T h e J u r i s t 78 (2022) 551–574

VELASIO DE PAOLIS† AND ANDREA D’AURIA*

The Dispensation (Canons 85–93)

Introduction
The dispensation is a singular administrative act of great importance in
the canonical system.1 It is the juridical instrument through which the
legal system mitigates the rigor of a norm issued for a generality of cases,
adapting it to concrete situations and the needs of individual cases, remov-
ing its binding value. Its use requires great prudence: the dispensation
must meet the concrete needs of the individual members of the faithful,
but also must not detract from the obligatory force of the norm in gen-
eral. Balance is thus found in the just cause that must exist in order to be
able to give a dispensation. In fact, on the one hand the existence of a just
cause justifies the fact that in the individual case the law is deprived of its
coercive force, and on the other hand recognizes its binding value in gen-
eral, where the just cause of the specific case does not exist.

* Velasio Cardinal De Paolis (1935–2017) was a professor of canon law at the Pontificia Uni-
versità Urbaniana (Rome), secretary of the Supreme Tribunal of the Apostolic Signatura, and
President of the Prefecture for the Economic Affairs of the Holy See. Andrea D’Auria is the
Procurator General of the Priestly Fraternity of the Missionaries of Saint Charles Borromeo
(FSCB) and an Ordinary Professor of canon law at the Pontificia Università Urbaniana. This text
is taken from Velasio De Paolis and Andrea D’Auria, Le norme generali. Commento al Codice di Dir-
itto Canonico, 2nd ed. (Rome: Urbaniana University Press, 2014) 256–281. It is translated and
lightly edited from the original Italian text by James Bradley. Comments by the translator are
presented below in brackets. (Footnotes are also conformed to this journal’s style.—Ed.)
1. Cf. Michel Bonnet, “La dispense dans le Code,” Les Cahiers du droit ecclésial 1 (1984) 51–
56, 101–113; José-Tomás Martin De Agar, “La dispensa de forma de una respuesta de la Comi-
sión de interpretes,” Ius Canonicum 26 (1986) 299–308; Winifried Aymans and Klaus Mörsdorf,
Kanonisches Recht. Lehrbuch Aufgrund des Codex Iuris Canonici (Paderborn-Munich-Vienna-Zürich:
Ferdinand Schöningh Verlag, 1991) 1:276.
552 THE JURIST

As a singular administrative act, the dispensation has its particularity

in the fact that the object of the dispensation is the law itself. Unlike the
previous code, which gave the competence to dispense only to the legis-
lator, the new code, simply considering the dispensation as an admin-
istrative act, entrusts its competence to subjects with executive power.
However, there is still some link with the previous legislation due to the
fact that if the superior grants the dispensation without just cause, he acts
invalidly unless he is also the legislator (cf. c. 90 §1).
As we have seen, the law enjoys the requirement of obligation. Con-
sequently, the duty to obey the law is not left to the arbitrary will or dis-
cretion of the individual member of the faithful, who must obey even if
in conscience he believes that there are reasons that would make it more
appropriate to avoid the imperative of the law. And by obeying the law
we are certain in conscience that we will be able to reach that good end
for which the law was arranged and willed.
Now it may be the case that a subject finds himself in certain con-
ditions in which following the law in its prescriptive provision does not
achieve that good that is the proper purpose of the law; on the contrary,
it may be detrimental to the subject himself. Paradoxically, in this concrete
case, the proper end of the law is more attainable and properly protected
if the law is not observed with its binding force. But this possibility of
evading the binding content of the law for the good of the faithful, and
ultimately, to better observe the law in what is its content of justice, must
be granted case by case by the authority of the Church through, precisely,
the granting of a dispensation if the existence of a just cause is recog-
nized—something that cannot be left to the conscience-based decision of
an individual person.
In giving us the norms on dispensation, the code tells us first of all
what it is (c. 85) and to whom it belongs; it then tells us what laws can be
dispensed (c. 86); it also determines the competences of ordinaries (cc.
87–88) and of parish priests (c. 89);2 it then speaks to us of the just cause

2. [The term “parish priest” is used as a translation of the Latin term parochus and the Ital-
ian term parroco. In the United States, this is usually translated as “pastor.” This English term,
whilst common in North America, lacks precision in the juridical identification of the ecclesi-
astical office of parochus with the institution of the parish in the manner demonstrated by c.
515 §1, which itself distinguishes between parochus and pastor. For this reason “parish priest”
is used throughout.]
 T H E D I S P E N S AT I O N 553

necessary in the dispensation (c. 90); finally, it gives the rules on the scope
of the exercise of the faculty to dispense, and on the interpretation and
termination of the faculty to dispense (cc. 91–93).

1. Canon 85: What is the Dispensation and Who May Grant It?
The dispensation is defined as “the relaxation of a merely ecclesiastical
law in a particular case.” As we will see, the institution of the dispensation
therefore does not extend to divine law, whether natural or positive, from
which it is never possible to dispense. The positive law also provides that
a dispensation is not possible even for all merely ecclesiastical laws; canons
86 and 87 will in fact, as we shall shortly see, place other limits on the pos-
sibility of dispensing from merely ecclesiastical laws.
It should also be noted that the dispensation is distinguished f rom
exemption from the law, from epikeia, and from the excuse of its obser-
vance. In fact, through exemption one is not obliged to observe the law,
as one finds oneself in a situation where one is not a subject of the law;
for example, those who are less than seven years old regarding the duty
to observe the merely ecclesiastical laws (c. 11). Epikeia is a higher norm
of the moral order which interprets the rule in the perspective of the end
of the law and of justice in an absolute sense, of which the concrete law
is an expression.
With the excusing of the observance of the law, one is not obliged to
it due to the particular situation in which one finds oneself; compliance
with the law in this instance would be too onerous. In fact, one is not
obliged to obey the laws if there is a proportionately serious inconvenience
(e.g., a sick patient is not bound to the precept of holy days). Being excused
from observing the law involves disobeying the law without the interven-
tion of the superior: the obligation of the law objectively ceases. But we
will return to this later.
By virtue of the dispensation, on the other hand, the law is not binding
because the competent superior removes the obligation of the law itself.
However, this is an exemption in a particular case. It is not a question of
the repeal of the law; this remains in force, but the compulsory character
is taken away in this particular case precisely for the reasons that are rec-
ognized in the concrete situation.
The singular character of the situation must be understood in the same
sense as the particularity of a singular administrative act; the singularity
554 THE JURIST

can consist either in the singularity of the individual to whom the dispen-
sation is given, or in the singularity of the group, or in the singularity of
the occasion. So it is still single or particular even if an entire community
is dispensed, such as a diocese, but only for some cases and for a given time.
The dispensation “can be granted by those who possess executive
power.” In this regard, this legislation represents a “Copernican revolu-
tion” with respect to the provisions of the Pio-Benedictine code. In the
former code, in fact, the power of dispensation was reserved to the legis-
lator, his successors, his superior, and obviously also those to which power
was granted (cf. 1917 CIC cc. 80–81).3
This provision was merely the application of the general principle set
out in canon 80 and, in harmony with this provision, in canon 82, by which
the diocesan bishop and other ordinaries could dispense from diocesan
laws—that is, from those laws of which they themselves were the authors.
Consistent with this principle, the possibility of dispensation by ordinaries
for the laws issued by the Supreme Pontiff for a particular territory was
excluded, without prejudice to the final provision of canon 81. With
regard to universal laws, therefore, only the Supreme Pontiff could grant
such a dispensation, without prejudice to the possibility of a complex
system of faculty concessions.4
The current legislation considerably simplifies the matter, taking up
the principle in fact already foreseen in the decree Christus Dominus of the
Second Vatican Council, which provided for the possibility of dispensing
by individual bishops.5 This is therefore a significant change with respect
to the 1917 code, which, as we have just seen, gave the faculty to dispense
only to those who held legislative power.

