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Fake canon law goes on goin’ on

Fr. James Keenan writing in Crux this week makes his own a question raised (last July, it seems) by Rocco Buttiglione in L’Osservatore Romano: “Is there any contradiction between the popes who excommunicated divorced and remarried persons and Saint John Paul II who lifted that excommunication?”

That’s fake canon law. John Paul II never lifted any excommunication against divorced and remarried Catholics because, quite simply, there was no excommunication against divorced and remarried Catholics for him to lift. Shall we talk about it?

Buttiglione writes in the L’OR piece upon which Keenan draws: “Once upon a time, divorced and remarried persons were excommunicated and excluded from the life of the Church. That kind of excommunication disappears from the new Code of Canon Law and Familiaris Consortio, and divorced and remarried persons are now encouraged to participate in the life of the Church and to give their children a Christian upbringing. This was an extraordinarily courageous decision that broke from an age-old tradition. But Familiaris Consortio tells us that the divorced and remarried cannot receive the sacraments.

Gracious! however far back in Church history Buttiglione needs to search for an excommunication of divorced-and-remarried Catholics, he apparently thinks that the 1917 Code itself excommunicated divorced and remarried Catholics and that, only by making a “courageous decision that broke from an age-old tradition”, could John Paul II ‘disappear’ that “excommunication” from the new (1983) Code of Canon Law.

There is just one problem with Buttiglione’s and Keenan’s canonical narrative of a pope kicking down a penal door locked against divorced-and-remarried Catholics—and thus with their broader ‘if-John-Paul-could-then-Francis-can’ claim, namely: the 1917 Code did not excommunicate divorced and remarried Catholics.

Oops.

Neither Buttiglione nor Keenan provide a citation for their claim about what canon law allegedly did up to the time of John Paul II (nor, come to think of it, did Abp. Scicluna who was, it now seems, uncritically repeating Buttiglione’s claim and extending it to embrace adulterers!), so one is left to guess at what they had in mind. But a couple of ideas occur to me, some of which I have addressed before.

Maybe Keenan and Buttiglione had in mind the Pio-Benedictine excommunication levied against Catholics who attempted marriage in violation of canonical form; problem is, this sanction was applicable to all Roman Catholics (not just to divorced-and-civilly-remarried ones) and, more importantly, it had already been abrogated by Paul VI in 1970, a dozen years before the 1983 Code went into force!

Or maybe Keenan the American (if not Buttiglione, an Italian) recalled when American Catholics who divorced and civilly remarried were indeed excommunicated for that offense; problem is, that rule was peculiar to American (not universal) canon law, it dated back only to 1884 (hardly ‘age-old’), and, most importantly, it too had already been abrogated in 1977—again by Paul VI, not John Paul II—several years before the 1983 Code was promulgated.

Or maybe by “new” Code of Canon Law, Buttiglione and Keenan meant the 1917 Code which, in its day, was certainly new; problem is, I can’t find an excommunication for divorced and civilly remarried Catholics in the main, pre-Code, penal document of the 19th century, Pius IX’s Apostolicae Sedis moderatione (1869). Do Buttiglione and Keenan know of one? Of course, even if one were found lurking somewhere, it had obviously ‘disappeared’ from codified canon law some 65 years before John Paul II arrived on the scene.

Or maybe Buttiglione and Keenan understand by the term “excommunication” a much older usage that sometimes blurred the distinctions between “excommunication” (as a canonical penalty, c. 1331) and “denial of holy Communion” (as a sacramental disciplinary norm, c. 915); problem is, their claim about what John Paul II supposedly did demands that they use canonical terms as he and the Church understand them today—and as Buttiglione himself recognizes when he notes above that, despite the (alleged) lifting of a (non-existent) excommunication, divorced-and-remarried Catholics are still prohibited the sacraments (a statement wrong in some respects, but right enough in this regard).

