Monday, June 04, 2007

Hey, I'm just the Pope, not a Canon Lawyer!


Well, HE might be the pope, but I'm just a man. And I'm man enough to say that sometimes I might not get it exactly right. Especially when it comes to Canon Law. And it seems that Peregrinus might have been right after all with regard to excommunications and politicians voting for abortions--at least in regards to canon law. And Robert T. Miller, though a lawyer, is also a man (not the pope) and he admits that he got it wrong too. The tricky thing, as he points out, is that Benedict XVI IS the pope, and he also seems to have gotten the canon law wrong--so it seems that we are in good company.

Nevertheless, I do still stand by my original assertion that the pastors of Christ's Church do have the authority to formally excommunicate those who publically and to the detriment of the Church persist in obstinate grave sin--which might (in certain situations depending on the pastoral judgement of the bishop) occasionally mean that pro-abortion politicians are excommunicated. BUT this clearly is not a case of the automatic lata sententia excommunication referred to under canon 1398 in terms of "procurring an abortion". So there you are. Proof, Pastor McCain and Pastor Weedon, that while popes may be infallible when they definitively declare the faith and morals of the Church, they are not infallible when it comes to off the cuff comments about canon law. And neither am I.

6 Comments:

At Tuesday, June 05, 2007 10:51:00 am , Blogger Athanasius said...

I wouldn't feel too bad about it. If I know lawyers, someone somewhere will undoubtedly take your side (for the right price)!

And my original comment on this matter stands. If it is the case that canon law says what Peregrinus says it does, this merely means that it's time to change canon law, and give bishops the option (not necessarily the duty - it's a pastoral issue) of excommunicating politicians who cause such grave scandal.

 
At Tuesday, June 05, 2007 5:07:00 pm , Anonymous Peregrinus said...

Hi David

I still think you’re confusing “excommunication” and “withholding communion”. Excommunication is a canonical penalty which can only be imposed where there is a basis for doing so in canon law, and by using the procedures provided by canon law. Asserting that there is a right to excommunicate pro-choice politicians without pointing to any provision of canon law which creates that right is advocating the ecclesiastical equivalent of Guantanamo Bay, and you wouldn’t want to do that, would you?

Athanasius, if there is currently no legal basis for excommunicating pro-choice politicians, canon law could of course be amended to provide a basis. But that’s a matter exclusively for the Bishop of Rome, who has the sole legislative authority, and any criticisms you have need on that score to be directed at him, and not at any other bishop.

Withholding communion is a different matter. I agree with you, David, that there is already a clear basis for a bishop to do this. Pope Benedict’s view seems to be that (a) there is a basis for doing this, (b) there is a good case for doing this, but (c) it is a decision for the bishop whether to do this, and (d) he will back the decision the bishop makes.

A bishop should not decide not to do this on the basis of a belief that he has no power to do it, because that belief is wrong. But there may be other good reasons for not doing this.

My own view that is that the question of whether abortion is morally permissible is of far greater importance than the question of whether it should be legal or illegal, and has a much clearer answer. If bishops do not withhold communion from politicians who administer agencies which perform abortions, and if they do not withhold communion from politicians who vote funding to provide abortions, then it is very hard to defend withholding communion from politicians who simply vote not to criminalize abortions.

 
At Wednesday, June 06, 2007 12:49:00 pm , Blogger Schütz said...

I'm not quite sure of something here--maybe you will be able to help.

I know that no priest or bishop has the right to refuse the sacraments to a baptised Catholic who has "the proper disposition" for the reception of the sacrament.

The pastoral judgement that a given idividual does not have the "proper disposition" would allow a refusal of the sacrament (eg. lack of repentance would mean that a priest could not give absolution).

I realise there is a level of formality involved with an excommunication which requires the excommunication to be formally lifted before readmission to the sacraments, but this "refusal" on the grounds of "improper disposition" seems only to differ from formal excommunication on the level of legal formality--the refusal is not a canonical pronouncement and therefore the readmission does not require a canonical pronouncement. But otherwise the effect and the pastoral intention appears to be much the same.

