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Edward Peters

The following observations represent my opinions. While I believe that the opinions expressed here are consistent with c. 212 § 3, I submit all to the ultimate judgment of the Catholic Church. The letter “c.” stands for “canon” of the 1983 Code of Canon Law. All translations are mine, even if they coincide at times with those of others. Dr. Edward N. Peters  

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In the Light of the Law:

a canon lawyer's blog on current issues

Blog Archives 2005



Wednesday, December 28, 2005

Fake Priests


Fox News reports that a fake priest served for several months in the diocese of Linz (Austria) before being discovered as a fraud. He has since left the area. Of course, imposters can infiltrate any organization, and the trust that Catholics extend to their clergy can be abused. But the incident raises a few questions.

First, "Church officials" are reported as saying the man committed no crime. Maybe something was lost in translation but, as it stands, that assertion is wrong. Canons 1379 and 1384, to name just two, authorize "a just penalty" against those who "simulate the administration of a sacrament" or who "illegitimately perform a priestly function". The phrase "a just penalty" means that a penalty (e.g., restitution, interdict, excommunication) can be tailored to fit the crime.

Second, both canon and civil law take an especially dim view of impersonation when it involves money. If this man handled any ecclesiastical finances or took money for his fraudulent actions, he can likely be prosecuted civilly as well as canonically. Indeed, clerical fraud cases usually involve men who impersonate priests to collect donations for "worthy causes". One can guess who the worthy cause is.

Third, what of those Catholics who attended "services" or received what they thought were sacraments from this man? As one person put it, "does his Mass satisfy the Sunday obligation?"

To answer the question as posed, No, for such an action was not a Mass and thus cannot satisfy the Sunday obligation. Nevertheless, anyone who attends a ceremony honestly believing it was Mass, only to find out later that the event was a fake, is excused the obligation for that day. Moreover, one who reverently received a host "consecrated" by such a man commits no idolatry, for there was no intention to worship something known not to be Jesus, the Son of God.

As for the other sacraments, his baptisms would almost certainly be valid, for one need not be in Holy Orders to perform a baptism (CCC 1256). Confirmation, on the other hand, would be invalid (1983 CIC 882) and, because it is a "character-imprinting" sacrament that can only be administered by a priest (1983 CIC 845 § 1), it would have to be administered anew. Confessions, too, though not character-imprinting, would also be invalid (1983 CIC 965) and at least those relating mortal sins should be repeated at one's earliest opportunity. In the meantime, the good faith shown by one confessing sins to a person honestly believed to be a priest would, one may be sure, be respected by God. Assessing weddings would be a bit more complicated because of the interplay between the canonical requirement of "form" (1983 CIC 1108 ff.) and local canon and civil legislation but, at least canonically, it is likely that such weddings would be recognized as valid.

If one ever has doubts about the credentials of someone claiming to be a priest, I suggest contacting the local pastor (whose appointment is quite public), one's local chancery (all of which are listed in the phone book or on the Internet) or, for American clergy, looking up the name in the Official Catholic Directory, published annually by P. J. Kenedy & Sons.

December 26, 2005, How Mass can be illicit and sinful

Fr. Bozek, despite his excommunication, said Mass at St. Stanislaus on Christmas Eve, and news sources report that 1,500 people welcomed him with thunderous applause. What a pity. In any case, readers have sent some follow-up questions: 1) What does it mean to say that a Mass is "valid but illicit"? and 2) how can it be sinful to go to Mass? I address these briefly.

Liturgy is many awesome things, but the phrase "valid but illicit" in connection with Mass usually means that the confection of the Holy Eucharist occurred, but under circumstances that violated Church law. Given the immense importance of the Mass, participating in an illegal celebration of the Eucharist such as Fr. Bozek's is always grave matter (i.e., objectively sinful). But let's illustrate these points with a less controversial example.

There are, as it happens, a number of restrictions on when and where and by whom Masses may be celebrated. To take just one example, the celebration of Holy Mass is prohibited on Good Friday. But suppose some priest decides that he knows more about the Church's prayer life than does the Church herself and announces his intention to celebrate Mass on Good Friday. Now, Jesus does not take away the power of confecting the Eucharist from priests even when they are going to abuse His sublime gifts, so a priest's celebration of Mass on Good Friday would be, in one sense, "valid". But celebrating Mass on Good Friday would constitute a serious violation of Church law and hence would be gravely "illicit". A priest acting thus would be sinning gravely.

And what about those who attend such a renegade Mass? Well, assuming they knew that Good Friday Masses were forbidden but they nevertheless attended as a way to show their own disagreement with the Church's prohibition of Good Friday Masses, they would be cooperators in the priest's illegal action and would share in his offense.

If this is true for a Mass which was "only" in violation of liturgical law, it applies even more where a priest (who has abandoned his own parish and illegally taken a job with a second) and the leadership of the second parish are excommunicated for an act of schism and thus are forbidden the sacraments and sacramentals (1983 CIC 1331).

A physician who loses his medical license might still be able to give sound medical advice, but practicing medicine without a license is illegal and punishable even if the medical advice in a given case was correct. A disbarred lawyer might still know the answers to people's legal questions, but practicing law without a license is a crime, even if the answers to clients questions were right. Similarly, an excommunicated priest can still pronounce over bread and wine the words needed for valid consecration of the Eucharist, but he gravely violates Church law if he does so and those who knowingly join with him share his guilt. +++


Three of the parish leaders were reconciled in June 2008.

