Surprised By Canon Law
By Pete Vere, JCL

I BIT MY TONGUE AND RESISTED the urge to fire off an angry email. Reading through an on-line discussion board for budding Catholic apologists like myself, I had come across a message written more with an excess of zeal than with a correct understanding of canon law. Granted, the offending message was written with the best of intentions, and I also admired the offending author as a competent biblical apologist when it came to defending the Catholic faith against Protestant challenges.  Nevertheless, this apologist’s competency with the Bible didn’t extend to the Code of Canon Law. And the question had come, not as an attack upon the Church, but from someone sincerely seeking to return to the Church. 

Allow me to share a little more background about this situation.  A young lady was born and raised in a nominally Catholic family.  She fell away from the practice of her faith during adolescence and became romantically involved with the wrong guy.  At the age of seventeen she found herself pregnant, and succumbed to pressure from friends and family to procure an abortion.  After five years of living with a wounded conscience and a broken heart, she desired to make her peace with Our Lord and resume the practice of her Catholic faith.  However, two questions continued to haunt her: “Can God forgive me for aborting my child?” and, “Am I really excommunicated from the Church?”

The first question was theological, and my buddy provided a solid answer.  Quoting from Holy Scripture and the Catechism of the Catholic Church, he carefully explained the Church’s teaching concerning Our Lord’s infinite power of forgiveness.  There’s no sin God cannot forgive, he explained, and there’s no sin He will not forgive. However, my friend added, we must approach Our Lord with a repentant heart. In such a heart-wrenching situation, this was the perfect answer.

Unfortunately, from my perspective as a canonist, my friend’s answer to the young lady’s second question was not. First he correctly quoted canon 1398, which states: “A person who actually procures an abortion incurs a latae sententiae excommunication.”  As an aside, an excommunication is the Church’s highest penalty, in which the offender is completely cut off the daily life of the Church, including the sacraments.  The term latae sententiae simply means that the Church automatically imposes the excommunication by virtue of the law.  Then, without citing any canonical source to substantiate this claim, someone else in the discussion group piped up that only the Roman Pontiff could lift the excommunication.  Moreover, I read in disbelief, the Holy Father would only do so if the young lady first subjected herself to a period of public penance.

Some Legal Background

Let’s set aside this situation for a moment.  Some of you are probably asking yourselves, “What’s canon law?” While others ask, “Why study canon law as a Catholic apologist?”  To answer the first question, when we return to the original Greek, the word canon comes from the word reed. In ancient Mediterranean societies, a reed was a symbol meaning to rule.  Law, on the other hand, comes from the Latin word ius, which is the root word of justice and jurisprudence.  Keep this historical note in the back of your mind, because the word law in canon law means an entire system of justice and jurisprudence. 

What about individual laws?  Well, there’s another Latin word for individual laws, and this word is lex if we’re dealing with a single law or leges, if we’re dealing with laws in the plural.  From them we derive such English words as legislature and legislation.  Yet the expression canon law doesn’t mean law in the sense of leges (or individual laws) but law in the sense of ius (or the Church’s entire legal system).  Thus the Code of Canon Law, which gathers into a single work many of the Church’s individual laws as they apply in the Latin Church, goes by the Latin title Codex Iuris Canonici.  As an aside, Eastern Catholics possess their own code which goes by the Latin title Codex Canonici Ecclesiae Orientalis.

SURPRISED BY CANON LAW 150 Questions Catholics Ask about Canon Law by Pete Vere and Michael Trueman with Foreword by Patrick Madrid

Additionally, a good Catholic apologist should understand something about the structure of the Code that applies to them.  Because most Catholics in North America belong to the Latin Church, I will focus mainly on the Latin Code.  Basically the Latin Code is systematically organized, meaning that the various divisions and sub-divisions you find in the codes are hierarchically structured according to related topics.  The most important of these divisions is the first, namely, the division of the 1752 canons of the Code into seven books.  These books are: I) General Norms; II) The People of God; III) The Teaching Office of the Church; IV) The Sanctifying Office of the Church; V) The Temporal Goods of the Church; VI) Sanctions in the Church; and VII) Processes.  Each of these books plays an important role in the proper understanding of how the Church functions, however, Book I is particularly important since it contains the Church’s general canonical norms. In other words, these are the general principles canonists employ when interpreting and applying the canons contained in the other books to a particular situation.

