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Sunday, December 16, 2007

Hardt & O'Rourke err in minimizing the scope of the CDF Response

Bio-ethicist Dr. John Hardt and canonist Rev. Kevin O'Rourke are trying to use canon law against a Congregation for the Doctrine of the Faith Responsum that upholds the basic right of patients in a "persistent vegetative state" to nutrition and hydration. I think their arguments are flawed. Here I summarize the events leading up to the CDF Response and then assess Hardt and O'Rourke's attempt to minimize its impact.

1. 20 March 2004. Pope John Paul II tells an international medical-moral congress that ". . . the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered, in principle, ordinary and proportionate, and as such morally obligatory. . . ." The qualifications included in the pope's remarks and his citations to various Church documents show that his statement is basically an application of well-established Catholic moral principles to more specific types of medical situations.

2. 11 July 2005. The US bishops send two follow-up questions to the Congregation for the Doctrine of the Faith. The bishops ask: (1) Is the administration of food and water (whether by natural or artificial means) to a patient in a "vegetative state" morally obligatory except when they cannot be assimilated by the patient's body or cannot be administered to the patient without causing significant physical discomfort? and (2) When nutrition and hydration are being supplied by artificial means to a patient in a "permanent vegetative state", may they be discontinued when competent physicians judge with moral certainty that the patient will never recover consciousness?

3. 16 September 2007. To the surprise of almost no one, CDF, with appropriate qualifications and explanations, publishes its answers to the bishops' questions, namely, Yes to the first question, meaning basically that nutrition and hydration may not be withheld from patients who can still make use of same, and No to the second, meaning that even a very poor prognosis for recovery of consciousness does not justify withholding nourishment and water from a patient. Response with additional CDF commentary here.

4. November-December 2007. Claiming to be putting this CDF Response "in perspective", Hardt & O'Rourke assert that it "limits the free exercise of rights [and thus] will only apply to a restricted number of cases, specifically to patients with a firm diagnosis of PVS" and add that the Response only applies in the United States. They further assert that had CDF wanted to make its response more widely applicable, it would have used "another form of communication, for example, an Apostolic Instruction." Hardt & O'Rourke claim their conclusions are based on Pope Boniface VIII's Regulae Iuris (Rules of Law), which they say are applicable in "interpreting and applying the documents of the Holy See", and on Canons 18 and 52 of the 1983 Code of Canon Law. I think these claims are wrong in several respects.

Preliminary criticisms. Hardt & O'Rouke state that the Liber Sextus of Boniface VIII, wherein most of the Rules of Law are found, was published in 1300. Actually it was promulgated in 1298. An error of two years might be minor, but imagine one's discomfort if a lecturer on American political theory claimed that the Declaration of Independence was signed in 1778. Moreover, Hardt & O'Rouke's suggestion that CDF could use a document known as an "apostolic instruction" is perplexing. Amid the myriad of document styles employed (sometimes inconsistently) by the Holy See, I have never encountered one called an "apostolic instruction", nor is it a genre listed in Francis Morrisey, Papal and Curial Pronouncements, 2d ed (1995) or J. Huels, "A theory of juridical documents based on canons 29-34", Studia Canonica 32/2 (1998) 337-370. Or again, Hardt & O'Rouke's claim that "many of the [Rules of Law] are repeated in one way or another in the present Code of Canon Law", seems excessively broad. See E. Roelker, "An introduction to the Rules of Law", The Jurist 10 (1950) 271-303, 417-436, an article replete with narrations of the pitfalls awaiting those who invoke the Regulae Iuris without adequately understanding them. In short, almost every assertion by Hardt & O'Rouke on the Regulae Iuris is contestable or wrong.

But a much more fundamental objection lies against Hardt & O'Rouke's claim that canon law dictates a narrow reading of the CDF Response.

Primary criticism. Canons 18 and 52 and the Rules of Law upon which they draw are, by their plain terms, meant to inform one's interpretation of laws and legal directives. In issuing its Response on nutrition and hydration, however, CDF was not issuing a law, or an authentic interpretation of a law (1983 CIC 16), or indeed any other kind of juridic decree (administrative or otherwise). Instead the dicastery is setting forth moral criteria for personal decision-making, a point reinforced by the CDF Response being posted among the dicastery's doctrinal statements, not its disciplinary ones. In other words, by subjecting CDF's enunciation of moral principles to interpretive techniques that were developed for assessing legal norms, Hardt & O'Rouke are basically criticizing the CDF Response for not being something it never claimed to be.

Even at that, Hardt & O'Rouke's critique seems poorly done. For example, their claim that the Response is applicable only in the US is easy to refute. One need simply observe that CDF published its Response in French, German, Italian, Polish, Portuguese, Spanish, and Latin to show how implausible is the assertion that it was intended only for America. Likewise their claim that the CDF Response protects only to patients in a "persistent vegetative state", and not necessarily those suffering from such conditions Alzheimer's, is untenable. Logic dictates that persons similarly situated should be treated similarly and, obviously, both Alzheimer's patients and persons in a "persistent vegetative state" need food and water to survive. I cannot imagine the grounds upon which Hardt & O'Rouke think that CDF might discriminate between these two groups.

The moral principles set out in the CDF Response are meant to be applied regardless of the fact pattern that lead to an individual's plight and regardless of where his or her suffering is taking place. I urge persons striving to understand and apply Catholic medico-moral principles in difficult nutrition and hydration situations to consult directly the statements on this matter offered by the organs of the Holy See, and not to be put off that inquiry because of the canonical objections that Hardt & O'Rouke have tried to allege against this important statement from the CDF.

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More analysis from LifeSite, 21 December 2007.

posted by Dr. Edward Peters at This Permanent Link

Monday, November 12, 2007

The choice between Abp. Burke and Bp. Paprocki

Before finding out which candidate, Abp. Raymond Burke of St. Louis or Chicago auxiliary bishop Thomas Paprocki, has been elected to chair the USCCB Committee on Canonical Affairs, I write to say only that both candidates are highly qualified and widely recognized among American bishops for credentials, competence, and orthodoxy. Each one has a doctorate in canon law (both from the Gregorian), and while Burke has extensive Roman judicial experience, Paprocki is a licensed civil lawyer. It's a happy day, folks, when the choice is between two such excellent lawyers.

There is, though, I regret to note, some speculation out there that the choice between Burke and Paprocki might shed light on the USCCB attitude toward Burke's stand on Canon 915, a stand resulting in withholding Holy Communion from certain notoriously pro-abortion politicians. But I wonder how it could show any such thing.

To my knowledge, Paprocki has made no statements on Canon 915 (nor need he have), so just what is there to compare with Burke here? But, if anyone thinks Paprocki is one to shy away from straight talk, I need only point them to his recent Red Mass homily in Grand Rapids MI, where he says bluntly that, amid the proper use of civil law to pursue justice for the victims of clergy sexual abuse, the force of American law is being also used a club to punish the wrong people (chiefly, faithful Catholics in the pew) in some of those cases. Predictably, he's been vilified in some quarters for it.

I'd be happy see either man elected, if only both because both bishops have shown considerable savvy in agreeing to write forewords to some recent canon law books. Abp. Burke wrote the foreword to Edward Peters, Incrementa in Progressu 1983 Codicis Iuris Canoici (2005), and Bp. Paprocki did likewise for Edward Peters, Excommunication and the Catholic Church (2006).

What more can I say?

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PS: I should say, some critics of Bp. Paprocki's homily have much more credibility than the LA Times, including Catholic World News and Gerald Augustinus. Still, I think both have missed the bishop's main point, but that discussion needs to wait a bit.

Update 13 November: Bp. Paprocki was elected.

posted by Dr. Edward Peters at This Permanent Link

Thursday, November 08, 2007

Civility, yes, but fairness and accuracy too

I have nothing against platitudes. Though simplistic, platitudes tend to be true, and these days many people need to have simple truths reiterated. To the extent that the Catholics in Alliance for the Common Good statement, A Catholic Call to Observe Civility in Political Debate, simply reiterates some obvious truths about needing to observe "civility" in public discourse, I say fine. But there is more to the CACG statement than that. Despite their genteel demeanor and above-the-fray tone, I suggest that the CACG is firmly supporting one side in a crucial "partisan" debate (the wrong side, at that) and that they are discouraging Catholics from exercising some fundamental canonical rights.

Consider their principle no. 2: "As lay Catholics we should not exhort the Church to condemn our political opponents by publicly denying them Holy Communion based on public dissent from Church teachings. An individual's fitness to receive communion is his or her personal responsibility. And it is a bishop's responsibility to set for his diocese the guidelines for administering communion."

First, I wonder why the CACG aims this advice only at lay Catholics? Does the CACG consider priests and religious not bound by the rules of civility? Or, do they think that priests and religious have more rights than laity to express their views in this area? If so, I suggest the CACG consult, to choose only one of about a dozen relevant norms here, Canon 212 upholding the right of all the faithful to express their views on matters affecting the good of the Church. Supposing, though, that the CACG does not hold with either conclusion, one wonders why they expressed themselves so clumsily as to even raise the question. Still, there is more wrong here than poor phrasing.

It is a common ploy of political discourse to distort another's position and then demolish the caricature hoping that observers will conclude that, whatever the other side held, it must have been wrong. The CACG does this when it portrays those who support the withholding of Communion from certain politicians as if they support the Eucharist being withheld from "political opponents" per se, instead of, as is really the case, from those who "obstinately persist in manifest grave sin" (1983 CIC 915). The CACG wants readers to conclude that, because no one should support withholding the Eucharist based only on political differences, the practice of withholding the Eucharist from political figures must be wrong. Indeed, the CACG describes this action as "condemning" political adversaries, making those who support some withholding of Communion appear especially ruthless. These are, I think, grave distortions of the real issues and, if I may say so, they constitute very uncivil ways to portray those who disagree with the CACG.

The CACG seems completely unaware of the important distinction between public and private responsibility in the administration and reception of Communion when it asserts: "An individual's fitness to receive communion is his or her personal responsibility." But, as so many writers in so many fora have noted (e.g., here, here, here) the observance of Canon 915 (that binds ministers in the public arena) is at issue here, not Canon 916 (that binds individual members of the faithful in conscience). I cannot imagine a group that claims to be making a credible contribution to this vital discussion not even alluding to, let alone reckoning with, this key distinction. The CACG does neither.

Finally, despite having stated (more or less accurately) that "it is a bishop's responsibility to set for his diocese the guidelines for administering [C]ommunion", cannot the CACG see that some bishops have concluded that certain people's activities (albeit in the political sphere) constitute, under Canon 915, a disqualification for reception of the Eucharist in their diocese (that is, as far as these bishops' responsibility for the Eucharist extends)? What exactly, then, is the CACG's complaint against these bishops, except that that the CACG (resting on shoddy argumentation) disagrees with their decision?

There are, I'm afraid, additional problems with other CACG assertions, but the above comments should suffice to show that one's laudable willingness to urge the observance of civility in public debate is not necessarily a measure of one's impartiality in that debate, or even of one's ability to discuss the issues raised in those debates accurately.

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Other reactions: Catholic World News, Mark Brumley, Catholic Family and Human Rights Institute, Carl Olson, Robert Miller

posted by Dr. Edward Peters at This Permanent Link

Monday, October 15, 2007

In re the Eucharist: Cdl. McCarrick vs. Abp. Burke

Recently Cardinal Theodore McCarrick expressed his opinion on an important point of pastoral practice, namely, whether to withhold Holy Communion from notoriously pro-abortion Catholic politicians. McCarrick specifically expressed disagreement with Abp. Raymond Burke, who holds that the Eucharist should not be administered to certain pro-abortion Catholic politicians. But in disagreeing with Burke, I think that McCarrick mischaracterized the question and Burke's compelling answer to it.

According to the October 12 Catholic News Agency article, McCarrick seems to think there are only two ways to deal with the scandal of pro-abortion Catholic politicians: either withhold the Eucharist from them or work to persuade them of the error of their ways. McCarrick regards Burke as having chosen the first of these two supposedly mutually exclusive options, whereas he, McCarrick, supports the latter. This needs sorting out.

Burke fully supports engaging politicians with the truth of Church teaching on the humanity of the unborn child, on the responsibility of all public servants to protect the innocent, and on the specific duties of Catholic leaders to imbue the temporal order with the message of the Gospel (CIC 225.2). What Burke does not countenance is offering, in the meantime, the Body, Blood, Soul, and Divinity of Our Lord and Savior Jesus Christ (CCC 1413) to Catholics whose public record is one of chronic contempt for any (let alone all!) of those truths.

Burke knows that Catholics are obligated to examine their conscience before approaching the Eucharist (CIC 916); but he also knows that ministers are obligated to withhold Holy Communion from those who "obstinately persist in manifest grave sin" (CIC 915). Furthermore, he believes that the failure to observe Canon 915 has grave repercussions for those receiving, and for those administering, the Eucharist. What is there to disagree with, here?

