In the
Canon LawCanon Law, the ecclesiastical law of the Roman Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. The academic degrees in canon law are the J.C.B. , J.C.L...
of the
Roman Catholic ChurchThe Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church. With more than a billion members, over half of all Christians and more than one-sixth of the world's population, the Catholic Church is a communion of the Western, or Latin Rite Church, and...
, a
dispensation is the suspension by competent authority of general rules of law in particular cases. Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.
In
Canon lawCanon Law, the ecclesiastical law of the Roman Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. The academic degrees in canon law are the J.C.B. , J.C.L...
theory, the dispensing power is the corollary of the legislative.
In the
Canon LawCanon Law, the ecclesiastical law of the Roman Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. The academic degrees in canon law are the J.C.B. , J.C.L...
of the
Roman Catholic ChurchThe Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church. With more than a billion members, over half of all Christians and more than one-sixth of the world's population, the Catholic Church is a communion of the Western, or Latin Rite Church, and...
, a
dispensation is the suspension by competent authority of general rules of law in particular cases. Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.
History
In
Canon lawCanon Law, the ecclesiastical law of the Roman Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. The academic degrees in canon law are the J.C.B. , J.C.L...
theory, the dispensing power is the corollary of the legislative. The dispensing power, like the legislative, was formerly invested in
general councilsAn ecumenical council is a conference of the bishops of the whole Christian Church convened to discuss and settle matters of Church doctrine and practice...
and even in provincial synods. But in the west, with the gradual centralisation of authority in the
Roman curiaThe Roman Curia is the administrative apparatus of the Holy See and the central governing body of the entire Roman Catholic Church, together with the Pope...
, it became ultimately vested in the
popeThe pope is the Bishop of Rome and, as such, is leader of the worldwide Catholic Church...
as the supreme lawgiver of the Catholic Church.
Despite frequent crises in the diplomatic relations between the
Holy SeeThe Holy See is the episcopal jurisdiction of the Bishop of Rome, commonly known as the Pope, and is the preeminent episcopal see of the Catholic Church, forming the central government of the Church. As such, diplomatically, and in other spheres the Holy See acts and speaks for the whole Catholic...
and temporal governments in the later
Middle AgesThe Middle Ages of European history is a period of European history covering roughly a millennium in the 5th century through 16th centuries. More specific starting and ending points are sometimes adopted by scholars to suit their respective specializations or current focus...
, the authority of the papacy as the dispenser of
graceActual grace is, in Catholic theology, a supernatural help of God -- Divine grace -- for salutary acts. It is contrasted with sanctifying grace, which is a state of being that can be permanent, in that it consists only in a passing influence of God on the soul.For example: if a person has, by...
and spiritual licences remained largely unchallenged. In the early thirteenth century, Pope Innocent III (1198-1216) fostered the extension of papal political power. He emphasised, "as had no pope before him, the pope’s
plenitudo potestatis (fullness of power) within the Church." Since the Church comprised the whole of mankind, medieval jurists were accustomed to what we might call shared sovereignty, and freely accepted that the pope had a concurrent jurisdiction with temporal sovereigns. The temporal princes could administer their own laws, but the princes of the Church, and especially the pope, administered the canon law (so far as it was subject to merely human control).
In the
decretalDecretals is the name that is given in Canon law to those letters of the pope which formulate decisions in ecclesiastical law.They are generally given in answer to consultations, but are sometimes due to the initiative of the popes...
Proposuit, Innocent III proclaimed that the pope could, if circumstances demanded, dispense from
Canon lawCanon Law, the ecclesiastical law of the Roman Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. The academic degrees in canon law are the J.C.B. , J.C.L...
,
de jure, with his plenitude of power. He based his view on
princeps legibus solutus est (the prince is not bound by the laws). Because the pope was above the law, time or precedent did not limit his power, and he could dispense with any law.
Such a dispensation was not, strictly speaking, legislative, but rather a judicial, quasi-judicial or
executive}}In the study of political science the executive branch of government has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the democratic idea of the separation of powers .In many...
act. It was also, of course, subject to the proviso that his
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
to dispense with laws was limited to those laws which were within his jurisdiction or competence. “[T]his principle would have been a commonplace to anyone who had studied in Bologna.”
By this power of dispensation, the pope could release
clergyClergy is the generic term used to describe the formal religious leadership within a given religion. The term ultimately comes from the Greek κλῆρος - klēros, "a lot", "that which is assigned by lot" or metaphorically, "inheritence"....
and
laityIn religious organizations, the laity comprises all persons who are not clergy. A person who is a member of a religious order who is not ordained clergy is considered as a member of the laity, even though they are members of a religious order .In the past in Christian cultures, the term lay priest...
from the obligations of the canon law in all cases that were not contrary to
ius divinumDivine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it...
and even in a few cases that were. This power was most frequently invoked to enable laity to
marryMarriage is a social union or legal contract between individuals that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged by a variety of ways, depending on the culture or demographic...
notwithstanding impediments of
affinityAffinity, in etymology affinity is the opposite of infinity . These two words have the same root coming from the Latin: finis = end. “Affinity” meaning is near to the “finis” e.g...
or
kinshipKinship is a relationship between any entities that share a genealogical origin, through either biological, cultural, or historical descent. In anthropology the kinship system includes people related both by descent and marriage, while usage in biology includes descent and mating...
