canon law

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canon law
a comparative study with
anglo-american legal theory

john j. coughlin, o.f.m.

1
1
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Coughlin, John J., O.F.M.

Canon law : a comparative study with Anglo-American legal theory / John J. Coughlin.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-537297-7 ((hardback) : alk. paper)
1. Canon law. 2. Common law. 3. Catholics—Legal status, laws,
etc.—United States. I. Title.
KB243.C68A33 2010
262.9—dc22 2010019792
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 In Piam Memoriam
Honorable Frank X. Altimari
Judge of the United States Court of Appeals for the Second Circuit
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contents

Preface and Acknowledgments xiii

Abbreviations xvii

introduction 1
I. Antinomianism and Legalism 3
II. Comparative Law and Anglo-American Legal Theory 6
III. Canon Law and the Rule of Law 10

chapter 1 an overview of canon law 17

I. Examples of the Scriptural and Historical Origins of
Canon Law 17
A. Via Negativa 18
B. The Juridical Form of Community, Sacrament, and
Mission in the New Testament 21
C. Paul of Tarsus: Law and Spirit 24
D. The Council at Jerusalem 26
E. The Patristic Church of Northern Africa 28
F. The Medieval Canonists 31
II. Contemporary Canon Law and the Rule of Law 35
A. Twentieth-Century Codifications 35
B. Other Sources and Types of Canon Law 38
1. Legislative, Executive, and Judicial Power 38
2. Universal and Particular Law 41
3. Custom as a Source of Law 42
4. International Law 42
5. The Canonization of Civil Law 43
6. Liturgical Law 44
C. Canonical Equity, Dispensation, Exception, and
Privilege 44
1. Canonical Equity 44
2. Dispensation, Exception, and Privilege 46
D. The Unity of Law and Theology 48
viii contents

chapter 2 canon law and the sexual abuse crisis:

antinomianism, legalism, and the failure of the rule
of law 51
I. The Failure of Canon Law in Responding to Clergy Sexual
Abuse Cases 52
A. Canonical Provisions for the Investigation, Adjudication,
and Resolution of an Allegation of Clergy Sexual Abuse of
a Minor 52
B. Statistical Evidence and Canon Law 56
C. Difficulties with the Canonical Process 58
II. The Failure of the Rule of Law: Antinomian and Legalistic
Approaches 65
A. Antinomianism and Legalism during the Nineteenth
Century 65
B. Post–Vatican II Antinomianism: The Psychological
Approach 67
C. The Legalist Response 72

chapter 3 canon law and the sexual abuse crisis continued: the
consequences of the failure of the rule
of law 75
I. The Canonical Requirement of Celibacy and the Sexual Abuse
of Minors 75
A. Clerical Celibacy: Witness to Faith or Threat to the Public
Good? 75
B. The Sexual Abuse Crisis and American
Anti-Catholicism 81
II. Canon Law and Theology 84
A. Original Sin and the Limitation of Law 84
B. Law and the Theology of Forgiveness 85
C. Priesthood as a State of Life 88
III. Antinomianism, Legalism, and the Nature of Canon Law 90

chapter 4 church property: a comparison of the theories of

property in canon law and liberal theory 97
I. Elements in Canon Law’s Approach to Property 97
A. Anthropological Basis for Private Property 98
B. The Fall and Private Property 100
 contents ix

C. The Early Church 101

D. Medieval Theory 104
E. The Social Teaching of the Church 108
II. Property in Liberal Political Theory 109
III. Comparison of Catholic and Liberal Theories of
Property 112

chapter 5 church property continued: the diocese and parish;

canon law and state law 115
I. The Diocese and the Parish 116
A. The Unity of Law and Theology 117
B. Parish Property in Canon Law 122
II. Congregationalist v. Hierarchical Forms of Church
Governance 124
III. Canon Law and State Law 129
A. The Harmony of State and Canon Law 130
B. The Relationship between Diocese and Parish in State
Law 132
IV. Antinomian and Legalistic Approaches to Church
Property 133

chapter 6 indeterminacy in canon law: the refusal of holy

communion to catholic public officials: canon 915:
“a central case” 139
I. Canon 915 and Indeterminacy 141
II. The Rule of Recognition and the Internal Aspect of Law 145
A. The Rule of Recognition and Canon 915 146
B. The Internal Aspect of Law and the Application
of Canon 915 149
III. The Open Texture of Law: A Central Case 151
A. The Plain Meaning 152
1. “Are Not To Be Admitted” 152
2. “Manifest Grave Sin” 152
3. “Obstinately Persists” 154
B. The Justifications for the Application of Canon 915 155
C. Effects of Canon 915 155
x contents

chapter 7 the indeterminacy claim continued: canon 915:

“a doubtful or hard case” 157
I. Doubt Regarding the Attribution of “Grave Sin” to the Public
Official 158
A. Political Autonomy 158
B. Formal and Material Cooperation 159
C. Individual Conscience 161
D. Doubtful Law 162
II. Undue Interference in the Political Process Through an
Arbitrary Application of Law 163
III. Political and Financial Threats to the Church’s Social
Teaching and Charitable Works 164
IV. Sacramental Theology 165
V. Other Provisions of Canon Law 167
A. The Right to Receive the Sacraments 167
B. The Autonomy of Diocesan Bishop 168
VI. Antinomianism and Legalism 168
A. Antinomianism 169
B. Legalism 170

chapter 8 concluding observations : antinomianism, legalism,

and the rule of law 173
I. The Natural and Supernatural Ends of Canon Law 173
II. The Three Examples of Antinomianism and Legalism 175
A. Clergy Sexual Abuse 175
B. Church Property 176
C. Canon 915 179
D. General Conclusions about Antinomianism and
Legalism 180
III. The Rule of Law: Comparison of Canon Law with Anglo-
American Legal Theory 181
A. Does Canon Law Count as Law? 181
1. Canon Law and Coercive Power 182
2. Canon Law as Command 183
3. The Intellectus of Canon Law 184
B. Does Canon Law Constitute a System of Law? 186
 contents xi

C. Does Canon Law Fulfill the Requirements

of the Rule of Law? 191
1. Procedural Justice 191
2. Substantive Justice 193
3. Unjust Law 195
4. Indeterminacy of Law 196
IV. Conclusion 197

Bibliography 199
Index 217
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preface and acknowledgments

It risks a violation of humility to write about one’s self, but sometimes the risk is
necessary in order to offer understanding of one’s work. Ever since I studied civil
law at Harvard Law School and canon law at the Pontifical Gregorian University
in Rome, I have been interested in utroque iuris and the possibility of comparative
law. Civil law and canon law each represent vast fields, and the problem of
writing a comparative study of them is one of focus. In this book, I focus princi-
pally on three specific topics in contemporary canon law: the clergy sexual abuse
crisis; the ownership of church property; and the denial of Holy Communion to
Catholic political officials. I recognize that these topics are timely and not with-
out controversy. However, my selection of these contemporary topics serves as a
means of exploring deeper long-standing theoretical issues in canon law.
Specifically, this book examines antinomian and legalistic approaches to canon
law. The study, teaching, and practice of civil and canon law have instilled in me
an appreciation of the rule of law. This appreciation leads me to examine antino-
mianism and legalism in terms of their impact on the rule of law in the Roman
Catholic Church. My hope is that the book’s comparison of canon law with what
I shall describe as Anglo-American legal theory will bear insight about the function
of canon law in protecting individual persons and the common good.
When I entered the Franciscan Order in 1977, it never occurred to me that I
would one day be a law school professor. Shortly after my ordination as a priest
in 1983, Father Alban Maguire, O.F.M., then the Provincial Minister of Holy
Name Province, asked me if I would be interested in studying moral theology
and ethics. A somewhat vague notion of mine that the practical implications of
ethics were expressed in law led to the idea of a joint Ph.D./J.D. program. During
my time as a law student, Father Alban proposed the alternative that upon com-
pletion law school, I would obtain my doctorate in canon law at the Gregorian.
Although I was initially skeptical about this alternative proposal, discussions
with several of my professors at Harvard including John Mansfield, Mary Ann
Glendon, Alan Stone, M.D., and Andrew Kaufman convinced me that the
combination of civil and canon law was a worthwhile endeavor. These conversa-
tions proved fortuitous as a letter of obedience from Father Alban soon sealed
the deal.
In addition to assigning me to study canon law, Father Alban also thought that
my knowledge of civil law would be enhanced by a clerkship with a federal judge.
Again, this was for me a heretofore uncontemplated possibility. The Honorable
Frank X. Altimari, Judge of the U.S. Court of Appeals for the Second Circuit,
kindly selected me to serve as one of his law clerks. The experience of clerking was
one of great learning about the law and about life for which I remain profoundly
xiv preface and acknowledgments

grateful. I dedicate this book to the memory of my teacher and friend, the late
Judge Altimari. As a doctoral student at the Gregorian, I was blessed to encounter
then Monsignor Raymond L. Burke and Father Urbano Navarette, S.J., both of
whom personified the holy priest and dedicated scholar. The doctoral dissertation
that I wrote at the Gregorian, under Burke’s direction, with Navarette as chair of
my defense board, was my initial attempt at comparative legal study. In the myste-
rium vitae, it was not my own great designs but rather the knowledge, wisdom,
and goodness of others that cultivated my interest in canon and civil law.
The project of writing this comparative study formally started in 2003 after I
joined the Notre Dame law faculty. A series of summer stipends from the law
school assisted me in carrying out the work. During the time that I have been
working on this project, I have also tried my best to fulfill an array of responsi-
bilities as a teacher, canonist, attorney, and above all, as a priest. My life at the
University of Notre Dame has proved enormously rich in this regard. In particu-
lar, the past seven years at Notre Dame have afforded me an intense pastoral
experience. Given my various responsibilities at Notre Dame, a good portion of
the writing of this book occurred during the holidays and summer months while
I lived with my Franciscan brothers at Saint Stephen’s Friary on East 82nd Street
in New York City. Father Angelo Gambatese, O.F.M., and the community at
82nd Street have consistently welcomed me with Franciscan warmth. During the
final months of this project, I taught simultaneously at the Notre Dame law pro-
gram in London and the Gregorian in Rome. In Rome, I lived with the Franciscan
community at San Isidoro. With my addition, there were fifteen of us in this
international house of the Order, and the friars were patient with me as I strug-
gled to be more fluent in Italian. In fact, Father Primo Piscatelli, O.F.M., and the
other Franciscans of the community, could not have provided a more serene and
contemplative environment in which to bring such a project to conclusion.
As I bring this book to completion, I wish to express my gratitude to a number
of persons who directly assisted me with the work. My colleagues at the Notre
Dame Law School, Robert E. Rodes, Jr., and John Robinson, patiently read and
commented on the vast majority of this book in various drafts. In rendering this
service, they not only improved on my ideas and writing style, but gave me an
example of true and unselfish scholars. Other scholars who read and provided
invaluable comments on various parts of the book include Nicholas Cafardi,
Father James Conn, S.J., John Finnis, Mary Ann Glendon, Nicole Garnette,
Monsignor Michael Heintz, and Mary Ellen O’Connell. Professor O’Connell
introduced me to the editors at Oxford University Press. Chris Collins of Oxford
guided me through the book proposal process, and together with Jessica Picone
helped to bring the published work to completion. Monsignor David Malloy,
Secretary of the United States Conference of Catholic Bishops, enabled me to
have access to statistical information collected by the researchers of the John Jay
Studies. While they were law students at Notre Dame, Nathanael Pollock,
Christine Niles, and Paul Harold helped me with various parts of the research
 preface and acknowledgments xv

for the book. James Lee, Lidia Kim, and Jordan Smith proofread the manuscript.
If it were not for the pains of all of the above persons, the book would contain
many more substantive and stylistic errors than in fact remain.
Over the years of my teaching, I have developed the ideas in this study. In
particular, I must express my gratitude to the students in my classes at Notre
Dame for their keen interest in my ideas. At the same time, I wish also to thank
my students at other institutions where I have been honored to teach. I first
taught canon law at Saint Joseph’s Seminary in Yonkers, New York. My first
experience of teaching in a law school was also in New York at St. John’s
University in Queens. During the spring of 2009, I served as a Visiting Professor
at the Pontifical Gregorian University in Rome where I was blessed to share
parts of the final draft of the book with students from fourteen different coun-
tries with representation from all of the continents. Teaching at the Gregorian
served as a reminder that the Roman Catholic Church is a global
community of faith whose canon law transcends national, cultural, and linguis-
tic boundaries. On a personal level, I confess that it was a bit of a thrill for me
to return as a teacher to the place where two decades previously I had been
privileged to study.
Some of the ideas and themes of this book have also appeared in my previous
presentations and publications. I first wrote about the ideas of antinomianism,
legalism, and the rule of law for a symposium on the clergy sexual abuse crisis
sponsored by the Boston College Law School. The article, “The Clergy Sex Abuse
Crisis and the Spirit of Canon Law,” was published in 44 Boston College Law
Review 977–97 (2003), and is the basis of some of the ideas expressed in chapters
2 and 3 of this book. In Chapter 2, I have also included material from my book
review of Kevin E. McKenna’s “The Battle for Rights in the United States,” which
appeared in America, January 21, 2008, 35–36. Chapters 6 and 7 of the book,
which concern the denial of Holy Communion to Catholic public officials, are
based on a talk that I gave at the National Press Club in Washington, D.C., at a
conference sponsored by the Ave Maria Law School on September 16, 2004. My
thoughts in the Introduction about canonical equity were first developed for an
article “Canonical Equity,” 30 Studia Canonica 403–35 (2001). An article, “Canon
Law and the Human Person,” 19 Journal of Law and Religion 1–58 (2003–2004),
also represents a previous attempt to treat some of the theoretical issues that
arise in comparative legal study. While none of the above-mentioned articles are
reproduced entirely in this book, a number of paragraphs and sentences are
taken from the articles, and are included with the permission of the respective
publications.
As the project developed, the need to focus has led me to start writing another
book about canon law from a comparative perspective, Law, Person, and
Community: Philosophical, Theological, and Comparative Perspectives on Canon
Law, which is presently under contract for publication by Oxford University
Press. Considered together, the two monographs count as an attempt to express
xvi preface and acknowledgments

whatever modest insight has been afforded me from the opportunity of studying,
teaching, and practicing both laws. I hope that I have not offended too badly
against humility as I have tried to explain a bit about my reasons for writing this
book and to express my gratitude in these prefatory remarks.

Collegio San Isidoro, Rome

May 2009
abbreviations

AAS Acta Apostolicae Sedis.

Am. J. Comp. L. American Journal of Comparative law.
ASS Acta Sanctae Sedis.
B.C. L. Rev. Boston College Law Review.
C. Causa, Decretum Magistri Gratiani (Concordia
discordantium canonum). In Corpus Iuris
Canonici. Vol. I. Frieburg, A., ed. Editio lipsiensis
secunda. Graz: Akademische Druck-u.Verlagsanstalt,
1959.
Cath. U. L. Rev. Catholic University Law Review.
CCEO Codex Canonum Ecclesiarium Orientalim
auctoritate Ioannis Pauli II promulgatus (Die
18 m. octobris a. 1990), 82 AAS 1033–1363 (1990).
CIC-1917 Codex Iuris Canonici Pii X Pontificis Maximi
iussu digestus Benedicti Papae XV auctoritate
promulgatus (Die 27 m. maii a. 1917), 9 AAS II,
3–521 (1917).
CIC-1983 Codex Iuris Canonici auctoritate Ioannis Pauli
Pp. II promulgatus (Die 25 m. ianuarii a. 1983), 85
AAS II, 1–317 (1983).
Clem. Clementinae. In Corpus Iuris Canonici. Vol. II.
Frieburg, A., ed. Editio lipsiensis secunda. Graz:
Akademische Druck-u.Verlagsanstalt, 1959.
CLSA Proceedings Canon Law Society of America Proceedings.
CLSA-1985 James A. Coriden, Thomas J. Green, and Donald E.
Heintschel, eds. The Code of Canon Law, A Text
and Commentary. Commissioned by the Canon
Law Society of America. New York and Mahwah,
N.J.: Paulist Press, 1985.
CLSA-2000 John P. Beal, James A. Coriden, and Thomas J. Green,
New Commentary on the Code of Canon Law,
Commissioned by the Canon Law Society of
America. New York and Mahwah, N.J.: Paulist Press,
2000.
CLSGB & Ireland The Canon Law, Letter, and Spirit, A Practical
Guide to the Code of Canon Law. Prepared by the
Canon Law Society of Great Britain and Ireland
in association with the Canadian Canon Law
xviii abbreviations

Society. Edited by Gerard Sheehy, et al. Collegeville,

MN: Liturgical Press and Michael Glazier, 1996.
D. Distinctio, Decretum Magistri Gratiani
(Concordia discordantium canonum). In Corpus
Iuris Canonici. Vol. I. Frieburg, A., ed. Editio
lipsiensis secunda. Graz: Akademische Druck-u.
Verlagsanstalt, 1959.
Ecc. L. Rev. Ecclesiastical Law Review.
Extra. Ioannis Extravagantes Ioannis XXII. In Corpus Iuris
Canonici. Vol. II. Frieburg, A., ed. Editio lipsiensis
secunda. Graz: Akademische Druck-u.Verlagsanstalt,
1959.
Extra. Com. Extravagantes communes. In Corpus Iuris Canonici.
Vol. II. Frieburg, A., ed. Editio lipsiensis secunda.
Graz: Akademische Druck-u.Verlagsanstalt, 1959.
Gaudium et spes Sacrosanctum Concilium Oecumenicum Vaticanum
II. Constitutio pastoralis de ecclesia in mundo huius
temporis, Gaudium et Spes (Die 7 m. decembris a.
1965), 58 AAS 1025–1120 (1966).
Harv. L. Rev. Harvard Law Review.
Ill. L. Rev. Illinois Law Review.
J. Contemp. Health
L. & Pol’y Journal of Contemporary Health Law and Policy.
Jurist The Jurist.
Lumen Gentium Sacrosanctum Concilium Oecumenicum Vaticanum
II. Constitutio Dogmatica de Ecclesia, Lumen Gentium
(Die 21 m. novembris a. 1964), 57 AAS 5–89 (1965).
Mich. L. Rev. Michigan Law Review.
Navarra-2004 Exegetical Commentary on the Code of Canon
Law, Prepared under the Responsibility of the
Martin de Azpilcueta Institute, Faculty of Canon
Law, University of Navarre. Edited by Ángel
Marzoa, Jorge Miras, and Rafael Rodríguez-Ocaña.
Montreal: Wilson & Lafleur, 2004.
Notre Dame L. Rev. Notre Dame Law Review.
N.Y.U. L. Rev. New York University Law Review.
Ottawa-1993 Code of Canon Law Annotated. Latin-English
edition of the Code of Canon Law and English
Language Translation of the 5th Spanish
Language Commentary Prepared under the
Responsibility of the Instituto Martín de
Azpilcueta. Edited by E. Caparros, M. Thériault, and
J. Thorn. Montréal: Wilson & Lafluer, 1993.
 abbreviations xix

Periodica Periodica de re Canonica. From 1927 to 1991, the

title was Periodica de re Morali, Canonica,
Liturgica.
PG Migne, J. P. Patrologiae Cursus Completus, Series
Graeca. Paris: 1857–1866.
PL Migne, J. P. Patrologiae Cursus Completus, Series
Latina. Paris: 1844–1855.
ST St. Thomas Aquinas, Summa Theologica. Sancti
Thomae Aquinatis. Opera Omnia, Leo XII, P.M.
Romae: Ex Typographia Polyglota S. C. De Propaganda
Fide, 1882. Vol. 4–12. English Translation by the
Fathers of the English Dominican Province.
Westminster, MD: Christian Classics, 1981.
Tanner Tanner, Norman P., S.J. Decrees of the Ecumenical
Councils. London and Washington, D.C.: Sheed &
Ward and Georgetown University Press, 1990.
U.C. Davis L. Rev. University of California at Davis Law Review.
UCLA L. Rev. UCLA Law Review.
U. Tol. L. Rev. University of Toledo Law Review.
VI Liber Sextus. In Corpus Iuris Canonici. Vol. II.
Frieburg, A., ed. Editio lipsiensis secunda. Graz:
Akademische Druck-u.Verlagsanstalt, 1959.
Wisconsin L. Rev. Wisconsin Law Review.
X Liber Extra, Quinque Libri Decrertalium Gregoriani IX.
In Corpus Iuris Canonici. Vol. II. Frieburg, A., ed.
Editio lipsiensis secunda. Graz: Akademische Druck-u.
Verlagsanstalt, 1959.
Yale L.J. Yale Law Journal.
This page intentionally left blank
introduction

The advent of the third millennium witnessed two seemingly unrelated events
yielding contrasting images of the Roman Catholic Church. The first involved
the sexual abuse of minors by Catholic clergy in the United States during the
second half of the twentieth century. While the media had periodically reported
on stories of clergy sexual abuse over the course of the past decades, the
abuse became the object of sustained and intense national scrutiny in 2002.
Media attention often focused on the failure of the church’s internal system of
governance to protect children from the abuse. Not limited to the United States,
public scrutiny of the Catholic priesthood soon surfaced in other counties includ-
ing, inter alia, Australia, Austria, Belgium, Brazil, Canada, Germany, Ireland,
Italy, and Poland. The image was one of a suspect church in crisis whose priests
posed a threat to the public good.1 The second event entailed a transition at the
highest level of leadership in the Catholic Church. On April 2, 2005, Pope John
Paul II passed from this life, ending his twenty-six year pontificate. The pontiff’s
death set in motion a procedure for the government of the church during the
interregnum and election of a new pope. In what is perhaps one of the longest
applications of the collegial principle of “one man one vote,” the College of
Cardinals, in conclave at the Vatican’s Sistine Chapel, elected Pope Benedict XVI
on April 19, 2005. The image was of the church in an orderly transition, the rules
of which were rooted in ancient tradition while cognizant of contemporary
needs.2

