For New Problems, A New Canon

By B.F. Dryden
What do you think of the 1981 consecration of bishops? And how can a legitimate Pope ever again be elected? No satisfactory answer can be given to either question without an understanding of Canon 20, on how to proceed in cases not covered by any other canon. For new Bishop Moises Carmona argues from this canon that his consecration was licit. And what other canon can resolve our present quandary, in which there are neither cardinals nor a Pope, yet a Pope can seemingly be elected only by cardinals, and cardinals appointed only by a Pope?
Our explanation of Canon 20 is summarized from Belgian Capuchin P. Gommarus Michiels, O.M.C., Professor of Canon Law in the Catholic University of Lublin, Poland: “Tommae Generales Juris canonici”, pp. 454-481 (Catholic University, Lublin, 1929: approved in that year by Fr. Melchior A. Bonina, Min’ Generalis Ord. Cappacinorum; NIHIL OBSTAT by Sac. Dr. J Wislicki, Censor Eccleis.; “IMPRI POTEST” by L. Nogkarski, Vic. Gener.).
Background of Canon 20. Legislation is made principally by a written expression of the lawgiver’s will; but custom also makes law, in conformity with Canons 25-30. Both these forms of law are; of their very nature, abstract, unchanging, and therefore insufficient to regulate all the particular cases that may arise in practice. “No man’s wisdom is so great,” says Saint Thomas, “that he can think out each and every case; therefore he cannot through his words sufficiently express what is suitable for his intended purpose. Even if the lawgiver could consider all cases, he ought not to express them all, lest confusion arise; he ought rather to make the law according to what happens in most cases.”
Hence, it is quite normal, both in civil and ecclesiastical law, for cases to arise for which no provision has been made. These cases must be decided; either by an interpreter of the law or by a judge, through recourse to more general principles, or by bringing out what is implied in some law or in the sources of law. This amounts, in effect, to making new law; and no one may do so unless he is either a lawgiver or authorized by a lawgiver to make new law. When the present 1918 Code of Canon Law was being prepared, the civil codes of France, Italy, Austria and Switzerland did expressly command magistrates to create new law as required in cases not covered by statutes already existing. It was this civil law that was incorporated, with some modifications, into the Church’s new Code as Canon 20.
I. The purpose of Canon 20 is clearly to make new law where none existed. The principle is analogous to that of customs, which are made by the people in general and get their legal force from the lawgiver’s approval or toleration of the custom. So also, when a decision must be reasoned without awaiting the growth of custom, an individual interpreter or judge makes a rule; and the lawgiver, through Canon 20, gives it legal effect, provided that the new rule was taken from one of the four sources listed in Canon 20:
“Canon 20. If in regard to a given matter there is no express provision of law, either general or particular, the rule is to be taken, except in the application of penalties, 2. from laws laid down in similar matters; 2. from the general principles of law, in accord with the equity proper to canon Law; 3. from the language and practice of the Roman Curia; 4. from the common and constant opinion of doctors.”
II. When shall Canon 20 be applied? There are two requisite conditions:
1) That, in regard to a certain matter, there be no express provision of law. A number of canonists require that the case be concrete and particular. Fr. Michiels, on the contrary, understands “a certain matter: as meaning all cases of a certain kind; for the Canon does not say praeceptum, a ruling for a particular case only, but praeceptis legis, a provision of law, which deals with all cases of a certain type.
Laws are classified, according to the person obliged by them, into general laws, for the whole Church, and particular laws, for a particular person, community, or class of persons. Canon 20 is to be invoked only if no law, either general or particular, covers the matter in question. Fr. Michiels believes, further, that Canon 20 is not applicable to a matter regulated by custom; for custom has the for e of law (Canon 25).
2) The second condition for applying Canon 20 is that new law be both necessary and licit. For the law’s silence is to be construed as liberty unless a decision is needed, for example, to settle a contest of wills between two parties. And in some matters, there is permitted no addition to a law and no extension of its meaning, as determined by Canons 18 and 19.
In what matters is the use of Canon 20 forbidden?
a)The Canon’s own words exclude any change in penal law unless through express legislation; the new rule is to be taken “except in the application of penalties.”
b)In the matter of holy orders, Canon 983 provides that “no perpetual impediment which is called an irregularity, is contracted, either by defect or crime, unless what is expressed in these following Canons.”
c)By Canon 11, “Only those laws are to be considered invalidating or disqualifying which expressly or equivalently determine that an act is null or a person disqualified.”
d)Neither, in the opinion of Fr. Michiels, is Canon 20 to be applied to any of those laws called “odious”, i.e. dieagreeable to some parties; for Canon 19 requires that these be strictly interpreted.