Public Order (Canon Law)
PUBLIC ORDER (CANON LAW)
Public order (canon law) is a legal term referring to the stability that exists in a society when its most urgent laws are obeyed and its security is assured. Nineteenth-century canon lawyers borrowed this term from civil law chiefly to indicate the measure of the traveler's subjection to local statutes.
Civil jurists developed the notion of public order with reference to the alien and the laws of the country he visits. His legal relations are generally somewhat different from those of the citizen. In continental Europe, jurists look upon nationality as the factor determining a person's rights and duties. They have developed theories of private international law to decide the individual's nationality, to define the rights enjoyed by the alien, and to resolve the conflicts that arise with respect to these rights.
The situation is different in England and in the United States. Domicile rather than nationality governs the legal status of the individual. The alien is regarded before the law as being much the same as the citizen. His distinctive rights are specified in public international law, which chiefly concerns relations between nations and is often described simply as international law.
The most frequent conflict of laws facing U.S. courts is the choice between the rule of law of the individual's domicile and the place where the court sits. Normally this involves competing laws of several states rather than of independent nations. Hence the solution of these jurisdictional questions is known in the United States as conflicts of law, and not private international law.
Occasionally a U.S. court is faced with a choice of law involving the statute of a foreign country. In the Anglo-American tradition, civil statutes are generally conceived of as territorial, affecting the person in and through the locality. They bind all who are present, aliens and nationals alike. It may happen by exception that a court will find it useful to apply to an alien the law of his own country, but this is purely a matter of comity. It is inadmissible whenever a question of public policy arises affecting the nation's vital interest.
In the 19th century, several European jurists rejected this strictly territorial concept of law. Pasquale Stanislao Mancini (1817–88) taught that laws are closely linked, not with the place but with the persons for whom they are enacted. Since the legislator acts with a view to the needs of his own people, the laws of each country are best suited to serve the interests of its citizens, wherever they may be. From this principle, Italian private international law concludes that the individual has the right to be governed by the laws of his own country. Every state is bound to guarantee this right for the alien as well as for its citizens. A notable exception to the rule arises from the need to protect the public order. Whenever the vital interest of the community is involved, the alien must submit to the local statute just as though he were a citizen.
Resolving conflicts of law is a fundamental problem for the canonist as well as for the civil jurist. The earliest commentators on Gratian's Decree regarded travelers as subject to all local laws. Later, Francisco suÁrez (1548–1617) took this position and developed the juridic principles that serve as its basis. He taught that the welfare of the community requires the uniform observance of its laws, not only by its subjects, but by all who happen to be present, even for a short time.
Later decretists and decretalists taught that, apart from exceptional cases, the traveler is free from the obligation to observe local statutes because he is not a resident. Tómas sÁnchez (1551–1610) accepted this theory, explaining that the ruler's exceptional jurisdiction is based upon the need to protect the community from harm.
By the 19th century, canonists generally regarded the opinion of Sánchez to be the more probable, although they did not add substantially to the reasoning of its earlier defenders. Philippus de Angelis (1824–81), Franciscus Santi (1830–85), and others did, however, introduce a new phrase into canonical literature. They borrowed from civil law the term "public order" to define what had become the commonly accepted canonical doctrine, the legislator's exceptional jurisdiction over the traveler. Both the new term and the opinion of Sánchez received full legal force by their incorporation in the 1917 Code of Canon Law.
In defining this concept, it is helpful to bear in mind that all laws tend to promote order in the community and to foster the common good in one of two ways. Either the law seeks to provide some advantage to the individual, affecting the community only in a secondary way, and this is the private good; or it has for its object something that is not proper to any individual but is to the advantage of all. This is the social and public good.
The resident is bound to obey all the laws of his community, for at least indirectly he thereby contributes to the social well-being. The traveler is bound to observe only the law that has a public good as its object and directly affects the society as such. Moreover, he is obliged to do this only to the extent that uniform observance of the law is an indispensable condition for the welfare of the place he visits. When he does so, he helps to secure public order, which is that pattern of conduct prescribed by a law having for its object a public good that is found to be essential to the security of society.
Bibliography: g. michiels, Normae generales juris canonici. Commentarius libri I. Codex iuris canonici, 2 v. (2d ed. Paris-Tournai-Rome 1955): 1:391–402. g. onclin, De territoriali vel personali legis indole (Glembaci 1938) 257–260; 331–351. a. van hove, "Leges quae ordini publico consulunt," Ephemerides theologicae Lovanienses 1 (1924) 153–167. e. roelker, "The Traveller and the Local Statute," Jurist 2 (1942) 105–119. j. h. hackett, The Concept of Public Order (Catholic University of America Canon Law Studies 399) (Washington 1959). a. pillet and j. niboyet, Manuel de droit international privé (Paris 1924). m. wolff, Private International Law (New York 1945).
[j. h. hackett]
"Public Order (Canon Law)." New Catholic Encyclopedia. . Encyclopedia.com. (October 18, 2018). http://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-and-maps/public-order-canon-law
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