Dispensation (Catholic Church)
Encyclopedia
In the canon law
of the Roman Catholic Church
, 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.
theory, the dispensing power is the corollary of the legislative. The dispensing power, like the legislative, was formerly invested in general councils
and even in provincial synods. But in the west, with the gradual centralisation of authority in the Roman curia
, it became ultimately vested in the pope
as the supreme lawgiver of the Catholic Church.
Despite frequent crises in the diplomatic relations between the Holy See
and temporal governments in the later Middle Ages
, the authority of the papacy as the dispenser of grace
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 decretal
Proposuit, Innocent III proclaimed that the pope could, if circumstances demanded, dispense from canon law
, 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
act. It was also, of course, subject to the proviso that his jurisdiction
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 clergy
and laity
from the obligations of the canon law in all cases that were not contrary to ius divinum
and even in a few cases that were. This power was most frequently invoked to enable laity to marry
notwithstanding impediments of affinity
or kinship
, 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:
, for example, are competent to dispense the various canonical impediment
s to the sacrament of marriage. Some dispensations are reserved to the Holy See
, for example, from the impediment to ordination of apostasy
.
Canon law (Catholic Church)
The canon law of the Catholic 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. It lacks the necessary binding force present in most modern day legal systems. The academic...
of the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
, 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 (Catholic Church)
The canon law of the Catholic 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. It lacks the necessary binding force present in most modern day legal systems. The academic...
theory, the dispensing power is the corollary of the legislative. The dispensing power, like the legislative, was formerly invested in general councils
Ecumenical council
An ecumenical council is a conference of ecclesiastical dignitaries and theological experts 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 curia
Roman Curia
The Roman Curia is the administrative apparatus of the Holy See and the central governing body of the entire Catholic Church, together with the Pope...
, it became ultimately vested in the pope
Pope
The Pope is the Bishop of Rome, a position that makes him the leader of the worldwide Catholic Church . In the Catholic Church, the Pope is regarded as the successor of Saint Peter, the Apostle...
as the supreme lawgiver of the Catholic Church.
Despite frequent crises in the diplomatic relations between the Holy See
Holy See
The Holy See is the episcopal jurisdiction of the Catholic Church in Rome, in which its Bishop is commonly known as the Pope. It 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...
and temporal governments in the later Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
, the authority of the papacy as the dispenser of grace
Actual grace
Actual grace is, in Roman Catholic theology, a share in God's life. 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....
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 decretal
Decretal
Decretals 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 law
Canon law (Catholic Church)
The canon law of the Catholic 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. It lacks the necessary binding force present in most modern day legal systems. The academic...
, 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
Executive (government)
Executive branch of Government is the part of government that 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 idea of the separation of powers.In many countries, the term...
act. It was also, of course, subject to the proviso that his jurisdiction
Jurisdiction
Jurisdiction 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...
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 clergy
Clergy
Clergy is the generic term used to describe the formal religious leadership within a given religion. A clergyman, churchman or cleric is a member of the clergy, especially one who is a priest, preacher, pastor, or other religious professional....
and laity
Laity
In religious organizations, the laity comprises all people who are not in the clergy. A person who is a member of a religious order who is not ordained legitimate 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...
from the obligations of the canon law in all cases that were not contrary to ius divinum
Divine law
Divine 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. However it may be revealed or not, so it may change in human perception in time through new revelation...
and even in a few cases that were. This power was most frequently invoked to enable laity to marry
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
notwithstanding impediments of affinity
Affinity (law)
In law and in cultural anthropology, affinity, as distinguished from consanguinity, is kinship by marriage. It is the relation which each party to a marriage bears to the kindred of the other. In English, affinity is usually signified by adding "-in-law" to the degree of kinship...
or kinship
Kinship
Kinship is a relationship between any entities that share a genealogical origin, through either biological, cultural, or historical descent. And descent groups, lineages, etc. are treated in their own subsections....
, 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 ordersHoly OrdersThe term Holy Orders is used by many Christian churches to refer to ordination or to those individuals ordained for a special role or ministry....
, and dispensations concerning tenure of beneficeBeneficeA benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...
s, applied only to clergy. - The third category, matrimonial dispensationMatrimonial dispensationA 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 marriageMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, concerned only the laity since the clergy is celibateClerical celibacyClerical celibacy is the discipline by which some or all members of the clergy in certain religions are required to be unmarried. Since these religions consider deliberate sexual thoughts, feelings, and behavior outside of marriage to be sinful, clerical celibacy also requires abstension from these...
. - Beside the three main classes of dispensation, the Roman CuriaRoman CuriaThe Roman Curia is the administrative apparatus of the Holy See and the central governing body of the entire 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, facultiesFaculty (instrument)A 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 indultIndultAn 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 LentLentIn the Christian tradition, Lent is the period of the liturgical year from Ash Wednesday to Easter. The traditional purpose of Lent is the preparation of the believer – through prayer, repentance, almsgiving and self-denial – for the annual commemoration during Holy Week of the Death and...
, the celebration of offices in chapels of easeChapel of easeA chapel of ease is a church building other than the parish church, built within the bounds of a parish for the attendance of those who cannot reach the parish church conveniently....
and private oratoriesOratory (worship)An oratory is a Christian room for prayer, from the Latin orare, to pray.-Catholic church:In the Roman Catholic Church, an oratory is a structure other than a parish church, set aside by ecclesiastical authority for prayer and the celebration of Mass...
, 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 ordinariesOrdinary
In 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...
, for example, are competent to dispense the various canonical impediment
Canonical impediment
In 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 See
Holy See
The Holy See is the episcopal jurisdiction of the Catholic Church in Rome, in which its Bishop is commonly known as the Pope. It 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...
, for example, from the impediment to ordination of apostasy
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
.
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 CokeEdward CokeSir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, 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)