Institutiones Iuris Publici Ecclesiastici, by Ottaviani

Institutions Of Public Ecclesiastical Law

Alfredo Cardinal Ottaviani started work at the Supreme Sacred Congregation of the Holy Office (later C.D.F.) in 1935 as an Assessor [source]. He served as the Secretary for 7 years and the Pro-Prefect from 1966 to 1979 [source].  In his Preface to the two-volume Institutiones iuris publici ecclesiastici, he says he had been giving lectures in the juridical faculty at the the Pontifical Roman Seminary at St. Apollinare on the topic of public ecclesiastic law.  In 1990, the facility became the Pontifical University of the Holy Cross. Ottaviani said that other works on public ecclesiastic law were “too concise and do not develop the subject with the breadth required by the academic standards of our Athenaeum.”  These volumes were requested by his students and faculty.

Mary’s Advocates publicizes unofficial English translations of excerpts because it is important to have a correct understanding of  notions like “merely civil effects of marriage” and “civil effects of marraige.”  Canon law shows that, in cases of separation of spouses, if the bishop has already given permission for the separation of spouses, the canon law judge can have the separation case brought before the civil forum in certain circumstances.  Canon 1692 §3, states “If the case is also concerned with the merely civil effects of marriage, the judge is to endeavour, without prejudice to the provision of §2, to have the case brought before the civil court from the very beginning.”

Excerpts:

Vol 1., No. 26(V): “From what has been said so far, the notion of an imperfect society seems sufficiently clear. For every society that has as its end some incomplete good is dependent on another and not self-sufficient. And since there are only two specifically distinct perfect societies, the Church and the State, it follows that all other societies that exist in the world must necessarily be referred and subordinated either to the Church or the State, according to whether they pursue temporal or spiritual good.” [unofficial English Trans.]

Vol 1., No. 46: “Judicial power is described by most public ecclesiastical law scholars as follows: ‘It is the right of declaring or proposing in a binding manner which actions of subjects in concrete are in conformity with the law, and which are contrary to it, and the legitimate effects of this conformity or non-conformity.'”  […] “Thus, the exercise of judicial power involves two things: 1) an authoritative judgment on the true sense of the laws; 2) a judgment on the relation of a fact or action to the law.” […] “Hence, there are two aspects of judicial power: I. for pursuing and vindicating rights and declaring legal facts (contentious jurisdiction); II. for inflicting or declaring punishment (penal jurisdiction).”   [unofficial English Trans.]

Vol 1., No. 48: “Foundation and Necessity. — The entire rationale for this power lies in the necessity of achieving the complete common good; for it is not enough to propose necessary and useful means by laws, but it is required that the laws themselves be properly applied. Therefore, it is the duty of public authority not only to establish rights but also to protect the rights of individuals by interpreting and applying laws, and by investigating, uncovering, and declaring the violations, frauds, crimes, and malefactions of evil people, so that the legitimate effects of their application may be achieved.

“The necessity of judicial power for the declaration of disputed law [i.e. resolve legal disputes] and for the application of punishments in cases of violated law arises from the need for the intervention of a public person in the frequent cases that occur, which the legislator cannot reach, and the definition of which, especially where the restoration of injured rights is concerned, cannot be entrusted to private judgment.”  [unofficial English Trans.]

Vol. 2., No. 325: “Mixed matters are those that are directly related to two ends: namely, the spiritual and the temporal.” […] “Thus, mixed matters differ from other matters that either refer only to one end or are directly related to one end and only indirectly to the other; because mixed matters are directly ordered toward both ends simultaneously.”

Vol. 2., No. 326: “Mixed matters in the strict sense have aspects of both the State and the Church so intertwined in their constitution that they cannot be conceived without their relationships to both orders. Examples include marriage, adequate (i.e., Christian and civil) education of youth, protection of public morality, contracts involving an oath,” […] “determination of the ecclesiastical-civil calendar, or holidays celebrated by both societies, etc.” [unofficial English Trans.]

Vol 2., No. 327: “Mixed matters are usually distinguished as natural or supernatural, depending on whether their essence is contained within the limits of the natural order or, conversely, exceeds the bounds of natural things. To supernatural matters are added those that have been supernaturalized, which, although by their nature belong to the natural order, have been positively elevated to a higher order so that they take on the character of supernatural things.

“The effects of matters that are either supernatural or have been elevated to a supernatural state are of two kinds: inseparable and separable (the latter, if they are temporal, are called merely civil). The first kind are those effects that necessarily flow from the supernatural matter and are so closely connected with it that they cannot be separated in any way. For example, the spiritual and supernatural effects of grace and aids that necessarily flow from Christian marriage, as well as the natural rights and duties that bind spouses to each other, and finally, the legal condition of the legitimacy of offspring.

“The second kind are effects that do not necessarily derive from the substance of the mixed matter, nor are they inseparably connected with it, but rather depend on the prescriptions of positive law, and therefore can be separated from the matter itself. Thus, these can be dealt with without necessarily affecting the substance of the matter to which they are attached; for example, a specific amount of dowry, the manner of managing the dowry, the order of succession between spouses and between children, the privileges of primogeniture, etc.

“Now, since it is absurd for supernatural or supernaturalized matters to be equally under the control of both societies (Church and State), because it is contradictory for the power of the natural order to govern what is supernatural, it follows that these matters, with respect to competence, can only be considered mixed in terms of their effects, while in terms of their substance, they are exclusively committed to one society.

