General and Introductory Materials
Part 5 Liturgical Law

Chapter d51 Introduction to Liturgical Law

Preliminary Questions

Bibliography

The 1917 Code and
the 1983 Code

Sacraments in the
1983 Code

Canons Relevant to Liturgical Law

Literary Forms in the Code

Discursive and Dispositive Law

Norms of Interpretation

Obedience to Liturgical Law

General Liturgical Principles

Valid and Licit

Naming Roman Documents

Classification of Roman Documents

Roman Law and Anglo Saxon Law

Liturgical Experimentation

Age and Obedience

To Think About

Preliminary Questions

If Jesus came to announce the freedom of the sons and daughters of God, why does the Church spend so much time making laws? Do you think there are too many Church laws? Do you think people in general observe Church laws or tend to ignore them? What value do you see in law?

What has shaped your attitudes toward law? Does your own personality give you a predisposition toward law? Where can liturgical laws be found? Where the rules for their interpretation be found?

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Bibliography

The Code of Canon Law can be found at  http://www.intratext.com/IXT/ENG0017/_INDEX.HTM

The Canon Law Society of Great Britain and Ireland can be found at http://www.clsgbi.org

Canon Law Society of America. The Code of Canon Law: A Text and Commentary. Paulist Press, 997 MacArthur Boulevard, Mahwah, N.J. 07430. 1985. 1152 pp. $39.95. ISBN 0-8091-0345-1. [red] (I authored the section on Liturgical Times and Places in this 1985 edition.)

Canon Law Society of America. New Commentary on The Code of Canon Law. Paulist Press, 997 MacArthur Boulevard, Mahwah, N.J. 07430. 2000. 1952 pp. $89.95. ISBN 0-8091-0502-0. [green]

A list of responses to rubrical questions from Notitiae can be found at  http://notitiae.ipsissima-verba.org

Ladislas Orsy, S.J. "Literary Forms in the Code" in CLSA, The Code of Canon Law: A Text and Commentary, pp 41-45. [This excellent article by Fr. Orsy, professor at The Catholic University and one of America's leading canonist, is summarized below in these notes.]

For a simple complete state by state comparison of marriage laws as well as divorce laws of all the states, see www.law.cornell.edu/topics/marriage

John M. Huels.  Canonical Observations on Redemptionis Sacramentum, Worship 78 (2004) 404-420.

John M. Huels.  Redemptionis Sacramentum--A Canonical Perspective, Liturgy 29, no. 2 (July 2004) 11-13 [published by the Diocese of Auckland, NZ].

John M. Huels.  New Eucharistic Discipline in the Instruction Redemptionis Sacramentum and the Need for a Reform of Canons 29-34, Studies in Church Law 2 (2006) 33-59.

John M. Huels.  Liturgy and Law: Liturgical Law in the System of Roman Catholic Canon Law. Wilson & Lafleur Ltee,  2006.  ISBN 2-89127-773-2    $39.00.

John M. Huels. The Pastoral Companion: A Canon Law Handbook for Catholic Ministry, Chicago: Franciscan Herald Press, Revised 1995. $15.00. (paper). [Fr. Huels, Professor of Canon Law at St. Paul's University, Ottawa Ontario, is in my estimation the best, the clearest, and the most pastoral commentator on Church law living and writing today. His books and articles are consistently of high quality. This particular book, The Pastoral Companion is used as a text in many Canon Law courses.]

John M. Huels. Disputed Questions in the Liturgy Today. Chicago: Liturgy Training Publications, 1988. $4.50. ISBN 0-930467-95-7. [Partial contents: Age for Confirmation, Lay Preaching, Concelebration, Mass Intentions, First Confession, General Absolution, etc.]

John M. Huels, "Assessing the Weight of Documents on the Liturgy," Worship 74:2 (March 2000), pp 117-135.]ICEL. Documents on the Liturgy 1963-1979. The Liturgical Press, Collegeville, MN 56321. 1982. 1500 pp. $45.00. ISBN 0-8146-1281-4. Cloth.