1. The clergy sexual abuse crisis is discussed in Chapters 2 and 3. See Canon 1395 § 2,
CIC-1983; and Congregatio pro Doctrina Fidei, De delictis gravioribus eidem Congregationi
pro Doctrina Fidei reservatis, 93 AAS 785, 786–87 (2001). Both documents recognize the
sexual abuse of a minor as a crime for which the penalty of dismissal from the clerical
state might be imposed. The document from the Congregation for the Doctrine of Faith
established that a minor is one who has not reached his or her eighteenth birthday.
2. The revision of the rules for the election of the pope had retained the central aspects
of the tradition while introducing new measures to accommodate modern technology
especially with regard to security for the Conclave and the medical health of the partici-
pants. See Ioannes Paulus Pp. II, Constitutio Apostolica Universi Dominici Gregis (Die 22 m.
feb. a. 1996), 88 AAS 305–42 (1996). This law issued by Pope John Paul II had permitted
election of the Roman Pontiff by the College of Cardinals by a simple majority vote after
several days of inconclusive balloting. Pope Benedict XVI, by a motu proprio, dated June
11, 2007, amended the law so as to require a two-thirds majority for election in all cases.
See Benedictus Pp. XVI, Litterae Apostolicae Motu Proprio Datae, De Aliquibus Mutationibus
in Normis De Electione Romani Pontificis (Die 11 m. junio a. 2007), 99 AAS 776–81 (2007).
2 introduction

Although the two contrasting images arose from seemingly unrelated events,
both could be attributed at least in part to canon law. The election of the pope
represents the rule of law functioning in the life of the Roman Catholic Church. In
contrast, I shall suggest that the sexual abuse crisis combined antinomian and
legalistic approaches to canon law that defeated the rule of law. In 2010, the two
events seemed to coalesce. A series of front-page New York Times stories alleged
that, prior to his election as pope, Joseph Cardinal Ratzinger had facilitated a global
cover-up of priest pedophilia.3 His defenders responded that Cardinal Ratzinger
had led the way to ensure that procedures designed to address cases of sexual
abuse were observed by church officials.4 Although not necessarily supported by a
fair consideration of the evidence, the accusations against the pontiff were lent
credibility in the atmosphere of suspicion generated during the 2002 U.S. crisis
and its international spread. The crisis was based on the reality that the Catholic
Church had a significant problem with clergy sexual abuse and that church author-
ities failed to employ canon law as a means of protecting victims of the abuse.
In this book, I discuss the ways in which antinomianism and legalism impact
on canon law as the rule of law in the Roman Catholic Church.5 Focusing on
contemporary canon law, I examine several specific topics, including the sexual
abuse crisis, the ownership of church property, and the refusal of Holy
Communion to Catholic public officials. While they arise in the context of the
United States, these specific topics raise larger theoretical issues that pertain to
canon law as the universal law of the Catholic Church. As a way of affording a
comparative perspective on the larger issues about the rule of law, I juxtapose
canon law and Anglo-American legal theory. In this Introduction, I treat some
concepts that are basic to the study as a whole. First, I define antinomianism
and legalism in canon law and offer some historical examples of each. Second,

3. See, e.g., Archdiocese Led by Pope Admits Error on Abuse, N.Y. Times, Mar. 13, 2010, at
A1 and A10; Vatican Declined to Defrock U.S. Priest Who Abused Deaf Boys, N.Y. Times,
Mar. 25, 2010, at A1 and A15; Priest Charged with Abuse Is Still Serving in India, N.Y.
Times, Apr. 6, 2010, at A1 and A12; Pope Put Off Move to Punish Abusive Priest, N.Y. Times,
Apr. 10, 2010, at A1, A5, and A6. See also N.Y. Times, Editorial, Mar. 25, 2010, at A22.
Prior to his election as pope, Ratzinger ordered “that bishops worldwide were to keep
pedophilia secret under threat of ex-communication.”
4. See, e.g., John L. Allen, Jr., A Papal Conversion, N.Y. Times, March 28, 2010, at A11;
Federico Lombardi, S.J., Vatican Statement on NY Times Story on Abusive Wisconsin Priest,
39 Origins 693–94 (Apr. 8, 2010); and George Weigel, Scandal Time, Once More, Denver
Catholic Register, April 7, 2010, available at www.archden.org/weigel.
5. The phrase “canon law” may also refer to the law of the Anglican Church as well as
to that of the Orthodox churches. See generally Eric Waldram Kemp, An Introduction
to Canon Law in the Church of England (Hodder and Stoughton 1967); and
Panteleimon Rodopoulos, An Overview of Orthodox Canon Law (W. J. Lillie trans.,
Orthodox Research Institute 2007).
 introduction 3

I describe what I mean by Anglo-American legal theory, and discuss it in relation

to comparative law. Finally, I pose a question about canon law as the rule of law
in the church from the comparative perspective.

I. antinomianism and legalism

Antinomianism diminishes or rejects the validity of law. For example, Marjorie

Reeves has described the pervasive influence of Joachim of Fiore’s antinomian
thought from its eleventh-century origins to the fifteenth century.6 In particular,
the thirteenth-century Franciscan spiritualists adopted the thought of Joachim
of Fiore, calling for a “spirit age,” which was to abrogate institution, law, and
sacrament. The spiritualists advocated a radical form of poverty that permitted
little provision for the institutional structures of community life. Joseph
Ratzinger observes that Joachim developed a trinitarian scheme in which
the final triad or spirit age would follow upon the ages of the Father and Son.7
Based upon Joachim’s thought, the Franciscan spiritualists understood Saint
Francis of Assisi as the eschatological prophet of the end times.8 Their antino-
mian attitude imperiled the future of the Franciscan Order. As general of
the Order, Bonaventure of Bagnoregio found it necessary to respond to the anti-
nomian approach. He challenged the spiritualists to discern the presence of
the spirit within the institutional structures of the Order and church. The
Bonaventurian resolution evoked trust and respect for juridical structures even
as it called for the institutional to remain semper reformanda. In the face of a
vibrant antinomian movement, Bonaventure articulated an ecclesiological per-
spective that sought to restore the balance between spirit and law. Hans Urs von
Balthasar describes Bonaventure’s resolution as expressive of the medieval bal-
ance which longed to view both the juridical structure and its inner intellectus as
in harmony.9
An antinomian strain may be detected in the thought of Martin Luther, who
rejected the validity of canon law. Luther urged that canon law be “completely blotted

6. On the influence of Joachim’s thought in the thirteenth century, see Marjorie

Reeves, The Influence of Prophecy in the Later Middle Ages: A Study of
Joachimism 3–228 (Clarendon Press 1969).
7. See Joseph Ratzinger, The Theology of History in St. Bonaventure 104–18
(Zachary Hayes trans., Franciscan Herald Press 1971).
8. See id. at 48–55, which discusses the identification of Francis and the Franciscan
Order with the eschatological.
9. See Hans Urs von Balthasar, A Theological Anthropology 131–35 (Sheed &
Ward 1967).
4 introduction

out from the first letter to the last especially in the decretals.”10 As I shall mention in
Chapter 1, antinomianism was also evident in the approach of certain nineteenth-
century biblical and legal scholarship, which painted a portrait of Jesus as in opposi-
tion to institutional and legal forms. Some interpretations of Vatican II fostered
antinomianism in the life of the church during several decades that followed the
Ecumenical Council.11 Antinomianism views the law as an obstacle to indivi-
dual freedom in the personal response to God.12 The law may be understood as an
instrument of oppression in the hand of the powerful against the powerless.13
Antinomianism ignores the necessary and proper role of law in establishing the
ecclesial order so that individuals and communities may grow and prosper. It fails to
recognize the important function of the rule of law for individuals and the common
good. When antinomianism flourishes, the institutional church tends to decline.
Legalism in canon law results from an approach that places the law above the
person and community. Legalism tends to ignore the historical, philosophical,
and theological dimensions of canon law viewing them as “meta-legal” and fall-
ing outside the parameters of law itself.14 In the gospels, Jesus clearly rejects a
legalistic approach to religion.15 Legalism manifests itself in at least three forms.
The first form of legalism sees law as an end in itself, and involves an abuse of
reason. It often is expressed through an overwhelming body of technicalities and
quibbles that detract from the deeper meaning that the law intends to convey.
This form of legalism was sometimes present in the jurisprudence of fifteenth-
century ecclesiastical courts, which recognized legalistic exceptions to the
church’s teaching on the indissolubility of marriage.16 Michael Sheehan observes

10. Martin Luther, Three Treatises, Originally Published in the American

Edition of Luther’s Works 94–95 (Helmut T. Lehmann gen. ed., Fortress Press 1966).
Of course, Luther also wrote A Treatise Against the Antinomians.
11. See, e.g.,, José Setién, Tensions in the Church, in 48 The Future of Canon Law,
Concilium 78 (Paulist Press 1969), which argues in favor of “the possibility of acting
against the law in order to achieve what is right for the Church”.
12. See Jan Rietmeijer, The Competence of the Bishop in Matters of Dispensation, in 48
The Future of Canon Law, Concilium 101, 114 (Paulist Press 1969), which opines that
bishops should dispense priests from celibacy and allow them to continue in ministry
because “human beings cannot be sacrificed to general rules and systems”.
13. See Leonardo Boff, Church: Charism and Power 51 (John W. Diercksmeier
trans., Crossroad 1986).
14. I am specifically concerned here with legalism in canon law. For a treatment of
legalism from the perspective of secular legal theory, see Judith N. Shklar, Legalism:
Law, Morals, and Political Trials 1 (Harvard University Press 1964), which defines
legalism as “the ethical attitude that holds moral conduct to be a matter of rule following,
and moral relationships to consist of duties and rights determined by rules.”
15. Luke 6:6–10; 12:37–52.
16. See Brian Tierney, Canon Law and Church Institutions in the Late Middle Ages, in
Rights, Laws and Infallibility in Medieval Thought, VII 66–68 (Variorum 1997);
 introduction 5

that the marriage bond in the medieval canon law was vulnerable in cases of
clandestinity but less so in cases of consanguinity and affinity.17 From the
Protestant Reformer’s perspective, the tribunals’ practice reinforced the
perception of canon law’s corruption. Luther rejected the tribunal practice as
indicative of the hypocrisy of the church.18 In response to the Reformation, the
Council of Trent affirmed the theological teaching on marriage as an indissoluble
sacramental union and clarified the juridical requirements for the free consent
of the spouses.19 In restoring the unity of theological teaching with canonical
practice, Trent attempted to restore the balance in canon law. Following Trent,
this first form of legalism could be detected in the abuse of casuistry. Sixteenth-
and seventeenth-century Catholic moral theologians attempted to develop the art
of an ethics, which avoided an excessive emphasis on universal rules and invariant
principles. The casuist favored a method based on cases, circumstances, and
individual conscience as understood by Thomas Aquinas.20 However, as Blaise
Pascal’s critique made clear, casuistry was subject to abuse by applying canonical
principles in such a way as to eviscerate the underlying purpose of the law.21 This
form of legalism then might be identified with the abuse of right reason, a kind
of sophistry that obscures the inner meaning and purpose of law.
The second form of legalism manifests itself in authoritarianism. It emphasizes
a kind of blind obedience to the law, and as such, represents a lack of respect for
free will. This form of legalism might be described as voluntaristic. The authoritarian/
voluntaristic form of legalism occurs when those who exercise the power of gover-
nance in the church resort to canon law to justify actions that disregard the funda-
mental rights of individuals and groups. Along with the antinomian strain of his
thought, Luther argued that canon law had become “the arbitrary will of the pope.”
Canon law, he argued, “is not what is written in the books of law, but whatever
the pope and his flatterers want.”22 As I shall discuss in Chapter 2, certain bishops
in the United States during the nineteenth century were sometimes guilty of an

see also R. H. Helmholtz, The Spirit of Classical Canon Law 240–41 (University of
Georgia Press 1996).
17. Michael M. Sheehan, C.S.B., The Formation and Stability of Marriage in Fourteenth-
Century England: Evidence of an Ely Register, in Marriage, Family, and Law in Medieval
Europe 38, 74–76 (James K. Farge ed., University of Toronto Press 1996).
18. See Martin Luther, The Christian in Society II, in 45 Luther’s Works 36–37
(Walther I, Brandt & Helmut T. Lehmann gen. eds., Muhlenberg Press 1962).
19. See Council of Trent, in 2 Tanner 753–56 (Norman P. Tanner ed., Sheed & Ward,
and Georgetown University Press 1990).
20. See Kenneth E. Kirk, Conscience and Its Problems: An Introduction to
Casuistry 198–202, 207–11 (Westminster John Knox Press 1999).
21. See Albert R. Jonsen & Stephen Toulmin, The Abuse of Casuistry, A History
of Moral Reasoning 11–15, 161–62 (University of California Press 1989).
22. Luther, Three Treatises, 95.
6 introduction

authoritarian legalism. Relying on canon law to assert authority such as the imposi-
tion of a penalty, the bishop would then overlook other provisions of the law which
were intended to provide that the penalty be imposed only after a just process.
A third form of legalism calls for the strictest application of the letter of the
law in all circumstances without regard to the dignity of the human person or
the flourishing of communal life. The symbolic function of the law is lost in the
primary and overriding requirement that the law be obeyed. This form of legalism
contravenes the elasticity of canon law such as the generous role that canonical
equity plays in canon law. I discuss the notion of canonical equity in Chapter 1.
This third form of legalism may often yield an unintelligent bureaucratic
approach to canon law. It sees canon law as the end itself, and manifests no
understanding of the relation between the human person, community, and the
salvific purpose of the law. The three forms of legalism have a thin positivistic
character in the sense that the law is applied without regard to its deeper purpose.
When legalism abides, it tends to stifle the spiritual essence of the church.

II. comparative law and anglo-american legal theory

My hope is that the comparative dimension of this study enhances the under-
standing of canon law. Comparisons of diverse legal systems enjoy a long histo-
ry.23 The vestiges of comparative legal scholarship may be traced to Greek
antiquity.24 Greek legal ideas in turn exerted a profound influence on the early
Roman jurists when they developed the ius gentium.25 During the republican
period of Roman law, the praetor peregrinus engaged in legal comparisons to

23. For historical accounts of the emergence of comparative law as a scholarly science, see
Walther Hug, The History of Comparative Law, 45 Harv. L. Rev. 1027 (1932); Neville Brown,
A Century of Comparative Law in England: 1869–1969, 19 Am. J. Comp. L. 232 (1971); Konrad
Zweigert & Hein Kötz, Introduction to Comparative Law 47–62 (Tony Weir trans., 2nd
ed. rev. Clarendon Press of Oxford University 1992); Charles Donahue, Comparative Law
Before the “Code Napoléon,” in The Oxford Handbook of Comparative Law 3–32 (Mathias
Reiman & Reinhard Zimmermann eds., Oxford University Press 2006).
24. Plato compared the laws of the Greek city-states, and on the basis of the compari-
son, he constructed the ideal constitution. See Plato, Laws, Book 1, in 2 The Works of
Plato 407–31 (B. Jowett trans., Random House 1937). In his Politics, Aristotle com-
pared the constitutions of various city-states. See Aristotle The Politics, Book II,
Chapters 9–12, in The Complete Works of Aristotle: The Revised Oxford
Translation 2014–19 (Jonathan Barnes ed., Princeton University Press 1984).
25. The ius civile applied only to Roman citizens. As the Roman Empire expanded to
include diverse peoples and territories, the ius gentium developed from the need for a
universal law. See Hug, The History of Comparative Law, 1030.
 introduction 7

settle disputes to which a noncitizen was a party.26 The eleventh- and twelfth-
century renaissance of legal scholarship evoked a new methodology in which the
medieval decretists culled, compared, and commented upon various and diverse
texts.27 Scattered instances of comparative law can be found in legal scholarship
during the next several centuries.28 For example, the Utopia of Thomas More, the
chancellor of England, who was trained in both civil and canon law, contains ele-
ments of comparative law.29 The great European codifications of the nineteenth

26. The praetor peregrinus relied on the ius gentium to settle cases between a citizen and a
foreigner or between foreigners subjected to different laws. By adapting the accepted Roman
law causes of action to foreign circumstances, the praetor responded to the circumstances of
diverse cultures. See Cicero, ad Att., VI, 1, 15 in Letters to Atticus, Volume II, in The Loeb
Classical Library 121 (D. R. Shackleton Bailey ed. and trans., Harvard University Press
1999). See also Herbert H. Jolowicz & B. Nicholas, Historical Introduction to the
Study of Roman Law 98 ff. (Cambridge University Press 1977); Barry Nicholas, An
Introduction to Roman Law 23 (3rd ed. Clarendon Press of Oxford University 1962);
Ladislas Örsy, S.J., Book I, General Norms, in CLSA-1985, 42–43.
27. See generally Harold Berman, Law and Revolution, the Formation of the
Western Legal Tradition 120–224 (Harvard University Press 1983).
28. For example, Francis Bacon proffered that the object of scholarly judgment, a
system of national law, cannot at the same time be the standard of judgment. He urged
lawyers to free themselves from the bonds of their own national systems in order to
conduct an objective evaluation. See Francis Bacon, De dignitate et augmentis scien-
tiarum, in 2 The Works of Francis Bacon 135 (James Spedding, Robert L. Ellis, &
Douglas D. Heath eds., Herd and Houghton 1869). Hugo Grotius compared various
systems of national law in his watershed work. See De iure belli ac pacis libri tres, in
quibus ius naturae gentium, item iuris publici praecipua explicantur, I, 1, xi, 1, at
631 (H. Milford ed., Clarendon Press 1925). Gottfried Wilhelm Leibniz proposed a
“Theatrum legale” which would compare the laws and customs of all peoples, times, and
places. See Gottfried Wilhelm Leibniz, Nova methodus discendae docendaeque
iuris prudentiae, in 3 Gottfried Wilhelm Leibniz, opera omnia, nunc prima col-
lecta, in classes distributa, praefationibus et indicibus exornata, studio Ludovici
Dutens 954 (Apud Fratres de Tournes 1768).
29. Thomas More, Utopia, Book I, 23 (Cambridge University Press 1940). More con-
sidered canon law to be a collection of both divine and human commands. Positive law
was no greater than its source, and could be dispensed or abrogated by the competent
authority for just reason. Divine law, however, such as the prohibition of adultery, could
not be dispensed from even by the pope. See Utopia, 8 The Yale Edition of the
Complete Works of Thomas More 598 (Yale University Press 1961). For a discussion of
More’s formal education and legal training, see William Roper, The Life of Sir Thomas
More, in Two Early Tudor Lives 197–202 (Richard S. Sylvester & Davis P. Harding eds.,
Yale University Press 1962); see also Richard Marius, Thomas More 14–33 (Vintage
Books 1985); Peter Ackroyd, The Life of Thomas More 53–64 (Nan A. Talese 1998);
R. H. Helmholz, Thomas More and the Canon Law, in Medieval Church law and the
Origins of the Western Legal Tradition, A tribute to Kenneth Pennington
375–88 (Wolfgang P. Müller & Mary E. Sommar eds., Catholic University Press 2006).
8 introduction

century occasioned renewed scholarly interest in legal comparisons.30 Since the

advent of the first scholarly publications and societies devoted to it in the nine-
teenth century, comparative law has emerged to constitute a distinct discipline
of legal scholarship.31
In their well-known work about comparative law, Konrad Zweigert and Hein
Kötz described the comparativist’s method as comparing “one’s own home
system” to a “foreign system” of law.32 This book focuses on canon law, which
may therefore be termed the so-called “home system.” As I have some familiarity
with Anglo-American legal theory, I hesitate to refer to it as “foreign.” At the
same time, I am aware that the scope of Anglo-American legal theory, not to
mention that of canon law, invites a certain humility. As Zweigert and Kötz
observed: “[i]t is too much to say that one must systematically master all this
knowledge and then keep it in mind before one is allowed to embark on any
kind of comparative work.”33 The phrase “Anglo-American legal theory,” has
broad parameters with a primary and secondary meaning in this comparative
study. Primarily, the phrase designates the jurisprudence of nineteenth- and

