CL 126 CONCEPTS OF ROMAN LAW

Fr. Danilo Flores, JUD

Submitted by: Fr. Regino Carlo P. Godinez, SDB

Date Submitted: 2 June 2020

Canon Law Institution with Corresponding Roman Law Institution

“PONTIFEX”

Introduction

In the Catholic Church, the word ‘pontiff’ is associated with the person who holds the

highest authority in the Church, the Pope. Its comes from the Latin word ‘pontifex’ which is

from ‘posse’ and ‘facere.’ A pontifex, then, is one who can declare what is possible to do, or

one who is in power and in a position to perform. 1 The terms ‘Pontifex Maximus’ and ‘Summus

Pontifex’ were originally used in reference to the Jewish high-priest. But in the context of

Roman Law, it was an office held for life by the supreme priest of pagan Rome and a powerful

administrator of the government then. Later on, the title was given to the Roman emperors

for the duration of their reign.

In the third century A.D., Tertullian applied the term sarcastically to Pope Callixtus I,

with whom he was at odds because of the Pope’s relaxation of the Church's penitential

discipline, which allowed repentant adulterers and fornicators back into the Church under

his Petrine authority.2 In the fourth century, emperor Constantine, though considered a

Christian emperor, continued to preserve the pagan title of the pontifex maximus and used it

1 Cf. Flores, Danilo, Institutions of Roman Law – Chapter Ia [powerpoint presentation on the institutions of
Roman Law given to the 2019-2020 Canon Law students of UST Manila], 27 January 2020.
2 Cf. The writers and editors of the New World Encyclopedia, Pontifex Maximus, The New World Encyclopedia

Website, 31 March 2019, accessed 23 May 2020,

https://www.newworldencyclopedia.org/entry/Pontifex_Maximus.
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with the insignia on several medals and inscriptions.3 But by the end of the fourth century

A.D. pontifex was adopted by to Roman Catholic church for the bishops, and pontifex maximus

for those bishops from notable sees.4 And since the beginning of the eleventh century A.D.,

the term was applied only to the Pope,5 who is considered to be the “high priest” after Christ.

Currently however, this term is not officially included in his titles but is used in the headings

of his encyclicals and other papal documents. 6

1. Canon Law Institution

The different aspects about the office of the Roman Pontiff developed gradually from

the magisterial proclamations beginning with the Third Lateran Council in 1179 A.D. up until

the Second Vatican Council in 1964. Canon law has applied all these magisterial teachings on

the Pope. There are various canons that mention the term Roman Pontiff but the essential

details are laid out in cann. 331-335.

1.1. Papal Titles

The various other titles which canon law attributes to the Roman Pontiff are: (a)

Bishop of the Roman Church, (b) successor of Peter, (c) head of the College of Bishops, (c)

Vicar of Christ, and (d) Pastor of the universal Church on earth.7 As bishop of the Roman

Church, he is the bishop of the diocese of Rome. He is also the metropolitan of the Roman

ecclesial province who supervises the suffragan bishops according to the norms of cann. 435-

3
Cf. Bierkan, Andrew (trans.), Marriage in Roman Law, Yale Law Journal, Vol. 16, No. 5, March 1907, p. 326,
accessed 30 May 2020, https://digitalcommons.law.yale.edu/.
4 Cf. The Editors of Encyclopædia Britannica, Pontifex, Encyclopædia Britannica Website (Encyclopædia

Britannica, Inc., 2014), accessed 23 May 2020, https://www.britannica.com/topic/pontifex.

5 Cf. Joyce, George, The Pope, The Catholic Encyclopedia (New York: Robert Appleton Company, 1911), New

Advent Website, accessed May 23, 2020, http://www.newadvent.org/cathen/12260a.htm.

