Repealing laws you didn’t know existed Print
Around the Diocese
Written by Tim Cavanaugh, Diocese of Madison Tribunal   
Thursday, Jan. 10, 2013 -- 12:00 AM
(CNS photo by Bob Roller)
Decree of Abrogation
To view the Diocese of Madison Decree of Abrogation, click here.

G.K. Chesterton once observed that journalism largely consists of saying “Lord Jones is dead” to people who never knew that Lord Jones was alive. Thankfully, this article is not an obituary, but its purpose is to explain that diocesan law has been repealed to readers who likely (and justifiably) never knew that diocesan law existed.

What is diocesan law? Like any society or any family, the Church has rules for maintaining good order. Some of these rules are “universal,” meaning that they apply to the whole Church worldwide, and others are “particular,” meaning that they only apply to a certain region or community, such as an ecclesiastical province or a diocese.

Whether they are universal or particular, these rules can be either “legislative” or “executive.” Legislative rules are laws in the strict sense, and at the diocesan level they can only be issued by the diocesan bishop. Laws are meant to have broad, generic, and fairly permanent application. Executive rules, on the other hand, are meant to apply the law in specific and concrete instances. They can be issued by other executive authorities such as the vicar general in addition to the diocesan bishop, but executive rules can never contradict laws.

We see the same division between executive and legislative rules in our civil government. The legislature passes a law that says, “Cars must drive at or below the posted speed limit,” but an executive authority passes a rule that says, “The speed limit on Main Street is 30 miles per hour.” In the Church, the diocesan bishop exercises both legislative and executive power (not to mention judicial power), but any given act of governance falls into one of those categories. “Diocesan law,” then, refers to the legislative rules issued by the bishop for the diocese.

Why repeal the laws

Why would the bishop repeal all diocesan law? It was noted above that laws are meant to have fairly permanent application, but the law is also constantly in need of reform. Sometimes changes in the world make a given law obsolete. Other times, developments in universal law demand developments in particular law. And still other times, a body of law can gradually grow so disjointed, confusing, and even contradictory that it becomes difficult to interpret or implement. In each of these cases, the law no longer effectively fulfills its primary purpose of providing for the common good, and reform is necessary. A little diocesan history will show that all of these factors have hampered the effectiveness of the laws of the diocese.

In July of 1955, Bishop William O’Connor convoked a diocesan synod, a gathering of all the priests of the diocese to guide the bishop in formulating a body of diocesan law. In February of 1956, the bishop closed the synod by promulgating nearly 600 laws covering everything from the appointment of pastors to the minimum percentage of beeswax in altar candles. The synod’s decrees are still technically “on the books,” but they have long since ceased to be substantially observed. Some of them are comically obsolete; for example, decree 379 sets the salary of pastors at $1500 per year.

Others are not necessarily outdated, but they are simply not widely known or followed; for example, decree 245 requires all church bells to ring the Angelus morning, noon, and evening.

It is virtually impossible to locate laws that have been issued since the synod — if any were issued at all, that is. In the turbulent decades following the Second Vatican Council, the word “law” developed something of a bad reputation. On top of that, recordkeeping tended to fall by the wayside. Since there was no central repository of episcopal decrees, the only way to compile a corpus of diocesan law would be to pore page by page over 60 years of the Catholic Herald, where decrees were officially promulgated. Even then, the locatable decrees do not always make it clear whether the bishop was intending to promulgate new law, since bishops seemed to prefer to use other terms like “norms,” “directives,” or “guidelines.”

In spite of the laws

Throughout the decades, Madison has remained an orderly and well governed Church, but more in spite of its laws than because of them. Between obsolescence and uncertainty, the laws of the Diocese are basically past the point of gradual reform. Bishop Morlino decided that the most expedient way to restore legislative order was to wipe the slate clean and start over. His decree does just that: it “abrogates,” or repeals, every diocesan law, from the 1956 synod onward.

Even though that sounds rather sweeping, the practical effects are hardly earth-shattering, since the laws being repealed were not widely known or observed to begin with. Plus, the repeal will not create a legal “vacuum.” The vast majority of diocesan governance has been implemented through executive rules, which are not affected by this decree. Furthermore, universal law and supradiocesan particular law (such as laws issued by the USCCB) remain in effect, and these are comprehensive enough to do most of the “heavy lifting” in ordering the day-to-day governance of the diocese.

Laws and customs

The decree also abrogates “customs contrary to universal and particular law,” a statement that probably requires some explanation. Not every rule in the Church is issued by a hierarchical authority; some rules come from the “grass roots.” Communities of the faithful develop their own customs, which can sometimes take on a role similar to law. Think, for example, of the custom of calling priests “Father.” Even though you will not find a rule like that anywhere in the Code of Canon Law, it is such a longstanding and widely approved custom that it really is binding, just as if it were a law.

Some customs are “beyond the law,” meaning they contain nothing against the written law, but other customs are actually contrary to the written law. The bishop has the authority to suppress customs, but he can also allow them to continue or even explicitly approve them, so long as they are not unreasonable or contrary to divine law. Under the current Code of Canon Law, when a custom has been observed continuously for 30 years, it obtains the force of law for the community that observes it (canon 26). Since customs contrary to the law can acquire the force of law, it made sense for Bishop Morlino to abrogate them alongside diocesan laws. The effect is essentially the same: it cleans the slate, eliminating any uncertainty about which local laws and customs are binding.

Even though it seems like eliminating the laws of the diocese would be an invitation for anarchy, in this case it actually lays the foundation for better public order. And after all, that is the purpose of canon law in the first place: to provide order in the body of Christ, so that the Church can be a more effective sign and instrument of Christ’s presence in the world.

Tim Cavanaugh is diocesan judge of the Madison Diocese Tribunal.

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