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Canonical deep breath time

March 30, 2020

Since COVID19 left Communist China last month and began its rampage around the world a myriad of issues and problems have been confronting us all. Among these crisis items are a host of canonical questions, questions that arise on a daily, sometimes an hourly, basis and which take almost innumerable forms, often reformulating themselves before anything like coherent answers from informed persons or authorities can be formulated to their first instantiation. The internet, of course, magnifies and speeds the dissemination of canonical views and opinions, right ones as well as wrong. In short, folks, it’s deep breath time. Not everything is going to be sorted, let alone sorted correctly, within a few minutes of its popping up.

Here I offer a few observations on six matters, in no particular order.

1. Do not assume that some wrong, even stupid, policies being announced by various levels of Church government are necessarily canonically illegal policies. Christ, who foresaw COVID19, nevertheless gave considerable authority to his Church, specifically to his bishops and popes, to formulate how the Church would carry on his mission in these days. People should be very wary of concluding that a given a local Church policy is canonically illegal and can therefore simply be disregarded.

Consider, e.g., that for most of Church history the institution of “territorial interdict”, whereby Church authority could shut down access to sacraments for the innocent as well as the guilty in whole countries, was practiced. See most recently 1917 CIC 2268-2277. There were, of course, efforts over the centuries to mitigate the impact of territorial interdicts on the innocent but, in its heyday, though criticized on prudential grounds, interdicts were not attacked as illegal in themselves nor as somehow outside of the Church’s authority to implement. Today, what amounts to territorial interdicts are being imposed (rightly or wrongly, in terms of medical advice) as a way to protect the innocent. Even if such policies are wrong-headed (as some seem to me) that does not necessarily mean they are canonically illegal.

2. The use of communication devices (e.g., cell-phones, video devices) in sacramental Confession has been an interest of mine for some time and I published a peer-reviewed series of three articles exploring the validity and liceity of such practices.* While I far prefer such matters to be debated in the calm of academe some points apparently need to be made now.

The prevailing opinion against “remote” Confession or “technology-assists” in Confession (and people who know me know my great respect for prevailing opinion) is (a) rather more nuanced than is being presented these days and (b) rests heavily on doctrinal postulates concerning the role of the human voice in sacramental form. I have argued that the role of human voice might not be as determinative for sacramental form as it has been narrowly presented to date and that, even in schools holding for “voice”, technology-assisted Confessions in times of crisis were not uniformly ruled out, this, by canonists of impeccable credentials such as Felix Cappello. Moreover, legitimate concerns about eavesdropping on sacramental Confessions carried on by cell-phone are prudential in nature, not doctrinal. A Confession so violated is still valid and licit. Since 1998 an automatic excommunication threatens those who record the contents of a sacramental Confession, here.

Now, so far, the “guidelines” I have seen regarding the use of, say, cell-phones for in-person Confession are descriptive in nature, not directive (so I am not sure they even qualify as normative documents), but they certainly do not determine the validity of personal Confessions attempted with technology assistance. If some arch/bishop actually issues a precept against their use, we’ll deal with that then.

Speaking of precepts, and the lack thereof, let’s move to another point.

3. That a bishop could purport to authorize the enunciation of sacramental form for Anointing by a cleric and the execution of the sacramental matter by a hospital worker gives some insight into what kind of challenges confront sound pastors and canonists these days. But, while that bizarre idea was shot down in a few hours thanks to the internet, a new mess has taken its place, one whereby a bishop thinks he can “suspend” the celebration the sacrament of Anointing in times of greatest need!

Keeping this short, I know of no authority whereby an arch/bishop can “suspend” the operation of a sacrament itself so I can only conclude that whenever a proper, willing minister utters the correct form while applying the necessary matter to an eligible, willing, recipient, the sacrament occurs. All of the usual considerations for the administration of sacraments in time of serious danger apply, of course, and those factors lean heavily (not uniformly, but heavily) in favor of administration of the sacraments, especially to the gravely ill.  Again, if some bishop actually issues a precept against celebrating Anointing, it can be dealt with then.

4. Slightly distinguishable from the above case are the many arch/dioceses that are delaying the Easter administration of Baptism (and thus Confirmation, and first holy Communion) for catechumens (many of whom have been preparing for over a year) and the sacramental reception into full communion of many other already-baptized persons. I think such people have an acquired right to these sacraments and, while the Church has the authority to regulate the exercise of rights (see c. 223), every effort should be made to provide these sacraments in a timely manner, regardless of whether, say, “a fuller participation by the community” might be more feasible later. Consider, some bishops are allowing up to ten “technical assistants” to help priests broadcast their Masses on-line. Well, if ten tech aids can gather to hold lights and point cameras, surely a half dozen candidates and catechumens can kneel before their priest and be baptized, confirmed, and communicated.

5. Infants are to be baptized “in the first few weeks” after being born, even sooner, of course, if there is danger of death. I agree with the Exegetical Commentary which states that Canon 867 “protected the fundamental right of the parents to baptize their children within the first few weeks. This right shall not be limited or restricted by a particular law, at least not by a norm of lower rank than the [1983 Code] itself.” Exeg. Comm. III/1: 465. Commentaries on the old law (e.g., 1917 CIC 770) warned against parents trying more than a month to secure the service of a priest before acting on their own. See, e.g., Woywod, Practical Comm. n. 669. Parents, unable to secure the ministrations of a cleric during a pandemic, who baptize their own children, should simply report such baptisms to the pastor of the parish, per c. 878. May I suggest an audio-visual recording of the event, should the pastor later have any questions about matter, form, and so on. A later “incorporation” rite before the community may still be offered such children.

6. Canonical form for marriage need not be observed, even by two Roman Catholics, if it is foreseen that an official witness (typically, a priest) cannot be present for at least thirty days. 1983 CIC 1116. We are very near that time already. Such couples still need, of course, to observe state law for the civil effects of their marriage to arise, but canon law provides for lawful celebration of marriage without canonical form in surprisingly short order. Note, though I think canonical form itself needs to be repealed, I cite here, obviously, the plain text of the Code.

More, if I have time. A lot going on these days. Oremus pro invicem.

* See, e.g., Edward Peters, “Canonical and cultural developments culminating in the ordination of Deaf men during the twentieth century”, Josephinum Journal of Theology 15 (2008) 427-443; id., “The ordination of men bereft of speech and the celebration of sacraments in sign language”, Studia Canonica 42 (2008) 331-345; and id., “Video communications technology and the sacramental confessions of Deaf Catholics”, The Jurist 73 (2013) 513-537.

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