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Some thoughts on COVID measures in regard to Confession and how such measures have illustrated a serious weakness in the administration of canon law

April 1, 2020

The COVID19 pandemic continues to occasion new canonical questions on a daily basis. But before examining a few more of these, here in regard to Confession, a crucial point should be made.

It is very difficult, but nigh-on essential, to avoid speculation on the motives behind various ecclesiastical actions (policies, rulings, etc.) and to focus instead on what the actions actually do. Whether a bishop, for example, wants to prohibit his priests from hearing confessions because he seeks to limit the social interactions entailed therein and thus slow the spread of disease or because he holds heretical views on sin or sacraments and sees a chance to slight Catholic truth, I don’t care. I only care about the canonical legality of what he purports to do. Whether a bishop attempts general absolution through the internet because the prospect of his people dying without sacramental reconciliation terrifies him or because he sees it as a way to encourage people to grow slack in their attention to divine duties, I don’t care. I only care about the canonical legality of what he purports to do. Others may speculate on motives and, for all I know, at least some such speculation might help the faith community to identify some deeper ecclesial issues lurking behind the polices. But I do not choose to engage in such speculations here.

Three specific topics on Confession. (For most of the following scenarios I can find a half-dozen factual-verbal variations so do not assume that every comment below applies to every version of the following.)

1. Some bishops think they can suspend the celebration of Confession in their diocese or otherwise forbid their priests from hearing confession and granting absolution because of the pandemic. I think this is wrong.

All pastors have “faculties” (i.e., necessary but, in all respects relevant here, sufficient authorization) for Confession by law (c. 968) and most other priests (e.g., associates) have faculties by formal grant of their bishop (c. 969); once acquired, moreover, such faculties remain effective unless, say, the pastor is removed from office (c. 975, which assumes the process for pastor removal outlined in cc. 1740-1747 has been applied) or the bishop has revoked the grant to a specific priest “for a grave cause” (c. 974, which assumes that “pandemic” satisfies as ‘grave cause’ to strip priests of their faculties for Confession, a claim for which I find zero evidence in the literature).

2. Some prelates think they can prohibit the in-person celebration of Confession when it is aided by electronic communications devices such as cell-phones. I think this is wrong.

As stated earlier, this doctrinally and canonically important yet complex matter cannot be adequately aired on-line and in the middle of a world-wide crisis, so, no matter how much I think the tradition itself would accept the use of cell-phones for in-person Confession, let me just put my objection to such purported prohibitions this way: any prelate prohibiting the use of electronic communications devices for in-person confession and absolution needs to explain why priests and penitents have long been allowed to use hearing aids and/or amplifiers in the confessional, both being, obviously, electronic communications devices. What is so categorically different about using a cell-phone for the same purpose and in the same way as a hearing aid?

3. Some bishops think they can confer general absolution (c. 961) in their local churches via the internet to persons not physically present before them. I do not know what to think about this, but I doubt the soundness of any quick “it’s certainly valid” or “it’s certainly invalid” verdict on the practice.

General absolution is new in codified law but not new in the canonical tradition (see the footnotes to Canons 961-962 or, for that matter, Abp. Turpin’s actions in The Song of Roland). These sources need urgently to be studied. Meanwhile, know that the current law is oddly phrased (e.g., it is perhaps the only canon in the Code to contain its own interpretation by an example) yet, unquestionably I think, it leaves the authorization for general absolution solely to the local bishop. The more controverted point would be how the faithful are “present” to the bishop absolving (again, that is not a simple assessment) and what, if any, such attempts at absolution would have on penitents who were not seeking the sacrament at the time.

A more general topic surfaced by these measures.

Canon law, compared with civil law, depends very heavily on voluntary compliance with its norms. But crucial to securing voluntary compliance with any law is the subjects’ sense that justice underlies its provisions and its application. Whenever the provisions of law are perceived as unjust or as arbitrarily applied, the community’s inclination to observe law suffers and, in a system as dependent on voluntary cooperation as is canon law, discipline and even morale breakdown in short order.

With that as background we can better appreciate one of the greatest systemic weaknesses in canon law, namely, its lack of a process for the speedy correction, or at least mitigation, of local real or perceived abuses of authority. Unlike civil law, which boasts the opportunity to seek, e.g., TROs (temporary restraining orders) or Preliminary Injunctions from independent officials against sudden and serious disturbances in the legal order, canon law offers only slow (e.g., up to three months of waiting in c. 57) rights of recourse, this, to usually to the same official behind the disturbance in the first place, and then often penalizes attempts to cooperate with local authority by demanding that recourse be taken against offending provisions in very short times (e.g., ten days in c. 1734), this, upon pain of losing the right of recourse itself. Finally, even if one adversely impacted by a novel law or decree gets recourse against it filed in time, such requests for juridic relief often languish in Rome for months or years before any action is taken on them.

All of this contributes to a widening contempt for law in the Church during a time when respect for law, at all levels of the Church, is already at historic lows, and it fuels the impulse (again, I judge no motives here) for everyone to do pretty much whatever he thinks best under the circumstances. Thus, as a practical matter, conscientious priests who want to respect Church authority and to serve their people sacramentally are placed in the extremely difficult position of having to choose, in times chock full of personal and social stress, between two great goods. But if canon law had an effective, quick, mechanism for ‘halting in place’ novel orders and policies until cooler heads could examine them more dispassionately, much of this conflict would be avoided.  I am aware of the serious ecclesiological concerns such legal institutions would raise, but I do not think those concerns are insurmountable. Of course, we are not likely to address this neuralgic dearth of speedy dispute resolution methods in the Church today, of all times, but I note it for consideration.

For now, all in the Church, but perhaps especially clergy, should remember, among many other things, that they, too, have the right to express their opinion on matters affecting the good of the Church (whose supreme law, of course, is the salvation of souls, per c. 1752) and to communicate their views to others (c. 212), and that they enjoy the right not to be judged or penalized except in accord with law (c. 221).

Pandemic does not trump any of those rights.

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