by Gregory Caridi

I work a lot with law. Sometimes with real law, as people like to say, but more often with canon law. It’s a good job, but a hard one. Not because canon law is necessarily a difficult sort of law, though it can be, but because it’s law that almost nobody really cares about. I don’t mean this in a self-deprecating or flippant kind of way. Canon law actually matters. It is the legal system—the theology made real—of the one, true, apostolic Church of God.  

But I don’t think I put it too strongly when I say that many Catholics, regardless of their background or political views, including many clerics, view canon law mostly as a kind of prudential fiction, if they know about it at all. It exists in some form, out there, but it’s secondary or tertiary to what people believe really matters in the Church: spreading the gospel, helping others, the liturgy, morality, leadership, etc. Law is a tool, maybe, but it is always in service of something else, and quite often it’s seen as being in conflict with that something else. It should be ignored or moved around with exception upon exception until we can get a result that attains some goal. It’s binding, sure, but only in an untied shoelace kind of way. 

In some ways all this is true. What actually matters, and the only thing that ultimately matters, is the salvation of souls and the glorification of God, and in that way, canon law yields. Canon law couldn’t be an end in itself, and if it’s not working for the goal of salvation, it has nothing to do with the purposes of the Church. But in other ways, it’s not true at all. Canon law touches upon every aspect of the Church. It defines, binds, and rules over the whole of the faith. And since the Church is juridical by her very nature, it’s not too much to say that without the law, there is no Church.

The consequences of the aforementioned view are manifest. The abuse crisis might be described as a failure to recognize and follow the prescriptions of the law, both canonical and civil. As Pope Francis recently put it:

In the past, great damage was done by a failure to appreciate the close relationship existing in the Church between the exercise of charity and recourse—where circumstances and justice so require—to disciplinary sanctions. This manner of thinking—as we have learned from experience—risks leading to tolerating immoral conduct, for which mere exhortations or suggestions are insufficient remedies. This situation often brings with it the danger that over time such conduct may become entrenched, making correction more difficult and in many cases creating scandal and confusion among the faithful. For this reason, it becomes necessary for bishops and superiors to inflict penalties.

To this is added a special dimension of clericalism, as the majority of the laws concerning abuse that were not followed related specifically to clerics.

And we needn’t spend much time on the issue of marriage. Despite the sincere efforts of many, a guaranteed annulment is seen as the norm. And I get it. Have you ever had to tell a young woman that she can’t get married and so will never have a family or children for her whole life? I have. It’s brutal. And it’s inconceivable in the world today. Or consider the Communion wars, which at their root are really just a battle over whether to apply existing law. This particular conflict is especially interesting, not simply because of the underlying topic but because the Church continues to teach and to issue more laws to address the issue all while doing very little to enforce them. Consider Book VI, which deals with penal law in the Church. Here Pope Francis just recently added a particularly significant canon, 1379, which states that “a person who deliberately administers a sacrament to those who are prohibited from receiving it is to be punished with suspension” and references other penalties that may be added. Canon lawyers have received it on very good authority that this canon envisions a penalty for someone who distributes Holy Communion to individuals prohibited from receiving it; that is, people referenced in canon 915, including those who obstinately persist in manifest grave sin.

At first glance, this sounds like a really big deal. One might look at that, and depending on his priors, say, “Wow, that’s great!” or “Wow, that’s terrible!” But these opinions are almost totally irrelevant, as it’s unlikely that anyone will ever enforce such a law. It’s just not what the Church does today. She does not engage in that kind of policing or use of executive authority. She simply does not believe she is that sort of institution, and this would be true even if she had the logistical ability to be one.

But without any doubt the Church is the kind of institution that has these laws, that will make these laws, which are all over the Code. I’ve personally tried to draw attention in the past to the relatively unknown speech laws in the Code (cc. 1369, 1373), which call for penalties against those who blaspheme or harm public morals or who express animosity toward the pope or ordinaries through public speech. They are written as strict laws that would apply in any number of situations, but examples of enforcement are rare. 

This problem falls all the way down to parishes, which in the worst cases may truly be described as ungovernable. Ask a pastor trying to assert any sort of authority over the will of a congregation that knows what it wants. His authority is canonically real in some sense, sure, but it is often unlikely to be applied.

There are more examples of this, and I’m picking the obvious ones to make a point, but let’s just accept for the sake of argument that I’m right: that this is how Catholics view canon law (and law in general), and that this is something to be concerned about. Your first question then might be why? Why are things this way?

The history of canon law is a long one, so I’ll describe it in a very brief way to answer this question. In the early Church, it started with what it was given. The Lord and the Apostles gave instruction, and it was implemented. People were baptized and received sacraments, some people were ordained, other people were given special authority, individuals had different roles. Rules were derived from these early facts and the Church Fathers and other leaders wrote about them and authorities tried to enforce them.