6 Cf. Pontifex Maximus, in The New World Encyclopedia, accessed 23 May 2020.
7 Cf. cann. 330-331.

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437.8 As the successor of Peter, he receives the office given by the Lord Jesus uniquely to

Peter, the first of the Apostles, and transmitted to all future successors. 9 As head of the

College of Bishops, the Roman Pontiff leads the bishops in various pastoral initiatives for the

universal Church through synod of Bishops, ecumenical councils, etc. 10 The college of

Bishops always acts together with its head, the Pope, in exercising its supreme and full power

over the universal Church.11 As the vicar of Christ and Pastor of the universal Church on

earth, he is seen as the one appointed by Christ himself in leading the Church here on earth

and be its primary teaching authority together with the College of Bishops (can. 756 §1).

1.2. Nature and Scope of Authority

The Roman Pontiff has supreme, full, immediate, and universal ordinary power in the

church by virtue of his office. 12 This means he has the power to exercise his authority in all

Catholic Churches globally and has primacy of ordinary power over all particular Churches

and groups in full communion with the universal Church.13 Such power is aimed for the unity

and communion of all local churches. This implies that the Pope is the highest authority

whom people turn to when members of the Christian faithful make appeals. The Pope has

the right to entertain all these appeals according to his discretion. As a matter of fact, there

are cases provided in canon law that are reserved to the Apostolic See. And when he declares

8 Cf. Beal, J., Coriden, J., and Green, T., eds., New Commentary on the Code of Canon Law (New Jersey: The Canon
Law Society of America, 2000), p. 432.
9 Cf. ibid., p. 431.
10 Cf. cann. 334, 336-348.
11 Cf. can. 336.
12 Cf. can. 331.
13 Cf. can. 333 §§1-2.

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his own judgment or decree, nor further appeals can be made. 14 Another implication is that

the Pope cannot be subjected to any judgment in the context of the Catholic church.15

Another subject capable of exercising supreme and full power is the College of

Bishops, but only if it is one with the Roman Pontiff, the head of the said College. 16 In a solemn

way, the College exercises power over the universal Church in an Ecumenical Council; the

latest of which is the Second Vatican Council convoked by Pope John XXIII and took place in

the Basilica of St. Peter in Vatican City from 1962 to 1965. If the College acts without the

presence of the head, then it incapable of performing full and supreme power over the

universal Church. The decrees of the Ecumenical Council does not have obligatory force if

they have not been confirmed by the Roman Pontiff and promulgated Such at his order.17

In reading the various formulations of canon law on the Roman Pontiff, it appears that

the said magisterial teachings have been duly considered and incorporated into the canons.

The notion of his power has become what it is today because of a considerably long process

in history. In 1439 during the sixth session of the Ecumenical Council of Florence, the Council

Fathers defined the qualities of the Roman Pontiff and the power of the Roman Pontiff in the

context of tending, ruling and governing:

“We also define that the holy apostolic see and the Roman pontiff holds the primacy
over the whole world and the Roman pontiff is the successor of blessed Peter prince
of the apostles, and that he is the true vicar of Christ, the head of the whole church
and the father and teacher of all Christians, and to him was committed in blessed
Peter the full power of tending, ruling and governing the whole church…” 18

14 Cf. can. 333 §3.

15 Cf. can. 1404.
16 Cf. can. 336.
17 Cf. can. 341 §1.
18 Cf. Ecumenical Council of Florence, Session 6, 6 July 1439, accessed 23 May 2020,

http://www.documentacatholicaomnia.eu/01_10_1431-1431-_Concilium_Basiliense_(Basilea-_Ferrara-
_Firenze-_Roma).html.

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On a much later period, the First Vatican Council in 1870 re-promulgated the

definition of the Council of Florence but with some nuances. It mentions the primacy of the

Roman church over every other church, with episcopal and immediate jurisdictional power.

