A Fresh Look at Canon Law

In a recent New York Times OP-ED, a professor of Theology, at Fordham University, called for equity on the part of bishops in refusing the Eucharist to politicians who do not espouse the Church’s absolute prohibition on abortion.  He specifically had a problem with what he perceived to be an unfair application of the penalty by different bishops. Therefore, he believes the bishops’ imposition of the penalty is inappropriate. The problem with this thesis is that the author is unskilled in how to read Canon Law.

Over the past decade there have been three major canonical questions that have caused confusion in the Catholic Church, in America: the clergy child abuse scandals; the closing of churches; and the application of Canon 915 which authorizes a bishop to bar a politician from receiving Holy Communion.

In Canon Law: A Comparative Study With Anglo-American Legal Theory, Father John J. Coughlin, O.F.M., a Canon and Civil lawyer, who teaches theology at Notre Dame University, explains the context in which the pertinent canons in the areas mentioned above must be read for equitable and prudent application. His brief history of Canon Law and his comparative references to current Anglo-American Legal Theory highlights Canon Law’s purpose, rules for application and the law’s ultimate goal.

Fr. Coughlin rightly contends that an understanding of Canon Law without Faith is impossible, since it is exercised within the context of the Body of Christ.  He says Canon Law is “a bridge between theology and practical action.”

Canon Law is guided by ecclesiology to which a person freely binds himself to a hierarchically structured Church which exists for the safety of the souls entrusted to Her care. Being the corporate Body of Christ on earth, Canon Law exists for the common good of all the members of the Church as well as for the spiritual welfare of each individual member. The Church’s governance is entrusted, for the most part, to the Pope and the bishops who use Canon Law to facilitate the Church’s mission and to apply remedies where problems may exist.

There are two extremes in legal interpretation which Coughlin believes has led to contemporary Church problems: antinomianism and legalism. Antinomianism holds that the Church is ruled by the Spirit and, therefore, no law is necessary.  He says, this theory “fails to recognize the important function of the rule of law for individuals and the common good.”  He contends, that the failure of bishops to impose canonical penalties, for example, on the clergy accused of sexual abuse is rooted here. Legalism, on the other-hand, fosters “an approach that places the law above the person and the community”. A legalistic interpretation of Canon 915, which permits bishops to bar pro-abortion politicians from receiving Holy Communion, he says,  may cause some bishops to refrain from correcting those politicians who support abortion rights.

Coughlin explains that Canon Law respects the ecclesiology of the local Church and empowers the bishop, as the chief priest of a diocese, to coordinate the best use of diocesan resources. Many protestors have missed this point in dioceses which are closing or consolidating parishes. He shows how the canonical process used in these cases “also fulfills the requirements of formal procedural legality identified by Anglo-American theorists such as Hyack, Fuller, Hart, and Raz.” He says, that the law of the Church is designed to promote justice and equity but that it also demands humility in accepting a bishop’s decision, especially after an appeal to the Rota or the Apostolic Signatura is denied. Ultimately, he says trust must be placed in the special sacramental graces given to the Pope and the bishops when they render decisions for the good of the universal Church and for a diocese.

The present 1983 Code is designed to correspond with the sixteen documents of the Second Vatican Council (1965).  Coughlin is not insensitive to the fact that some of the Council’s teachings reflect the optimism of the Council’s era. The documents may also be misleading when taken out of their traditional Catholic context which must always be presumed. Vatican II’s emphasis on the pastoral and a strong emphasis on the inviolability of conscience certainly have had an effect on some canonists’ interpretations. In some cases, this led to the non-imposition of canonical penalties, causing some to become dismissive of Canon Law’s relevance in the Church. As the adage goes, “use it or lose it”, seems to be applicable here.

In light of the above, Fr. Coughlin points out, for example, that while the Code provided for the removal of abusive priests many bishops chose to follow a pastoral therapeutic model for their rehabilitation  instead of penal sanctions and in the doing so endangered children.  He acknowledges the “indeterminacy” of Canon 915 and elucidates the bishops’ concerns in applying it.  And, he reminds us that the decision to impose the restriction on receiving the Eucharist remains with the bishop whose prudential judgment is crucial for justice and good order.

Finally Coughlin writes,

“Canon law presumes that certain qualities remain characteristic of the lawgiver. Among these characteristics are the intention to be intelligent and humane, to act in conformity with the common good, to follow divine law on the basis of faith, to conform with the requirements of natural law through the use of practical reason, and to imitate the charity, mercy, and love of Christ. Confronted with an unjust or uncharitable result from the application of law, canonical equity permits one vested with governing power to correct the problem on the ground that such a correction reflects the intent of the lawgiver.”