So much contextualizing and back-storying, just to address one more fake canon law claim. But at least such research allows one to argue better not ‘if-John-Paul-could-then-Francis-can’, but rather ‘John-Paul-didn’t-and-Francis-shouldn’t’.

Sever ‘canon law’ from ‘pastoral practice’ and lots of things make sense

I am tempted to address at length Austen Ivereigh’s commentary on Fr. Raymond de Souza’s observations on Cdl. Wuerl’s statement on Francis’ document Amoris laetitia, but at a certain point the law of diminishing returns sets in leaving such an exercise tedious.

So let me just say: Ivereigh is free to argue that Amoris does not undermine Church teaching on sin, but he needs to respond to those who disagree with his claim with something more than paternalistic tsk-tsk’ing and, before anything else, he needs to face the simple fact that Wuerl can’t be right (as I think he is, if narrowly read) and the bishops of Malta also be right (as I think they certainly are not)—which is de Souza’s main point.

The reason Ivereigh misses de Souza’s point is, I suspect, that, deep down, Ivereigh thinks that “canon law” and ‘approved pastoral practice’ are two fundamentally different things. Thus Ivereigh could logically hold that canon law (including the barring of divorced-and-remarried Catholics from holy Communion) has remained the same, while at the same time holding that pastors may admit such persons to holy Communion under conditions other than those already recognized by the Church (namely, separation of abodes, or a commitment to live as brother-sister where the irregular marriage is not known). Ivereigh would be right, if canon law has little or nothing to do with what pastors should really do.

At some point I hope that Ivereigh et al will sit down, look at the text of Canon 915 and the numerous ecclesial values behind it, and recognize, among other things, that degrees of personal culpability (which Ivereigh and others go on and on and on about, as if that were the central insight his adversaries lack) have nothing to do with the operation of the objectively oriented Canon 915, the main law that controls pastoral practice in this area—whereupon they will do one of two things: accept that tradition and promote it, or acknowledge that tradition and honestly call for changing it. At which point all sides would be talking about the same, and the dispositive, issue.

What I fear is that, instead, Ivereigh et al, ignoring the connection that must, and usually does, exist between law and practice, will simply keep on repeating that canon law has not changed but good pastoral practice has. Which is a huge waste of time.

And, Happy Holy Thursday, all!

Could a pope BE in schism?

Concerns that Pope Francis could cause a schism in the Church have been percolating in Catholic circles for some time now: US Catholic, Crux, Inside the Vatican, The Spectator. More recently, though, a narrower and more technical question has begun to surface, namely, whether a pope himself could be in schism. Following are some initial thoughts on that question.

Canon 751 of the 1983 Code defines schism as “the refusal [detractatio] of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.” The first thing to notice here is that schism is defined as a rupture between two persons (a schismatic and the pope qua pope) or as between a person and an institution (a schismatic and a Church enjoying communion with the pope). The Code does not recognize, say, ‘schism from Tradition’ or ‘schism from doctrine’ as schism, even if one’s discord with Tradition or doctrine prompts one’s act of schism.

Schism is, of course, a grave crime under Canon 1364 but, for a variety of reasons (incl. 1983 CIC 331 and 1404) the prosecution of an allegedly criminous pope is not possible and, even if a trial were possible, it is difficult to see how a pope could steadfastly and consistently refuse submission to himself or how one could steadfastly and consistently refuse communion with Churches in communion with himself—at least in any externally observable way as is necessary per Canon 1330. Pio-Benedictine law on schism (1917 CIC 1325 § 2) read virtually identically to the current law, but I’ve seen nothing yet that suggests its commentators had found a way for popes themselves to commit the crime of schism. Note that in the Catholic World Report interview linked above, Cdl. Burke answered  a question about the possibility of a pope being “in schism or heresy” affirmatively only in terms of heresy, not in terms of schismWhich brings us to the next point.

