Rescript
| Controlling authority | CIC canons 59–75 and the authority competent for the requested favor |
|---|---|
| Juridical character | Favorable singular administrative act ordinarily responsive to a petition |
Rescript is a written administrative act issued by competent executive authority that by its nature grants a privilege, dispensation, or other favor at someone's request.
Overview
A rescript is a public government document. More formally, it is a document issued not on the initiative of the author, but in response to a question (usually legal) posed to the author. The word originates from replies issued by Roman emperors to such questions and is also used in modern legal terminology and the Papal curia.[1]
Rescripts may take various forms, from a formal document of an established type, such as a Papal bull, to the forwarding of the demand with a simple mention by way of decision, something like "rejected" or "awarded", either to the party concerned or to the competent executive office to be carried out.
Written grant of a favor
Canon 59 defines Rescript by written form, executive authority, favorable object, and request. The favor can be a Privilege, Dispensation, permission, faculty, or other benefit. Rules for rescripts also govern orally granted permissions or favors unless another conclusion is evident, preventing form alone from defeating the canonical substance.[2]
Any person not expressly prohibited may request a rescript, including for another person even without that person's assent, unless the circumstances show otherwise. The grant can have force before acceptance, subject to contrary clauses. These rules distinguish objective concession from the recipient's later decision whether to use it.
Petition, truth, and validity
A petition must disclose facts required for validity by law, canonical style, and practice. Concealment of necessary truth or assertion of falsehood can obstruct validity according to the canons on subreption and obreption. A favorable rescript given Motu Proprio receives specified protection, but the phrase does not license fraud or erase express conditions.
Clauses and execution
A rescript can be granted in forma gratiosa, effective by the grant itself when no executor is required, or in forma commissoria, entrusted to an executor who verifies and applies it. Clauses such as if the allegations are true make factual verification central. Discretionary and Necessary Execution of a Rescript explains when an executor can refuse or must proceed.
Contrary law, acquired rights, competence, expiration, and conditions affect operation. A later general law does not revoke a particular rescript unless the law expressly provides otherwise. The document must therefore be read as a precise favor, not as a free-floating precedent for everyone in a similar situation.
Rescript ex Audientia
A Rescript ex Audientia records a decision or authorization of the Roman Pontiff communicated after an audience through a competent official. It is a special documentary route within papal and curial administration, not a synonym for every Rescript. Its scope and papal approval must be read from the record.[3]
Authority and documentation
A Rescript is ordinarily Church Discipline and a concrete act of governance. It can presuppose doctrine but does not create a new doctrinal grade. A private favor also does not silently alter universal law for persons outside its subject unless a competent derogation expressly says so.
Sensitive personal rescripts require lawful privacy even when their general canonical category is explained publicly.[4]
Etymology
The word rescript derives from the Latin noun rescriptum[5] which itself derives from the Latin verb rescribo, meaning "to write back or... reply in writing". It developed its specialised legal meaning due to regular responses by emperors or lawyers to petitions or legal questions.[6]
By analogy the term rescript is also applied to similar procedures in other contexts, such as the Ottoman, Chinese and Japanese imperial courts, or even prior to the Roman empire. Two well-known examples of Japanese Imperial rescripts were Emperor Hirohito's 1945 Imperial Rescript on the Termination of the War written in response to the Potsdam Declaration and his 1946 Humanity Declaration written in response to a request by General Douglas MacArthur.
Roman law
While the most common author of a rescript was nominally the emperor, the term referred generally to replies written by various officials from the local or provincial level to bishops in the religious hierarchy.[7] During the high Roman Empire the emperor had an officer, the magister libellorum, to deal with petitions (Latin: libelli) from citizens and draft replies. Those replies, originally written at the bottom of the petition, are thought to have been written largely by the magister libellorum and only issued in the emperor's name.[7] Due to the legal nature of many of those petitions and since the emperor served as a final court of appeal, the office was regularly held by jurists. Among these were Papinianus or Ulpian.[8]
These rescripts, as written answers from the imperial chancery, came to have legislative effect and took on two general forms: letters (Latin: epistulae) and subscriptions (a response validated by the emperor's written signature underneath; Latin: subscriptiones).[9] Some important early legal collections were composed largely of rescripts, for instance the Codices Gregorianus and Hermogenianus.[8] Many imperial rescripts are preserved in the Justinian's Codex which restated the body of Roman law.[9]
Modern law
France
In France, people have the possibility to ask an administration for a rescrit (rescript), which means that they will present to the competent administration a circumstanced particular case, and obtain a formal answer (the rescrit) by the administration explaining how the law will be applied to the submitted particular case. The rescript is binding for the administration, and may be used before a court of law to exonerate the person who asked for the rescript in case of prosecution. In English common law such a hypothetical process is not allowed, and cases must be determined on fact.