The Lay Apologist and Canon Law

Now on to the second question: Why should Catholic apologists seek a deeper understanding of canon law?  After all, if you don’t sit on a marriage tribunal dealing with marriage annulment cases or work in a diocesan chancery office, of what use is canon law to your apostolate of Catholic apologetics and evangelization? 

Not too long ago, in response to many requests from our fellow Catholics, my colleague Michael Trueman and I published a book entitled Suprised by Canon Law: 150 Questions Laypeople Ask About Canon Law.   In the preface to this book, Patrick Madrid offers readers the following explanation as to why Catholics should deepen their knowledge of canon law:

For centuries, canon law has been for most Catholics a mysterious and esoteric aspect of Catholicism, a dimension of Church life that seems not just remote but inaccessible for the common man or woman [...] Far from being irrelevant to Catholics in the pew, canon law, should be seen as a wonderful resource that inform us as to our rights and obligations in the Mystical Body of Christ. The better we understand these things, the more effectively we can contribute to the health and well-being of the Church. Understanding canon law better will enable us to better promote harmony and unity.

Like any organization, the Catholic Church is governed by a set of well-thought-out, prudent laws that  provide stability, security, and consistency to everyone involved. Just as no society could exist without laws, so, too, the Catholic Church. It needs canon law the way a freeway needs lane stripes. If there were no lane stripes, one can imagine the chaos and pandemonium that would reign on the highways! Canon law helps us maintain an orderly, just, and efficient running of the Church. And it goes without saying that the more clearly Catholics understand the “rules of the road,” the better off everyone will be.

By our baptism, Our Lord calls us to share in the life of His Church.  Regardless of whether one ultimately ends up clergy, religious or lay, we each have our role to play within the Church. Like any other society made up of humans, the Church must have her own laws, customs and discipline in order to maintain good order.  Thus as laity, the Second Vatican Council recognizes our call to participate in issues pertaining to canon law.  And as baptized members of the Christ’s Mystical Body, Our Lord Himself commissions us to partake in this great apostolate.

In fact, canon 208 summarizes this theological truth as follows: “Flowing from their rebirth in Christ, there is a genuine equality of dignity and action among all of Christ’s faithful.  Because of this equality they all contribute, each according to his or her own condition and office, to the building up of the Body of Christ.”

Text and Context

Now back to the young lady who procured an abortion.  Where does one begin when addressing the misapplication of canon law to her situation?  Well let’s begin with a basic rule every Catholic should know when approaching canon law, namely, canon 17.  Even before reading the text of the canon, we already know a few things about it.  First, canon 17 is situated in Book I of the Code, which is General Norms.  In other words, this canon offers us a canonical principle that we should follow when interpreting and applying the law. 

Secondly, this canon is situated pretty early in General Norms. This likely means that canon 17 is among the weightier canons in the Code.  In fact, it’s probably the single most important canon for a Catholic apologist to understand when venturing into this sacred science. For this reason, I almost always cite canon 17 when answering canonical questions from other Catholic apologists.  In short, canon 17 is the principal canon upon which most respected canonists build their understanding of canon law.

Canon 17 states: “Ecclesiastical laws are to be understood according to the proper meaning of the words considered in their text and context.  If the meaning remains doubtful or obscure, there must be recourse to parallel places, if there be any, to the purpose and circumstances of the law, and to the mind of the legislator.” (emphasis mine) In case you’re wondering, the legislator is the one with the power to make new laws.  The diocesan bishop is the legislator within his diocese, and he cannot delegate this power.  When it comes to making laws for the entire Church, the Supreme Legislator is the Roman Pontiff.  The Supreme Legislator can delegate his legislative power.