To be sure, important questions such as the point at which one's pro-abortion voting record constitutes objective grave sin, or exactly which ministers of Holy Communion are charged with assessing public conduct, must be addressed. But how can such questions even be broached when the most fundamental points of Eucharistic discipline have become so muddled?

We are living through a terrible, perhaps unprecedented, unraveling of respect for Jesus in the Eucharist. Such a crisis compels all of us, I think, to examine our consciences for how our sins might have contributed to this disaster. But in the meantime (and though he might cringe to hear such praise) let me suggest that Abp. Raymond Burke has emerged as the most articulate defender of our Eucharistic Lord among our bishops, and that his leadership is valued more widely than he can possibly imagine.

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Read more about this issue: Edward Peters, "Denial of the Eucharist to pro-abortion politicians", Homiletic & Pastoral Review (Oct 1990) pp. 28-32, 48-49.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, October 10, 2007

Computer woes and College rankings

1. No, I have not given up the ghost. My computer has, for the second time this year. I am trying to assemble a servicable computer package, but times being what they (always) are around here . . . well, we'll do the best we can.

2. The Cardinal Newman Society has published a Guide to Choosing an [American] Catholic College. As is true of so much the CNS does, the Guide is well thought-out. With my computer access limited as it is (see above), I pause to make only three quick points:

a) The Guide missed a very good call by not including the University of St. Thomas in St. Paul Minnesota. The Catholic Studies program there is first class, and the wider university seems to be undergoing a striking metamorphosis at the graduate and undergraduate levels.

b) The Guide should have flagged the unaccredited or only-provisionally accredited schools. Such places can be good, of course, but they entail some special risks for students.

c) The Guide might consider expanding its criteria to include non-Catholic colleges that offer a warm welcome (plus a good education!) to Catholics. This is a bit tricky, I understand, but there are several such places out there.

I wish there had been something like this available when I went to college, but I'm glad it's here now. Thanks, CNS.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, September 25, 2007

My review of "Medieval Church Law" posted by JLR

I recently had the pleasure of reading and reviewing (for Hamline University's Journal of Law and Religion) a fine work, Medieval Church Law and Origins of the Western Legal Tradition (2006), edited by Drs. Wolfgang Muller (Fordham University) and Mary Sommar (Kuttner Institute). A collection of some two dozen articles in four languages, this book is a festschrift in honor of the esteemed legal historian Dr. Kenneth Pennington, long of Syracuse Univeristy and lately of Catholic University in Washington DC. Practicing canonists need to set aside more time to appreciate the discoveries and insights being offered by researchers in allied disciplines, and this handsome volume from CUA Press is a fine place to start. You can read my review of Medieval Church Law here.

posted by Dr. Edward Peters at This Permanent Link

Monday, September 10, 2007

Abp. Raymond Burke on Canon 915

Is this cool or what?

One of America's sharpest canon lawyer bishops (Abp. Raymond Burke of St. Louis), has just published a terrific article in perhaps the world's most prestigious canon law journal (Periodica de re Canonica in Rome), on a topic of vital interest to the Church in the world (the correct application of Canon 915 on denial of Holy Communion). Best of all, it's available on-line here.

Like I say, it's just too cool.

Back in 2004, Abp. Burke was one of handful of bishops who understood and enforced Canon 915 against certain pro-abortion Catholic politicians who were attempting to receive Holy Communion despite their patent non-compliance with Church discipline. He suffered more than his share of slings and arrows over the months that followed, including some tsk-tsks from certain folks who really should have thought twice before putting their canonical acumen up against Burke's. In any case his article, "Canon 915: The discipline regarding the denial of Holy Communion to those obstinately persisting in manifest grave sin" Periodica 96 (2007) 3-58, demonstrates just how much law and sound pastoral theology Burke had, and has, behind him.

Periodica does not publish articles for beginners and Burke assumes that his audience knows, e.g., what the Decree of Gratian and the Decretals of Gregory are, and why Eastern canon law and the Pio-Benedictine Code are important for contemporary Roman canonical analysis. But even if you don't know these things, you can still read Burke's article with profit; it only means taking my word for it that arguments built on such foundations are very important and lend mighty support to the position Burke took with regard to recalcitrant politicians. Which they do.

Some of my favorite points? Burke's obvious understanding of the importance of legal history, his demolishing of the confusion in some minds that Canons 915 and 916 are just two ways of saying the same thing (not!), and his underscoring the fact that the scandal of unworthy reception can be assessed objectively, not just subjectively.

Oh, how I wish someone would give a prize for "Most Important Canonical Article Published in a Peer-Reviewed Journal". I know what I would nominate for 2007.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, September 05, 2007

NEWS FLASH: Catholic Church expects faithful to follow her rules!

Did you hear the shocking story about the man who got arrested for walking home?

Well, it happened. This guy broke out of prison, see, and there he was, walking down the street toward his home, not bothering anybody, and the cops drive up and arrest him.

That's shocking? Says who?

A spate of stories this summer (maybe the same few stories recycling themselves on slow news days) describes folks bringing wrongful termination actions against Catholic employers (usually schools). Today's features a man who claims he was terminated "for not getting an annulment." I doubt it.

I don't know who said exactly what to whom (that's what courts are there to sort out), but I do know this: there is no canon law that requires people to "get an annulment", so the failure to get an annulment can't be the basis for a termination. My guess is, though, it wasn't.

Analogy time: There is, pretty obviously, no civil law that requires people to go out and get nursing licenses. Rather, the law says "If you want to work as a nurse, get a nursing license". If one works as a nurse without a license, there will be negative consequences, but that is not the same thing as saying the law requires people to get nursing licenses. The law does not punish the failure to get a license (else, almost every citizen would be in violation of it!); rather the law punishes people working as nurses without a license.

Similarly, there is no canon law that requires Catholics to go out and get annulments (else, virtually every Catholic would be in violation of it). Rather, the law punishes those attempting marriage in violation of Church teaching. One way to run afoul of Church teaching on marriage is to violate Canon 1085 which basically says "If you have been previously married, and your ex-spouse is still alive, the nullity of your earlier marriage must be proven before you attempt a marriage." If you try to get married against Canon 1085, there will be a variety of negative consequences, beginning with Canon 915. Okay, well, what's so wrong about that?

The negative consequences relevant to employment with Catholic institutions are typically found under "morals" or "Church teaching" clauses of employment contracts, but they are amply reflected in a wide variety of authoritative Church documents (e.g, here, here, and even Precept 6 here). Notice, the negative consequences would be imposed for attempting marriage outside the Church, not for something like "not getting an annulment". Just as people don't get arrested for walking home, they don't get terminated for not getting annulments.

When someone says "I got fired for not getting an annulment", I think what they probably mean is, "I got fired for attempting something as publicly wrong as marriage in violation of Church teaching, and I don't like it when the Catholic Church expects Catholics to live by her rules."

Shocking, eh?

posted by Dr. Edward Peters at This Permanent Link

Tuesday, August 28, 2007

Tom Monaghan and the art of pointless provocation

In the midst of ceremonies celebrating the latest stage of his Ave Maria dreams in Florida, Tom Monaghan made his own, or repeated without rejecting, the hate-phrase "academic terrorists" to describe those in Michigan who, three or four years ago, resisted his sudden dismantling of a fine Catholic college there. Monaghan added that his Michigan opponents "did everything they could to stop" him (which resistance he took as proof of God's approval of his actions) and opined that his obviously incendiary remarks "dramatized" the recent Florida festivities.

Assuming the truth of those sad days matters anymore, let me say one more time that I did not see faculty and staff of Ave Maria College in Michigan doing "everything they could" to stop Ave Maria in Florida: instead, I saw them doing what little they could within the law and their meager resources to save Ave Maria College in Michigan. Such a simple distinction, and so many can't or won't see it. Anyway, it's moot now. The Michigan people lost.

Perhaps businessmen don't get to be billionaires thinking this way, but it seems to me that in politics, sports, and so on, victors take one of two stances toward those they defeat: either they say something vaguely complementary about their opponents (here, something as simple as "Well, they thought they were doing the right thing, and I can respect that, but they were wrong"), or at the very least say nothing at all.

Not Tom Monaghan. Instead, he feels free to label those upright men and women as "terrorists", a particularly vile thing to say or even to repeat today. But beyond being mean, his remarks strike me as pointless. What good did he think it would to do?

As many know, I stood up for the Michigan faculty and staff who opposed the abrupt destruction of Ave Maria College and, like others before me and others after, I was duly shown the door by the Ave Maria empire. Maybe I should have seen that as evidence of God's approval of my actions, but it's hard to be poetic when one suddenly has to find a new way to meet the mortgage in the Michigan economy.

In any case, when, not long after, the college's defenders lost their court case, I withdrew from the fray. I removed my posted exchanges with Nick Healy and Fr. Fessio and stopped writing to the Ave Maria boards. In the years since, I've turned down various requests for media interviews and have not commented on the latest Ave Maria debacles, in particular, the on-going implosion of the Ave Maria School of Law.

Tom Monaghan, in contrast, seems to think that his paterfamilias style of philanthropy permits him to show continual scorn for the vanquished, those who dared to question his judgment about various projects, projects to which they, often as much and sometimes more than he, contributed, but in which he allowed them little or no voice.

In his latest round of self-congratulatory revels, Monaghan justifies his recent gloating thus: "It makes the moment bigger when people know what you've been through to get here." Gee, that's just what Tom Monaghan needs, another bigger moment. Really, it's beyond parody.

Still, may I suggest that what Tom Monaghan needs is not another "bigger moment", but rather a little one: one wherein, instead of recalling what he went through to get where he is, he tries to imagine what he has put other people through getting himself there.

posted by Dr. Edward Peters at This Permanent Link

Friday, August 24, 2007

Spouses should not attempt joint sacramental confession

The practice of spouses jointly celebrating the sacrament of confession recently garnered support from Catholic News Service veteran columnist Fr. John Deitzen. Provided that couples "approve and consider it helpful for their marriage", Deitzen holds that spouses may confess their sins in each other's presence and receive absolution. He notes only that each spouse would be bound by the seal of confession in regard to what he or she learned about the other.

I believe, however, that there are formidable canonical and practical objections to joint sacramental confession, and I set them out for consideration.

Deitzen's basic argument runs thus: there is no express canonical or liturgical prohibition against spouses confessing sacramentally in each other's presence, so "couple's confession" is licit. But even if, pro arguendo, no norm expressly prohibits joint confession, one may still ask, So what? There is no canon against the faithful attending Mass drunk or naked, but surely we cannot read the law's "silence" as approval, qualified or otherwise, for such practices. The Church could not possibly identify in advance and prohibit every illicit practice that the faithful might think of. Inclined though I am to give wide play in canon law to the legal maxim Libertas praesumitur (Freedom is presumed), joint confession is an instance where that worthy principle must yield to weightier considerations.

Indeed, I suggest that it is clearly discernible from several canonical norms that joint confession should be avoided. Ironically, Deitzen identifies these norms but seems to miss their obvious (to me, anyway) implications.

1. Deitzen acknowledges that Canon 960 holds that "Individual and integral confession and absolution constitute the only ordinary means" of celebrating the sacrament of confession, but he fails to include the next clause of the canon: "only physical or moral impossibility excuses from confession of this type." The phrase Deitzen omits seems fatal for his argument: Standing alone, I think it defeats the liceity of "couple's confession" on Deitzen's facts: one cannot plausibly suggest, let alone prove, that it is morally impossible for one spouse to confess his or her sins except in the presence of the other spouse.

2. Deitzen also appeals to Canon 990 (authorizing an interpreter to assist one confessing sins) to show that one's confession can be made in the presence of another. But again, so what? The very existence of a canon permitting a penitent to use a translator reinforces the prior canonical expectation that sacramental confession is to be celebrated privately, a third party being authorized only to make someone's confession possible in the first place! If I may be pardoned a drift toward the ridiculous, interpreted confessions are not analogous to joint confessions for another reason: having interpreted the confession of a penitent into the language of the priest, the interpreter does not then confess his or her own sins in the presence of the penitent!

3. Deitzen misconstrues Canons 961 and 962 (on the absolution of multiple penitents in urgent cases) in wrongly stating that general absolution authorizes "general confession and absolution" for multiple penitents (my emphasis). These canons do no such thing; plainly, they provide for general absolution without confession of sins; individual confession is performed later.

There are additional problems with Dietzen's description of the "seal" that might arise from joint confession, and frankly I see no way to limit this practice, once admitted, only to married couples, but by way of conclusion, I would add a practical point: the modern practice of individual confession is designed to foster freedom and candor. Joint confession would undermine these values.