30. For example, perhaps the most influential code of the nineteenth century, the
French Civil Code of 1804, amalgamated the “droit écrit” of Southern France with the
more Germanic customs of the North. See P. Antoine Fenet, 1 Recueil complet de
travaux préparatoires du Code civil, 481 (Dépot, rue Saint-André-des-Arcs 1827). In
the area of private law, the General German Negotiable Instruments Law of 1848 and the
General German Commercial Code of 1861 were both based on comparative studies. See
Zeigert & Kötz, 50. In 1917, Pope Benedict XV promulgated the first modern codifica-
tion of canon law, after an extensive study of various local laws and customs. See Petrus
Card. Gasparri, Praefatio, Codex Iuris Canonici Pii X Pontificis Maximi iussu diges-
tus Benedicti Papae XV auctoritate promulgatus (Die 27 m. maii a. 1917), 9 AAS II,
xix–xxxviii (1917).
31. The year 1829 marked the appearance of the first periodical devoted to comparative
law: 1 Kritische Zeitschrift für Rechtswissenschaft und Gesetzgebung des
Auslandes, 1 (1829). In 1869 in Paris, the Société de Législation Comparée, and in 1898
in London, the English Society of Comparative Legislation, the first scholarly societies of
comparative law, were founded. A few examples of the first scholarly and systematic stud-
ies include: Emerico Amari, Critica di una sciencia delle legislationi comparate
(Tip. de R. I. de’ Sordo-Muti 1857); Leone Levi, International Law, With Materials
for a Code of International Law (Appleton Co. 1888); Edouard Lambert, Conception
général et définition de la science du droit comparé, Congrès international de droit comparé,
tenu à Paris du 31 juillet au 4 août 1900, reprinted in Rechtsvergleichung 30–51 (Konrad
Zweigert & Hans-Jürgen Puttfraken eds., Wissenschaftliche Buchgesellschaft 1978);
Roscoe Pound, The Influence of French Law in America, 3 Ill. L. Rev. 354 (1909). See also
Roscoe Pound, The Place of Comparative Law in the American Law School Curriculum, 8
Tul. L. Rev. 161 (1943); Edward D. Re, Comparative Law Courses in the Law School
Curriculum, 1 Am. J. Comp. L. 233 (1952); and Otto Kahn-Freund, Comparative Law as
an Academic Subject 1–31 (Clarendon Press of Oxford University 1965).
32. Zweigert & Kötz, Introduction to Comparative Law, 32–34.
33. Id. at 32.
 introduction 9

twentieth-century Anglo-American theorists such as John Austin, H. L. A. Hart,

Lon Fuller, John Finnis, Joseph Raz, and Ronald Dworkin. These theorists, of
course, do not speak in one voice. Austin’s pristine legal positivism set the stage
for Hart’s modified positivism and Fuller’s concerns about the separation of law
from morality. In response, Finnis, Raz, and Dworkin have each made different
contributions to the ongoing discussion. The phrase “Anglo-American legal
theory” also has a secondary meaning in this book. The phrase takes into account
the earlier theory of seventeenth- and eighteenth-century thinkers such as Thomas
Hobbes, John Locke, and David Hume. This classical liberal political theory served
as part of the philosophical foundation for the nineteenth- and twentieth-century
legal theorists just mentioned. This meaning has also carried into the liberal
political theory of such twentieth-century thinkers as John Rawls. The present
study does not attempt to present a comprehensive summary of Anglo-American
legal theory or the work of any particular theorist.
Rather, my choice of Anglo-American legal theory as the partner in this com-
parative study is due to the primary meaning of the phrase. These theorists have
engaged in a sustained and sophisticated discussion about three basic and related
questions: “What is law?”; “What is a system of law?”; and “What is the rule of
law?”. I am aware that Anglo-American legal theory is not a system of law that
governs some particular nation, jurisdiction, or entity. Not only do parameters of
Anglo-American legal theory transcend any particular system of law, but the
theory encompasses a number of different responses to the basic questions. For
example, in response to the first question (“What is law?”), the theory includes
the legal positivism of Hart and the natural law approach of Finnis. Although
legal positivists may arguably count as dominant, all of the twentieth-century
Anglo-American theorists are concerned in some respect with the second ques-
tion (“What is a system of law?”). In the words of Raz, “every law necessarily
belongs to a legal system (the English, or German, or Roman, or Canon Law, or
some other legal system),” and the comparativist is searching for a description
that “is general in that it claims to be true of all legal systems.”34 While I rely
heavily on Hart’s legal positivism in this comparative study, my reliance is not
intended as an endorsement. Rather, I present certain features of his theory
because I believe that it proves a helpful analytical tool. Specifically, I ask whether
canon law satisfies Hart’s description of law and the legal system.
The response to the third question (“What is the rule of law?”) is related to the
first two questions. The rule of law obviously depends on the existence of law
and a system of law as in their absence there could be no rule of law. Although
this book examines particular canonical provisions pertaining to clergy sexual
abuse, the ownership of church property, and the refusal of Holy Communion,

34. Joseph Raz, The Concept of a Legal System: An Introduction to the Theory
of Legal System 1 (Clarendon Press of Oxford University 1980).
10 introduction

the comparative aspect of the study transcends a mere consideration of particular

substantive and procedural laws. Describing “deep level comparative law,” Mark
Van Hoecke observes that “rules cannot be fully understood isolated from their
legal and non-legal context.”35 Comparative legal study juxtaposes the theories that
underpin diverse legal systems in order to enable a deeper understanding of the
respective systems of law.36 In speaking of “legal theory,” I do not mean to suggest
that law simply replicates some abstract, conceptual explanation. The making of
particular law is, of course, a more complex phenomenon than the mere applica-
tion of some theory. The deep level methodology suggests that an adequate under-
standing of canon law requires some consideration of its historical, philosophical,
and theological context. Canon law remains a religious system of law that claims a
strong metaphysical foundation. According to Marek Zirk-Sadowski, legal positiv-
ism, the dominant form of Anglo-American theory, “is almost inherently anti-
metaphysical.”37 I turn to the deeper level methodology to ask whether canon law’s
metaphysical and theological foundation assists in meeting the substantive require-
ments of the rule of law as it is understood in modern democratic government.

III. canon law and the rule of law

As a religious system of law, canon law guides the Catholic Church, but does it
represent the rule of law? In offering a preliminary response to this question,
permit me a few observations about the meaning of the rule of law. The rule of
law may be formulated in a variety of ways. In its most pristine version, the rule
of law means that those who exercise the power of governance do so through
laws. While the rule of law in its various meanings enjoys a long historical devel-
opment, the general principle is that “individuals should be governed by law
rather than by the arbitrary will of others.”38 Aristotle wrote: “He who bids the
law to rule seems to bid God and intelligence alone to rule, but he who bids that

35. Mark Van Hoecke, Deep Level Comparative Law, in Epistemology and Methodology
of Comparative Law 167 (Mark Van Hoecke ed., Hart Publishing 2004).
36. See, e.g., Charles Lefebvre, Equity in Canon Law, in Equity in the World’s Legal
Systems: A Comparative Study 93–109 (Ralph A. Newman ed., Établissements Émile
Bruylant 1973); Mary Ann Glendon, Abortion and Divorce in Western Law,
American Failures, European Challenges (Harvard University Press 1987); Javier
Martinez-Torron, Derecho angloamericano y derecho canónico, las raices
canónicas de la common law (Facultad de Derecho Universidad Compultense 1991).
37. Marek Zirk-Sadowski, Legal Epistemology and the Transformation of Legal Cultures, in
Epistemology and Methodology of Comparative Law 21 (Mark Van Hoecke ed., Hart
Publishing 2004).
38. Guri Ademi, Legal Imitations: Michael Oakshott and the Rule of Law, 1993 Wisconsin
L. Rev. 839, 844 (1993).
 introduction 11

man rule puts forth a beast as well; for that is the sort of thing desire is, and
spiritedness twists rulers even when they are the best of men.”39 In his History of
the English Law, Sir William Holdsworth observed that the rule of law “is derived
directly from the medieval theory that law of some kind—the law either of God
or man—rules the world.”40 F. A. Hayek offered a modern formulation that the
rule of law “means that the government in all its actions is bound by rules fixed
and announced beforehand—rules which make it possible to foresee with fair
certainty how the authority will use its coercive powers in given circumstances,
and to plan one’s individual affairs on the basis of this knowledge.”41 However,
conformity with the requirement of rule by law does not of itself guarantee justice.
As Joseph Raz has indicated, the most oppressive of governments may nonetheless
“excel in one respect: its conformity with the rule of law.”42
As an aspect of his 1958 debate with Lon Fuller, H. L. A. Hart disputed the claim
that Nazi law was not law. He rejected “the doctrine that the fundamental princi-
ples of humanitarian morality were part of the very concept of . . . legality and that
no positive enactment or statute . . . could be valid if it contravened basic principles
of morality.”43 He drew a distinction between “the bare fact that a rule may be said
to be a valid rule of law” and “the final moral question: ‘Ought this rule of law to be
obeyed?’”44 For Hart, the separation of law from morality protected morality by not
permitting morality to be supplanted by law.45 In his book, The Concept of Law, Hart
argued that a legal system is composed of primary and secondary rules.46 Primary
rules are those that require or prohibit certain actions such as the rule that prohib-
its murder. Secondary rules function to underpin the legal system and include
rules of recognition, change, and adjudication. These rules provide a test for iden-
tifying what counts as law, procedures by which rules can be changed, and autho-
rization of officials to adjudicate disputes over the interpretation of rules. In Hart’s
view, the secondary rules are characteristic of a society with a valid legal system as
opposed to the normative uncertainty, static character, and inefficiency of the cus-
tomary rules that are characteristic of a prelegal society.47

39. Aristotle, Politics, III, 1287a, 29–34.

40. Sir William Holdsworth, 10 History of the English Law 647 (Methuen 1938).
41. Friedrich A. Hayek, The Road to Serfdom 54 (G. Routledge & Sons 1944).
42. Joseph Raz, The Authority of Law: Essays on Law and Morality 211 (Clarendon
Press of Oxford University 2002).
43. H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 617
(1958).
44. Id. at 618.
45. Id.
46. See H. L. A. Hart, The Concept of Law 91–99 (Joseph Raz & Penelope Bullock
eds., 2nd ed. Clarendon Press of Oxford University 1994).
47. See id. at 54–56 and 86–88, which discusses the rules of a prelegal group or society.
12 introduction

Responding to Hart, Lon Fuller described the legislative and administrative

“monstrosity” of Nazi law. He contrasted his position that the German judges
should have declared, “This is not law,” with the position which he attributed to
Hart: “This is law but it is so evil we will refuse to apply it.”48 In his 1967 book,
The Morality of Law, Fuller stated that the attempt to create and maintain a system
of law may fail by not meeting eight procedural requirements. Laws must be
general and not ad hoc, publicized, prospective and not retroactive, clear, logical,
capable of obedience in practice, stable and not subject to too frequent change,
and administered in a way that is congruent with the rule as announced.49 Fuller
suggested that his requirements as part of due process of law constituted a
procedural natural law which served as the internal morality of law.50 Joseph Raz
would add to this list other requirements such as an independent judiciary, fair
hearings which are open to the public, review of elected officials, and limitations
on the police power of the state.51 Nonetheless, a law might satisfy all of Fuller’s
eight requirements, Raz’s additions, and due process in general, and remain a
substantively unjust law.
The German theorist, Jürgen Habermas, argues that the combination of proce-
dural legality with democratic government offers the best possibility of the substan-
tive law’s legitimacy.52 He contends that the rule of law “is only participation in the
practice of politically autonomous lawmaking” when it “does not destroy the rational
motives for obeying the law; it must remain possible for everyone to obey legal norm
on the basis of insight.”53 This conception of the rule of law fits with his overall theory
about the role of law in the development of democracy. As Habermas states it:
informal public opinion-formation generates “influence”; influence is trans-
formed into “communicative power” through the channels of political elec-
tions; and communicative power is again transformed into “administrative
power” through legislation. This influence, carried forward by communica-
tive power, gives law its legitimacy, and thereby provides the political power
of the state its binding force.54

48. Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L.
Rev. 630, 655 (1958).
49. See Lon L. Fuller, The Morality of Law 39 (Yale University Press 1967).
50. See id. at 96–106.
51. See Raz, The Authority of Law, Essays on Law and Morality, 216–17.
52. See Jürgen Habermas, Beyond Facts and Norms 189 (William Rehg trans., MIT
Press 1996).
53. Id. at 121.
54. Jürgen Habermas, Three Normative Models of Democracy, in 1 Constellation 8
(1994).
 introduction 13

Habermas rejects the idea of natural law as providing a basis for political and
social order in the modern democratic state.55 In his approach to the rule of law,
Habermas reinforces the description of state power and legal procedures with an
account of public discourse. However, one may ask whether even his sophisti-
cated theory can guarantee that the substantive law will be just.56 Is it possible
that law which meets the requirements for procedural legality might be adopted
in a democratic process that denies fundamental human rights or significantly
diminishes the common good, or that does both?
Canon law represents the rule of law in the pristine meaning of rule by laws.
As I shall discuss in the subsequent chapters of this book, canon law arguably
also fulfills the requirements of formal procedural legality identified by Anglo-
American theorists such as Hyack, Fuller, Hart, and Raz. As the church is not a
democracy, canon law does not meet the requirements for the rule of law as
conceptualized by Habermas. However, if Habermas is correct that the rule of
law depends on “rational motives” and “insight” as the basis for obedience to the
law, canon law may fulfill the requirements of the rule of law even though it does
not communicate democratic participation in the lawmaking process. Canon
law is grounded in natural law and theology. Both of these fonts may be described
as possessing a communicative power to the subject of the law about the rational
motives that underpin the law. The practical reason of natural law in conjunction
with the faith of the believer may communicate not only rational motive but lead
to the insight necessary to convince the believer of the validity of the canon law.
For example, an approach to unjust laws, such as those considered by Hart
and Fuller, might be informed by natural law and theology. In his treatment of
unjust law, John Finnis observes that the natural law tradition based upon
Thomas Aquinas does not embrace the slogan that “unjust laws are not laws.”57
Aquinas thought that unjust laws “do not bind in conscience, except perhaps in
order to avoid scandal or disturbance.”58 Finnis sees in the exceptions a “collat-
eral moral obligation” to safeguard the legal system as a whole, which must be
accounted for in the moral calculus about whether or not to obey an unjust law.59
Natural law thus serves as the measure of positive law, but does not automatically
relieve one of the obligation to conform to the rule of law. The practical reason
about just law is enhanced by theological considerations. Theological principles
about the inviolability of individual human dignity, the sacredness of life, and the

55. See id. at 104–06.

56. See Brian Z. Tamanaha, On The Rule of Law: History, Politics, Theory 101
(Cambridge University Press 2004).
57. John Finnis, Natural Law and Natural Rights 364 (Clarendon Press of Oxford
University 1980).
58. ST, 96, 4, corpus.
59. Finnis, Natural Law and Natural Rights, 364.
14 introduction

just distribution of resources reinforce conclusions about justice available on the

basis of practical reason. In his “Letter from a Birmingham Jail,” Martin Luther
King, Jr., appealed to the natural law tradition of Thomas Aquinas in order to
justify his peaceful disobedience of unjust racial laws.60 Although he was doubt-
ful about natural law, Dietrich Bonhoeffer’s death testifies to the theological basis
for resistance to the unjust Nazi regime.61 If fundamental substantive justice is
to be counted as a requirement of the rule of law, canon law’s adherence to prin-
ciples drawn from natural law and theology may satisfy the requirement.
At the same time, theological and pastoral issues might function to diminish
canon law’s adherence to the rule of law. In his study of English medieval canon
law, Robert E. Rodes argues that the pastoral element of canon law along with its
eschatological goals prevented it from fulfilling the requirements of the rule of
law. As Rodes puts it: “The problem in the system was not that it was administra-
tive, pastoral, and legal at once; it had to be. The problem was that it failed to
assign the respective aspects their proper places in a harmonious whole.”62 The
problem identified by Rodes is evident in the long historical development of
canon law. Antinomianism places the pastoral and theological elements above
the legal, while legalism permits the legal element to obscure the pastoral and
theological. Despite the manifestations of antinomianism and legalism, Stephan
Kuttner concluded that the medieval canon law represented a systemic harmony
between the “spiritual and temporal, the supernatural and the natural.”63
Contemporary canon law continues the attempt to incorporate the pastoral and
theological elements into a coherent system of law. The question of how success-
ful this attempt has proven is one of the issues explored in this book. As I shall
discuss in the chapters that follow, antinomianism and legalism continue to
present a problem for the rule of law in the life of the church.
Chapter 1 offers an overview of canon law as the “home system” in this com-
parative study. Through an exploration of the clergy sexual abuse crisis in the
United States, Chapters 2 and 3 discuss the failure of the rule of law in prevent-
ing injury to individuals and the common good. Chapter 3 suggests that antino-
mian and legalistic approaches to canon law contributed to the crisis. Chapter 4
considers the canonical consequences of the failure of the rule of law. In refer-

60. See Martin Luther King, Jr., I Had a Dream: Writings and Speeches that
Changed the World 89 (James Melvin ed., Harper Collins 1992). Dr. King explained:
“To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not
rooted in eternal law and natural law. Any law that uplifts human personality is just. Any
law that degrades human personality is unjust.” Id.
61. See Dietrich Bonhoeffer, Letter & Papers from Prison 11–12 (Eberhard
Bethge ed., Touchstone of Simon & Schuster 1997).
62. Robert E. Rodes, Jr., Ecclesiastical Administration in Medieval England,
The Anglo-Saxons to the Reformation 150 (Notre Dame University Press 1977).
63. Stephan Kuttner, Harmony from Dissonance: An Interpretation of
Medieval Canon Law 50 (The Archabbey Press 1960).
 introduction 15

ence to the ownership of church property, Chapters 4 and 5 examine the unity of
law and theology in the law of property. Chapter 4 compares the concept of prop-
erty in canon law with that of liberal political theory. In contrast to antinomian
and legalistic theories, Chapter 5 describes the correct canonical approach to the
ownership of parish property and church property in general. The chapter
focuses on the relationship between church property and the law of the secular
state and the problem of the secularization of Catholic institutions and their
property. Raising the indeterminacy claim in regard to canon law, Chapters 6
and 7 assess the arguments for and against the denial of Holy Communion to
Catholic public officials. These two chapters consider the interpretation of Canon
915 as an easy or hard case, and the chapters identify antinomian and legalistic
elements in the interpretation. Throughout this comparative study, I rely on
salient aspects of Anglo-American legal theory in order to gain critical insight
about canon law as the universal law of the Catholic Church. As the responses of
ecclesiastical authorities to each of the three specific issues—the sexual abuse
crisis, the ownership of church property, and the refusal of Holy Communion—
have displayed antinomian and legalistic approaches to canon law, Chapter 8
presents concluding observations about the impact of these approaches on the
question of the rule of law.
This page intentionally left blank
1. an overview of canon law

In Chapter 1, I offer an overview of canon law. The chapter starts by defining

what canon law is not. It then traces the historical development of canon law
from its origins in the early church to its flowering in the medieval period.
Beginning with the twentieth century codifications of canon law, the second part
of the chapter describes contemporary canon law. It discusses legislative, judicial,
and executive acts of governance. It also distinguishes universal and particular
law, as well as various other types of canon law and the related features of dispensa-
tion, exception, privilege, and canonical equity. I conclude the chapter with some
thoughts about the relationship between canon law and theology. The chapter is
not an exhaustive treatment of canon law. Rather, my intention is that the over-
view functions to provide an understanding of canon law as the “home system”
in this comparative study.

I . examples of the scriptural and historical origins of

canon law

During the nineteenth century, certain German theologians and legal scholars,
such as Rudolf Sohm, argued that the ancient church was a spiritual and
theological, rather than legal and juridical community.1 The argument painted a
picture of Jesus as a foe of the institutional church. It was an image of Jesus who
repudiated cultic worship, transformed religion into morality, and championed
the individual. The argument could be summarized by the famous dictum of
Alfred Loisy: “Jesus foretold the Kingdom, and it was the Church that came.”2 In
contrast to such liberal nineteenth-century thought, Stephan Kuttner observed
that the argument failed to appreciate “the sacramental and juridic nature of the

1. Rudolf Sohm, Outlines of Church History 34 (May Sinclair trans., Macmillan

1895). Cf. Adolf von Harnack, The Constitution and Law of the Church in the
First Two Centuries 210–11 (Williams & Norgate 1910).
2. Alfred Loisy, The Gospel and the Church 166 (Christopher Home trans.,
Charles Scribner’s Sons 1904). John P. Meier indicates that an accurate assessment of the
relation between Jesus and the law is a considerably more challenging task than the nine-
teenth-century liberal position might admit. The challenge, according to Meier, involves
dealing with two “historical problems,” that of the historical Jesus and that of the historical
Torah, which is “akin to aiming at two distinct moving targets.” John P. Meier, A
Marginal Jew: Rethinking the Historical Jesus, Volume IV, Law and Love 40 (Yale
University Press 2009).
18 canon law

primitive and ancient Church.”3 As Klaus Mörsdorf suggested, the necessity of

canon law derives from the fact of the Incarnation. The Son of God, the Eternal
Word, took on human flesh and entered into salvation history.4 Through the
Incarnation, the Son necessarily associated with institutional and legal forms.5
Mörsdorf and Kuttner rejected the notion that canon law is inherently opposed
to faith. Rather, they understood that canon law affords justice, order, stability,
and permanence in the human community of the church even as it facilitates the
supernatural goals of the church. The antinomian approach is an understand-
able, if misguided, response to a legalism that places canon law over and above
sacred scripture. A more balanced approach understands canon law as fulfilling
an auxiliary but nonetheless vital function in the life of the Church. As a
preliminary step towards the balanced approach, I situate canon law in the
proper context of the authority of sacred scripture and tradition. I then proffer
examples of the seeds of canon law in sacred scripture and the early church
which flowered in the medieval period.

