How Can You Obey a Law, If You Don’t Even Know It Exists?

Q:  Our Archbishop issued a Decree requiring the St. Michael prayer be prayed after all scheduled Masses.  For a variety of reasons, not every parish implemented the Decree and some don’t pray the prayer as directed.

Now, after four years, the Archbishop has allegedly sent a letter to be read at all parishes replacing the praying of the St. Michael prayer with a prayer for vocations.  Not every parish has heard this letter.  I learned about it in a facebook group….

If a bishop’s decree is law, then can it be cancelled with a letter, and one not everyone gets?  How are decrees supposed to be rescinded?  What happens when priest and people don’t obey a bishop’s decree?  How does canon law apply to bishops’ decrees?  Thank you. –Susan

A: At first glance, this may seem to be a rather unique question, not of  interest to anyone outside Susan’s diocese.  But this specific situation is emblematic of a much larger issue, as can be seen from the questions it prompted Susan to ask: what is a law and what isn’t?  How do laws come into effect?  And how can you be expected to follow a law, if you aren’t told it even exists?  It’s confusion and misunderstanding about these basics, which cause questions about situations like the one in Susan’s diocese to arise.

Let’s start by clearing up some confusion about terminology.  Susan presumes that a decree is automatically a law, which is a huge error right off the bat.  What is a decree, who can issue one, and what weight does it have?

Decree is the generic name for a type of document, always issued in writing (c. 51).  When it defines different types of decrees, the Code of Canon Law unwittingly bewilders some readers right away, because its definitions indicate (but don’t point out directly) that some kinds of decrees are laws while others definitely are not.

Any short explanation of decrees is bound to be over-simplistic, and can prompt the ire of legal scholars; but here is the canonical world of decrees in a nutshell.  As canon 29 tells us, general decrees are laws, intended for a community capable of receiving law.  This means, of course, that they can only be issued by someone with legislative power, although canon 30 tells us that a legislator can delegate this power to someone else in a particular case.  The Pope, as we all know, is the supreme legislator, and since his power is universal, he can and frequently does issue general decrees binding Catholics worldwide.  A diocesan bishop has this sort of legislative power within his diocese (c. 391); while a parish priest, in contrast, has no legislative power whatsoever.

To take an obvious example, whenever the Pope creates new laws (or amends existing ones), he does so by issuing a general decree, often a motu proprio.  We looked at some recent examples of this in “Retranslating the Liturgy: Pope Francis Changes the Law (Episcopal Authority, Part I)” and “Founding New Religious Institutes: Pope Francis Changes the Law (Episcopal Authority, Part II),” among others.  These new canons are really laws and are incorporated into the Code of Canon Law, which binds all Latin Catholics (cf. c. 1).

Likewise, a diocesan bishop can issue a general decree for the people of his diocese, although as per canon 391.1, this may be done only “according to the norm of law.”  This means, in short, that a diocesan bishop cannot create diocesan laws on matters outside his purview—e.g., he can’t make laws which contradict or change universal law, or which violate Catholic theology.  This is why bishops cancelling Masses and forbidding the administration of the sacraments during the 2020 lockdowns was so breathtakingly illegal, as we saw in “Do Bishops Have the Authority to Cancel Masses Completely?” and “Can We Be Required to Receive Communion in the Hand, Because of the Virus?” among so many others.

But not all decrees fit into the category described in canon 29.  There are also general executory decrees (c. 31.1) and singular decrees (c. 48), which aren’t laws at all.  A general executory decree lays out the means by which an already existing law is to be carried out; a singular decree is an act of administration in an individual case.  Since these types of decrees aren’t laws, they can be issued by someone who has executive (often referred to as “administrative”) rather than legislative power.

Here’s an example of a general executory decree: the Code of Canon Law provides the framework for the establishment of Tribunals (cc. 1417 ff.), and a diocesan bishop can issue one or more general executory decrees declaring exactly how the Tribunal in his own diocese is going to be set up—provided, of course, that his set-up is in accord with the law.  The bishop’s decree in this case is clearly not a law itself; instead, it explains how the universal law is going to be followed in this diocese.

It’s easy to cite all sorts of examples of singular decrees: when a Tribunal issues a declaration of nullity of a marriage, or when a dispensation is granted (see “When Can You Get a Dispensation, and Who Can Grant It?” for more on this topic), or a religious sister is formally expelled from her institute, etc. etc. etc., these sorts of decisions constitute singular decrees—which are not laws.

Lines can quickly get blurred here, because bishops (including the Pope) have both legislative and executive power.  For this reason, they can issue all the types of decrees mentioned above, which means that some of their decrees constitute laws, and some don’t.  Think about it this way: when the Pope announces that Bishop So-and-So is going to be transferred from Diocese X to become the new bishop of Diocese Y, that announcement comes in the form of a decree—but it’s not a law, requiring us Catholics to follow anything!  On the other hand, if the Pope were to declare that henceforth, this or that feast-day would be a holyday of obligation for the entire universal Church, that announcement would likewise come in the form of a decree—but this one would definitely constitute a law, which we Catholics would be obliged to obey.