Japan
Japanese Emperors have issued Rescripts, including the Hirohito surrender broadcast and the Humanity Declaration.
Imperial China
In imperial China, "rescript for most of Chinese history simply means imperial response, usually in the form of a comment on an incoming memorial, either sent back to the original sender or transmitted in the form of an instruction."[10] Different terms have been used to refer to rescripts, including chìzhǐ (敕旨), zhàozhǐ (诏旨; 詔旨), or shèngzhǐ (圣旨; 聖旨). Palace memorials with the emperor's comments in red ink were called zhūpī zòuzhé (朱批奏折; 硃批奏摺; 'memorial to the throne (which is folded in concertina form) containing remarks written in vermilion').
Papacy
Papal rescripts concern the granting of favours or the administration of justice under canon law. In Roman Catholicism rescripts are responses in writing by the pope or a Congregation of the Roman Curia to queries or petitions of individuals.[11]
United States
The Massachusetts appellate courts issue rescripts to the lower courts. These are the equivalent of mandates (i.e. writs of mandamus) in federal appellate practice.[12]
See also
- Imperial Rescript on Education
- Imperial Rescript to Soldiers and Sailors
- Imperial Rescript on the Termination of the War
- Declaratory Rescript of the Illyrian Nation
References
- Back to citation Stevenson, Angus, ed. (2010). "rescript". Oxford dictionary of English (3rd ed.). Oxford University Press. ISBN 978-0-19-957112-3.
- Back to citation Code of Canon Law, canons 7–22 — Binding Latin law on promulgation, vacatio legis, authentic interpretation, strict interpretation, legal gaps, and the relation of later laws to earlier laws.
- Back to citation Rescript approving the Roman Rota norms in forma specifica — An official Rescript ex Audientia recording that papal approval in forma specifica gave the Rota's norms the character of particular law even in derogation from universal law.
- Back to citation Code of Canon Law, canons 35–93 — Binding Latin law on singular administrative acts, singular decrees and precepts, rescripts, privileges, dispensations, competence, interpretation, execution, notification, and cessation.
- Back to citation Hoad 1996, "rescript".
- Back to citation Lewis & Short 1879, "rescribo".
- Back to citation occurrence 7.0 Back to citation occurrence 7.1 Connolly 2018, "rescripts".
- Back to citation occurrence 8.0 Back to citation occurrence 8.1 Honoré 2012.
- Back to citation occurrence 9.0 Back to citation occurrence 9.1 Nicholas 2012.
- Back to citation Wilkinson 2013, p. 280.
- Back to citation Herbermann, Charles, ed. (1913). "Papal Rescripts". Catholic Encyclopedia. New York: Robert Appleton Company.
- Back to citation Mass. R. App. P. 1(c)
Bibliography
- Connolly, Serena (2018). "rescripts". Oxford dictionary of late antiquity. Oxford University Press. ISBN 978-0-19-866277-8.
- Hoad, T F, ed. (1996). Concise Oxford dictionary of English etymology. Oxford University Press. ISBN 978-0-19-283098-2.
- Hornblower, Simon; et al., eds. (2012). The Oxford classical dictionary (4th ed.). Oxford University Press. ISBN 978-0-19-954556-8. OCLC 959667246.
- Honoré, Tony. "magister libellorum". In OCD4 (2012). doi:10.1093/acrefore/9780199381135.013.3867
- Nicholas, Barry. "constitutions". In OCD4 (2012). doi:10.1093/acrefore/9780199381135.013.1796
- Lewis, Charlton T; Short, Charles, eds. (1879). "rescribo". A Latin dictionary. Oxford: Clarendon Press.
- Wilkinson, Endymion Porter (2013). Chinese History: A New Manual. Harvard-Yenching Institute Monograph Series. Vol. 84. Cambridge (Massachusetts) and London: Harvard University Press. ISBN 978-0-674-06715-8.