3. As regards the discipline of dispensation in the old code, see Raoul Naz, “Dispense,” in
Dictionnaire de droit canonique (Paris: Letouzey et Ané, 1953) 4:coll. 1284–1296; Gommar
Michiels, Normae generales iuris canonici. Commentarius libri I Codicis Iuris Canonici (Paris-Tour-
nai-Rome: Typis societatis s. Ioannis Evangelistae-Desclée et socii, 1949) 67ff; Felix Cappello,
Summa Iuris Canonici (Rome: Tip. Pontif. Univ. Gregoriana, 1945) 1:96–100; Franz Xavier Wernz
and Peter Vidal, Ius Canonicum (Rome: Apud aedes universitatis Gregorianae, 1938) 1:463–475.
4. See in this regard Ludovicus Buijs, “De potestate episcoporum dispensandi,” Periodica
56 (1967) 88–115; Naz, coll. 1284–1296.
5. Christus Dominus 8b reads: “Singulis Episcopis dioecesanis facultas fit a lege generali
Ecclesiae in casu particulari dispensandi fideles in quos ad normam iuris exercent auctoritatem,
quoties id ad eorum bonum spirituale conferre iudicent, nisi a Suprema Ecclesiae Auctoritate
specialis reservatio facta fuerit.” Second Vatican Council, decree Christus Dominus, October 28,
1965: AAS 58 (1966) 673–696.
 T H E D I S P E N S AT I O N 555

What, then, are the limits of competence depending on the individual

offices? Below the legislator we can speak of the competence of diocesan
bishops and ordinaries. It should be noted that these are competences and
faculties connected with the same office and are therefore ordinary (cf. c.
131 §1). However, in addition to the powers of the office, there may be
others granted by the law that are not part of the office as such. Thus,
later on we will speak of the faculty of dispensing on the part of the parish
priest: these are faculties granted by the law to the parish priest (cf. c. 89)
but which do not properly belong to the office of parish priest. Finally, it
is possible that others may have the faculty to dispense by virtue of a del-
egation received according to the norm of canons 137–138.

2. Canon 86: Indispensable Laws

As we have already mentioned, a limitation that is not reported by the
code but which is nonetheless part of the juridical-moral patrimony of
the Church consists in the impossibility of dispensing from the divine and
natural law. In this context, in fact, only its divine author could intervene,
relaxing the cogency of what he himself has ordered.
Furthermore, it is not possible to grant exemptions from those laws
that describe the essential elements of institutes or juridic acts.6 Canon 86
in fact states that “laws are not subject to dispensation to the extent that
they define those things which are essentially constitutive of juridic insti-
tutes or acts.”7
Therefore, those laws that are constitutive of juridic acts or institutions
cannot be dispensed with; that is, laws that determine essential elements.
If this were allowed, the juridic act or institution in question would be
juridically undone. This is also demonstrated by the fact that the dispen-
sation is always a singular act that intervenes in a specific case, governing

6. In this regard, see Andrea D’Auria, “Alcune considerazioni sul problema della leggi irri-
tanti ed inabilitanti nella prospettiva del rapporto tra i canoni 10 e 124 del CIC,” in L’atto giuridico
nel diritto canonico (Vatican City: Libreria Editrice Vaticana, 2002) 166–168. See also idem, “Il
diritto consuetudinario nella vita della Chiesa,” Euntes Docete 61 (2003) 76.
7. For exegesis on c. 86, see Eduardo Baura, “Caput V. De dispensationibus,” in Comentario
exegético al Código de Derecho Canónico, ed. Ángel Marzoa, Jorge Miras, and Rafael Rodriguez-
Ocaña (Valencia: Edicep, 1996) 1:681–682 (hereafter Comentario exegético); Francisco Javier Urru-
tia, Les normes générales (Paris: Tardy, 1994) nn. 474–477. All English translations from this code
are taken from Code of Canon Law. Latin-English Edition: New English Translation (Washington,
DC: CLSA, 2020).
556 THE JURIST

in a certain way the juridical relationship between two subjects or between

a subject and the authority of the Church. But the dispensation can never
affect the juridical structure of the act8 since otherwise, instead of oper-
ating as a relaxatio legis in the individual case, it would change the juridical
structure of the law.9
Furthermore, normally the law that is dispensed is a law that can also
affect the validity of the juridical act (c. 10); remember that the nullifying
and incapacitating laws of the human law are certainly dispensable. The
subject asks for his dispensation in order to be able to validly place an act
that would otherwise be null and void. Any dispensation from the consti-
tutive elements would instead place itself on a level of existence-nonexis-
tence of the juridical act. It would therefore be inconceivable that an act
of the ecclesiastical authority could intervene to remove the juridical iden-
tity of an act or an institution, thus making it legally nonexistent. The pos-
sibility of dispensation in such cases would lead to a juridical nominalism,
since a mere nomen would be conferred on an institution or an act that
does not actually exist, or that is configured as something completely dif-
ferent from the juridical typology of the abstract case.
According to some authors, the norm of canon 86 could even be con-
sidered superfluous since it is in the order of things that there is no excep-
tion to what defines the essence of acts or institutes.10 It is perhaps for
these reasons that this norm was not found in the Pio-Benedictine code.
The provision of the current canon 86, however, was already contained
in the motu proprio De Episcoporum muneribus which, in this regard, reads
as follows: “Facultas autem dispensandi exercetur circa leges praecipientes
vel prohibentes, non autem circa leges constitutivas.”11
This principle was probably introduced in the new legislation due to
the need to avoid possible abuses, given that, as we have already seen, with