It takes no imagination to see that "couple's confession", while it might at first seem like an intimate, bonding experience, can quickly become an occasion to avoid revealing important details about the species and numbers of one's grave sins (Canon 988); this in turn can deteriorate into an excuse to avoid confessing at all, or it can spark spousal suspicions as to why going to confession together was okay last time, but not this time. Worst of all, "couple's confession" can result in the coercion of an unwilling spouse, which coercion might not be apparent to the confessor at the time. But guess who will later be blamed for having celebrated the joint confession?

In sum, I see no legal or pastoral support for the practice of joint confession, spousal or otherwise. The faithful should be dissuaded from attempting to celebrate the sacrament under these circumstances, and I would strongly discourage priests from becoming enmeshed in such an improvident practice.

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Some additional thoughts: (1) My analysis does not address the validity of joint confessions/absolutions but, as is well known, sacraments are hard to break; they might well be celebrated illicitly, but still validly. (2) Joint confession introduces the novel prospect of one penitent being sufficiently disposed for absolution (Canon 980) but the other not. (3) While in common parlance the concepts of "privately" and "individually" are distinguishable, in the pastoral practice of confession, they have been viewed as interchangeable. This is, of course, Deitzen's point, that perhaps they should not be so viewed and that confession need not be "private" to be "individual". But aside from the fact that Canons 990, 961, and 962, among others, seem to assume that "individual" confession is "private", and in light of my practical concerns above, I think Deitzen has the burden of demonstrating why two terms that have been assumed as interchangeable for centuries should sudddenly no longer be understood that way before passing on pastoral changes that could have grave repercusssions for individuals seeking this sacrament. Something stronger than "There's no rule expressly prohibiting it" seems in order. (4) If one admits any third party, not a translator (and, okay, not a small child who cannot be left unattended for the time it takes to make confession) to be present at confession, why limit that concession to third parties (of any sort) making confessions? Why not permit attendance by other non-confessing parties who in turn might have any number of motives (known to the priest or not) for wanting to be present? This scenario offers its own host of serious pastoral (and for that matter, civil law immunity) questions.

Update: November 3, 2007. Fr. Deitzen, after communication with the Congregation for Divine Worship and Sacraments, has basically withdrawn his assertion that couples may receive the sacrament of confession together.

posted by Dr. Edward Peters at This Permanent Link

Friday, August 10, 2007

A canonical response to a murderous priest

The story out of Mexico (English version, Spanish version) that a priest has been sentenced to 55 years in prison for the murder of his own son (committed to prevent detection of the priest's sexual misconduct and his possible expulsion from the clerical state) leaves one pretty much speechless. In the 18 months since this story broke, it appears that the Mexican hierarchy, appalled by the discovery, cooperated with state prosecutors pursuing the matter in secular court. That's all to the good, of course; but I think it important that the canonical consequences for such loathsome conduct be pursued as well.

There are arguments under the current criminal law of the Church (Book VI of the 1983 Code) whereby a priest who, in a one-time act, sires a child with a consenting adult, could escape dismissal from the clerical state for the deed, notwithstanding the other penalties that might be imposed on him (a careful reading of CIC 18 and 1394-1395 demonstrates this). I don't know whether the facts in this case would have allowed such an argument to go forward; my hunch is, the odds are against it.

But in murdering the progeny of his misconduct, a priest renders any such arguments moot and makes his expulsion from ordained ministry a simple matter.

Canon 1397 states that anyone who commits homicide can be punished in accord with Canon 1336, a norm that in turn authorizes "dismissal from the clerical state" as a penalty for certain offenses. As if that weren't sufficient basis for dismissing a homicidal priest from the clerical state, a canonical judge is permitted to augment penalties on those who have been "established in some dignity" (CIC 1326).

Priesthood is surely such a dignity. It should be canonically vindicated against such dastardly conduct.

posted by Dr. Edward Peters at This Permanent Link

Saturday, July 14, 2007

CDF's "Responses to Some Questions"

If you're wondering why all the shouting about CDF's "Responses to some questions regarding certain aspects of the doctrine of the Church" (official version: Ad catholicam profundius), all I can say is, I'm wondering too. I see nothing new in the document. Not that it hasn't stirred up the usual hysterical reactions, particularly to Question Five. But so what else is new?

Maybe "complaint" would be too strong a word, but I was hoping that the CDF document would offer something more than any decent student of ecclesiology could have already told us. For example, the response to Question Three (why the expression subsistit in [subsists in] was used in Lumen gentium 8 rather than the verb est [is]) doesn't really, it seems to me, answer the question posed. Maybe I missed it; wouldn't be the first time.

For my money, the more interesting remarks occur not in the CDF document itself, but rather in an unsigned "Commentary" on the Responses (oddly, not linked on the Responses pages, and not posted in Latin). For example, the commentary on subsistit in Question Three seems to offer two different impressions: one, that the Council Fathers asserted no difference between subsistit and est (as in, the "rivers of ink" spilt on this matter have been much ado about nothing); and two, that "subsistence" can be seen as what "substance" --how to put this?-- does or has. On which point, though, I would defer to my friends in philosophy.

Anyway, all I'm saying is, the canonist in me sees, so far at least, nothing new in the Responses. Lawyers should read them, and move on.

Notes: for a good set of posts and links on this matter in general, scroll through Carl Olson's multiple posts at Insight Scoop; for some canons of the 1983 Code that quietly but clearly assume the distinction between "Churches" and "ecclesial communities" discussed in Question Five, see 1983 CIC 364 n. 6, 908, and 1183.3.

posted by Dr. Edward Peters at This Permanent Link

Sunday, July 01, 2007

Remarks on the Lawler-Risch US Catholic article

Michael Lawler and Gail Risch (U.S. Catholic on-line) propose to treat certain co-habiting couples essentially as married. This bad idea should, and will, go nowhere (Abps. Charles Chaput and Elden Curtiss and folks like Carl Olson see numerous problems with it), so I won't comment much on it. I should point out, though, that L&R's presentation of the canon law on marriage is problematic in several respects.

I was confused, for example, by L&R's portrayal of the disputants in the marriage debate that gripped the Church from the 9th to 12th centuries: "In the 12th century," L&R claim, "Gratian, the master of the school of law at the Catholic University of Bologna, introduced a compromise in the debate between the Romans and the northern Europeans over what brought about marriage." That doesn't sound right. For starters, Gratian lost this one.

Omitting Hugh of St. Victor (who constituted a third front all by himself), the two sides in the medieval marriage debate were as follows: Theologians from the University of Paris who championed (perhaps ironically) a maxim from ancient Roman law that spousal consent alone makes a marriage, versus canonists from the University of Bologna, led by Gratian, who argued for a 'Germanic' cultural model whereby marriage arose from a sequence of actions, one of which was spousal consent; the actual "Romans", meanwhile, as scholars and canonists at least, were not major players until the papacy stepped in and resolved the debate in favor of the Parisians, not Gratian, in the 13th century.

Gratian did advance the marriage debate by upholding consent and intercourse as events with juridic significance. But in the end, he assigned greater legal consequences to intercourse than the nature of marriage required, and he hedged in distinguishing between, of all things, "betrothal" and "marriage". Against him, the Parisians (Peter Lombard et al.), cleanly argued that spousal consent to be married now was necessary and sufficient for marriage, and paved the way for recognizing that sexual relations following present matrimonial consent was indeed, as Gratian held, significant, but not for making marriage, but rather for according to it a property canonists now recognize as "extrinsic indissolubility" (1983 CIC 1056, 1061).

The Parisian school held that betrothed couples were canonically free to marry others (even if they had had pre-marital sex in the meantime, which is still the law today). But I wonder whether Gratian really had a problem with that holding? As Theodore Mackin (What is Marriage?, 160) put it, "One consequence of his ambiguous use of desponsatio that Gratian almost certainly did not intend was the possibility that the act of betrothal followed by intercourse could create marriage equally with the wedding vows followed by intercourse" (my emphasis). In short, pretty much L&R's idea.

Gratian as a sort of patron saint for those shacking-up? I don't see it.

posted by Dr. Edward Peters at This Permanent Link

Thursday, June 28, 2007

Fake priests (version 2007)

Though the problem seems to be more acute in Europe and the Third World, when I was still in (American) diocesan work, I encountered a few cases of "fake clergy", with most of these charlatans appearing to be small time con-men. I've blogged on this problem before, and am not surprised to see it popping up again. In the most recent case reported here, the administration of the baptism would have been valid (though gravely illicit, 1983 CIC 861 and 1381).

Still, let this episode serve as a warning. If you have an uneasy feeling about whether some man is really a priest or deacon, contact your local arch/diocese. There are accurate lists of clergy for the United States, the best-known being the Official Catholic Directory, published annually by Kenedy & Sons. Better safe than sorry.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, June 27, 2007

A suicide priest

The Pio-Benedictine Code prohibited ecclesiastical funeral rites for those who "killed themselves by deliberate counsel." 1917 CIC 1240.1.3. Phrased to protect those who might have killed themselves unintentionally (even if recklessly), this canon would nevertheless have probably prevented Catholic funeral rites for Fr. William Rosensteel, who jumped from a bridge shortly before sex abuse allegations against him were to be investigated by civil authorities. The Johanno-Pauline Code, however, contains no such restriction (1983 CIC 1184), so an ecclesiastical funeral can be permitted this suicide priest - - - notwithstanding that he has left a host of innocent people to deal with the consequences of his actions.

posted by Dr. Edward Peters at This Permanent Link

Thursday, June 21, 2007

Annulment? What annulment? Really, what annulment?

UPDATE: June 27. Hunch confirmed. Sheila Rauch Kennedy, in her oddly organized book, Shattered Faith, at p. 215, quotes her letter to the Tribunal of Boston: ". . . in accordance with canon law, I am appealing your affirmative decision to the [Roman] Rota as the Court of Second Instance . . ." My emphasis. Thus we must conclude that, because he had only one of the two necessary affirmative decisions (as explained below), Joseph Kennedy never received an annulment from the Catholic Church; the Roman Rota did not overturn an American annulment in this case for the simple reason that there was no annulment to overturn.

ORIGINAL POST: Canon 1682 requires that every "sentence which first declare[s] the nullity of marriage to be transmitted ex officio to the appellate tribunal" and Canon 1684 states that only "after the sentence which first declared the nullity of the marriage has been confirmed at the appellate level. . .[can] the persons whose marriage has been declared null contract a new marriage . . ."

In other words, "an annulment" (which sounds as if it's a single thing) actually requires two distinct, affirmative decisions. It's not like in American law, where winning at trial is sufficient to establish one's rights. In canonical matrimonial cases, a petitioner who proves his case for nullity at trial ("first instance") does not yet "have" an annulment: a petitioner must to receive two concurring affirmative sentences in order to have an annulment. Persons involved in the annulment process are repeatedly cautioned about this point of canon law.

Now, as near as we can figure (oh, how I hate relying on the secular media here), Joseph Kennedy petitioned for, and received, at first instance a declaration of nullity regarding his marriage to Sheila Rauch. But Rauch apparently exercised her right under 1983 CIC 1417 to appeal directly to the Roman Rota, which would mean that the Kennedy-Rauch annulment case was not completed when it went to Rome. Thus the Rota sat as a tribunal of "second instance" (JPII, Pastor bonus, a. 128, 1) in which capacity it rejected Kennedy's petition. This annulment, then, was not so much "reversed" by the Rota, as it failed to win completion therein. Granted, the effect is the same, no second marriage is permitted Kennedy (or Rauch), but it's not as if Kennedy "had" his annulment for ten years, and then mean old Rome took away. Kennedy, it seems, never had his annulment in the first place. (Not that that technicality prevented him from marrying civilly, but, hey, he had already done that before Boston reached its first instance decision!)

But all of this raises an interesting question. Personal opinions of Kennedys aside, it seems unfair to make someone wait for 10 years to find out what his matrimonial status in the Church really is. But canon law already recognizes this: Canon 1453 urges (but does not strictly require) that "first instance" cases be resolved in one year, and that "second instance" cases be decided within six months. When the Roman Rota accepted Rauch's appeal, it took on the task of sitting as a second (not as a third, but as a second) instance court. Thus, why the Rota took (not six months, which would clearly be unreasonable, but 8 or even) 10 years to decide what was only a second instance case is, well, not clear. Were the facts alleged so difficult to determine? Were there novel legal questions raised? I wonder.

In his Rotal address of 1984, and even more strongly in his 1996 remarks, Pope John Paul II reminded Rotal judges that annulment petitions are petitions in justice that impact the status of persons in the Church; as such, said the pope, the faithful have a right to a timely answer (whether affirmative or negative) to their questions, yes, even if those persons are rich and famous and regard Church teaching on marriage as a bunch of Catholic gobbledygook that no one believes anymore (Sheila Rauch Kennedy, Shattered Faith, 10-11, quoting Joe Kennedy).

posted by Dr. Edward Peters at This Permanent Link

Wednesday, June 20, 2007

What we don't know about the Kennedy-Rauch case

UPDATE: June 21. I'll be discussing this news with Al Kresta today at 4 pm Eastern; and Jimmy Akin did a good fisking of the Time article, which was, need I say it?, laughably bad in some places.

