturb reason ; whence the dispensation is considered valid, unless something else is provided by law (can. 103, § 2), as for remission of a penalty extorted by fear (can. 2238).

C. Error arising either from subreption, i.e. suppression of the true, or from obreption, i.e. expression of the false⁴ invalidates if it concerns

a) the substance of the object or thing, or the quality which enters into the substance of the thing about which dispensation is given, e.g. affinity in place of consanguinity (can. 40) ;

b) the subject or person to whom it is given, e.g. Peter in place of Paul (can. 40) ;

c) those things which are expressly required for validity by the style of the curia, even if the superior would have dispensed otherwise (can. 42, § 1) ; unless however the clause motu proprio be added to the dispensation (can. 45) ;

d) the final or motive cause which so moves to dispensing that, this being removed, the dispensation would not have been given, if the unique or all the final causes alleged are false (can. 42, § 2) ; unless however it be established by exception of law, as for lesser matrimonial impediments (can. 1054).

2. Outside these cases it is valid, e.g. if the error concerns the accidents of the thing, or the name of the person or place or thing provided that, in the judgment of the Ordinary, there is no doubt about the person or thing itself (can. 47), or about a merely impelling cause without which the dispensation would however have been given but which moves to dispensing more easily, or if it is extrinsically independent with respect to the thing requested, even if it would not have been dispensed otherwise : for here and now the dispenser wills to loose the bond.

3. The defect of obreption or subreption in only one part does not invalidate another, if several dispensations are granted at the same time (can. 42, § 3).

390. Remarks. — 1° Canon 84, § 2 : « A dispensation in doubt about the sufficiency of cause is licitly asked and can be licitly and validly granted ».

2° Canon 85 : « Strict interpretation is subject not only to the dispensation according to the norm of can. 50 (about a law for private advantage), but also to the very faculty of dispensing for a certain case granted » ; — not however to a general faculty whether ordinary or delegated for the universality of causes, since it is favorable and granted beyond law, and therefore admits broad interpretation (can. 200 § 1).

3° Canon 86 : « A dispensation which has a successive course (and not all its effect at once, like irregularity or the removal of a matrimonial impediment) ceases in the same ways as a privilege, and also by the certain and total cessation of the motive cause (whether negative or contrary). Whence it also ceases 1) by revocation of the granting superior made known to the subject (c. 71 and 60), which the legislator can always validly effect, an inferior delegate only for a just cause ; 2) by renunciation made by him who can renounce, and accepted by the competent superior (c. 72) ; 3) by the resolution of the law (and death) of the granter if the dispensation has been given ad beneplacitum (c. 73), or with an equivalent clause : until I shall have wished, until it shall have pleased, etc. ; otherwise if it has been given : until I shall have revoked ; 4) by the death of the person to whom it was granted if the privilege was personal ; if local, the place perishes unless it is restored within fifty years (c. 74-75) ; 5) by the lapse of time or completion of the number of cases for which it was granted (c. 77) ; 6) if the circumstances of things are so changed in the judgment of the superior that the dispensation has become harmful or its use illicit (c. 77) ; — but not by non-use alone unless it be burdensome to others and there be joined a legitimate prescription or tacit renunciation (c. 76).

A dispensation however which has all its effect at once, if it is granted absolutely, does not cease even by the certain and total cessation of the motive cause.

4°. About the invalidity of dispensation hold :

Canon 43 : « A favor denied by one Sacred Congregation or Office of the Roman Curia, is invalidly granted by another Sacred Congregation or Office or by the local Ordinary, even one having power, without the assent of the Sacred Congregation or Office with which or with which of them the affair was begun, saving the right of the Sacred Penitentiary for the internal forum ».

Canon 44, § 2 : « A favor denied by the Vicar General and afterwards obtained from the Bishop, no mention of this denial being made, is invalid ; but a favor denied by the Bishop cannot be validly obtained, even with mention of the denial, from the Vicar General, the Bishop not consenting ».

Canon 53 : « The executor of a rescript invalidly exercises his office, before he has received the letters and known their authenticity and integrity, unless previous knowledge of them has been transmitted to him by the authority of the writer ».

5°. About the cessation of the power of dispensing is to be said according to the mind of can. 207 and 208.