Fr. Bozek should stop and think

20 December 2005


            Fair-minded readers of St. Louis Archbishop Raymond Burke’s December 16th letter declaring the excommunication of the St. Stanislaus Kostka parish leadership must conclude that the archbishop would rather have written about any of a hundred other topics during the last week leading up to Christmas. But once again, the lay board of the Polish personal parish—under interdict since February for obstructing the archbishop's authority to supervise the administration of the parish—has forced the archbishop’s hand, this time, by hiring a priest (himself already suspended for abandoning his pastoral post in the neighboring diocese of Springfield-Cape Girardeau) and announcing that he will celebrate Mass for them on Christmas Eve. That defiant act of schism (see 1983 CIC 751) won the lay board and priest they hired, Fr. Marek Bozek, excommunication under 1983 CIC 1364 § 1.


            Fr. Bozek has been ordained for hardly three years, and he’s been in America (from his native Poland) for barely five. Yet he has apparently decided that he knows all there is to know about a vexing parochial situation that has been simmering since decades before he was born, more about where he should minister than the bishop who took him in, educated him, and ordained him for service in southern Missouri, and more about pastoral administration than the archbishop of St. Louis, who happens to be one of the most respected canonists in America.


            Fr. Bozek’s abrupt decision to walk out on his own pastoral assignment at the co-cathedral parish in Springfield and to assume unauthorized—nay, forbidden—duties in St. Louis is tantamount to a minor officer in the army being assigned to Ft. Smith, but deciding on his own that he would be more useful at Ft. Jones, and simply going there. Such a status is called AWOL, and such an officer would be placed under arrest for dereliction of duty.


            But the Church is not the army, and Archbishop Burke does not have MPs to arrest a renegade priest who takes up residence in his archdiocese and return him to Springfield—where, of course, Bp. Leibrecht doesn’t have a jail to put Fr. Bozek in anyway. Instead, both bishops have imposed on Fr. Bozek penalties within the limits of their jurisdiction. But, golly, what a pathetic way to mark one’s third anniversary of ordination: suspended by one bishop, excommunicated by a second.


            Both suspension and excommunication are "censures" (1983 CIC 1312 § 1, 1°). As a canonist, Archbishop Burke would be the first to tell Fr. Bozek that, when one “withdraws from contumacy”, one has a right to the prompt lifting of a censure (1983 CIC 1358 § 1). Fr. Bozek should renounce his intention to set up operations at St. Stanislaus parish, return to Springfield, and seek reconciliation.


            But Fr. Bozek needs to know something here: contumacy for an excommunication imposed for an act of schism is itself punishable, this time, by penal dismissal from the clerical state (1983 CIC 1364 § 2). Moreover, once imposed, penal dismissal from the clergy—not being a censure (1983 CIC 1336 § 1, 5°)—is not reversible by what amounts to offering a sincere apology. Indeed, reinstatement of a “defrocked” priest is reserved to Rome (1983 CIC 293) and is so rare as to be non-existent.


            Fr. Bozek should stop and think about that and let the parties to the dispute in St. Louis work out their situation in accord with law. +++


Violating conclave secrecy

28 September 2005


    I leave others to debate the credibility of reports that a cardinal, in no little detail, has broken his oath to observe secrecy about the balloting in the conclave that elected Pope Benedict XVI. Related questions, such as whether the reporter Brunelli dealt directly with the cardinal or with an intermediary, and, if with an intermediary, how the cardinal’s diary was obtained by him or her in the first place, are beyond my ken.


   I write only to correct a comment on the canon law that appeared in this unfortunate story, namely: “Brunelli says he couldn't identify the author [of the diary] because of the vow of secrecy each cardinal took before entering the conclave. Punishment for violating the vow is excommunication.” The first sentence is painfully imprecise. The second is simply wrong.


            1. The refusal to identify someone who breaks an oath of secrecy does not protect the latter from culpability for having broken the oath. If the oath was broken, responsibility for the deed attaches in accord with the usual rules of morality and, if applicable, law.


            2. According to ecclesiastical law, however, no penalty is specified for cardinals who break their solemn oath. The small number of support staff who are permitted into conclave precincts are bound by oath to observe secrecy and their oath is enforceable by penalty, but even there the penalty is not excommunication. Rather, it is that “which the future Supreme Pontiff will see fit to adopt, in accordance with Canon 1399 of the Code of Canon Law” (UDG ¶ 48).The sanction enabled by 1983 CIC 1399 is “a just penalty” which might or might not extend all the way to excommunication. There is also 55 that threatens "grave penalties according to the judgment of the future Pope" for those who violate secrecy, but the context of ¶ 55 is electronic eavesdropping, and in any case, the penalty need not be excommunication. Per ¶ 71, elector notes are to be burned, but again, no specific penalty (excommunication or otherwise) is attached to the violation of this norm.


   In brief, if this sad story is true and if the offending cardinal is identified, Pope Benedict XVI may deal with the situation any way he sees fit, for no specific response to this particular offense is dictated by the words of Church law.+++ The Next Papal Conclave: Current Eligible Electors



The expanding power of penalties

6 July  2005


          While sacrilege is never funny, there is something comical about the recent spate of ladies climbing into river boats and play-acting as bishops and priests. Philippe Cardinal Barbarin however, second youngest elector in the College of Cardinals, was not amused when it occurred in his portion of the Lord’s vineyard (Lyons, France) and yesterday he excommunicated a woman [it is now all but certain that, contrary to these press reports, the excommunication was in fact not issued] who was “ordained” a-boating by three other women (two of whom had already been excommunicated in late 2002 by then-Cardinal Ratzinger of the Congregation of the Doctrine of the Faith, subsequent to their own “ordinations”—admittedly on a different river). But behind the Lyon and CDF edicts of excommunication, which sensible Catholics are likely to regard as canonical “no-brainers”, there is, I suggest, at least one, perhaps two, aspects of Church law undergoing development here.