Gaillardetz, Richard R. By What Authority? A Primer of Scripture, the Magisterium, and the Sense of the Faithful. Collegeville, Liturgical Press, 2003. ISBN 0-8146-2872-9 ($14.59)

William Woestman, OMI, Canon Law of the Sacraments for Parish Ministry.  Ottawa, Faculty of Canon Law, Saint Paul University, 2007 pp xvi, 414.   ISBN 978-0-919261-58-7   $52.00  To order:  sjutras@ustpaul.ca  Telephone: 613 751 4017  (From the Preface by the author:  "The purpose of this volume - as can be seen from the title - is a broader audience than that of future professional canonists. I hope that it will be a valuable reference work for all dedicated to pastoral ministry in parishes, and that it will serve as a text book for seminarians and candidates for the permanent diaconate as they prepare to dedicate themselves to ministry in parishes.")

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General Liturgical Principles

Thomas Richstatter. Liturgical Law Today, Chicago: Franciscan Herald Press, 1978.

Thomas Richstatter, O.F.M. "Parish Liturgy: Questions I'd Like to Ask," Catholic Update, Cincinnati: St. Anthony Messenger Press, 1979. [Illustration of the formulation and use of general liturgical principles.]

Aidan Kavanagh. Elements of Rite: A Handbook of Liturgical Style. Pueblo: New York 1982.

Robert W. Hovda. Strong, Loving and Wise: Presiding in Liturgy. The Liturgical Conference: Washington, DC 1976.

Kevin Seasoltz. New Liturgy New Laws, Collegeville: Liturgical Press, 1980. ISBN 0-8146-1077-3.

Reception of Law

James A. Coriden, "The Canonical Doctrine of Reception," The Jurist 50 (1990) 58--62.

John M. Huels, OSM, "Nonreception of Canon Law by the Community," New Theology Review 4 (1991) 47--61.

CLSA publications on Sacraments and Liturgy

"An Examination of Various Forms of Preaching:  Toward an Understanding of the Homily and Canons 766-767," 58 (1996) 308-325, Lynda A. Robitaille

"An Introduction to Liturgical Law:  Sources and Interpretation," 64 (2002) 241-252, Ann F. Rehrauer, OSF

"Anointing of the Sick:  Theological Issues," 63 (2001) 233-254, Susan K. Woods. SCL

"Canonical Implications Related to the Ordination of Married Me to the Priesthood in the United States of America," 59 (1997) 130-135, James A. Coriden and James H. Provost.

"Communication in sacris:  An Effort to Express the Unity of Christians or Simpe an Exercise in Politeness?" 63 (2001) 173-214, Aidan McGrath, OFM

"Current Issues in Liturgical and Sacramental Law," 62 (2000) 245-262, Ann Rehrauer, OSF

"Ministry to the Sick and Dying in View of the Shortage of Priests," 63 (2001) 127-146, John Huels, OSM

"Principles of Liturgical Adaptation in Light of Justice and Forgiveness,"  61 (1999) 1-25, John M. Huels, OSM

"The Relationship of Public and Private Worship," 64 (2002) 121-143 John J. M. Foster

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The 1917 Code and the 1983 Code

The Books of the 1917 Code and the 1983 Code Compared
Books of the 1917 CodeBooks of the 1983 Code
I.  General NormsI.  General Norms
II.  PersonsII.  People of God
III.  ThingsIII.  Teaching Office
 IV.  Sanctifying Office
 V.  Temporal Goods
IV.  TrialsVI.  Penalties
V.  PenaltiesVII.  Processes
[Note: Where are sacraments in the 1917 Code? Book III Things.  What does this teach?]

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The Sacraments in the 1983 Code

Book IV, The Sanctifying Office of the Church
Part One: Sacraments

Title 1. Baptism — Canons 849-878 [30 canons]
Title 2. Confirmation — Canons 879-896 [18 canons]
Title 3. Eucharist — Canons 897-958 [62 canons]
Title 4. Penance - canons 959-997 [38 canons]
Title 5. Anointing the Sick
Title 6. Orders
Title 7. Marriage
Part Two: Other Acts
1. Sacramentals
2. Hours
3. Funerals
4. Saints
5. Vows
Part Three: Times and Places
1. Times
2. Places

Compare the arrangement of the sacraments in the Code with the chapter titles of the
Constitution on the Sacred Liturgy.   See my essay on "Sacramental Theology" in Chapter d33 Sacrament

The Constitution on the Sacred Liturgy

1.General Principles for the Reform and Promotion of the Sacred Liturgy
2.The Most Sacred Mystery of the
Eucharist
3.The Other Sacraments and the Sacramentals
4.
Divine Office
5.The Liturgical Year
6.Sacred Music
7.Sacred Art and Sacred Furnishings

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Canons (Outside of Book IV) Relevant To Liturgical Law

Canon 1. Only the Latin (=Roman) Church

Canon 2. For the most part the Code does not define the rites which are to be observed in celebrating liturgical actions. For this reason current liturgical norms retain their force unless a given liturgical norm is contrary to the canons of the Code.