It also highlights the need of the clerics and lay faithful to obey the Roman Pontiff on faith

and moral but in the area of discipline and government. 19

The most recent doctrine on the Roman Pontiff is declared by the Second Vatican

Council through the dogmatic constitution Lumen Gentium in 1964, which says that the Pope

has “full, supreme and universal power over the Church.”20 He has power of primacy over

pastors and faithful and “he is always free to exercise this power.”21

1.3. Infallibility

Canon law is unequivocally clear regarding the infallibility of the Pope. Can. 749 §1

says when as the supreme pastor and teacher of all the Christian faithful he proclaims by

definitive act that a doctrine of faith or morals is to be held, the Roman Pontiff possesses

infallibility in teaching. 22 The main source of this canon is the declaration of the First Vatican

Council in 1870:

“we teach and define as a divinely revealed dogma that when the Roman pontiff
speaks ex cathedra, that is, when, in the exercise of his office as shepherd and teacher
of all Christians, in virtue of his supreme apostolic authority, he defines a doctrine
concerning faith or morals to be held by the whole church, he possesses, by the divine
assistance promised to him in blessed Peter, that infallibility which the divine
Redeemer willed his church to enjoy in defining doctrine concerning faith or
morals.”23

19 Cf. First Vatican Council, Session 4, First Dogmatic Constitution on the Church of Christ, Chap. 3, no. 2, 18 July
1870, accessed 23 May 2020, http://www.documentacatholicaomnia.eu/01_10_1869-1870-
_Concilium_Vaticanum_I.html.
20 Cf. Lumen Gentium, art. 22 in Vatican II Documents (Quezon City: Claretian Publications, 2014), pp. 64-65.
21 Cf. ibid.
22 Cf. can. 749.
23 Cf. First Vatican Council, Session 4, First Dogmatic Constitution on the Church of Christ, Chap. 4, no. 9., 18

July 1870, accessed 23 May 2020, http://www.documentacatholicaomnia.eu/01_10_1869-1870-

_Concilium_Vaticanum_I.html.

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In §2 of the same canon, it is mentioned that the College of Bishops also possesses

infallibility during Ecumenical Councils when the Bishops declare dogmas and promulgate

decrees, or even when they are dispersed throughout the world and preach to the people on

faith and moral but preserving the bond of communion together with the Roman Pontiff. But

§3 says the said doctrine that is defined infallibly has to be manifestly evident. If the doctrine

that was defined is not obvious to all the Catholic faithful, then the said doctrine could be

considered non-obligatory. Furthermore, this canon has to be understood in the context of

cann. 336 and 341, i.e. they have to act in communion with the Roman Pontiff; without him

they do not have infallibility.

1.4. Election during vacancy of the Apostolic See

The election of the Roman Pontiff happens only when the Apostolic See is vacant. The

allotted time for this period of vacancy is fifteen full days before the Conclave begins. 24

During this period, nothing is to be altered in the governance of the universal Church.

However, the special laws issued for these circumstances are to be observed. 25 Furthermore,

during the period of vacancy the College of Cardinals “has no power or jurisdiction in matters

which pertain to the Supreme Pontiff during his lifetime or in the exercise of his office.”26

Also, the government of the Church is entrusted to the College of Cardinals only “for the

24 Cf. John Paul II, Universi Dominici Gregis [apostolic constitution on the vacancy of the Apostolic See and the
election of the Roman Pontiff], Vatican Website, art. 37, 22 February 1996, accessed 23 May 2020,
http://www.vatican.va/content/paul-vi/it/apost_constitutions/documents/hf_p-vi_apc_19751001_romano-
pontifici-eligendo.html, as revised by Pope Benedict XVI in Normas Nonnullas [apostolic letter issued motu
proprio on certain modifications to the norms governing the election of the Roman Pontiff], Vatican Website,
22 February 2013, accessed 23 May 2020, http://www.vatican.va/content/benedict-
xvi/en/motu_proprio/documents/hf_ben-xvi_motu-proprio_20130222_normas-nonnullas.html.
25 Cf. can. 335.
26 Cf. John Paul II, Universi Dominici Gregis, art. 1.

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dispatch of ordinary business and of matters which cannot be postponed and for the

preparation of everything necessary for the election of the new Pope.”27

When choosing the Roman Pontiff during this vacancy, the Cardinal electors need to

elect28 a qualified candidate with two-thirds majority during a conclave. This has been the

tradition since 1179 A.D. during the Third Lateran Council. At that time, in an effort to resolve

the crisis of schism and caused by the election of two popes, the Council Fathers decreed:

“that person shall be held as Roman pontiff who has been chosen and received by the two

thirds.”29 As regards the solemnity of the conclave, even as early as the thirteenth century

A.D. it was already imposed on the Cardinals by the Second Council of Lyons in 1274 A.D..