Notice the similarity between the science of Canon Law and the science of Biblical exegesis.  In seeking answers to canonical questions, we cannot simply pick up the Code of Canon Law and find a random canon that appears to support our position.  Rather, we must understand each canon according to its proper text, its context within the code, canonical tradition, the historical circumstances that gave rise to the canon’s necessity, and finally the intention and purpose with which the legislator promulgated it.   

For example, it appears from our initial reading of canon 1398 that the young lady incurred an automatic excommunication for procuring an abortion.  After all, this is what the text of canon 1398 literally states. Additionally, such a penalty seems just when we consider the Catechism of the Catholic Church’s teaching on abortion: “Since the first century the Church has affirmed the moral evil of every procured abortion.  This teaching has not changed and remains unchangeable.  Direct abortion, that is to say, abortion willed either as an end or as a means, is gravely contrary to the moral law[…]” (2271) 

Broad or Restrictive Interpretation?

Now what happens when we apply the context spoken about in canon 17?  In particular, we should take canon 18 into account. One of the traditional canonical principles is that “favors are to be multiplied and burdens restricted.”  Canon 18 reiterates this principle by reminding us that in the interpretation of individual canons, “Laws which prescribe a penalty […] are to be interpreted restrictively.”  As excommunication is the Church’s highest penalty, canon 18 therefore instructs us to apply the laws pertaining to excommunication only when a strict reading of the law warrants it.

Additionally, we must examine the mind of the Supreme Legislator. In promulgating the Church’s penal law in Book VI of the code, Pope John Paul II lists a number of factors that either preclude one from incurring a penalty, or that diminish the penalty incurred.  Canon 1323 lists the factors that provide excusing causes.  These factors generally, but not exclusively, apply to ferendae sententiae penalties, in other words those penalties that may be imposed by a judge or an ecclesiastical superior who is an Ordinary.  Similarly, canon 1324 lists various factors that diminish the penalties prescribed in the law.  These generally apply to latae sententiae penalties, or those penalties imposed automatically by canon law for particular offenses. Thus the issue of automatic excommunication is far more complex than simply a matter of having violated the law.

Diminishing and Excusing Factors

In fact, women who procure an abortion usually have an excusing or diminishing factor that prevents them from incurring the automatic excommunication listed under canon 1398.  For example, canon 1324, §1, provides the following excusing causes: if the woman doesn’t know that a canonical penalty was attached to the offense (9°); or she acts under grave fear (5°); the penalty is not incurred.  Nevertheless, keep in mind that these causes speak only of the canonical penalties. Objectively, procuring an abortion remains an intrinsically evil act and a very serious sin.  Yet with regards to subjective guilt as well as canonical penalties, these are reduced if an excusing or diminishing factor presents itself.

In the case of this seventeen-year old girl, the most obvious diminishing factor is that of age.  The Church doesn’t feel that a minor should be subjected to severe canonical penalties.  Thus canon 1324, §1, 4° states: “The perpetrator of a violation is not exempted from penalty, but the penalty prescribed in the law or precept must be diminished, or a penance substituted in its place, if the offense was committed by: […] a minor who has completed the sixteenth year of age.”  In other words, someone between the ages of sixteen and eighteen who procures an abortion can’t be excommunicated, either for abortion or for any other offense, but rather some lesser penalty or a penance must be substituted in its place.  For anybody under the age of eighteen is exempt from latae sententiae penalties, and in keeping with canon 1323, 1°, anybody under the age of sixteen is exempt from any canonical penalty whatsoever.

Yet even if no excusing or diminishing factor applied in this situation, meaning that a woman incurred the excommunication for procuring an abortion, the excommunication in question isn’t reserved to the Holy Father.  Rather, in keeping with canon 1355 this excommunication can be lifted by the Ordinary.  Canon 134 §1 defines the term Ordinary as “[…] the Roman Pontiff, diocesan Bishops and all who […] are set over a particular Church or a community equivalent to it in accordance with canon 368, […] Vicars general and episcopal Vicars [and] likewise, for their own members, it means the major Superiors of clerical religious institutes of pontifical right and of clerical societies of apostolic life of pontifical right…”  Additionally, most diocesan Bishops in North America delegate this authority to all of the priests in their particular diocese. And public penance hasn’t been in vogue within the Church for many years. Probably the closest thing to public penance one now finds in the Church is the public declaration of faith a former heretic or schismatic must make when he or she returns to the Church.