, and to enable persons labouring under an irregularity (such as of bastardy, servitude or lack of age) to take orders or become regulars.
Dispensations awarded was classified into three categories:
- The first two categories, rules concerning the procedure of taking holy orders
The term Holy Orders is used by many Christian churches to refer to ordination or to a group of individuals who are set apart for a special role or ministry....
, and dispensations concerning tenure of BeneficeOriginally a benefice was a gift of land for life as a reward for services rendered. The word comes from the Latin noun beneficium, meaning "benefit"...
s, applied only to clergy.
- The third category, matrimonial dispensation
A matrimonial dispensation is the relaxation in a particular case of an impediment prohibiting or annulling a marriage. It may be granted: in favour of a contemplated marriage or to legitimize one already contracted; in secret cases, or in public cases, or in both; in foro interno only, or in...
s, i.e. regarding marriageMarriage is a social union or legal contract between individuals that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged by a variety of ways, depending on the culture or demographic...
, concerned only the laity since the clergy is celibate.
- Beside the three main classes of dispensation, the Roman Curia
The Roman Curia is the administrative apparatus of the Holy See and the central governing body of the entire Roman Catholic Church, together with the Pope...
was ready to grant miscellaneous positive concessions to applicants, from individuals to larger organisations, although the former is rare. This host of dispensations, facultiesA faculty is a legal instrument or warrant in canon law, especially a judicial or quasi-judicial warrant from an ecclesiastical court or tribunal.In the Roman Catholic Church, it is "the authority, privilege, or permission, to perform an act or function...
and indultAn indult in Catholic canon law is a permission, or privilege, granted by the competent church authority – the Holy See or the diocesan bishop, as the case may be – for an exception from a particular norm of church law in an individual case, for example, members of the consecrated life seeking to...
s included permission to eat flesh during LentLent, in Christian tradition, is the period of the liturgical year leading up to Easter.The traditional purpose of Lent is the preparation of the believer — through prayer, penitence, almsgiving and self-denial — for the annual commemoration during Holy Week of the Death and Resurrection of Jesus,...
, the celebration of offices in chapels of easeA chapel of ease is a church building other than the main church of a parish.- Reasons for chapels of ease :...
and private oratoriesIn Christianity, an oratory is a room for prayer, from the Latin orare, to pray.In the Roman Catholic Church, an oratory is for all intents and purposes another word for what is commonly called a chapel...
, and the granting of degrees. Those dispensations relating to academic degrees were mostly issued under the sanction of the canon law, as stated in the constitution of Boniface VIII beginning “Cum ex eo.”
Present use
There are several levels of authority in the Church that are competent to dispense the various demands of Canon Law. Local
ordinariesIn those hierarchically organised churches of Western Christianity which have an ecclesiastical law system, an ordinary is an officer of the church who by reason of office has ordinary power to execute the church's laws. The term comes from the Latin word ordinarius...
, for example, are competent to dispense the various
canonical impedimentIn the Canon Law of the Catholic Church, a canonical impediment is a legal obstacle that prevents a sacrament from being performed validly and/or licitly. The term is used most frequently in relationship to the sacraments of Marriage and Holy Orders...
s to the sacrament of marriage. Some dispensations are reserved to the
Holy SeeThe Holy See is the episcopal jurisdiction of the Bishop of Rome, commonly known as the Pope, and is the preeminent episcopal see of the Catholic Church, forming the central government of the Church. As such, diplomatically, and in other spheres the Holy See acts and speaks for the whole Catholic...
, for example, from the impediment to ordination of
apostasyApostasy is the formal religious disaffiliation or abandonment or renunciation of one's religion, especially if the motive is deemed unworthy. In a technical sense, as used sometimes by sociologists without the pejorative connotations of the word, the term refers to renunciation and criticism of,...
.
Sources
- David Chamber, Faculty Office Registers, 1534-1549: A Calendar of the First Two Registers of the Archbishop of Canterbury’s Faculty Office (Clarendon Press 1966)
- Sir Edward Coke
Sir Edward Coke , was a seventeenth-century English jurist and Member of Parliament whose writings on the common law were the definitive legal texts for nearly 150 years. Born into a family of minor Norfolk gentry, Coke traveled to London as a young man to make his living as a barrister...
, 4th Institutes of the Laws of England 337 (Garland Publg. 1979)
- Wilfrid Hooper, "The Court of Faculties", 25 English Historical Rev. 670 (1910)
- Noel Cox, Dispensations, "Privileges, and the Conferment of Graduate Status: With Special Reference to Lambeth Degrees", Journal of Law and Religion, 18(1), 249-274 (2002-2003)
- Gabriel Le Bras, Charles Lefebvre & Jacqueline Rambaud, "L’âge classique, 1140-1378: sources et théorie du droit" vol. 7, 487-532 (Sirey 1965)
- Francis Oakley, "Jacobean Political Theology: The Absolute and Ordinary Powers of the King", 29 J. of History of Ideas, 323 (1968)
- Kenneth Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (U. Cal. Press 1993)