§ 19. The Cessation of a Law

Speaking of the distinction among the laws of the Church (§ 17), we said that unchangeable are those that concern the faith, while the laws that concern church discipline are subject to change according to the needs of the Church and according to the changes brought about by the social condition of one age or another. Once a law concerning discipline has been introduced through a competent channel, it remains in force until it is subjected to change by a juridically recognized manner. This change may be either complete or partial. In the first case the law is abolished entirely (ἀναίρεσις, abrogatio) and ceases to be in force, either as a result of an explicit legislative provision, or else because it has fallen out of custom (ἀχρησία, desuetudo) and is no longer used by anyone.[1] In the second case only one part of a given law may be abolished, and it may or may not be replaced by a new addition;[2] and it may also happen that a law remains generally in force, and only certain individuals are exempted from its execution. This latter occurs either in the form of a privilege (προνόμιον, privilegium) or of a dispensation (συγκατάβασις, dispensatio).

I. The abrogation (ἀναίρεσις, abrogatio) of a law may occur: a) When the competent legislative authority, for justified reasons, issues a new law in place of the former one, and in such a case (per the rule: lex posterior derogat priori) the new law replaces the former.[3] The competence of the authority forms the chief basis here, and hence an existing law can be abrogated only by an authority equal to, or higher than, the one that issued the law in question. The ecumenical councils, as the highest legislative authority in the Church, had the right to do this, and did do this, with regard to every law issued before them that circumstances required to be altered. We have seen that the Council in Trullo, by its 12th canon, abolished the provision of Apostolic canon 5; the Apostolic canon 37, the 5th canon of the First Ecumenical Council, and the 19th canon of the Fourth Ecumenical Council all three prescribe that councils of bishops must be held twice a year in every metropolitan province; the Council in Trullo, however, by its 8th canon, and likewise the Seventh Ecumenical Council by its 6th canon, altered this provision on account of the new circumstances of the Church, and ordained that such councils henceforth be held only once a year. The local Council of Neocaesarea, by its 15th canon, had established that in each provincial church there might be no more than seven deacons in all, and the Council in Trullo, by its 16th canon, abolishes this.[4] b) If a law was issued for some determined period of time and for certain determined cases, it will cease to be in force when the appointed time has elapsed, and when the cases in question no longer occur.[5] c) A law ceases to be in force when its subject matter no longer exists, or at least no longer exists in the manner the law presupposed, and likewise when the legal underlying principle that gave rise to the law in question no longer exists—per the rule: cessante ratione legis, cessat lex ipsa. For example, in the earliest times of the Church, church authority judged not only the spiritual but also the civil transgressions of Christians, and its judgment carried with it the exclusion of the persons concerned from the community;[6] and the Church acted thus because it was governed in complete separation from pagan civil society. But when the Church entered into union with the state, and the state began to protect the Church and to concern itself with good order within it, all matters that were not strictly of a church nature, even though they concerned Christians, passed over to the civil court, and consequently those church laws that concerned such matters ceased to be in force.[7] d) A law also ceases to be in force when it no longer corresponds to the new circumstances in which the Church finds herself, and church authority, as a result of these new circumstances, finds it necessary to abolish it—or else when, as a result of these same circumstances, the ecclesiastical legislature has issued, on certain matters, laws different from those that previously existed on the same matters, without even mentioning that the former laws are thereby abolished.[8] e) In cases where a new law is not expressed in absolute terms, it must be inferred that the legislator intended thereby to abolish only what had existed until then, while the exceptions in question remain in their former force notwithstanding.[9] For example, by the 2nd canon of the Council of Constantinople of the year 879, it is ordained that a bishop who withdraws to the monastic life and places himself in the position of penance must be deprived of his dignity.[10] By this canon is abolished the custom that had crept into the Church whereby certain bishops, neglecting the affairs of the Church, spent their time solely in monastic exercises; but this does not thereby abolish the practice that a hieromonk may become a bishop.[11]

