Catholic Church Law, Structure, and Governance

I would like to receive (you can comment on the post or send me email) some assistance from my blog’s readers.

The Mass celebrated according to the 1962 missal presupposes a different sanctuary than the one commonly found in more modern churches, generally architected for the novus ordo Mass. I know of a couple of examples where temporary modifications have been made very successfully to these modern churches to permit worthy celebration according to the missal of 1962.

I would appreciate receiving as many examples (pictures are worth 1000 words!) of any such adaptations.

Thank you in advance!

A common misconception I run across is that canon law somehow deals with sin. This is simply not correct.

Of course, canon law does deal with sinful situations in an indirect way. For instance, the law provides that any man ordained to the presbyterate – regardless of whether he might be a cleric or not and regardless whether he might have faculties or not – may administer the sacrament of penance in an emergency.

But the law does not make a determination of what is a sin or who is a sinner. It merely points out certain matters which are crimes (delicts) and constitute the subject matter for a sin.

Sin involves more than words, thoughts, actions, and omissions (which, excepting thoughts, can be objectively observed). Sin requires, in addition, an informed intellect and consent of the will. While behaviour can be defined by the law, the law cannot judge the level of involvment, engagement, and formation of a person’s intellect and will. These are internal to a person and pertain to what is referred to as the “internal forum".

Even canon 915, which refers to persons “obstinately persevering in manifest grave sin,” does not judge sin. The canon instructs ministers to act on the basis of behaviour which is objectively sinful but might not, in the specific instance, constitute a sin. The fact that it is not a sin does not lessen the risk of scandal or indifferentism, so the minister has an obligation to act under the law. But the minister who might refuse the Eucharist under the provisions of this canon does not know the state of the person’s soul.

Only God can judge that.

In response to my post a few days ago on Friday penance, I wrote a comment that I think deserves it’s own posting. Here it is in its entirety.

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The USCCB did not merely encourage penance. They lacked the authority to remove the obligation. The pope granted them only the power to commute abstinence to another form of penitence.

The relevant laws here are:

1. canons 1251 and 1253
2. Paenetimini
3. the USCCB particular law following Paenetimini; and
4. The USCCB’s reiteration and amendment of this same law

Canon 1253 reads:

Can. 1253 The conference of bishops can determine more precisely the observance of fast and abstinence as well as substitute other forms of penance, especially works of charity and exercises of piety, in whole or in part, for abstinence and fast.

This canon is based on paragraph VI of Paenetimini which reads:

VI. In accordance with the conciliar decree Christus Dominus regarding the pastoral office of bishops, number 38,4, it is the task of episcopal conferences to:

1. Transfer for just cause the days of penitence, always taking into account the Lenten season;
2. Substitute abstinence and fast wholly or in part with other forms of penitence and especially works of charity and the exercises of piety.

It is pretty clear in this paragraph that HH Paul VI only granted bishops the authority to substitute abstinence with other penitence. His will was reiterated by HH John Paul II in the 1983 code (in canon 1253, quoted above).

Therefore, even if the bishops had tried to remove the prescriptive nature of the penance, their desire would have been without effect. Individual bishops have the power to dispense in individual cases from the prescripts of merely ecclesiastical law (provided it’s not reserved) but neither the conference nor the individual bishops may pass norms which override universal law.

With that out of the way, let me look at the bishops’ intent as reflected in their document. The website you cite implies that the bishops wanted to remove requirement for penance, making it a mere encouragement. I think I proved to you that, even if they had tried to, they could not have. But the question remains: did they try?

I don’t think so. It is true their document has some ambiguities and frequently refers to removal of the pain of sin. However each one of these instances the pain of sin that is removed is explicitly linked to abstinence from meat, not to the necessity to do penance. On this particular point, this paragraph is particularly telling:

26. Perhaps we should warn those who decide to keep the Friday abstinence for reasons of personal piety and special love that they must not pass judgment on those who elect to substitute other penitential observances. Friday, please God, will acquire among us other forms of penitential witness which may become as much a part of the devout way of life in the future as Friday abstinence from meat. In this connection we have foremost in mind the modern need for self-discipline in the use of stimulants and for a renewed emphasis on the virtue of temperance, especially in the use of alcoholic beverages.

Note that the bishops mention the word substitute and not any kind of avoidance. If you read this paragraph together with the rest of the document you see that the USCCB intended to:

• Encourage Friday abstinence while at the same time make it clear the faithful were not bound to it under pain of sin
• Permit substitution of abstinence with another penitential practice
• Maintain the requirement some form of penitential practice, albeit not necessarily abstinence from meat

To summarize then: (1) the USCCB did not enact laws ending the requirement for penance; and (2) even if they had tried, they would have lacked the legal authority to do such a thing.