6°. To avoid simony, a dispensation must be gratuitous, although modest contributions may be required by the title of chancery expenses, as e.g. can. 1056.

7°. A real or territorial dispensation holds in the territory ; a personal dispensation, as is that which removes an impediment or incapacity, everywhere ; a mixed dispensation (real and personal) holds for all in the territory, for subjects also outside the territory.

391. Privilege by etymology is private or particular law, and therefore is a particular law enacted for the benefit of a determinate person or category of persons. It is taken objectively for the particular law itself ; subjectively for the special faculty of acting according to the particular law and of using the benefit or privilege taken objectively.

In the broad sense so is called any particular law, in which sense the rights of bishops, parish priests, minors, wives, etc. are called privileges ; in the strict sense it is a favorable private law granting a special favor or benefit not necessary against or beyond the common right. So the laws of religious life are only in the broad sense privileges, which beyond the common right grant a special benefit, such as exemption from the bishop or special faculty for the sacrament of Penance, are in the strict sense privileges.

Since however it is a law, hence it must have the essential conditions of a law ; and therefore the privilege must be

a) stable and permanent, and so it is distinguished from dispensation or grace, which is not wont to be granted in a stable and permanent manner but transiently ;

b) useful to the community, otherwise it would be exorbitant and absurd, since the community must acknowledge the privilege and not impede the privileged in the use. So privileges granted to religious or clerics favor not only themselves but the whole Christian religion ;

c) and therefore granted by him who has care of the community : to be exempted from the common right or to oblige others not to impede the privileged from the use of the privilege, cannot be done except by the legislator. Therefore a private person cannot grant privileges, but can only give licenses, nor against the law.

Privilege therefore differs :

1. from a rescript which is as it were the instrument by which privilege or dispensation or interpretation of right or other favor is obtained from a superior ;

2. from a favor which is a genus of benefit, of which privilege is a certain species ;

3. from dispensation : a) privilege is a true law which positively establishes something, dispensation negatively relaxes the law and removes its obligation ; b) privilege can be not against but only beyond law, dispensation is against law ; c) privilege of itself is stable and permanent, dispensation of itself is granted for a transient act ; d) privilege is given to a singular person, dispensation also to a community.

392. Division of privileges. — Privilege is divided in many ways :

1° By reason of the object or matter about which it is concerned : a) it is against law if it derogates from some law, or beyond law if by it no law is derogated from, as is a faculty of dispensing : thus whatever habitual faculties are granted in perpetuity or for a definite time or a certain number of cases (can. 66 § 1). The former can be granted only to subjects because it is exemption from law by an act of jurisdiction ; the latter also to non-subjects, because it is done by way of donation or faculty, which the superior can grant to be exercised in his territory even to strangers. — b) It is favorable, which brings advantage to the privileged but no prejudice to anyone, such as an honorary privilege or of saying Mass in a private oratory, or burdensome, which brings advantage to one, but disadvantage to another (not for the common good), such as exemption from taxes or from the jurisdiction of the Ordinary.

2° By reason of the subject to whom it is granted, it is personal which is primarily directly and immediately granted to the person for his own sake, because of knowledge, dignity, etc. and follows the person himself and is extinguished with him, e.g. faculties of absolving from censures, or of saying the rosary in place of the breviary ; — and real, which is primarily, directly and immediately conferred on a thing, whether corporeal such as a church, monastery, altar, or incorporeal such as a dignity, office, state, and through the thing redounds to the person : thus faculties which are wont to be delegated habitually to the Ordinary, which therefore do not cease by the death or removal of the same. But if the privilege is real joined to a place, it is called local.

3° By reason of the cause or motive for which it is granted, it is gratuitous, which is from the mere grace and liberality of the superior ; — remuneratory, which is given as a reward for the merit or service of the person himself, or of his parents, relatives, or near relations ; — and onerous, if with an intervening contract for an imposed burden and promised service.

4° By reason of the manner in which it is granted, a) it is given or upon request, which is granted with regard to the petition and is to be interpreted according to it ; or of one's own accord, which from the mere benignity and inclination of the superior is granted as a most special favor, even if the petitioner's [request] has preceded, and therefore it is of broad interpretation. — b) It is first and of itself granted, without respect to a privilege otherwise given, or in the manner [of another] if it is given in the way in which it has been granted to another : and then it is given either equally principally, if it is bestowed as if it had been granted first and of itself and therefore is not revoked if the other has been absolved, or by accession if it is communicated because of the connection which he, to whom it is granted, has with others previously privileged, so that it is increased, diminished, lost together with their privilege.