A. Via Negativa
My description of canon law begins with a via negativa. First, canon law is not
sacred scripture. In his comparison of the Bible and the U.S. Constitution,
Jaroslav Pelikan noted that each “sacred text” is “not merely ancient and intel-
lectually interesting . . . but each of them is, for its own community, ‘normative’
and authoritative.”6 Although canon law carries a certain normativity and authority
in the Roman Catholic Church, it is not constitutive and foundational in the
sense that sacred scripture is to the church. Nor does canon law represent a
constitution in the sense that the federal constitution does for the United States.
Rather, canon law’s normativity is secondary and may never be inconsistent with
the first level authority of sacred scripture. In writing his letters, Saint Paul
claimed divine inspiration: “[W]e impart this in words not taught by human

3. Stephan Kuttner, Some Considerations on the Role of Secular Law and Institutions in
the History of Canon Law, Paper delivered at the Conference on Law and the Humanities
held by the American Council of Learned Societies, Dumbarton Oaks, April 12–13, 1950,
in Stephan Kuttner, Studies in the History of Medieval Canon Law 351, 356–57
(Variorum 1990). Kuttner observes that, while the medievals first developed a systematic
approach to canon law, the primitive and ancient church from its institution was both a
spiritual communion and corporate society with the existence of a sacramental and juris-
dictional law.
4. John 1:1.
5. See Myriam Wiljens, Theology and Canon Law, The Theories of Klaus
Mörsdorf and Eugenio Corecco 28-39 (University Press of America 1992). See also
Joseph Ratzinger, Milestones, Memoirs: 1927–1977, 49–50 (Rasmo Leiva-Merikakis
trans., Ignatius Press 1998).
6. Jaroslav Pelikan, Interpreting the Bible and the Constitution 9 (Yale
University Press 2004).
 an overview of canon law 19

wisdom but taught by the Spirit.”7 The church considers sacred scripture to
contain immutable divine revelation. I shall suggest that canon law acts as a
bridge between immutable theological truths and practical action.
Canon law does develop in several ways.8 One mode of development corre-
sponds to the development of Christian doctrine. For example, the great
Christological creeds pertaining to the fullness of Christ’s humanity and divinity
are not expressly defined in sacred scripture. Rather, the tradition developed on
the basis of sacred scripture at a variety of ecumenical councils during the first
several centuries of the church’s existence. The development of tradition has
continued throughout the history of the church.9 In the sixteenth century, the
Council of Trent expressed the correlation between sacred scripture and tradition
in this way: “[F]ollowing the example of the orthodox fathers, [the council]
receives and holds in veneration with an equal affection of piety and reverence
the books both of the Old and New Testament, since one God is the author of
both, and also the traditions themselves, those that pertain both to faith and to
morals, as having been dictated either by Christ’s own word of mouth or by the
Holy Spirit, and preserved in the Catholic Church by a continuous succession.”10
When it directly flows from sacred scripture and tradition, canon law itself forms
part of the tradition and claims its normativity. Another mode of development of
canon law is change through its merely positive character. While no provision
of canon law, ecumenical council, or papal definition may rescind the funda-
mental truths expressed in sacred scripture or tradition, canon law may be
changed in its merely positive character through the legislative authority of the
church. The U.S. Constitution may be amended through a legislative process
which is a specification of the way in which law is generally enacted in the
modern democratic state. Canon law has no such democratic legislative process
for changes to the universal law of the church. Later in this chapter, I discuss the
process for the modern codifications of canon law during the twentieth century.
Second, not only is canon law not sacred scripture, but it must also be
distinguished from other normative sources of Christian belief such as moral
theology. Just as it is not a summary of the Christian creed, canon law is not a
compilation of all the moral doctrine of the church. Nonetheless, it remains true

7. 1 Corinthians 2:13. Scriptural quotations through this book are taken from Holy
Bible, Revised Standard Version, Catholic Edition, prepared by the Catholic Biblical
Association of Great Britain (Oxford: Oxford University Press 1966).
8. For a discussion of the transcendent and historical in the development of canonical
equity, see John J. Coughlin, O.F.M., Canonical Equity, 30 Studia Canonica 403–35
(1996).
9. See John Henry Cardinal Newman, An Essay on the Development of
Doctrine 29–30 (6th ed. University of Notre Dame Press 2005).
10. Council of Trent (April 8, 1546), no. 783, in Heinrich Denzinger, The Sources
of Catholic Dogma 244 (Roy J. Deferrari trans., Loreto Publications 2001).
20 canon law

that in its long historical development canon law was often not distinguished
from moral teaching.11 Indeed, well into the twentieth century, it was not
uncommon for canon lawyers and moral theologians to share the same kind of
expertise and methodology. This is not surprising when one considers the fact
that canon law and moral theology both flow from sacred scripture and natural
law. With the promulgation of the twentieth-century codifications of canon law,
the distinction between the church’s moral teaching and law became more
apparent. While the modern codifications often provide penalties for actions
inconsistent with particular creeds and moral truths, the codifications were not
designed as a summary of the church’s doctrine. In a limited sense, the modern
codification of canon law may have reflected a desire for the autonomy of law
from other normative sources—an autonomy typical of the separation of law and
morality called for by the twentieth-century legal positivists. However, in direct
contrast to the separation of law and morality, canon law has remained faithful
to its foundations in sacred scripture and natural law.
In canon law, a distinction may be drawn between doctrinal and disciplinary
law. Doctrinal law contains some specific doctrinal point drawn directly from
sacred scripture, natural law, or tradition. It was a methodological option in the
design of the CIC-1983 and the CCEO to start major sections and titles of the
Codes with almost verbatim quotations of some doctrinal or pastoral provision
from one of the sixteen documents of Vatican II. When a canon does articulate a
doctrinal point, it is doctrinal law. For example, Canon 330, CIC-1983, quotes
Lumen Gentium, 22: “Just as be the decree of the Lord, Saint Peter and the rest of
the Apostles form one Apostolic College, so for a like reason the Roman Pontiff,
the successor to Peter, and the Bishops, the successors of the Apostles, are united
together in one.” In contrast, disciplinary law sets forth some practical norm of
action that explains and urges the spiritual good of the faithful. Book 4 of the
CIC-1983 contains many disciplinary laws that regulate the reception of the
sacraments, such as the canonical form of, and certain impediments to, the celebra-
tion of Holy Matrimony.12 Such disciplinary laws are necessary to the order of

11. The Catholic manuals regularly treated moral theology and canon law together.
See, e.g., Charles Laurent, The Busy Pastor’s Guide to a Resume of Canon Law and
Moral Theology (O. Dolphin 1924). See also John Mahoney, The Making of Moral
Theology viii and 224–58 (Clarendon Press of Oxford University 1987). Mahoney discusses
the emergence of moral theology as a distinct discipline in the sixteenth century and rela-
tion of law and moral theology in Roman Catholic thought.
12. In Western canon law, the spouses are the ministers of the sacrament of Holy
Matrimony. Canon 1108 of the CIC-1983 establishes the canonical form of the sacrament
being celebrated in the presence of a bishop, priest, or deacon along with two witnesses.
When there is a shortage of priest and deacons and with the vote of the Conference of
Bishops and approval of the Holy See, Canon 1112 permits the diocesan bishop to
delegate a layperson to assist at the sacrament in place of one in Holy Orders. The stipula-
tion that the canonical form is necessary for validity is a positive law which the church
 an overview of canon law 21

the ecclesial community and may be distinguished from doctrinal law that
expresses what the community believes. Although canon law must be distin-
guished from sacred scripture and natural law, these fundamental sources of the
church’s belief and practice constitute the foundations of canon law.

B. The Juridical Form of Community, Sacrament, and Mission in the New

Testament
My intention is not to provide an exhaustive account but rather to present a few
examples of the seeds of canon law in the early church. First, the continuity of
revelation in human history depends on an institutional form. The tradition of
revelation does not float in time of itself, but its continuity in time is inexorably
linked to the human community of the church. The kingdom preached by Jesus
breaks into human history not only in the Incarnation as the primary revelation
of God, but also in the community he gathers around himself. The original
communio is the ecclesia of the New Testament.13 The church is perfected in the
cenacle of the upper room at Pentecost where Peter and the other Apostles are
gathered in prayer with Mary, the mother of Jesus, the holy women, and the
brethren.14 Peter leads the Eleven in the selection of Matthias to replace Judas
Iscariot.15 The Holy Spirit descends upon them like the “rush of a mighty wind”
and “tongues of fire.”16 They are “filled with the Holy Spirit” who enables them
“to speak in other tongues” in order to proclaim to “every nation under heaven.”17
This Pentecostal gathering serves as a prototype for all subsequent ecclesial
reality. It is not the apostolic college alone but the entire ecclesial reality that
constitutes the form for the dynamic spread of the charism. Nonetheless, the
proclamation of the charism is entrusted in a special way to Peter and the other
Apostles. The apostolic tradition is public, not secret or private. Even before there
was a written word, there was an oral tradition. The revelation of the Son in
human history was tied to eyewitnesses, the Apostles, who continued preaching
the gospel.18 The oral tradition was recorded as sacred scripture. From the origi-
nal Pentecostal gathering, the Apostles discerned the need to choose successors

theoretically could alter. The history of marriage shows that the canonical form has
not always been required for a valid marriage. The same is true with regard to impedi-
ments to marriage. Certain impediments such as a prior valid marriage (Canon 1085) or
impotence (Canon 1084) are aspects of the natural law and not subject to fundamental
change bythe church. Other impediments to marriage such as affinity (Canon 1092) and
adoption (Canon 1094) are not strictly speaking part of the natural or divine law, and
therefore could be changed by the church.
13. Matthew 18:17; 1 Corinthians 1:2; Galatians 3:16, 26–29.
14. Acts 1:13–14.
15. Acts 1:15–26.
16. Acts 2:2–3.
17. Acts 2:4.
18. John 21:24; Acts 1:1–3.
22 canon law

who would function as the official witnesses passing on the tradition from age
to age.19 The inner meaning of Christ’s passion, death, and resurrection as
experienced at Pentecost is not separable from the outward ecclesial form of the
apostolic ministry. The church structure entailed from the beginning an inner
meaning, or intellectus, and an outward form.20
Second, certain structural and legal forms are associated with the sacramental
life of the pristine church. The neophyte must not only acknowledge that Jesus
is Lord, but must be baptized by the minister in the name of the Lord Jesus.21
Jesus also commanded the Apostles to celebrate the Eucharist in his memory.22
During the earliest phases of its development, the church understood more
clearly the nature of Christ’s mandate and set down formulae in response to it.
The institution narratives in Mark, Matthew, Luke, and First Corinthians are
essentially liturgical texts based on Jesus’ actions at the Last Supper as practiced
by the earliest Christian communities.23 From the beginning, the sacramental
life of the church has centered on the Eucharist, and the Eucharist has required
an established order so that it might constitute the true sacrament of unity. There
is a close association between the sacramental life and the social order of the

19. Acts 1:15–26; 1 Corinthians 11:23; 15:3; 2 Timothy 1:2.

20. See Hans Urs von Balthasar, A Theological Anthropology 162–63 (Sheed &
Ward 1967). Balthasar attributes the word “intellectus” to Bonaventure’s ecclesiology.
Bonaventure actually speaks of the “logica.” Applied to canon law, this would mean a
grace-filled harmony between the outward structure and its inner logica. It is this logica
that must inform the exercise of sacred power in the Christian community. From
this internal logica flows the law’s power to bind persons and communities, who are con-
stituents of the Mystery which is the Church. According to Bonaventure, the superabundant
love of the crucified Christ constitutes the source of the bond of charity that unites the
members of the mystical Body to each other and the Head, forming a unified, living
organism, the Church. See San Bonaventura, I Sent. d. 14, a. 2, q. 1, fund. 4, in 1
Doctoris Seraphici S. Bonaventurae opera omnia, edita studio et cura pp. Collegii
a S. Bonaventura 249 (Ex Typographia Collegii S. Bonaventurae 1882-1889), and
San Bonaventura Brevil. 3, 11, in 5 Doctoris Seraphici S. Bonaventurae opera
omnia, edita studio et cura pp. Collegii a S. Bonaventura 240 (Ex Typographia
Collegii S. Bonaventurae 1882-1889). See generally Peter D. Fehlner, The Role of
Charity in the Ecclesiology of St. Bonaventure (Miscellanea Francescana 1965). In
Bonaventure’s ecclesiology, “the life of charity lies at the core of the Church’s mystery,
that living reality is embodied, at least in a limited way, in the visible relations, structures,
offices, and sacraments of the historical community (church militant).” Zachary Hayes,
O.F.M., Bonaventure, Mystery of the Triune God, in The History of Franciscan Theology
102–03 (Kenan Osborne, O.F.M. ed., The Franciscan Institute 1994).
21. Acts 8:16; Acts 19:5; 1 Corinthians 1:13.
22. Luke 22:17–19; 1 Corinthians 11:26.
23. Mark 14:22–25; Matthew 26:26–29; Luke 22:18ff; 1 Corinthians 11–23. See Rudolf
Schnackenburg, The Gospel of Matthew 266–67 (Robert R. Burr trans., Eerdmans
2002); and Joseph M. Powers, S.J., Eucharistic Theology 52–58 (Herder 1967).
 an overview of canon law 23

church. The Acts of the Apostles states that the Twelve, not desirous of neglect-
ing prayer and preaching, selected seven assistants to assist with the distribution
of food to the needy.24 These “seven men of good repute, full of the Spirit and
of wisdom” corresponded to the college of seven elders (presbyterium) who exer-
cised administrative authority in the local Jewish communities of first century
Palestine.25 The Letter to the Philippians starts with recognition of the bishops
(episkopoi) and assistants (diakonoi).26 The Greek word episkopos designated an
important office holder who exercised supervisory authority or guardianship
over some group of persons or geographic area on behalf of the central governing
authority.27 Although these offices were yet to be clearly defined, the later pastoral
epistles annunciate the desirable qualities of bishops, presbyters (priests), and
deacons who preside over and serve in the sacramental community of faith.28
Third, the mission of the church is expressed in an outward legal form.
Matthew’s Gospel records that Jesus “charged” the Apostles, and he “sent” them
on mission as the Twelve.”29 In this sending the Apostles on mission for the first
time, Jesus relied on the rabbinical legal form of the schaliach, which delegated
one as an authoritative agent and official representative.30 According to the Gospel
of John, the risen Christ used a specific delegation to transmit his authority to
the Apostles: “As the Father sent me, even so I send you.”31 The Apostles chose
successors and also deacons for service in the church. The nature of this mission
requires election and the laying on of hands.32 The imposition of hands adopted
another institution of Jewish Law, the semikhah through which the rabbi as
teacher and judge installed his student to these same offices. It was an act that
conferred divine power in an unrepeatable authorization.33 The inner experience
of believing in Christ is not sufficient for preaching. It was also necessary to be

24. Acts 6:1–6.

25. Acts 6:3. See C. K. Barrett, A Critical and Exegetical Commentary on the
Acts of the Apostles, International Critical Commentary 312 (T & T Clark 1994).
26. Philippians 1:1. See Raymond E. Brown, Priest and Bishop, Biblical Reflections
21–39 (Paulist 1970).
27. See Henry G. Liddell & Robert Scott, A Greek-English Lexicon 657 (Oxford
University Press 1968); and A Greek-English Lexicon of the New Testament and
Other Early Christian Literature 379–80 (Frederick W. Danker ed., 3rd ed. University
of Chicago Press 2000).
28. 1 Timothy 3:1–13; Titus 1:5–9. See Brown, Priest and Bishop, Biblical
Reflections, 42.
29. Matthew 10:5.
30. See Dominique Cuss, Imperial Cult and Honorary Terms in the New
Testament 134–40 (University Press 1974).
31. John 20:21.
32. Acts 6:1–6.
33. See Rabbi J. Newman, Semikhah: A Study of Its Origins, History, and
Function in Rabbinic Literature 10, 117, 125, 127, and 130 (Manchester University
Press 1950).
24 canon law

commissioned by the risen Christ and filled with the Holy Spirit for the purpose
of preaching to the nations to the end of the world.34 Peter as head of the original
college enjoys a primacy, and the Petrine ministry is to confirm the unity of the
communio.35

C. Paul of Tarsus: Law and Spirit

The great missionary of early Christianity, Paul of Tarsus, has been described as
an “Oriental lawyer.”36 Paul belonged to a class of scholars for whom knowledge
of the Jewish Law was paramount. As a young man, Paul had trained under the
tutelage of the esteemed rabbinical scholar, Gamaliel. Following his conversion
to Christianity, Paul referred to the Jewish Law as a “curse,” and urged the early
Christians to live as justified in the spirit.37 In the Letter to the Romans, Paul
contrasted “the law of the spirit” with “the law of sin and death.”38 The Jewish
Law for Paul included the entire corpus of pentateuchal rules and regulations
which consisted of approximately 248 positive commands and 365 prohibitions.
Although various rabbinical schools calculated the exact number of precepts of
the Law differently, they agreed that the Law pronounced a curse on those who
did not keep it in its entirety. However, Paul called the Law a curse not so much
because it gave rise to legalism, but because he believed that it was a hopeless
business to seek justification by the Law. For Paul, the Law told people what to
do, but it imparted no power to do it. In contrast to the Law, Paul preached that
the Gospel imparts power to live a new life in Christ. In Paul’s theology, it is
through faith and not observance of the Law that one is justified. The “law of the
spirit” imparts the blessing which God promised to Abraham, his offspring, and
all nations. This “new law” removes the curse pronounced on the lawbreaker.
According to Paul, the curse is lifted and the new law established not through
strict observance of the old Law but through Christ, the condemned one, who
endured that Law in the manner of his passion and death.39
Nonetheless, much of Paul’s thought was expressed in legal language and
metaphors. Describing Saint Paul’s “career as an administrator,” the biblical
scholar John Knox observes:
Among the issues Paul might be called upon to handle were Jew-Gentile
relations, threats of schism, disorders in services of worship, irregularities
in the observance of the Lord’s Supper, a misunderstanding between two

34. Acts 10:42; 1:8.

35. Matthew 16:17–19.
36. J. Duncan M. Derrett, Law in the New Testament 396–403 (Darton, Longmann
& Todd 1970).
37. Galatians 3:13.
38. Romans 8:2.
39. See F. F. Bruce, The Curse of the Law, in Paul and Paulinism: Essays in Honour
of C. K. Barrett 27–35 (Alden Press 1982).
 an overview of canon law 25

members of the local church, unhealthy excitement about the end of the
world, litigation between Christians, occasional instances of serious immorality,
the question of whether a Christian could eat food that had been consecrated
by pagan rites, innumerable problems connected with marriage, the role of
women in the church, various false teachings, the administration of charity
by the churches, relations of Christians with their pagan neighbors and how
Christian slaves and masters should treat each other.40
Paul understood that the Christian community could not be free from such
issues and their legal aspects.
Perhaps, Paul’s training in and concern for the Law is nowhere more evident
than in his first letter to the Corinthians, one of the earliest New Testament
texts.41 Chapter 6 of First Corinthians combines antinomian and legal elements.42
The antinomian is evident in Paul’s concern with the imminent return of Christ
rendering all worldly concerns “trivial.”43 Verses 7–8 served to remind the
Corinthians that the ultimate court of appeal for Christian life is the teaching
embodied on the cross of Christ.44 Paul suggested that following Christ may
sometimes require that one suffer some wrong or injustice for the sake of
the community in the example of the Suffering Servant.45 The eschatological
perspective, however, did not prevent Paul from seeing the need for a juridic
order in the early church.46 He admonished the Christian community to avoid
lawsuits in the civil courts.47 When there is a dispute among you, Paul queried

40. See John Knox, Chapters in the Life of Paul 87 (Douglas R. A. Hare ed. Mercer
University Press 1987).
41. “Paul himself tells us that First Corinthians was written in the spring from Ephesus
(1 Corinthians 16:8), but the year is a matter of dispute. The suggested dates range from
ad 52 to 57 with the majority opting for a date close to the middle of that span.” The New
Jerome Biblical Commentary 799 (Raymond E. Brown, S.S., Joseph A. Fitzmyer, S.J., &
Roland E. Murphy, O.Carm. eds., Prentice Hall 1990).
42. For a general discussion of eschatology and ecclesiology in Pauline thought, see
François Amiot, Les Idées Maîtresses de Saint-Paul 151–258 (Les Éditions du Cerf
1959).
43. See F. W. Grosheide, Commentary on the First Epistle to the Corinthians, in The New
International Commentary of the New Testament 132–42 (Ned B. Stonehouse & F.
F. Bruce gen. eds., Eerdmans Publishing 1974).
44. “To have lawsuits at all with one another is defeat for you. Why not rather suffer
wrong? Why not rather be defrauded? But you yourselves wrong and defraud, and that
even your own brethren.” 1 Corinthians 6:7–8.
45. See Amiot, Les Idées, 209–13.
46. See Wilfred A. Knox, Saint Paul and the Church of Jerusalem 23–35
(University Press 1935).
47. “When one of you has a grievance against a brother, does he dare to go to the law
before the unrighteous instead of the saints? Do you not know that the saints will judge
the world? And if the world is to be judged by you, are you incompetent to try trivial cases?
Do you not know that we are to judge the angels? How much more, matters pertaining to
26 canon law

the Corinthian community, why does one member of the community become a
plaintiff and bring another Christian before the judgment of the civil magistrates?48
Consistent with the rabbinical teaching that it was unlawful to plead a case before
an idolatrous judge, Paul advocated the establishment of internal procedures to
settle disputes among the members of the community.49 Despite his admonition
about avoiding the Roman courts, Paul resorted to the secular law to protect
himself from his enemies. As a Roman citizen, Paul apparently utilized the
imperial law and elected arrest and house custody in Rome.50 Paul’s travel to
Rome served as the occasion of his second missionary journey, which proved
significant to the spread of Christianity particularly among the Gentiles. The
mystical missionary of the kingdom to come appears also to have been a man of
practical action, knowledgeable in the Jewish Law, and by borrowing from that
Law, intent on establishing a just legal order for the Christian community in the
here and now.