My recent posting and my comments on it created a bit of controversy. A friend recently reminded me that of the maxim: “two canonists, three opinions”.

This all begs the question (I think) how does one interpret canon law and how is it possible that there can be so many different opinions? This is a great question and one that I hope to be able to answer (at least to some extent, countless articles and books are written on this topic). I think fundamentally there are three factors that enter into canonical interpretations: the school of thought of the canonist, the history of the particular body of law being interpreted, and canonical tenets of interpretation (regulae iuris, civil lawyers might call them rules of construction).

Schools of Canon Law
When I refer to a school of canon law, I’m not referring to the particular school where a canonist might have been trained or even teach, but rather to a “school of thought” for the source and interpretation of canon law within the tradition of the Church. They answer questions such as “what is canon law?”, “what is the relationship between canon law and other sacred disciplines?”, and “how is canon law to be studied?” This is, again, a very broad topic and one that fills many graduate level courses and seminars. I will limit myself to introducing outlines of what some of the principal philosophical canonical schools of thought hold; its brevity will be inevitably insufficient and misleading but might provide a useful flavour.

The “Italian” school
The Italian approach to canon law is, at the simplest level, a legal approach. Canon law throughout Italy is taught not only in pontifical universities, but as a discipline in the regular law schools. Canon law is just law in this conception and it can be interpreted, understood, analyzed, and dissected simply as law. Theology, ecclesiology, and any other sacred science enter the Italian school scholar’s analysis not at all or, at most, as instruments to learn the mind of the legislator as parliamentary deliberations do in civil law interpretation. These sacred disciplines, which are truly important to the Church (and recognized as such) are not part of the law except to the extent the legislator may have used them to draft the law. This approach is very dry; law is law and canon law no different. A favorite statement (which I admit is one of my favorites) is dura lex sed lex, the law is hard, but it’s the law.

The school of Navarra
The school of Navarra, aptly named for it developed in the Opus Dei Navarra university in Pamplona, Spain grew out of a desire to reconcile what the scholars perceived to be a conciliar and post-conciliar canonical crisis. The approach is inextricably linked to the great canonical scholars P. Lombardia, J. Hervada, and P. Viladrich. This school tempers the approach of the Italian school with an ecclesiological view. This approach to canon law views the discipline as a means of structuring the Church. Canon law, although independent from ecclesiology, in truth ends up defining an ecclesiological view. Canon law is held separate from theology (as in the Italian school) except for the theological contents of the law itself. The focus is on ordering and responsibility for correct social order (and justice!) rather than communion.

A proponent of this school might suggest that, in opposition to the Italian school, the civil law should model itself on canon law rather than the other way around. The focus, is justice (true justice) and social ordering.

The School of Munich
The school of Munich is a current of canonical thought particularly prevalent in Northern Europe and with its birth identified in Munich (hence the name) with K. Mörsdorf. While the previous schools view canon law as a discipline in and of itself, with the Italian school basing its view on civil law and the Navarra more focused on law as a tool of (but separate from) ecclesiology, the northern canonists view canon law as intricately linked to the sacred work of the Church. The Church is fundamentally viewed as a sacramental structure and within this sacramental structure canon law represents part of the visible whole. In this approach then, canon law is a fundamental part of the sanctifying action of the Church and the focus is on spirituality. As a result, concepts such as “internal forum” or “external forum” (or even the conciliar concept of communio) give way to a unitary view of the law as part of the indivisible Church of salvation; canon law lives as an integrated and inseparable “organ” of the Church “body” and can only be understood in such a context. Strict legal doctrines have little room in this canonical approach.

The Pastoral School
This is not a specific school that can be identified as linked with a specific time and a specific university, although it is a current that is clearly recognizable as distinct from the others. Adherents to this school, such as Alberigo, Edelby, and Huizing, would argue that pastoral necessity requires separation of canon law from theology not only methodologically (as the Italians and the Navarra scholars do), but also substantially. Pastoral requirements dictate that theology be de-legalized and canon law be stripped of theology in its very content, to allow for the independent evolution of each and provide proper pastoral care and flexibility.

My personal bias
For fairness of disclosure, my personal bias (and what obviously colors everything you might read in this blog) places me halfway between the Italian school and Navarra. In my view canon law is first and foremost law and must be analyzed that way. The tradition for this approach is ancient. “Legista sine canonibus parum valet, canonista sine legibus nihil!” said Gratian (a lawyer without canon laws is worth little, but a canonist witout laws is worth nothing). An Italian school canonist could not have said it better.