ORIGINAL POST: Canon law is not only much older than common law, but in many respects, it operates very differently from the legal system we Americans live in. Try to keep this in mind (I know it's hard, but really try) as a multitude of pundits weigh in on the most recent development in the Kennedy-Rauch annulment case. In brief, what we don't know about this case vastly outweighs what we do know, and that should give thoughtful people pause.

We don't know, for example, what evidence was put before the Boston tribunal by which it found for nullity in this case. I reviewed Sheila Rauch's book Shattered Faith back in 1997, and noted then how little hard information about the case itself was contained therein. I've worked on enough marriage cases to know that what outsiders, even closely related outsiders, know about a marriage, and what tribunals know about a marriage, can be at times stunningly disparate.

Moreover, we don't yet know what the Roman Rota sentence even says, whether, for example, it reversed Boston on procedural grounds that can be fairly easily corrected, or on evidentiary grounds that can be supplemented and resubmitted, or on substantive grounds that offer little hope of reconsideration (that last category being, for many reasons, by far the least likely).

Now, I could stop right here and say, "Anyone who (like me) doesn't know the answers to these questions has absolutely no business commenting on the case (so I won't, either)", but I can raise a few more questions for the interested.

For example, will Kennedy refile in Boston (as is his right per 1983 CIC 1643 et c.), or will he appeal this decision within the Rota itself? Rota decisions are indeed, I won't say frequently, but certainly not rarely, appealed within the Rota, and sometimes reversed. That this can happen at all should give pause to those who will cast this Rota decision as the voice of God pronouncing judgment. Or, passing over why the sentence sat in Rome for two years, will it be published in five or so years as is now typical of Rota cases? And by the way, why did the case go directly to Rome in the first place, instead of passing through normal second instance (I'm just curious about that, there's nothing untoward in such a move, per 1983 CIC 1417, though it is unusual).

Sheila Rauch, an Episcopalian who filed for the divorce, seems like a perfectly nice lady, while Joe Kennedy, a Catholic who remarried (civilly) before even Boston had reached its decision, strikes me as just another shallow Kennedy climber. But Rauch's account of this case (which now might be rushed to re-release with a gloating banner across the cover), when not putting forth assertions that are simply wrong, usually resorts to the same old feminist critiques of the Church that we have heard for decades, and Kennedy, yes, even a Kennedy, deserves a judgment based on the facts.

Maybe he just got one. But we'll all have to wait and see.

+++

* Read a sample Rota sentence here.
* Read my discussion of American annulment statistics here.
* For a look at several famous Roman Rota cases, including some that were reversed within the Rota itself, see John Noonan, Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia (1972).

posted by Dr. Edward Peters at This Permanent Link

Monday, June 18, 2007

Possible apostasy by a cleric: why we have Canon 1364

However rarely one hopes such rules will be needed, the 1983 Code of Canon Law makes provision for things like apostasy and schism, loss of ecclesiastical office, and penal procedure precisely because our divinely founded Church is inhabited by people like you and me. In any case, "canonical norms by their very nature are meant to be applied" (John Paul II, Sacrae disciplinae leges, 25) and there's nothing like a real case to consider how law should illumine life.

According to a statement apparently issued by a Midwestern bishop (you can see it here, but the names are irrelevant), a permanent deacon notified the bishop that he had become a Mormon. The bishop in turn stated that the deacon had, among other things, lost the clerical state. Hmmm. Just like that? I wonder.

Granting the bishop's document is six months old (perhaps it has been supplemented since), bears no signature (unsigned statements introduce pointless uncertainties), and does not relate some important facts (though several passages praise the work of the deacon), what is contained in the statement provokes questions about the application of canon law in the Church. Here are some that occur to me.

1. Given the determination by the Congregation for the Doctrine of the Faith that Mormon baptism is invalid, meaning that Mormons qua Mormons are not Christians, a Catholic who becomes Mormon has, it seems, not simply "left the Catholic Church" (sadly, many people do that), but arguably has apostatized from the Christian Faith (1983 CIC 751). Now, whatever else apostasy might be, it's a crime under canon law (1983 CIC 1364).

2. There is an automatic penalty for the crime of apostasy: latae sententiae excommunication. Notwithstanding the numerous complications associated with l. s. penalties, the facts alleged in this case might well satisfy the requirements for such a penalty. Oddly, however, excommunication is not even mentioned in the bishop's statement.

3. Instead, the statement indicates that the deacon has, apparently automatically (judging by the dates therein), lost the clerical state. But has he? What canon of the 1983 Code imposes automatic loss of the clerical state for any offense, apostasy or otherwise?

Besides excommunication, there are other automatic consequences for apostasy, chiefly here, loss of ecclesiastical offices (1983 CIC 194). Thus, if a deacon were, say, a parochial assistant or a member of a parish council, he would lose those offices upon apostasy; but he would not automatically be removed from the clerical state. That penalty (obviously appropriate, and envisioned in c. 1364) needs to be "legitimately" imposed (1983 CIC 18, 194, 221, 290); however, penal dismissal from the clerical state can only be imposed after a formal process, typically a trial (1983 CIC 1314, 1317, 1425).

In short, assuming the facts alleged were and still are accurate, and assuming the deacon has not in the meantime either repented of his decision or petitioned for laicization, then, it seems to me, there's an excommunicated deacon out there who has not been informed of his status, and a diocese that still has an incardinated cleric on its rolls whom it thought was gone. For obvious pastoral and juridic reasons, neither situation should be allowed to drag on.

+++

Some other thoughts: (a) the bishop's statement does, I think, effectively remove the deacon from active ministry while his status is addressed, but that fact would be clearer if the document had been worded differently from the outset; (b) one must wonder how the recent, and I think problematic, official interpretation accorded the notion of "formal defection from the Catholic Church" should be applied to a case like this; (c) An excellent book, When Mormons Call, written by a former Catholic priest (since reconciled), might be of interest to this deacon.

posted by Dr. Edward Peters at This Permanent Link

Saturday, June 16, 2007

Peter Meade should resign the cardinal's commission, or be removed

Boston politicos Peter & Rosanne Meade woke up one summer morning, saw the sun shining brightly, and concluded that God must have changed his mind about the travesty called "homosexual marriage". The Meades think that because the world did not come to an end when Massachusetts legalized "same-sex marriage", those ignorant Bible-thumpers were wrong about the consequences for societies that continually invent new ways to flout, well, just about everything.

But a pretty sunrise over Boston Harbor is not, in the slightest, a sign that God approves of what the chronically bizarre government of Massachusetts does in regard to "homosexual marriage", or anything else for that matter. Not at all.

The Meades need to read their Bible---no, not the parts about the earth opening up and swallowing sinners or raging floods wiping away the evil, as instructive as those passages might be---but rather, the places where Holy Writ reminds us that, in his wisdom, God lets the sun shine on the good and the bad alike, and that weeds will grow up alongside the wheat until, that is, the Day of Harvest, when the wheat will be gathered into barns, and the weeds torn out and burned.

But the Meades' opinion column, as bad as it is (consider here provisions such as 1983 CIC 225, 227, and 747), provokes a deeper problem for the Church in Boston: Peter Meade is co-chair of the commission advising Cdl. O'Malley about the complex and crucial issue of parish-closings in the archdiocese.

Now, if one cannot think clearly about something as simple, and as obvious, and as anciently and universally honored as the fact that marriage is a "covenant by which a man and a woman establish between themselves a partnership of the whole of life" (1983 CIC 1055), then how can he or she can be taken seriously as an advisor to ecclesiastical leaders on any topic requiring the exercise of prudent judgment?

By their own words, the Meades have proclaimed themselves unfit to hold a position of influence in any particular Church, let alone one as prominent as Boston. If he won't resign, Peter Meade should be removed from the cardinal's advisory commission.

posted by Dr. Edward Peters at This Permanent Link

Friday, June 15, 2007

Divorce mentality among Catholics: a case from the Roman Rota

The Catholic Church's highest judicial court is the Roman Rota. While not exactly the equivalent of the United States Supreme Court (see 1983 CIC 16), cases decided by the Rota are nevertheless of great significance in the development of canonical jurisprudence. All Rota sentences are published in Latin, and relatively few are later translated into modern languages. The few that are translated are generally available only in specialized publications.

For the benefit of those who might like see what a Rota sentence looks like, I recently translated one that I found interesting not only in that it provides a look at how facts and law are discussed by Rotal judges, but because it deals with a topic of major current interest, namely, how a "divorce mentality" can negatively impact the attitudes of Catholics entering marriage. Click here for my translation of the case, c. Filipiak, 23 March 1956, SRRD 48 (1956) 255-258.

For some other Rotal cases translated into modern languages, see those of the retired Irish Rotal Auditor, Msgr. Cormac Burke, on his personal website.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, May 30, 2007

The case for applying Canon 1398 to politicians is very weak

UPDATE: June 4. On 31 May, Prof. Miller revised his position, and raised some additional thoughtful questions.

ORIGINAL POST: May 30. Robert Miller's important essay for First Things (30 May 2007), wherein he says that, in accord with Canon 1398, "the Church should declare openly that [pro-abortion Catholic politicians] have incurred the penalty of excommunication latae sententiae", must be carefully read before considering my remarks.

Two weeks ago, the Los Angeles Times (14 May 2007) wrote: "Catholics can and do argue about whether a lawmaker who votes to legalize abortion triggers a provision of church law that provides for the automatic excommunication of anyone who 'procures' an abortion." I considered replying then to the effect that, while Catholics might debate the application of Canon 1398 to politicians, canon lawyers do not. But I held back for two reasons.

First, assuming my read of Canon 1398 is correct, the impossibility of using that canon to excommunicate politicians is so obvious that, for me to put forward as a discovery what, it seems, no qualified commentator doubts, struck me as pretentious. Second, until Miller's essay, many (not all, but many) of the calls to excommunicate pro-abortion politicians under Canon 1398 were flawed on other grounds (e.g., excessive emotion, lack of charity, or the substitution of righteous rhetoric for knowledge) and unworthy of substantive reply.

But in Miller's essay, we see a serious analyst applying, in charity, a fine mind to an important issue. He gets right so many things others have fumbled: Miller gently scolds Fr. Lombardia for his embarrassing alterations of the pope's remarks, he prefaces canonical remarks with moral theology assumptions about not approaching the Eucharist in grave sin (although he seems unaware that Canon 916 does exactly the same thing), and he reminds Church leaders that their exasperating reticence to speak out clearly (and correctly, of course) on certain key issues can be very damaging pastorally.

But if Miller, with everything he brings to the discussion, is wrong in asserting that Canon 1398 can reach pro-abortion Catholic politicians, and I think he is wrong, does that not mean that the time has come to conclude this particular debate and focus on other ecclesiastical responses, including canonical ones, to the grave scandal these people give?

Now, before I try to make this case (using a tact different from what others might use), let me remind readers of two important but easy-to-overlook points: 1. Canon law is an international legal system; authors and opinions from around the world are routinely brought to bear on local or national canonical issues. 2. Canon law is a true legal system, but one independent of, and quite different from, the (European) civil or (Anglo-American) common law; one's credentials as a secular lawyer are, therefore, of minimal use (and are sometimes positively misleading) in the interpretation of the Church's legal system.

Consider: If canon lawyers qua canonists are not qualified to give corporate tax advice, explain the operation of long-arm statutes, or parse the constitutionality of jury instructions (and it is utterly obvious that they are not qualified to do any such things), is it out of place to suggest that secular lawyers are in a weak position to advise on the interpretation of canon laws? I think not.

Ok. Here we go.

Excommunication is a powerful and potentially effective response to certain offensive behaviors in the Church. Nevertheless, I think that calls to excommunicate pro-abortion politicians under Canon 1398 will fail, not because Church leaders lack the gumption to apply the canon, but because the canon cannot be applied that way in the first place. But here, rather than trying to recreate the substantive canonical arguments behind this assertion for a readership that brings vastly different backgrounds to this discussion, let me, even at the risk of coming across as making only an argument from authority this time, propose only this much: Those wishing to invoke Canon 1398 against pro-abortion politicians should, at the very least, be aware that there is little, and perhaps no, support for their position among credentialed canonical scholars around in the world.