Canon 5. Custom.

Canon 7. A law comes into existence when it is promulgated.

Canon 10. Only those laws which expressly state that an act is null or that a person is incapable of acting are to be considered to be invalidating or incapacitating.

Canon 11. Merely ecclesiastical laws bind those baptized in the Catholic Church or received into it and who enjoy the sufficient use of reason and, unless the law expressly provides otherwise, have completed seven years of age.

Canon 18. Laws which establish a penalty or restrict the free exercise of rights or which contain an exception to the law are subject to a strict interpretation.

Canon 27. Custom is the best interpreter of laws.

Canon 1752. Aniamrum salus suprema lex. The salvation of souls is always the supreme law of the Church. [Note: These are the final words of the Code.]

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Literary Forms in the Code

"To recognize and to distinguish literary forms in the Code is important because the nature of the text determines the method of interpretation. The meaning of theological texts changes and develops as theological reflection progresses.  The meaning of norms of action can remain unchanged and stable for a long time."  (Ladislas Orsy, S.J., "Literary Forms in the Code" in CLSA, The Code of Canon Law: A Text and Commentary,1985,  pp 41-45, here page 42)    In the Code we find:

1.  Statements of belief [not to be interpreted as law is interpreted].
2. Theological statements
that do not represent any article of faith, but are historically conditioned opinions of a theological school. As such they have no right to demand universal assent.
3.  Canons that touch on issues of morality
4. Exhortations
. They express what the legislator desires, but do not create right-and-duty situations.
5. Canons with a metaphysical content.
6. Canons that contain scientific statements
, e.g., from the field of psychology or psychiatry. If a canon speaks of the effect of mental diseases, it should be interpreted according to the latest advances in medicine and not according to the state of information of the legislator at the time of the promulgation of the law.
7. True legislative pieces
which deal with right-and-duty situations.  [Note:  look especially to the (Latin) verbs.  Nefas est, debet, etc.]

Sacramental theologians and canon lawyers have similar but different interests.  They have been trained in separate fields and employee distinctive vocabularies and methodologies.  Metaphor: “If you are driving to work and someone runs a stop sign, hits your car, and breaks your arm, both your family physician and your lawyer have opinions about what you should do about your arm and what you should do about suing the person who caused the accident.  While both professionals are no doubt very intelligent, it is probably better to consult your physician about how to fix the arm and to consult your lawyer about how to sue the other driver.  It is only logical to employ each person in their area of expertise.

When quoting theological statements from the Code it is important to compare the canon with its source which will be indicated in the footnote.  Often the theological context which is the origin of the theological Canon receives a certain "interpretation" when it is placed in the Code of Canon Law.

 

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Discursive and Dispositive Law

The classic shape of liturgical law has two parts: the discursive part and the dispositive part.  DISCURSIVE LAW: The discourse, the context, in which the dispositive law is given. DISPOSITIVE LAW: The "therefore" that follows upon the discourse or discursive law.

Example 1:  Poenitemini

For example, see the Apostolic Constitution Poenitemini. Note the title: Latin: repent. Greek: metanoia. English: turn around, convert, repent, do penance. Note the difference between what the Latin and English titles suggest. Note the date: February 17, 1966. Note form of document: Apostolic Constitution. Note the hierarchy of forms of documents. Note relationship with The Code of Canon Law. Note discursive section. Note dispositive section. Note what usually appears in the newspaper. Note what happens when this legislation is put into the Code of Canon Law: four canons, 1250-1253.

Example 2:  Constitution on the Sacred Liturgy

INTRODUCTION 1-4
Article 1 Why a Council -- 4 ends of the council
Article 2  Liturgy is...
Articles 3 & 4  Relation of this document to non-Roman Rites

Chapter 1.  GENERAL PRINCIPLES FOR THE RESTORATION AND PROMOTION OF THE SACRED LITURGY 5-46
1.  The Nature of the Sacred Liturgy and Its Importance in the Life of the Church 5-13
2.  The Promotion of Liturgical Instruction and Active Participation 14-20
3.  The Reform of the Sacred Liturgy 21

