Benedict XVI’s speech to the Roman Rota on 21 January 2012 on the interpretation of canon law rej... more Benedict XVI’s speech to the Roman Rota on 21 January 2012 on the interpretation of canon law rejects positivism and a reading of the law as mere text. Drawing on this speech, the article comments on the interpretation of the law in the Church. Three historical fields are used for the purposes of comparative study: the interpretation of the Franciscan Rule; the origin of the European codification movement; and the initial application of the Pio-Benedictine Code. In all three historical contexts, the interpretation of the law is subject to a certain suspicion. A kind of positivism designed not to reject transcendence but to provide clarity in the law arose as a result. The article attempts to undo some basic mistakes concerning the interpretation of the law and to present as accurately as possible the teaching of Benedict XVI in this field
Much of British jurisprudence assumes that «trust» (use) arose independently of continental ius c... more Much of British jurisprudence assumes that «trust» (use) arose independently of continental ius commune. In fact, however, there are a number of interconnections that render civil and canonical law on the continent of equal bearing in the emergence of use. There was significant ecclesiastical influence on the Court of Chancery as regards equitable judgment of the rights of beneficiaries. Christian Courts also passed judgment on intergenerational trusts. Continental teaching held equal sway with common law until the seventeenth century. The codifying movement in Europe has always been markedly suspicious of all trust business, which is regarded as lacking in solidarity and potentially fraudulent. Canon law has tentatively conceded the possibility of fiduciary business. The model of charitable trust is set out in the current canon 1302, on the condition that the civil law of a given country accepts it.
Throughout history, from the venerabiles domus in the Justinian law, there have been canonical fo... more Throughout history, from the venerabiles domus in the Justinian law, there have been canonical foundations. The technical figure on which subsisted their subjectivity on the law has greatly varied. Currently are called universitates rerum (aggregates of things). The notions of universitas and universitas personarum were constantly employed in the law. The notion of universitas rerum however has not been used frequently. Its origin is not classic, but responds to the typology of juridical persons (corporations/foundations) made in the nineteenth century in Germany. It has improved CIC 1917 distinction between collegial and non-collegial juridical persons. However has still limited utility as all binary types.
Benedict XVI’s speech to the Roman Rota on 21 January 2012 on the interpretation of canon law rej... more Benedict XVI’s speech to the Roman Rota on 21 January 2012 on the interpretation of canon law rejects positivism and a reading of the law as mere text. Drawing on this speech, the article comments on the interpretation of the law in the Church. Three historical fields are used for the purposes of comparative study: the interpretation of the Franciscan Rule; the origin of the European codification movement; and the initial application of the Pio-Benedictine Code. In all three historical contexts, the interpretation of the law is subject to a certain suspicion. A kind of positivism designed not to reject transcendence but to provide clarity in the law arose as a result. The article attempts to undo some basic mistakes concerning the interpretation of the law and to present as accurately as possible the teaching of Benedict XVI in this field
Much of British jurisprudence assumes that «trust» (use) arose independently of continental ius c... more Much of British jurisprudence assumes that «trust» (use) arose independently of continental ius commune. In fact, however, there are a number of interconnections that render civil and canonical law on the continent of equal bearing in the emergence of use. There was significant ecclesiastical influence on the Court of Chancery as regards equitable judgment of the rights of beneficiaries. Christian Courts also passed judgment on intergenerational trusts. Continental teaching held equal sway with common law until the seventeenth century. The codifying movement in Europe has always been markedly suspicious of all trust business, which is regarded as lacking in solidarity and potentially fraudulent. Canon law has tentatively conceded the possibility of fiduciary business. The model of charitable trust is set out in the current canon 1302, on the condition that the civil law of a given country accepts it.
Throughout history, from the venerabiles domus in the Justinian law, there have been canonical fo... more Throughout history, from the venerabiles domus in the Justinian law, there have been canonical foundations. The technical figure on which subsisted their subjectivity on the law has greatly varied. Currently are called universitates rerum (aggregates of things). The notions of universitas and universitas personarum were constantly employed in the law. The notion of universitas rerum however has not been used frequently. Its origin is not classic, but responds to the typology of juridical persons (corporations/foundations) made in the nineteenth century in Germany. It has improved CIC 1917 distinction between collegial and non-collegial juridical persons. However has still limited utility as all binary types.
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