A law may also cease to be in force through its disuse, when some custom prevails that differs from that law. Balsamon, in his scholia on the Nomocanon in Fourteen Titles, cites Ulpian’s maxim from the Basilica, to the effect that through disuse (δι᾿ ἀχρησίας, desuetudine) a law may cease to be in force.[12] This provision of Greco-Roman legislation thereby acquired direct significance in ecclesiastical legislation as well. But this disuse must be strictly justified, and the custom that has come to prevail in place of some positive law must rest upon truth and accord with the general spirit of the law,[13] “for,” say the fathers of the Council of Constantinople of the year 861 in their 7th canon, “nothing that has crept in contrary to law and order may be allowed to prejudice what has been canonically established.” Accordingly, and in general, the abolition of an existing law can be brought about only by such circumstances as arise from within the inner life of the Church itself—that is, when the Church feels an unavoidable need to order something differently than had previously been the case, when the securing of the Church’s proper inner life and outward peace is at stake, and when the motive for it is not conditioned by worldly considerations, which cannot be proper to the spirit of the Church and which have always brought harm to the Church whenever they have become decisive in such matters. At the same time, the actual abolition of the binding force of a law must be carried out by the competent authority, within the bounds fixed by the general legislation, and after taking into account all the circumstances that make such abolition necessary; the new law must be better and more complete than the one abolished and must genuinely correspond to the needs of the Church; and finally, this new law must proceed from the fundamental laws of the Church, which are unchangeable, and must stand in strict dependence upon those fundamental laws.

II. A law may remain in force generally, while for certain physical or juridic persons an exception is made in this regard, and in place of that law a special law may be issued that concerns only those physical or juridic persons and no one else. Such a law is called a privilege (προνόμιον), and stands in close connection with the jus singulare of Greco-Roman legislation. It establishes separate legal relations with regard to certain physical or juridic persons, who by force of that law enjoy the privileges thereby established and are not bound by the provisions of the general law that hold good for others.[14] The inner cause from which such a law proceeds consists, in general, in some good aim that is sought to be achieved; and its chief mark consists in this, that it forms an exception to an existing general rule and is exclusively positive in nature.[15]

The power to grant a privilege belongs only to him who is competent to issue laws, and likewise he alone may, under certain conditions, take it away. A privilege may also cease to be in force of itself, as, for example, when the cause for which it was granted ceases, or when the legal relations to which it pertained cease.[16]

III. A second manner in which a law remains in full force, while only certain individuals are exempted from its execution, occurs in the case of dispensation (συγκατάβασις). Dispensation consists in a condescension of the competent authority toward someone, whereby, in an exceptional case, that person may fail to fulfill the provision of an existing general law. Dispensation does not have the character of necessity; rather, it is only a condescension to human weakness, and it may be justified by the aim of removing some evil, and when the general good of the Church so requires.

With every legal provision that men issue there exists the rule that dispensation may be granted from the fulfillment of that provision, when the common good requires it and when certain considerations must be shown to individuals.[17] The very same holds, in principle, also with regard to the provisions of the legislative authority of the Church. The canons of the Church permit the bearers of church authority to relax the strictness of an existing law with regard to individual persons, and only in extraordinary circumstances, when, namely, such a relaxation has in view the general good of the Church and the securing of good order within her.[18] But this relaxation is not left to the discretion of the bearers of church authority to grant as they will; rather, it is confined within precisely delineated bounds, within which alone, and exclusively, they may move. With regard to those laws of the Church that have been recognized by the ecumenical Church as universally binding upon all, no dispensation whatsoever may ever, under any circumstances, take place.[19] Only with regard to those laws that were not issued or confirmed by the ecumenical Church, but which church authority subsequently issued as an extension of those fundamental laws, according to the particular circumstances of time and place—only with regard to such laws has the Church, for weighty reasons and for the sake of higher aims, permitted dispensations from the existing law with respect to individual persons who were deemed worthy of such condescension on the part of church authority.[20]

Only he to whom belongs the right to issue a law has the right to grant dispensation from it, and subordinate authorities may do so only within the bounds, and according to the authorization, expressly received from the legislative authority.[21] A dispensation loses its force when the cause for which it was issued ceases, or when the underlying request was not true and was obtained from the authority by fraudulent means.

CHAPTER THREE. The Sources of Church Law Themselves.