A  General Norms 22-25
B  Norms Drawn from the Hierarchic and Communal Nature of the Liturgy 26-32
C  Norms Based on the Educative and Pastoral Nature of the Liturgy 33-36
D  Norms for Adapting the Liturgy to the Temperament and Traditions of Peoples 37-40
E  Promotion of the Liturgical Life in Diocese and Parish 41-42
F  Promotion of Pastoral Liturgical Action 43-46

Chapter 2.  THE MOST SACRED MYSTERY OF THE EUCHARIST 47-58
Discursive 47-49     Dispositive 50-58

Chapter 3. THE OTHER SACRAMENTS AND THE SACRAMENTALS 59-82
Discursive 59-62     Dispositive 63-82

Chapter 4. DIVINE OFFICE 83-101
Discursive 83-87     Dispositive 88-101

Chapter 5. THE LITURGICAL YEAR 102-111
Discursive 102-105     Dispositive 106-111

Chapter 6. SACRED MUSIC 112-121
Discursive 112     Dispositive 113-121

Chapter 7. SACRED ART AND SACRED FURNISHINGS 122-130
Discursive 122     Dispositive 123-130

APPENDIX:  A DECLARATION OF THE SECOND VATICAN ECUMENICAL COUNCIL ON THE REVISION OF THE CALENDAR

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Norms of Interpretation

1.  Epieikeia

2.  Authentic Equity

3.  Oikonomia

4.  De minimis non curat praetor Matter of minimal significance. Here the canonical axiom which applies is derived from Roman law: De minimis non curat praetor. Words and actions not explicitly authorized are sometimes introduced into liturgy, e.g., liturgical dancing, acclamation in the Eucharistic Prayer, the people endorsing the Eucharistic Prayer by joining in the doxology. These are of such minor importance that permission is not required.  (Brian Gleeson. "Rubrics versus Creativity in Liturgy: Towards a Resolution of Tension and Conflict" in Worship, 70:2 (March 1996), p. 136.)

5.  Don't ask every time there is a question   Note:  When you ask a specific question, you are bound by the response.  The first issue of La Mason-Dieu (which describes the founding of the Institut Supérieur de Liturgie) states that the school would never write Rome for an interpretation because the law itself contains the norms for the law's interpretation.

6. Spontaneous Acts of Good Will   Cardinal Johannes Willebrands, president of the Vatican Secretariat for Promoting Christian Unity, told more than two hundred ecumenists in Columbia [September 12, 1987, one day after Pope John Paul II's visit]: "You should not leave everything to theological dialogue and theologians.  Ecumenism needs some spontaneous acts of good will."

7.  Custom is the best interpreter of the law  Liturgical law has always sprung from practice and not from legislation (P-M Gy, director, Institut Supérieur de Liturgie).

8.  Ubi lex non distinguit nec nos distinguere debemus   When the law doesn't split hairs, neither should we. 

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Obedience To Liturgical Law

The following is a brief summary of the thesis of by doctoral work, Liturgical Law Today:  New Style, New Spirit  (Chicago:  Franciscan Herald Press, 1978.)   "In order that the liturgy may possess its full effectiveness, ... pastors must realize that when the liturgy is celebrated something more is required than the mere observance of the laws governing valid and lawful celebration" (CSL 11). What is this "something more"?  Obedience to liturgical law in the post-Vatican II period demands attitudes, knowledge, and skill at three levels:

1.  General Liturgical Principles — the "goal" statements; the purpose of the law; the "why’s"; what the law is for.  [For examples of these principles click here.]

2.  Liturgical Norms — the rubrics. ("Liturgy law has always sprung from practice and not from legislation." P. Gy as reported by P. Laurant.)

3.  Pastoral Sensitivity — insight into the concrete pastoral situation of these people at this time and the skill to apply the norms in such a way that the general principle is achieved.  "When asked to rank the trait they most value in a pastor, parishioners named sensitivity to the needs of others by a wide margin over holiness, learning, good preaching skills, good organizing skills, or anything else. They want a pastor who understands them, who consults them, who respects them as contributors to the common life of the parish." David Leege. "The American Catholic Parish of the 1980’s" in The Parish in Transition, USCC publication 967, p 16.)

