Canon Law Category of Bishop’s Permission to Divorce

(pg. 202) The legislator identifies the singular administrative decree that makes a decision when stating that a singular decree is, in part, an act by which “pro casu particulari datur decisio” (CIC, c. 48). A decision in itself is a rather generic concept, since it can be applied to any act of the will or disposition (203 * 203) concluding an intellective process. A decision that is an administrative act is one that is unilateral, applicable to specific individual juridical or physical persons, and effecting a partial or total positive or negative change to their subjective juridical situation. Being noted for its solemnity, the singular administrative decree, whether it is a decision or a provision, is the instru­ment by means of which the public administration makes “the decisions that are most important for the general good.” It constitutes the ordinary, prin­cipal type of administrative act, since it is employed with high frequency and with great social impact in ecclesial praxis and in the norm of law itself.

Some currents of doctrine have a rather limited view of the singular administrative decision as an act that resolves some controversy, such as a dispute between two members of the faithful or between a bishop and a priest on the occasion of hierarchical recourse. The decision may resolve a con­flict, but it is not limited to this. There must be included within this type of act any singular disposition (aside from the precept) of an objectively coercive character, that is, which limits rights, imposes penalties or obliga­tions, and creates binding exceptions for those affected. Indeed, it is any such act to which the legislator attaches juridical guarantees, that is, acts for which an administrative procedure is prescribed in the current law in view of the possibility that rights could be injured (cf. CIC, c. 50; CCEO, c. 1517, § 1).

After examining the two Codes of the Corpus iuris canonici vigentis, several categories of singular administrative decisions can be identified. Any jurist may distinguish them variously, and here is one approach, which (204 * 204) considers twelve categories of decisions. These categories are not necessarily mutually exclusive.” […] (205 * 205) […]

“2. Another kind of decision is that which amounts to an extrajudicial judgement about certain juridical facts. This involves the evaluation of facts or proofs leading to a disposition binding the individuals involved. Examples include the decision concerning” […] “the separation of spouses (CIC, cc. 1153, § 1; 1692, § 1; CCEO, cc. 864, § 1; 1378, § 1)” […] (242 * 242) […]

2.5 – The Licentia

The principal types of singular administrative acts already discussed and featured in the Codes are the decree that makes a decision, the decree that makes a provision, the precept, and the rescript. Beyond these there is one administrative institute that, within the tipification of administrative acts, is somewhat sui generis, and that is what is called the licentia in law.

Indeed, there is a discrepancy in the general norms on administrative acts in the two Codes in regard to this institute. In the Latin Code, the licentia seems to be a kind of act distinct from the decree and the rescript but gov­erned by the rules for issuing rescripts: “The prescripts which are stated concerning rescripts are valid also for the concession of a licentia … unless something else is established” (c. 59, § 2). In the Eastern Code, however,” […]  (243 * 243) […]

A licentia—which can be translated as permission, authorization, and the like—is defined variously in doctrine. One author defines an authorization as an administrative act that brings about “the elimination or removal of an obstacle that impedes the exercise of a right or of a power.” It is an author­ization or permission for a future act to be carried out licitly. Its concession makes it possible for a person to exercise some faculty or right as a prior guarantee of the validity or liceity of the permitted act. By means of the licentia, the public administration exercises preventive control over the activ­ity of others in order to ensure its liceity or even validity.

Being just one of the terms that has the sense of “permission,” it is observed in doctrine that given juridical acts may have the same nature as a licentia, even though they are called something else in law. Thus, these acts, too, are governed by the rules on rescripts or can be granted by rescript in accord with the above quoted general norms. Examples of other terms used sometimes to indicate a licentia are the following: venia, permissio (permit­tere), consensus (consentire), admittere, iudicium, concessio (concedere), facultas, and approbatio (approbare).

Despite the connection in law with the rescript, in reality the licentia is revealed to be not so much a distinct type of administrative act but the content of either a rescript or a decree, in particular as a kind of favour or a provision. (244 * 244) In fact, authors show that most licentiæ are provisions, not rescripts, even though they are subject to the rules on rescripts. This can be illustrated by reflecting on whether the licentiæ indicated in the Codes are favours or provisions.

The licentia has the character of a favour granted by rescript in numerous areas of ecclesial life.” […] “It is a favour with regard to the following matters pertaining to the administration of the sacraments and to piety:” […] “The licentia is also a favour with regard to” […] (245 * 245) “authorizing spouses to approach the civil forum for a cause of separation (CIC, c. 1692, § 2; CCEO, c. 1378, § 2).