D. The Council at Jerusalem

Paul’s missionary activity resulted in the incorporation of many Gentile converts
into the heretofore Jewish-Christian community. The tremendous growth of the
early church was certain to raise legal issues.51 Chapter 15 of the Acts of the
Apostles discloses an example of the exercise of legislative power in the early

this life! If then you have such cases, why do you lay them before those who are least
esteemed by the church? I say this to your shame. Can it be that there is no man among
you wise enough to decide between members of the brotherhood, but brother goes to law
against brother, and that before unbelievers?” 1 Corinthians 6:1–6.
48. The “judgment seat,” or bema, was publicly located in the heart of the market place
where the Roman civil magistrates heard all types of petty grievances. See Acts 18:12–17.
For a general discussion of the role of magistrates and the exercise of executive power in
Roman law, see Barry Nicholas, An Introduction to Roman Law 19–28 (Clarendon
Press of Oxford University 1962).
49. See The Interpreter’s Bible 69 (George A. Buttricks gen. ed., Abingdon-
Cokesbury 1952).
50. See id.
51. Chapter 11 of the Acts of the Apostles recounts the origin of the controversy over
the propagation of the Gospel to the Gentiles. See generally F. F. Bruce, Commentary on the
Book of Acts, in The New International Commentary of the New Testament 298–316
(F. F. Bruce gen. ed., Eerdmans Publishing 1975); and F. F. Bruce, The Book of the
Acts, Revised Edition 219-231 (Eerdmans Publishing 1988). Up to this point the events
reported in Acts had concerned almost exclusively the Aramaic-speaking Jewish-
Christians. The disciples from Cyrene and Cyprus relied on their knowledge of the Greek
language, which enabled them to preach the gospel to Greek-speaking Gentile inhabitants
of Antioch which was at that time the third largest city in the Roman Empire. When the
church in Jerusalem learned that the Gospel had been preached in Antioch, they sent
Barnabas there to investigate. Approving of the new venture in Antioch, Barnabas joined
the missionary effort, and sought Paul to assist him with the work. See Johannes Munck,
 an overview of canon law 27

church in response to the new pluralism. A vigorous controversy ensued as to

whether the Gentiles were bound by the prescriptions of the Jewish Law, and in
particular the circumcision requirement. Paul and Barnabas traveled to Jerusalem
to present the issue to the Apostles. At the Council of Jerusalem, James, Paul,
Barnabas, and Peter all spoke in defense of Gentile freedom from the Law. The
weight of the apostolic authority resulted in the unanimous adoption by the
Council of a decree which resolved the conflict.52
Two separate statements of the same decree are contained in Chapter 15. In
both cases, the decree was introduced by a legal formula: “Therefore, my judgment,”
and “For it has seemed good to the Holy Spirit and to us.”53 The formula employed
in the second version, in fact, imitates that of the official decisions of the Roman
emperors.54 Following the legal introductory-formulae, the decree next contained
a prodesis. In James’s speech, it is stated: “that we should not trouble those of
the Gentiles who turn to God”;55 and in verse 28, it is stated: “to lay upon you no
greater burden than these necessary things.”56 The decree determined that the
Law did not have binding force for Gentile Christians.57
The third element of the decree was an apodesis. James urged that the Council
“should write to them to abstain from the pollutions of idols, and from unchastity
and from what is strangled and from blood.”58 Similarly, verse 29 required that
“you abstain from what has been sacrificed to idols and from blood and from
what is strangled and from unchastity.”59 The prohibitions reflected aspects
of both the moral law and cultic practice of first-century Judaism. It was a

The Acts of the Apostles, in 31 The Anchor Bible 105–08 (William F. Albright &
David N. Freedman eds., Doubleday 1967).
52. Knox, Saint Paul and the Church at Jerusalem, 86–87.
53. The first can be found in verses 19–20 in the speech of James. He begins with the
words: “διὸ έγὼ κρ ί νω . . .”; “Propter quod ego iudico . . .” Verses 28–29 contain the decree
as it is pronounced by the Council starting with the words: “´`εδοξεν γάρ τω ˛` πνευ´ µατι τω˛`
α
` γ ί ω
˛ κα`ιὴµι̃ ν. . .”; “Visum est enim Spiritui Sancto et nobis . . .” See F. J. Foakes-Jackson,
The Acts of the Apostles 140 (Hodder and Stoughton 1960).
54. See Ernst Haenchen, The Acts of the Apostles: A Commentary 453
(Westminster Press 1971).
55. Verse 19: “µὴ παρενοχλει̃ ν τοι̃ ς άπὸ τω̃ν έθνω̃ν έπιστρέϕουσιν έπ`ι τὸν θε´ον . . .”;
“non inquietari eos qui ex gentibus convertuntur ad Deum . . .”
56. Verse 28: “µηδὲν πλέον έπιτ ίθεσθαι ὺµι̃ ν βάρος πλη` ν τούτων τω̃ν έπάναγκες”;
“nihil ultra imponere vobis oneris quam haec necessario . . .”
57. The decree does not determine, nor did the Council consider, the question of the
binding force of the Law on Judaic Christians. 7 New Catholic Encyclopedia 889–90,
s.v. “Council of Jerusalem” by N. M. Flanagan.
58. Verse 20: “άλλὰ έπιστει̃ λαι αυτο
´ ι̃ς του̃ άπέχεσθαι τω̃ν άλισγηµ άτων τω̃ν ε`ιδώλων
κα`ι τη̃ς πορνείας και` του̃ πνικτου̃ και` του̃ α`ὶµατος.” “Scribere ad eos ut abstineant se a
contaminationibus simulacrorum et fornicatione et suffocato et sanguine.”
59. Verse 29: “άπ έχεσθαι ε ίδωλοθυτω´ ν κα`ι α`ὶµατος κα`ι πνικτω̃ν κα`ι? πορνείας . . .”;
“abstinere ab idolothytis et sanguine et suffocatis et fornicatione . . .”
28 canon law

fundamental moral principle of Judaism that the sins of idolatry, murder, and
fornication were intrinsically opposed to the law of God.60 The prescriptions in
the apodesis corresponded to this principle with the exception that the prohibition
against murder was not included presumably because the Apostles did not think
it a problem for the Gentile Christians at Antioch. The apodesis then was
intended to balance the main point of the decree, which exempted the Gentiles
from observance of the Law, by affirming the divine moral law. Moreover, Jewish
Christians would have been offended by the partaking of food offered to idols
or any other practice associated with the pagan cults. The decree of the Council
can be said to represent the establishment of a general law intended to facilitate
communal life between the new Gentile converts and the Jewish Christians.
The scriptural evidence suggests that early Christianity was far from inherently
antinomian. To the contrary, the numerous examples culled from the New
Testament indicate that the primitive Christian communities adopted specific
norms and forms drawn from Jewish and Roman law in order to address pastoral
needs. Consistent with the New Testament, the church of the first several
centuries often relied on extra-ecclesial legal forms to fashion the order of the
ecclesiastical community. Again, my method in this general overview is not to
present a complete account of canon law’s historical development.61 Rather, I
shall present two examples of the development. The first example consists of
evidence that the Patristic church in Northern Africa sometimes adopted Roman
legal concepts as part of the order ecclesiastical life. The second example
discusses the emergence of canon law as a distinct science by the medieval
canonists.

E. The Patristic Church of Northern Africa

A prominent figure in the Carthaginian Church was the cultivated Roman lawyer
Tertullian (ca. 160–220).62 After his conversion to Christianity, Tertullian devoted

60. Foakes-Jackson, The Acts of the Apostles, 140.

61. For some relatively recent histories of canon law, see James A. Brundage, Medieval
Canon Law (The Medieval World) (Longman 1995); Ennino Cortese, Il diritto
nella storia medievale, 1: L’Alto medioevo, 2: Il basso medioevo (Il Cingo Galileo
Galilei 1995); Peter Erdö, Storia della scienza del diritto canonico: Una intro-
duzione (Editrice Pontificia Università Gregoriana 2000); Brian E. Ferme, Introduzione
alla storia del diritto canonico (Pontificia Università Lateranense 1998); Jean
Gaudemet, Sources du droit de l’église en occident du IIe au VIIe siècle. (Les
Editions du Cerf 1985); Jean Gaudemet, Sources du droit de l’église en occident du
VIIIe au XXe siècle: Repères canoniques, sources occidentales (Les Editions du Cerf
1993); and Constant Van de Wiel, History of Canon Law (Peters Press 1991).
62. See Hubert Jedin & John Dolan, 1 History of the Church 248–52 (Burns &
Oates 1980) [Jedin]. See also Jules Lebreton & Jacques Zeiller, 2 The History of the
Primitive Church 214–15, n. 165 (2nd ed. trans. from the French, MacMillan 1949)
[Lebreton].
 an overview of canon law 29

all his considerable legal knowledge and skills to upholding Christianity against
its pagan foes. He pleaded with the Roman proconsul attempting to mitigate
cruelties against Christianity.63 Adopting the substance and terminology of Roman
law, Tertullian translated the Greek word mysterion with the Latin sacramentum,
an accepted term in Roman law that carried multiple meanings. In ancient
Roman law, one meaning of sacramentum was the sum which the parties to a
lawsuit deposited in a sacred place pending the outcome of the suit. It could also
mean an oath of allegiance, a solemn obligation, or the civil lawsuit and its
process.64 Borrowing from his legal knowledge, Tertullian introduced the notion
of a sacrament into church life. He thus bequeathed a seminal legal concept that
would shape the church’s approach to the sacred.
Toward the middle of the third century, the church at Carthage produced an
outstanding priest and bishop, Coecilius Cyprianus (d. 258). Like Tertullian prior
to conversion, Cyprian had enjoyed renown as a successful lawyer and prominent
member of Carthaginian society. Following Cyprian’s election as Bishop of
Carthage in the year 249 ad, the Roman Emperor Decius initiated a vicious per-
secution of the church during which numerous Christians lapsed into pagan
practices. When the Decian persecution subsided, many of the lapsed wished to
return to the church. Cyprian confronted the “lapsed controversy,” with a
response that integrated the theology of forgiveness with his legal expertise.65
Responding to certain priests and deacons who requested some policy regarding
the reception of the lapsed back into communion, Cyprian issued a letter which
mandated that the lapsed perform a substantial period of penance. Cyprian’s
letter further provided that subsequent to the penance, the lapsed were entitled
to obtain a certificate from a “confessor” indicating that they were now capable of
being received back into full communion. The letter also permitted an exception
to the certificate requirement in the case of danger of death where the imposition
of a long period of penance might preclude the possibility of the lapsed Christian’s
return.66 Five members of the presbyterate, who had opposed Cyprian’s election

63. See Louis Duchesne, 1 Early History of the Christian Church from Its
Founding to the End of the Fifth Century 286–87 (John Murray 1947) [Duchesne];
Jedin, I, 219.
64. Lewis & Short, A Latin Dictionary 1611–12, s.v. “sacramentum” (Oxford
University Press 1987).
65. In the year 250, the Roman Emperor Decius issued a decree requiring all citizens
to manifest their loyalty by burning incense in front of temple images of the Roman dei-
ties. Many Christians refused to perform the idolatrous action and as a result went to
martyrdom; many others, however, including two bishops acquiesced to the imperial
demand. Although Saint Cyprian desired to wear the crown of martyrdom, the presbyter-
ate of Carthage so highly valued his abilities that he was persuaded to go into hiding. In
the midst of the period of fierce persecution, Saint Cyprian and other faithful Christians
regarded defectors as apostates. See Duchesne, I, 383; Jedin, I, 222–26.
66. See Cyprian of Carthage, Epistolae, 5, 6, 7, 10–19; 4 PL 235–46, 259–81.
30 canon law

as bishop, adopted a lax policy of readmission. The presbyters received the lapsed
back into full communion, if the lapsed could produce a confessor’s certificate,
even when no prior penance had been undertaken.67 The dispute led Cyprian
to appeal to a higher authority for affirmation of the administrative practice
established by his decree. Upon appeal to the Provincial Council, Cyprian’s
decree was affirmed, and ultimately, it received the approbation of Pope
Cornelius, Bishop of Rome.68
Another convert to Christianity who had been trained in rhetoric and law was
Augustine, Bishop of Hippo (354–430). Until the reign of Constantine and the
establishment of Christianity as the official state religion in 318 ad, the decision
of an ecclesiastical judge was binding only in conscience. It would be upheld by
the public authorities, if at all, solely by prior stipulation of the parties. In the
wake of the Constantinian establishment, the role of ecclesiastical judges
changed in two dramatic ways. First, their jurisdiction was no longer limited to
disputes between fellow Christians; now any party, believer or not, could bring a
cause of action before an ecclesiastical court. Second, a successful litigant was
able to obtain state enforcement of the ecclesiastical judgment.69 In the words of
one historian: “the State admitted that the episcopal procedure was simpler,
more honest, and less costly than that of its own judges, offered to disputants
special advantages, and it had no hesitation in securing these for them.”70 Shortly
after Augustine’s election as bishop in 395 ad, Hippo became a Christian city,
and Augustine assumed a vital role as the episcopal administrator of justice.71
Because he was known to offer a speedy and just settlement in cases, Augustine
frequently functioned as a judge of both judicial and administrative controversies.
He was regularly involved in activities such as reconciling disputes between
landlords and tenants,72 and visiting jails where his authority was recognized to
protect criminals from torture and unjust execution.73 Devoting long hours to his
judicial and administrative cases, Augustine was often required to be in his court
from early morning until late afternoon.74 Like Tertullian and Cyprian, Augustine
put his legal knowledge to good use in governing the local church in Northern
Africa.75

67. See Duchesne, I, 293; Jedin, I, 332–33.

68. See Cyprian of Carthage, Epistolae, 59–61; 4 PL 369–74.
69. See Duchesne, II, 525; Jedin, II, 5–6.
70. See Duchesne, II, 525.
71. For a discussion of the role of Augustine as “administrator” and “arbiter,” see
Peter Brown, Augustine of Hippo 195–97 (University of California Press 1969).
72. See Augustine of Hippo, Epistola 247; 33 PL 1062–64.
73. See Possidius, Vita S. Augustini Episcopi, 19; 32 PL 50.
74. See id.
75. Like Saint Cyprian, the Bishop of Hippo also turned to the authority of Rome when
confronted with a severe crisis in the local church. Learning that a Synod of Eastern
Bishops might approve the ideas of Pelagius, Saint Augustine, along with several other
 an overview of canon law 31

F. The Medieval Canonists

Although the legal form is evident from the very origins of the church, it would
be overstating the issue to suggest that canon law existed in the sense of a set of
complete and coherent principles of law in the early church. Not until the third
quarter of the eleventh century did canon law emerge as a distinct juridical
science. This medieval development permitted the use of critical scholarly
methods in the formation of church law. The rediscovery of the sixth-century
legal writings compiled under the Roman Emperor Justinian afforded medieval
canonists direct acquaintance with the classical Roman jurists.76 The Justinian
manuscript consisted of four parts, the most important of which was the Digest,
a vast collection of the opinions of Roman jurists on a diverse array of legal matters
including, inter alia, property, wills, torts, contracts, criminal law, and citizenship.77
The Digest, together with the other three parts—the Code, the Novels, and the
Institutes—began to be called the Corpus Iuris Civilis.78 At the new law schools
located in Bologna, Paris, and Oxford, teachers would read the texts of the Digest
and explain them line by line.79 These explanations or “glosses” were copied by
students between lines of the text, and they often spilled over into the margins.
Eventually, the written glosses, commentaries, and summae began to take on
an authority of their own. Although the classical Roman law was no longer the
positive law of any state or polity, it exerted a significant influence on the devel-
opment of the newly emerging system of canon law. The new system of canon
law, however, did not depend primarily on the glossators of the Roman law.
During the first half of the twelfth century, a jurist, jurists, or school thereof
to be identified as Gratian, composed the Concordance of Discordant Canons.80

African bishops, appealed for support to the See of Peter. Pope Innocent responded by
condemning the Pelagian heresies which held that human nature was not fundamentally
flawed by original sin and that salvation was to be earned by human effort alone.
Thus, Augustine, like Cyprian, recognized that the Bishop of Rome constituted the final
authority in the church. See Henry Chadwick, The Early Church 230, 239–40 (Penguin
Books 1967).
76. See Harold J. Berman, Law and Revolution, The Formation of the Western
Legal Tradition 204 (Harvard University Press 1983).
77. The Digest had disappeared in the West. See Nicholas, An Introduction to
Roman Law, 40.
78. Corpus Iuris Civilis (Paul Krueger, Theodor Mommsen, Rudolf Schoell, &
Wilhelm Kroll eds., 1954–1959).
79. See Hastings Rashdall, 1 The Universities of Europe in the Middle Ages
87–267 (Oxford University Press 1936). See also James A. Brundage, The Medieval
Origins of the Legal Profession, Canonists, Civilians, and Courts 75–125
(University of Chicago Press 2008).
80. Concordia Discordantium Canonum. Decretum Magistri Gratiani, in 1
Corpus Iuris Canonici (Aemilius Friedberg ed., Editio Lipsiensis Secunda, Akademische
Druck-U. Verlagsanstalt 1959). Tradition holds that Gratian was a Camaldolese monk,
who was born in Chaise and resided in the monastery of SS. Felix and Nabor. Although
32 canon law

This work, also known as Gratian’s Decretum, built on the collections of earlier
decretalists particularly those of Burchard, Bishop of Worms (1012),81 and Ivo,
Bishop of Chartres (1095).82 Like his predecessors, Gratian culled scriptural texts,
canons of ecumenical and local councils, decrees of the popes, rules contained
in various penitentials, the rediscovered Roman law, and virtually any other
source that pertained to some aspect of ecclesiastical law. He collected 3800
canonical texts which he analyzed in the light of patristic, conciliar, and papal
authorities, reconciling the contradictions or indicating those which he found
to be irreconcilable, offering generalizations and sometimes harmonizing the
generalizations.83
Gratian’s work exemplified the new canonical methodology.84 Borrowing
from secular and theological sources, he distinguished between divine, natural,
and positive law. He systematically explored the legal implications of these
distinctions, and arranged the various sources of law in hierarchical order.85
According to Gratian, divine law is the will of God reflected in revelation,
especially the sacred scripture. Natural law also reflects the divine will, but in
distinction to revelation, it can be discerned through the right use of human
reason. Positive law is manmade law which must always be in harmony with

the details of his life are uncertain, a biographical sketch of Gratian appears in Stephan
Kuttner, The Father of the Science of Canon Law, 1 The Jurist 2–19 (1941). More recent
scholarship has called Gratian’s identity into question. Anders Winroth argues that there
were two different version of the Decretum authored by two different jurists. The first
“recension” of the Decretum dates to sometime after 1139 while the second recension
dates to 1150 at the latest. The second recension includes extracts from the Corpus Juris
Civilis not included in the first recension which does not evidence great familiarity with
the Roman law. See Anders Winroth, The Making of Gratian’s Decretum (Cambridge
University Press 2000).
81. Burchard made one of the earliest attempts to compile all the laws of the church
into a single book. He arranged his vast collection not chronologically but according to
various subjects such as the sacraments, crimes, spiritual and corporal works of mercy,
and the contemplation derived from ascetic life. See Burchard of Worms, Decretorum;
140 PL 539–1058.
82. Like Burchard, Ivo compiled a vast collection of laws with commentary in order to
unite canon law “into one body.” Ivo, Bishop of Chartes, Epistola XXXV; 162 PL 46–47. An
analysis of the canonists and theologians upon whom Gratian relied is provided in
Stanley Chodorow, Christian Political Theory and Church Politics in the Mid-
Twelfth Century: The Ecclesiology of Gratian’s Decretum 2, n. 3 (University of
California Press 1972).
83. See Berman, Law and Revolution, 143–48.
84. For a study of the originality of Gratian’s method in dealing with the sources of law
and its connection to scholasticism, see Jean Gaudemet, La doctrine des sources du droit
dans le Decret de Gratien, 1 Revue de droit canonique 6 (1951).
85. See D. IX, c. 1.
 an overview of canon law 33

divine and natural law.86 Custom must yield both to natural law and to positive
law.87 On the basis of these distinctions, Gratian differentiated between immu-
table principles of eternal validity and elements of law which had been suggested
by the particular circumstances of time, place, and persons.88
The relation between medieval canon law and Roman law sheds further light
on the methodology of the medieval canonists.89 First, while the Corpus Iuris
Canonici was to some extent patterned on the Corpus Iuris Civilis, the former
differed from the latter in large part because it embraced the new scholastic
methodology.90 The schoolmen of the medieval universities, whether theologians,
philosophers, or canonists, shared the fides quaerens intellectum.91 United in the
commitment to enhance the faith, the medieval thinkers sought to achieve a
coherent system of general principles, concepts, and rules through the use of
inductive and deductive reasoning.92 In contrast, the Roman jurists, in the words
of one scholar, had been primarily concerned with “the consistent and orderly
treatment of individual cases . . . [and] [t]heir whole impulse was towards
economy, not of language, but of ideas.”93 The glosses of the new centers of legal
study of the eleventh and twelfth centuries formed a complex system of abstract
concepts which the medieval canonists considered to be implicit in the narrow
rules and settlements of particular cases offered by the classical Roman jurists.94

86. See id. Divine law may be either natural or positive. Thomas Aquinas held that
human positive law is derived from divine or natural law in two ways: first, as a deduction
from general principles, and second, through determinatio. Aquinas compared the process
of determinatio to that of an architect building a house. The architect has a general idea of
the house, and its particular specification could be reasonably built in a variety of different
ways. See ST I–II, 95, 2, corpus; 99, 3, ad 2; 104, 1, corpus.
87. See D. XI, cc. 1–4.
88. See D. IX, dicta post c. 9.
89. See generally Berman, Law and Revolution, 120–64; Albert-M. Gauthier, O.P., On the
Use of Roman Law in Canon Law, in Unico Ecclesiae Servitio: Canonical Studies
Presented to Germain Lesage, O.M.I., on the Occasion of His 75th Birthday and
of the 50th Anniversary of His Presbyteral Ordination 53–67 (Faculty of Canon
Law, St. Paul University 1991). Cf. Robert E. Rodes, Jr., Ecclesiastical Administration
in Medieval England: The Anglo-Saxons to the Reformation 66 (University of
Notre Dame Press 1977), where Rodes argues that the method and substance of the new
canon law was appropriated directly or indirectly from the Roman jurists.
90. See Charles P. Sherman, A Brief History of Medieval Roman Canon Law, 39 Canadian
Law Times 638 (1919).
91. See generally David Knowles, O.S.B., The Evolution of Medieval Thought
153–84 (Helicon Press 1962).
92. See Stephan Kuttner, Harmony from Dissonance: An Interpretation of
Medieval Canon Law 15–16, passim (Archabbey Press 1960).
93. John P. Dawson, The Oracles of Law 114 (University of Michigan Press 1968).
94. See Hermann Kantorowicz, The Quaestiones Disputatae of the Glossators, 16
Tijdschrift voor Rechtsgeschiednis/Revue d’histoire du droit 5 (1939).
34 canon law