There are now at least ten pantextual commentaries on the 1983 Code of Canon Law: four from Spain, two from the United States, two from Germany, and one each from Great Britain, Italy, and France. I don't have access to the German works, but the others include: CLSA New Commentary (2000, American); Exegetical Commentary (1996, originally Spanish); Letter & Spirit (1995, British-Irish); Edicep (1993, Spanish); Code Annotated (1992, originally Spanish); CLSA Commentary (1985, American); Urbaniana (1985, Italian); Guide Pratique (French, 1985); and Salamanca (1983, Spanish). Each of these commentaries discusses Canon 1398, and not one of them even suggests that Catholic politicians are liable to its excommunication for procured abortion. Indeed, the CLSA New Comm expressly rejects the idea (even when Canon 1329 on accomplices is invoked, but that argumentation requires a separate explanation) and several others reject it by clear implication.

There are, in addition to the above, at least four major monographs on modern penal canon law: Woestman, Ecclesiastical Sanctions (Canadian, 2003); Calabrese, Diritto Penale (Italian, 1990); Borras, Les Sanctions (French, 1990); and De Paolis, De Sanctionibus (Italian, 1986). These, too, discuss Canon 1398, and none holds that Catholic politicians are liable to its excommunication for pro-abortion governmental activity. Or, to cite just one example of smaller, peer-reviewed canonical studies, Coriden's demonstration of the limited reach of Canon 1398 (1986 CLSA Advisory Opinions), has to my knowledge not even been challenged, let alone refuted.

Thus one may fairly ask, has an interpretation of canon law that seems so obvious to those untrained in canon law really escaped the notice of virtually everyone trained in canon law? I can't say for sure; it's not impossible, of course. But the findings outlined above should certainly temper the enthusiasm with which some (not Miller, of course) have clamored for the application of Canon 1398 to politicians.

The truth of an assertion is not measured by its number of adherents or the academic degrees they posses (or don't possess, as the case may be), but "there is wisdom in the advice of many" and Church law, in Canon 19, directs that careful attention be paid to the "common and constant opinion of learned persons." My emphasis. Whatever the learning possessed by proponents of excommunicating pro-abortion politicians under Canon 1398, and at times it is impressive, I suspect Canon 19 has in mind attention being paid to those whose learning is in canon law and closely allied disciplines. And within canonical circles, I detect almost no support for reading Canon 1398 so broadly as to reach the pro-abortion Catholic politician (even assuming that such status is sufficiently identifiable for the purposes of applying the law).

I conclude by reminding readers that the above observations do not, in the slightest, suggest that Church law is bereft of responses to scourge of pro-abortionism among Catholics. Canon law can be effectively applied to the grave scandal of pro-abortion Catholic politicians. With others, I have pointed to several options worth investigating, including the wider use of particular legislation and personal precepts (cc. 1315-1319), a closer look at Canon 1369, and, under or in addition to Canon 1399, special universal legislation to address the peculiarly modern problem of pro-abortion Catholic politicians. Most immediately, though, we are finally seeing, Deo gratias, a wider application of Canon 915, and I would urge greater catechesis on Canon 916.

That's a lot of options, and none of them require a tortured reading of Canon 1398 and disregard of several other important norms (including 1983 CIC 18, 221, 1323-1324, and 1425), for implementation.

Canon lawyers, like civil lawyers (indeed, any specialists), can make mistakes. They can take positions and make arguments that, in the course of things, might be shown as erroneous, or at least be obviated by later changes. But the fallibility of specialists does not warrant excessive credibility to the opinions to non-specialists. Absent a persuasive rebuttal of these observations, I think the time has come to shelve the idea that Canon 1398 is designed to reach pro-abortion Catholic politicians. That theory, if it could ever be said to have been a theory, is, as far as I can see, dead at the professional level, and continued discussion of it at the popular will only distract from other efforts, canonical and otherwise, that offer greater potential to serve.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, May 29, 2007

Canon Law Consumer Alert: On-Line Confession

On-line confessions are absolutely null and utterly void. 1983 CIC 960-961, just for starters.

A website purporting to offer on-line confession was recently called to my attention. I decline to link to it. The home page presents, interestingly (deceptively?), links to several good Catholic websites, but it does not identify who the "priests" are who receive the "confessions" and administer the "penances". But it doesn't matter whether these people are in holy orders; the confessions themselves are of absolutely zero sacramental value. See also 1983 CIC 1378.

If someone wants, nevertheless, to disclose their offenses to strangers on-line, I suppose nothing prevents them. But then, nothing prevents people from disclosing their social security and bank account numbers to strangers on-line, either. But we all know what happens to such folks, don't we.

posted by Dr. Edward Peters at This Permanent Link

Sunday, May 27, 2007

Well, since you asked, Yes, pro-abortion Catholics are still Catholic

That's precisely the problem. But maybe we should back up.

The laity's rapidly growing awareness of canon law is yet another sign that confusion in the post-conciliar Church is receding. But, as more folks without canonical training try to apply canon law in real life, we should expect them to make some mistakes. Nothing terrible about that, provided such mistakes are corrected in due course. Hardly had I blogged on the misuse of canon law by notorious abortion advocate, Frances Kissling, than I see canon law being misconstrued by the famous pro-lifer, Judie Brown of the American Life League.

Pithy slogans help popularize basic truths, but brevity must not detract from accuracy. Pro-lifers demolish abortion slogans such as "Keep your laws off my body" and "Pro-Child, Pro-Choice" precisely because such slogans, while rhetorically clever, are substantively flawed. Brown/ALL is currently pushing the slogan "You Can't be Catholic and Pro-Abortion" (original emphasis). I think this assertion is flawed. Even so, I might have let it pass except that their advertising claims that the slogan is "100% truth" and "backed by the full authority of Canon Law 915" (Celebrate Life, May-June 2007, back cover). That kind of talk gets my attention.

Logically, the phrase "You Can't be Catholic and Pro-Abortion", cannot mean other than that, if one is pro-abortion, one cannot retain one's identity as a Catholic. But, while there are certainly ways to cancel one's Catholic identify (e.g., formal acts of defection), simply "being pro-abortion", even very pro-abortion, isn't one of them.

A Catholic's involvement in pro-abortion advocacy might (depending on the usual criteria) be gravely sinful, but since when is any Catholic who commits a grave sin no longer Catholic? Catholics who commit grave sin are still Catholic, albeit Catholics in mortal sin. If Catholics die in that state, they go to Hell as Catholics, not as former Catholics. The essence of the scandal given by pro-abortion Catholics lies precisely in the fact that they are Catholics. If they weren't Catholic, what would all the shouting be about?

Ironically, invoking "the full authority of Canon 915" in support of the slogan would, if its basic premise were correct, be pointless: Canon 915 (restricting access to the Eucharist) applies only to Catholics! If pro-abortion Catholics weren't Catholic anymore, Canon 915 would not apply to them; instead, their access to the Eucharist would be regulated by Canon 844. People are finally seeing that Canon 915 is a viable response to the outrageous behavior of certain Catholics; the last thing we should be doing is questioning whether such Catholics are still Catholic and thus subject to the canon.

Note furthermore that, if pro-abortion advocacy could somehow lead to excommunication, even those excommunicated Catholics would still be Catholics in the same way that convicted felons sitting in prison are, despite the serious loss of rights they endure, still citizens. Thus, if being subject to excommunication under Canon 1331 does not mean that one is no longer Catholic, how can a pro-abortion Catholic's suffering the serious but lesser consequences of Canon 915 be invoked to show that such persons can't be Catholic! The answer is, it cannot.

I write, of course, as a canonist with the canonical criteria for full communion set forth 1983 CIC 205 in mind. I am aware that Lumen gentium 14, conciliar source for this canon and worth a careful read here, lists, e.g., "sharing the spirit of Christ" as an element of full communion with his Church. Who doubts but that pro-abortion advocacy is deeply contrary to the spirit of Christ? Nevertheless, the fact that there are baptized (often confirmed, etc.) Catholics who are pro-abortion is part of the mystery of sin; it is a testament to the staggering patience of Christ Who lets his Church be wounded anew by its very own. But we don't get around that painful mystery, or even a part of that mystery, by pretending that pro-abortionism is ontologically impossible for Catholics.

+++

Notes: 1. I have criticized (and defended, for that matter) Brown's invocation of canon law before (e.g, Sept 19, 2006 and click and scroll to 8 October 2003); 2. I am inclined to take people at their word, so I assume Brown/ALL said what they meant. Besides, in the unforgiving world of slogans, one can only assess what was actually said. Still, maybe Brown/ALL meant to say something like "You Can't be a Good Catholic and Pro-Abortion" or maybe "No Good Catholic is Pro-Abortion." Both those assertions are defensible; 3. Brown asserted in her blog of May 9th that "Pope Benedict Confirms ALL's Canon 915 Project." I don't like that kind of misleading headline (to wit, I seriously doubt that B16 has said anything about ALL's campaign to get bishops to apply Canon 915), but I suppose it passes muster under contemporary political rhetoric license standards. In any case, my criticsm of the Brown/ALL slogan above does not necesarily apply to their Canon 915 Campaign. I have not expressed an opinion on that effort.

FOLLOW-UP: June 4. Matt Abbot reports (May 31) that ALL responded to my observations. I frankly don't see how their comments respond to my points, but as this is a dispute among allies, I'm not inclined to belabor the matter. Folks can, and will, reach their own conclusions.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, May 22, 2007

Memo to Frances Kissling: Find a new canonist

Frances Kissling's life-long abortion advocacy is so well-known (and so chronically unoriginal) that, I imagine, even fewer people pay attention to her now than they did for the 25 years she ran her "Catholics for a Free Choice", a little agit-prop operation that conducted itself so egregiously that even the inveterately diplomatic USCCB, in 1993 and again in 2000, rebuked it by name.

In her recent remarks for Salon.com, Kissling manages to get a couple of points correct (though probably not quite for the reasons she thinks), but in general, she makes most of the mistakes about canon law and abortion that so many others have made. It would, perhaps, be mildly educational to fisk her whole essay, but for lack of time, I'll focus on a claim she attributes to an unnamed canon lawyer: "there is no way the [C]hurch could effectively police the excommunication, [so] I could also ignore it and keep going to Mass and taking Communion. As one canon lawyer told me, the [C]hurch has only the power we give it."

Yikes! Kissling needs another canon lawyer, but quick!

One who would tell her: The Church does not derive her power or authority from the faithful in a sort-of "consent of the governed manner", not at all. The Church derives her power directly from Her Founder and Spouse, Jesus Christ. That power, given by the Lord to St. Peter and the Apostles, will be handed on to their successors until the end of time (1983 CIC 330, 331, 375). If Kissling wants to argue that some of the more visible trappings associated with ecclesiastical "power" (economic, military, cultural, and so on) have waxed and waned over the centuries, fine. But she cannot parlay that aside into a conclusion that "the Church has only the power we give it." Not by a long shot.

Moreover, included in this God-given power is "binding and loosing" (Matthew 16 and 18; John 29), a power that applies to, among other things, the sacraments (1983 CIC 841). If Kissling were ever notified of her ineligibility to present herself for Communion under Canon 915 (in my opinion she long ago made herself a candidate for such a measure), or if she were to be excommunicated in accord with 1331 (something she says there are no grounds for, but which she might want to discuss with a competent canonist who knows how to read several canons besides 1398), I think she would find out how much higher today is the willingness of most ministers of the Eucharist to abide by the decisions of ecclesiastical authority in this area, at least compared to what pro-abortion Catholics must look back on fondly as the halcyon days of the 60s, 70s, and 80s, decades when they could pretty much say what they wanted without fear of effective rebuttal.

But suppose, finally, that Kissling did find someone to give her Communion in contravention of a directive under Canons 915 or 1331? Just what does she think such a stunt would accomplish? Whom, and I do mean Whom, does she think she would be fooling?

posted by Dr. Edward Peters at This Permanent Link

Friday, May 18, 2007

Tony Blair and the Catholic Church

What I know about British politics (well, since Churchill stood down) would fit into a post smaller than this one, so I shan't discuss Tony Blair's leadership of the Labour Party or that fascinating nation. But there is much talk about Blair's possible conversion to Catholicism, and much of that talk is quite sloppy, so I thought I'd offer a few canonical clarifications.

1. Blair's conversion would not be "a feather in the cap of the Church" or a "jewel in the crown of Catholicism", or the fulfillment of any other sloganesque phrase. The Church is not interested in feathers or jewels, She is interested in souls (1983 CIC 1752), and Tony Blair has one.

2. Tony Blair's obvious friendliness toward the Church does not count as a "baptism of desire" for at least two reasons. First, Bair is already baptized, so there's no baptism for him to desire (1983 CIC 845). Second, his way into the Church would essentially be by profession of faith. Thus, wanting to profess the faith, even for decades, doesn't accomplish anything if one neglects to make the profession necessary to join the Church.

3. Tony Blair's conversion would not make his marriage a sacrament. A valid marriage between two baptized parties is already a sacrament (1983 CIC 1055); Blair's wife, Cherie, is a baptized Catholic, ergo, he is already in a sacramental marriage.