8. There are various examples of this in the doctrine. One cannot, for example, exempt
one from taking vows to become part of an institute of consecrated life, or from consent to
celebrate a valid marriage, or from ordination to acquire to the clerical state.
9. Urrutia, no. 477.
10. Cf. Baura, “Caput V. De dispensationibus,” 681, sub c. 86.
11. Cf. De Episcoporum muneribus, in Enchiridion Vaticanum. Documenti ufficiali della Santa
Sede 1963–1967 (Bologna: Edizioni Dehoniane, 1977) 2:714. Commenting on this, Robleda adds:
“Declarat simpliciter id quod ex natura rei postulatur: sane, ab obligationibus fit dispensatio;
a conceptibus sive notionibus ea non intelligitur.” Olís Robleda, “Leges constitutivae et nullitas
actus iuridici,” in Quaestiones disputatae iuridico-canonicae (Rome: Pontifical Gregorian Univer-
sity, 1969) 81.
 T H E D I S P E N S AT I O N 557

the new code the power to dispense has passed from the competence of
the Holy See to that of individual diocesan bishops, except for some
reserved matters. In this way the intention was to limit and regulate the
power exercisable by each individual bishop.
It should be noted that the legislation envisaged for each juridic act or
institution does not expressly say which are the constitutive elements
required for the existence of the act itself. It is therefore the task of doc-
trine to identify what these essential aspects are. The juridic institution is
therefore in a general sense a figure or an institution implicitly delineated
by the law itself or otherwise specified by it. In this figure some elements
are considered essentially constitutive, so if one were missing, its config-
uration would be distorted. Reflect, for example, on the institution of
domicile as determined by the law itself. Or think of the constitutive ele-
ments of the state of consecrated life (cf. c. 573 §2).12 Some constituent
elements may be of natural law, others instead of positive law.13
We may then ask ourselves whether it is possible to dispense with a
law that permits a specific exercise, or grants a particular right—for exam-
ple, canon 933. The dispensation from a law that authorizes one to act in
a certain way, thus prohibiting the exercise of this right or faculty, does
not seem admissible.

3. Canons 87–88: The Faculty of Dispensing by Diocesan Bishops, Local

Ordinaries, and Other Ordinaries, Both from Universal and Particular Laws,
Whether Proper or Not Proper
As we have already mentioned, the motu proprio of Paul VI De Episcopo-
rum muneribus rearranged the matter of the dispensation by derogating
from the Gasparri codification, and took up in full the conciliar teaching
of Christus Dominus 8.14 The principles guiding the revision of the code,
following the conciliar indications, specified that the dispensation from
the universal laws of the Church should not depend only on the Holy
See and that in the new code the office of the bishop and the scope of

12. Canon 605 provides for the possibility of instituting new forms of consecrated life,
the introduction of which requires the intervention of the Apostolic See—that is, of the Holy
Father, precisely because it is a question of providing for new constitutive elements. Cf. Velasio
De Paolis, “Le nuove forme di vita consacrata,” Informationes SCRIS 19 (1993) 72–95.
13. For example, c. 1055 speaks of constitutive elements of the institution of marriage
which are of divine law.
14. Cf. De Episcoporum muneribus, nn. 709ff.
558 THE JURIST

his power were positively defined, precisely with reference to Christus

Dominus 8.15
According to the provisions of this motu proprio and of canon 87 §1
of the current code, every bishop—and not the local ordinary—has the
ordinary and proper power to dispense from all universal and particular
laws with the clarifications that we will now briefly analyze. The vicar
general and episcopal vicar are therefore excluded f rom the power to
grant the dispensation, except by delegation of the faculty to dispense
granted by the same bishop, and the power of dispensation in the hands
of those who are equivalent in law to a diocesan bishop is reserved.16
To understand the meaning of the words diocesan bishop, local ordinary,
and proper ordinary, we refer to canon 134. The word “ordinary” is the
broadest: it also includes all local ordinaries and diocesan bishops. The
code describes their faculty of dispensing by distinguishing the laws of
the Apostolic See from others. We can see this in detail in the prescript of
canon 87.

3.1. Laws of the Apostolic See from Which Diocesan Bishops and Ordinaries
in General Can Dispense

3.1.1. Canon 87 §1: The Diocesan Bishop

“A diocesan bishop, whenever he judges that it contributes to their spiritual
good, is able to dispense the faithful from universal and particular disci-
plinary laws issued for his territory or his subjects by the supreme
authority of the Church. He is not able to dispense, however, from proce-
dural or penal laws nor f rom those whose dispensation is specially
reserved to the Apostolic See or some other authority” (c. 87 §1). These
are laws issued by the Holy See and which are within the competence of
the diocesan bishop, whether they are universal laws or particular laws,
whether they are personal or territorial. However, the competence
extends, as we will see in just a moment, only to disciplinary laws.
Furthermore, the bishop cannot grant a dispensation from penal and
procedural laws. This is evident by reason of public order, as the relaxation
of these norms would lead on the one hand to a very serious violation of
the fundamental and inalienable rights of the human person, and on the

15. Cf. Communicationes 1 (1969) 4.

16. Cf. De Episcoporum muneribus, no. 713 and c. 368. For the legal consequences of such
a distinction, see Aymans and Mörsdorf, 276–277.
 T H E D I S P E N S AT I O N 559

other hand to the creation of possible situations of serious disorder within

the ecclesial body.17
Furthermore, as the same canon 87 §1 states, the bishop cannot dis-
pense with those matters that are expressly reserved to the Apostolic See.
De Episcoporum muneribus offered an exhaustive case list of these. With the
current code, we find the distribution here and there of those matters that
the Holy See has reserved to its proper competence.18 We are dealing here
with laws that have a particular significance in the life of the Church and
over which the Holy See desires to have particular control. We note that
these are laws whose dispensation is in a special way reserved; in them-
selves, dispensation from all the laws of the Holy See of which we are
speaking are reserved to the Holy See itself. However, the law grants
bishops the faculty to dispense: these are therefore no longer reserved laws.
Those for which the reservation remains are then reserved in a special way.
The faculties of dispensing are connected with the episcopal office
itself, insofar as the bishops in their own dioceses are true pastors and must
have all the ordinary means for the pastoral guidance of their dioceses (cf.
c. 381 §1). It must be admitted that the code also went beyond what the
council and the guiding principles indicated. It is to be remembered here
that these faculties, insofar as they are connected with the episcopal office,
are ordinary.
The exercise of this faculty is left to the discretion of the bishop him-
self: “as often as he judges that it contributes to the spiritual welfare of
the faithful” is the very expression found in the decree Christus Dominus
8. This passage underlines the meaning of the norm in the life of the
Church, which is to be at the service of the spiritual benefit of the faithful.
There must therefore be a specific cause—the just cause which we will see
below—which justifies a dispensation in a concrete case.
Indeed, it cannot be forgotten that the law of the Church is already
for the spiritual good of the faithful. By virtue of the institution of dis-
pensation, it is a question of evaluating the spiritual good of the individual