This book is vital for anyone who wishes to understand how the Church’s legal system guides some of the hot button issues of our day. It is a must read for all serious Catholics.

Fr. Michael P. Orsi

By

Chaplain and Research Fellow at Ave Maria Law. Father Michael P. Orsi was ordained for the Diocese of Camden in 1976 and has a broad background in teaching and educational administration. Fr. Orsi has authored or co-authored four books and over 300 articles in more than 45 journals, magazines and newspapers. He has served as Assistant Chancellor, Assistant Vicar for Pastoral Services, Director of Family Life Bureau, and Coordinator of Pope John Paul II’s visit to New Jersey for the Diocese of Camden. He has also served as a member of The Institute for Genomic Research at the University of Pennsylvania and as a member of New Jersey’s Advisory Council on AIDS. Fr. Orsi holds a Doctorate in Education from Fordham University, two Master degrees in Theology from Saint Charles Seminary, and a Bachelor of Arts from Cathedral College. He is presently serving as Chaplain and Research Fellow in Law and Religion at Ave Maria School of Law, Naples, Florida. He is a member of the Fellowship of Catholic Scholars. In 2005 Fr. Orsi was appointed as a Senior Research Associate to the Linacre Center for Bioethics, London, England. Fr. Orsi co-hosts a weekly radio program The Advocate which discusses law and culture on WDEO-AM 990, WMAX-AM 1440 in metro Detroit and WDEO-FM 98.5 in southwest Florida [also linked at www.avemarialaw.edu].

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  • Florin S.

    Oct. 28th: This is confusing. Nancy Pelosi, one of the most aggressive proponents of abortion, says that she can continue to receive the Eucharist because the Bishops are divided on the issue. If aggressively promoting the extermination of human babies does not merit being refused the Eucharist, what would merit being told not to receive the Eucharist? What if pedophilia were to be made legal? And Nancy Pelosi, Biden, Sebelius and others were to aggressively promote pedophilia, would they be permitted to receive the Eucharist? Which is worse, molesting a child or killing an unborn human baby, often just before birth…? As terrible as it is to sexually abuse a child, that child would at least have the possibility to heal while the baby whose life is terminated has no chance, no hope. Sorry…but Pope John Paul and Pope Benedict have stated publicly, clearly and strongly that anyone who PUBLICLY promotes abortion should not be permitted to receive the Eucharist. We are talking about murder here – nothing more, nothing less…massive extermination of human lives!! And those who publicly and aggressively promote this killing are good Catholics? Biden even went to Kenya and told the Government there that if they would put abortion rights in their new constitution the money would flow, but if they refused…nothing!!! And yet he is a good Catholic?? No wonder Catholics are confused or indifferent or have simply stopped caring. No wonder Catholics are again going to vote for Obama. And so the killing of human babies will continue because the Bishops are divided on the seriousness of this crime….Mother Teresa of Calcutta used to say that if we would kill the baby in the womb, what would we not do…really, what would we not do?

  • Wayne G. Fischer

    I agree, Florin S. – I too found this article confusing, not enlightening. It seems to imply that whether those who support abortion (and by extension, any other intrinsically evil act) receive the eucharist is up to each bishop to decide. But in “Forming Consciences for Faithful Citizenship” (page 8, paragraph 22) the US Conference of Catholic Bishops state:

    “There are some things we must never do, as individuals or as a society, because
    they are always incompatible with love of God and neighbor. Such actions are so deeply flawed that they are always opposed to the authentic good of persons. These are called “intrinsically evil” actions. They must always be rejected and opposed and must never be supported or condoned. A prime example is the intentional taking of innocent human life, as in abortion and euthanasia. In our nation, “abortion and euthanasia have become preeminent threats to human dignity because they directly attack life itself, the most fundamental human good and the condition for all others” (Living the Gospel of Life, no. 5). It is a mistake with grave moral consequences to treat the destruction of innocent human life merely as a matter of individual choice. A legal system that violates the basic right to life on the grounds of choice is fundamentally flawed.”

    Going further, shouldn’t those who persist in cooperating in intrinsic evils, after being warned by their bishops, be notified that they have removed themselves from the Church – excommunicating themselves?

  • Florin S.