To obey liturgical law
is to use pastoral sensitivity
to assure that the norms
achieve the General Principles

"Any ecclesiastical teacher who interprets or applies church regulations in such a way that everything he teaches or explains relates to the reign of love, neither sins or commits error, since bearing in mind the salvation of his neighbors, he intends to achieve the purpose appropriate to sacred institutions."  (Ivo of Chartres, Prologue to the Decretum)

Notes:
  1. Example:  Mrs. Bordelon making chocolate cake in Paris.  It’s not just a matter of following the American recipe.
  2. "In order that the liturgy may possess its full effectiveness, ... pastors must realize that when the liturgy is celebrated something more is required than the mere observance of the laws governing valid and lawful celebration" (CSL 11). What is this "something more"?
  3. Pope John XXIII spoke of this "higher principles" already in 1960:  "After we had decided, under the inspiration of God, to convene an ecumenical council, we turned over in our mind what was to be done about this project [the reform of the rubrics] begun by our predecessor.  After mature reflection, we came to the conclusion that the more important principles governing a general liturgical reform should be laid before the members of the hierarchy a the forthcoming ecumenical council, but that the above-mentioned improvement of the rubrics of the Breviary and Missal should no longer be put off." (Pope John XXIII. Motu proprio approving "The New Body of Rubrics of the Roman Breviary and Missal," July 25, 1960.
  4. The General Liturgical Principles are often enunciated in the discursive (or descriptive) section of the legislation which precedes the dispositive (or declarative) section of the legislation.
  5. One of the most basic sources for finding these General Liturgical Principles is Chapter one of the Constitution on the Sacred Liturgy, "General Principles for the Restoration and Promotion of the Sacred Liturgy."

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Valid and Licit

The validity of the sacraments is treated thoroughly and accurately by John M. Huels in chapter 6 of Liturgy and Law. The chapter begins:

At times, a diocesan official, canonist, or liturgist is asked for advice about whether a sacrament was administered validly after a question or complaint is lodged concerning some serious infraction of liturgical law. This judgment is sometimes necessary also regarding a sacrament conferred in another Christian community, especially regarding the form or intention of baptism. Such issues may be complicated , depending on the nature of the case. Apart from questions concerning the validity of marriage or baptism in other denominations, contemporary authors by and large have manifested little or no interest in these problems whose solutions sometimes may only be found in old manuals of cannon law and theology, mainly written in Latin and long out of print. Moreover, the contents of these of these old works are in some cases unreliable and in need of updating in light of changes in the law and developments in sacramental theology and ecumenism since Vatican II.

It is not surprising that this subject has been largely ignored in the generation after Vatican II. In prior centuries, from the time that Scholastic theologians isolated the matter and form from each of the sacraments in the Middle Ages, sacramental theology, canon law, and pastoral practice tended to be overly concerned with the essential requirements for the validity which assured the sacraments would produce their effects ex opere operato. The requirements for validity were seen to constitute the substance of the sacraments; all the other parts of the liturgy were accidental. This approach at times produced poor liturgy and questionable theology, the effects of which are still with us today in part (such as recognizing as a sacrament the marriage before civil magistrate of two baptized  non-Catholics who do not accept the Sacramentality of marriage);  it led to reductionism practices which, though rare, are not unheard of even today and it brought on absurd debates the echoes of which occasionally still surface (such as whether transubstantiation  occurs if a priest consecrates all bread in the bakery).  Divorcing the "substance" of the sacraments from the liturgical context  results in distortion and minimalism and can lead to "magical" thinking about Christ's sacramental presence.

Anyone who is interested in this issue, cannot do better than to study the rest of this chapter.  John M. Huels.  Liturgy and Law: Liturgical Law in the System of Roman Catholic Canon Law. Wilson & Lafleur Ltee,  2006.  ISBN 2-89127-773-2    $39.00.

From my own notes (Fr. Tom) on this topic: 

Definition of Valid: (basic) Negative = Invalid.  Contracts can be valid (= the contract is binding) or invalid (= the contract is null and therefore not binding).; contracts either are or they aren’t. They exist or they don't exist.  Marriage can be viewed as a contract; marriage then can be valid or invalid; and by analogy, other sacraments can viewed as valid or invalid. 

a. Contracts can be valid or invalid
b. Marriage is a contract. Marriage can be valid or invalid.
c. Marriage is a sacrament.
d. Sacraments can be valid or invalid.

[Note that this legal, juridical, contractual language does not always "fit" a liturgical, sacramental context.] 

The category valid/invalid is distinct from the category licit/illicit.   Licit = Permitted; alright to do. The negative of licit is illicit.  An "illicit act" is an act that is "not permitted."  Even though an action might be illicit, pastoral sensitivity in a particular circumstance might recommend it.  Ordinarily, it is illicit to perform an invalid act.