The new method, for example, constructed a theory of contract law out of the
particular Roman cases and rules that concerned contracts; it elaborated doctrines
of justification for the use of force; and, it established the legal foundations for
the necessity of private property. Consistent with the scholastic methodology,
the medieval jurists would attempt to transform the classical Roman law into a
comprehensive legal system.95
Second, Roman law was considered by its practitioners and adherents to be
fixed, immutable, and finished; classical jurists did not recognize custom as a
source of law, and even when it was recognized as such by Justinian, it played
only a minor role in practice.96 “The primary task of the Roman jurists as they
conceived it was to provide solutions for cases that had arisen or might arise,
testing and revising their central ideas by observing their effects on particular
cases.”97 Canon law, instead, had the characteristic of organic development.
Although canonists shared the classicists’ deep respect for tradition, they
continually attempted to incorporate into the juridic structure of the law the
ecclesiological perspective of the church as mystical communion. Moreover, the
canonists’ task was necessarily an ongoing one as it was open to the dynamic
action of divine grace in human history. The ability of the medieval canonists to
assimilate both immutable principles and history into the corpus of law became
the foundation of the modern Western legal tradition.98
The Corpus Iuris Canonici was established officially in 1580 by Pope Gregory
XIII, as consisting of the following decretals: (1) Gratian’s Decretum (c. 1140), (2)
Pope Gregory IX’s Decretales (1234), (3) Pope Boniface VIII’s Liber Sextus
Decretalium (1298), (4) Pope Clement V’s Clementinae (1305–1314), and (5) those
decretals issued by the Council of Vienne (1314), and transmitted to the universities
by Pope John XXII in 1317. In addition, although not an official part of the text,
John XXII’s Collectio Viginti Extravagantium and the Extravagantes Communes
(1316–1364) are usually considered to be part of the Corpus Iuris Canonici. In his
treatment of the medieval canon law, Frederic W. Maitland described each of the
decretals of Gregory IX, Boniface VIII, and John XXII as a “statute book deriving
its force from the pope who published it, and who being pope was competent to
ordain binding statutes for the catholic church and every part thereof . . .”99

95. See Gabriel Le Bras, Canon Law, in The Legacy of the Middle Ages 325–26
(C. G. Crump & E. F. Jacob eds., Oxford University Press 1926); Carl J. Friedrich,
Transcendent Justice: The Religious Dimension of Constitutionalism 1–26 (Duke
University Press 1964); Berman, Law and Revolution, 199–224.
96. See Herbert F. Jolowicz, Roman Foundations of Modern Law 21 (Oxford
University Press 1957).
97. Dawson, The Oracles of Law, 117.
98. See Berman, Law and Revolution, 204–05.
99. Frederick W. Maitland, Roman Canon Law in the Church of England 3
(Burt Franklin 1968).
 an overview of canon law 35

However, the canons of the decretals include more than statutory law. They are
often papal decisions given in particular cases which were brought on appeal to
the pope or papal responses to questions posed by bishops.

II . contemporary canon law and the rule of law

Until the twentieth century, the foundational body of canon law remained the
medieval Corpus Iuris Canonici, a vast collection of canonical and theological
materials that, even in the 1582 edition approved by Pope Gregory XIII, could
hardly have been said to constitute a coherent unitary codification of law for
the universal church. The modern form of canon law developed during the
twentieth century. A twentieth-century commentator, Amleto Cardinal Cicognani,
described canon law as “the body of laws made by the lawful ecclesiastical authority
for the government of the Church.”100 Cicognani distinguished between the
“strict sense” of canon law as the law enacted by the pope for the universal church
and the “wide sense” as designating “laws which Bishops and other inferior legisla-
tors are empowered to make for the government of their own territory.”101

A. Twentieth-Century Codifications
The nineteenth- and early part of the twentieth-century law of the European
nation-states has been termed “the age of codification.”102 The modern development
of canon law reflected the codification movement. On March 4, 1904, Pope Pius X
announced the creation of a commission of cardinals to design one authoritative
collection of canon law for the Latin Church. The monumental task of producing
the first modern codification of canon law took thirteen years to complete. The
drafting process included a series of consultations with bishops and religious
superiors throughout the world as well as a method of examining the responses
from the consultation and synthesizing them with the relevant provisions of the
then extant ancient, medieval, and modern canon law. Cardinal Pietro Gasparri
accomplished the lion’s share of this prodigious work. The first modern codifica-
tion of canon law was promulgated by the successor to Pius X, Pope Benedict
XV, on Pentecost Sunday, May 27, 1917, and went into effect the following
Pentecost, May 19, 1918. The so-called Pio-Benedictine Code consisted of 2414
canons that were divided into five books: General Norms, Persons, Things,
Procedures, and Penalties. Consistent with the wider developments in approaches

100. Amleto Giovani Cicognani, Canon Law 43 (2nd ed. rev. Newman Bookshop 1934).
101. Id.
102. Manlio Bellomo, The Common Legal Past of Europe, 1 (Lydia G. Cochrane
trans., Catholic University Press 1995), which traces the emergence and decline of the
codification movement in European law.
36 canon law

to legal systems at the start of the twentieth century, the CIC-1917 represented a
central, coherent, and clear system of law for the Latin Church.
As with any system of codified law, the CIC-1917 required periodic revision.
Pope Benedict established the Pontifical Commission for the Interpretation of
the Code of Canon Law to incorporate revisions, modifications, abrogations,
deletions, and additions to the CIC-1917. Canon law evolves as it attempts
to respond to concrete circumstances not contemplated or provided for by the
legislative authority in the original codification. In the decades following the
promulgation of the CIC-1917, new statutes along with interpretations and
clarifications of the existing statutes grew so numerous that eventually the
printed volume in which they appeared was more lengthy than the original 1917
statute. In 1932, for example, the Congregation for the Sacraments issued the
Instruction Provida mater, which revised regulations on the annulment of
marriage.103 On February 2, 1947, Pope Pius XII established new law for the
regulation of secular institutes.104 By the midpoint of the twentieth century,
canon law was once again developing into a somewhat confusing and unwieldy
body of law. Not only changes in the law itself, but also new theological and
pastoral insights called for a revised code.105
On January 25, 1959, at the Basilica of Saint Paul Outside the Walls, Pope
John XXIII announced his intention to convoke an Ecumenical Council. At
the same moment that he proposed Vatican II, the pontiff also called for the
necessary revision of the Code of Canon Law. From the outset, the revision of the
canon law was thus linked to the ecclesial reform set in motion by the Ecumenical
Council. Although Pope John XXIII inaugurated the process when he established
the Pontifical Commission for the Revision of the Code of Canon Law after the
first session of Vatican II, the task of revision was delayed until the completion
of the Ecumenical Council. A few days prior to the formal close of the Council in
November 1965, Pope Paul VI appointed seventy consultors to assist the cardinal
members of the Pontifical Commission. Pope Paul VI insisted that the revised
Code of Canon Law would “accommodate canon law to the new way of thinking of
Vatican II.”106 This new way of thinking concerned the nature and end of canon
law. For Pope Paul VI, the nature of canon law was “to express more clearly the

103. See Sacra Congregatio De Disciplina Sacramentorum, Instructio, Provida Mater

(Die 1 mensis iullii anno 1932), 28 AAS 313–72 (1936), although the Instruction is dated
July 1, 1932, official publication in AAS occurred on August 15, 1936.
104. See Pius Pp. XII, Constitutio Apostolica, Provida Mater Ecclesia (Die 2 mensis
febraurii anno 1947), 39 AAS 114–24 (1947).
105. See Paul Winniger, A Pastoral Canon Law, in 48 The Future of Canon Law,
Concilium 51–65 (Paulist Press 1969).
106. Paulus Pp. VI, Ad E.mos Patres Cardinales et ad Consultores Pontificii Consilii Codici
Iurs Canonici recognoscendo (Die 20 mensis novembris anno 1965), 57 AAS 985–89 (1965)
(“scilicet accommodari debet novo mentis habitui, Concillii Oecumenici Vaticani Secundi
proprio”).
 an overview of canon law 37

doctrinal and disciplinary thrust of the Council.”107 Canon law was to have a
theological and pastoral nature. It was to reflect gospel charity and canonical
equity. It was to serve as assistance to the people of God in knowing God’s saving
mysteries. Not only would the new law afford an ordered ecclesial life, but its
ultimate end remained the salvation of souls.
The process for the revision of the new Code of Canon Law spanned two
decades. It involved numerous consultations with bishops, religious superiors,
theologians, and canonists throughout the church. It was informed by exegetical,
historical, comparative, and textual criticism. The methodology was intended
to incorporate the various theological and pastoral perspectives evident in the
official documents of Vatican II. Although a great deal of this work was completed
during the pontificate of Pope Paul VI, his successor, Pope John Paul II, guided
the final years of the revision process. Shortly after he was elected to the Petrine
ministry, John Paul II affirmed the nexus between Vatican II and the new Code of
Canon Law. He desired that the church’s law reflect the ecclesiology of Vatican II.108
On January 25, 1983, twenty-four years to the date of John XXIII’s announce-
ment, John Paul II promulgated the revised Code of Canon Law for the Latin
Church. The Code went into effect with force of law on the first Sunday of
Advent, November 27, 1983. The CIC-1983 consists of 1752 canons, organized
into seven books: General Norms, The People of God, The Teaching Function of the
Church, The Sanctifying Function of the Church, The Temporal Goods of the Church,
Sanctions in the Church, and Processes. One notes how much better these titles
reflect the mission of the church than did those of the CIC-1917, which were
derived from the Code Napoleon. In a testament to the unity of law and theology,
John Paul II referred to the CIC-1983 as “the final document of Vatican II.”109
Even as the revision for the CIC-1983 was underway, Pope Paul VI had also
called for a Code of Canon Law for the Eastern churches. Earlier in the twentieth
century, the benefits of the CIC-1917 encouraged discussion about a similar
codification of Eastern canon law. In 1927, Pope Pius XI established a prepara-
tory commission, and in 1935, the Pontifical Commission for the Redaction of
Eastern Canon Law. Based upon a 1948 draft prepared by the commission, Pope
Pius XII promulgated four parts of the new canon law for the Eastern churches,
but the pontiff ultimately promulgated only 1574 of the proposed 2666 canons
proposed by the commission. Pope John XXIII apparently elected not to promulgate
the remaining canons in light of the desire that the Eastern canon law, in accord

107. Paulus Pp. VI, Ad Praelotos Auditores et Officiales Tribunales Sacrae Romanae Rotae
(Die 29 mensis ianuarii anno 1970), 62 AAS 111–18 (1970).
108. See Ioannnes Paulus Pp. II, Ad eos qui plenario coetui Pontificiae Commissionis
Codici Iuris Canonici recognoscendo interfuere admissos (Die 29 mensis octobris anno 1981),
73 AAS 720, 721 (1981).
109. Ioannes Paulus Pp. II, Il Diritto inserisce il Concilio nella nostra vita, 15
Communicationes 128 (1983).
38 canon law

with its Western counterpart, reflect the ecclesiastical renewal of Vatican II. On
June 10, 1972, Pope Paul VI established the Pontifical Commission for the
Revision of the Code of Eastern Canon Law. The preparation of the Eastern Code
involved a process of consultations and critical methodology similar to that
employed for the CIC-1983. On October 18, 1990, Pope John Paul promulgated
the CCEO. The CCEO acquired force of law on October 1, 1991. It contains 1546
canons that are divided into thirty titles in accord with the classical division of
ancient Eastern canonical collections. The CCEO witnesses to the diversity and
unity of the Catholic Church, which consists of the communion of particular
churches. At the same time, the promulgation of the CCEO in the last decade
of the twentieth century testifies to the church’s continuing commitment to
codifications of universal canon law.

B. Other Sources and Types of Canon Law

The CIC-1983 and the CCEO constitute universal law in the Catholic Church.
The very first canon of CIC-1983 indicates that this Code is the universal law for
the Latin Church.110 Likewise, the CCEO constitutes universal law for all the
individual churches that comprise the Eastern Church. Both of these Codes were
promulgated by the Roman Pontiff, who is “the Supreme Legislator” in the
church. Although the Western and Eastern Codes constitute the two major
bodies of universal law in the Catholic Church, canon law also exists in a variety
of other forms.
1. Legislative, Executive, and Judicial Power Legislative power in the Catholic
Church is not limited to the Roman Pontiff. The bishops assembled at an
Ecumenical Council may exercise the legislative power as a college with the Roman
Pontiff at its head.111 The diocesan bishop may promulgate law for his own
diocese.112 The general and provincial chapters of religious communities may also
issue binding norms with regard to the life of the religious community.113 Depending
on the religious communities’ own constitutions and statutes, major religious
superiors may likewise issue norms for their subjects in the community.114
The broader meaning of canon law is also clear from the fact that the power
of governance in canon law is not limited to legislative acts. Canon 135, Paragraph
1, of the CIC-1983 states: “The power of governance is distinguished into legisla-
tive, executive and judicial.”115 The three functions are understood to flow from

110. See also Canon 12, § 1, CIC-1983, which states that this universal law of the Latin
Church binds all Catholics for whom it was intended.
111. See Canon 337, § 1, CIC-1983.
112. See Canon 391, § 1 & 2, CIC-1983 (“The bishop exercises legislative power him-
self.”); & Canon 466 (“The diocesan bishop is the sole legislator in the diocesan synod.”).
113. See Canon 631, § 1, CIC-1983.
114. See Canon 622, CIC-1983.
115. 1 Communicationes 83 (1969).
 an overview of canon law 39

one sacred power of governance which is vested in a bishop.116 Accordingly,

canon law declines to adopt the modern democratic doctrine of the separation of
powers.117 Nonetheless, the distinction of functions has long been a feature of
church governance. Historical evidence indicates that at least as early as the sixth
century, bishops were delegating their judicial power to separate judges.118
Likewise, the exercise of executive power by the vicar general on behalf of the
bishop claims ancient historical roots.119 When the CIC-1917 stipulated the
powers of governance that are proper to a bishop, it delineated legislative,
judicial, and coercive powers.120 The recognition of the tripartite distinction in

116. The question of who may exercise the power of governance is too theologically
and canonically complex to be explored in this overview of canon law. Suffice it to mention
that the CIC-1983 provides for the following. In addition to the diocesan bishop, the priest
who serves as the vicar general, episcopal vicar, or judicial vicar exercises a limited power
of governance according to office. The priest who serves as an ordinary in a religious
community may make law, posit acts of executive power, and judge cases. A lay person
may serve as one of three judges of a collegiate tribunal.
117. This understanding conflicts with the modern secular political theory that assigns
each of the three functions to a separate office or branch of the government. It should be
noted, however, that given the complexities of modern government, a complete separation
seems neither possible nor desirable. Thus, the executive branch of a government may
routinely develop rules for the administration of certain entitlements. At the same time,
the case decisions of the judicial branch may have binding force of law. See Peter L. Strauss,
An Introduction to Administrative Justice in the United States, in 1 Administrative Law:
The Problem of Justice, Anglo American and Nordic Systems 501 (Giuffrè 1991).
118. See Justinian, Novellae, 123, a cura di R. Schoell et G. Kroll, 3 Corpus Iuris
Civilis (Apud Weidmannos, 1929).
119. See X., Lib. I, Tit. 28, “De officio vicarii.” Pursuant to CIC-1983, Canon 131, §§ 1–2
and Canon 134, § 1, the power of the vicar general is ordinary and vicarious.
120. See Canon 335, § 1, of the CIC-1917, specified the Latin terms “legislativa, iudiciaria,
coactiva.” The corresponding canon in the present Code replaces “coactiva” with “exsecutiva,”
thus reflecting the general norm on the distinction among the powers of governance
expressed in Canon 135, § 1. See also Canon 391, § 1. The division in Canon 335, § 1 of the
CIC-1917 was not intended to be technical in nature, but rather descriptive of the power
of governance proper to a diocesan bishop. See Zenon Grocholewski, Atti e ricorsi amministra-
tivi, 57 Apollinaris 264 (1984). See also Francisco J. Urrutia, S.J., La potestà amministra-
tiva secondo il diritto canonico, in Pio Fedele, mod., De Iustitia Administrativa in
Ecclesia 90 and note 35 (Officium Libri Catholici 1984). The same author has also noted
that “[i]f it [Canon 335, § 1] stated the power of coercion alongside judicial and legislative
powers, it was, in all probability, to assert those functions of episcopal power that were
more contested by secular authorities for over one century.” Francisco J. Urrutia, S.J.,
Administrative Power in the Church According to the Code of Canon Law, 20 Studia
Canonica, 254, note 2 (1986). Commentators on the CIC-1917 developed various schema
to delineate the distinction of functions. See Benedict Ojetti, S.J., De Romana Curia
18–24 (Apud Universitatem Gregorianam 1910); Felix M. Cappello, S.J., De Curia Romana
Iuxta Reformationem a Pio X 40–52 (Fridericus Pustet 1911). In 1925, Pope Pius XI
40 canon law

the CIC-1983 acknowledges that canon law encompasses more than statutory
law derived from the exercise of legislative power.
Title 3, “General Decrees and Instructions,” of Book 1 of the CIC-1983 recog-
nizes two types of general decrees rooted in the distinction between legislative
and executive power. Canon 29 states that a general decree is a proper law given
by a competent legislator to a community capable of receiving a law. A proper
law may be described as a norm: (1) that is abstract and general in application,
(2) that is not framed to provide an answer to a specific problem, and (3) that is
adopted in anticipation of a future circumstance.121 Issuing a general decree,
which is proper law, requires legislative power. Canon 31 establishes a second
type of general decree which does not require legislative power but executive
power.122 A general executive decree is issued by one who possesses executive
power within the limits of his competency. This second type of general decree
would include instructions, interpretations of law, protocols, guidelines, and
policies to interpret and apply a proper law. These might be described as supporting
documents, which, nonetheless, have obligatory effect since they constitute
official explanations of what compliance with the law entails. While general
decrees are legislative acts that constitute autonomous proper law, general
executive decrees comprise auxiliary documents aimed at the maintenance of
proper law in the community for which they are intended. In addition, canon law
recognizes the exercise of executive power by hierarchical superiors through
single administrative acts. For example, a single administrative act might involve
the transfer of a parish priest to another parish by the diocesan bishop. This
administrative act of executive power differs from an act of judicial power.
Title 2 of Book 7 of the CIC-1983, the “Different Grades and Kinds of
Tribunals,” establishes a system of courts, judges, trials, and appeals in the
Roman Catholic Church. As with the legislative and judicial powers, canon law
considers the judicial power of government to be vested in the office of bishop.
Canons 1419, 1420, and 1421 require each diocesan bishop to establish a dioce-
san tribunal. The diocesan tribunal is presided over by the bishop’s judicial vicar
and a college of judges. Canon 1427 recognizes the judicial power of major reli-
gious superiors over their subjects. Canons 1438 through 1441 require the estab-
lishment of tribunals of second instance which hear appeals from the sentences
of the diocesan tribunals. At the level of the Holy See, Canon 1442 refers to the

attributed to Christ a threefold royal power: legislative, judicial, and executive; see Quas
primas (Die 11 mensis decembris anno1925), 17 AAS 599 (1925).
121. See Willy Onclin, L’organisation des pouvoirs dans L’Église, Actes du Congrés de
Droit canonique: cinquantenaire de la Faculté de droit canonique, Paris, 22–26
avril 1947 371 (Letouzey et Ané, 1950); Willy Onclin, The Church Society and the
Organization of Its Powers, 27 Jurist 13–14 (1967); Urrutia, Administrative Power in the
Church, 255–56, and note 5.
122. See 9 Communicationes 232 (1977).
 an overview of canon law 41

Roman Pontiff as the “Supreme Judge” of the universal church. According to

Canon 1444, the Roman Pontiff exercises his judicial power through the Roman
Rota, which hears appeals from the tribunals of second instance. Canon 1445
provides that appeals from the Roman Rota be heard by the Apostolic Signatura
as the supreme tribunal in the church.
2. Universal and Particular Law In addition to the tripartite distinction of the
powers of governance, canon law distinguishes between universal and particular
law. The CIC-1983 and CCEO are prototypical universal law but not the only
examples. Universal law may be made by an Ecumenical Council, the Roman
Pontiff, the College of Bishops with the Roman Pontiff at its head, the bishops
of the Eastern Church with the approval of the Roman Pontiff, or arguably by a
Dicastery of the Roman Curia acting in the name of the Roman Pontiff and with
his approval.123 In addition to the Codes, the Roman Pontiff promulgates other
universal laws, such as the special law Universi Dominici gregis, a statute promul-
gated by John Paul II in 1996 which regulated the election of his successor.124 In
1988, John Paul promulgated Pastor Bonus, which regulates the jurisdictional
competencies of the various branches of the Roman Curia.125 The 1998 document
Ad tuendam fidem added a section to the text of Canon 750, CIC-1983, and Canon
598, CCEO, concerning the teaching authority of the church.126 The motu proprio,
issued by Pope Benedict XVI on July 7, 2007, which permitted the celebration of
the Tridentine Mass, constitutes another example of universal law promulgated
by the Roman Pontiff.127
Particular laws are laws directed to a specific portion of the people of God.
Section 1 of Canon 13, CIC-1983, states the presumption that particular laws are
geographic. A particular law is geographic if it pertains to all those persons who
live in a particular geographic territory. For example, a particular law might