Those are the three misunderstandings I've encountered so far. If I come across any others, I'll try to address them here. Cheery bye, what what. . .

Oh, while I have you, one last thing: If Tony Blair converts to Catholicism, I really hope that the phrase "crossing the Tiber" (or, "swimming the Tiber", or "jumping in the Tiber", or anything else having to do with the Tiber) will not be used to denote it.

The phrase "crossing the Tiber" has absolutely no foundation in theological, historical, or literary circles. The phrase "crossing the Rubicon" means something, as does "crossing the Delaware". Both denote making some kind of dramatic choice because, when the phrases came into being, the circumstances on one side of these fabled rivers clearly differed from circumstances on the other. But there's nothing different about one side of the Tiber compared to the other. Rome (literally and figuratively) lies on both sides of the Tiber! The only thing that people who cross the Tiber get is wet. But ever since Steve Ray used the phrase as a catchy title for his engrossing conversion story, everybody and his brother uses "crossing the Tiber" as a euphemism for "conversion". But it can't possibly mean that, for there isn't a euro's worth of difference between one side of the Tiber and the other.

Now, this the last time I'm going to complain about this ersatz term. If I hear it once more, I'm gonna cross the Huron, and y'all know what that means!

PS: A priest friend reminds me of Wiltgen's 1967 book, The Rhine Flows into the Tiber. That, ladies and gentlemen, is a brilliant title that actually meant something then and still means something today, as those of you who read Wiltgen already know.

Update, 22 December 2007. Tony Blair came into full communion yesterday.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, May 16, 2007

Toward clarity on abortion, excommunication, and the Eucharist

UPDATE: May 17. The Catholic News Agency is reporting that Honduran Cdl. Rodriguez Maradiaga has revised his earlier comments on the impact that pro-abortion activity can have on one's right to receive the Eucharist. His second statement seems to be a great improvement over his first.

As I read it, His Eminence leaves no doubt now but that Canon 915 can be invoked, given the requisite circumstances, to prevent reception of the Eucharist by those whose pro-abortion activities warrant that disciplinary response. True, the canonist in me would like to see, consistently, a sharper distinction between "being excommunicated" and "being prevented from communicating" (to adapt a phrase), but the lingering confusion we see on this point might be the result of the etymological similarities between these two notions in Romance languages. We can (and will) deal with that issue in other ways.

For now, let's welcome this solid statement on an important social and moral issue by one of Latin America's leading prelates. (See a few follow-up notes on my webpage).

ORIGINAL POST: May 16. Prescinding for a moment from who said it, a recent interview with a conscientious priest on the subject of abortion, excommunication, and denial of the Eucharist, illustrates well just how widespread is the confusion in this area. In my opinion, these fundamental points must be sorted out, once and for all, so that those who must apply the norms to real cases can do so responsibly. I make some suggestions toward that goal here (the analysis chart is easier to read on my website).

And be sure to see Phil Lawler's broader comments in his recent CWN Forum post, "Clarity, please, on excommunication".

posted by Dr. Edward Peters at This Permanent Link

Friday, May 11, 2007

A primer for those who prefer knowing to opining

In the vortex swirling around the pope's comments on the canonical consequences for supporting pro-abortion legislation (including what the pope said, or meant to say, or should have said), it might be good to set out calmly and simply some canons that directly impact on this situation. Strictly speaking, there are only two, but in light of comments I've heard or read, we apparently need to explicitate a third canon even though it only repeats sound personal moral theology and does not direct ecclesiastical responses to this kind of behavior.

Here's the Shorter Version: First, Canon 916. There are lots of mortal sins out there; if you commit any one of them, you're not supposed to go to Communion. It's your obligation to stay away. Next, Canon 915. Some mortal sins are committed under circumstances that, if the Church finds out about them, not only are you supposed to the stay away from Communion, but the Church is supposed to turn you away if you try to receive. Finally, Canon 1331. A few mortal sins are serious crimes under canon law; if you commit one of those, you can suffer the penalty of excommunication, and one of the consequences of excommunication is, you can't go to Communion.

That seems pretty straight-forward, no? Still, if you want more, read the Longer Version:

1. Canon 916: "A person who is conscious of [having committed] grave sin is not to . . . receive the Body of the Lord without previous sacramental confession. . ."

This canon only expresses what is already required by moral theology: anyone who is aware of having committed a grave sin of any sort and who has not repented of and confessed the sin must not go to Communion. This canon does not lend itself to enforcement by ecclesiastical authority for many reasons, including the impossibility of Church officials knowing just who committed what grave sin. Of this canon, it may be said "One who commits grave sin makes himself ineligible to receive Communion."

2. Canon 915: "Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion."

Prescinding from the inartful ordo presentationis of the Code, this canon builds on what Canon 916 will have established as a personal obligation, but here goes on to require ecclesiastical officials, under specific circumstances, to withhold the Eucharist from some persons whose grave sins meet the additional criteria set out in Canon 915. It is self-evident from the terms of this canon that some people who are not excommunicated are nevertheless prohibited from receiving the Eucharist and that this prohibition is meant to be enforced. Of this canon it may be said, "One who commits grave sin under certain circumstances makes himself liable, upon verification of the facts, to the actual withholding of the Eucharist by ecclesiastical officials."

3. Canon 1331: "An excommunicated person is forbidden: (1) to have any ministerial participation in celebrating the sacrifice of the Eucharist or any other ceremonies of worship whatsoever; (2) to celebrate the sacraments or sacramentals and to receive the sacraments; (3) to exercise any ecclesiastical offices, ministries, or functions whatsoever or to place acts of governance . . ."

This canon sets out that denial of Holy Communion is one (perhaps the most notable, but nevertheless just one) of the consequences of being excommunicated. Other canons establish that excommunication can only be incurred for certain kinds of grave offenses, all of which offenses are indeed gravely sinful actions, but sins that have additionally been criminalized under canon law.

The virtually unanimous opinion among canon lawyers is that no canon, not even Canon 1398 on abortion, makes pro-abortion legislative activity an excommunicable offense. Therefore, the many complications arising from the fact that some excommunications are latae sententiae (automatic) while others are not, do not impact this discussion. Of this canon it may nevertheless be said, "Anyone who, as a result of his actions, has been excommunicated, suffers a variety of canonical consequences, including but not limited to being barred from receiving the Eucharist."

Keeping these three points clear is a prerequisite for responsible discussion of this vital matter.

At this point, my opinions:

(1) Depending on the facts of the specific case, support for even one pro-abortion legislative proposal can be grave matter sufficient, in accord with the usual criteria (especially knowledge and consent), to make one ineligible to approach Holy Communion under Canon 916. Individual Catholics have to make that decision in accord with the principles of a sound conscience, and they are accountable to God for what they decide.

(2) Depending on the character (i.e., degree, duration, etc.) of one's support for pro-abortion legislative initiatives, such activity can be sufficient basis for ecclesiastical officials to prohibit a specific person from approaching Holy Communion under Canon 915. Church officials have to make this determination in accord with the principles of canon law and are accountable, ultimately to God, for what they decide.

(3) Under the current Code, no one can be excommunicated (automatically or otherwise) for pro-abortion legislative activity. Such activity is nevertheless potentially punishable under other canons (e.g., Canon 1369) albeit not with excommunication. Moreover, particular legislation, personal precept, or contempt for lesser penalties, might make pro-abortion legislators liable to excommunication in the future. To my knowledge, though, none of these options is being pursued.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, May 09, 2007

Legislating in mid-air? First thoughts: possible, but not likely.

UPDATE: USA Today is now reporting "Vatican spokesman, the Rev. Federico Lombardi, later issued a statement approved by the pope clarifying the [pope's and his own] remarks. The statement said the pope did not intend to excommunicate anyone. Politicians who vote in favor of abortion should not receive the sacrament of Holy Communion, Lombardi said." Read on, and you'll also see that the Mexican bishops have not excommunicated anyone, and that what this event boils down to is but the CORRECT application of Canon 915, which is all some of us have been urging for a long, long time.

Am I glad the interpretation I set out below was correct? Sure, what lawyer wouldn't be? But I am more pleased that a sound and pastorally effective reading of canon law is being promoted. Make no mistake: denial of the Eucharist is grave consequence to seriously sinful behavior; moreover, the pope's comments leave open the possibility of escalating the canonical response to pro-abortion agitation by Catholic politicians, even to the penal level of excommunication. But we see clearly here that all of this must happen in accord with the requirements of law, the same law that seeks above all, "the salvation of souls" (1983 CIC 1752).

ORIGINAL POST:

Responding to a reporter's question during his flight to Brazil, Pope Benedict XVI said that he supported the Mexican bishops' threat to take canonical action against the politicians who were involved in the effort to legalize abortion. The English version of his comment reads: "Yes, this excommunication was not an arbitrary one but is allowed by canon law which says that the killing of an innocent child is incompatible with receiving communion, which is receiving the body of Christ."

Now, the very first thing to notice about this quotation is that, as reported, it is susceptible to the chronic confusion that wearies discussions of the ecclesiastical consequences for involvement in abortion: "excommunication" and "denial of the Eucharist" are not, not, not, the same thing and understanding the difference between the related but quite distinct institutes of "excommunication" and "withholding the Eucharist" is a prerequisite for any productive commentary on the pope's remarks.

Excommunication is a canonical penalty, imposed for certain specific crimes, one consequence of which penalty is the denial of the right to receive the Eucharist. 1983 CIC 1331. As a penalty, excommunication can only be imposed, enforced, and lifted, in accord with a canonical process at a fairly high level of Church authority.

Denial of the Eucharist is a sacramental disciplinary norm, invoked in response to personal sins that meet certain criteria. 1983 CIC 915. As a sacramental norm, denial of the Eucharist can be invoked by ministers of the Eucharist down to at least the parish priest level, who need follow no specific process but must nevertheless verify that conditions for withholding the Eucharist have been met.

Briefly I see two things that could account for the pope's remarks.

1. Politicians who support the legalization of abortion generally meet the conditions for denial of the Eucharist under Canon 915. Such a comment would be interesting (though to me, not surprising) in that it lends support to the position that I and some other canonists and bishops have promoted for many years. Such political behavior is objectively gravely wrong and, if engaged in obstinately, merits, in my view, withholding of the Eucharist.

2. The Mexican bishops, using particular law or precepts (1983 CIC 1315-1319), have made support for the legalization of abortion an excommunicable offense in Mexico, and the pope supports their actions. I don't have access to the original documents, so I can't verify whether that has happened, but if it has happened, that too would not surprise me. I have already reminded people of the ability of canon law to respond to new crises over time, and the scandal of pro-abortion Catholic politicians surely merits a strong response by the Church.

Note that interpretations 1 and 2 are not incompatible; they both could be happening.

But to be complete, there are, admittedly, two other things that could explain what is being reported today:

First, the pope's remarks might have been misunderstood and/or misreported (gee, can that really happen today?) We know, for example, that there are reportorial ellipses in exactly the places that canonists would most want to see the pope's exact words, as in, verbatim: "Reuters reports the Pope added, 'They did nothing new, surprising or arbitrary. They simply announced publicly what is contained in the law of the Church . . . which expresses our appreciation for life and that human individuality, human personality is present from the first moment'."

Or, maybe, the pope is legislating in mid-air, issuing what canonists must take as an "authentic interpretation" (1983 CIC 16) of the scope of Canon 1398 on abortion, one that dramatically extends the reach of the canon beyond what (I and virtually all other canonists suggest) is the long-accepted interpretation of this penal law (pace Canons 18, 1323, 1324, among others), and at the same time reminding the world that even papal comments to reporters' carry the force of law in the Church whenever, that is, they are supposed to carry the force of law.

My guess: Pope Benedict XVI takes his law-making authority more seriously than that.

PS: About Vatican spokesman Rev. Federico Lombardi later telling reporters that the politicians who voted for abortion had automatically excommunicated themselves by their actions, well (assuming that report is accurate), it must be simply stated that Vatican press secretaries have no authority to issue binding interpretations of canon law. None. 1983 CIC 16 and Pastor Bonus 154-158.

PPS: For more information on this important area, see my new book Excommunication and the Catholic Church, and this recent Ignatius Insight Scoop interview.

posted by Dr. Edward Peters at This Permanent Link

Thursday, April 26, 2007

Abp Raymond Burke and Cardinal Glennon Hospital

While it's not exactly a canon law story, I want to comment on a decision by a justly-renowned canonist in my beloved home town of St. Louis, Missouri, a decision that is going to upset a lot of people. I refer to Abp. Raymond Burke's resignation from the chairmanship of a major fund-raising event for Cardinal Glennon Hospital for Children.

St. Louisans know how blessed they are to have a famous institution like Cardinal Glennon in their city. St. Louis Catholics in particular have long taken a special pride in the work done there, largely with their support, over the decades.