An act can be:

1.  valid and licit, for example ...
2.  invalid and illicit, for example ...
3.  valid but illicit, for example ...
4.  invalid but licit, for example ...

[Internal Forum / External Forum]  The purpose of "valid/invalid" is to assure the faithful that this "act/contract/rite" has been celebrated properly so that its effects occur.  Note however that the human action which might make a sacrament invalid does not limit the action of God to love the person.  God can give grace  (i.e. God can love the person and share God's own Divine Life) whether the act, sacrament, contract is valid or invalid.  For example:  a Catholic who is bound by the laws of marriage marries without observing these laws.  Consequently the person is living in an invalid marriage in the external forum and would be considered "not married" in the eyes of the Church.   This does not mean, however, that God cannot bless this marriage and make it a source of grace for those involved. 

Valid / Invalid are legal terms.  They give us assurance that something happened or didn’t happen.  E.g. is this person baptized or not?  This is important because of the ramifications of this legal act.  For example, is the person bound by the Code regarding marriage?  But our understanding of valid / invalid (while useful and necessary for us) does not tie the hands of God.  God is not bound by our rituals; e.g. God can love and empower a person receiving “invalid” Eucharist as much God can with “valid” Eucharist. 

History of Valid/Invalid: In the 1600 ‘s controversies in England over "bishops". At the heart of this debate was the question of the validity of ministry. Valid came to mean "effective"; invalid, defective. Late in the fifteenth century we find theologians projecting this language back into history. The early Church did not use this language. For St. Augustine, "valid" meant "strong". St. Thomas never speaks of "sacramentum validum [valid]" but uses the term "sacramentum verum [true]". However, commentators on Thomas use the vocabulary. The terminology comes into play in crisis situations. Trent used the term in the preliminary schema but the Fathers of the Council systematical and deliberately eliminated this new and novel language; only two instances remain. After Trent, the word "valid" passes into English usage. Gregory the Great: The vocabulary refers to the law’s ability to render an act null and void. 1198-1216 Innocent III. Peter of La Palù is the first to use the word validum in reference to clandestine marriages; validum = verum. This opens the door to "validity" vocabulary in reference to the other sacraments. 1313-1357 Ubaldus of Sassoferato. Cajetan was the first to use the word "valid" in reference to confession. Between 1740 and 1758 "valid" enters into papal vocabulary. Benedict XIV, as Archbishop of Balonia uses this vocabulary in his De Synado dioceasano.

In recent years, "invalid"  sometime means only "I don't like what you did"!  for example, "That offertory hymn was invalid!"

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Naming Roman Documents

Roman documents are named by the first words of the Latin text.  No two documents start with the same words, and consequently, this system gives each document a unique title.  For example:

Mediator Dei - On the Sacred Liturgy
Sacrosanctum Concilium - Constitution on the Sacred Liturgy
Sacram Liturgiam - On the Sacred Liturgy (Paul VI 25 Jan 1964)
Humani Vitae
Lumen Gentium, November 21, 1964
Nostra Aetate, October 28, 1965
Dei Verbum, November 18, 1965
Ad Gentes, December 7, 1965
Gaudium et Spes, December 7, 1965

Note:  The first draft of "Gaudium et spes" began Luctus et angor, gaudium et spes hominum huius temporis..."  That would have named the document Luctus et angor (Grief and Anguish); the phrase was reversed to read "Gaudium et spes, luctus et angor,  hominum huius temporis..."  so that the document would be known as Gaudium et spes (Joy and Hope)

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Classification of Roman Documents

See also:  John M. Huels, "Assessing the Weight of Documents on the Liturgy," Worship 74:2 (March 2000), pp 117-135.]  Note that from 1967 to 2002 approximately 4000 documents on the liturgy have been issued  (= a new document every 3 days).

Francis G. Morrisey, Papal and Curial Pronouncements: Their Canonical Significance in Light of the Code of Canon Law, 2d edition revised and updated by Michel Thériault, Ottawa, Faculty of Canon Law, Saint Paul University, 1995, 46 p. Orders can be faxed to (613) 751-4036 or mailed to the publisher at 223 Main Street, Ottawa, ON K1S 1C4 An invoice will be sent.]