17. Already in De Episcoporum muneribus it is affirmed: “Leges ad processus spectantes,

cum ad iurium defensionem sint constitutae, et dispensatio ab iis bonum spirituale fidelium
directe non respiciat, non sunt obiectum facultatis, de qua agitur in Decreto Christus Dominus,
n. 8b.” De Episcoporum muneribus, n. 714.
18. For example, with regard to matrimonial matters, c. 1078 §2 provides that only the
Holy See can dispense from the impediment of conjugicide (c. 1090), from a public perpetual
vow of chastity made in a pontifical institute, and from the impedimentum ordinis (c. 1087).
560 THE JURIST

in a specific case, and seeing if there is a just cause that ensures that the
spiritual good of the faithful is achieved precisely with the exemption from
the obligation of compliance with the law.
As we shall see, the scope of the faculty to dispense on the part of the
diocesan bishop extends to all persons who are in his territory, whether
they are his subjects or not. For one’s own subjects, the faculty to dispense
can also be exercised outside the territory (cf. c. 136).
Finally, we recall that, with regard to the power of dispensation of the
diocesan bishop, there was an authentic interpretation in 1985. The Pon-
tifical Commission for the Interpretation of the Code declared that the
diocesan bishop cannot dispense, except in the case of the danger of death
(cf. c. 1079) or from cases already provided for by the juridical order (cf.
c. 1127 §2), from the observance of canonical form foreseen for the valid
celebration of marriage between two Catholics.19
We would like here to make a brief study about an expression con-
tained in canon 87 §1 to which, strangely, the post-codal doctrine has ded-
icated little interest. In fact, the legislator says that the diocesan bishop
can dispense, if the required conditions are met, from disciplinary laws.
Why this expression? How should it be interpreted? Would it not have
been easier to talk about ecclesiastical laws or merely ecclesiastical ones tout
court, as a consulter indicated during the preparatory work?20
As we said before, the authors pay little attention to this ques-
tion.21 Most of them affirm that the expression disciplinary laws is a simple

19. The question posed read as follows: “Utrum extra casum urgentis mortis periculi Epis-
copus dioecesanus, ad normam can. 87, § 1, dispensare valeat a forma canonica in matrimonio
duorum catholicorum.” The response was negative. Cf. AAS 77 (1985) 771, III. In this regard,
see also Communicationes 17 (1985) 262.
20. Communicationes 19 (1987) 45.
21. Urrutia, for example, does not even pose the question; cf. Urrutia, nn. 486–488. Socha
clearly states that the expression disciplinary laws includes all laws except divine and constitutive
ones; cf. Hubert Socha, “Caput V. De dispensationibus,” in Münsterischer Kommentar zum Codex
Iuris Canonici, ed. Klaus Lüdicke (Essen: Ludgerus Verlag, 2003) 1:87/4. Citing the periodical
Communicationes, Baura is equally explicit. In this regard he states: “In fact, the adjective disci-
plinary does not add anything to the concept of merely ecclesiastical law, since it only excludes
laws referring to faith and morals, which are not merely ecclesiastical” (Baura, “Caput V. De
dispensationibus,” 685–686, sub c. 86). And elsewhere the same author affirms: “In short, judg-
ing f rom the use made of the expression ‘disciplinary law’ in canon law, I think it can be
deduced that it includes any law deriving from a positive decision of the ecclesiastical legislator:
that is to say, disciplinary laws are a counterpoint to those laws that declare the constitution of
juridic acts and institutions, and the laws that contain norms of divine law.” Eduardo Baura,
 T H E D I S P E N S AT I O N 561

semantic variant of the term ecclesiastical laws. These authors therefore

deduce that the bishop can dispense from any law as long as it is not nat-
ural, constitutive, penal, procedural, or reserved.22 In all sincerity, this
seems to us an interpretation that is a little too permissive as it would lead
to an exercise of power that could at times be arbitrary, also taking into
account the fact that the bishop can grant a dispensation in his own favor
(c. 91).
In this regard, we therefore allow ourselves to formulate the following
considerations. First of all, we note that the term leges disciplinares already
occurs in De Episcoporum muneribus where it is stated that “nomine legis
generalis Ecclesiae veniunt leges dumtaxat disciplinares”; and it is inter-
esting to note here the term general law, while the term merely ecclesiastical
law is not used at all.23
Furthermore, in our opinion, what is found in the debates during the
preparatory work for the new code is of great interest. A consulter pro-
posed the abrogation of the term “disciplinary” precisely because, as some
authors24 say today, it is a simple pleonasm or synonym of the term eccle-
siastical, since, it is stated, all the laws in the Church tend to dictate a dis-
cipline.25 However, this proposal was not accepted.26 In fact, it was replied
that the expression mere ecclesiasticae was already foreseen in the general
formulation of the current canon 85.
But, in our opinion, the distinction here is not accidental. In canon 85,
which has value as a preliminary norm, when speaking of dispensation in
general it is stated that whoever enjoys executive power in the Church can

La dispensa canonica dalla legge (Milan: Giuffrè, 1997) 251. [These quotes are translated for inclu-
sion here. At first glance, the Italian word contrappongono used in the second quotation suggests
opposition between disciplinary laws on the one hand, and constitutive laws and divine law on
the other. A translation that frames this in a pejorative way would seem to fail to take account
sufficiently of canonical doctrine.]
22. In reality, Baura, in his valuable essay on dispensation, raises the problem of liturgical
laws and whether, as some authors argue, they should not perhaps be included among the dis-
ciplinary laws. In the end, the author concludes that the opposite is true. Cf. Baura, La dispensa
canonica dalla legge, 250–251. Contra Buijs, 106.
23. De Episcoporum muneribus, n. 715.
24. Cf. Baura, “Caput V. De dispensationibus,” 685–686, sub c. 87.
25. “Placet, dempto adiectivo ‘disciplinaribus,’ proponente Rev.mo secundo Consultore,
cum omnes leges in Codice disciplinares sint, quia Ecclesiae disciplinam constituunt” (Com-
municationes 19 [1987] 45).
26. Ibid.
562 THE JURIST

dispense from mere ecclesiasticae laws. By applying and detailing this prin-
ciple, it is affirmed in canon 87 that the diocesan bishop can only dispense
from both universal and particular leges disciplinares, with the limitations
already analyzed. In the second paragraph of canon 87, it is then stated
when any ordinary can dispense in an extraordinary case; subsequent
canons say when the ordinary of the place can dispense from diocesan
laws (c. 88) and finally when this power belongs to the parish priest, pres-
byters, and deacons (c. 89). If the law presents these specifications in its
own text, the scholar cannot omit them in interpreting: lex ubi voluit dixit,
ubi noluit tacuit.
It cannot therefore be said that the code does not know this distinction
for the simple fact that such an objection was raised during the prepara-
tory work. Indeed, the very fact that, despite this proposal made by the
consultor, the codal system has maintained such a terminological and con-
ceptual distinction between ecclesiastical laws and disciplinary laws, indicates
that a relationship of genus and species can be found between them. In
other words, if all disciplinary laws are ecclesiastical, not all ecclesiastical
laws are disciplinary.
But what, then, is the specificity of the term disciplinary law? The term
discipline recurs various times in the code both as a synonym of subject
or field of study, research, or teaching, and in the sense of what can regu-
late the behavior of an individual or of a group, which is what we are
interested in here.27 This second meaning recurs in a particular way in the
codal regulation of seminary life and in the part concerning institutes of
consecrated life.
Canon 17 states that if the meaning of a term remains obscure, one
must first of all have recourse to parallel places—that is, to those contexts
in which the same subject is dealt with or the same terms are used. Well,
as we have just mentioned, the term “discipline” is found precisely in the
law of religious. In canon 587, concerning the laws of foundation of an
institute, we find an interesting juxtaposition. This canon, in its first para-
graph, reads as follows: “To protect more faithfully the proper vocation
and identity of each institute, the fundamental code or constitutions of
every institute must contain, besides those things which are to be observed
as stated in canon 578, fundamental norms regarding governance of the

