Folia Canonica 2. (1999)
PROCEEDINGS OF THE INTERNATIONAL CONFERENCE. - Vladimir Filo: Homily as a Specific Duty of Ordained Persons
290 VLADIMIR FILO The Papal Commission did not grant the faculty of dispensation to the diocesan bishop because of one of these reasons. Which one was it? Let us use the method of exclusion. According to c. 85. dispensation can be granted by those who possess executive power or to whom the power of dispensing has been given explicitly or implicitly either by the law itself or by lawful delegation. The diocesan bishop in the diocese possesses ordinary, proper and immediate power, as we read in c. 381, §1. Consequently he could give dispensation. In the pursuance of c. 90 for a lawful dispensation, if not granted by the legislator itself, a just and reasonable cause is required. It is not obvious from the questions laid before the Commission and the responses given whether the diocesan bishop might not grant dispensation, if he had just reason. The Commission does not refer to this cause, therefore we can exclude the second reason as well, according to which the diocesan bishop is not allowed to grant dispensation. Though the diocesan bishop can dispense from ecclesiastical laws (can 87, § 1), he cannot grant dispensation from all kinds of laws. He cannot dispense: • from laws that define essential constituents of juridical institutes or acts (c. 86), • from procedural or penal laws, • from those laws whose dispensation is especially reserved to the Apostolic See or to another authority (c. 87, § 1) What law can it be, if even the diocesan bishop cannot grant dispensation from it? It is neither procedural10, nor penal law, for it does not contain any penalty. Is it a law that is reserved to the Apostolic See then? The jurisdiction of the diocesan bishop is so wide that under some conditions he may also dispense from laws reserved to the Apostolic See. Canon 87, § 2 provides possibility to the ordinary to dispense from the laws reserved to the Apostolic See; it means that the diocesan bishop could grant dispensation. However nothing indicates that it is a law that is reserved to the Apostolic See. It also has to be mentioned that it is not a liturgical law (as if the liturgical norms created a new category of the laws). Liturgical laws are a part of the Code (c. 2) thus they can be classified under one type of the laws mentioned above.11 The motive behind the negative answer of the Commission is probably that the norm of c. 767, § 1 is neither merely disciplinary, nor merely ecclesiastical law (cf. c. 85). In the present case the diocesan bishop is not allowed to grant dispensation because it is a “constitutive law” that defines essential constituents of juridical 10It is enough here to refer to PAULUS VI, mp. De Episcoporum muneribus (n. IV), 15. VI. 1966, in AAS 58 (1966) 469: Leges ad processus spectantes, cum ad iurium defensionem sint constitutae, et dispensatio ab iis bonum spirituale fidelium directe non respiciunt, non sunt obiectum facultatis, de qua agitur in Decreto Christus Dominus, n. 8 b. il Cf. Fox, Vomelia (cf. nt. 7.), 8.