5° By reason of the end, a privilege is common which immediately regards and intends the common good, e.g. the privileges of the canon and of the forum given to clerics or of exemption given to religious orders ; and private which, although given to the community, immediately regards the good of a particular person.

393. Acquisition of privilege. — Privilege can be acquired in a threefold way : by direct concession, indirectly by communication, and by prescription or custom (can. 63, § 1).

1. By direct concession which only he who has legislative power can validly give, because he alone can oblige others not to impede the privileged from the use of the privilege.

2. Indirectly by communication privileges are acquired which have been granted to a moral person or state, with which another moral person has communication of privileges.

Such communication of privileges in the equally principal form existed among approved Religious Orders, but henceforth it is already excluded by can. 613, § 1, without revoking privileges acquired before the Code (com. int. 30 Dec. 1937) ; now however it exists in accessory form between religious and their familiars or tertiaries, between the first and second order¹ (can. 613, § 2, 614).

Communication of privileges however, even in the equally principal form, only regards those things which were granted directly, perpetually, and without special relation to a certain place or thing or person to the first privileged, having also regard to the capacity of the subject to whom communication is made (can. 64).

3. By prescription and custom, in the same way and under the same conditions as a right is legitimately acquired or a law is abrogated (cf. n. 404) ; since however by prescription a norm of law is not constituted, but only a subjective right is given, it can be said that privilege is acquired by it only by analogy.

A centenary or immemorial possession induces a presumption of a granted privilege (can. 63, § 2).

394. Interpretation of privilege is to be made according to the following rules :

1. Privilege is to be estimated from its own tenor, nor is it licit to extend or restrict it (can. 67).

Therefore interpretation is to be taken from the clauses, from the words taken in their proper juridical sense, and from the context of the discourse. In no way however can a privilege be extended either from person to person, or from thing to thing, or from place to place, even if the same or even a stronger reason occurs.

2. That interpretation is always to be adopted so that those endowed with the privilege may seem to have obtained some grace from the indulgence of the granter (can. 68).

For privilege is essentially the granting of a benefit and favor.

3. In doubt privileges are to be interpreted according to the norm of can. 50 (can. 68), namely those which refer to lawsuits, or injure rights acquired by others, or are opposed to law for the advantage of private persons, or finally were obtained for the obtaining of an ecclesiastical benefice, receive strict interpretation ; all others [receive] broad.

Therefore odious privileges generally are to be strictly interpreted, especially those which are against right ; on the contrary those which are beyond right, favorable, remuneratory, granted of one's own accord, given to a Religious Order or community.

4. A granted faculty carries with it also other powers which are necessary for its use (can. 66, § 3).

Wherefore in a faculty of dispensing is also included the power of absolving from ecclesiastical penalties, if any happen to stand in the way, but only for the purpose of obtaining the effect of the dispensation.

5. Privilege, unless something else is clear, is to be considered perpetual (can. 70).

The contrary can be clear from the tenor, from the clauses as if it be given ad beneplacitum nostrum, from the nature of the thing, as if it be strictly personal, or for a certain number of cases or a certain time.

6. A personal privilege follows the person and is extinguished with him.

395. Use of privilege. — 1. By a common privilege, which is principally granted for the common good, each one in general is bound to use it, nor can he ever renounce it ; because to act otherwise would be to the detriment of the common good.

2. By a private and merely personal privilege, which is granted to a private person for his own favor alone, each one can renounce ; nor is he bound of himself to use it, unless the obligation arises from another head (can. 69).

Whence a priest, sick and confined at home, having the privilege of a private oratory, is not bound to erect it, nor, it having been erected, to use it so that he may be able to celebrate on Sundays. On the contrary a confessor having the privilege of absolving from reserved cases, is bound to use it toward a rightly disposed penitent.

3. By a private privilege, which is granted to a community for the good of individuals, individuals cannot renounce (but only the community), however of themselves they are not bound to use it. Accidentally they can be bound to this, by reason of a special precept enjoined by the superior on individuals, or by reason of conformity with others.

