CANON LAW AND ITS INTERPRETATION

Duane L.C.M. Galles

To understand canon law and to be able to interpret it one needs to
understand the purpose of law in the Church, its nature, its
characteristics, its scope and the principles of interpretation of
canon law. In recent years some have argued that canon law is
opposed to the gospel. Others have argued that law really is
inapplicable to a community of love such as the Church or that
coercion (the essence of law) is unsuitable to direct the life of a
Christian or of the Christian community.
In 1983 Pope John Paul II promulgated the revised Code of Canon
Law by means of the apostolic constitution, Sacrae disciplinae
leges. In that document he refuted both of these theories. He pointed
out that Christ Himself said He had come to fulfill and not destroy
the law, that even the charismatic community needs the order which
law brings, and that Saint Paul was an outspoken exponent of
Church discipline. In short, the community of love, peace and
charity is not replaced but rather is facilitated by order. Indeed, as
Saint Thomas reminds us, the peace so widely sought after
nowadays is the "tranquility of order."
If law is necessary even for the People of God (the Church), what is
it? Again, Saint Thomas is illuminating. He tells us that law is "a
regulation in accordance with reason promulgated by the head of
the community for the sake of the common good." A law, then, is
first of all a command. It is not mere advice. It springs from a
person with legislative authority.
By the universal law of the Church legislative authority is enjoyed
by the supreme authority in the Church, by the diocesan bishop and
by particular (i.e., provincial and plenary) councils. Episcopal
conferences are pastoral (c. 447), not legislative bodies. They do
possess certain limited legislative authority but it exists only in
certain specified cases as set forth by law (c. 455). Put somewhat
differently, episcopal conferences are legislators of limited
jurisdiction. To legislate validly they must affirmatively show the
source of their authority to legislate. And, in any case, the
legislation of an inferior legislator (such as an episcopal conference
or diocesan bishop) may not contravene the legislation of a superior
legislator, such as the Holy See.
If law is a command, it is also a command that is permanent. While
law is not immutable, it is presumed to continue in existence until
abrogated, obrogated or derogated from by the legislator who

promulgated it or by his superior. A law can outlive its usefulness,

but it remains the law, nevertheless, until repealed.
It is also important to understand the scope of the Code of Canon
Law. The Code does not codify all Church law. Only a small portion
of the constitutional law of the Church has been codified.
Furthermore, the first few canons of the Code at its outset disclose
large bodies of law which have not been codified. Canon 1, for
example, tells us that the Code applies only to the Latin Church.
The recently promulgated Code of Canons of the Eastern Churches
covers the Eastern rites of the Catholic Church. Canon 2 tells us that
in general the Code does not treat liturgical law. Usually one looks
to the liturgical books and their rubrics for liturgical law.
Canon 3 tells us that some canonical matters are governed by
international agreements which supersede the Code. Thus the
concordat with Germany gives cathedral canons there an important
role in choosing bishops which the Code does not give. Canon 4
preserves acquired rights and privileges not expressly revoked by
the Code. By implication these privileges are not codified. Canon 5
reminds us that custom apart from the law (praeter legem) retains its
force and by implication is not to be found in the Code. Moreover,
there are large bodies of special laws, e.g., the law governing the
Roman curia, papal elections, the Pontifical Household, the
canonization of saints, military ordinariates, the erection of
basilicas, that are to be found in special documents and not in the
Code. Furthermore, particular law governing a region or a diocese
will not be codified nor will proper law governing a religious or
secular institute of consecrated life.
Once one has found a legal text in whatever source there may be
need to interpret it. There are various types of canonical
interpretation. Interpretation may be authoritative, doctrinal or
customary. Canon law follows the maxim, ubi legislatio, ibi
interpretatio and interpretation is authoritative (and binding in
itself) if given by the legislator, by his successor, or by someone to
whom the legislator has committed the task of interpretation. In
1984 Pope John Paul II created the Pontifical Commission for the
Authentic Interpretation of the Code of Canon Law (Since 1989
called the Pontifical Council for the Interpretation of Legislative
Texts). This commission may give binding interpretations of the
Code and of other ecclesiastical laws much as the courts in the
United States give binding interpretation of statutes.
Other types of interpretation are not binding. Interpretation is called

doctrinal or private if given by those skilled in canon law.

"Doctrinal" here has nothing to do with theology. In civil or Roman
law countries one distinguishes "la doctrine," the opinion of jurists
or law professors, from "la jurisprudence," judicial opinions or case
law. Doctrinal interpretation derives its authority from the cogency
of its legal reasoning and the clarity of its exposition.
Having discussed the source of interpretation, one may now discuss
the manner of it. The rules of interpretation of law are, for the most
part, set forth in canon 17 of the Code. This same canon also
establishes a hierarchy for the application of these rules. The first
rule is to consider the text itself, since people, even legislators, are
presumed to say what they mean and since the drafters of laws
usually do their work carefully and accurately. This consideration is
particularly applicable to the Code, which was twenty-four years in
the making. The final product was preceded by three drafts, each of
which was copiously commented upon by cardinals, commissions
and canonists around the world.
The explication of the text must also consider the textual context.
This is particularly true of a code where canons are deliberately
placed within a certain structure or framework which itself may
help explicate the mind of the legislator. The headings of books,
parts, titles and sections of the Code are official and are usable to
interpret the law. It is said that "from red [title] to black [text] there
is valid inference."
If doubt remains one may seek illumination in parallel passages, the
purpose and circumstances of the law and the mind of the legislator.
In addition, it is stated that laws which contain an exception to the
general rule or laws which impose a penalty or restrict a right are to
be interpreted strictly, i.e., narrowly (c. 18). Finally, custom or
unwritten practice is said to be the best interpreter of law (c. 27).

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