Doubtless out of a need to further establish order, councils were held, which became the clearest source of law for the universal Church. But as the faith spread, there was a continuous and immediate need for answers to difficult questions, and so the popes responded with what were called “decretals,” individual decisions that popes often instructed local authorities to distribute and to apply in similar situations. 

As time went on, these decretals became unwieldy (and some were even forged), and it was unclear which were in force, including where and how, so individuals (sometimes appointed by the popes) collected and organized them. The most famous of these include the jurist Gratian and Saint Raymond of Peñafort. In some ways, these men formed what might be understood as “canon law” today, turning mere rule collection into a coherent science.

The Roman Curia was established partially as a means of addressing the many questions and issues that arose in the Church, especially after Trent, but as the Church continued to grow into the nineteenth century, there was a continued need to update and collect the ever-growing law. Bishops during preparations for Vatican I asked for such a collection, but it was clear that the Council would be unable to address the need. Given the inability of the Council to tackle the issue, it fell upon Pius X to assign the task to Cardinal Gasparri.

The result in canon law terms was nothing short of revolutionary. In the past, the process of creating a collection included gathering the original declaration or law and simply transcribing it into one place in an organized or systematic way. Now the decision was made to draft brief legal statements derived from the principles of the varied declarations. In effect, a decision was made to create a single, universal legal code: the Code of Canon Law of 1917.

It was the precedent of 1917 that after Vatican II gave us the current Code of Canon Law in 1983, an examination of which provides the fullest explanation of the current state of affairs. Two important factors should be emphasized here. One is that the code of ’83 is the legal implementation of the Second Vatican Council. While the earlier code followed Vatican I, the council was not considered its source. This makes the present code unique.

Vatican II put great emphasis on a pastoral view of the Church, and the law would follow in its course. The goal of the new code was to draw on the pastoral character of the council, but in a manner that was in keeping with the canonical tradition. As Paul VI put it in his opening comments on the work of the commission drafting the Code: “Now, however, with changing conditions—for life seems to evolve more rapidly—canon law must be prudently reformed; specifically, it must be accommodated to a new way of thinking proper to the Second Vatican Council, in which pastoral care and new needs of the people of God are met.” 

Given this focus on the pastoral, one can see how it happened that “pastoral” needs became separated from, juxtaposed with, or even set directly against law itself. As Pope Benedict put it many years after the council: “During the last decades, we have heard the adjective ‘pastoral’ used almost as if it were in opposition to the concept of ‘hierarchical,’ and in the same way the idea of ‘communion’ has also been set against it.” This is surely the strangest sort of ironies. The council had itself called for the law to be used as a means of addressing serious pastoral concerns. Instead, law came to be seen as the obstacle to the pastoral.

Which brings us to our second point. The council and the updating of the code were announced in 1959. It became very clear during the early drafting stages that, whatever the initial plans, it would be impossible to update the code without first finishing the council. At the time, the immediate effect of the delay would not have been obvious. But the announcement in 1959 when the code of 1917 was only forty-two years old, and the nearly twenty-five year drafting process that followed, which called for input from bishops and others all over the world, ultimately weakened the force of the older code, and canon law itself.

What followed was what Ed Peters has described as an “inordinately long lame-duck period” in which successive generations of churchmen received training in a system of law that they expected soon to be abrogated and no system at all respectively. The teaching of canon law fell into abeyance, and it was studied only as an academic question by professional scholars rather than future priests and bishops, many of whom would make their first acquaintance with the subject when faced with clerical sexual abuse and other crises.

It is easy to imagine how both the premature announcement of the older code’s abrogation and the post-Vatican II wave of antinomianism affected popular understandings of the law. Canon law became a kind of atrophied muscle for the Church. Even now when attempts are made to use it, it hurts, so the Church continues to favor its healthier leg, ultimately causing damage to other parts of the body. 

I’d like to emphasize that none of this is intended as a criticism of Vatican II, which was attempting something noble, nor is it a rebuke of prelates, who despite many valiant efforts often find themselves unprepared for the reality of a laity—and, at times, a clergy—who not only balk at their legal authority, but who, in the worst cases, actively try to undermine it. It is instead meant only as a general descriptive account of where the Church stands today with the law. Here it is worth pointing out that one notices very little difference in the understanding of the law between those who celebrate the Second Vatican Council (or at any rate their understanding of it) and traditionalists and others who might disdain it. Instead, the two groups tend to disagree about what are ultimately very Vatican II-oriented questions about the proper understanding of the “pastoral”: an emphasis on outreach and openness, say, versus concerns about propriety and respect for the sacred liturgy.