The Council Fathers gave strict instructions for the conclave to “to be completely locked, so

that no one can enter or leave.”30 No one is allowed to contact the Cardinals except “those

who, by consent of all the cardinals present, might be summoned only for the business of the

imminent election.”31

Fast forward to the twentieth century, in his 1975 apostolic constitution Romano

Pontifici Eligendo Paul VI required a majority of two-thirds plus one.32 But in the more recent

document Universi Dominici Gregis, John Paul II does not retain the ‘plus one’ phrase.33 The

1983 Code does not contain details of this election but mentions the Cardinals as members

27 Cf. ibid., art. 2.

28 Cf. cann. 332 §1 and 349.
29 Cf. Third Lateran Council, Canon no. 1, 1179 A.D., accessed 23 May 2020,

http://www.documentacatholicaomnia.eu/01_10_1179-1179-_Concilium_Lateranum_III.html.
30 Cf. Second Council of Lyon, Constitutions Chap. 2, art. 2 on the election and the power of the elected person,

1274 A.D., accessed 23 May 2020, http://www.documentacatholicaomnia.eu/01_10_1274-1274-

_Concilium_Lugdunense_II.html.
31 Cf. ibid.
32 Cf. Paul VI, Romano Pontifici Eligendo, [apostolic constitution about the vacancy of the Apostolic See and the

election of the Roman Pope], Vatican Website, art. 72, 1 October 1975, accessed 23 May 2020,
http://www.vatican.va/content/paul-vi/it/apost_constitutions/documents/hf_p-vi_apc_19751001_romano-
pontifici-eligendo.html.
33 Cf. Universi Dominici Gregis, art. 62, as revised in Normas Nonnullas.

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of a special college that provides for the election of the Roman Pontiff. 34 The most recent of

this type of election during the conclave was when the Jesuit Cardinal Jorge Mario Bergoglio,

S.J. was elected as the latest Roman Pontiff on 13 March 2013. He took the name Francis as

his title. The conclave, which began the day before he was elected, was participated by 115

Cardinal electors.

1.5. Resignation

The Pope also has an option to formally resign from his office. Can. 332 §2 says “If it

happens that the Roman Pontiff resigns his office, it is required for validity that the

resignation is made freely and properly manifested but not that it is accepted by anyone.”

The resignation must be freely submitted and externally manifested but not necessarily

accepted. The most recent case was that of Benedict XVI who announced his resignation on

11 February 2013, which led to the Conclave that elected Pope Francis. 35

2. Roman Law Institution

During the period of monarchy in ancient Rome (753 B.C. to circa 367 B.C.), the

pontiffs were members of the Collegium Pontificum, or College of Pontiffs, which was

considered the most important priesthood of ancient Rome. The collegium was tasked to act

as advisers of the rex, or king, in all matters of the Roman religion.36 They were only very

few, around three in number at that period. The collegium was also charged with the

administration of the ius divinum, or that part of the civil law that regulated the relations of

34 Cf. can. 349.

35 Cf. Esteves, J., Pope Benedict XVI Announces Resignation [internet article] Zenit.org Website, 11 February
2013, accessed 23 May 2020, https://zenit.org/articles/pope-benedict-xvi-announces-resignation/.
36 Cf. Pontifex Maximus, in The New World Encyclopedia.

