The Construction of Canon 15 § 2 of the 1983 Code of Canon Law and its Implications

Abstract

The presented article analyses Canon 15 § 2 of the 1983 Code of Canon Law with respect to its construction and ratio legis. It is shown that the principles included in the first part of the sentence of the regulation have the nature of general rules. The adoption of such a solution results from the fact that the premises included in the provision refer to the prescriptive or prohibitory laws, which, in the aspect of nullity of the act, are less radical than the invalidating or incapacitating laws (Canon 10), to which the legislator referred in Canon 15 § 1. Moreover, the analysis of the regulations outside the first book of the Code of Canon Law as well as the doctrinal heritage demonstrates that, in relation to the area defined in Canon 15 § 2, in the canonical legal order there still exist prior principles resulting from the systemic assumptions and the general theory of a legal act resulting in the fact that, in certain circumstances, the general rules are not valid. It is claimed that the introduction of the presumption iuris tantum in the second part of the sentence of Canon 15 § 2 was due to the fact that a non-notorious fact of another is not characterized by such obviousness as one’s own or another’s notorious fact.