The Thing About Canon Law and Catholic Tradition
A Comprehensive Overview of Canonical Principles for Traditional Catholics
This article originally appeared in video format on Pelican+ as part of my series Consecration Watch in preparation for the Episcopal Consecrations of the Society of Saint Pius X this summer. I encourage all of you to view the video and the rest of the series over on Pelican+.
The Thing About Canon Law
“There is no salvation outside Canon Law!” Okay, I have never actually heard anyone say that, but the spirit behind the phrase isn’t foreign to the sentiments that not a few commentators exhibit when discussing the Code of Canon Law, and how it applies to the SSPX. In reality, most of us are not qualified in the Canon Law tradition and are unqualified to pronounce judgments or even to opine intelligently in a public forum. Now, I do not mean to resort to the fallacy of simply appealing to authority, because understanding Canon Law is not, in principle, that hard to do. However, whatever level of intelligence a commentator may have, it is necessary to not only understand the meaning of the various canons themselves, but also the mentality of canonical law and how the Church’s lawyers are trained to understand and apply the Code.
The Code is not a collection of divinely revealed points of legal doctrine that are completely self-explanatory and infallible; it is a code of Human Law, written and formulated by men for the legal governance of the society that is made up of the members of the Church. Even the notion that the code is universal is not, strictly speaking, accurate, because there is a Code of Canons of the Eastern Churches that is meant to normalize the legal governance of the Eastern Churches. The Latin Church encompasses the vast majority of the Church; however, there are over 20 other particular Churches within the Church that appeal to a different Code for their governance.
I mention this to hammer home the reality that it is impossible to view the Code of Canon Law that governs the Latin Church as infallible or binding in a sense that approaches defined dogma, because for something to reach that level of authority, it must be universal in its application and cover all Catholics, and not just some.
Furthermore, because the Code can change, it cannot approach the level of dogma, because dogmas that are truly binding cannot change. So, it is completely reasonable to disagree with interpretations of the law expressed by canonists, commentators, and even high-ranking authorities within the Church. And, opinions expressed by even highly-qualified commentators do not constitute judgments that bind anyone, and therefore they do not represent an “open and shut” answer to a given question.
There are very good Canon Lawyers in the Church, and there are lawyers who are not so good, even if they are qualified. It is impossible to separate the formation of a particular canonist from the judgments he makes in some cases, because the Code is undergirded in principle by an understanding of the Catholic Faith, because it is meant to govern the members of the Church, who belong to the Church by Faith, which is infused into their souls at Baptism, making them members of the Church. Put it this way, if a canonist is trained in an academic setting tainted with bad philosophy and bad theology, we must accept the likelihood that his understanding of how to apply the law will be coloured by bad philosophy and theology.
When we speak of Canon Law, we are, at root, speaking of Law, which is moral and pertains to the norms and rules that govern our behaviour, how we punish, and how we pardon. So, philosophical and theological formation are paramount for the sound application of Canon Law, because an impoverished metaphysical formation will ultimately lead to an impoverished application of those principles in the concrete.
In any event, there are a number of principles that must be kept in mind when discussing Canon Law, which, I believe, are sometimes ignored, misunderstood, or unknown to many. We will list them and discuss them here.
The Principles
Salus animarum suprema lex:
This is the fundamental principle we must keep in mind when considering Canon Law, that the salvation of souls is the highest law of the Church. This principle represents a supernatural understanding of the nature of law as defined by Thomas Aquinas.
According to Aquinas (ST I-II, Q. 90, A. 4), Law is defined by four elements:
An ordinance of reason — not an arbitrary command; it must be rationally coherent and just. A law promoting abortion, for example, fails this test and is not properly a law at all.
For the common good — not for the benefit of an individual, a faction, or the powerful. The moment law becomes an instrument to protect power rather than serve souls, it inverts its own purpose.
Made by him who has care of the community — only legitimate authority can make law. Authority exists to add to (Latin: ‘augere’, root of “authority”) the perfection of society.
Promulgated — subjects must be informed. This is why most laws have a ‘vacatio legis’ — a period between promulgation and effect, so people can prepare.
The key here is that the law is for the common good and that it must be made in the spirit of care for the community being governed. In the natural sphere, this means that we cannot justly apply and interpret the law in ways that harm the purpose of the law, which is the care of the community and the common good of society. In the Church, this means that laws cannot be justly — or, in some cases, validly — applied or interpreted in ways that undermine the Church’s primary mission, which is the salvation of souls. This is something that all Catholics should understand by common sense, meaning, the sense that is common to all men of good will: we don’t use the Law to hurt people in ways that work against the purpose and goodness of the Law, because that would be wrong.
