Thought exercise on Canon 1044

Good morning class. Our canon law topic for today is irregularity for the exercise of orders arising from mutilation. As you know:

• Canon 1041 states “The following are irregular for receiving orders: . . . n. 5. A person who has mutilated himself or another gravely and maliciously or who has attempted suicide.”

• Canon 1044 § 1 says “The following are irregular for the exercise of orders received: . . . n. 3. A person who has committed a delict mentioned in can. 1041, nn. 3, 4, 5, 6.” and

• Canon 1397 reads “A person who commits a homicide or who kidnaps, detains, mutilates, or gravely wounds a person by force or fraud is to be punished . . . according to the gravity of the delict.”

Okay, let’s assume you’ve got two priests who get into a brawl and—why are they fighting? I dunno, let’s say they’re fighting over a parking space—anyway, while they are swinging away at each other, one bites an ear off the other. Clean off. Now, analyze the status of the biter and the bitee. Are either, neither, or both of them irregular for the exercise of orders due to mutilation? Cite the law, account for the facts, and explain your answers.

Got it? Okay, see you this afternoon.

Excuse me? Whaddya mean, you don’t like my goofy classroom hypotheticals? Would it be more believable for you if we said these two clerics were, say, tough old Aussies? Anyway, who says this is a made-up case? Just for that, I’m gonna call on you first, young man.

See y’all this afternoon. . .

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The text of the law clears our bitee of any canonical concerns, for no longer can the victims of mutilation be irregular per se (cf. 1917 CIC  984, n. 2, gone from the 1983 Code). Canon 1029 is no obstacle to continuation in ordained ministry. Our biter, however, raises a different question, one that sent me back to the books. Some really old books.

Setting aside whether a mutilation need be strictly “delictual” to qualify for irregularity, and granting canonically the gravity and maliciousness of such an attack, it turns out, nevertheless, that the severing of an ear is not considered a “mutilation” of a “member” of the body under canon law. No less an authority than Gasparri wrote: “[T]he ear and nose are not members, for, if these are removed, the function of hearing or smelling are not entirely prevented.” Pietro Gasparri (Italian prelate, 1852-1934), Tractatus Canonicus de Sacra Ordinatione, in 2 vols., (Delhomme et Briguet, 1893-1894) I: 254-255, my trans.; see also, e.g., Josephus Laurentius (German Jesuit, 1861-1927), Institutiones Iuris Ecclesiastici [1902], 2^nd ed., (Herder, 1908) at 69, n. 80, fn. 1. Given the strict interpretation that must be accorded alleged irregularities (CLSA New Comm at 1214; P. Palazzini, s.v. “Irregularitas” in DMC II: 806-809, at 807) it appears that not even our biter falls within the terms of the law on irregularity for mutilation.

Well, I’ll be a monkey’s uncle.

As for whether our elderly cleric gives evidence of, say, amentia (1983 CIC1044 § 2, n. 2) and on those grounds can be impeded from exercising orders, that’s a different question.