Moral Theology. Charles J. Callan
that a particular case is not included in the intention of the lawgiver, because the latter had not the wish to include it—may be used for all those cases in which the opposite interpretation would suppose in the lawgiver a severity that is not likely. "The rigor of the law may be extreme injustice" (Cicero, De Officiis, I, 10). Example: Titus has the opportunity to make a notable sum of money on a Sunday morning, but cannot make use of the opportunity without missing Mass that day. Caius on a fast day feels well, but is tired and will be not a little inconvenienced if he fasts. Both Titus and Caius may use epieikeia, for the Church does not wish to be unkind, nor, generally speaking, to have her laws oblige rigorously and for every case.
417. Though all human law is subject to epieikeia, the practice of the civil law does not always allow it. (a) Action on individual responsibility makes one guilty of technical violation. Example: Balbus, fearing that his house may be robbed or he himself assaulted, borrows a revolver and practises shooting. He had not time to get the necessary permit, but argued that necessity knows no law. But, if he is arrested, the court may hold him guilty of violating the law. (b) Action in a court of equity, however, will give relief for cases not provided for in law. Example: One may obtain an order from the court restraining a neighbor from injury, when the law itself gives only the right to recover damages for injury done.
Art. 5: ECCLESIASTICAL LAW
418. The Church, being a perfect and independent society, has the power to make laws for its members in order to promote the common spiritual welfare. These laws are not an encroachment on the liberty of the Gospel, for Christ Himself bestowed on the Church legislative and other governmental powers suitable to her mission. The charter of the legislative authority of the Church is contained in the words of Christ to Peter: "I say to thee that thou art Peter, and upon this rock I will build My Church, and the gates of hell shall not prevail against it. And I will give to thee the keys of the kingdom of heaven. And whatsoever thou shalt bind upon earth, shall be bound also in heaven; and whatsoever thou shalt loose on earth, it shall be loosed also in heaven" (Matt., xvi. 18, 19; see also Matt., xviii. 17; Luke, x. 16).
419. The character of laws made by the Church is as follows:
(a) their purpose is to guide and assist the individual that he may more easily and perfectly fulfill the laws of Christ, and to protect and promote the welfare of the Church as a whole;
(b) their contents generally do not impose what is the height of perfection, but what is the minimum necessary for salvation (see 374);
(e) their number, unlike that of the laws of the Synagogue, is few. There are only six precepts of the Church that bind all the faithful; the other laws of the Church do not all oblige each individual, some being for prelates, some for priests, some for religious, some for judges, etc.;
(d) their obligation is not so strict as that of the laws of the Old Testament, for they are more easily changed or dispensed.
420. General Law of the Church.—The general law of the Church is found in the five books of the Code of Canon Law, promulgated by Benedict XV on May 27, 1917. It applies only to the Latin Church, except in those matters that of their nature affect the Oriental Church as well, and it has been in force from Pentecost Sunday, May 19, 1918.
421. The effects of the Code on the older legislation are as follows:
(a) it retains in their entirety liturgical laws that are not expressly corrected; agreements of the Holy See with various nations, even if they are opposed to the Code; favors, privileges and indults that are not revoked (Canons 2–4);
(b) disciplinary laws of ecclesiastical origin opposed to the Code are to be held as revoked, even if they are particular, unless the contrary is provided. Disciplinary laws of ecclesiastical origin omitted by the Code are retained in force, if they are particular; they are abrogated, if they are general and not contained at least implicitly in the Code; if a general law decreed a penalty, it must be expressly mentioned in the Code to retain force (Canon 6);
(c) customs, universal or particular, opposed to the Code, when expressly disapproved by it, must be corrected, even if immemorial; when they are not expressly disapproved by the Code, they may or may not be continued, as a rule, according as they are immemorial—or one century old—or not (Canon 5).
422. The rules laid down for the interpretation of the Code are as follows: (a) in those parts where the Code agrees with the older legislation, it is to be interpreted by means of the latter; (b) in those parts where it certainly disagrees with the older legislation, it is to be interpreted from its own phraseology (Canon 6).
423. Lawgivers in the Church.—The Pope, as Vicar of Christ and Visible Head of the Church, has supreme legislative power in the Church (Canon 218): "Thou art Peter, and upon this rock I will build My Church. … And I will give to thee the keys of the kingdom of heaven, etc." (Matt., xvi. 18, 19). Thus, the Pope can legislate: (a) for the whole Church, either alone or with the body of the Episcopate subject to him in an Ecumenical Council, either directly or through Congregations; (b) for any part of the Church, either directly or through representatives. Thus also, by Papal concession, legates may legislate for a place to which they are sent, Prælati nullius for a territory over which they are placed, General Chapters for a Religious Order, and the like.
424. The Bishops, "placed by the Holy Ghost to rule the Church of God" (Acts, xx. 28), have legislative power within their own territory, dependently on the Pope (Canon 335). (a) They can make laws, each for his own diocese, either in or out of a synod; (b) when gathered together in council, provincial or plenary, they can legislate for ecclesiastical provinces, or for all the faithful of their country.
425. Subject-Matter of Church Law.—The end of the Church being the glory of God and the salvation of souls, she can legislate concerning all matters that are sacred or that refer, directly or indirectly, to the satisfaction of man or the worship of God (see Leo XIII, Const. Immortale Dei, d. 1 Nov. 1885).
(a) The Church can call to mind those things that are already prescribed by the Divine Law, Natural or Positive; and, although she cannot dispense in these laws (see 313–814 and exception as to hypothetical positive law in 357), she can interpret them authoritatively, and can decide when obligations of the Divine Law, that depend upon an act of the human will, cease (see 315–316).
(b) The Church can determine those things that were left undetermined in the Divine Law. Examples: The manner in which the Lord`s Day is to be sanctified, the times and frequency with which the Divine law of Communion is to be fulfilled, the way in which the obligation of fasting is to be complied with, etc.
(c) The Church can make laws in matters that were left free by our Lord whenever this will promote the better observance of His law (e.g., many church laws for the clergy and religious, for the conduct of worship, for administration, etc.).
426. The acts that may be commanded by the Church are of various kinds.
(a) The Church may command acts that are purely external (e.g., fasting) and acts that are partly external and partly internal, that is, those external acts to which, from the nature of things or from law, a special moral act of the intellect or will must be joined (e.g., a true oath, a worthy confession or Communion).
(b) The Church may command acts that are purely internal, that is, acts of the intellect or will that are not necessarily connected with any external act (such as meditation, the intention in applying Mass, ctc.), whenever she is explaining, applying, or determining the Divine Law, or acting in virtue of the power of Christ. Examples: The Pope may define a dogma to be accepted internally. A confessor may impose as penance a pious meditation. The Church prescribes the days when pastors must intend to offer Mass for their people. A religious superior may command a spiritual retreat.
(c) It is more probable that, apart from instances such as those just given, the Church cannot legislate regarding acts that are purely internal. For unlike the divine Legislator, who sees the internal acts of the soul and who can pass judgment on them, the Church cannot read the heart or judge the conscience. Hence, it would appear useless for the Church to give commandments about acts that elude her knowledge, all the more so since the Divine Law has given commands and prohibitions regarding internal acts and no one can escape