Determinatio

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A determinatio is an authoritative determination by the legislator concerning the application of practical principles, that is not necessitated by deduction from natural[1] or divine law[2] but is based on the contingencies of practical judgement within the possibilities allowed by reason.[1]

In natural law jurisprudence, determinatio is the process of making natural law into positive law[3] In Catholic canon law, determinatio is the act by which natural law or divine positive law is made determinate in the canonical legal system as specific norms of law,[2] although the content of such law is still essentially that of divine law, which, together with canon law, forms "a single juridical system of law".[4]

The concept derives from the legal philosophy of Thomas Aquinas,[5] and continues to be a part of discussions in natural law theory.[3]

Canon law[edit]

Determinatio is a legal doctrine in the jurisprudence of the canon law of the Catholic Church.[2] It was imported from the legal philosophy of Thomas Aquinas.[6]

The general norms of divine or natural law serve as "shaping factors"[2] and "a necessary basis"[2] for the human-made canon law, but such general norms in themselves cannot have a greater legal effect until they are made into specific human laws, since the norms of divine law are "general and non-specific".[2]

But in the movement from the general to the concrete, there are sometimes many possibilities;[2] that is, divine or natural law can be made concrete in may different ways,[2] and all the legitimate alternatives are in line with the requirements of divine law.[2] Wherefore the legislator must make a determinatio and "opt or choose among them".[2]

References[edit]

  1. ^ a b Finnis, John. Aquinas, 266-271.
  2. ^ a b c d e f g h i j Hervada, Introduction, pg. 33
  3. ^ a b Waldron, Jeremy. Torture, Suicide, and Determinatio main page, Social Science Research Network. Accessed 22 March 2016.
  4. ^ Hervada, Introduction, pg. 34
  5. ^ Natural Law Theories, Stanford Encyclopedia of Philosophy, accessed 23 March 2016
  6. ^ Hervada, Introduction, pg. 34 (citing Summa Theologiæ Ia-IIæ q.95 a.3)

Bibliography[edit]

  • Finnis, John. Aquinas: Moral, Political, and Legal Theory (New York: Oxford University Press, 1998).
  • Hervada, Javier. Introduction to the Study of Canon Law (Montréal: Wilson & Lafleur Ltée, 2007).
  • Waldron, Jeremy (New York University School of Law), Torture, Suicide, and Determinatio; American Journal of Jurisprudence, Vol. 55, 2010; NYU School of Law, Public Law Research Paper No. 10-86.