Secondly, I think, Peregrinus, are failing to acknowledge that there are forms of excommunication which are not lata sententia--ie. automatic for the offence. Canon law covers the lata sententia occasions, and also the parameters for explicit excommunications in other cases, but it does not limit what those other cases may be. It is not the gravity of the crime alone which could result in excommunication; the context and attitude in which the crime was committed and the effect of that crime upon the Church and the soul of the one who committed it would also need to be taken into account. It would therefore be both impossible and unwise to attempt give a complete list of situations in which excommunication would be canonically permissable or even obligatory for a bishop. Suffice it to say that bishops have the authority to use the instrument of canonical excommunication whenever they find it pastorally necessary to serve the cause of justice.

 
At Wednesday, June 06, 2007 2:43:00 pm , Anonymous Peregrinus said...

Hi David

“I realise there is a level of formality involved with an excommunication which requires the excommunication to be formally lifted before readmission to the sacraments, but this "refusal" on the grounds of "improper disposition" seems only to differ from formal excommunication on the level of legal formality--the refusal is not a canonical pronouncement and therefore the readmission does not require a canonical pronouncement. But otherwise the effect and the pastoral intention appears to be much the same.”

Actually, no. They are the same in one important respect; they both involve withholding communion. But in nearly every other respect they are markedly different.

Excommunication is much more far-reaching; it involves denial of all the sacraments, (including reconciliation) except in danger of death, denial of participation in all liturgies (to the point where liturgies are to be stopped rather than allow excommunicated persons to participate in them), and dismissal from all offices and ministries.

More to the point, excommunication is a penalty; you can’t be excommunicated unless you have done something which (a) is wrong, and (b) has or can have the penalty of excommunication attached to it under canon law.

There is a limited list of actions which carry automatic excommunication. Procuring an abortion is the most well known, but there are others – e.g. desacrating the Eucharist, violence against the pope, ordaining or being ordained a bishop without papal mandate.

As you say, there’s no finite list of actions for which excommunication could be imposed, but you do need to point to some provision of canon law which allows excommunication, and whose wording is wide enough to encompass whatever action you are complaining about. Canon law itself says that a penal provision – i.e. one which imposes a penalty – is to be narrowly interpreted, so if there is any real doubt over whether the action you are complaining about is or is not within the scope of the provision you are relying upon, then it isn’t within the scope of the provision.

In addition, because there is a penalty involved, the proper procedure has to be followed. This involves notice to the person concerned, an opportunity to be heard, and a right of appeal against a decision to excommunicate.

I’m not convinced, then, that you are right when you say that “bishops have the authority to use the instrument of canonical excommunication whenever they find it pastorally necessary to serve the cause of justice”. If that were true, it would seem to set aside the various protective elements built into Canon law.

Withholding communion from someone who is not properly disposed is fundamentally different. For a start, it is not a penalty, and it does not depend on the individual having done anything morally wrong, or having committed any sin. In the letter from (then) Cardinal Ratzinger to Cardinal McCarrick that we looked at earlier, Ratzinger says explicitly that withholding communion does not involve or imply any judgment about the subjective guilt of the individual involved.

I’ve published a piece on Catholica this morning suggesting that what underlies withholding communion in the absence of an excommunication is not subjective sin or wrongdoing, or any notion of censuring or penalizing, but what some Anglicans (in a not dissimilar context) are currently terming “impaired communion”; there is perceived to be simply too big a gap between the faith which an individual is seen to express and live, and the faith which the church seeks to express and live collectively. That gap may be the consequence of subjective sin on the part of the individual concerned, but it doesn’t need to be.

As I see it, withholding communication from a Catholic who has distanced himself from the church in some important respect has more in common with withholding communion from (say) a Presbyterian than it does with excommunication.

 
At Wednesday, June 06, 2007 10:53:00 pm , Blogger Schütz said...

What, what, what, what, what????

I can't believe you said what you did just then, ol' bean:

Withholding communion from someone who is not properly disposed is fundamentally different. For a start, it is not a penalty, and it does not depend on the individual having done anything morally wrong, or having committed any sin. In the letter from (then) Cardinal Ratzinger to Cardinal McCarrick that we looked at earlier, Ratzinger says explicitly that withholding communion does not involve or imply any judgment about the subjective guilt of the individual involved.