123. See Ioannes Paulus Pp. II, Constitutio Apostolica Pastor Bonus (Die 28 mensis jun.
anno 1988), 80 AAS 1178–81 (1988). Pastor Bonus, 18, states that “[t]he dicasteries cannot
issue laws or general decrees having force of law or derogate from the prescriptions of
current universal law, unless in individual cases and with the specific approval of the
Supreme Pontiff.”
124. See Ioannes Paulus Pp. II, Constitutio Apostolica Universi Dominici Gregis (Die 22
mensis feb. anno 1996), 88 AAS 305–42 (1996). This law issued by Pope John Paul II had
permitted election of the Roman Pontiff by the College of Cardinals by a simple majority
vote after several days of inconclusive balloting. Pope Benedict XVI, by a motu proprio,
dated June 11, 2007, amended the law so as to require a two-thirds majority for election in
all cases.
125. See Pastor Bonus, 1178–81.
126. See Ioannes Paulus Pp. II, Ad tuendam fidem Motu Proprio (Die 1 mensis iul. anno
1998), 90 AAS 457–61 (1998). The new legislation also added disciplinary provisions to
Canon 1371 of the CIC-1983 and Canon 1436 of the CCEO.
127. See Benedictus Pp. XVI, Summorum Pontificum Motu Proprio (Die 7 mensis iul.
anno 2007), 99 AAS 795–99 (2007).
42 canon law

modify the requirements of universal law with regard to holy days of obligation
or for fast and abstinence in a specific geographic region. Although particular
law tends to be geographic, some persons in the geographic area covered by the
particular may be exempt from it. Consider, for example, a particular law for a
Latin diocese that does not obligate Eastern Catholics who happen to live in the
geographic area of the diocese. Alternatively, a particular law may be personal.
Personal particular law pertains to the members of a special group. For example,
juridic persons are entitled to establish their own statutes (particular law) that
must be approved by the competent ecclesiastical authority.128 The individual
Eastern churches enjoy the right to make their own particular law. Likewise,
diocesan bishops have the legislative power to promulgate particular law for
their dioceses.129
3. Custom as a Source of Law Custom has long been recognized in the church
as a valid source of canon law. The principal difference between promulgated
law and custom is that promulgated law flows from a proper ecclesiastical authority
who enjoys legislative power, while custom derives from the community.130
Custom is often unwritten, but the fact that it is written down would not change
its character as custom. Canon 26, CIC-1983, stipulates that a custom which is
contrary to promulgated law obtains the force of law only after it has been
observed for thirty continuous and complete years. The canon also permits a
centenary (one hundred continuous and complete years) or immemorial custom
(as long as anyone in the community can remember) to prevail against a provision
of promulgated law even when the provision contains a clause that prohibits
future customs. Any community that is capable of receiving law in the church is
also capable of forming a custom. Although the clear development of canon law
during the twentieth century has been through the process of codification, the
fact that canon law continues to recognize custom as a legitimate source of law
attests to the dignity that the canonical tradition attributes to the role of local
communities.
4. International Law The Holy See is an international juridic person whose
territory of the Vatican City State enjoys sovereignty under international law.131
Canon 3, CIC-1983, recognizes the right of the Holy See to enter into treaties
and pacts that enjoy force of law. An agreement between the Holy See and a sov-
ereign state is known as a concordat. There are also partial agreements between
the Holy See and other international bodies known as accords, modi vivendi, or
protocols that enjoy the force of law. Such agreements may secure the rights
of the church in a particular country to worship, education, property, and the

128. See Canon 117, CIC-1983.

129. See Canon 391, § 1, CIC-1983.
130. See Javier Otaduy, Custom, in 1 Navarra-2004, 393–96.
131. See Robert John Araujo, S.J., The International Personality and Sovereignty of the
Holy See, 50 Cath. U. L. Rev. 291–360 (2001).
 an overview of canon law 43

regulation of marriage. Pursuant to a concordat with the Holy See, a national

government may enjoy the right to be notified of the appointment of a bishop
prior to its official announcement. While they may be properly described as con-
stituting valid law, such agreements, nonetheless, do not depend for their validity
on the Code of Canon Law.
5. The Canonization of Civil Law Canon 22, CIC-1983, recognizes that canon
law yields to civil law in certain instances. This is known as the limited “canonization”
of the civil law.132 To mention but one example, Section 1 of Canon 1282,
CIC-1983, requires that state statutes of labor law and policy be meticulously
observed together with the church’s own social teaching in the employment
policies of church organizations and agencies. The church entity as an employer
is thus bound by canon law to follow the civil legislation that might, for example,
establish a minimum wage or social security. Of course, it may well be the case
that the social teaching of the church requires even greater benefits than those
required by the law of the state. Canon law does not yield to civil law in general,
but only in certain matters defined by the canon law itself. Canon 22, CIC-1983,
requires that the effects of civil law be observed in canon law with the same
effects, and in this sense, the effects of the civil law are “canonized.” In other
words, the effects of the specific civil law become part of the canon law. However,
the canon law sometimes defers to the effects of civil law without incorporating
the civil law into canon law. For example, Canon 110, CIC-1983, requires canon
law to respect the civil effects of adoption. This means that all the effects of the
parent-child relationship are recognized in canon law such as the capacity of
minors and their legal domicile, the responsibility of parents for the child’s
reception of the sacraments and education, and the impediments to marriage
that arises from a familial relationship.133 Although respecting the civil effects of
adoption, the canon law is not incorporating the entirety of state policy and its
adoption law into the law of the church.
The relation between canon law and civil law is complex, and here I shall
mention only a few further aspects of the complexity. If the civil law conflicts
with canon law based upon divine or natural law, the civil law obviously is not
canonized. However, even when a particular application of canon law, which
reflects divine law, conflicts with civil law, the nature of the obligation may
determine which of them is followed. Consider the question: “Should I drive on
a suspended license if that is the only way to go to Church in order to fulfill the
Sunday Mass obligation?”134 The civil law requiring a valid license is not contrary
to divine law; rather, it is a reasonable requirement directed toward the common

132. See Robert T. Kennedy, Contracts and Especially Alienation, in CLSA-2000, 1493.
133. See Canons 98, § 2; 105, § 1; 851 §2; 855; 867; 869, § 3, 872, 874, § 1; 890, 891, 1136,
793, 795–98, 774, § 2; 1252, 1094; & 108, CIC-1983. See also Amadeo de Fuenmayor, The
Canonical Status of Physical Persons, in 1 Navarra-2004, 735–36.
134. See Canons 1246–48, CIC-1983.
44 canon law

good. Although the Sunday obligation reflects divine law, it does excuse one
from the obligation of the civil law requiring a driver to have a valid license. If
canon law and civil law conflict, and the canon law is merely ecclesiastical law,
the canon law would not oblige in the case when obeying it would cause grave
inconvenience. Again, neither the conflicting civil law itself nor its effects would
be canonized.
6. Liturgical Law The CIC-1983 and CCEO contain some, but not all, of the
rules that govern the celebration of the church’s liturgy and sacraments.135 Book
4 of the CIC-1983 and Title 16 of the CCEO contain rules that pertain to the
celebration of the sacraments with regard to issues such as who is a qualified
minister, who is an eligible recipient, the matter and form, and under what
circumstances the sacraments may be celebrated.136 The rules and rubrics found
chiefly in the official Roman liturgical books also govern the celebration of the
sacraments. There are also non-Roman rites in both the Eastern and Latin
churches with their own proper liturgical laws. The liturgical books themselves
are considered to form part of canon law and to constitute norms with full canon-
ical force. However, it must be kept in mind that some of the liturgical norms are
facultative in that they offer a variety of options or nonpreceptive in that they are
only directive guidelines. This variety is one of the reasons why the liturgical
norms are not encoded in the universal law. Such norms do not easily fit into the
meaning of proper law as it is described in Canons 29–34, CIC-1983.

C. Canonical Equity, Dispensation, Exception, and Privilege

1. Canonical Equity The Dictionnaire de Droit Canonique offers various
descriptions of the concept of equity. Equity is “the application of objective
justice to a concrete case.” It arises because “the rules that a society imposes on
its members, in order to protect the common good and promote justice, figure
as too general in conception to deal with all the particular instances that fall
under their scope.” “Justice is the ideal,” and “equity serves as the means for the
realization of the ideal in practice.” Equity is constituted from “the benevolent
interpretation of written law by judges, administrators, and superiors.” It is
“a relative notion which reckons a superior principle of justice or of moderation
in the application of law.”137 In connection to canon law, the same source defines

135. See Canon 2, CIC-1983.

136. See Eloy Tejero, The Sanctifying Office in the Church, in 3/1 Navarra-2004,
382–89.
137. (“. . . l’application de la justice objective à un cas concret.”) (“. . . la vie de société
impose à l’homme la détermination de certaines lois positives destinées à assurer, en
tenant compte des nécessités de l’ordre [bonum], cette même justice [aequum]. Mais ces
règles, forcément générales, négligent par le fait même les circonstances particulières
dans lesquelles s’en opérera l’application.”) (“La justice est l’idéal; l’équité la réalise dans
la pratique . . .”) (“. . . l’équité sera l’interprétation bienveillante de la loi écrite par les
 an overview of canon law 45

equity as “a superior justice to the positive law, which on account of the spiritual
general or particular well-being mitigates the severity of law.”138
Canonical equity enjoys a rich historical development. For the purpose of this
general overview, suffice it to mention that the notion of canonical equity includes
both the ideals of natural justice and evangelical mercy. Canonical equity points
to the limits of the law. Attempting to convey the law’s inner meaning, the outer
juridical formulation of the law may fall short in a given instance. Canonical
equity is the juridical principle that functions to bridge the gap between the letter
and the spirit of the law.139
Canonical equity may be written or unwritten. Written equity is expressed in
the statute itself, and the CIC-1983 contains seven instances of expressed written
equity.140 For example, Canon 19 of the CIC-1983 identifies canonical equity as a
source of suppletory law when a lacuna of law exists. Written equity may also be
implied from the meaning of a statute. Implicit written equity is referred to as
the equitable character of the statute. Unwritten canonical equity is an appeal to
the intent of the legislator when a literal application of law would violate that
intent. Canon law presumes that certain qualities remain characteristic of the
mind 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.
Unwritten equity also informs those who are vested with discretion in the
exercise of the governing power.
Both Canon 20, CIC-1917, and Canon 19, CIC-1983, stipulate that canonical
equity ought not to be utilized as a suppletory norm in a penal matter. There
would seem to be at least two reasons for the exception of the penal law. First,
Book 6 of the CIC-1983 envisions the imposition of a penalty as a last remedy,
after all other pastoral and juridical options have been exhausted. Such an
occasion generally calls for a rigorous and strict justice. Indeed, it has been
suggested that if one resorted to an application of canonical equity, rather than

magistrats, juges ou supérieurs . . .”) (“. . . une notion relative . . . ils tiennent compte dans
l’application d’une loi d’un principe supérieur de justice ou de modération.”) Charles
Lefebvre, “Équité,” in 5 Dictionnaire de Droit Canonique col. 394 (sous la direction de
R. Naz Letouzey et Ane 1953).
138. (“L’équité consiste dans une justice supérieure qui, en raison d’un bien spirituel
général ou particulier, adoucit les droits stricts . . .”) Lefebvre, “Équité,” col. 400.
139. See Coughlin, Canonical Equity, 403–35.
140. See Canons 19, 221, § 2, 271, § 3, 686, § 3, 702, § 2, 1148, § 3, and 1752, CIC-1983.
46 canon law

soften the rigor of law, it would “sometimes increase certain penalties.”141

Second, when a penalty must be imposed, it should be the one prescribed by law.
Pursuant to the CIC-1983, Canon 1314, the law prefers ferendae sententiae to latae
sententiae penalties. The requirement that the penalty be imposed attests to the
legislator’s intent that the matter be clear and no suppletory norm be necessary.
Finally, the exclusion of canonical equity as a suppletory norm for penal matters
does not eliminate justice, mercy, and compassion from the consideration.
The purpose of the ecclesiastical penal law is not to punish, but to protect the
integrity of the faith community and to urge the offender to reform.142
The stipulation of canonical equity as a suppletory source to fill a lacuna legis
is not to suggest that it should serve as a general norm for the interpretation of
all laws. Neither Canon 17, CIC-1983, nor Canon 18, CIC-1917, which concern
the general interpretation of law, mention canonical equity. At the same time,
both of these canons recognize the mind of the legislator as a valid source for the
interpretation of law. To be sure, it seems fair to surmise that the tradition of
authentic canonical equity comports with the mind of the Supreme Legislator.
Thus, there is a tension present in the CIC-1983 between the fact that the
lawgiver has omitted to identify canonical equity as a source for the interpretation
of the law and the fact that canonical equity must be said to constitute an aspect
of the mind of the lawgiver. It seems correct, however, to surmise that the
lawgiver intends an interpretation of law in accord with the requirements of
natural justice, evangelical love, and historical consciousness of the tradition.
The incorporation of evangelical mercy into the notion of canonical equity
differentiates canon law from systems of law that view equity as based only on
natural justice.
2. Dispensation, Exception, and Privilege This difference between canon law
and secular systems of law is further evident in the canonical system of dispensation,
exception, and privilege.143 First, Canon 85, CIC-1983, defines a dispensation as
a relaxation of a merely ecclesiastical law in a particular case. One may never be
dispensed from the requirements of divine and natural law. In the Decretum of
Gratian, a dispensation is considered the relaxation of law on account of the
mercy and common good of the church.144 Section 1 of Canon 87, CIC-1983,
provides that the diocesan bishop may dispense for his territory or his subjects
from universal and particular laws promulgated by the supreme authority of the
church unless the dispensation has been reserved by law to the Apostolic See.
This is a change from Canon 81 of the CIC-1917, which held that ordinaries
inferior to the Roman Pontiff could not dispense general laws of the church

141. Paulus Pp. VI, Allocution to the Tribunal of the Sacred Roman Rota, Aequitas
Canonica (Die 8 mensis feb. anno 1973), 65 AAS 98–99 (1973).
142. See Juan Arias, Sanctions in the Church, in Ottawa-1993, 817.
143. See John A. Alesandro, General Introduction, in CLSA-1985, 1, 13.
144. See C. 1, q. 7, c. 5; & C. 1, q. 7, c. 23.
 an overview of canon law 47

unless they had received the power to dispense. Section 2 of Canon 87, CIC-1983,
permits any ordinary, not just the diocesan bishop, to dispense from the same
universal and particular laws of the church if recourse to the Holy See would be
difficult, delay would result in grave harm, and the Holy See customarily grants
a dispensation in the same circumstances even if the dispensation is reserved to
the Holy See. Pursuant to Section 2, an ordinary would include not only the
diocesan bishop and those equivalent in law to him, but also the vicar general,
episcopal vicar, and major superior of a clerical religious institute or clerical
society of apostolic life of pontifical right.145 The dispensation is a formal acknowledg-
ment that the application of canon law should conform to the benign mind of the
lawgiver.146
Second, Canon 18, CIC-1983, calls for a law that grants an exception to be
interpreted strictly. The concept of strict interpretation of a law that grants
an exception must be distinguished from a restrictive interpretation of law
pursuant to Canon 16, CIC-1983. A strict interpretation does not go beyond the
plain meaning of the words of the canon while a restrictive interpretation results
in an actual restriction or new law.147 It is also important to note that Canon 18
calls for a strict interpretation of a law that prescribes a penalty or restricts the
exercise of a right as well as of a law that grants an exception. This reflects
the traditional canonical principle attributed to the mind of the lawgiver that the
odious is to be restricted and the favorable amplified (odiosa restrigenda, favorabilia
amplianda). Nonetheless, the exception that exaggerates the intention of the
lawgiver would conflict with the strict interpretation contemplated by Canon 18.
For example, an interpretation of a law that permits an extraordinary minister of
a sacrament under certain conditions which resulted in the extraordinary minister
to be the same as, or more preferable than, the ordinary minister would
contradict the meaning of strict interpretation required by Canon 18.148 It is also
a characteristic of the lawgiver’s mind not to undermine the law by granting
exceptions so liberally that the exception overcomes the law. Section 1 of Canon
1536, CCEO, refers to exceptions in terms of the common good.
Third, Section 1 of Canon 76, CIC-1983, describes a privilege as a favor to a
real or juridic person granted by one who has legislative power. Traditionally, a
privilege has been viewed as a private law granted with a benevolent intention.

145. See Canon 134, § 1, CIC-1983.

146. See Eduardo Baura, Dispensations, in 1 Navarra-2004, 644–51, which notes that
dispensation must be distinguished from epikeia, excuse, and privilege.
147. See Javier Otaduy, Ecclesiastical Laws, in 1 Navarra-2004, 388.
148. See Congregatio de Culto Divino et Disciplina Sacramentorum, Instructio,
Redemptionis sacramentum, De quibusdam observandis et vitandis circa Sanctissimam
Eucharistiam (Die 25 mensis martii anno 2004), 147, 96 AAS 549–601 (2004), which con-
firms the strict interpretation for an extraordinary minister when there is a deficientibus
ministris.
48 canon law

However, pursuant to Canon 76, the legislator may also delegate one who has
executive power to grant a privilege. A privilege is presumed to be perpetual, in
the sense that it continues as long as the beneficiary exists on earth.149 Canon 79,
CIC-1983, permits the authority who granted a privilege to revoke it. Generally,
a privilege does not cease when the office of the grantor ceases, unless in grant-
ing the privilege the grantor has expressly stated such a limitation.150 Canon 84,
CIC-1983, states that one who has abused the power of a privilege deserves to be
deprived of the privilege. For example, the Holy See might grant the diocesan
bishop the privilege to permit sentences of nullity of marriage from his diocesan
tribunal, which have been confirmed by the provincial tribunal of second
instance, to be reviewed by the metropolitan tribunal rather than by the Roman
Rota. The privilege is granted due to state restrictions on the church which forbid
the diocesan tribunal from presenting evidence outside the nation to a foreign
tribunal. It would be an abuse of the privilege if the metropolitan tribunal
abrogated the norms of evidentiary proof stipulated in the CIC-1983 in favor of a
more relaxed approach to the evidence.151
Although they represent distinct canonical forms, the dispensation, exception,
and privilege have been said to function either apart from the law (praeter legem)
or against the law (contra legem). At the same time, each is a feature of the system
of canon law. As with canonical equity, these canonical forms attest to the
legislator’s intent to imbue canon law with the justice, mercy, and love of
Christ.

D. The Unity of Law and Theology

The principle for the revision of canon law that new law should reflect the
theology of Vatican II, which culminated in the promulgation of the CIC-1983
and CCEO, leads to the unity of law and theology. This unity may be detected in
Mörsdorf’s observation, noted at the outset of this chapter, that canon law is the
logical outgrowth of the Incarnation in which the divine necessarily associated
with human legal forms and institutions. A student of Mörsdorf’s, Eugenio
Corecco, developed the position in describing canon law as the “unity of law and
theology.”152 In calling for the unity of law and theology, Corecco is not denying
the important place of natural law and history in shaping canon law. To the
contrary, the problem of canon law requires the proper resolution between
“faith and reason.”153 Faith and its divine law are not only transcendent but also
immanent and therefore not isolated from reason, nature, and history. Natural law

149. See Canon 78, § 1, CIC-1983.

150. See Canon 81, CIC-1983.
151. See María J. Rocca, Privileges, in 1 Navarra-2004, 642.
152. Eugenio Corecco, The Theology of Canon Law: A Methodological
Question 108–12, 127–28 (Francesco Turvasi trans., Duquesne University Press 1992).
153. See id. at 107.
 an overview of canon law 49

derived from practical reason remains an important source of canon law.

Likewise, canon law cannot be divorced from the historicity that recognizes
the relation between universal principles and particular applications of such
principles.
The unity of law and theology properly understood checks against antinomian-
ism and legalism by maintaining fidelity to canon law’s intellectus, or inner
meaning. First, theology without law results in antinomianism. It deprives the
ecclesiastical community of the instrument that functions to secure an ordered,
just, and peaceful life. Second, the separation of canon law from its inner
theological meaning sets the conditions for legalism. Such a law is bereft of the
Gospel meaning and fails to assist individuals and the church in knowing the
saving mystery of God. Third, canon law should retain its status as a distinct
discipline from theology. Although it is a distinct discipline from theology, canon
law as the church’s juridical science remains always closely related to theology
and at the service of the church. Canon law functions as a bridge between
theology and norms for practical action. It relies on practical reason and juridical
methodology to design the external language of the law that expresses its inner
theological meaning. The inner theological meaning is meant in a broad sense.
It encompasses not only the transcendence but also the immanence of all the
best qualities of what it means to be human.
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2. canon law and the sexual abuse crisis
Antinomianism, Legalism, and the Failure
of the Rule of Law

Chapters 2 and 3 discuss antinomian and legalistic approaches to canon law.