396. Cessation of privilege. — Privileges can cease, either directly and of itself, or indirectly and accidentally, by defect namely of a necessary condition :

A. Directly : 1) by renunciation legitimately made and accepted by the competent superior. A real privilege however or one granted to a community cannot be renounced by a private person ; nor by the community itself if it has been given by way of law, or if the renunciation redounds to the prejudice of the Church or of others (can. 72) ;

2. by revocation express or tacit, i.e. by a special explicit act, or by a contrary law enacted by the superior who granted the privilege. About which cf. can. 71 and 60 ; in practice various rather intricate cases can occur about which it pertains to jurists to judge.

B. Indirectly : 3) by resolution of the right of the granter, if the privileges have been given with the clause : ad beneplacitum nostrum, or another equivalent, such as : donec voluero, durante pontificatu meo, etc. (can. 73) ; not however : donec revocavero ;

4. by the lapse of time or completion of the number of cases for which they were granted ; or the circumstances of things, in the judgment of the superior, being so changed that they have become harmful or their use illicit (can. 77) ;

5. by extinction of the person (can. 74), or absolute suppression of the thing to which they adhere, or destruction of the place to which they are joined, unless the place is restored within fifty years (can. 75) ;

6. by non-use of a burdensome privilege with a liberative prescription of him in whose burden the privilege yields (can. 76) ; other privileges however do not cease by non-use.

397. Remark. — A just cause is required for the liceity of privilege : for without a just cause a privilege against right wounds legal and distributive justice, a privilege beyond right is illicit prodigality. It is not however required for validity, because it depends on the mere will of the legislator that someone be exempted from his law.

398. The intrinsic end of law is that good which the law immediately regards and intends, or the proximate formal motive for which it is enacted. It ceases when it has already been obtained or can no longer be obtained, as for example health of the Pontiff to be obtained, if it has been obtained or if the Pontiff dies. It can cease either negatively or contradictorily, when the observance of the law is no longer useful for the end : this is a simple cessation ; — or positively and contrarily : when from a just, useful and morally possible [thing] it has become in the circumstances unjust, harmful or very difficult : it is called a change of matter.

399. The rules about cessation of the end are usually stated as follows :

I. If the total or adequate end of the law ceases in universal, i.e. with respect to the whole community or the greater part and indeed permanently (even negatively), the law ceases, because it becomes useless to the community at least respectively to that which it intended, nor does the legislator wish to oblige when the end intended by him is lacking ; — a fortiori if it ceases positively and the law becomes universally harmful. Hence the axiom : the reason of the law ceasing, its disposition ceases.

II. If the end ceases only partially, the law does not cease, provided the end of the law is sufficient, as for example the prayer for peace and serenity of the air does not cease when this has been obtained.

III. If the end ceases in particular (with respect to one or for a time), the law in no way ceases because it intends a general good ; which if it becomes harmful or too burdensome, the law itself does not cease but as to the particular case it can not oblige by epikeia, if it becomes too grave.

400. Corollary. — Whence for the cessation of a law from within, three conditions are required. It is necessary namely that the final cause cease totally as to all parts of the law, universally for the whole community, and constantly, otherwise the law is only suspended.

S. Th., I-II, q. 97, a. 2.

401. Abrogation (abroger, révoquer, rapporter) is the abolition or revocation of the whole law ; derogation (déroger, modifier) is the abolition or revocation of a part of the law, the other retaining its force. They differ from invalidation of law : this is the abolition by a superior of a law enacted by an inferior so that it never obtains force ; those however revoke a law which had force.

They can be done directly or expressly (formal cessation), or tacitly and indirectly (virtual cessation) by enacting an incompatible law (abrogation).

402. Those who can enact laws can abrogate and derogate, namely the legislator himself, his successor and superior. For « every thing, by whatever causes it is born, by the same is dissolved ».

As to ecclesiastical laws : the Pontiff for all ; — Councils for the laws of their territory ; — bishops for diocesan [laws] even those enacted in synod, not however for laws enacted in a provincial council, or for diocesan [laws] if they have been confirmed by the Roman Pontiff in specific form, i.e. not simply in favor of the superior, but in favor of the community, so that the Pontiff has made them his own.