The operative word here is surely "subjective", for there is and can be no basis for the withholding of communion if the individual in question is clearly in a state of grace. In fact, it is the right of every Catholic, being properly disposed, to receive the sacraments when he or she requests them.

The lack of proper disposition to receive the sacrament means that the individual concerned is, in some OBJECTIVE (rather than subjective) way, in a state of sin rather than of grace. The business about "subjective guilt" simply means that it is impossible for the minister of the sacrament to know what is actually going on in the heart of the individual who comes forward to receive communion. BUT in cases where the individual is known--OBJECTIVELY--to be living in a way that contradicts the inner coherance of the Eucharistic mystery--well, then withholding communion is appropriate.

 
At Thursday, June 07, 2007 3:28:00 pm , Anonymous Peregrinus said...

Well, I was surprised too, but Ratzinger is pretty clear on the point. Not only does he say that the minister of Holy Communion is not “passing judgment on the person’s subjective guilt”, but he says that the act of withholding is not “a sanction or a penalty”. It is, he says, a “reaction” to “an objective situation of sin”.

As you say, it is the right of every Catholic who is “properly disposed” to receive the sacraments, but you glide seamlessly from that into saying that there is no basis for withholding communion if the person concerned is “clearly in a state of grace”.

I don’t think this is right; if it were, we would have to give communion to any baptised Catholic of the age of innocence (and therefore incapable of sin) who requests it, whereas of course the very firm practice in the Latin church is not to do this.

I think being “properly disposed” covers more than being in a state of grace, or at least not clearly not being in a state of grace. It involves being “in communion”; intentionally aligning the expression of your faith (and I include here not just what you say or aspire to but how you live your life) with the expression of the faith of the people of God. A Presbyterian may be in a state of grace, but will not usually be admitted to holy communion precisely because he is not “in communion”.

(Yes, I know Presbyterians are not Catholics and therefore are not covered by the statement that a Catholic, properly disposed, has a right to the sacraments. My point is that the basis for withholding communion from Presbyterians casts some light on what “proper disposition” means, given that Cardinal Ratzinger assures us that it has nothing to with subjective guilt, or with any need for a penalty or a sanction.)

I think I’d summarise the position this way.

If you are subjectively guilty of grave sin, you shouldn’t receive communion. That is primarily, and perhaps exclusively, for you to police. Ratzinger seems to suggest that it is not the business of the Eucharistic minister to ask himself about your subjective guilt, and this seems right to me.

If you are in an objective situation of sin, this has two implications:

First, if you’re aware of the objective situation of sin, it obviously requires at the very least an examination of conscience, to ask yourself whether you should be presenting for communion. But that’s your concern, not the minister’s.

For the minister, it requires him to consider whether you are “properly disposed”, but this does not involve him considering the state of your soul, or considering whether anything has happened which requires penalty or sanction or, I think it follows, whether you are in a state of grace. Rather, it involves him considering whether your position is fundamentally inconsistent with “communion”, in the sense of an expression and living of faith shared with the church at large. Is your position consistent only with the continuing rejection of this sharing? Then that’s a problem.

That, I suggest, is why living in an invalid second marriage is a barrier to Communion. I may live a sexual life characterised by bouts of unbridled abandon and exploitation – this is hypothetical, you understand – but if I settle down into a solidly respectable marriage celebrated by a civil celebrant, that is the classic example of grounds for withholding communion. Why? In many respects it may be less morally wrong than my previous conduct, but it’s seen as a fundamental, institutionalised and continuing rejection of the connection between what should be the most important and creative relationship of my life and my participation in the people of God. So it’s seen as a reason for withholding holy communion.

That is also the reason, I think, why it is persistence in manifest (i.e. visible, public) grave sin which is needed to justify withholding communion. It is not that, practically, the minister will not be aware of it if it not manifest; in fact he may be, for example, because he has counselled you. It is that manifest sins are the ones most likely to be destructive of communion.

 

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