27. This occurs above all in the codal matter of Book II concerning the formation of clerics
and in Book III concerning the munus docendi of the Church.
 T H E D I S P E N S AT I O N 563

institute, the discipline of members, incorporation and formation of

members, and the proper object of the sacred bonds.” We note with inter-
est that in this norm the term “discipline”—understood as a rule of con-
duct—is mentioned distinctly from the term “governance” (regimen). Here
we want to emphasize that, in the law of consecrated life, “the norms that
are disciplinary concern precisely the discipline of the members— that is,
the personal duties, the norms at the service of the sanctification of the
members of the institutes, regulating the rhythm of daily life both at the
individual and community level, such as fasting, abstinence, participation
in common acts, the liturgy of the hours, if the obligation derives only
from the constitutions, etc.”28
But we allow ourselves here to deepen the duplicity of this concept.
When we talk about laws of governance, we must understand the set of
norms that regulate the governance of the institute; its participatory and
elective structure; the offices that exist within it and their conferral; the
rules concerning the economic administration of the institution; the legis-
lation on the relationship between the individual and the institution itself
and therefore the admission, incorporation and its relative times; and
finally, any dismissals.
But if it is true that everything is directed to the good of the person,
the disciplinary laws have more directly as their purpose the making pos-
sible of the sanctification of the individual subject, of his ascetic practice,
and of his personal conversion. In fact, “dispensation from these norms
does not present significant difficulties and inconveniences, since these
norms are made to help the person in his journey of fidelity to God and to
the institute”; the same code in many cases provides for the possibility that
the internal authority, in certain cases, may grant exemption from them.29
In summary: the religious superior cannot dispense from the laws of
governance, but simply from the disciplinary laws, provided that the good
of the faithful requires it. The superior could not, for example, dispense
from those laws that regulate the functioning of his council, the elective

28. Velasio De Paolis, La vita consecrata nella Chiesa (Bologna: EDB, 1992) 106.
29. Cf. ibid. Numerous authors emphasize the difference in c. 587 between the term dis-
ciplinary and the term governance, but strangely no one comes to such a conclusion regarding
the possibility of dispensation. Cf. Elio Gambari, I religiosi nel Codice. Commento ai singoli canoni
(Milan: Àncora, 1986) 54–56, sub c. 587; Jean Beyer, Il diritto della vita consacrata (Milan: Àncora,
1989) 94–95; Tomás Rincón-Pérez, “Titulus I. Normae communes omnibus institutis vitae con-
secratae,” in Comentario exegético, 2/2:1437–1438, sub c. 587.
564 THE JURIST

procedures or the appointment to ecclesiastical offices within the institute,

the period of time (interstices) that must elapse before definitive profession,
and so on.30 We must immediately specify here that the religious superior
can indeed dispense from the governing laws proper to the institute, but
only where this possibility of dispensation is provided for by the constitu-
tions themselves; in their silence, this power is not recognized.
Now we believe that, as seen up to now, the use of the term disciplinary
laws in the context of canon 87 §1 is not accidental; it is not an oversight
of the legislator, nor a simple terminological variant with respect to the
term merely ecclesiastical laws. We therefore infer that also in this area, with
respect to the power of governance of the diocesan bishop, it is necessary
to distinguish between disciplinary laws and laws of governance, and we
believe that the bishop cannot dispense from the latter. For example, the
diocesan bishop could not exempt himself from the obligation to ask the
consent of the council for economic affairs and the college of consultors
to place acts of extraordinary administration (c. 1277), nor from the duty
to establish the presbyteral council (c. 495). However, the bishop could
dispense from diocesan laws of governance since, in this case, he himself
is the legislator.
Mörsdorf 31 attempts to specify what disciplinary law means, and
affirms that such laws directly concern the faithful, and have the scope of
binding them to do or to omit something, and that therefore all those laws
that concern the faithful indirectly must be excluded from the concept of
disciplinary laws. And we add that these seem to us to be precisely laws
of governance, in that they cannot be considered as prescriptions that
directly concern the spiritual life of the faithful.32
Socha,33 affirming that we must exclude from the category of disci-
plinary laws all those legislative prescriptions that concern only indirectly
(mittelbar) the faithful, in fact says that only disciplinary laws are immedi-
ately connected with the spiritual good of the faithful, and therefore dis-

30. In this sense, this is the practice followed by the Congregation for Institutes of Con-
secrated Life and Societies of Apostolic Life, which reserves to itself the possibility of dispensing
from the laws of governance, not recognizing that religious superiors have such power.
31. Cf. Aymans and Mörsdorf, 277.
32. It is interesting to note here that, as we shall see shortly, Socha also uses the same
expression and terminology as Mörsdorf, without however realizing the distinction; cf. Socha,
1:87/4.
33. Cf. ibid.
 T H E D I S P E N S AT I O N 565

pensable by the diocesan bishop. In other words, there is no dispensation

from the laws of governance precisely because it is difficult to find in such
an area the need to proceed with a relaxatio legis for the spiritual good of
the faithful, since they concern more than anything else the fundamental
structure of the governance of the Church.
An interesting note: in the former code, as we have already seen briefly,
only the Supreme Pontiff could dispense from universal laws without prej-
udice to the possibility of granting this faculty of dispensing a iure or by
delegation. And it is interesting to note here that this concession also took
place, in fact, for the benefit of diocesan bishops34 and religious super-
iors35 only for matters concerning disciplinary laws. Therefore, already in
the systematics of the former code, only the Supreme Pontiff could dis-
pense from laws of governance. If, on the other hand, this faculty was
granted to the ordinary, it was limited to disciplinary laws alone.
We allow ourselves here to make a further consideration which, in
our opinion, is negligible. Canon 87 §1 affirms that the bishop can dispense
from the laws whenever he considers that it conforms to the spiritual good
of the faithful: “quoties id ad eorundem spirituale bonum conferre iudi-
cet.” We believe that it is difficult to argue that any dispensation from laws
of governance can contribute to the good of the faithful. The laws of gov-
ernance are normally placed for reasons of public order, for the good
administration of the power that the Church has, to guarantee the nec-
essary certainty of the law in intersubjective juridical relations, and for the
defense of the fundamental rights of the person. Here we do not have the
time and space necessary to adequately investigate this theme, but we
believe that the very expression “quoties id ad eorundem spirituale bonum
conferre iudicet” excludes the possibility that the bishop may grant a dis-
pensation from laws of governance as these go beyond what is possible
concerning, more specifically, the spiritual good of the faithful.
Here, too, we must recall the situation in the law which provides in
some cases for the possibility of recognizing that the diocesan bishop may

