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Nooo, Canon 17 does not let us undercut Canon 915 and what it protects

January 5, 2018

A professional knows the limits of his knowledge. An amateur does not know the limits of his knowledge. A dilettante does not know that there are any limits to his knowledge.

Based on the biographical interview he granted to the Catholic Herald, it seems that Stephen Walford is a professional pianist and an amateur theologian (one’s dearth of formal education in a complex discipline being an obstacle, but not a complete bar, to one’s achieving some knowledge of at least some topics within that discipline), rather as I am a professional canonist and an amateur, I dunno, Latinist or woodwind player. Nothing wrong with being a professional, of course, or an amateur; but dilettantes are something else. If, having watched “Searching for Bobby Fisher” and knowing how the horsey moves, I started opining publicly on the Sicilian opening, what would I be? A dilettante. And chess, mind, is a little thing.

Now, in regard to canon law, which Walford repeatedly invokes in the course of trashing as “dissenters” anyone who questions the text and certain applications of Amoris laetitia and its progeny, Walford is simply a dilettante unaware that most of his purported explanations of canon law have little or no connection to what the law really means—and sometimes, not even to what it says. And canon law, mind, not to mention the doctrine it works to protect, is a big thing.

It is difficult to discuss law, of all things, with people who not know what it actually says. For an example of Walford’s misstating what the law (here, Canon 915) says, see his claim that “canon 915 refers to ‘obstinate’ and ‘persevering’ manifest grave sinners.” Of course, John Paul II’s Canon 915—aware that the Church cannot and does not judge souls or determine who is personally culpable for sin or if so by how much—does no such thing. Rather, this papal norm responds to objectively reckoned and publicly observable situations of sin and, in an unbroken line of practice going back to Scripture, directs ministers of holy Communion to withhold that most august Sacrament from persons who, by their public conduct, have placed themselves within the purview of the canon.

Confusing “sinner” and “sin” is, I grant, quite common in this debate and even several ranking prelates seem to think that externally-made assessments of personal culpability (however that oxymoronic task is to be accomplished) are relevant to the operation of Canon 915. But what can I say that has not been said before? Treating “sinner” and “sin” as equivalents is something a professional would avoid, while an amateur, intrigued by the distinction once he saw it, would, hopefully, stop treating the terms as synonyms.

It is not, however, Walford’s mistaking the plain text of Canon 915 that attracts my attention, but rather his attempt to explain what Canon 17—a norm little noticed in this debate, for good reason—means and allegedly how, by reading Pope Francis’ words in Amoris through in its light, “a path maybe opened to reception of Holy Communion” for divorced-and-remarried Catholics.

As we are talking about canon law, I suggest we start with the canon. The whole canon.

Canon 17. Ecclesiastical laws must be understood in accord with the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator.

A canonist would recognize immediately why Canon 17 has almost nothing to do with Amoris laeitia for Amoris is not, in either form or substance, a legislative document at all, so there is no “ecclesiastical law” to interpret therein, let alone one capable of upending Canon 915.

Even an amateur might read Canon 17 and conclude that, whatever disciplinary weight a passage or two in Amoris might (I say might) carry, assessing that weight requires a process that starts with careful study of the actual terms used in “text and context” (as those two words are understood in canon law), that further inquiry into “parallel places” (as that notion is understood in canon law) might be required, perhaps going on to the “purpose and circumstances of the law” (as that phrasing is understood in canon law), and that inquiry about the “mind of the legislator” (as that term is understood in canon law) could be helpful. Of course, a theory floated on a website does not satisfy this textual and contextual study requirement.

And a dilettante? Well, he might just skip most of the actual text of Canon 17, seize upon the final phrase about the “mind of the legislator”, claim that Canon 17 bids us to unlock the “far more nuanced” thought of Francis in regard to Canon 915, disparage “those whose rigidity betrays a pharisaical intransigence”, and soar off into surmises about “what the Holy Spirit is saying to the Churches at this time.”

Heady stuff, this Canon 17.

Except, it’s not. Let me offer some comments on what the term-of-art, “mind of the legislator”, means in canon law, why it has little to do with the Amoris debate, and why it has almost nothing to do with Walford’s imaginings about what Francis might be imagining. I’ll get right to it.

The CLSA New Commentary on the Code of Canon Law (2000) at 75, addressing Canon 17, states (with my emphasis):

The mind the legislator (mens legislatoris) does not mean the subjective mind of the legislator or his successor—what he inwardly thinks or wills—because that is largely unknowable and even irrelevant. It is the objective text of the law that must be considered, not what anyone presumes the legislator might have been thinking when he made the law. The “mind the legislator” does not refer to a human person’s mind at all. [!] Instead it is a construct, an “institutional figure” signifying the whole institution of the law itself—the canonical system—especially the basic rules, values, and principles that underlie and support it. Knowing the “mind the legislator” takes considerable study and experience in the field of canon law, and it also requires knowledge of related disciplines such as ecclesiology and moral theology.

This explanation of what the “mind of the legislator” really means in canon law pretty much demolishes, I think, any theory that, by passing Amoris under the special lamp of Canon 17, one can make out Francis’ mind as abrogating or even derogating from the plain, hitherto uncontested, divinely-rooted Canon 915. Whatever Francis might have been thinking when his signed Amoris, and however much might be his or others’ implicit sympathy for policies that do contravene Canon 915 (think Maltese bishops), neither the text of Amoris nor appeal to Francis’ supposed “mind” suffices to relieve ministers of holy Communion from their duty under law, Canon 915.

Shall we see another? The CLSA Commentary (1985) at 36 reads (again, my emphasis): “The presumption [behind Canon 17] is that the legislator said what was meant; hence the meaning of law should not be changed on the bases of factors which are not expressed in the law itself. The interpretation of law is a subtle art; it cannot be done well without proper training in law, its history, and in a number of relevant sciences.” I appreciate the line that interpretation of law cannot be done well except by persons with certain talents and training. Obviously interpretation of law per se can “be done”, these days, by anyone with access to the internet. (Indeed, that is one of the reasons why I blog, to correct, as best I can, just some of the multitudinous misrepresentations about canon law floating around out there. But I digress.)

I could cite additional professionals as to the proper meaning of Canon 17 (it is the stuff of which dissertations are made) and which I think parallel the position taken by the Americans. Indeed I might even point to the Great Britain & Ireland Commentary (Letter & Spirit, 1985) at 17-18, which I am sure Walford could find easily, which seems open to considering, among many other things, the legislator’s “whole manner of exercising authority”, but even here, the GB&I immediately warns that such considerations can only be invoked when the law in question (here, Canon 915) is itself in doubt (and Canon 915 has never been in canonical doubt, though it is has often been ignored by ministers thinking they are being “pastoral), that even then such guesses would yield only a “subjective assessment” as to legal meaning, and that in no case does such gleaning of the “mind of the legislator” result in an “authentic interpretation” (c. 16) of the law—which is the event I have long said would be necessary (assuming it could even be issued along the lines that Walford and some others seem to think is correct) to restrict or remove Canon 915.

There are other problems with Walford’s essay but let these remarks suffice for now.



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