But I want to leave the history there. I think it only tells us so much. Yes, ignoring law leads to bad consequences. Yes, there’s probably a reason things are the way they are. But these are less important than the ultimate question of why all of this matters. I think in many ways the dominant canonically antinomian view is not only a practical issue, but a very serious theological problem. In the interest of addressing it, we might consider a principle that, while present in the Church since her inception, was a matter of especial emphasis at Vatican II: the tria munera or the threefold office.

Drawing from Christ’s role as priest, prophet, and king, the Church recognizes the sanctifying office (munus sanctificandi), the teaching office (munus docendi), and the governing office (munus regendi). They are treated extensively in the conciliar documents as well as in the code of 1983. The munus sanctificandi, related to sacred things and the sacraments, and the munus docendi, related to preaching and teaching, generally take up most of the oxygen in the public Church, the former often touching on conflicts over the Mass and sacraments, and the latter with various—often important—moral questions.

The munus regendi, though, which is actually the bulk of what the Church does (as is the case in any institution), gets far less attention. It relates to the management of all persons and things in the Church, as well as to the direct management of the other two munera. The munus regendi most importantly expresses itself in canon law, both in the creation of it and its enforcement. In this way the other two munera rely on the munus regendi. You can teach all the truth you want, and you can get everything right about how to sanctify the world, but if you have no means of arranging and enforcing teaching or the sacraments, you haven’t really got a Church. You have a collection of ideas that certain people agree upon, which is not the same thing as a living body. In the same way that a written constitution is not a nation, so too is a lawless set of people and principles not a Church.

There is no greater expression of authority than in the munus regendi through the law. Compare it to the teaching office. A teaching can be true or false, and while in many cases we must rely on the authority of the teacher to be ultimately certain of this one way or the other, it’s the truth of the teaching that really makes it matter. The same goes for the sanctifying office. While our clerics were given authority by Christ to celebrate specific sacraments, the sanctifying in the case of a sacrament is being actualized by God. 

But governance is a bit different. While there is a sense in which all authority is vicarious of God’s authority, popes, bishops, priests, and, in some cases, the baptized laity, have actual original authority that has been granted to them by God, in Whose name they act. Their binding and loosing, insofar as they are able, really is the actualizing force because they possess that authority themselves. In the case of bishops, especially as Lumen gentium notes, “this power, which they personally exercise in Christ’s name, is proper, ordinary and immediate.”

If the munus regendi and the law are seen as merely practical, as rooted in something other than this transcendent authority, the institution itself becomes threatened, as authority itself is called into question, including authority over the other munera. Consequently, there are constant internal rebellions, often illicit, in cases where the hierarchy does not sufficiently align with an individual or group’s view of some teaching or sanctifying action.

This rejection of governance is also no doubt the cause of so many schisms, apostasies, and heresies. The conflicts with the various non-Catholic churches and communities are often at their root a disagreement over this third munus. There are some, the more traditional, who simply reject that the pope and the bishops possess that authority specifically, and there are others who implicitly reject that that governing authority can be held by anyone but Christ himself.

When Our Lord established His Church, he wasn’t merely picking head pastors or head teachers. He was picking people to stand in His stead, who would exercise authority to govern the whole world. Failure to exercise that authority, specifically through well established and just law, is not only to ignore the mandate given to us by Christ, but it is to misunderstand Him, to view Him as less than He was, as simply a holy teacher, like any good man might be, and not as king, as only He could be.

I am well aware that there are no simple solutions to this problem. Should Church leadership proudly wield authority through the law, the faithful and those outside of the Church will respond it in a very severe way. Indeed, they already do so, and examples of this are too numerous to mention. Despite every effort to reform the image of the Church, to soften the edges of her juridical nature, to emphasize the pastoral, in moments when the Church truly governs and challenges other authorities, her opponents always promote an exaggerated, unjust, illegitimate, indeed draconian image of her. But the less the Church does to emphasize her authority, separating the pastoral from the legal, the more this problem grows. 

Pope Benedict was especially prophetic here: “How can we comprehend in our modern day culture a dimension of this kind that implies the concept of authority and has its origins in the Lord’s own mandate to tend his flock? What is authority really, for us Christians? The cultural, political and historical experiences of the recent past, above all the dictatorships in Eastern and Western Europe in the twentieth century, have made contemporary man suspicious of this concept.” Much more could obviously be said concerning the political, especially with respect to how this collapse of legal governance seems to co-incide with the reduction of the Church’s position in the political space, but that is another argument.

Whatever the solution (and surely it must go beyond simply applying the law as it exists), it is obvious that this is the battle the Church faces today. I encourage all Catholics to consider the issue, to take to heart the reality that ours is a Church that exists not only in traditions, in custom, and as a fact of history, but one that exists with authority and law. Let us pray that once again this means the authority not only to sanctify and to teach, but the authority and the willingness to govern, with a people who are willing to be governed.

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