So we see the importance of canon 17 when interpreting a specific canon.  From the perspective of moral theology, the young lady sinned gravely when she procured the abortion, but she never incurred the automatic excommunication prescribed in canon 1398. For when we consider the proper context of the Church’s law governing excommunication, we see that excommunication never applies to one who is merely seventeen years old.  Therefore, restoring this young lady’s relationship to Our Lord and His Church was relatively easy. She simply needed to approach her priest in the confessional and receive absolution.

Valid or Licit?

Fortunately, most misinterpretations of canon law among Catholic apologists are much more benign in terms of possible negative pastoral consequences.  Yet as such mistakes remain potentially embarrassing, allow me to address what is probably the most common mistake made by Catholic apologists when interpreting the Code. This concerns the difference between validity and liceity.

 To begin, validity concerns the essence of a particular act.  If an act is invalid, then that act does not place. For example, canon 924 states: “§1 The most holy Sacrifice of the Eucharist must be offered in bread, and in wine to which a small quantity of water is added. §2 The bread must be wheaten only, and recently made, so that there is no danger of corruption. §3 The wine must be natural, made from grapes of the vine, and not corrupt.”  With the exception of the drop of water, our canonical and theological tradition recognizes that all of the above conditions are required for validity.  (Concerning the drop of water, it’s required for liceity only; the Ukrainian liturgy adds it after the consecration.) Therefore, a priest who attempts the celebration of Mass using corn bread and root beer does not truly bring about the Holy Sacrifice of the Mass, since no transubstantiation takes place.  Such matter would invalidate the Mass, since wheaten bread and grape wine concern the essence of the act.

Liceity, on the other hand, concerns the legality of a specific act.  The act takes place, but not necessarily in a lawful manner.  Using a similar example from the Holy Sacrifice of the Mass, canon 926 states: “In the eucharistic celebration, in accordance with the ancient tradition of the Latin Church, the priest is to use unleavened bread whenever he celebrates Mass.”  The customary use of unleavened bread among Latin Catholics is for liceity only.  It doesn’t concern the essence of the act, since we know that Mass is valid when celebrated by an Eastern Catholic priest, where the use of leavened bread is customary.  Thus if a Latin Catholic priest celebrates Mass using leavened bread, the Mass is valid since transubstantiation really takes place.  Nevertheless, the Mass is illicit since the priest has strayed from the applicable liturgical law in the West that requires the use of unleavened bread.

I should mention that there isn’t always a connection to sin when it comes to validity and liceity.  For example, a priest could inadvertently confuse the white wine cruet with the water cruet, and invalidly attempt to consecrate the water that has had a drop of wine added; no sin there since the priest didn’t intend to make such a mistake. Obviously, if done with an evil intention, it is sinful. An illicit act is similar. If a priest uses leavened bread out of disrespect for the law, it’s illicit and sinful. If he uses it because he has a congregation waiting to hear Mass, say on a pilgrimage in which he already ran out of hosts and the only nearby parish where he can borrow some is Eastern Catholic, then it is still illicit, but certainly not sinful.

When it comes to the proper interpretation of canon law, one canon in particular helps us discern whether the law attaches a condition for validity or for liceity only.  This is canon 10.  Given its importance in interpreting the law, we shouldn’t be surprised to find it situated near the beginning of Book I, which is General Norms. 

Canon 10 states: “Only those laws are to be considered invalidating or incapacitating which expressly prescribe that an act is null or that a person is incapable.”  In other words, for something to be invalid in canon law, or for a person to be incapable of carrying out certain function, the law must explicitly state that the condition is for validity or for capacity.”