They will do this validly even without reason, because positive law essentially depends on the will of the legislator ; they will not do it licitly without a just cause, because it brings detriment to the common good to abrogate useful laws or frequently to change them into others : for thus the people are despised, and the laws are less esteemed and observed, whereas for the observance of law custom avails much.

403. Remarks. — 1. Note can. 22 : « A later law, enacted by competent authority, abrogates 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 in no way derogates from the statutes of particular places and singular persons, unless something else is expressly provided in it ». However, from the express determination of law, « whatever laws, whether universal or even particular, opposed to the preceptive [parts] of the Code, are abrogated, unless about particular laws the contrary is expressly established » (can. 6, 1°).

2. About tacit abrogation note : a) that a later law is to be reconciled with an earlier one, insofar as the propriety of words permits (can. 23), for the change of law is in itself harmful to the community and to be strictly interpreted ;

b) by a general law a prior general law is abrogated insofar as it is directly contrary ; not particular customs or statutes of particular places or of singular persons, which can be unknown to the legislator ;

c) by a later general law a prior general law is abrogated, not only the contrary but also the diverse one, if the later entirely reorders the matter of the prior law (can. 22). For it is contrary to the common good that the same argument be subject to a twofold ordering.

S. Th. I-II, q. 97, a. 3.

404. Custom, considered as a fact, properly is use or manner, i.e. the frequent repetition of the same acts, a frequent manner of acting and the inclination thence arising to act similarly. In the present however, in juridical speech, it designates law introduced by the use or manners of a people¹. Which is usually defined as : statute law, introduced by the long-standing customs of the community with some consent of the legislator.

But custom is either according to law (adhesive or declaratory) which interprets a law previously enacted, or against law which abrogates the law or derogates from it, or beyond law which introduces a new law, as is that which is already confirmed by can. 135.

The conditions required for custom are :

a) On the part of the acts that they be 1° frequent, i.e. often repeated ; 2° of long standing, i.e. exercised for a long time ; 3° uniform or constant and therefore not interrupted, either on the part of the people, or on the part of a contradicting superior ; 4° public and known, otherwise there would not be a custom of the society as such ; 5° deliberate or freely placed, and not placed by force or fear or error by which the consent of the community is impeded ; 6° frequented not by a few particular persons, but by the greater part of the community, or of the part for which a law can be enacted (can. 26), as for example of the diocese, of a class of faithful, of a religious order or of a province of it, but not of a parish or of a religious house.

b) On the part of matter, that the custom be reasonable (can. 27) at least negatively, and therefore that the conditions necessary for a law be present.

c) On the part of the subjects, the intention of obliging themselves, (or of disobligating themselves, or of understanding and fulfilling the obligation in such a way, or of extending or limiting the obligation to this), which can be manifested by the word or deed of the superior or of the subjects, by practice, by the common judgment of experts, etc. : thus customs out of gratitude or devotion, as for example of hearing three Masses on the feasts of God, of signing oneself with holy water, of saying « The Angel of the Lord... », are not obligatory.

d) On the part of the legislator, consent (can. 25) either special, expressed or tacit, which is gathered from action or omission, or general or presumed given to every legitimate custom, that of approving whatever customs adorned with certain conditions.

405. What Law establishes about custom. — According to the new Law ;

1° For the introduction of custom beyond law now 40 continuous and complete years are required (can. 28) ; when the required time is present, the custom is called prescribed (can. 27).

Custom however differs from prescription :

a) the latter is the way by which private persons acquire a right, the former induces an effect for the community ;

b) for prescription good faith is required by which one does not know that the thing is not his own ; for custom it is not always required that those introducing it be ignorant that the law exists ;

c) for prescription the consent of him against whom prescription is made is not required ; for custom the consent of the legislator is required ;

d) for prescription and custom a different continuous time is required : for prescription ordinarily 30 years suffice, or another less time determined by law ; for custom, 40 years.

2° Custom against law or beyond law is revoked by contrary custom or law (can. 30).

3° However, unless it expressly mentions them, a law does not revoke a centenary or immemorial custom, just as neither does a general law revoke particular customs (can. 30).

Whence, by the promulgation of the New Code, centenary and immemorial customs are not removed, unless expressly reprobated there (can. 5).