            You see, there is no canon directly punishing the "ordination" of women. Canon 1382, which prohibits, upon pain of automatic excommunication, episcopal ordinations without papal mandate (e.g., the Lefebvre case) does not apply here, for these female “ordinations” were not to the episcopate, but to the presbyterate. Canon 1383, a little closer to our facts, prohibits bishops from ordaining priests without what are called “dimissorial letters" but, while the ladies did not have recognized dimissorial letters, the penalty for violating Canon 1383 is not excommunication, but only suspension. Besides, the "ordainers" were not bishops, and in any case the failure to complete some ordination paperwork is not likely to explain the sense of outrage that many Catholics understandably feel upon reading about these latest feminist shenanigans. Canon 1384 for its part punishes with “a just penalty” one who illicitly performs a “priestly function or other sacred ministry” but of course, sacramentally speaking, the women in these cases manifestly could not perform a priestly function (female ordination being impossible under Canon 1024 and a host of supporting Church teachings) and one cannot be punished for something one in fact did not do. There certainly is, however, Canon 1379 which threatens “a just penalty” for the simulation of a sacrament, but, while the “ordination” of a woman would fit squarely within the scope of this canon, interestingly, this norm was not cited as a basis for penal action taken by CDF in 2002. (I do not know whether Cdl. Barbarin relied on it earlier this week.)


            So what exactly is going on here? How are these excommunications (CDF’s certainly, and perhaps Barbarin’s) being implemented?


           Enter Canon 1319 § 1: “To the extent that one can impose precepts [directive orders] in the external forum because of one powers of governance, one can also impose determinate penalties by precept, with the exception of [what are known as] perpetual expiatory penalties” (my emphasis). In other words, Canon 1319, which applies to a huge swath of ecclesiastical authority figures, is being read by CDF (which dicastery, incidentally, received the canonically very important “specific approval” of Pope John Paul II for its action) as enabling penal actions in a wide range of situations not directly mentioned in the 1983 Code. And this, without even resorting to the oft-overlooked Canon 1399 (which already seems to offer considerable possibilities for broader-than-legislated penal actions in cases of seriously delictual behavior, an offer Church leaders have been slow to act on.)


            Besides occasioning, then, this intriguing application of Canon 1319, these excommunications shed light on another question. To the extent that the values behind such Canons as 1379 and 1399 influenced the dicasterial and episcopal action in these cases—and clearly such norms are relevant even if they are not cited—the imposition of “excommunication” in situations that seem, at first glace, to warrant only the less specific “just penalty,” adds to the argument that "excommunication" need not be expressly listed as a penalty for a given crime in order for it, at some point at least, to be applicable to that crime. In brief, the strength of the hands of Church leaders faced with increasingly bizarre and disruptive behavior is waxing. It will be interesting to see what they do with it.


            Excommunication is a "medicinal penalty" (see 1983 CIC 1312, distinguishing excommunication, by the way, from "expiatory" penalties not eligible for imposition under Canon 1319). The hoopla surrounding excommunication notwithstanding, it is fundamentally oriented toward bringing Catholics to repent of certain seriously wrong behaviors. Sometimes the penalty achieves its end, sometimes it doesn't. But Cdl. Barbarin is right to try it, and he gives a good example to his brothers who might face similar situations in their dioceses sooner than later. +++




1) What's up with the boats? Why are they getting the water? Well, at least some of these ladies have this idea that they can escape the penal jurisdiction of local ordinaries by straddling a diocesan (and/or national) border, a wattery one as it happens. This is silliness: (a) regardless of which diocese the simulated sacrament occurred in (for purposes of Canon 1412), bishops have penal jurisdiction based on the individual's domicile or quasi-domicile (Canon 1408), and all defendants would have at least one of these; (b) The Holy See's jurisdiction extends to all people and places on earth (cit. omm.), so, again, any Catholic can be brought before it for penal judgment. In the end, the willingness of some to flout fundamental sacramental law stands in hypocritical contrast with their desire to try to hide in the sinews of procedural law after having acted as they did.

Much Ado About Not Much

27 April 2005


            Perhaps you’ve seen recent press stories about then-Cardinal Ratzinger's "secret letter" to all bishops in May 2001 wherein the one-time head of the Congregation for the Doctrine of the Faith, now Pope Benedict XVI, allegedly ordered black-out grade secrecy on ecclesiastical investigations of clergy sex abuse allegations. Depending on which version of the story you encounter, you might also hear that leaks of Church investigations will be punished with papal excommunication, that the Church claims secret jurisdiction over such cases for ten years, etc., etc.


            Folks, from where I sit, it seems much ado about not much.


            First, the CDF letter is so secret that it’s been posted on the Vatican website for some time now. I noticed it months ago. It’s in Latin because it is addressed to all the bishops of the world, and it is common Vatican practice to send out important communications in one common language rather than in umpteen vernacular versions. For those whose Latin is rusty, some versions of the CDF letter include links to websites that translate Latin vocabulary.