Strict interpretation of penal laws is required:
In addition to the supernatural principle that elevates our understanding of the Law, we must also commit to the understanding that when we speak of legal penalties, we must be strict. Now, this does not mean “strict” in the colloquial sense of the term, like when we think of a “strict parent,” who is loose with punishment and restriction, and is heavy-handed. What we mean is that we must stick strictly to what the Law proposes, and go no further than that.
The 1983 Code, which is presently in force, explains this in Canon 18: “Laws which establish a penalty, restrict the free exercise of rights, or contain an exception from the law are subject to strict interpretation.” (Emphasis added)
This means:
The law means exactly what it says, no more and no less.
Penalties apply only in the cases explicitly covered.
Any ambiguity is resolved in favour of the accused/restricted party, not against them.
Excusing circumstances must be presumed operative unless positively proven otherwise.
This is the direct opposite of the instinct to read penal canons broadly and extend their application by inference or analogy.
In the case of the SSPX, for example, this means that any talk of schism or excommunication can only apply to those specifically named in a particular ruling, and not extend to all those associated with the Society. And, unless it can be proven that excusing circumstances do not apply, they must be presumed to be operative. So, when we consider that Canons 1323–1324 provide guidance on how one could be exempt specifically from penalties associated with the unapproved consecrations of bishops, we must allow for those exemptions, even if we do not agree with them personally. If we fail to do so, we are not consistently following the logic of the Code and the Church’s canonical norms.
Even if we grant, for the sake of argument, that John-Paul II’s assessment was correct by the letter of the law, that does not constitute the whole story, legally speaking. The letter Ecclesia Dei Adflicta is limited in scope and does not tell the whole story.
It judged a particular act — the consecrations themselves — not a category of persons.
It did not judge the Society as an institution to be in schism. That case was never presented to the pope as judge. He did not rule on it. To extend his judgment to cover “the SSPX” or “all who attend SSPX Masses” is to make a judgment the pope himself never made — and to make oneself, in effect, a greater judge than the pope.
It did not address the excusing clauses. Canons 1323 and 1324 provide a substantial list of circumstances — including necessity, fear, and even incorrectly but sincerely believed necessity — that would eliminate or reduce the canonical penalty. The document does not mention these canons, which means the judge did not rule them inapplicable. Under the principle of strict interpretation (Canon 18), if the judge did not explicitly exclude the excusing clauses, they cannot simply be assumed to have been ruled out.
When a penal canon is at issue, the excusing clauses are not optional considerations. The law must be understood as a whole, and rulings cannot arbitrarily ignore relevant legal principles. A judge who applies a penalty without addressing whether the excusing circumstances exist has rendered an incomplete judgment — he has not disposed of the whole case.
Not uncommon amongst general commentary on the Society situation is something like this: “The pope didn’t say the excusing circumstances applied, therefore they don’t apply.” However, from a canonical perspective, this is backwards. Under strict interpretation of penal laws, the burden runs the other direction entirely. The excusing circumstances are presumed operative unless they are positively proven not to apply. If a Judge is silent, this does not constitute an elimination of the principles related to the circumstances. Therefore, if the Judge remains silent on them, the question of whether they apply remains open.
Favorabilia amplianda, odiosa restringenda:
Favours are to be broadened, burdens are to be narrowed. This principle holds that a good legislator and a good judge will, as a default posture, lean toward liberty rather than restriction. When a law grants a favour, a privilege, or a permission, it should be read generously. When a law imposes a burden, a restriction, or a penalty, it should be read narrowly — exactly as written, and no further. So, in the case of the Society, it is improper to apply the penalties to the group as a whole, validity and justice of the aforementioned accusations notwithstanding. It goes against the norms of how we interpret the Law to apply the penalty of schism or excommunication to the whole Society, when this has not been expressed as the ruling in any clear way.
No precedent from judicial decisions:
Due to our formation as citizens of nations that apply the notion of precedence to legal proceedings, we naturally assume that this same logic applies to Canon Law proceedings, but this is untrue. Our civic legal codes are immense and complicated, and their scope dwarfs that of Canon Law, and what is permitted or restricted is constantly in flux in the civil sphere due to regime changes and the changing morals and norms of the body politic. For these reasons, legislators in this realm often rely on precedent to make judgments. “Well, if it was ruled legal in that case, it will be legal in this case, all things being equal.”