406. How custom obtains the force of law. — Custom, furnished with the due conditions, just as it can enact laws, so it can also abrogate them and derogate from them. Which is done in a twofold way :

a) By the way of connivance or by special personal consent, the superior personally knowing and consenting either expressly or tacitly, i.e. not contradicting when he can and should conveniently contradict : for he is not considered to consent if the custom is irrational, as for example if it is contrary to divine right, gives occasion for sinning, is harmful to the common good, dangerous to the faith, pernicious to ecclesiastical discipline, to divine worship, to the liberty of the Church, or in law is expressly reprobated as an abuse or corruption (can. 27, § 2), such as is custom contrary to the preceptive rubrics of the Mass (can. 818) ; unless it be so said because of circumstances now changed. This of itself does not require time but holds as soon as it is evident that consent is present : thus a law which was never received by use, ceases to oblige after a few acts tolerated by the superior.

b) By the way of prescription or by consent not special but general, not personal but legal or juridical (which is contained in a law that ratifies all legitimate customs), the superior even being ignorant of the custom and giving presumed consent : this requires that it be reasonable and continued for a long time, nor interrupted ; otherwise it does not sufficiently appear that the law is not accommodated to the customs of the subjects nor could the legislator be presumed to consent. How much time is required, is to be determined by the judgment of the prudent.

Now however it is universally established in law that no custom can derogate from an ecclesiastical law unless it has been legitimately prescribed for 40 continuous and complete years ; but from a law which contains a clause prohibiting future customs, only a centenary or immemorial custom can prescribe (can. 27, § 1).

Wherefore to some it has seemed that a custom tacitly approved by the way of connivance is no longer valid, unless it has also lasted 40 years (or 100) without interruption. But they do not show this efficaciously.

407. How custom against law can be introduced. — To understand how a custom against law can be introduced, even without sin, let S. Thomas be heard, q. 97, a. 3, ad 2 : « Human laws in some cases fail. Whence it is possible sometimes to act beyond the law, namely in a case in which the law fails (epikeia), and then the act will not be evil ; and when such cases are multiplied because of some change in men, then it is manifested by custom that the law is no longer useful ; just as it would also be manifested if a contrary law were promulgated by word. If however the same reason still remains, for which the first law was useful, custom does not prevail against the law, but the law against custom ; unless perhaps the law seems useless only because of this, that it is not possible according to the custom of the country, which was one of the conditions of the law. For it is difficult to remove the custom of a multitude ».

From this latter it is already understood that it is not necessary that every custom against law be introduced legitimately and without sin ; as moderns are wont to note with S. Alphonsus, Th. M., l. I, n. 107 : « Custom against law does not require good faith, but it can also be introduced by sinning. For custom has a threefold state. In the beginning those introducing [it] against the law all sin (unless they are excused by some reason). In the progress those using [it] already introduced by the greater number (in good faith) do not sin, but they can be punished by the prince. In the end however those using [it] already prescribed neither sin nor can be punished ».

408. Custom can do all that the legislator [can do], as for example abrogate the obligation in conscience as to fault and not as to penalty, or vice versa ; likewise abrogate irritant laws ; indeed even laws which are enacted with the clause : notwithstanding any custom to the contrary, because this regards customs already existing, but does not impede future ones. But it cannot change the law against the legislator when he wishes it not to be changed by custom, as if he contradicts it ; whence if a law was enacted with the clause : notwithstanding any custom even future, the law does not presume consent unless the custom is centenary or immemorial (can. 27).

409. Custom ceases 1) intrinsically, if it becomes irrational,

2. extrinsically, by a contrary custom legitimately prescribed,

3. likewise by a law which suppresses it. However :

a) Special laws of places, as particular customs, statutes and privileges, because they are reasonable, yet easily able to be unknown by the universal legislator, are not considered to be abrogated by a contrary universal law, even if it is enacted with the clause : notwithstanding custom ; unless the law specially and expressly indicates it as for example by saying : none withstanding, or notwithstanding any contrary custom (can. 30) ; they are however removed by a law enacted by the particular legislator of the place.

b) Likewise an immemorial or centenary custom is not considered to be abrogated even by a law which is enacted notwithstanding any custom, unless it expressly indicates it, as for example by adding « even centenary », or implicitly, by declaring it « irrational or a corruption » (can. 30).