            Second, the CDF letter had as one important aim to settle certain procedural questions among canonists as to which canonical crimes are “reserved” to CDF per 1983 CIC 1362, that is, which ecclesiastical offenses are considered serious enough that Rome itself could adjudicate the case instead of allowing the normal canons on penal jurisdiction to operate (e.g., 1983 CIC 1408, 1412). These canons were on the books long before the clergy sexual abuse crisis erupted, but their interpretation had been disputed. CDF’s letter cleared up much of the confusion.


            Third, in extending jurisdiction over these cases to 10 years past the alleged victim’s 18th birthday, CDF actually increased the amount of time that Church officials (whether diocesan or Roman) had to prosecute these offenses. Before CDF’s letter, canonical prosecutions were complicated by unduly short statutes of limitations—the very same problem, by the way, that state prosecutions encountered in many pedophilia cases. CDF was hardly obstructing justice; it was trying to make justice more available.


            Fourth, keep in mind that most ecclesiastical crimes are not crimes under civil law, and that the Church obviously legislates for the majority of cases she encounters. For most canonical offenses, then, secrecy in criminal matters (1983 CIC 1455, 1717) accomplishes several goods: 1) protecting the integrity of the investigation; 2) shielding victims from untimely or unwanted exposure; 3) protecting accused, especially the wrongly accused, from devastating publicity; and so on. Need I say that numerous civil authorities conduct secret investigations for exactly the same kinds of reasons? More importantly, though, nothing whatsoever in CDF’s letter prevents or discourages victims (or their parents) from going to the police, private attorneys, or even the press with their stories. CDF, it seems, has a lot to learn about how to obstruct justice.


            Of course, a few ecclesiastical crimes are also crimes under civil law. Where two great powers overlap in a very serious matter, as happens when Church and state are confronted with evidence of child sexual abuse by priests, genuine legal and procedural questions can arise. Again, there is nothing new here. Working out the best manner of accommodating the rights and duties of both systems might require some discussion, but there are no insurmountable obstacles to doing just that. In the meantime, the process is not helped by plaintiffs’ attorneys hurling accusations of medieval secrecy at Church leaders. +++


Updates, 29 April: Occasional reactions to things arising in the Blogosphere:


1. seems odd that Peters thinks a letter written 4 years ago, which he says became public a few months ago, was not "confidential."...


     Umm, please, read what I wrote. I never said CDF's letter "became public a few months ago". What I said was that I noticed it on the Vatican website some months ago. That's a narrow statement about me, not about CDF. In point of fact, CDF's letter actually became public, in printed, hard-copy form, FOUR YEARS AGO when it was published in the Acta Apostolicae Sedis [AAS 93 (2001) 785-788], the official journal of the Holy See (1983 CIC 8.1) which journal  is sent monthly to thousands of libraries and offices around the world. There were also news stories on the matter in early 2002. Now, I realize that not everybody subscribes to the AAS, but then not everybody subscribes to the US government's Code of Federal Regulations either, a fact that detracts not one bit from the official and publicly-available character of materials appearing in such publications. Golly, it would save us a lot of time if discussants would actually read what was written, and expressed agreement or disagreement with that, instead of with what they think was written.


2. Didn't the Vatican itself confirm that the CDF letter is "not a public document"?


     Nope. An unnamed source in the Vatican is alleged to have said that. What the source could possibly mean I have no idea, since the letter was published in the AAS. But, questions of journalistic accuracy, individual staff competence, and even translation aside, if one wants the Vatican's position on something, one has to consult the correct Vatican office. Standard operating procedure in any large organization. The competent sources for commentary on a CDF letter would be (A) Pope Benedict XVI (who happens to be the man who wrote the letter, though that is irrelevant here), (B) a named official of CDF, or (C) a named official in the Vatican Press Office. When one of them makes a comment on a letter that is, I think, already quite understandable in itself, then we'll have a comment.



19 April E-Bay and the Eucharist


     Faithful Catholics react with disgust to the news that some folks are apparently attempting to use eBay to sell consecrated Hosts (obtained at papal Masses, no less). A few thoughts might help focus our discussion.


     1) The sale of consecrated Hosts is a grave moral evil. Even the “private” retention of the Eucharist (say, for personal adoration in the home) is illicit and exposes consecrated Hosts to risks of profanation.


     2) The purchase of consecrated Hosts is morally neutral, the moral character of the act being determined more by such factors as the purchaser’s intention (e.g., to possess it for the purpose of desecration, or to possess it to save it from desecration.)


     3) EBay’s role in this event, so far, is one of “cooperation in evil” and the standard rules for assessing such cooperation should be applied before deciding what action to take, if any, in regard to eBay.


     4) We have only the seller’s word that these wafers are consecrated Hosts. If someone is willing to sell consecrated Hosts, should we so easily assume that they wouldn’t lie about the wafers being consecrated in the first place?


     5) There is no general moral obligation on the part of Catholics to purchase (allegedly or actually) consecrated Hosts, even to save them from potential desecration. That the purchase of such objects encourages a “market” for them should be remembered.


     6) This situation has virtually nothing to do with Communion in the hand. Hosts were being taken for sacrilegious purposes long before Communion in the hand, and were being sold for same long before eBay. Of much greater relevance here would be poor Eucharistic catechesis and the increased brazenness of sinners bent on hating Our Lord in the Sacred Species. The remedies include augmented education and personal penances offered in reparation for such offenses.