34. For example, the bishop could dispense from the obligation of a cleric in formation
to reside in the seminary (1917 CIC c. 972) or the ban on reading prohibited books (1917 CIC
c. 1402). Cf. Michiels, Normae generales, 707–708.
35. The religious superior had the power, for example, to grant a dispensation from the
obligation of abstinence, from fasting or from the observance of a feast (1917 CIC c. 1245 §3),
as well as from the obligation for a religious to live in a house of the institute (1917 CIC c. 514
§1). Cf. Michiels, Normae generales, 717–718; Wernz and Vidal, 1:471.
566 THE JURIST

dispense even from those laws that are not purely and simply given for
the sanctification of the individual faithful. In this regard, the example of
matrimonial impediments seems to us to be significant. These incapaci-
tating laws are not strictly provided for by the legislator for the spiritual
good of the individual faithful, but above all for reasons of public order
(e.g., the impediment of conjugicide in c. 1090) or genetics (think, e.g.,
of the impediments of consanguinity in c. 1091) or to protect the common
sense of decency (impediment to public honesty in c. 1093). Such inca-
pacitating laws are therefore to be considered laws of governance and pre-
cisely for this reason the codal discipline feels the need to provide expressly,
with separate legislation, the possibility of dispensation by the local ordi-
nary (c. 1078), without prejudice, of course, to the three reserved cases
seen above (c. 1078 §2).
We therefore feel we can affirm that the equation between disciplinary
and ecclesiastical laws is at least a little hasty and not sufficiently founded,
and that this assimilation would in any case lead to a certain confusion
within the governance activity proper to the authority of the Church.

3.1.2. Canon 87 §2: Ordinaries

It should be remembered that the term “ordinaries” tout court also includes
diocesan bishops and local ordinaries. Furthermore, the major superiors
of clerical religious institutes of pontifical right and of societies of apostolic
life are also included, provided they are clerical and are of pontifical right
(c. 134 §1), as well as their respective vicars. They can dispense from the
same laws mentioned in §1—that is, from purely disciplinary laws, exclud-
ing penal and procedural laws. However, the faculty is wider because the
ordinary can dispense from these laws even if the dispensation is reserved
to the Apostolic See.36 However, specific conditions are required:
1) if recourse to the Holy See is difficult: recourse is considered difficult
when the competent superior for dispensation cannot be reached by letter.
The telephone is in fact considered an extraordinary means which one is
not obliged to use. Likewise, there is no obligation to appeal to the nuncio,
even if it is known that he has the faculty to dispense in the name of the
Holy See. Finally, this is not a question of an impossible recourse, but a
difficult one;

36. E.g., they are reserved to the Apostolic See in cases provided for in the following
canons: cc. 290 §3; 291; 691 §2; 1031 §4; 1047; 1078; 1079 §1; 1165; 1203; 1698.
 T H E D I S P E N S AT I O N 567

2) there is danger of grave harm: the seriousness of the damage must be

commensurate with the importance of the law itself. In any case, certain
damage is not required and therefore a probable danger of serious damage
is sufficient; it can be a question of spiritual, material, or economic damage;
3) provided that it concerns a dispensation which the Holy See is accustomed
to grant under the same circumstances: since it is a question of dispensations
from the laws of the Apostolic See, the ordinaries cannot go beyond the
practice of the Apostolic See itself. What are the laws and circumstances
in which the Holy See is accustomed to dispense must be deduced from
the practice or instructions of the Holy See.
The faculty to dispense f rom the obligation of celibacy is always
excluded, in accordance with canon 291. This dispensation in fact is
granted only and solely by the Roman Pontiff, provided that they are
priests. There are in fact cases in which the Holy See has given the faculty
to grant a dispensation from celibacy for a deacon. But even in these cases
it is a question of faculties granted that do not derive from canon 87 §2.
The canon says nothing about the persons over whom the ordinary
can exercise this competence. The general principles apply: in one’s own
territory towards all the faithful, whether they are subjects or not; outside
one’s own territory, a dispensation can be granted only in favor of one’s
own subjects (cf. c. 136). If it is a question of ordinaries without territory,
such as religious major superiors, then only towards their own subjects
and this everywhere.

3.2. Canon 88: Providing for the Dispensation of Laws That Are Not of the
Apostolic See
1. Local ordinaries can dispense both from diocesan laws and from laws
given by a plenary or provincial council, or by the episcopal conference.
As regards diocesan laws, the competence is obvious since the bishop him-
self is the legislator. It should be noted, however, that competence extends
to all local ordinaries, therefore also to episcopal vicars and vicars general
insofar as these, although they do not have legislative power, do have
executive power; let us remember that the dispensation is an act of
executive power.37 As regards the other laws, it can be argued as follows:
if bishops can dispense from pontifical laws, a fortiori they can dispense
from laws given by an inferior authority.

37. However, keep in mind c. 90 §1.

568 THE JURIST

However, it should be specified that here we are dealing with all laws,
without the exceptions provided for in canon 87 §1: penal and procedural
laws are therefore also included, provided of course they are particular laws.
On the other hand, the laws mentioned in canon 86 are excluded—that is,
those constituting institutes and juridic acts in their essential elements and
obviously laws of governance, from which the Holy See can always dis-
pense—since dispensation from such laws given by bodies such as the ple-
nary or provincial council, or the episcopal conference, is inconceivable.
For the dispensation from diocesan laws, no criterion is indicated: the
general principle is that of canon 90. For the other laws, on the other hand,
it is said: “whenever he [the local ordinary] judges that it contributes to
their spiritual good.” This clause is to be understood in the way explained
above with regard to canon 87.
2. In the case of other laws, the code does not establish anything. It
will therefore be necessary to consult particular law and comply with its
provisions. If these are lacking, it will be possible to follow by analogy
some principles given by the code itself in the canons examined. As we
have already seen, the dispensation from laws constituting the essential
elements of juridical institutions and juridical acts is never admissible. The
dispensation should also be limited to purely disciplinary rules, if granted
by subjects who are not competent in enacting the law from which one
wishes to dispense.