    Oct. 29th. And Wayne, we must remember that to allow such aggressive and passionate promoters of abortion such as Biden and Pelosi, to be considered good Catholics is to affirm them in their public sin. If a child is stealing and we tell him it’s wrong and he needs to stop and he continues and is given no consequences for his wrong behavior, he will rightly believe that it’s no big deal because there are no consequences. Over 60 million human lives have been exterminated and Pelosi, Biden, Sebelius, Kerry, Kennedy, Daschle, et al – continue to aggressively promote this killing and yet are permitted to believe they are good Catholics, so why should they stop? What if Mao and Stalin and Hitler had been Catholics and despite their ordering millions to be killed were permitted to receive the Eucharist as good Catholics? This is all so mind and soul boggling that it’s almost beyond believe! The killing goes on by the millions because those who order the killing are considered good Catholics – and Obama is a good ‘Christian’ despite the fact that he (and Pelosi and Sebelius) promote the killing of the human baby up until the 9th month of gestation where the baby is partially delivered and then a sharp object plunged through his head into his brain and then the brain sucked out…are we all blind to these horrors? We need to pray and to remember that Mother Teresa, with whom I worked in Calcutta, used to declare that a nation that kills its young will not, cannot survive…are we surviving?

  • http://twitter.com/GarageSermons Sermon In The Garage

    How can we tell abortion for you is an ideological political issue for you and not a moral issue? You only mention democrats and avoid the mention of MANY high profile republican politicians who are pro-abortion. Why didn’t you list them?

  • http://twitter.com/GarageSermons Sermon In The Garage

    You republicans are way off base. You realize for MANY years the infallible Popes allowed abortion throughout the first trimester. It was faithfully believed by the church that the soul did not enter the body until the end of the first trimester, hence, the human was not yet viable. I don’t agree with that. But you all have to grow up and be a bit more pragmatic and reflective that the church has changed its opinion MANY times. In fact, the church believes and teaches, today, that there are “proportionality” exceptions that allow for abortion and that after rape or incest their can be procedures that stop the onset of conception. Prior to the sperm penetrating and fertilizing the egg.

  • Florin S.

    Oct 30th: I was a life long Democrat and after Obama, I became an Independent because I believe there are men and women of good character and moral values in both parties. If you are so concerned about MANY HIGH PROFILE Republicans who are pro-abortion and if this is your need then YOU LIST THEM! However, Obama is the ONLY one from either party to vote against the ‘born alive infant act’ which was passed despite his voting against. This mandates that a baby who survives an abortion must be provided care and comfort…Obama did not want that. Obama (and his wife) also support unlimited abortions for any reason; Michelle O. wrote supporting late term abortion which waits until the baby is partially delivered and then the abortionist plunges a sharp object through his head into his brain and sucks the brain out…monstrous to say the least. AND Obama made his platform about abortion this year, bringing prominent pro-abortionists to the platform to sell their anti-life plans…no wonder they excluded the word ‘God’ from their platform…

  • Florin S.

    Oct. 30th: tell me ‘sermon’ -did your master Obama tell you to troll the websites to cause confusion? Pelosi used your argument – and although there was indecision about when exactly the soul was present, there was NEVER permission to terminate the life of the unborn. Go back to Pelosi and Obama and tell them to try again…sad and pathetic that you allow yourself to be so used by such …

  • http://twitter.com/GarageSermons Sermon In The Garage

    Actually, if u intend to speak the truth in love you must be factually honest; however, you did not mention that after Obama found the words were inadvertently left out of the DNC platform, he personally told them to correct the error. Which they did.

    You are suggesting that by not listing the republican names that they don’t exist. How about the high profile former mayor of NYC. How about the southern republican who was just found to be attempting to convince his mistress to get an abortion…etc. Be honest.

    I believe in the teachings of our Catholic Church in regards to pre-conception, conception, fertilization, morally licid, “indirect abortion”, proportionality. DO YOU?

    Individual moral & medical assessment is required, but supported by the Catholic Church and its BioEthics Center.

  • http://twitter.com/GarageSermons Sermon In The Garage

    Read above. WOW, you are an insulting person. Did you not notice that there is a “reply” button. Or is that just for your friends. Have you ever read the constitution around free speech? Do you realize we live in the United States Of America, not the United States of Catholicism and that citizens and good Christians have a legal and moral right to engage in theological discourse? Are you aware of that?

    And what is “trolling”? Do you have a rule for me as to where I can do research and reflection on the web? Funny, how are you not trolling if you responded to me? Or do you have a divine right to troll?

  • http://twitter.com/GarageSermons Sermon In The Garage

    Father Orsi,

    This blog is directed at you exclusively. As a life-long Catholic and supporter of our Catholic Church stance on social justice and abortion I am astounded at the cruel responses of some people. Simple questions lead some to jump to extreme conclusions and a total lack of respect for discourse. Imagine what would have happened throughout the Second Vatican Council if it was reduced to attacking rhetoric and no ethical, moral, and prayerful reflection.

    In your multiple roles, including Catholic bioethics, could you respond to my blogs below and your view on the practical application of the points on: pre-conception, conception, fertilization, morally licid, “indirect abortion”, proportionality.

    Thank you kindly,
    Marty

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