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the community with the deities recognized by the state. 37 The foundation of this sacred

college is attributed to the second king of Rome, Numa Pompilius. It was headed by the

Pontifex Maximus. Prior to its institution, all religious and administrative functions and

powers were naturally exercised by the king. However, as regards the details of the pontiffs

and the collegium during this period of Roman history, very little is known since most of the

records of ancient Rome were destroyed when it was sacked by the Gauls in 390 B.C.38

Under the period of the republic (367 B.C. to 27 B.C.), the Pontifex Maximus was the

highest office in the polytheistic Roman religion. He was the most important of the pontifices

in the collegium which he directed.39 The official residence of the Pontifex Maximus was the

Domus Publica, which stood between the House of the Vestal Virgins and the Via Sacra, close

to the Regia, in the Roman Forum. His religious duties were carried out from the Regia.

During the republican period the number of pontifices increased.

The Pontifex was not just any ordinary priest. He had both political and religious

authority. The vacancies in the collegium of pontifices were originally filled by co-optatio, in

which the remaining members nominate their new colleague. The pontifices at the time

could only come from the noble families called the patricians. And during the latter part of

the period of the Republic, the office of Pontifex Maximus was generally held by a member of

a politically prominent family. But in the year 300 B.C., the lex Ogulnia opened the office and

admitted the plebeians to run for the office, so that part of the prestige of the title was lost.

The lex Ogulnia also increased the number of pontiffs to nine, including the Pontifex Maximus.

However, it was only in 254 B.C. that Tiberius Coruncanius became the first plebian to become

37 Cf. Encyclopædia Britannica, Pontifex, accessed 23 May 2020.

38 Cf. Pontifex Maximus, in The New World Encyclopedia.
39 Cf. ibid.

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Pontifex Maximus.40 At the onset of the second Punic War (218 B.C. – 201 B.C.), the Pontifex

Maximus was chosen by popular election. In 104 B.C.E., the lex Domitia prescribed that the

election would be voted by the comitia tribute, which was an assembly of the people divided

into voting districts. This meant that only 17 of the 35 tribes of the city could vote. This law

was abolished in 81 B.C. by Sulla in lex Cornelia de Sacerdotiis, which restored to the great

priestly colleges their full right of co-optatio. Under this law, the number of pontifices was

increased to 15, including the Pontifex Maximus. In 63 B.C., when Julius Caesar was Pontifex

Maximus, the law of Sulla was abolished and a modified form of the lex Domitia was

reinstated, providing for election by comitia tributa once more. However, Marcus Antonius

later restored the right of co-optatio to the college. Under Julius Caesar, the number of

pontifices was also increased to 16, including the Pontifex Maximus.41 Once elected, the

positions of the pontifices were held for life.42 The true power of the Pontifex Maximus was

not in the rituals he performed as high priest but in the administration of the ius divinum.

There are six main departments of the ius divinum:

(a) the regulation of all expiatory ceremonials needed due to pestilence, lightning, etc.;

(b) the consecration of all temples and other sacred places and objects dedicated to the

gods by the state through its magistrates;

(c) the regulation of the calendar both astronomically and in detailed application to the

public life of the state;

(d) the administration of the law relating to burials and burying places and the worship

of the Manes, or dead ancestors;

40 Cf. ibid.
41 Cf. ibid.
42 Cf. ibid.

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(e) the superintendence of all marriages by confarreatio, which was originally the

marriages of all legal patricians; and

(f) the administration of the law of adoption and of testamentary succession.

In addition, the pontifices also had the administration of the state archives and of the

lists of magistrates and kept records of their own decisions called ‘commentarii’ and the chief

events called ‘annales.’43 The Pontifices were also in charge of the Roman calendar and

determined when days needed to be added to synchronize the calendar to the seasons. Since

the Pontifices were often politicians, and because a Roman magistrate's term of office

corresponded with a calendar year, this power was prone to abuse. For example, a Pontifex

could lengthen a year in which he himself or one of his political allies was in office, or refuse

to lengthen one in which his opponents were in power.

With their offices being held for life, these pontifices had great power in Rome. For

the first three centuries of the republic, the Pontifex Maximus was its most powerful member.