4. Canon 89: The Parish Priest, Presbyters, or Deacons

The parish priest, presbyters, or deacons do not have by virtue of their
office any faculty to dispense from the laws of the Church, whether uni-
versal or particular. In fact, they do not properly enjoy the power of gov-
ernance in the external forum necessary to issue administrative acts such
as a dispensation. However, there are cases where the law expressly grants
this right. For example, the code provides in canon 1245: “For a just cause
and according to the prescripts of the diocesan bishop, a pastor can grant
in individual cases a dispensation from the obligation of observing a feast
day or a day of penance or can grant a commutation of the obligation
into other pious works. A superior of a religious institute or society of
apostolic life, if they are clerical and of pontifical right, can also do this in
regard to his own subjects and others living in the house day and night.”
As regards the faculties granted in the internal forum, the faculties given
 T H E D I S P E N S AT I O N 569

for the remission of a penalty could be recalled in particular, even if it is

not strictly speaking a dispensation. In any case, it involves the issuance
of singular administrative acts.38

5. Canon 90: Necessity of a Just Cause for Conceding the Dispensation

Canon 90 §1 speaks of the necessary existence of a just and reasonable
cause in order to be able to dispense from ecclesiastical laws. Its justness
and reasonableness must be commensurate with the circumstances of the
case and the gravity of the law from which one is dispensed. The need for
a just and proportionate cause to grant the dispensation results from the
very nature of the laws and from the meaning they have in the life of the
faithful. The law by its nature must be reasonable, precisely because it
derives from the requirement of a service to the faithful in the pursuit of
their spiritual end; the law is not the superior’s will. To depart from it
requires that there is a motive for which it is reasonable, in the concrete
case, to relax from the norm itself. Therefore, any dispensation granted
without a just and reasonable cause is against the purpose of the law and
the purposes of the exercise of executive power and is therefore unlawful.
However, the law does not have its binding force simply because of
its reasonableness. Since these are purely ecclesiastical laws—it is these we
are talking about—they, despite their reasonableness, have a wide margin
of discretion and variability: their binding force ultimately derives from
the authority of the legislator who precisely gives them the force of law.
Hence the difference noted by canon 90 §1: a dispensation given without
just and reasonable cause is always illicit; but if it is given by an authority
other than the legislator, it is also invalid. In fact, the legislator, even if he
acts illicitly, nevertheless proceeds validly since the binding force of the
law ultimately depends on him.

38. The code does not deal with the power to dispense on the part of religious ordinaries.
This question has rather problematic aspects. In the revision group it was expected that the
problem would be treated in the coetus on religious (cf. Communicationes 19 [1987] 99). In fact,
nothing came of it. Considering that the power to dispense belongs to those who have executive
power (c. 85) and that religious institutes enjoy a certain autonomy (c. 586), it could be deduced
that religious ordinaries have a power of dispensation similar to local ordinaries and to bishops
for their own subjects, as regards the universal laws of the Church, while the power to dispense
from proper law should be regulated by one’s proper law (cf. Urrutia, no. 498). But these appear
to us only as formulations de iure condendo, since the code does not in fact extend the power to
dispense from universal laws to religious superiors.
570 THE JURIST

On the other hand, a dispensation given without just cause by some-

one who is not a legislator—and therefore acts only in the forum of
executive power—is invalid. Whoever grants the dispensation must act in
compliance with the law and in deference to it: his administrative power
must be within the principle of legality. However, “in a case of doubt con-
cerning the sufficiency of the cause, a dispensation is granted validly and
licitly” (c. 90 §2).
We would like to make a brief digression here. We have seen that, in
some way, the dispensation comes into play where the subject, if he were
to observe the law, would be faced with a certain inconvenience. And
therefore, the legal system recognizes that in the individual and specific
case, the subject can more simply reach the purpose of the law and its
spiritual good by not observing the letter of the law, and thus being dis-
pensed from its binding force.
However, it is necessary to consider that when, in the context of
human laws, the subject is faced with a state of necessity or a serious
inconvenience inherent in the very fact of observing the law, this norm
automatically loses its cogency. This state of necessity occurs when a
person finds himself having to violate the law to avert current or imminent
serious damage to others or to their own person or even to their own or
others’ legal property.39 The subject deliberately and consciously com-
ports himself in a certain way precisely to avoid serious damage—“in
necessitate voluntas libero manet, sed actio ponitur urgente iuris tutela.”40
Necessitas non habet legem, says a Latin maxim; therefore the canonical
legal system also legitimizes the admission of anti-juridical conduct, pro-

39. The classical doctrine thus defined the state of necessity: “obiectiva rerum conditio, a
causa libera independens, in qua impossibile est iura nostra tueri absque laesione juris alieni”
(Germano-Giuseppe Pellegrini, Jus Ecclesiae poenale. I. De delictis [Naples: M. D’Auria Pontificius
Editor, 1962] 125).
40. Francesco Roberti, De delictis et poenis. Vol. 1, pars I: De delictis in genere (Rome: Pontifi-
cium Institutum Utriusque Iuris, 1940) 153. According to Roberti, the state of necessity is a
figure contiguous to that of the metus gravis, as in both cases it is freely decided to engage in
criminal conduct as this is seen as the only possibility to avoid a serious evil. The difference
between these two figures consists more precisely in the fact that in the case of fear this is
incurred by a human subject—“contra necessitas cum metu convenit, quatenus metus non est
nisi necessitas inducta a causa libera quae certum malum minatur, si qui aliquid faciat.” In the
case of necessity, however, the evil comes from a circumstance, an external condition, a natural
phenomenon, or a material necessity—“periculum in necessitate gignitur ex obiectiva rerum
condicione” (ibid.).
 T H E D I S P E N S AT I O N 571

vided that the two conditions that we will explain later are respected, if
this is configured as the only possibility given to the person to avoid greater
damage. The affirmation according to which human laws lose their coer-
cive nature in the event that the subject could suffer serious damage from
their observance, is part of the juridical patrimony of the Church.41
A typical example of the theological-moral patrimony of the Church
is that relating to theft. In a case of strict necessity, if human life is endan-
gered due to the shortage of food resources, the law of private property
ceases, and it is therefore legitimate and justified to take possession of
another person’s property to guarantee one’s own or another’s survival.
In this regard, Saint Thomas states: “In necessitate sunt omnia communia,
et ita non videtur esse peccatum, si aliquis rem alterius accipiat propter
necessitatem sibi factam communem.”42
On the contrary, from a social and juridical point of view, it would
appear as absurd and detrimental for the legislator to impose some laws
that the social community is unable to observe. Indeed, the very reason-
ableness of the law lies, in a certain sense, in its observability and respect-
ability. Therefore, a law whose application in certain circumstances is too
burdensome in that case loses all intrinsic rationality and therefore all man-
datory and enforceable compliance, even without the dispensation of the
competent authority.43
In order to speak of a state of necessity, however, the following con-
ditions must be met, which must be simultaneously present; the absence