     The above facts do not exempt us from taking the latest variation on a sad theme seriously, but they should help us keep it in perspective. +++


     Fact updates:


     More updates (25 April) this apparently from eBay:


We understand that you are upset at having seen certain Catholic items or items related to the Pope on eBay, including item #6169851381. Because eBay's community is a diverse, international group of more than 135 million users with varied backgrounds and beliefs, there are times when some items listed on eBay by sellers might be offensive to at least some of our users somewhere in the world. At times, members may see listings that they may consider morally wrong or objectionable. However, even though these listings may be offensive to some, please remember that most of the time the law does not prohibit the items.

Due to the fact that eBay's focus is to have a free and diverse community, we are reluctant to interfere with listings that are not illegal. Regarding offensive items, there are many items that are considered sacred to many people of various religions, and we sometimes hear complaints about these items. Examples would be Catholic relics of saints, Mormon (LDS) garments, certain Buddhist tablets, etc. However, eBay has made the decision not to prohibit any item only on the basis of the item being endowed with sacred properties by certain religious groups. In general, eBay will remove items for a violation of our Offensive Materials policy only in extreme examples in which the listing explicitly promotes hatred, violence, or racial intolerance. However, we do not remove religious items that are otherwise legal for sale and do not violate any other eBay listing policy.

Please keep in mind that many of us at eBay may also share your distaste with an item, and may not support the sale. In fact, eBay has many Catholic employees. However, we do our best to understand and tolerate the many viewpoints held by our worldwide community. The Eucharist is not illegal to sell, and is generally allowed on eBay as long as the seller does not otherwise include hateful text or images in the listing. Although we realize that you may not agree with this decision on eBay's part, we hope that you can respect the diverse and open nature of eBay's marketplace.

Regards,  eBay Community Watch

This would be a credible response and needs to be taken on its merits. The points it makes are consistent with my suggestion that eBay finds itself in a position of cooperation with evil (whether they quite realize that themselves), and thus those standards for behavior need to be applied to determine whether eBay is acting morally or immorally.


     1) May I boycott eBay? Of course, if you want to call it that, since you are not required to do business with them in the first place nor are you in the position of patronizing them frequently for necessary goods or services.


     2) May I encourage others to boycott eBay? One is free to share one's opinions with others, but your conclusions should be morally sound, i.e., you should be able to defend your determination that eBay itself is acting immorally in allowing allegedly consecrated Hosts to be sold. Moreover, you need to consider that boycotts often hurt innocent people (see eBay assertions above) and that a boycott failure can result in more brazen acts by offenders in the future (if only by suggesting impotence on the part of boycotters).


While these points are being sorted out, may I suggest that well-intentioned Catholics STOP BUYING allegedly consecrated Hosts on eBay or anywhere else, and that we make better known the possibility that a world which would sell the Eucharist in the first place would not scruple to claim falsely that such-and-such a wafer is the Eucharist precisely in order to sell it. Seriously folks, this is the Internet we're talking about here: why are so many people so easily believing such claims by people who, well, would claim to do this? What possible evidence could they offer for their claim, besides their "word"? Meanwhile, what motive would they have for lying? US $ 2,000 is a nice start. +++



2 April 2005 John Paul the Lawgiver


One hundred-and-seventeen cardinals are preparing to enter the next papal conclave, and doubtless each one is thinking to himself: “There are at least one hundred and sixteen men more worthy than I am to become the next pope.” But inevitably, one of those men must be wrong. And in relatively little time, we will know who he is.


Who would want to fill the shoes of Pope John Paul II? Theologian, philosopher, apologist, political scientist, priest and bishop, and most of all, pastor to the world, John Paul II has been all of these things. Here, though, I wish to underscore just one (somewhat overlooked) aspect of this incredible man: John Paul the Lawgiver.


Pope John Paul II was not a jurist-pope in the tradition of Innocent III, Benedict XIV, or even Pius XII. And yet he wielded immense influence over modern ecclesiastical legislation. He promulgated (and often directly contributed to the very drafting of):

As the authority behind these documents alone, Pope John Paul II would have left his mark as a very influential legislator. He has provided the raw materials for canonical explorations and applications for decades, if not for centuries. But to them, one must add (oh!, where to start?):

  • ap. con. Divinus perfectionis (greatly streamlining the beatification and canonization process);

  • ap. con. Ex corde Ecclesiae (strengthening official supervision over Catholic higher education);

  • ap. con. Ad tuendam fidem (among other things, setting a pattern for reform of the 1983 Code itself);

  • and ap. con. Universi Dominici (wisely governing the election of his own successor).

            Even this extremely short list does not do justice to his very significant use of canon law in his many teaching documents (one need only start looking at footnotes in his encyclicals and at the appendices to the Catechism of the Catholic Church to get a sense of how much John Paul II strove to alert Catholics to the legal aspects of so many of his statements). His annual addresses to the Roman Rota are of immense importance for the development of sound matrimonial jurisprudence in the Church. Even the strengthening of educational requirements for future canon lawyers occurred on his watch (Novo Codice). Perhaps now it is clearer why canonists usually refer to the pope simply as "the Legislator"!