That said, I recognize that the law defines the Church’s structure and is inevitably an instantiation of our ecclesiological views.

Basis of Canon Law
It is an error to think that canon law is reduced to the codes (CIC and CCEO) and current apostolic constitutions. The codes and the constitutions do not live alone. Words in them have meanings that derive from two thousand years of legal development (and many are based on Roman law which existed for even longer). This history cannot be ignored when interpreting and applying canon law, but each element of today’s law must be linked to its past and history to truly understand its origin.

For most laws this means that, at a minimum, the careful canonist should look at their immediate predecessor. The most likely predecessor for the 1983 CIC is the 1917 CIC or conciliar document (or both). But a careful analysis should not be exhausted there but should look farther back to the Corpus Iuris Canonici (the most important compendium of this Corpus is available on my website through this link) which was the basis for the code of 1917.

In truth, even this work was foundationally based on the fusion of Roman law with prior canonical legislation done by Gratian, so an understanding of Roman law, its sources, and its tenets of application and interpretation is important. A brief reading of opinions (the Rota publishes its opinions consistently, but many opinions of the Apostolic Signatura are also available) shows consistent reference to this older body of work in order to provide context for canon law up to the present day.

Regulae Iuris
The last category of material that must be well known to the canonist in order to properly interpret and analyze canons is the set of rules of construction called regulae iuris. These are included in the corpus iuris canonici but since they are not laws, they were not displaced by the codifications of 1917 or 1983 (although some of their ideas are found in general norms). They are alive and well today and can guide a proper understanding and application of the law. There are many and some may appear contradictory. Deciding which should apply when, and to what extent, is a key part of what it means to be a good canonist and we are guided by prior opinions (although these are not binding), by the opinions of experts, and by our own knowledge of the history and organic development of canonical thought.

Two of these were useful to me when I wrote the notes on Friday penance. I will cite and quote them here because they give a good flavour for the overall nature of these rules. Both of them appear in the Liber Sextus promulgated by Boniface VIII in 1298.

The first states that: “Nemo potest plus iuris transferre in alium quam sibi competere dinoscatum.” which I would translate as: “Nobody may grant to another more rights than are recognized to pertain to himself.” One way to read this is that you can’t exercise more authority than you have been acknowledged to have (or have been granted); you can’t give what you don’t have. The second interesting regula to the issue states that “Contra eum qui legem dicere potuit apertus, est interpretatio facienda.” which I would translate as “Interpretation must be made against him who could have said the law more clearly.” In other words, if a legislator has an opportunity to make a law clear but ends up making it ambiguous, the interpretation of the law must be strict, that is it must be seen to create the smallest effect possible.

Conclusion
At any rate, this is a brief, all too brief summary of why “two canonists, three opinions” applies. I hope this helps explain where some of the differences might come in.

It is important to note that none of these approaches to analysis is “more right” than any other (except that mine is right-on ) but it is important to understand where individual canonists fall within this spectrum. It is also important to know that there is only one right answer to any given canonical question in the sense that only one argument will eventuall win at a hierarchical recourse or tribunal process and only one conclusion is congruent with the mind of the legislator.

With that in mind I will point out that for a long time the Rhine flowed into the Tiber, but I think of late the Rhine has become the Tiber and gone native…The Italian and Navarra schools may be on the rise.

Recently, I had the surreal experience of confessing a sin and being told it was not a sin. Rather than have an argument with my confessor, I accepted his absolution confident I’d made my confession.

Nevertheless, I followed up with him because I was concerned about his misunderstanding of a fundamental obligation of the faithful: Friday penance. I decided to write about it here because I’ve since realized that most people are under the erroneous impression that Fridays outside of Lent are no longer penitential days.

By default, Catholics (excluding those not bound because of age, disease, pregnancy, etc.) are obligated by universal law (canon 1251) to:

1. FAST and ABSTAINfrom meat on Ash Wednesday and Good Friday
2. ABSTAIN from meat (or other food specified by the competent episcopal conference) all other Fridays of the year (not just during Lent) unless the day falls on a solemnity (e.g. the Feast of St. Joseph)

Now, while this is the universal law, competent episcopal conferences may change the requirements but not remove the obligation (canon 1253). The Italian episcopal conference (CEI) and the USCCB, for instance, allow the faithful to choose another penitential act (works of charity, etc.) to replace traditional Friday abstention. This approach, which I believe is nearly universal, is in keeping with the guidelines established by Paul VI in his Apostolic Constitution Paenetimini.