41. “Ratio est, quia regulariter leges mere eccesiasticae, ut omnes leges mere humanae,
cum gravi incommodo vel cum gravis damni periculo non solummodo non urgent sub gravi,
. . . sed simpliciter non obligant” (Gommar Michiels, De delictis et poenis. Commentarius Libri V
Codicis Iuris Canonici. I. De delictis. Canones 2195–2213 [Lublin-Brasschaat: Univ. Catholica Lublic-
Brasschaat, 1934] 232).
42. Cf. ST II–II, q. 66, a. 7.
43. “Lex enim, ut obliget, rationabilis sit oportet; porro, sicut superior non valet rationa-
biliter imponere toti communitati ea qua supra ejusdem vires ordinarias sunt, ita non valet
legis observantiam a singulis exigere iis in circumstantiis, in quibus haec observantia per acci-
dens esset nimis onerosa; secus enim in destructionem praeciperet, non in aedificationem”
(Michiels, De delictis et poenis, 232). On the same point, Wernz even more explicitly affirms that
in the event of an objective impossibility of observing the law, it loses its obligation: “Moraliter
impossibilia seu qua supra ordinarias vires membrorum communitatis sunt nec legislator cen-
sendus est velle imponere, nec ut plurimum iuste imponeret. Si ergo cum legis ecclesiasticae
observantia in casu particulari, respectu determinatae personae, speciale grave damnum sive
grave incommodum accidentaliter coniungantur, hunc casum lex non comprehendit. Legis
ergo transgressio, pro tali casu non obligantis, delictum esse non potest” (Wernz-Vidal, 7:105).
572 THE JURIST

of even one of them causes the legitimizing cause to disappear. The sub-
ject must not have voluntarily placed himself in a situation of grave neces-
sity to get out of which he will then find himself having to violate the law;
in other words, the state of necessity must not be attributable to the sub-
ject himself.44 Therefore, the legitimate cause cannot be invoked if the
subject has not done what he could to avoid the damage or danger or has
even deliberately put himself there.
The state of necessity can be invoked only if the subject had no other
possibility of avoiding such damage. In fact, it is stated that the lawful
exercise of a right is permitted which also results in a detrimental effect if
in any way the damage can otherwise be avoided.45
The evil must be objectively serious—it would not be justified to vio-
late the law to avoid insignificant damage—and consequently there must
be a proportion between the evil avoided and the violation of the law
accomplished, and this can also be deduced from the principle of mod-
erating juridic goods. This proportion will have to be verified in practice.
Finally, anyone who has the legal obligation to expose themselves to
current or imminent danger or evil cannot invoke the state of necessity.
Such a legal obligation can have as its source both a law and a contractual
provision of private law.46
Finally, let us remember that the serious inconvenience must first of
all be extrinsic to the observance of the law and connected with it occa-
sionally and per accidens. This serious inconvenience cannot therefore be
the proper sacrifice that derives from and is connected to the observance
of the norm. For example, the person who does not observe fasting in the
prescribed days could not invoke serious inconvenience in order not to
have the annoyance or discomfort coming from the sense of appetite.47
We wanted to make this brief digression on the state of necessity and
serious inconvenience precisely to highlight the principle according to

44. “Si quis se ipsum voluntarie coniiciat in periculum seu necessitatem aut in circumstan-
tias qua ipsam necessitatem inducunt, specialem legis protectionem non meretur” (ibid., 110).
45. For example, during a fire a person who to save himself and get to a door sacrifices
the lives of others, will not be able to invoke the exemption in question if he could easily save
himself by jumping from the window.
46. For example, a firefighter, who during a fire allows a person to succumb in order to
save his own life, could not invoke the state of necessity, as he is subject to a legal obligation
to protect the safety of others. See, in this regard, Pellegrini, 127–128.
47. Michiels, De delictis et poenis, 233.
 T H E D I S P E N S AT I O N 573

which a person can be automatically exempted from observing ecclesias-

tical law even without the intervention of the competent authority that
exempts from the law.

6. Canons 91–92: The Scope of the Exercise of the Faculty to Dispense and
Interpretation of the Dispensation
Canon 91 does nothing but apply a general principle valid for the exercise
of executive power established in canon 136. It is expressly reiterated per-
haps because the faculty to dispense, despite being an administrative act,
concerns the exemption f rom the same laws and could therefore have
given rise to some doubts. The power to dispense, therefore, can be exer-
cised for one’s subjects, wherever they are, both in one’s own territory
and outside, and it can be exercised even if the same authority is outside
one’s own territory of jurisdiction, but, in this case, only towards their
subjects. Furthermore, within its own territory, this power can be exer-
cised over all those who are currently there, even if they are pilgrims and
undoubtedly also transients.
Since this is a non-coercive power, the competent superior can also
exercise it in his own favor. However, it is possible that the law or the
superior expressly establishes the opposite.
With regard to the interpretation of the dispensation in canon 92, we
can consider the general principles in canon 36 §1. The dispensation is
therefore subject to a strict interpretation. Furthermore, not only is the
dispensation subject to strict interpretation, but so is the power to dispense
granted for a specific case. Therefore, for example, the concession of the
power to dispense from a marriage impediment of consanguinity does
not entail the possibility of dispensing f rom a possible impediment of
public propriety.

7. Canon 93: Cessation of the Dispensation

If it is a question of a faculty to dispense which is prolonged in a plurality
of acts over time, then this faculty ceases in the same way as the privilege
(cf. c. 83) and also by the fact of the certain and total completion of the
motivating cause. In fact, the dispensation must be given for a just and
reasonable cause; it is on the basis of this cause that the superior granted
it; and as it passes away, the dispensation is no longer justified. However,
it should be noted that, to simplify the problem, the legislator provides
that the cessation of the cause must be total and certain. Therefore, if a
574 THE JURIST

partial motivation remains, even if it is only doubtful, the faculty to dis-

pense does not cease (cf. c. 90 §2).
Regarding the revocation of the dispensation for a single case, quid
iuris? Here it is necessary to distinguish several possibilities: if the dispen-
sation has already been used, then the eventual revocation will obviously
not have any legal effect as the act placed as a consequence of the dis-
pensation will have already been successful. If, on the other hand, the dis-
pensation was revoked before its use, then the act placed in breach of the
law will be irremediably null or illicit, depending on whether the dispen-
sation concerned an invalidating or incapacitating law or not, because it
was placed not in the presence of a regular dispensation. In a third case:
according to doctrine, if the dispensation has not been granted for a suc-
cessive period and the cause motivated before its use ceases, then this dis-
pensation is invalid.48 For example, if a dispensation f rom canonical
hours is granted in a religious house for a single day because of an
extraordinary work to be carried out, this dispensation ceases if the work
must no longer take place.

ABSTRACT
The dispensation is applied as a means of relaxing the law in a given case.
This contribution considers the relationship between the dispensation and
legislation, and so between the one dispensing and the legislator; which
laws are dispensable and which are not; the need for a just and reasonable
cause in view of the “wounding” of the law caused by dispensation; and
the cessation of a dispensation. This translation of the work of Velasio De
Paolis and Andrea D’Auria presents their textbook discussion of the institute
of the dispensation in canon law in English for the first time.

48. Urrutia, no. 522.