“Therefore, concerning the competence of either society, attention must be paid not only to the direction of a matter towards the end of both societies simultaneously but also to the nature of the matters themselves. Hence, the question arises as to which mixed matters both societies can legislate on; and further, [as to] whether in these matters, (about which both the Church and the State can legislate), each society can so arrange that it considers only its own end and completely disregards the end of the other.” [unofficial English Trans.]

Vol 2., No. 330: Within Article II.  Legal Principles on the Governance of Mixed Matters. Principle III. […] “The civil society cannot legislate on the substance and inseparable effects of a supernatural or supernaturalized matter; therefore, its authority extends only to the separable temporal effects of these matters, that is, those that are merely civil.

“For anything that is sacred in any way falls exclusively under the power and discretion of the Church. It is indeed contrary to natural authority to have power over supernatural matters, insofar as they are such. Moreover, due to the cause to which they are necessarily and inseparably related, even the inseparable effects of these matters, though civil in nature, fall under the power of the Church alone. For whoever is responsible for recognizing a cause is also responsible for recognizing and regulating those things that are necessarily connected with that cause, since any regulation of these things touches upon the relationship by which they are connected to the cause and consequently affects the cause itself.

“From this, it follows that the State must acknowledge the inseparable effects of a supernatural or supernaturalized mixed matter, which the Church regulates. For whoever is obligated to recognize the cause is also obligated to recognize the necessary effects, and whoever judges the cause also regulates these effects, whereas, conversely, whoever has no authority over the cause has no authority over what is virtually contained within it.

“As for purely civil effects or separable temporal effects, the State may regulate them because these are related to the ends of civil society and do not, in their substance, exceed the natural limits within which civil power operates, nor do they necessarily involve the essential aspects of the spiritual matter to which they are contingently connected. Hence, nothing stands in the way of the power of the natural order from dealing with these, provided that subordination to ecclesiastical law is observed, so that civil regulations do not oppose ecclesiastical prescriptions, as was mentioned above (Principle I).”[unofficial English Trans.]

Vol 2., No. 332: “Hence, if it was never possible, by the very law of nature, for any human legislator’s authority to sanction repudiation or divorce in the proper sense, this is even more emphatically true regarding the marriage of Christians.”  [unofficial English Trans, (Mary’s Advocates note; repudiation is the dismissal of a spouse without a forma legal process)]

Vol 2., No. 335: “Principle: The Church has full, exclusive, and proper rights concerning the marriages of Christians, both regarding the substance of the bond and its inseparable effects; hence, the marriage of the baptized is governed solely by divine and canon law, without prejudice to the competence of civil authority regarding the merely civil effects of the same marriage.

“The term ‘full right’ is used to indicate the free disposition and authority to regulate the valid and lawful celebration of Christian marriage, such as establishing impediments and prescribing reasonable conditions, e.g., the rite, form, solemnities, etc., as well as deciding on the effects necessarily connected with marriage, etc.”

“It is called ‘proper’ (proprium) because it is a right directly given by Christ the Lord Himself, not granted by the tolerance of secular rulers, nor by mere custom or usurpation. Finally, it is called ‘exclusive’ (exclusivum) because the Church alone has the authority to regulate all these matters, leaving to the state only the authority to arrange the separable civil effects.” […]

“and any intervention by political authority in the matrimonial contract itself is nothing but an abuse of power and a sacrilegious usurpation”  [unofficial English Trans]

Vol 2., No. 336: “The effects of marriage are understood, in general, to include all goods and privileges, rights, and duties of the spouses and offspring, which follow from the contract and the matrimonial bond.

“Now, the essential effects, or those that necessarily flow from the substance of marriage and are inseparably connected with its validity and integrity (such as effects necessarily connected with the unity and inseparability of the bond, likewise parental authority, the legitimacy of offspring) are, like the substance of the matter itself, under the Church’s disposition. However, effects that are extrinsically and separably attached to marriage are governed by either authority, depending on whether they arise from canon or civil law, or even flow from natural law; but with respect to their determination, they are to be moderated by positive legislation of either order, respectively. For example, separable effects governed by canon law are: irregularity arising from bigamy, the right of patronage belonging to the head of the family, etc.; and the Church alone decides on these matters. On the other hand, those separable effects that pertain solely to the civil order, e.g., the amount of dowry owed, the rights of succession of the spouses toward their parents, whether concerning nobility or goods, likewise the reciprocal rights of succession of the spouses or their children—all these, which come under the name of merely civil effects, are disposed of and governed by the law of the state.” [unofficial English Trans.]

Vol 2., No. 340(II)(2): “Matrimonial cases, which only the Church can judge, are all those in which it is disputed: 1) the validity of the matrimonial bond; 2) all matters concerning the effects necessarily connected with the matrimonial bond, such as cases concerning the dissolution of marital life in terms of the bed and habitation.

“Pope Pius XI clearly explains the goods flowing from the indissolubility of marriage, as noted in his Encyclical Casti Connubii:” […] “‘It removes the anxious fear that a spouse might depart during times of adversity or old age (anxio timori num adversitatis aut senectutis tempore), as the certainty of marriage provides stable assurance. Additionally, it ensures that the dignity of both spouses is preserved and that mutual assistance is provided as effectively as possible. …’” [unofficial English Trans.]