          As John Paul himself observed: "To work for the proper implementation of [canon law] is to work for the up-building of the Church herself. It is to work for the salvation of the world. It is to play an extraordinarily constructive role in continuing the redemptive mission of Christ himself." I suggest that we as Catholics owe a debt of gratitude to this pope for helping to lift canon law from the antinomian nadir it suffered in those first years of post-conciliar confusion; moreover, we as canonists have a special obligation to continue to apply the Church's laws in accord with the mind of the Church, a mind---and a mine!---that Pope John Paul II has helped tremendously to open up for Catholics in the new millennium. +++


Recent Books by Dr. Peters:


Incrementa in Progressu: A Legislative History of the 1983 Code (2005)

Annulments and the Catholic Church: Straight Answers to Tough Questions (2004)

The 1917 Pio-Benedictine Code of Canon Law (2001)



March 18 2005, Emergency Fast for Terri Schiavo


Terri M. Schiavo is dead. March 31, 2005.


Can we consider emergency fasting for Terri Schiavo?


     "Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick, or dying persons. It is morally unacceptable. Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God, his creator. The error of judgment into which one can fall in good faith does not change the nature of this murderous act, which must always be forbidden and excluded." Catechism of the Catholic Church, no. 2277. Moreover, "A person who commits a to be punished according to the gravity of the delict." 1983 CIC 1397. Imposing a starvation/parching death on Terri Schiavo would violate both of the norms, even if Terri had asked for it (which I strongly doubt).


     "The New Law practices the acts of religion: almsgiving, prayer, and fasting, directing them to the Father who sees in secret..." CCCC no. 1969. Lent is an especially appropriate time to offer up fasts. CCC nos. 1434, 1438.


     Fast Options: 1) a Bread and Water* fast until Terri is fed again; or 2) a Good Friday fast (one meal per day, two smaller ones if necessary, and no meat) until Terri is fed again; or 3) no snacking or eating out till Terri is fed again; or 4) some physical sacrifice for Terri, her husband and his lawyer, all those defending Terri, and all those attacking her. Any of these still allow us far more food and water than Terri is getting, but if you have any questions about your own ability to fast, check with a qualified advisor, and follow his or her advice. Never eliminate fluids, especially water, even for what might seem short periods of time. May God bless Terri, and may God bless our country.


     Updates, March 19-22: 1) Congressional legislation seems poised to restore Terri's food and water. But that HAS NOT HAPPENED yet, and prayers are still urgently needed until she is actually being fed again. 2) I would like to acknowledge the many people who have contacted me (I keep no records) and said they would adopt one of the sacrifices for Terri and encourage others to do so. God bless you all.


     *A straight "bread and water fast" is pretty easy for others to spot and might (I say, might) distract from the fasting itself or perhaps confuse others. But with a fast on, say, plain tea and toast, one can pass for just not being especially hungry at the time, yet accomplish essentially the same thing.


      Of related interest: A canonical aspect of the Terri Schiavo case



Answering Crocker and Crisis, 8 March 2005


H. W. Crocker III, ostensibly telling us how good children are for marriage, meanly ridiculed Natural Family Planning and, inexplicably, Crisis magazine published it (December 2004). Both apparently believe that an appropriate way to praise one good is to denigrate another. Between them, they have wronged a wholesome and important apostolate. Crocker and Crisis expect supporters of NFP to shrug it all off because, they claim, it was all intended to be funny. Well, Crocker's essay wasn't funny; it was smug. But judge for yourself: click here. Who writes so mockingly without intending to mock, or publishes something so contemptuous of a program without intending to show some contempt?


       Whatever their motives, the Crocker-Crisis brand of humor hurt a lot of good people; moreover, they have ill-served the wider community with several specious anti-NFP assertions. Prominent persons among Crisis' already-shaken circle of friends have expressed objections to the piece. For their letters and Crocker's reply, click here. But running a few letters to the editor is not sufficient, especially not when Crocker, given the last word by Crisis, shows more condescension toward his critics.


       Crocker's sarcasm--to say nothing of his caricature of marriage in general and NFP in particular--have no place in Catholic discourse, and should be repudiated. Crisis should frankly acknowledge a serious failure in editorial judgment. Stonewalling obvious blunders only makes them worse.


       Tell Crisis what you think:


       For my own brief reply (mostly canonical) to just some of Crocker's flawed claims, read on.


Crocker committed several substantive errors in attacking NFP and the people who use it. May I suggest just three examples?


1. In his opening paragraph, Crocker completely confuses Catholic teaching on openness to children with a method for complying with that teaching. NFP needs a new slogan, says Crocker, because Catholics reject Church teaching on human procreation. That is an obvious and fundamental error in categories. NFP’s “slogans” are just fine; it’s dissident Catholics who need to change their stance.


2. Crocker says there is no apparent evidence to support claims that couples using NFP enjoy very low divorce rates. Maybe not apparent to Crocker, but there are few signs he looked. A nice place to start would have been with my article “Contraception and Divorce: Insights from American Annulment Cases” published in the Couple to Couple League’s Family Foundations, November-December 1998, on-line version (posted for a good three years now) here.


3. In the mouth of his own ethnically stereotyped creation, Crocker places words that presumably he agrees with: “The primary and fundamental purpose of marriage is not companionship, not romantic love, not moonlit strolls on the beach, or any other balderdash but the begetting and raising of children—lots of ’em, and starting soon.”  Maybe Crocker should have a look at the 1983 Code of Canon Law, indeed, at its opening canon on marriage.


“The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, and which is ordered by its nature to the good of the spouses and to the procreation and education of offspring....” 1983 CIC 1055 § 1.