A.  Documents from an Ecumenical Council

1.  Constitution
2.  Decree
3.  Declaration
3.1 Declarations are a form of "policy statement"

B.  Documents from the Pope

1.  Apostolic Constitution
1.1  The most solemn form of a document issued by the Pope in his own name as an act of the extraordinary magisterium. 
1.2  Relates to important matters, e.g. changing the "matter & form" of a sacrament, major changes in universal law, etc.
1.3  Makes new law which changes or abrogates existing law. 
1.4  Can be issued in the form of a bull, but this is not necessary.

2.  Motu proprio (by my own hand)
2.1 The most common source of law.
2.2 Directed to the Church at large by the Pope.
2.3 Can be issued in the form of an Apostolic Letter.
  ["An apostolic letter must be distinguished from an apostolic letter motu proprio. A motu proprio is a legislative, not a doctrinal, text. When the pope wants to introduce a change in law, which is not of the highest importance but not a small matter either, he uses the apostolic letter motu proprio."]

3.  Encyclical Letter   Refers to the form; = for general circulation, intended for all.  In an encyclical the pope treats a theological subject using his ordinary magisterial authority.

4.  Apostolic Letter  An act of the ordinary papal magisterium, usually shorter and less solemn than an encyclical letter.  Treats doctrinal matters.

C.  Documents from the Roman Curia

1.  Institutio generalis (General Instruction)
1.1 A complete reform of a matter.
1.2 Means much more than the English phrase "General Instruction" implies
1.3 E.g. Institutio generalis on the Roman Missal


2. Decree

2.1 The most important legislative acts of the Curia.
2.2 In order to change law, a decree must state that
2.2.1  the Holy Father has been informed beforehand and that
2.2.2  the Holy Father has authorized the change.

3. Instruction
3.1 An explanation of existing law.
3.2 An instruction does not make new law unless approved in "forma specifica"
3.3 Instructions are interpreted in the light of existing laws.

4. Declaration
4.2 An interpretation of existing legislation.
4.3 Declarations do not make new law.
4.4 Declarations may be
4.4.1  general -- for the whole Church
4.4.2  or particular -- for a particular person or church.


5. Response

5.1 Answer to question.
5.2 Often binds only the one asking the question.

6. Directory
6.1  A list of recommendations or guidelines.
6.2  Does not make new law but only shows how existing law might be interpreted.

7.  Rescript

7.1  An answer to a request.

8.  Note
8.1  A particular mention of something already known (but perhaps forgotten).


9.  Circular letter

9.1  A circular letter is not a type of document that is one of the standard ones listed in the Code as a source of law. More and more, the Roman Curia is using this medium "to outline procedures and to indicate new obligations" (Morrisey, p. 32). You will rarely find these letters in the AAS, though some have been published there. One would be hard pressed to find the logic behind the fact that some are published there and some are not.  So, "they are not legislative documents, but are simply means of expressing the intentions and policies of the congregations" (Morrisey, p. 33).

At times, the letter will accompany a set of norms. So, the norms will be the legislative component while the letter will outline the "spirit" behind them.  In some instances, these letters have been given other titles, like "Guidelines", "Instructions", or "Directives".

10. Messages
10.1 Messages are usually an exhortation on some point.

The Curia does not seem to be consistent in the use of "literary genres" and "juridical form".  The level of canonical expertise in the Curia varies from agency to agency.  So it is entirely possible that some Circular Letters could be seen as Instructions (if they outline obligations, i.e. how to apply the law)and some could even be seen as legislative (and thus are inappropriately called Circular Letters or Instructions) if they contain new norms, and not just some norms of applications (in which case the document would be a general executory decree).

[These notes are adapted from Professor Michel Thériault, Faculty of Canon Law, Saint Paul University, Ottawa, and from the books and articles of John M. Huels.  The adaptation is mine, as are any errors.]  

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Roman Law and Anglo Saxon Law

One of the difficulties Americans encounter with "obedience to liturgical law" is understanding the differences between Roman Law and Anglo Saxon Law.  Our legal tradition is "case law" -- norms based on cases and past judgments.  It lists the minimum you have to do to be legal.   Roman Law is based on the ideal situation and what you ought to do.

In an interview which appeared in National Catholic Reporter (October 25, 2002 page 4) Rev. Arthur Espelage, O.F.M., Executive Coordinator of the Canon Law Society of America stated: "The difference between canon law, based in Roman law, and civil law with its basis in English common law, is one of the points of education. The goal of civil law is justice; the goal of canon law is truth," Espelage said. "Sometimes the two overlap completely, but they may not."