Canonical commentators new and especially old are wont to observe that schism, while conceivable in a ‘pure’ form, is in practice almost always bound up with a heresy, chiefly, it seems, with some variant on the notion that the Church never was, or at any rate no longer is, the Church that Christ founded; in other words, a bad ecclesiology could fester into a heresy strictly speaking (again, 1983 CIC 751 olim 1917 CIC 1325 § 2) and said heresy could in turn manifest itself in a state of schism. Canonical literature, as I and others have noted, finds the possibly of a pope falling into personal (or worse, public) heresy possible if not very plausible—meaning that such a scenario is one among others that centuries of daily Catholic prayers for the pope are offered to prevent.

Bottom-line: as to the specific possibility of a pope himself committing (as opposed to, Deus vetet, causing or occasioning in others) the crime of schism—I’m not seeing it.

A small but important point is at risk

{NB: This post has some unusual formatting.}

The debates over admission of divorced-and-remarried Catholics to holy Communion in the wake of Amoris have focused almost exclusively on what is just one canonical problem: the public reception of holy Communion by public sinners. But there are other, canonically distinct, manners of receiving Communion and other, canonically distinct, types of would-be, if problematic, communicants. These lesser known scenarios are, however, at risk of being forgotten in the debates concerning public reception of Communion by public sinners, even though these lesser known rules might shed some light on some issues raised by Amoris.

At its most basic, the canonical tradition recognizes two types of sinners (private and public) and two types of Communion distribution (private and public). Based on what canon law means by terms such as “public”, “private”, “sinner”, and so on, the rules here are: 

SINNER         REQUEST                MINISTER

Private            Private                     Refuses per Canon 843

Private            Public                       Admits per Canon 915

Public             Private                      Refuses per Canon 843

Public             Public                        Refuses per Canon 915

What might impede understanding of this simple construct is:

(1) ‘private Communion’ (not “spiritual Communion”!) has all but disappeared from devotional life and so, today, the vast majority of receptions of holy Communion are ‘public’, meaning that most faithful have no idea that the rules for ‘private Communion’ even exist, let alone that they might differ from the rules for public administration of the sacrament; and,

(2) canon law does not regard most would-be communicants as ‘sinners’ in the first place (whether public or private), so most faithful have little or no experience of actually seeing someone not being admitted to holy Communion.

In any case, we must be clear: public sinners (as the Church has always regarded divorced-and-remarried Catholics) requesting private holy Communion are always to be turned away. Consider, even: “Occult sinners who approach the Sacrament privately and are known, by the minister, to be unrepentant must be excluded from this Sacrament…” Davis, Moral and Pastoral III: 206; “Secret sinners who privately request Communion are to be refused if the priest knows that they have not repented….” Halligan, Administration 110. See also, e.g., Abbo & Hannan, Sacred Canons I: 854, and Dom Augustine, Commentary IV: 229.

Note a key point about private and public sinners insofar as admission to ‘private Communion’ is concerned: a minister’s personal conclusion that an individual has unrepented grave matter on his/her conscience suffices for withholding the sacrament requested privately! That point alone helps us understand why Canon 915, which operates in the face of public sin actually increases the number of faithful eligible for holy Communion within the norms governing any reception of holy Communion.

The above being understood, now, one may ask, especially of those offering the most extreme interpretations of Amoris (e.g., the Maltese), do they, in line with (as far as I can tell, an exceptionless) canonical interpretation, support the withholding of holy Communion from public sinners who might, however rarely, ask for that sacrament privately? If not, why not?

Or is this small but important line of thought, too, simply being abandoned in the wake of Amoris?

I am a lawyer, not a mind-reader

Cardinal Vincent Nichols’ echoing of claims that Amoris laetitia changed no doctrines occasioned a question for me: Am I the only (or among the few) Amoris critics who agrees with Amoris defenders that Pope Francis made no doctrinal changes in Amoris?