What astounds me is that the directors of a fund-raiser for a venerable institution for children could have been so clueless as to invite Sheryl Crow, a notorious abortion advocate, to headline their event; worse, the directors were so willful as to reject what were obviously many private entreaties by their chairman Abp. Burke to drop the mad idea before it all blew up in their face.

So now, it's blown. How sad. All the sadder for having been so easily avoidable.

But you know, I've seen this happen before: Catholic movers and shakers, flush with their own funds or with easy access to others', too often measure success in philanthropic undertakings in terms of media splash, dollars donated, and the number of glitteratti chatting around banquet tables, while they completely forget the fundamental religious, and even the human, values that make their efforts worthwhile in the first place. This time, even the clear words of a very thoughtful archbishop could not pierce the commotion which the organizers of this event confused for progress.

Abp. Burke extended a special word of solicitude for the staff and supporters of Cardinal Glennon Hospital, so many of whom were doubtless appalled at the "headliner" being thrust upon them. I'm sure many people join the archbishop in those sentiments.

But I do think it's high time for some folks who want, probably sincerely, to help the Church and her numerous apostolates, to stop assuming that they always know best how to do that.

+++

More commentary from another St. Louisan, Mark Brumley of Ignatius Press.

posted by Dr. Edward Peters at This Permanent Link

Friday, April 13, 2007

Cenlamor & Miras, A Basic Course in Canon Law

I am reviewing a book for Studia Canonica (St. Paul University, Ottawa) but I am so pleased with it that I want to comment on it even before my more formal review comes out, presumably some months from now.

Available in the original Spanish, El Derecho de la Iglesia: Curso basico de Derecho canonico, 2d ed (Eunsa, 2005) 573 pages, or in Italian, Il Diritto della Chiesa: Corso di Diritto Canonico (Santa Croce, 2005), 528 pages, this is as splendid an overview of the place of law in the life of the Church as I have seen since the revised Code appeared in 1983.

Unlike many other excellent studies of modern Church law, this work, drafted by two canonists from the University of Navarra in Spain, is written not only for students of canon law, but also for the general student of ecclesiastical life, particularly theology students who, truth to tell, typically know far too little about the legal system of the great organization within which they will work.

Drs. Daniel Cenlamor and Jorge Miras write from a thoroughly modern vantage point (for example, they frequently highlight the relationship between the 1983 Code and the Second Vatican Council) but they do it in such a way that anyone familiar with the pre-conciliar tradition can immediately see how the strengths of that tradition have been preserved in modern law.

For now, let me say only: this book has to come into English, the sooner the better!

posted by Dr. Edward Peters at This Permanent Link

Monday, April 09, 2007

Denial of Communion to a lesbian couple

A recent story by Kathleen Miller on the denial of Communion to a lesbian couple in Wyoming is a nice contrast to the shoddy religion reporting typical of the secular press. I have no independent sources on Miller's story, but what she reported sure seems to allow competent observers to figure out what happened. Briefly, a lesbian couple went public at least twice with their lifestyle, whereupon Cheyenne's bishop, David Ricken (a canonist by training), notified them of their ineligibity to receive Holy Communion in what was obviously an application of Canon 915: "Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion."

What more can I say? Miller's is an able report on Ricken's proper application of Church law.

By the way, Prof. Raschke's comment that "It's no more surprising that the Catholic Church would deny Communion to an openly gay couple than a Muslim mosque would deny access to somebody who ate pork." is fine as far as it goes, but Catholics need to be clear that withholding the Eucharist has to be, and in this case clearly is, grounded on something more substantial than just breaking some Church rule. Eating pork is not immoral in se, but advocating a homosexual lifestyle is; hence the grave consequence of denial of Communion is appropriate in this case.

posted by Dr. Edward Peters at This Permanent Link

Monday, April 02, 2007

Canon Law Blog News

Hardly seven months after I had installed a Maxtor Diamond Max Plus 120G hard-drive in my home computer, it totally crashed. Sparing readers the depressing details, I post only to say that among the data that was lost was my "Canon Law Blog Update" emailing list. As a result, anyone wishing to receive personal email notice of Canon Law Blog updates will need to send a request to "Receive email notice of blog updates" even if you had done so before.

This hardware failure did not affect the RSS syndicated feed, nor the "Uberblogger Update List" because it was backed-up elsewhere.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, March 27, 2007

Congratulations, Cardinal Stickler

I'm not into birthdays, but anniversaries of the accomplishments in one's life are something else. Today, Alfons Maria Cdl. Stickler marks 70 years of priestly life. And that's something to celebrate. But, with due regard for Pope Benedict's admiration of Cdl. Stickler's unsung labors in the Vatican Archives, it is Cdl. Stickler the canonist whom I congratulate today.

Some 57 years ago, Cdl. Stickler published the first of three projected volumes on the history of canon law, Historia iuris canonici Latini (Pontificia Studiorum Universitas Salesiana, 1950). Although the other two volumes were put on indefinite hold as the Holy See called him to task after task, the first work remains a standard introduction to canonical history. Among his many other writings, I would call attention to The Case for Clerical Celibacy: Its Historical Development and Theological Foundations (Ignatius, 1995) which is in my opinion the best overview of this important area now available. It was, by the way, translated from German into English by Msgr. Brian Ferme, now dean of the School of Canon Law at Catholic University of America; Msgr Ferme was, ni fallor, the last canonical doctoral student directed by Cdl. Stickler. Finally, canonists know of other documents that Cdl. Stickler drafted on behalf of the Holy See over the decades, but I won't "betray" His Eminence's reticence to accept the credit for them! God will reward him in His own good time.

On behalf of my canon law blog readers, then, may I offer Cdl. Stickler these small congratulations, and ask in return only the favor of being remembered in his powerful prayers. (Photo from: Salvador Miranda, The Cardinals of the Holy Roman Church).

Update, 12 Dec 2007. Cdl. Stickler died today.

posted by Dr. Edward Peters at This Permanent Link

Friday, March 23, 2007

Prof. Bainbridge's call for Cdl. Mahony's resignation

I know nothing about UCLA law professor Stephen Bainbridge beyond what I saw on a very impressive (for a civil lawyer) resume posted on his website, but his recent post on the chronic problems in the Archdiocese of Los Angeles in which he specifically calls for Cdl. Mahony's resignation is getting attention. Knowing, moreover, nothing about the underlying facts of the case except what has appeared in some secular media (a circumlocution for "I know virtually nothing about the underlying facts of this case"), I note that Prof. Bainbridge attempts to use canon law in his resignation argument, and canon law is something I do know a bit about.

1. In my opinion, Prof. Bainbridge's post falls within the bounds of 1983 CIC 212, 3. Perhaps I read Canon 212 too broadly, but I'm an American lawyer, and American lawyers don't mind a good dust-up.

2. Contrary to Prof. Bainbridge's language, it is not "curious" that there is no express provision in canon law for removal of a diocesan bishop for, as several commentators have already noted on his site, there are ecclesiologically sound ways to address that situation. I won't repeat their observations here.

3. I am uncomfortable, though, when non-canonists like Prof. Bainbridge, grappling with complex canonical issues, make unguarded statements such as "despite the absence of a clear answer in canon law", when what they should say is something like, "despite my not being able to find a clear answer in canon law" etc., etc. Prof. Bainbridge thinks that he can only muster the authority of "most observers" for his contention that surely the pope must be able to remove a bishop for the alleged grave violation of canon law. Here, though, he not only underestimates his position but, more importantly, the Church's ability to enforce her own discipline.

There is, in fact, no canonical doubt that Pope Benedict XVI has the authority to remove for malfeasance, if he so determines, a cardinal from pastoral office. One need only look to 1983 CIC 1401, n. 2 (reserving to the Church the proper right to adjudicate alleged violations of ecclesiastical law), and 1983 CIC 1405, 1, n. 2 (reserving solely to the Roman Pontiff the right to judge all c. 1401 cases involving cardinals). Additional canons support this conclusion, but given the weight of these two, there is little need to invoke them.

More than this, Pope John Paul II's 1995 removal of Msgr. Jacques Gaillot as bishop of Evreux (France) proves that the Holy See can take this kind of action against a sitting bishop if it beleives it to be necessary.

For the rest, my prayers go out to all those who, sooner or later, might find themselves having to weigh this grave question on behalf of our Church.

posted by Dr. Edward Peters at This Permanent Link

Thursday, March 15, 2007

Since when is Rudy Giuliani excommunicated?

I can think of many good reasons to oppose a Rudy Giuliani run for president, but that he is "excommunicated" isn't among them. 'Cuz he ain't.

In an article for the NYDaily News on-line, Ken Wolfe of The Remnant outlines Giuliani's marriage saga and rightly states that, because Giuliani is currently in an unrecognized union with Judith Nathan, he is barred from receiving Holy Communion. (See 1983 CIC 915 and CCC 1650.) Unfortunately, though, Wolfe twice describes this barring from Communion as an "excommunication" as if Giuliani labored under the penalty described in 1983 CIC 1331.

As I have explained many times, barring one from Communion is not a canonical penalty, it is a sacramental disciplinary norm; excommunication, on the other hand, is a canonical penalty entailing, among other things, barring one from Communion. But the broader penalty of excommunication can arise only for specific behaviors expressly listed in canon law, and Giuliani has not committed any of them (well, that I know of, anyway). He just hasn't.

It's bad, very bad, to be barred from Communion; but it's worse to be excommunicated. Let's hope Giuliani resolves his unhappy status without making it worse.

Read more about these topics: Edward Peters, Annulments and the Catholic Church (Ascension Press, 2004); Edward Peters, Excommunication and the Catholic Church (Ascension Press 2006); and Edward Peters' on-line Excommunication Blotter.

+++

Observations on Wolfe's article for specialists

1. Giuliani's call for tax-payer funded abortions is arguably a violation of 1983 CIC 1369, but not of 1398; no latae sententiae excommunication penalty could be declared for his actions to date.

2. The canons on consanguinity read differently now than they did under Pio-Benedictine law (See 1983 CIC 1091, olim 1917 CIC 1076). Ironically, Giuliani could probably not have proven the nullity of his first marriage on consanguinity grounds had he married under the 1983 Code.

3. The "blessing" of a Catholic priest is not necessary for the validity of marriage. See 1983 CIC 1057 and 1108.

4. Wolfe's characterizations of current annulment requirements ("a reason, testimony and, in many places, payment to the diocese") are misleading and cavilistic.

5. A second annulment is canonically no "easier" or "harder" to obtain than a first; each petition must be weighed on its merits. The number of children, if any, is completely irrelevant to adjudicating the status of a marriage.

6. The excommunication for civil remarriage after divorce that older American Catholics might remember was abrogated with Roman approval back in 1977. The 1983 Code does not reinstate it.

UPDATE: 24 may 2007. The incoherence of Giuliani's abortion position was recognized even by the Washington Post. Whodathunkit?

posted by Dr. Edward Peters at This Permanent Link

Tuesday, March 13, 2007

Mormon-bashing at The Nation

If I were Mormon, I'd be furious at The Nation.

The Nation just posted an unsigned editorial gloating over the sacking of Kyle Sampson, the former chief of staff for Attorney General Alberto Gonzales, in response to Prosecutor-gate. What angers me is not so much The Nation's hit-a-man-once-he's-down style (hey, this is national politics) but rather, its gratuitous sneer at Sampson's religious beliefs. Sampson is a Mormon.

The Nation wrote "It fell to Kyle Sampson to get rid of the federal prosecutors without bothering [Gonzales]. Kyle was the right person to do it. He's a Mormon, a Brigham Young University graduate. You can depend on them."

Can you believe what you just read? I'm not even Mormon, but I am appalled that a journal that pretends to have something to say about American public order can broadcast such obvious bigotry. Suppose The Nation had written "Kyle was the right person to do it. He's a Jew, a Yeshiva University graduate. You can depend on them." Would such persiflage have even been considered, let alone pass unchallenged? Should it?

How does Sampson's religious affiliation affect the assessment of his public conduct? What on earth does his attending BYU have to do with this case? Sampson also attended the prestigious University of Chicago School of Law, but notice, The Nation did not try to attack him there. Maybe it was afraid those Chicago lawyers would hit back. Hard. Not like those Donnie & Marie Mormons.

The Nation owes Kyle Sampson and Mormons an immediate apology for attacking them on the basis of their religious identity. Moreover, it owes all Americans a promise never again to attack any man or woman on the basis of religion. Let's see whether "America's oldest and most widely read weekly journal of progressive political and cultural news, opinion and analysis" offers any.

+++

PS: The mean-spirited streak so evident in The Nation's Mormon-bashing is reflected here in other ways. Consider their ridicule of Howard Hughes: "Howard Hughes had a bunch of bright guys like Kyle working for him. They made sure the late billionaire had fresh Kleenex boxes for his feet so he could walk around in his Las Vegas penthouse and be OK."