This is only a general rule, of which there are exceptions. Yet it is fairly self-explanatory and works most of the time when interpreting the Code.  But getting back to some practical examples as to why Catholic apologists should be capable of distinguishing between validity and liceity when approaching canon law, I often come across ecumenically minded Catholics who maintain the Church should permit her faithful to receive the Eucharist from Anglican clergy.  This is especially the case, they argue, when dealing with High-Anglicans who believe in the Real Presence.  Other times I come across Catholic apologists who claim that all Masses celebrated by Archbishop Lefebvre after Rome excommunicated him were invalid and that the priests ordained into his Society of St. Pius X cannot validly say Mass.

When we understand the distinction between validity and liceity, and know how to apply canon 10 in making this distinction, we may then address each situation with both accuracy and clarity. In short, canon 900 states: “§1 The only minister who, in the person of Christ, can bring into being the sacrament of the Eucharist, is a validly ordained priest.”  Thus for validity one must be an ordained priest in order to bring about the transubstantiation of bread and wine into the Body and Blood of Christ.  The Catholic Church holds that Anglican orders are invalid.  Therefore, over and above the various theological issues concerning the sharing of sacraments between Christians not in full communion, the Church does not consider the Anglican Eucharist to be a valid sacrament, since a validly ordained priest is necessary to the valid confection of this sacrament.

Now the situation with Archbishop Lefebvre differs from that of an Anglican cleric, because Archbishop Lefebvre was a validly consecrated bishop.  So when we apply the canonical principle of canon 10 to our interpretation of canon 900 §1, we see that despite his excommunication, Archbishop Lefebvre continued to validly celebrate the Holy Sacrifice of the Mass.  Fortunately, the second paragraph of canon 900 addresses the type of situation in which Lefebvre found himself: “§2 Any priest or bishop who is not debarred by canon law may lawfully celebrate the Eucharist, provided the provisions of the following canons are observed.” The same goes for those priests and bishops who were ordained by him, or who have joined his community as clerics.

Notice how the second paragraph of the canon doesn’t specify “for validity”.  Therefore, in keeping with the canonical principle of canon 10, we know that canon 900 §2 speaks merely of the licit celebration of the mass.  In fact, the text itself uses the word “lawfully”.  Thus Archbishop Lefebvre’s celebration of the mass after his excommunication was valid, but illicit.  For as canon 1331 §1 specifies: “An excommunicated person is forbidden: 1° to have any ministerial part in the celebration of the Sacrifice of the Eucharist or in any other ceremonies of public worship.” 

Rights Give Rise to Obligations

Before concluding this brief overview of canon law, I would like to address a major problem area I often encounter among Catholic apologists who venture into the Code of Canon Law.  This concerns one’s canonical rights and obligations.  The old cliché, “a little knowledge is a dangerous thing,” certainly applies in this case.  A misunderstanding of one’s canonical rights and obligations can lead to terrible consequences. On a couple of occasions, I have watched promising Catholic apostolates self-destruct because of a misapplication of canon law in this area; in these situations, the apostolate’s leadership either exaggerated the extent to which a canonical right applied, or else refused to shoulder the corresponding obligation.

 To begin, every Catholic apologist should familiarize himself with canons 204 to 231.  These are the opening canons of Book II of the Code, which comes under the heading “The People of God”.  This grouping of canons includes two sub-divisions into titles.  The first title is called “The Obligations and Rights of all of Christ’s Faithful” and runs from canon 208 to canon 223.  The second title, “The Obligations and Rights of the Lay Members of Christ’s Faithful,” covers canons 224 to 231.

Without quoting a single canon, we already know the most important thing we need to know about canonical rights. From reading the names of the titles, we learn that canonical rights must be understood within the context of our canonical obligations.  Additionally, no ecclesiastical right contained within the Code is absolute.  As canon 223 clarifies: “§1 In exercising their rights, Christ’s faithful, both individually and in associations, must take account of the common good of the Church, as well as the rights of others and their own duties to others.  §2 Ecclesiastical authority is entitled to regulate, in view of the common good, the exercise of rights which are proper to Christ’s faithful.”