Under the later republic it was coveted chiefly for the great dignity of the position. Julius

Caesar held it for the last years of his life. After Caesar's assassination in 44 B.C., his ally

Marcus Aemilius Lepidus was selected as Pontifex Maximus. Though Lepidus eventually fell

out of political favor and was sent into exile as Augustus consolidated power, he retained the

priestly office until his death in 13 B.C. Later, Augustus Caesar took it upon the death of

Lepidus. Afterwards, it became inseparable from the office of the emperor. From then on,

these emperors were to be called Pontifex Maximus.44

~~~

43 Cf. ibid.
44 Cf. ibid.

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Bibliography

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Beal, John – Coriden, James – Green, Thomas (editors). New Commentary on the Code of
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The Canon Law Society of Great Britain and Ireland. The Canon Law Letter and Spirit: A
practical guide to the Code of Canon Law. London: Geoffrey Chapman, 1995.

Documents of the Roman Pontiffs

Benedict XVI. Normas Nonnullas [apostolic letter issued motu proprio on certain
modifications to the norms governing the election of the Roman Pontiff]. Vatican
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xvi/en/motu_proprio/documents/hf_ben-xvi_motu-proprio_20130222_normas-
nonnullas.html.

John Paul II. Universi Dominici Gregis [apostolic constitution on the vacancy of the Apostolic
See and the election of the Roman Pontiff]. Vatican Website. 22 February 1996.
Accessed 23 May 2020. http://www.vatican.va/content/paul-
vi/it/apost_constitutions/documents/hf_p-vi_apc_19751001_romano-pontifici-
eligendo.html.

Paul VI. Romano Pontifici Eligendo [apostolic constitution about the vacancy of the
Apostolic See and the election of the Roman Pope]. Vatican Website. 1 October 1975.
Accessed 23 May 2020. http://www.vatican.va/content/paul-
vi/it/apost_constitutions/documents/hf_p-vi_apc_19751001_romano-pontifici-
eligendo.html.

Documents of the General Councils

Ecumenical Council of Florence. Session 6. 6 July 1439. Accessed 23 May 2020.

http://www.documentacatholicaomnia.eu/01_10_1431-1431-
_Concilium_Basiliense_(Basilea-_Ferrara-_Firenze-_Roma).html.

First Vatican Council. Session 4. First Dogmatic Constitution on the Church of Christ. 18 July
1870. Accessed 23 May 2020.

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CL 126: Concepts of the Roman Law

http://www.documentacatholicaomnia.eu/01_10_1869-1870-
_Concilium_Vaticanum_I.html.

Second Council of Lyon. 1274 A.D. Accessed 23 May 2020.

http://www.documentacatholicaomnia.eu/01_10_1274-1274-
_Concilium_Lugdunense_II.html.

Third Lateran Council. 1179 A.D. Accessed 23 May 2020.

http://www.documentacatholicaomnia.eu/01_10_1179-1179-
_Concilium_Lateranum_III.html.

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Esteves, J., Pope Benedict XVI Announces Resignation [internet article] Zenit.org Website. 11
February 2013. Accessed 23 May 2020. https://zenit.org/articles/pope-benedict-
xvi-announces-resignation/.

Journal

Bierkan, Andrew (trans.). Marriage in Roman Law. Yale Law Journal, Vol. 16, No. 5. March
1907. Accessed 30 May 2020. https://digitalcommons.law.yale.edu/.

Online Encyclopedia

Joyce, George. The Pope. The Catholic Encyclopedia. New York: Robert Appleton Company,
1911. New Advent Website. Accessed May 23, 2020.
http://www.newadvent.org/cathen/12260a.htm.

The Editors of Encyclopædia Britannica. Pontifex. Encyclopædia Britannica Website.

Encyclopædia Britannica, Inc., 2014. Accessed 23 May 2020.
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Encyclopedia Website. 31 March 2019. Accessed 23 May 2020.
https://www.newworldencyclopedia.org/entry/Pontifex_Maximus.

Powerpoint Files

Flores, Danilo. Institutions of Roman Law – Chapter Ia [powerpoint presentation on the

institutions of Roman Law given to the 2019-2020 Canon Law students of UST
Manila]. 27 January 2020.

Can Law institution with corresponding Roman Law institution: Pontifex