            Phrases describing marriage as “a partnership of the whole of life” and as being ordered to both “the good of the spouses and ... to children” simply do not support the utterly unbalanced depiction of marriage (as being little more than licensed baby-making) that Crocker wishes to impose. But if Crocker can be excused for not knowing that these ideas on marriage now animate the Code of Canon Law (how many Catholics have the Code on their reading list?) he has no excuse for not knowing that these same ideas are prominent in such fundamental conciliar documents as Gaudium et spes no. 48 and Lumen gentium no. 11, to say nothing of Humanae vitae no. 8. Certainly the drafters of Canon 1055 had these texts before them, and Pope John Paul II approved this language during his line-by-line review of the Code before promulgation.


There is, to be sure, a lively debate going on about the conciliar and post-conciliar descriptions of marriage, debates animated by the fact that A) “baby-first” language was prevalent in pre-conciliar descriptions of marriage, and B) such language is completely gone from official post-conciliar articulations. But Crocker not only makes no contribution to that debate, he writes as one completely unaware of the fact that it is even going on.


Humor, like beauty, might be in the eye of the beholder, but truth is not. Crocker’s quest for glibness at NFP’s expense does not excuse his sacrificing accuracy about its (or any other morally licit approach’s) tested methods, and even less does it pardon his distorted descriptions of Christian marriage. It was a mistake for Crocker to write his essay, and, may I add, as one who normally cuts editors a lot of slack in choosing what to publish and what to reject, it was a mistake of Crisis to publish it. But perhaps I am saying something Crisis already knows: their on-line version of Crocker’s essay includes the request to “send angry mail directly to [Crocker]”. I can imagine. +++


Update, March 9: for more intelligent commentary on another disturbing aspect of Crocker's essay, see Carl Olson at Ignatius Insight Scoop.


Forcing the Pope's Hand

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There is a lot of silly talk—much of it self-perpetuating—about the College of Cardinals arranging for the next pope to resign upon reaching a certain age. This is complete nonsense; neither the College of Cardinals nor any other power on earth has the slightest authority to require a papal resignation (see 1983 CIC 331, resting on divine authority stretching back to the Petrine Commission recounted in Matthew 16).


Pope John Paul II has considered resignation in the past, but the desire to set an example of spending one’s last breath in service to the Church weighs heavily on him. So does, I suspect, his awareness that a papal resignation today might make more palatable the idea of another papal resignation tomorrow. Dangerous precedent, that, should the world face off against a pope who is not so widely loved. Is the Church paying a price by John Paul’s retention of office? Perhaps so, but the Church would pay a price upon his resignation, and no one grieves more at his inability to serve better the Church we love than does Pope John Paul himself.


And yet, I think another consideration may be raised here: The sufferings of old age (for those blessed to attain it) are, of course, a frightful consequence of Original Sin. But, beyond the physical hardships they endure, the vast majority of elderly face their final years without even the small consolation of being able to say that they are still being useful to others. Retirement, whether chosen or forced, leaves one very alone, makes one realize that the world is going to continue anyway, and forces the frightful question, “What have I really done with my life, now that I can apparently add nothing to it?”


If Pope John Paul II does resign, his final pontifical act should not be seen as acquiescence to the inevitable, but rather as yet another instance wherein he has shown his solidarity with the most forgotten segments of society; this last time, it would be with the long-suffering but oh-so-helpless elderly. +++


Update, February 10: If there's a lot of silliness on the pro side of the papal resignation debate, there's at least a little on the anti side as well. One high-ranking prelate, for example, is quoted as saying that it would be wonderful if Pope John Paul II outlasted Pope Pius IX's 37-year reign. Oh, really? What would be so wonderful about that?


The papacy is about service (Servus Servorum Dei), not about moving up another notch in the Guinness Book of World Records. For John Paul II to outstay Pius IX would require another ten years in office. I don't see any inconsistency between wishing, Deo volente, John Paul another 10 years of life, and harboring concerns about the papacy--and the Church--being run under the present circumstances for another decade. Ironically, most of us on the anti-forced resignation side of this debate support what political scientists would call a strong monarchial model of the papacy, even while the position we defend is leading to a de facto oligarchial reality.


The ecclesiological quandaries of an incapacitated pope are very real (the press and bloggers have not even scratched the surface yet), and we are seeing them play out before our eyes. Canon Law simply doesn't cover this situation. But the Holy Spirit does, and I'm very sure that Pope John Paul II needs no advice, pro or con, from the rest of us as to how to discern the Spirit's will in this matter.


An Ineligible Papal Elector

3 February  2005


Polish Cardinal Gulbinowicz, who every one thought was 76, has just admitted that he is really 81, and thus is ineligible to vote in the next papal conclave. I leave to others a discussion of factors impacting the morality of lying about one’s age and of letting that lie persist for many decades. Let’s just say, thank heaven it came out now, and not after a papal conclave which an ineligible elector stood to enter.


Canonically, Gulbinowicz’s ballot would have been null (1983 CIC 171 § 1, n. 2), but the election of the next pope would have been valid, provided that the null ballot did not provide the necessary vote for election (1983 CIC 171 § 2). There’s the rub, of course.


Conclave actions are super-secret. Should suspicions that an ineligible elector participated in a conclave arise after an election (and, increasingly, I think we should assume that most such things eventually do come out) doubts about the election could have been dispelled only by disclosing, at least to some extent, what the actual voting was. That possibility itself is obviously cause for some concern, to say nothing of the influence, especially in early rounds where vote margins are usually smaller, a null ballot might have had on other electors, let alone that the final vote itself might have been close.