Armed with all this headache-inducing, abstract information, let’s return to Susan’s question.  It sounds like her diocesan bishop had issued a general decree in the past, requiring all the clergy to recite the prayer to St. Michael after all Masses.  If that is indeed what he did, that’s fine!  He is a legislator and has the authority to make this rule, which does not conflict with any universal laws.  We don’t know the actual wording of the decree; but for the sake of argument let’s say his phrasing was unequivocal, and made the recitation of this prayer after Mass mandatory, with no exceptions.

But as Susan puts it, “For a variety of reasons, not every parish implemented the Decree and some don’t pray the prayer as directed.”  What sorts of reasons?  Did they ask the bishop for permission to do something other than follow his particular law?  If they didn’t, and knowingly disregarded his instructions, the clergy of these parishes were in direct violation of the law.  Is the bishop aware of this?  If he is, what did he do about it?  We can’t draw further conclusions without a lot more information.

Now, apparently, the bishop wants to change the law he had made.  Instead of requiring that the prayer to St. Michael be recited after Mass, he wants to require the recitation of a prayer for vocations.  (Note for the record that he’s not trying to forbid the prayer to St. Michael; he’s just saying that it’s no longer mandatory.)  Is this a problem?

Well, a legislator can create a law, and so that legislator can likewise rescind his own law (either eliminating it entirely, or replacing it with a different law).  So if that’s what Susan’s bishop wants to do, that’s totally okay.  He issued a general decree creating the original law, and now he can issue another general decree changing it, and replacing it with a new law.  There’s no issue with this action at all.

But there is an issue with what Susan tells us next: “Not every parish has heard this letter.”  If that means even the parish clergy weren’t informed of the change, well, this constitutes a problem!  That’s because canon 7, right at the very beginning of the code, tells us how a law comes into being: “A law is instituted when it is promulgated” (emphasis added).  The next two canons explain what this means.  Universal laws (coming from the Pope) are promulgated by publication in the Church’s official commentary, the Acta Apostolicae Sedis, as per canon 8.1.  In the case of particular laws—like those issued by a bishop for his diocese—canon 8.2 tells us that the method of promulgation is determined by the legislator.  Perhaps it’s appropriate in a poor, rural diocese to post copies of it on the front door of every church for (say) two weeks, so that anyone can read it; or it might make sense to publish it in the diocesan newspaper, or to order every parish priest to read it at the end of every Mass next Sunday.  Canon 8.2 adds that as a rule, these particular laws have a grace period of one month—which is to ensure that everyone has the opportunity to hear about it before it actually becomes law.

If Susan’s bishop decided to create a new law, but for whatever reason it wasn’t promulgated in accord with canon 8.2 … then it isn’t a law.  This is only common sense: you can’t be bound to follow a law, if you were never told about it!  In other words, there’s no such thing in the Church as a “secret law.”  We looked at a very problematic issue of a non-promulgated law in “Did Benedict XVI Cover Up Sexual Abuse?”  No Catholic can be expected somehow to be psychic, and to know that he is obliged to do X, if the legislator never informed him that he is obliged to do X—and therefore, under such circumstances no Catholic can be penalized for failing to do X.  As we saw in “Do Catholic Parents Have to Raise Their Children as Catholics?” and “Tithing and Excommunication,” among others, the Church acknowledges the ancient Roman legal maxim, nemo ad impossibile obligari potest, “Nobody can be required to do the impossible.”

Before we rush to blame Susan’s bishop, it’s important to realize that we don’t know exactly what is happening in Susan’s diocese.  Who knows, it could be that the bishop’s new rule will be promulgated throughout the diocese next week, which would explain why Susan has only heard rumors of it so far.  If this is the case, then it goes without saying that nobody in the diocese is required to follow it yet.

Alternately, it could be that the bishop has sent a letter to all the parish clergy of his diocese, suggesting that they might like to pray for vocations after Mass, in addition to praying to St. Michael.  If this is what is happening, then there is no new law involved here, and there’s no need to promulgate what is merely a suggestion.  The bishop may have sent a letter or even just an email to all his priests, and they may choose to implement it or not.

Another possibility is that the bishop has indeed created a new law, mandating the prayer for vocations after all Masses, and has properly promulgated it … but some of the priests of the diocese have failed to acknowledge it, and/or to implement it.  If that’s the case, then the problem rests with the priests in question, and not with the bishop.  Regardless, no fault would rest with the people of these parishes, who obviously are dependent on their clergy to pass along any necessary information from their bishop.

What can we take away from all this?  For starters, not every word that comes from the pen of the bishop is law (although a frightening number of them around the world don’t always seem to understand this).  Many decrees issued by diocesan bishops, as well as the Pope himself, are not actually laws, being instead acts of administration which in many cases apply only to a particular individual in a specific case.  And if the bishop does issue a decree constituting a law, it must be promulgated in accord with canon 7, or else it has no effect.  Yes, we Catholics are expected to follow church law; but we have to be told what the law is first.

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