I do not think that Francis changed any doctrines in Amoris (or even purported to change any doctrines—assuming a pope could have changed doctrines this way, which I would dispute) and thus I regard the kind of correctives routinely offered by Nichols, et al., as superfluous. But I’ll go a step further: I do not think that Francis changed any disciplines in Amoris (or even purported to change any disciplines—assuming a pope could have changed disciplines this way, which I would also dispute, though less vigorously than above). In short, I hold that the few who claim Francis changed doctrine via Amoris, and the many who claim that he changed disciplines therein, are wrong.

That said, though, I still regard Amoris (or at least its eighth chapter) as seriously flawed, not because of doctrinal changes it never attempted and not because of disciplinary changes it never effected, but because of the ambiguity and incompleteness with which it discusses certain key, doctrinal and/or disciplinary factors that go into making real world, concrete, Yes-you-can or No-you-can’t decisions regarding Penance and holy Communion. All of this I have discussed many, many times.

As for why the pope (assuming my characterization of his document is correct) chose to write ambiguously and/or incompletely about these factors, I do not know. I am a lawyer reading texts, not a mind-reader divining motives, and the lawyer in me has concluded that: (1) no doctrines are changed in Amoris; (2) no disciplinary norms are changed in Amoris; but (3) several factors vital to considering requests for and administration of sacraments are ambiguously and/or incompletely presented in Amoris.

Even this much, though, prompts some additional conclusions, including:

(1) all of the canons governing sacramental administration, notably Canon 915, remain in full force;

(2) the Maltese, the Germans, and Cdl. Coccopalmerio (but, I say again, not the Argentinians, not quite) go well beyond what the pope actually wrote in Amoris, though some of his phrasings in Amoris frustrates one’s appealing to it as a corrective; and,

(3) bishops such as Chaput and the Western Canadians can also invoke Amoris to justify their sacramental polices even though their policies are the polar opposite of those being pushed by the Maltese et al.

That is why I say that Amoris, a papal document so framed that it really can be plausibly invoked by diametrically opposed schools of sacramental practice, is itself what’s flawed and is itself what must be addressed.

Canon 377 § 5 and the Chinese negotiations

Canon 377 § 5 of the 1983 Code states “In the future, no rights and privileges of election, nomination, presentation, or designation of bishops are granted to civil authorities.” Frankly, the canonical theorist in me has always been uncomfortable with Canon 377 § 5 (it has no parallel in Eastern law) in that the provision seems to be at odds with the important legal maxim “Par in parem non habet imperium”, that is, an equal (the pope who legislated Canon 377) cannot bind an equal (a later pope who might wish to disregard this kind of canon). But the law clearly says what it says.

Now, to judge from usually reliable news sources, the granting of certain rights of what look like, at least, “nomination” (in the English sense of the word, which differs somewhat from the Latin) or “presentation” (beyond the narrow sense of that phrase in religious law where it is usually encountered) of episcopal candidates seems to be what Pope Francis has in mind for China. At any rate, Joseph Cardinal Zen (emer. Hong Kong) seems to think so and his views always need to be considered very seriously in such matters.

Setting aside, though, the possibility that such a plan might not be, in the end, what Francis actually has in mind, and prescinding for the moment from the possibility that Canon 377 § 5 might have been written too broadly to begin with, it is important to realize that the norm itself rests on some very strong Conciliar roots.

The Second Vatican Council’s decree on bishops, Christus Dominus (1965) 20, stated: Since the apostolic office of bishops was instituted by Christ the Lord and pursues a spiritual and supernatural purpose, this sacred ecumenical synod declares that the right of nominating and appointing bishops belongs properly, peculiarly, and per se exclusively to the competent ecclesiastical authority. Therefore, for the purpose of duly protecting the freedom of the Church and of promoting more conveniently and efficiently the welfare of the faithful, this holy council desires that in future no more rights or privileges of election, nomination, presentation, or designation for the office of bishop be granted to civil authorities. The civil authorities, on the other hand, whose favorable attitude toward the Church the sacred synod gratefully acknowledges and highly appreciates, are most kindly requested voluntarily to renounce the above-mentioned rights and privileges which they presently enjoy by reason of a treaty or custom, after discussing the matter with the Apostolic See.

