The last posts examined the territoriality principle, the eighth principle used in the preparation of the 1983 Code of Canon Law. Today’s post focuses on the ninth principle, namely, the penal canonical law.
The ninth principle reads, “As an external, visible and independent society, the Church cannot renounce penal law. However, penalties are generally to be ferendae sententiae and are to be inflicted and remitted only in the external forum. Latae sententiae penalties are to be reduced to a few cases and are to be inflicted only for the most serious offences.”
In recent times, penal canonical law has been the subject of profound rethinking, alongside attacks questioning its legitimacy today. The arguments are partly based on the notion that penal law derives from public ecclesiastical law, which ascribes to the Church all powers, including the coercive power typical of the so-called perfect juridical societies. Ecclesiology before the Second Vatican Council emphasised the Church as a perfect society (societas perfecta) distinct and superior to other human societies (Leo XIII, Sapientiae Christianae 17, 28; Pius XII, Mystici Corporis Christi, 63, 68).
However, since the Second Vatican Council’s adoption of a different ecclesiology—the Church as the People of God (Lumen Gentium, chapter 2), authority as service (Lumen Gentium, chapter 3) the doctrine of communio, fundamental equality of all the faithful, and a universal invitation to holiness—, many argue that the Church’s penal system is relic of the past and should be considered as obsolete in its existence. Hence, one can itemise five reasons against penal canonical law.
The first is that penal canonical law is incompatible with the spiritual community of salvation founded by Christ. However, this misunderstands Vatican II ecclesiology. The Council’s dogmatic constitution on the Church reads: “But, the society structured with hierarchical organs and the Mystical Body of Christ, are not to be considered as two realities, nor are the visible assembly and the spiritual community, nor the earthly Church and the Church enriched with heavenly things; rather they form one complex reality which coalesces from a divine and a human element. For this reason, by no weak analogy, it is compared to the mystery of the incarnate Word. As the assumed nature inseparably united to Him, serves the divine Word as a living organ of salvation, so, in a similar way, does the visible social structure of the Church serve the Spirit of Christ, who vivifies it, in the building up of the body” (Lumen Gentium, 8).
As a visible society, pastors of the Church are to govern the Church “by their counsel, exhortations, example, and even by their authority and sacred power” (Lumen Gentium, 27), since “charity and mercy demand that a Father also make every effort to correct deviations” (Pope Francis, Pascite Gregem Dei, preamble). Therefore, the Church considers penal canonical law as intrinsically connected to its proper nature and history.
The second argument is that penal sanctions have outlived their usefulness, given the reforms of the Second Vatican Council, the primacy of the Church’s pastoral dimension, and ecclesiastical discipline. The third is that penal sanctions are inappropriate. Instead, pastoral measures, or at most, disciplinary measures, should be adopted to correct those guilty of grave sin and public scandals.
One must state that laws help regulate society and promote the common good of all members. Hence, if violations of the law are not addressed, they undermine the law’s very purpose. Disciplinary measures are not always sufficient, especially when another member of Christ’s faithful has been injured, and the harm must be repaired. Therefore, penal law does not undermine the pastoral dimension; instead, it supports the salvation of souls by promoting the welfare of the injured person and the common good.
Fourth, religious liberty, emphasised by the Church, means that the Church should not put constraints on religious choices. The Second Vatican Council declaration on religious freedom reads: “This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits” (Dignitas Humanae, 2).
In response to this opposition to penal law, one must note that the Catholic faith is never imposed on anyone. There is always a choice at baptism, where parents are asked if they desire baptism for their infants. Adults answer for themselves at adult baptism. The Catholic Church has an inherent right, independent of civil authorities, to constrain with penal sanctions Christ’s faithful who commit offences (Can. 1311 §1), stemming from Christ’s commission on the validity in heaven of things bound or loosed on earth (Matthew 16:19; 18:18). Hence, agreeing to be a member of the Church entails that one has subjected oneself to the laws governing the Church, including penal laws. Therefore, penal sanctions have a restrictive force only to the extent that the faithful wants to remain a member of the Catholic community, accepting the functions and powers established by Christ.
Finally, some oppose penal canonical law because it is unrealistic, given that the Church lacks physical instruments of coercion. The Church, recognising the misunderstandings that have unfortunately been associated with the use of penal sanctions, no longer uses coercive power to compel anyone to become a Christian or to remain in the Church. Instead, it appeals to consciences for conversion, while using the means at its disposal for the salvation of those who have erred.
Hence, the ninth principle reads “As an external, visible and independent society, the Church cannot renounce penal law.” This is because, in line with the spirituality of canon law, the Church must safeguard and promote the good of the community itself, bearing in mind the restoration of justice, the reform of the offender and the repair of scandal (Can. 1311 §2). Renouncing penal law would undermine the Church’s external nature, allowing internal discord to erode unity.
May God continue to help us🙏🏾
K’ọdị🙋🏾♂️