The point, however, is that the traditional practice of Friday penance is not abrogated. Catholics continue to be bound by this law. You can eat meat on Friday if your bishops’ conference allows it, but you must substitute the abstention with another penitential practice.

Following some comments I made in response to questions in another blog, I’ve received some additional email questions. In the interest of providing answers that may be of greater interest (and they are interesting questions) I decided to post the questions and answers here.

A note of warning: although I had to study a considerable amount of sacramental theology in the first cycle of my canonical studies (the prerequisite phase) I am not a sacramental theologian. If I have made errors in the sacramental theology portions of this post, let me know.

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Question: Considering the fact that the Holy See does not usually ban previous liturgical books, can and has the 1965 Missal with the vernacular parts been celebrated after the 1969 Missal?

Whether it has been celebrated or not, I cannot say. Perhaps readers can provide an answer?

Whether it can is another matter. In order to answer properly, I think it is important to understand whether older texts are ever licit.

In general, when a new law is promulgated (and missals, which contain rubrics and directives, are properly part of the body of liturgical law) it abrogates prior law which it reorders (canon 6 implements and expresses, for the 1983 CIC, this regula iuris). As a result, when a liturgical text updates a prior one, the prior one should be considered abrogated and should not be used.

This raises a very interesting question. The Holy Father tells us that the older missal was never abrogated. He is the Church’s supreme legislator, and his comment has the force of an authentic interpretation – he is certainly not bound to use the regulae iuris. But the implication of his statement is interesting. The implication is that the Novus Ordo Mass was not an updating of the prior missal (because an updating would have abrogated the prior liturgical text) but an altogether new form (which is consistent with the characterization of it as a different use of the same rite). All this gives credence to the notion that the Novus Ordo Missae was a rupture!

But this is all a very long and complicated way to answer your question. No, there are only two approved liturgical texts in the Roman liturgy (that is, excluding Ambrosian, Mosarabic, and other specific liturgies) of the Latin Church: the last revision of the Novus Ordo Missae, and the missal of 1962 of bl. John XXIII. All other Roman uses are abrogated, if not by the issue of subsequent texts, by the explicit words of Summorum Pontificum

That said, all of them will provide a valid Eucharist if celebrated by a proper minister with the proper matter and properly formed intent; they just won’t be lawful or licit.

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Question (follow-on): Is it lawful to celebrate it?

No. See answer above.

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Question (follow-on): Will a Mass said according to those norms be valid?

If you have valid matter, properly formed intent, and presbyteral or episcopal sacramental character, you will have a valid Mass. It will be illicit.

Note that you don’t even need the entire liturgical celebration. A priest can validly consecrate bread and wine (or even only one species) even outside the Eucharistic celebration. This is strictly forbidden, even in an emergency (canon 927: ”Nefas est, urgente etiam extrema necessitate, alteram materiam sine altera, aut etiam utramque extra eucharisticam celebrationem, consecrare” – this is as strong a prohibition as there exists in the code). Nevertheless, even such an illegal, schismatic, and even sacrilegious, act would be valid.

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Question: Do you know any ‘resistant’ groups who have insisted that they’d prefer and celebrate that Missal in opposition to the 1969 Missal?

I’m not sure I understand the question. You mean the 1969 missal rather than the 1962 missal?

If that’s the question, then no, I don’t know of any. I have heard of some sedevacantists who don’t even accept the 1962 missal, but nobody who insists on using a later one (that is not the Novus Ordo Missae).

The Pontifical Guard is back!

This is not strictly a canonical matter, but it touches on matters of executive authority, so I’ll stretch the blog…

This force, which provided the Holy See protection through the centuries, was disbanded and reduced to a mere security force by order of Paul VI in 1970, was reestablished as a military unit by John Paul II in 2002. Last month, after a hiatus of nearly 40 years, the force is back in business, having a new class that recently graduated and took its first oath of fidelity to the Pontiff in over 30 years.

The Guard can be rightly considered a military force again, not only because they’ve been granted to restore their ancient rituals, protocols, and reponsibilities, but also because the Vatican has entered into an agreement with the Italian government to allow these officers to train with Italian military forces and utilize modern weapons in their duty.

If you read Italian, you can read more details about this force and the oath these young men took last month at the vatican city state web site here, including great photos, or more information here.

I, for one, am quite happy. It was sad to me that a glorious and prestigious force dedicated to the protection of the Vicar of Christ on earth, all its traditions and historically rich protocols could be erased with the stroke of a pen.

Now, if the Holy Father would only restore the full papal household…all in good time, I think.