The kind of language suggests that more than temporary expediencies are at work behind Canon 377 and that, therefore, more than temporary expediencies should be considered before disregarding it.

A number of countries still enjoy a concordat-based right to prior notice of pending episcopal appointments in their lands, this, to allow time for exchanges of views concerning same (Exegetical Comm II/1:759), but a few others have, in whole or in part, surrendered their rights in these matters (GB&I Comm 216). The trend may be small, but it is welcome.

The Holy See / China negotiations are not, it seems, limited to episcopal appointment matters, and prudence will, as always, have to temper the application of principles. Still, let’s hope that Church-State negotiations in one very tense corner of the world don’t result in unintended Church-State consequences for others.

Addendum: (1) A few months ago George Weigel made points worth recalling here. (2) Cdl. Zen has more to say here.

‘Sexual relations’ and ‘conjugal relations’ differ categorically

Among the fault lines revealed by the ecclesiastical earthquakes erupting after Pope Francis’ Amoris laetitia, we can see, I suggest, how some high-ranking ecclesiastics seem inadequately to understand the differences between “sexual relations” and “conjugal relations”.

Most any man and any woman can have sexual relations, of course, but only spouses can have conjugal relations. While physically the actions are the same, the differences between a non-married couple engaging in sexual relations and a married couple engaging in conjugal relations are numerous in the natural order (emotionally, psychologically, even legally); if engaged in between Christians, those differences become categorical (sacramentally, spiritually, and even canonically).

I flagged this confusing of “sexual relations” with “conjugal relations” in my comments on the Maltese Disaster noting that Bps. Scicluna & Grech had carelessly spoken of non-married couples exercising a conjugal virtue (Criteria, # 9). But they were not the first, nor are they the only, prelates to disregard the crucial distinctions applicable here.

Amoris itself confuses “sexual relations” and “conjugal relations” by invoking, in its controversial footnote 329, the Second Vatican Council’s reminder to married persons not to “separate” for too long a time (see Gaudium et spes 51, which speaks exclusively in terms of spouses and conjugal relations) as if it were a warning against non-married couples discontinuing their sexual relations!  From a purely scholarly point of view, Amoris’ invocation of advice to married couples about safeguarding their rights as if it were a disincentive to non-married couples to cease usurping rights that are not theirs, is inexcusable, but—and this is crucial—footnote 329 is, as far I have seen, the only time that Amoris makes this fundamental error in categories. As such, and notwithstanding that footnote 329 should be repudiated, it could be excused as a one-time misstatement in an otherwise very lengthy document.

That is, until others, the Maltese in a document published in L’Ossevatore Romano as above, and now Cdl. Coccopalmerio in a book published by Libreria Editrice Vaticana consciously repeat that confusion by saying about Amoris fn 329 that it presents “a suggestion given by the Council for matrimonial situations, in other words for legitimate unions, but was applied by [Amoris] to the case of unions that are, at least objectively, not legitimate. I believe, however, that such a difference is not relevant for the correctness of the aforesaid application” (Coccopalmerio, p. 24, my trans.).

Dare I say “obviously”—the categorical confusion between mere “sexual relations” and spousal “conjugal relations”  made in Amoris fn 329 when it misapplied Conciliar advice for married persons to non-married persons, by taking advantage of a wider disinterest in and/or ineptitude for theo-canonical precision among many ecclesiastical figures, is now spreading from the debate over admitting divorced-and-remarried Catholics to holy Communion, as important as that is, to questions of the moral liceity of sexual acts between married vs. non-married persons, the basic ability of all the faithful to resist sinful temptations, and one’s eligibility for valid reception of Penance, among various other things.

Dare I say “obviously”—this confusion must cease.