Last week’s post concluded the analysis of the second principle that influenced the 1983 Code of Canon Law in light of the spirituality of canon law. Today’s post discusses the third principle.
The third principle reads:
“To foster the pastoral care of souls as much as possible, the new law, besides the virtue of justice, is to take cognisance of charity, temperance, humaneness and moderation, whereby equity is to be pursued not only in the application of the laws by pastors of souls but also in the legislation itself. Hence, unduly rigid norms are to be set aside and rather recourse is to be taken to exhortations and persuasions where there is no need of a strict observance of the law on account of the public good and general ecclesiastical discipline.”
Today’s post focuses on justice. St. Thomas Aquinas defines justice as “a habit whereby a man renders to each one his due by a constant and perpetual will” (Summa Theologica, II-II, q.58, a.1). The Catechism of the Catholic Church considers it a “moral virtue that consists in the constant and firm will to give their due to God and neighbour” (CCC, 1807). Justice in law plays out in the three theories of justice.
The positive law theory considers justice as conformity to legal provisions, thereby reducing what is just to only what is legal. Alongside this is the legality of a law, which entails how a law fulfils the ingredients necessary for a law to be legitimately promulgated. Justice here manifests in the sole emphasis on legality in making law and the conformity to legal provisions in applying the law. However, the positive law theory is unsatisfactory because of the morality of law in making and applying the law. The morality of law concerns how the law corresponds to the principle of right and wrong.
Hence, a law may be legal but immoral. The spirituality of canon law concerns both the legality and morality of the law in making, interpreting, and applying the law.
The social good theory explains justice as doing what is useful for the common good. Although the common good is intrinsic to the Church’s teachings (cf. CCC, 1905) and canon law (cf. Can. 1752), the social good theory falls short because not every contribution to the common good is just. For instance, making charitable donations from a common purse to the public serves the common good. However, it might also be unjust to those contributing to it, who are struggling to make ends meet but have not been assisted. Moreover, the Church and its law do not exist for the common good but according to the positive will of Christ. Justice in the sight of God may not correspond to the common good. The story of the woman caught in adultery is an example (John 8:1-11). Consequently, since salvation is individual and not communal (Ezekiel 18, John 3:16, Phil 2:12), the law cannot disregard the individual’s good.
The natural rights theory considers rights derived from human nature as the ultimate basis of justice. Here, the understanding of human nature and the purpose of humans determines the criterion. As Christians, created for the purpose of being with God at the end of time, the salvation motif drives the course of justice. The constant and firm will to give each his due influences the making and application of the law. It means that legislators and superiors consider the salvation of souls when making, interpreting, and applying laws (Deut 1: 16-17).
The virtue of justice is evident in canon law, especially in safeguarding the interest of the individual person. This is seen in canon law, which recognises six various types of rights, and penal law.
Human rights are fundamental rights derived from the nature and dignity of the human person and are recognised in the United Nation’s Universal Declaration of Human Rights (UDHR), the universal foundation document for human rights today. These rights include the right to life, personal liberty, marriage and family, education, ownership of property, freedom of movement, freedom of thought, freedom of conscience and religion, freedom of opinion and expression, freedom of assembly and association. The Second Vatican Council also mentions these rights (Gaudium et Spes, 26).
The second type of rights is ecclesial rights, which are rights acquired due to one’s baptism and membership in the Church. The term ‘ecclesial’ differs from ‘ecclesiastical’ in that ‘ecclesial’ refers to the Church as against the secular society. In contrast, ‘ecclesiastical’ refers to the Church’s hierarchy, rituals, and administrative structures. Ecclesial rights include the right to participate in evangelisation (Can. 211), the right to manifest to their pastors views on matters concerning the good of the Church (Can. 212 §3), the right to be assisted by their pastors from the spiritual riches of the Church (Can. 213), the right to worship God according to the provisions of their rite (Can. 214), the right to freely establish and direct associations for charity, piety or promotion of Christian piety (Can. 215), the right to initiate and promote apostolic action (Can. 216), the right to Christian education (Can. 217), the right to be free from coercion in choosing a state of life (cf. Can. 219), the right to punished only according to the law (Can. 221 §3), the right to Christian marriage (Can. 1058), and the right to Christian funeral (Can. 1176 §1). Since these rights stem from baptism, the ecclesiastical authority can moderate their exercise (Can. 223 §2).
Ecclesiastical rights are rights based on Church law and applicable to those who hold public office in the Church. Communal rights are those which one derives through profession in a religious institute (Can. 654) or through membership in an association of the faithful (cf. Can. 306). Civil rights are the rights one acquires by being a citizen of a country. Finally, contractual rights are those rights that arise when a physical or juridical person signs a legally binding contract.
The second manifestation of justice is in penal law. The clearest evidence is in the principle of imputability. Until 8 December 2021, the principal ideology in canonical penal law was the presumption of imputability (praesumptio imputabilitatis) of the accused when there is an external violation. This meant the accused had the burden of proving their innocence, undermining justice, especially when there was a conspiracy. However, the reform of the penal code in 2021 modified it. Canon 1321 now states: §1 “Any person is considered innocent until the contrary is proved.” §4 “Where there has been an external violation, imputability is presumed, unless it appears otherwise”. The presumption of innocence means that although a person is accused of an offence, the person is considered innocent until proven guilty.
Hence, the presumption of innocence (Paragraph one) is the primary principle guiding penal law, while the presumption of imputability (paragraph four) is the subordinate principle.
Consequently, the technical nomenclature of the active subject (the one subjected to a penal process) changes at various stages of the canonical process: suspect, investigated, accused, and offender. Moreover, an accused has an indispensable right to defence in every penal trial because the subject is not an offender until declared as such (John 7:51). Canon 1725 affirms that the accused “always has the right to write or speak last.” The Eastern Code states that “every penal action is extinguished by the death of the accused” (Can. 1152 §1 CCEO).
Subsequent posts will examine the various forms of justice.
May God continue to help us🙏🏾
K’ọdị🙋🏾♂️