Allow me to provide an example. Canon 211 states: “All Christ’s faithful have the obligation and the right to strive so that the divine message of salvation may more and more reach all people of all times and all places.”  In short, every Catholic has both the right and the obligation to evangelize.  In fulfilling this right and obligation to evangelize, a friend of mine founded the internet discussion group for Catholic apologists that I mentioned at the beginning of this piece.

When he first founded this apostolate, not all of the feedback he received was constructive.  Nor was it unusual for Fundamentalist Protestants to wander onto the message board and attack the Church.  Unfortunately, both my friend and I have a weakness for name-calling and we enjoyed responding to these taunts with our own version of Catholic brass-knuckle apologetics.  One day, some of our more polemical postings got back to my friend’s legitimate ecclesiastical superior.  This superior was understanding, but concerned nevertheless.  “You’re Catholic,” he told my friend, “and you have the grace of the sacraments.  The people you’re trying to evangelize don’t. So the obligation to turn the other cheek and be an example of Christian charity falls upon your shoulders.  Don’t lose converts to win debates.  Don’t attack the individuals; but show them where they have misunderstood Catholic teaching.”  My friend’s superior then appointed a priest to monitor the discussion list, with the power to intervene in the discussion when necessary.

This provided the Catholics in the group with a valuable lesson concerning canonical rights and obligations.  With our canonical right to evangelize came the moral obligation to do so within a spirit of Catholic charity.  “A new commandment I give to you,” Our Lord states in the Gospels, “that you love one another; even as I loved you, that you also love one another” (John 13:34). In fact, this moral requirement arises from the Divine Positive Law, and it doesn’t need to be explicitly spelled out in canon law.  It is a Gospel mandate, and as such it binds everyone in all ages.  

Thus calling non-Catholics “hairy tics” when they annoyed us was an abuse of our right to evangelize.  And, as our bad example gave the wrong impression of Catholicism, it harmed the common good of the Church.  Therefore, in keeping with canon 223, my friend’s legitimate ecclesiastical superior intervened, reminded us of our moral obligation toward Christian Charity in exercising our right to evangelize, and regulated how we would go about exercising this right on our discussion list in the future.

Concluding Remarks

No Catholic apologist should fear canon law.  For when it comes to apologetics and evangelization, both the Code and the subject matter are your friends.  Yet like Holy Scripture, there’s a proper way to understand and interpret canon law, as well as an improper way.  As Catholics, and especially as apologists and evangelists, we should always seek to properly interpret and apply the Code.   So be as diligent in your attempt to understand individual canons in their text and their context as you are when it comes to understanding individual Bible verses within the whole context of Holy Scripture and Tradition.

And always remember the last canon within the Latin Code, canon 1752. It’s as important in its own way as the first canons of Book I, for it goes to the heart of the over-riding philosophy of interpreting both the Latin Code and the Eastern Code.  The canons are to be applied “…with due regard for canonical equity and having before one's eyes the salvation of souls, which is always the supreme law of the Church.”

Now granted, there’s definitely a lot more to understanding canon law than what I can state in such a short article.  After all, if everything fit neatly into one article, then Michael and I would have never answered the requests of our fellow Catholic apologists to write Surprised by Canon Law   Nevertheless, I’ve presented some of the key things for you to keep in mind as a Catholic apologist when venturing into the Code.  As you will no doubt discover in reading our book, canon law, when properly understood, is one of the most practical and exciting of the sacred sciences.

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Pete Vere is a doctoral candidate with the Faculty of Canon Law at Saint Paul University in Ottawa, Canada.  Along with his friend Michael Trueman, he recently co-authored Surprised by Canon Law: 150 Questions Laypeople Ask About Canon Law as an introduction to canon law for every Catholic apologist and evangelist. To order your copy of Surprised by Canon Law, please visit us on-line at SurprisedByTruth.com or call 1-800-55-ENVOY. Click here to e-mail Pete Vere...