What (I mean, besides the fact that dead men can't defend themselves) makes The Nation's editors think that they can drag Howard Hughes into their essay and make jokes about him? In his day, Hughes patented more inventions, set more technological records, and employed countless more Americans than a busload of East-coast magazine editors, all the while suffering from a debilitating psychological disorder. For that, The Nation mocks him. What next? Giggling at films of FDR doing his fake-walk? Exchanging smug glances when a recording of Churchill betrays his stutter? I thought The Nation saw itself as an inspiration for student publications, not as an imitator of high-school humor.

In short, if The Nation wants to go after a politician for conduct in high office, fine by me; but not for what a politician believes about God, let alone for physical or mental disabilities over which no one has control.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, March 07, 2007

Alzheimer's, the Eucharist, and The God Squad

I don't have the time or expertise to monitor every religious Q&A column in America, and so I tend to comment on them only when they raise interesting questions (such as Fr. Hoffman's on Ecclesia supplet) or when they convey disturbing answers, such as one recently posted by a group called "The God Squad". The child of an elderly Alzheimer's parent wrote for advice about responding to the refusal of a Eucharistic minister to give his mother (a life-long practicing Catholic) Holy Communion because "receipt of communion depends on a cognitive understanding of what is being received". Based only on what was posed in the question, and looking only at what was said in reply, I think there are serious problems with The God Squad's answer. For efficiency's sake, I will place parts of their answers in italics, and my own reactions in regular font.

The Eucharistic minister is right. Communion is not a blessing. I don't know what it means to say "Communion is not a blessing"; obviously Communion is a great blessing, so The God Squad must have some other notion in mind. But this is a question calling for precise answers, so let's use precise terminology.

Communion is an act of religious mystery and meaning that requires understanding. No, it does not require "understanding" (whatever exactly that means here); sure, reception (like most human acts) might be enhanced by the actor's level of "understanding", but that doesn't make "understanding" a requirement for reception of the Eucharist. Once admitted to Communion, a Catholic may not be denied the sacrament except for canonical cause. See 1983 CIC 18, 213-214, 843, and 912. (Don't just glance at those numbers, read the canons.)

Your mother's disease has robbed her of that necessary understanding that alone makes communion the supreme gift it is for believing Catholics. Alone? Alone? I doubt The God Squad meant it this way, but the statement they made is rank heresy. What makes Communion the supreme gift is not the "understanding" we accord it, but the fact that it is the Body, Blood, Soul, and Divinity of Christ. That reality is not in the slightest dependent on anyone's "understanding" of so great a mystery.

For this reason, communion is not given to children under 7. Sure it is, in the Eastern Churches all the time. Besides, we're not talking about a child here, but an adult. Once Roman Catholics are admitted to the Eucharist, they enjoy certain fundamental rights in regard to its reception, as outlined above. To withhold the Eucharist for reasons other than those given in law is to deprive the faithful of a fundamental right.

A child cannot be expected to understand what he or she is receiving. So? Besides the Eastern practice for Communion, an infant does not understand baptism; an unconscious person does not understand anointing. We don't withhold sacraments because of apparent deficient understanding.

What gave communion meaning for your mother before her illness was that she understood what she was doing and what she was receiving. This just rephrases what was so dangerously asserted earlier; so again, what gives meaning to the reception of Communion is the fact that it is the Body, Blood, Soul, and Divinity of Christ.

Now she apparently does not, and so it's really not fair to accuse the Church of abandoning your mother. I agree, it is not fair to blame the Church for the action of ill-informed Eucharistic minister, or for that matter, the answers of a Q&A group posting on the internet.

You and they can say the Lord's prayer with her. Sure, but I wonder, if the woman can still say the Our Father, how can she possibly be considered too mentally disabled to receive Holy Communion?

Religious rituals are not a right, they are a blessing and that blessing must be appropriately given. There is much confusion here: (1) religious rituals (here, sacraments) are most certainly a right of the faithful; (2) again, just how is the word "blessing" being used by The God Squad?; and (3) how is it "inappropriate" to give Communion to an elderly woman for reasons others than "The God Squad doesn't think it's appropriate"? Simply repeating an assertion doesn't make it correct.

We pray for your mother . . . May God heal [her] with a healing that is understood, if not by the mind, then perhaps by the soul. I don't think a discussion of the relationship between the mind and the soul is helpful, or possible, here.

In lieu of that, let's just accord an elderly Catholic woman her rights under canon law. If and when she fails to satisfy the requirements of ecclesiastical discipline (and nothing in the facts presented suggests she has failed to meet those requirements) , then we can and must withhold the Eucharist. And not otherwise.

posted by Dr. Edward Peters at This Permanent Link

Thursday, February 22, 2007

We need to be careful with the notion of "Ecclesia supplet"

Like every good canon lawyer, Fr. Francis Hoffman knows there is much more to the Catholic Church than canon law. Thus, in answering people's questions for Our Sunday Visitor's The Catholic Answer, Fr. Hoffman draws with equal facility on Sacred Scriptures, the Catechism of the Catholic Church, the Code of Canon Law, and a generally rich storehouse of ecclesiastical wisdom. I never fail to learn something by reading his column.

One of the things I like most is Fr. Hoffman's lawyer-like, straight-talk approach. He answers the question posed, and then sometimes elaborates, qualifies, or goes beyond the surface to comment on other things. A recent example (TCA, March/April 2007, p. 22) was Fr. Hoffman's correct response to a reader who wondered whether the absolution he received was valid, given that the confessor changed the words of absolution from "I absolve you from your sins" to "May God . . . absolve you from your sins." Fr. Hoffman told the reader that such an absolution was invalid. Now, who wants to tell people that their submission to the authority of the Church was invalid though no fault of their own? No one. But Fr. Hoffman had to give the correct answer, and he did.

My concern is not with Fr. Hoffman's answer but with an additional comment he offered at the end: "Nevertheless, the penitent's sins are forgiven because it was no fault of his own the priest used an invalid formula." Hmmm. Careful here. Continuing: "In this case, as sacramental theologians point out, Ecclesia supplet, that is, the Church provides, out of her treasury of grace, the proper remedy for the defect of the minister's actions." Maybe this is a quibble between canonists, but I'm not so sure.

I understand the concept of Ecclesia supplet (1983 CIC 144.1) to describe the Church's power to supply, under limited circumstances, jurisdiction for an act. But there is no question in this case about whether the confessor had jurisdiction; rather, what was missing were sacramental words, that is, some of the words which the Church holds to be necessary for validity of the sacrament. Since what was defective was sacramental form, I don't see how the Church's ability to supply jurisdiction helps our penitent. To adapt a phrase, Ecclesia non supplet quod Ecclesia non habet; the Church cannot supply what the Church does not have, and the Church does not have the ability to supply sacramental form to a minister's deficient utterance. Many historical examples of invalid baptisms, confirmations, or ordinations would seem to bear this out. Ecclesia supplet does not remedy those cases wherein innocent persons bore the consequences of ministers making invalidating changes in sacramental form, and I don't think it does so for confession, either.

So where does that leave our penitent?

Well, even though Ecclesia supplet seems of no avail here, nevertheless, we may hold that, in some way, Deus providet, that is, God provides, or God foresees. If tragedy were to befall a hapless penitent, I think, like Fr. Hoffman, that one's efforts to seek absolution for sins in this life would somehow be rewarded by God in the next.

But short of that, God provides in other ways, too, right here and right now. He provides by giving us priests like Fr. Hoffman who will tell it like it is and alert penitents that such absolutions are invalid; He provides by telling these penitents that, while He knows these mistakes were not their fault, He still expects them to act on their knowledge of the invalidity of such absolutions and return to confession (assuming we're talking about grave sins, etc.); and I even think He provides by giving the faithful the confidence to contact their confessors, and if necessary their bishops, to inform them of serious violations of the gift that is sacramental confession.

Meanwhile, the rest of us need to be wary lest we assume too quickly that Ecclesia supplet will remedy serious mistakes in ministry just because they were not the fault of the faithful. Salvo sapientiorum iudicio.

posted by Dr. Edward Peters at This Permanent Link

Monday, February 05, 2007

Austrian "excommunication" reports are a-muddle

News reports that Salzburg (Austria) auxiliary bishop Andreas Laun has excommunicated one Richard Lugner for allowing an abortion clinic to open in one of his shopping malls, are a mess. No wonder Vienna's Christoph Cdl. Schoenborn is keeping his distance.

First, the canon under which Bp. Laun is said to have acted is 1983 CIC 1041, n. 1. Although related to abortion and homicide, this is not an excommunciation canon, but rather, an "irregularity for ordination" provision. Somebody (the bishop or the press) is way, way off in citing it. Second, auxiliary bishops are not usually the lead players in major sanctions cases, and there is some ambiguity as to whether an auxiliary bishop can even take this kind of step under 1983 CIC 1341; presumably, diocesan bishops are the decision-makers here.

Finally, as I've said many times, canon law imposes excommunication only for a very narrow range of actions; renting space to an abortion clinic isn't among them. Maybe it ought to be, and maybe there's some other way to visit penal consequences on what is obviously an objectively gravely immoral action; but as of now, even if the right diocesan officers were citing the most relevant canons, there is no excommunication in canon law for the act described.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, January 16, 2007

Denial of Communion is not Excommunication

Reports are circulating that Nigerian bishop Francis Okobo (Diocese of Nsukka) told his people that voting is their sacred duty and that those who fail to register to vote will be denied reception of Holy Communion. One headline put it: "Excommunication for non-voters: Nigerian bishop decrees".

What to say about this?

(1) Don't assume the reports are accurate; this information was doubtless subject to many permutations before reaching the West. (2) I would need considerable convincing that specific political activities are ever "a sacred duty", let alone ones whose neglect renders one liable to denial of the Eucharist under 1983 CIC 915. And (3), withholding the Eucharist is not (repeat, NOT) the same thing as excommunication (1983 CIC 1331); and note, I have not seen the bishop claim that it is.

Nigeria is a hugely important African nation, both for the Church and the world, but let's wait for more data before forming any conclusions about this particular Church-State encounter.

posted by Dr. Edward Peters at This Permanent Link   

Friday, January 05, 2007

Ashley's Treatment was a Travesty

Stories of depravity anger me, but when depravity is portrayed as compassion, I go numb for a while.

It took me some time to grasp the reality that (in 2004, though the story is "breaking" only now) parents in Seattle directed a team of doctors to cut out the breast-buds of their nine-year-old, severally disabled daughter, remove her womb, and pump her full of growth-retarding hormones so that she stays little. You can read the parental rationales here. The genuine frustration these parents felt over the years is obvious; unfortunately, it only serves as the mortar that binds brick to brick in the wall of fallacious reasoning that Ashely's parents have erected to defend their decision.

Worse (if that's possible), the parents have published their "Ashley Treatment" story so that other parents of children facing long-term care needs might consider their solution. God have mercy on us all.

In my opinion, whatever their motives might have been, the inescapable fact is that Ashley's parents inflicted a host of serious mutilations on their innocent child. None of the procedures they ordered (hysterectomy, breast-bud removal, or anti-growth hormones) could qualify as "therapeutic" under Catholic moral or canonical analysis, for none were intended as treatment for damaged or diseased organs or processes. Because grave mutilation without therapeutic character is gravely immoral and canonically criminal (see Catechism of the Catholic Church 2297 and 1983 CIC 1397), the Ashley Travesty may not be used by those entrusted with responsibility for the care of God's most vulnerable children.

posted by Dr. Edward Peters at This Permanent Link

Monday, January 01, 2007

To move forward better, try looking back. Way back.

Say, to 1746, when Lucius Ferraris, an Italian Franciscan, published the world's first Catholic encyclopedia, the Prompta Bibliotheca canonica, juridica, moralis, theologia, nec non ascetica, polemica, rubricistica, historica, in 7 hefty volumes. I first became interested in the Prompta as a resource for late decretal canon law, but one can open up to almost any of its nearly 700 article-length entries and find something interesting. Besides canon law, liturgy and sacraments figure prominently in the Prompta, as do systematics, morals, and legal philosophy.

There are plenty of copies of the Prompta Bibliotheca in libraries around the world, but their yellowing pages and densely printed, double-columned Latin text discourage many would-be researchers from even asking whether topics of interest to them might have been treated by Ferraris. For that unfortunality, I now offer a simple solution.

As part of my project to bring decretal law to a wider audience, I have just posted all of the title entries in Ferraris' Prompta Bibliotheca edition of 1844. Additionally, the several score topical headings that referred readers to various Prompta entries are also included. In short, one now need only search a single webpage to determine whether a given topic was treated in Ferraris' gift to the posterity.

Oh, Happy New Year, folks.

posted by Dr. Edward Peters at This Permanent Link