Cardinal Gulbinowicz retired (albeit, belatedly) from pastoral duties due to age about one year ago. At that point, he was eligible for no further leadership roles save participating in a papal conclave. Whatever reasons might have accounted for the cardinal’s earlier deceptions about his age, these reasons ceased upon his retirement from pastoral duties. Continued deception threatened the liceity, perhaps even the validity, of the one role he fraudulently retained. Cardinal Gulbinowicz should have quietly notified the Holy See of his ineligibility for a conclave at the time his other resignation was accepted, instead of the Church having to deal with this matter amid an obvious crisis in an elderly pope’s health. +++


See also: Dr. Peters' List of Current Papal electors.


PS: The 1983 Code of Canon Law authorizes a "just penalty in accord with the seriousness of the offense" on those who fabricate or use falsified ecclesiastical documents (such as baptismal certificates), and on those who use other kinds of false documents (such as birth certificates) in ecclesiastical matters (say, to claim eligibility for ecclesiastical office). See 1983 CIC 1391. The statute of limitations for such crimes is three years and does not even begin to run until the offense, if it is habitual, has ceased (1983 CIC 1362). The Church, justly renowned for having a long memory, should recall the turmoil that the faithful have suffered in past centuries as a result of irregularities in papal elections; her officials should certainly consider canon law and ecclesiastical history when reaching a "tacit agreement with Cardinal Gulbinowicz" on this matter.



Update, February 4: Well, this Canon Law Blog has generated some interesting questions (that's not surprising: we are, after all, talking canon law here). So, in no special order:


1. Why should we punish an 81 year old man?


     Who says we should punish anyone yet? We have only press reports to go on so far, and several factors important for canonical prosecution of crime are not mentioned therein. What is described, however, provides enough basis to wonder whether canon law was violated in this case. Certainly, as with any crime alleged against the elderly, one can’t help but see old age itself as a heavy burden and take that into consideration. But, if a crime was committed in this case, ignoring it could provide more fodder to those who already point to cases in Church and State where the powerful are held to no account when they break the law. But all of this is the pope’s call. (See question 7 below).


2. What would be an appropriate punishment?


     I don’t know. The Legislator only specifies “a just penalty” in a c. 1391 case, and this phrase allows great flexibility in responding to a particular situation. One idea occurs to me—assuming a violation of canon law occurred: a published apology for not having declared ineligibility for a conclave sooner and for causing confusion and embarrassment at an already stressful time in the Church’s life. But again, it’s the pope’s call. (See question 7 below).


3. Gulbinowicz was trying to dodge the Red draft. Is that so wrong?


     I tread lightly here, never having been called upon to risk my own life for my country. Also, some important questions about the legitimacy of the Communist government in that territory at that time need consideration but are beyond my ken. But at least one factor should also be recalled: troops were being mustered to repel an unjust invader (Hitler’s army). In any case, this interesting question sheds no light on the propriety of a cardinal later using falsified documents many decades after their confection to retain offices and duties in the Church, and that's what this case concerns.


4. Aren’t seminarians immune from the draft?


     Under canon law? No. Canon 289 claims no such exemption today. Under Pio-Benedictine law, however, a very broad exemption from military duty, extending even to seminarians, was asserted (1917 CIC 121) by the Church, though it was often ignored by civilian governments. Still, ecclesiastical authority seems to have begun backing off its broad assertion in the 1920s, and by the early-to-mid 1950s it had de facto abandoned it (certainly as far as seminarians were concerned). This interesting question, though, sheds no light on the propriety of a cardinal using falsified documents many decades after their confection to retain offices and duties in the Church, and that's what this case concerns.


5. Gulbinowicz did not fake his certificates, his parents did. Why punish him?


     Who actually did what and when is not clear here, but I have to wonder how a typical 21 year old man would react to his parents suddenly telling him he was only 16, suggesting some level of complicity in the deed. In any case, Canon 1391 scores not simply fabricating documents, but also using fabricated documents, and that, it seems, is what the cardinal did for many, many decades, indeed, until just days ago. For example, a dispensation from nonage would have been thought to have been required for Gulbinowicz's priestly ordination in 1950 (see 1917 CIC 975) raising questions about whether the subterfuge was being continued past the war, and so on, until 2004 when the cardinal finally tendered his archiepiscopal resignation as requested to do by 1983 CIC 401, but in reality doing so some six years after the designated time. His admission of conclave ineligibility came just days ago, roughly a year and a half after it was owed.


6. He was obviously able to function in office long after “official” retirement age came and went. Should he be punished for working on?


     Diocesan bishops are requested to submit their resignations at age 75 in virtue of 1983 CIC 401 § 1, a provision enacted by John Paul II, and cardinals lose the right to participate in conclaves at age 80 in virtue of UDG 33, a provision drafted and enacted by John Paul II. Questions about the propriety of such rules are best addressed to Pope John Paul II (as was done, in fact!).  In the meantime, I would observe that many secular institutions and businesses have mandatory retirement ages. However much one might disagree with such policies, one is not justified in lying about one’s age in order to retain a job.


7. Whether the cardinal admitted this on his own or maybe someone finally reported him, I don’t know. But he must be terribly embarrassed by now. Shouldn’t we just let it drop?


     Perhaps so. Canonical cases involving cardinals may be heard by the pope alone (1983 CIC 1405 § 1, n. 2). Pope John Paul II knows Church history, canon law, what young Catholic men suffered during those terrible days of war or repression, and the record of the man in question. I’m certainly content to let him decide how best to handle the situation.


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