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Automatic censures should be eliminated from Church law

September 26, 2015

Only two kinds of men publicly admit to doing evil: those who repent of their deeds and are willing to accept the consequences for having acted wrongly, and those who are comfortable with their conduct and believe that no serious consequences will come from divulging it.

Several reports based on Godfried Cdl. Danneels’ just-released, authorized biography indicate that the now-retired Belgian prelate helped lead a clique of cardinals directly opposed to Benedict XVI’s papacy. If true that suggests sin, but not crime. It seems, however, that some members of this clique, after Benedict resigned, engaged in pre-conclave politicking for then-Cdl. Bergoglio, politicking of the sort that is forbidden by conclave law (Universi 81). If true, that would be a sin and a crime. Danneels’ admissions, read in the light of other allegations and reports, suggests, then, that at least some cardinals committed at least some offenses for which they are at risk of the Church’s highest sanction, namely, excommunication, more precisely, latae sententiae (automatic) excommunication.

Which means they are at risk for—not much, really. Shall I elaborate?

The canonical consequences of “excommunication” are set out in Canon 1331. A cursory glance at that canon shows these consequences to be very serious, including: prohibiting individuals from celebrating Mass, participating in sacraments, or exercising ecclesiastical roles, offices, and functions, and so on. Besides suffering the spiritual consequences of having engaged in whatever gravely sinful conduct underlies the crime in question (and note: consignment to hell has never been a consequence of excommunication, though it could be one of unrepented sin), any Catholic automatically excommunicated is in deep trouble.

But that same cursory glance at Canon 1331 will not show (unless one is trained in canon law) that most consequences of excommunication become relevant in the external forum only if the excommunication is “imposed or declared”. That short, technical phrase means that, while one who is “automatically” excommunicated labors under the personal burdens of this sanction, it is only when an excommunication is “formal” that actions performed by canonical criminals raise questions for Church life and governance.

The canonically untutored do not (and should not be expected to) understand that the consequences of excommunication for public Church life differ dramatically based on whether the excommunication is “automatic” or “formal”, that most of the ‘bite’ that people attribute to excommunication (like not being able to function in Church offices) comes only with formal excommunication, and that formal excommunication has practically disappeared from modern Church life because (1) a host of canonical defenses unnecessarily burdens prosecution of excommunicable crimes, and (2) ecclesiastical authority apparently feels that, as long as latae sententiae excommunication is on the books (and most folks think it does what “excommunication” does anyway) why bother with a complex, portentous process for turning an automatic excommunication into a formal one? Whatever the reasons, Roman prosecutions of “formal” excommunication cases are rare; those involving prelates are very rare; those involving cardinals are essentially unheard of.

Thus, it is hard to see what canonical consequences a cardinal would have to fear if he were to admit to a canonical crime punishable by latae sententiae excommunication. If it turns out that one or more cardinals violated, say, Universi 81, they might (and I stress, might) be “automatically” excommunicated, but “automatic” excommunication impacts—I hate to put it this way—only the liceity of ecclesiastical acts, not their validity. So, while it might be distressing to see appointed to synodal service some cardinals who could be “automatically excommunicated”, whatever acts such men might place at a synod would be, by the plain text of canon law, valid. And no one seems especially incentivized to inquire further than that.

All of which re-occasions my call, then, for the simple elimination of latae sententiae censures from Western canon law.

Every time conduct carrying the possibility of automatic excommunication comes in for public discussion (whether it be umpteen variations on procuring abortion, renegade episcopal ordinations, ‘women’s ordination’, violations of the seal, a range of heresies, violation of conclave secrecy, politicking for papal candidates, etc., etc.) every single time, the discussion of these cases inevitably turns away from the underlying sins/crimes toward the technicalities of penal procedural law. The whole focus changes from how sinful and offensive conduct should be assessed among believers to how Book Six of the Code is parsed by canonists. Automatic excommunication allows Church leaders and commentators to substitute platitudes about how so-and-so actually only ‘excommunicated himself’ when what needs to be upheld is ecclesiastical authority’s role in defending the doctrines and practices of the faith community against malfeasants.

I have, it should be obvious, no problem with the penalty of excommunication itself. Excommunication is deeply rooted in Biblical precedent and, when properly imposed for serious ecclesiastical offenses, it has been used to great good throughout Church history. But automatic excommunication, whatever useful role it might have played in the past, is a distracting anachronism in modern canon law. It confuses the eschatological consequences of sin with the ecclesiastical consequences of crime. It requires criminals to be their own prosecutors and judges. It provokes crises of conscience for some who conclude that they are excommunicated when they are not, but helps others to avoid confronting their consciences when they correctly conclude that they are not, technically speaking, excommunicated.

In his const. Apostolicae Sedis (1869), Bl. Pius IX took the first modern steps toward bringing the by-then terribly-overgrown system of automatic censures into some kind of order. Cdl. Gasparri helped further reduce latae sententiae penalties in the 1917 Code. St. John Paul II promulgated the 1983 Code with even fewer automatic sanctions still and in 1990 he issued the Eastern Code of Canon Law with none at all! Notwithstanding a slight uptick in the number of crimes punishable by automatic excommunication under Benedict XVI, the clear trend is toward eliminating automatic sanctions from Western canon law.

May that trend be continued. Nay hastened.

Update (December 2018): Some recent studies of this issue include

Christopher Armstrong, A Critical Appraisal of ‘Latae Sententiae’ Penalties in the 1983 Code of Canon Law, (CUA diss. 548, 1996) 361 pp., abstract at Jurist 56 (1996) 922-923.

Bruce Piechocki, “The contemporary discussion of ‘latae sententiae’ penalties”, (CUA licentiate thesis, 1991).

Thomas Power, “‘Latae sententiae’ penalties in the 1917 Code of Canon Law”, (CUA licentiate thesis, 1987).

Update February 2019:

Automatic penalties confuse every topic they touch (11 Feb 2019).


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