In discussing canonical proof, imputability–a term used by canonists in discussing culpability–plays a much greater role than in civil law, Espelage said. "If you had a person in a position of honor and trust, it would increase imputability. A disorder like manic-depression would lessen imputability. Canonical justice seeks moral certitude, which is difficult to define but at times is more rigorous than reasonable doubt. It reflects concern for truth rather than justice; it goes the extra mile."

Liturgical Experimentation

One of the interesting things (in my opinion) about liturgical law is that liturgical law (usually) does not initiate a new liturgical practice but rather confirms and/or universalizes an existing practice.     E.g. the rediscovery of the meal aspect of the Eucharist, and the movement to use “real” food and drink, led to the realization that a piece of bread is usually received (by adults) in the hand, not in the mouth).  The wide spread practice of “communion in the hand” in Belgium, France, and Germany led their bishops to ask Rome to change the law to legitimize this practice.  But the practice came before the law.  This is how liturgical law usually came about.  (Today, the practice usually precedes the condemnation rather than the legitimization, but that only proves the point.)   

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Age and Obedience

A note on the relation between one's chronological/spiritual "age" and obedience to liturgical law. (from an essay by Richard Rohr, "Easter: Liminal Space" in National Catholic Reporter, March 15, 2002, p 11).

"Walter Bruggemann, in one of his brilliant scriptural analyses, says that he believes the sequence of the Biblical revelation reveals the healthy development of human consciousness: Torah, Prophets, Wisdom – in that order. First law, then critique, then synthesis.  Paul says the same thing in his tortured cry to the Romans and Galatians. You cannot begin with critique, you cannot let go of boundaries until you have some boundaries that you are happily ensconced inside of. Then you can react, refine and renew. It does not work the other way around.

The healthiest people I meet all over the world are people who began with a strong sense of tradition, containment and identity. It is the healthy path. Ask Maria Montesori, ask therapists, teachers, and vocational counselors, ask anyone who works with people that they can rely upon.

You need to know the rules before you can break the rules.  Or as the Dalai Lama put it, 'Learn the law very well so you will know how to disobey it properly.'  Pure genius, in my opinion, but a genius that normally only comes to you by the second half of life. This is much of the practical problem, because we in the second half of life have to form those in the first. By then, the structures have a secondary value for us personally."

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To Think About

1.  Who is head of the Office of Worship for your diocese?  Does your diocese have published guidelines for Baptism?  Confirmation?  First Penance? Ecumenism?  How do these guidelines modify the universal law?2.  From a discussion of the GIRM 2001 on the internet:  "Love of neighbor which comes before all.  If our liturgical implementation disturbs the charity of the assembly, then we have done wrong, no matter how right we are. Always there needs to be room for local adaptation, for divergence in lesser rubrics, for pastoral charity. At the local level we encourage implementation, we don't mandate it.  We move at the pace of the congregation, not the pace of Roman, national, or diocesan decrees.  -- I care a great deal about the general principles, I have a middling concern for the lesser norms and principles, and I have small concern for the rubrical details."  [K.S.]

3.  Those who hate the law are without wisdom; they are tossed about like a boat in a storm. (Sirach 33:2)

4.  "'[Law] exists fundamentally to serve, promote, attest, foster and preserve the jus of the Christian community for which it is promulgated.'   With these words, ecclesiologist Rev. J.M.R. Tillard, O.P. opened the 58th Annual Convention of the Canon Law Society of America at St. Louis. For me these words continued to ring in my ears throughout the convention. Even now as I write these reflections, I am reminded of the reasons we serve as canonists and professional staff in our Church." (Sr. Lynn Jarrell, O.S.U., President. "Reflections from the President" in Canon Law Society of America Newsletter. November 1996.)

5.  "What's the difference between a liturgist and a terrorist?" "Sometimes you can negotiate with a terrorist!." 

6.  "Liturgists are a gift given to the Church for those who never experienced the persecutions" (Aidan Kavanagh, O.S.B.)

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Copyright: Tom Richstatter. All Rights Reserved. This page was created by Fr. Thomas Richstatter, O.F.M.   Every effort has been, and is being made to acknowledge sources when the ideas are not my own. Any failure to comply with the United States Copyright Act (Title 17, United States Code) will be corrected immediately should I become aware of it. This site was updated on 01/11/13. Your comments on this site are welcome at trichstatter@franciscan.org