The Principle of Legality in Canon Law

THE PRINCIPLE OF LEGALITY IN CANON LAW William L. Daniel* Introduction Underlying the concrete prescriptions of law in the canonical system, there are various general principles. Some of these are subtly named in the law, for example, equity (c. 19) and salus animarum suprema lex (c. 1752). Some of these have been articulated with respect to the 1983 Codex iuris canonici in the ten guiding principles for the revision of the code by the first synod of bishops in 1967.1 Others are rooted in the lex Christi or in the Magisterium of the Church; and they are presumably at the forefront of the mind of canonists (e.g., mercy, charity, the sovereignty of God, the teachings of the Ecumenical Councils and the Fathers of the Church). Others are found within canonical tradition and are explored by canonical doctrine and jurisprudence (e.g., the Regulæ iuris, the principles of justice, subsidiarity, equality, participation, publicity).2 Among these latter is found the principle of legality. The principle of legality is foundational and integral to the canonical order; it is an ever-relevant point of reference for canonical scholars and practitioners. It is a principle that is applicable to the exercise of the power of governance, and indeed of all authority, at all levels of the hierarchical structure of the Church.3 It has been given very little explicit atThe Jurist 70 (2010) 29–85 29 * Vice-Chancellor and Judge, Diocese of Winona, MN. 1 “Principia quæ Codicis iuris canonici recognitionem dirigant,” Communicationes 1 (1969) 78–85 (“Principia directiva”). 2 See Javier Otaduy, “Title I: Ecclesiastical Laws,” in Exegetical Commentary on the Code of Canon Law, eds. Ángel Marzoa, Jorge Miras and Rafael Rodríguez-Ocaña, Gratianus Series (Montréal: Wilson & Lafleur/Chicago: Midwest Theological Forum, 2004) I: 353–357. 3 Francisco Javier Argelich Casals, La regulación de la actividad administrativa ejercitada en la Curia Romana, Thesis ad Doctoratum in Iure Canonico (Rome: Faculty of Canon Law, Pontifical University of the Holy Cross, 2002) 217; 242, note 94; 284; Helmuth Pree, “Esercizio della potestà e diritti dei fedeli,” I principi per la revisione del Codice di diritto canonico. La ricezione giuridica del Concilio Vaticano II, ed. Javier Canosa (Milan: Giuffrè Editore, 2000) 313. Cf. Jorge Miras, Javier Canosa, and Eduardo Baura, Compendio di diritto amministrativo canonico, Italian translation by Alberto Perlasca , Subsidia Canonica 4 (Rome: Pontificia Università della Santa Croce, Facoltà di diritto canonico, 2007) 53–61. tention by scholars in the English-speaking world,4 but as a fundamental legal principle it is often implicitly referred to in the context of concrete problems. This principle heavily imbues European civil legal doctrine, and so the present study refers often to the research of European canonists who have applied the principle to the canonical system and animated it with the ecclesiology of the Second Vatican Council. This study is divided into two major sections. The first section will explain the principle of legality in canon law as it has been presented by European canonists and as it has manifested itself in this author’s own reflection on the law. The second section will demonstrate how the principle of legality is operative in the exercise of the power of governance in the Church, giving pointed consideration to the legality of juridic acts of legislative power, executive power, and judicial power, with due consideration also of custom. It should be noted that the title of the study includes the phrase “in canon law” to clarify that there will be no consideration of this principle from the perspective of civil law.5 In addition, despite the fact that the common law of the Eastern Churches is only rarely cited, the same principles are operative within and applicable to the Eastern canonical system. I The Notion of the Principle of Legality In this first section, we will present the basic notion of the principle of legality. In itself it is not a very complicated principle; but it has some im30 the jurist 4 Some authors have mentioned it in English studies. See William L. Daniel, “Juridic Acts in Book VII of the 1983 Codex iuris canonici,” Studia canonica 40 (2006) 461–463; Julián Herranz...