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The case for applying Canon 1398 to politicians is very weak

May 30, 2007

UPDATE: June 4. On 31 May, Prof. Miller revised his position, and raised some additional thoughtful questions.

ORIGINAL POST: May 30. Robert Miller’s important essay for First Things (30 May 2007), wherein he says that, in accord with Canon 1398, “the Church should declare openly that [pro-abortion Catholic politicians] have incurred the penalty of excommunication latae sententiae“, must be carefully read before considering my remarks.

Two weeks ago, the Los Angeles Times (14 May 2007) wrote: “Catholics can and do argue about whether a lawmaker who votes to legalize abortion triggers a provision of church law that provides for the automatic excommunication of anyone who ‘procures’ an abortion.” I considered replying then to the effect that, while Catholics might debate the application of Canon 1398 to politicians, canon lawyers do not. But I held back for two reasons.

First, assuming my read of Canon 1398 is correct, the impossibility of using that canon to excommunicate politicians is so obvious that, for me to put forward as a discovery what, it seems, no qualified commentator doubts, struck me as pretentious. Second, until Miller’s essay, many (not all, but many) of the calls to excommunicate pro-abortion politicians under Canon 1398 were flawed on other grounds (e.g., excessive emotion, lack of charity, or the substitution of righteous rhetoric for knowledge) and unworthy of substantive reply.

But in Miller’s essay, we see a serious analyst applying, in charity, a fine mind to an important issue. He gets right so many things others have fumbled: Miller gently scolds Fr. Lombardia for his embarrassing alterations of the pope’s remarks, he prefaces canonical remarks with moral theology assumptions about not approaching the Eucharist in grave sin (although he seems unaware that Canon 916 does exactly the same thing), and he reminds Church leaders that their exasperating reticence to speak out clearly (and correctly, of course) on certain key issues can be very damaging pastorally.

But if Miller, with everything he brings to the discussion, is wrong in asserting that Canon 1398 can reach pro-abortion Catholic politicians, and I think he is wrong, does that not mean that the time has come to conclude this particular debate and focus on other ecclesiastical responses, including canonical ones, to the grave scandal these people give?

Now, before I try to make this case (using a tact different from what others might use), let me remind readers of two important but easy-to-overlook points: 1. Canon law is an international legal system; authors and opinions from around the world are routinely brought to bear on local or national canonical issues. 2. Canon law is a true legal system, but one independent of, and quite different from, the (European) civil or (Anglo-American) common law; one’s credentials as a secular lawyer are, therefore, of minimal use (and are sometimes positively misleading) in the interpretation of the Church’s legal system.

Consider: If canon lawyers qua canonists are not qualified to give corporate tax advice, explain the operation of long-arm statutes, or parse the constitutionality of jury instructions (and it is utterly obvious that they are not qualified to do any such things), is it out of place to suggest that secular lawyers are in a weak position to advise on the interpretation of canon laws? I think not.

Ok. Here we go.

Excommunication is a powerful and potentially effective response to certain offensive behaviors in the Church. Nevertheless, I think that calls to excommunicate pro-abortion politicians under Canon 1398 will fail, not because Church leaders lack the gumption to apply the canon, but because the canon cannot be applied that way in the first place. But here, rather than trying to recreate the substantive canonical arguments behind this assertion for a readership that brings vastly different backgrounds to this discussion, let me, even at the risk of coming across as making only an argument from authority this time, propose only this much: Those wishing to invoke Canon 1398 against pro-abortion politicians should, at the very least, be aware that there is little, and perhaps no, support for their position among credentialed canonical scholars around in the world.

There are now at least ten pantextual commentaries on the 1983 Code of Canon Law: four from Spain, two from the United States, two from Germany, and one each from Great Britain, Italy, and France. I don’t have access to the German works, but the others include: CLSA New Commentary (2000, American); Exegetical Commentary (1996, originally Spanish); Letter & Spirit (1995, British-Irish); Edicep (1993, Spanish); Code Annotated (1992, originally Spanish); CLSA Commentary (1985, American); Urbaniana (1985, Italian); Guide Pratique (French, 1985); and Salamanca (1983, Spanish). Each of these commentaries discusses Canon 1398, and not one of them even suggests that Catholic politicians are liable to its excommunication for procured abortion. Indeed, the CLSA New Comm expressly rejects the idea (even when Canon 1329 on accomplices is invoked, but that argumentation requires a separate explanation) and several others reject it by clear implication.

There are, in addition to the above, at least four major monographs on modern penal canon law: Woestman, Ecclesiastical Sanctions (Canadian, 2003); Calabrese, Diritto Penale (Italian, 1990); Borras, Les Sanctions (French, 1990); and De Paolis, De Sanctionibus (Italian, 1986). These, too, discuss Canon 1398, and none holds that Catholic politicians are liable to its excommunication for pro-abortion governmental activity. Or, to cite just one example of smaller, peer-reviewed canonical studies, Coriden’s demonstration of the limited reach of Canon 1398 (1986 CLSA Advisory Opinions), has to my knowledge not even been challenged, let alone refuted.

Thus one may fairly ask, has an interpretation of canon law that seems so obvious to those untrained in canon law really escaped the notice of virtually everyone trained in canon law? I can’t say for sure; it’s not impossible, of course. But the findings outlined above should certainly temper the enthusiasm with which some (not Miller, of course) have clamored for the application of Canon 1398 to politicians.

The truth of an assertion is not measured by its number of adherents or the academic degrees they posses (or don’t possess, as the case may be), but “there is wisdom in the advice of many” and Church law, in Canon 19, directs that careful attention be paid to the “common and constant opinion of learned persons.” My emphasis. Whatever the learning possessed by proponents of excommunicating pro-abortion politicians under Canon 1398, and at times it is impressive, I suspect Canon 19 has in mind attention being paid to those whose learning is in canon law and closely allied disciplines. And within canonical circles, I detect almost no support for reading Canon 1398 so broadly as to reach the pro-abortion Catholic politician (even assuming that such status is sufficiently identifiable for the purposes of applying the law).

I conclude by reminding readers that the above observations do not, in the slightest, suggest that Church law is bereft of responses to scourge of pro-abortionism among Catholics. Canon law can be effectively applied to the grave scandal of pro-abortion Catholic politicians. With others, I have pointed to several options worth investigating, including the wider use of particular legislation and personal precepts (cc. 1315-1319), a closer look at Canon 1369, and, under or in addition to Canon 1399, special universal legislation to address the peculiarly modern problem of pro-abortion Catholic politicians. Most immediately, though, we are finally seeing, Deo gratias, a wider application of Canon 915, and I would urge greater catechesis on Canon 916.

That’s a lot of options, and none of them require a tortured reading of Canon 1398 and disregard of several other important norms (including 1983 CIC 18, 221, 1323-1324, and 1425), for implementation.

Canon lawyers, like civil lawyers (indeed, any specialists), can make mistakes. They can take positions and make arguments that, in the course of things, might be shown as erroneous, or at least be obviated by later changes. But the fallibility of specialists does not warrant excessive credibility to the opinions to non-specialists. Absent a persuasive rebuttal of these observations, I think the time has come to shelve the idea that Canon 1398 is designed to reach pro-abortion Catholic politicians. That theory, if it could ever be said to have been a theory, is, as far as I can see, dead at the professional level, and continued discussion of it at the popular will only distract from other efforts, canonical and otherwise, that offer greater potential to serve.

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