Presbyters and Canonical Developments Since the Promulgation of the Code of Canon Law

PRESBYTERS AND CANONICAL DEVELOPMENTS SINCE THE PROMULGATION OF THE CODE OF CANON LAW Robert J. Kaslyn* In the more than twenty-five years since the promulgation of the Code of Canon Law, significant canonical developments have occurred in particular areas of the Church’s ius canonicum.1 These developments have arisenfrompapal,curial,andepiscopalactionaswellastheinterpretation and application of the law by those with legislative and/or executive authorityandbythosewhoutilizethelawinamyriadofwaysintheChurch ’s dailylife.Specificallypapal,curial,andepiscopalactionsonthelevelofa community which utilize the categories of the code itself2 include laws,3 general decrees,4 general executory decrees5 and instructions.6 The Jurist 69 (2009) 379–417 379 * Dean, School of Canon Law, The Catholic University of America 1 John Paul II promulgated the Code of Canon Law on January 25, 1983 through his apostolic constitution Sacrae disciplinae leges; and it became effective November 27, 1983, the first Sunday of Advent. See Acta Apostolicae Sedis [=AAS] 75/2 (1983) vii–xiv. For the text of the canons, see Codex Iuris Canonici auctoritate Ioannis Pauli PP.II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983). Citations of canons, unless otherwise indicated, are taken from Code of Canon Law. Latin—English Edition: New English Translation (Washington, D.C.: CLSA, 1998). The term ‘ius canonicum” is a general term, encompassing the myriad of forms of legislative action in the Church, and includes acts of executive authority by which legislative action is applied. 2 The proper interpretation of a particular document requires assessment not only of its title but also and, at times, more importantly its content and issuing authority. On this complex topic, see, for example, Kurt Martens, “The Nature of Authority of Roman Documents ,” CLSA Proceedings 69 (2007) 131–164 and Francis Morrisey, “Papal and Curial Pronouncements: their Canonical Significance in Light of the 1983 Code of Canon Law,” The Jurist 50 (1990) 102–125. 3 The code does not contain a definition of ‘law’ although one was proposed during the revision process. See canon 7 of the 1980 schema: Lex quae quidem est norma generalis ad bonum commune alicui communitati a competenti auctoritate data institutur. See also, for example, Libero Gerosa, Canon Law (New York, Continuum, 2002) who refers to the definitio classica of Saint ThomasAquinas: the “lex canonica . . . is an ordinatio rationis ad bonum commune ab eo qui curam habet communitatis promulgata” [71]. 4 See canon 29: “General decrees, by which a competent legislator issues common prescripts for a community capable of receiving law, are laws properly speaking and are governed by the prescripts of the canons on laws.” 5 See canon 31 §1: “Those who possess executive power are able to issue, within the limits of their competence, general executory decrees, namely, those which more precisely determine the methods to be observed in applying the law or which urge the observance of laws.” 6 See canon 34 §1: “Instructions clarify the prescripts of laws and elaborate on and determine the methods to be observed in fulfilling them. They are given for the use of those whose duty it is to see that laws are executed and oblige them in the execution of the laws. Those who possess executive power legitimately issue such instructions within the limits of their competence.” 7 One significant area of canonical development that lies outside the scope of this article concerns penal law, fundamentally in reference to canon 1395,§2, its interpretation and application; papal derogation of age and prescription requirements; and in reference specifically to the United States, the particular law from the United States Conference of Catholic Bishops (=USCCB) Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons, approved by the full body of bishops at its June 2005 General Meeting and which received the subsequent recognitio of the Holy See on January 1, 2006, and was promulgated May 5, 2006. For the text, see, e.g., USCCB, Promise to Protect. Pledge to Heal (Washington, D.C.: USCCB, 2005) 21–32. This very significant area of the law, given its scope, importance, and effects , deserves a treatment on its own and cannot be included in this article. 8 The Pontifical Council for Legislative Texts has issued an explanatory note entitled, “Elements to establish the...