Specifically, they explore these approaches to canon law by ecclesiastical authori-
ties in dealing with the sexual abuse of minors by Catholic priests in the United
States. Revelations of instances in which a Catholic priest sexually abused a minor
have been documented by the media since at least the early 1980s.1 Media atten-
tion has often been prompted by civil litigation brought on behalf of victims by
plaintiffs’ attorneys seeking to recover financial damages from the Catholic Church
for emotional distress resulting from the abuse. Starting in the late 1980s and
through the following decades, church officials attempted to respond to the prob-
lem by implementing a variety of sexual abuse policies.2 In 2002, the media directed
months of sustained local and national coverage to the “sexual abuse crisis” in the
Roman Catholic Church. The intense media coverage, unequaled in American
religious history, depicted Catholic priests as sexual predators and church officials
as enablers of the priests in their crimes. These chapters are not intended as a
general treatment of the complex multifaceted issues of a substantive and interpre-
tative nature raised by the sexual abuse crisis. Rather, the more modest focus of
the chapters is on the failure of canon law to protect victims, ensure a just ecclesi-
astical order, and communicate a sense of justice to the larger secular society.
In discussing antinomian and legalistic approaches to canon law, Chapter 2
consists of two major parts. The first part reviews the canonical provisions that
were in place to respond to allegations of sexual abuse and to impose the penalty
of dismissal from the clerical state on a guilty priest. In this part, I also present
statistical information about the sexual abuse of minors by Catholic priests in
the United States from 1950 until 2006. In light of the information, I argue that
canonical action could have been taken against guilty priests, especially those
who were serial child abusers. The second part offers an explanation for the
failure of church authorities to utilize canon law in dealing with cases of sexual

1. See generally Boston Globe Investigative Staff, Betrayal, The Crisis in the
Catholic Church 38 (Little Brown Back Bay Books 2003).
2. See, e.g., Joseph Cardinal Bernadin, Statement Announcing Policy on Clerical Sexual
Misconduct with Minors, 22 Origins 282, 282–83 (Oct. 1, 1992); United States Bishops’
Meeting, Twenty-Eight Suggestions on Sexual Abuse Policies, 24 Origins 443, 443–44
(Dec. 8, 1994); see also Raymond C. O’Brien, Pedophilia: The Legal Predicament of the Clergy,
4 J. Contemp. Health L. & Pol’y 91, 151–52 (1988), which calls on churches to develop
procedure for dealing with allegations of child abuse against clergy.
52 canon law

abuse. After reviewing some examples of antinomianism and legalism on the

part of nineteenth-century bishops in the United States, I discuss how these
approaches led to the failure of canon law in dealing with cases of clergy sexual
abuse. I suggest that, when a psychological model replaced the rule of canon law,
the conditions were set for great harm to individuals and the common good. In
Chapter 3, I shall address the canonical consequences of antinomianism and
legalism. These include the injury to the victims, alleged link between priest-
hood and sexual deviancy, disruption of the unity of law and theology, and
diminishment of canon law as law properly understood.

I . the failure of canon law in responding to clergy sexual

abuse cases

The discipline of the clergy for sexual offenses is not something novel in the history
of the church. The rule of canon law has long included structures to address the
problem.3 From 1917 until the present time, there have been statutory provisions
in canon law which establish that the sexual abuse of a minor by a cleric constitutes
a grievous sin and grave crime. Complementing the substantive procedures,
canon law contains various procedures through which guilt may be ascertained
and the penalty of dismissal from the clerical state may be imposed.

A. Canonical Provisions for the Investigation, Adjudication, and Resolution of an

Allegation of Clergy Sexual Abuse of a Minor
After its promulgation in 1917, the so-called Pio-Benedictine or CIC-1917
remained in effect until 1983.4 Section 2 of Canon 2359 of the CIC-1917 provides
that if a cleric (deacon, priest, or bishop) should “engage in a delict of the sixth
precept of the Decalogue with a minor below the age of sixteen,” he may be
“suspended, declared infamous, and deprived of any office, benefice, dignity,
responsibility, whatsoever, and deposed in more serious cases.”5 In canon law, a
“delict,” is a criminal offense. The Sixth Commandment states: “You shall not
commit adultery.”6 The moral tradition of the Catholic Church considers the

3. See R. H. Helmholz, Discipline of the Clergy: Medieval and Modern, 6 Ecc. L. J. 189,
191–96 (2002), which presents various examples of prosecution of clergy in the medieval
ecclesiastical courts for sexual offenses and other types of crimes; John W. O’Malley, S.J.,
The Scandal: A Historian’s Perspective, 186 America 14, 16 (May 27, 2002), which explains
that while scandals are not new in church history, the role of the media in developing the
crisis is a new and significant factor.
4. Technically, the CIC-1917 was in effect from 1918 until 1983.
5. See Stephen W. Findlay, Canonical Norms Governing the Deposition and
Degradation of Clerics: A Historical Synopsis and Commentary 111–246 (The Catholic
University of America 1941).
6. Exodus 20:14; Deuteronomy 5:18.
 canon law and the sexual abuse crisis 53

Sixth Commandment’s prohibition to encompass any thought, word, or action

against the virtue of chastity.
The Catholic tradition is based on the words of Jesus in the Gospel of Matthew,
which have long been understood to internalize the external requirements of
the law of the Decalogue: “You have heard it was said, ‘You shall not commit
adultery.’ But I say to you that every one who looks at a woman lustfully has
already committed adultery with her in his heart.”7 In the tradition, even unchaste
thoughts may be seriously sinful. However, canon law does not punish immoral
thoughts. Rather, the delict must be external and verifiable. Such a delict is
committed when a cleric sexually abuses a minor through word or action. The
delict constitutes an external violation of the divine and natural law encoded in
the Decalogue. Canon law’s requirement that the sin be “external” presents little
difficulty in the case where a church official learns about the sexual abuse of
a minor. As discussed later in this chapter, such knowledge renders the sin
external, as opposed to a private matter kept in the internal forum.
The serious penalties provided for in Section 2 of Canon 2395 reflect the grav-
ity of the delict committed when a cleric sexually abuses a minor. When this
provision states that the guilty clerical may be “deposed,” it means permanent
removal from the clerical state, which is the most serious penalty available
against a priest in canon law. Crimen sollicitationis, a 1962 Instruction issued by
the Congregation of the Holy Office and confirmed by Pope John XXIII, stated
that a cleric “who in any way attempts or perpetrates any obscene, external act,
which is gravely sinful with a prebuscent child of either sex” is guilty of a delict
“equated with the worst crime.”8 The Instruction directed that such a crime
carried the penal effects provided for in Section 2 of Canon 2359. Although
substantively the Instruction added nothing to the provision of Canon 2359, it
confirmed the intent of the legislator with regard to the gravity of the crime when
a cleric sexually abuses a minor.
Pope John Paul II promulgated the CIC-1983, abrogating the CIC-1917. The
CIC-1983 constitutes universal law for the Roman Catholic Church, and this law
is binding on all Latin Rite Catholics. Section 2 of Canon 1395 of the CIC-1983
replaces Section 2 of Canon 2359 of the CIC-1917. Consistent with the former
statute, Section 2 of Canon 1395 establishes that sexual contact between a cleric
and a minor counts as one of four classifications of sexual offences for which a
penalty, including suspension and/or permanent removal from the clerical state,
may be imposed upon deacon, priest, or bishop. The other three grounds include
any form of coerced sex, a public offense against the Sixth Commandment of the

7. Matthew 5:27–28. The reference is directly to the Sixth Commandment of the

Decalogue, and the tradition also encompasses the Ninth Commandment: “You shalt not
covet thy neighbor’s wife.”
8. Suprema Sacra Congregatio Sancti Officii, Crimen sollicitationis (Die 16 mensis mar.
anno 1962), 5, 72. This document was never officially published in AAS by the Holy See.
54 canon law

Decalogue, and continued open concubinage with a woman after an official

warning.9
In 1990, Pope John Paul II promulgated the CCEO, which binds all Eastern
Rite Catholics. Section 1 of Canon 1453 of the CCEO provides that a cleric “who
commits an external sin against chastity with scandal is to be punished by
permanent suspension, and if he persists in the delict, he may incur additional
penalties up to and including being deposed.” In comparison to the Latin Rite
CIC-1983, the CCEO does not explicitly mention a sexual offense with a minor,
but such an offense is, of course, included in the phrase “sin against chastity.”
The substantive differences between the two Codes are the CCEO’s conditions
that the offense is “with scandal” and the offender “persists in the delict.” In
contrast, Section 2 of Canon 1395 of the CIC-1983 simply provides for “dismissal
from the clerical state if the case so warrants.” In the Latin Rite, the injury and
scandal of even a single incident of sexual abuse of a minor may result in permanent
removal of the offending priest from the clerical state. In terms of the substantive
law, the CIC-1917, CIC-1983, and CCEO all treat the sexual abuse of a minor as
a grave crime to be punished by severe canonical penalty.
In November 1993, Pope John Paul II addressed a public letter to the bishops
of the United States in which he affirmed that the sexual abuse of a minor by a
priest constitutes a “crime” to which “[t]he canonical penalties . . . give a social
expression of disapproval for the evil that are fully justified.”10 Under all three
Codes, a minor is defined as a person who is under the age of sixteen. Canon law
applies to the universal law of the church and is therefore an international and
transcultural statute. The idea of who is a minor in national law varies from one
national jurisdiction to another and, as in the United States, may vary within the
nation according to state and local law. In April 1994, the Holy See promulgated
special law for sexual abuse cases in the United States that raised the age of a
minor as until the person reaches the eighteenth birthday. In a 2001 letter sent
to the bishops throughout the entire Catholic Church, the Congregation for the
Doctrine of the Faith extended this provision to the universal church.11
As was the case with the CIC-1917, the CIC-1983 and CCEO also afford
processes through which their respective substantive provisions for dealing with

9. The penalty is considered of such severity that prior to the 1917 Code, it was the
common opinion among canonists that such a penalty was reserved exclusively to the Holy
See, except when the common law of the church attached the penalty, and both of the
twentieth-century statutes confirm that opinion. See X 5.40.27 de verborum significatione.
10. John Paul II, Clergy Sexual Misconduct, Vatican–U.S. Bishops’ Committee to Study
Applying Canonical Norms, 23 Origins 102 (1993). See also National Conference of Catholic
Bishops, Canonical Delicts Involving Sexual Misconduct and Dismissal from the Clerical State
(United States Catholic Conference 1983).
11. See Congregatio pro Doctrina Fidei, De delictis gravioribus eidem Congregationi pro
Doctrina Fidei reservatis (Dei 18 mensis maii anno 2001), 93 AAS 785, 786–87 (2001).
 canon law and the sexual abuse crisis 55

sexual abuse may be implemented.12 The Ordinary (bishop or religious superior)

bears the responsibility, through his delegates, to initiate, pursue, and bring to
closure the initial investigation of an allegation against a priest of his diocese
or religious community. In accord with the present canonical procedure, the
investigation of an allegation of abuse begins with an informal administrative
process.13 Most dioceses and religious communities have established advisory
boards consisting of clerics and laypersons to assist in the administrative
investigation. If the initial investigation indicates that the allegation is credible,
the Ordinary must refer the case to the Congregation of the Doctrine for the
Faith pursuant to special law promulgated in 2001.14 The Congregation then
either calls the case to itself or directs the Ordinary to commence a trial.
The canonical trial or contentious penal process is the regular process for the
determination of guilt or innocence and the imposition of a penalty in canon
law. Cases that may result in permanent removal from the clerical state would
normally require the contentious penal process to protect the rights of the
accused cleric given the finality of the penalty that may be imposed. However, in
clear or notorious cases, permanent dismissal may be imposed on a guilty cleric
through a simple administrative procedure conducted under the authority of the
Congregation for the Doctrine of the Faith and confirmed by the pope.15
The contentious penal process afforded by canon law is a variation of the
contentious marriage process that is followed when a diocesan tribunal considers
an annulment case. The contentious processes in canon law differ in significant
ways from the jury trial of Anglo-American law. In the canonical process, a
college of three judges, and not a jury, decides the case. The contentious penal
process does not involve the lawyers for the opposing sides who examine and
cross-examine witnesses. Rather, in the canonical process, all the questions are
posed by a judge or other tribunal official who interviews witnesses privately.
These interviews are recorded in notarized affidavits that form part of the
evidence, which is known in canon law as the “acts of the case.” The accuser and
accused as well as any other person in possession of relevant information may be
interviewed. The canonical process requires a promoter of justice, who acts
as the prosecutor of the case, and a defendant’s advocate, both of whom may
suggest witnesses to be interviewed and present written questions to the judge.
Once the acts have been collected by the judges, the promoter of justice and

12. See generally William H. Woestman, O.M.I., Ecclesiastical Sanctions and the
Penal Process, A Commentary on the Code of Canon Law (Saint Paul University
2003).
13. See Canon 1717–19, CIC-1983.
14. See Congregatio pro Doctrina Fidei, De delictis gravioribus idem Congregationi pro
Doctrina Fidei riservatis (Die 18 mensis mai. anno 2001), 93 AAS 785–87 (2001).
15. See CIC-1983, Canons 1341 and 1718. See also Gregory Ingels, Dismissal from the
Clerical State: An Examination of the Process, 33 Studia Canonica 169, 190 (1999).
56 canon law

defendant’s advocate study the acts, and then they present written arguments for
their positions to the tribunal. After carefully considering the arguments in light
of all the evidence of the case, the judges render a determination of guilt or
innocence. Either side has the right of appeal.16
The canonical contentious process might seem similar to the documentary
administrative process in Anglo-American law. However, canon law considers
the contentious process in either its penal or its marriage annulment variation to
be an exercise of the judicial and not the executive power of government. In
contrast to the contentious penal process of canon law, the Congregation for
the Doctrine of the Faith may resolve a case of clergy sexual abuse through an
extrajudicial or administrative process. The administrative process does not
contemplate that less proof of guilt is required than in the judicial process. Nor
does it mean that the rights of the parties are to be any less respected. The
Congregation sometimes relies on the administrative process in urgent cases
when there is already clear evidence of guilt established on the record submitted
by the diocese or religious community against the offender.
From Vatican II until the 2002 sexual abuse crisis, contentious penal processes
in the United States for priests accused of sexual abuse of a minor were, in the
words of one expert, “nonexistent.”17 Prior to 2002, unofficial sources suggest the
administrative process of dismissal had been employed by the Holy See in only
about a dozen cases against priests in the United States in exceptional circum-
stances at the request of a diocesan bishop.18 Even in the absence of accurate
data, it does seem clear that over the course of several decades, many bishops
and religious superiors declined to implement and enforce the rule of canon law.
This failure violated not only the positive law of the church, but also the
normative principles of natural and divine justice.

B. Statistical Evidence and Canon Law

In 2002, the United States Conference of Catholic Bishops commissioned the
first comprehensive sexual abuse study of any religious or professional group.
The work was entrusted to the John Jay College of Criminal Justice. The land-
mark study, The Nature and Scope of the Problem of Sexual Abuse of Minors by
Catholic Priests and Deacons in the United States, was published in 2004 (2004
John Jay Study).19 The allegations during this fifty-two-year time period covered

16. See Canon 1717, CIC-1983.

17. William H. Woestman, O.M.I., Ecclesiastical Sanctions and the Penal
Process, A Commentary on the Code of Canon Law, xv.
18. See Ingels, Dismissal From the Clerical State, 169–70, which states knowledge of four
such administrative cases from the United States in 1998.
19. John Jay College, the Nature and Scope of Sexual Abuse of Minors by
Catholic Priests and Deacons in the United States (United States Conference of
Catholic Bishops 2004).
 canon law and the sexual abuse crisis 57

by the 2004 John Jay Study involved 4,392 priests and 10,667 victims.20 This
study was followed by a series of annual reports conducted by the John Jay
College, the most recent of which was issued in 2006 (2006 John Jay Study).21
The 2006 John Jay Study found that approximately 4.2 percent of all diocesan
priests and 2.7 percent of all religious priests who served in ministry during this
time period from 1950 to 2006 had been accused of the sexual abuse of a minor.22
The statistical information contained in these reports contains critical evidence
about the failure of canon law to address the problem of clergy sexual abuse of
minors in the United States that led to the crises of 2002.
First, of the total number of allegations of sexual abuse brought against
Catholic clergy from 1950 to 2006, more than two-thirds of the allegations were
reported to church officials for the first time after 1992, and more than one-third
were reported for the first time in 2002–2006.23 Obviously, there was no possibility
of canonical action against a member of the clergy until the allegation had been
presented to church officials. The canonical failure remains that in those cases
when church officials had received an allegation of abuse, the provisions of the
relevant Code of Canon Law were often neglected.
Second, 3.5 percent of the accused priests were accused of abusing more than
ten victims, and this small subset of priests was responsible for 26 percent of all
allegations.24 The subset of serial child molesters includes priests such as
Louisiana’s Gilbert Gauthe, Fall River’s James Porter, and Boston’s John
Geoghan and Paul Shanley. In the words of the 2004 John Jay Study, “a very
small percentage of accused priests are responsible for a substantial percentage
of the allegations.”25 In the case of a serial child abuser, it would have been more
likely that church officials were aware of the abuse than in a case of a single
allegation. For example, the records of the Archdiocese of Boston indicate that
diocesan officials were in fact aware of allegations against serial child abusers,
John Geoghan and Paul Shanley.26 Prompt canonical action against a serial
molester, which would have permanently removed such a priest from ministry
in the church, was not taken. The 2002 clergy sexual abuse crisis focused on the

20. The New York Times estimates that there were approximately 5,000 priests accused
of abuse involving approximately 13,000 victims. See Alexandra Stanley, N.Y. Times,
Apr. 18, 2008, at A1.
21. Karen Terry & Margaret Leland Smith, 2006 Supplementary Report to the Nature
and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United
States, available at: http//www.nccbuscc.org/ocyp/JohnJayReport.pdf.
22. Id. at 4.
23. 2004 John Jay Study, 7.
24. Id. at 8.
25. Id.
26. For accounts of the Goeghan and Shanley personnel files from the Archdiocese of
Boston, see Boston Globe, Jan. 2, 2002, at A1; Signs of the Times, America, Apr. 22, 2002,
at 3; and Signs of the Times, America, Apr. 14, 2003, at 5.
58 canon law

profile of the priest as serial child abuser. As I shall discuss in greater detail in
the following section, canonical action could have been taken in cases of serial
abuse.
Third, 75 percent of all the alleged events occurred between 1960 and 1984.27
Although the wave of media reports reached a crest at the beginning of the
twenty-first century, the vast majority of cases of priest sexual abuse occurred
several decades earlier during the twentieth century. The highest level of incidents
in which priests abused minors commenced after Vatican II and abated shortly
after the promulgation of the 1983 Code of Canon Law. Relative to the number
of cases from the mid-sixties to the mid-eighties, the time period from 1950 until
1960 shows a low number of alleged incidents per year, and the time period from
1985 to 2006 reveals a similar relatively low number of cases. However, one must
be cautious in concluding that the low incidence of reports for the period from
1985 to 2006 means that there was necessarily a low incidence of child abuse
by Catholic clergy during the last two decades. Victims and mental health
professionals indicate that it may take years for a victim to summon the courage
to bring such a complaint. At the same time, the sharp decline in incidents
during the 1980s is statistically significant. For cases in which the abuse stopped
twenty years ago, one would now expect a relatively high degree of reporting.
This seems especially so in the environment following the 2002 sexual crisis,
which fostered more favorable conditions for victims reporting to religious and
secular authorities. The 2006 John Jay Study went even further in concluding:
“The decline in cases in the 1990s . . . is confirmed to be not simply a decline in
reporting cases, but in the incidence of unreported events.”28

C. Difficulties with the Canonical Process

In the wake of the revelations of 2002, it has been suggested that the procedural
safeguards intended in canon law to protect the rights of all the parties prevented
the imposition of canonical penalties on accused priests. In other words, it is
argued that canon law itself was the problem and not the failure of church
authorities to utilize canon law.29 In the decades prior to the 2002 crisis, canon
lawyers in the United States were advising bishops that the statute of limitations

27. 2004 John Jay Study, 8.

28. 2006 John Jay Study, 24.
29. A document issued by the United States Conference of Catholic Bishops, titled
USCCB Efforts to Combat Clergy Sexual Abuse Against Minors: A Chronology 1982–2006, 2,
states that in 1989: “With regard to canonical remedies to deal with priests who would not
return to ministry, NCCB/USCC officers and key staff begin discussing alternative
approaches to existing provisions of the Code of Canon Law with representatives of the
Roman Curia, especially the Code’s statute of limitations and its treatment of culpability.
Discussions focus on ways to streamline the penal provisions of the Code and the possibility
of an administrative process to remove a priest from the clerical state.” (emphasis added).
Available at http://www.usccb.org/comm./combatefforts.shml.
 canon law and the sexual abuse crisis 59

(prescription) and difficulty in meeting the requisite standard of proof to estab-

lish guilt (culpability) rendered it difficult if not impossible to impose a penalty
on a guilty priest.30
The statute of limitations or as it is referred to in canon law, “prescription,”
did bar prosecution of certain but not all cases of clergy sexual abuse. Pursuant
to the CIC-1983, the statute of limitations for the commencement of a canonical
penal process in a diocese was five years from the commission of the crime.31 In
1994, the Holy See promulgated a special law for the United States that altered
the statute of limitations to extend for ten years from the victim’s eighteenth
birthday.32 According to the 2006 John Jay Study, two-thirds of the cases were not
reported to dioceses until 1994, and one-third of the cases were not reported
until 2002.33 Since many of the incidents had been perpetrated decades prior to
their reporting, the 1994 change in the statute of limitations to run until
the victim’s twenty-eighth birthday did not permit the imposition of a canonical
penalty in such cases. The cases were already too old to fall within the canonically
prescribed period. Thus, the canonists were correct that in many instances
canonical prescription did prevent church authorities from prosecuting a case
pursuant to the canonical penal process.
However, the facts suggest that even the original five-year statute of limitations
should not have prevented canonical action against a priest who was a serial
child molester. As the Geoghan and Shanley cases illustrate, church authorities
were aware of multiple allegations against such priests well within the five-year
prescription period.34 Until the church’s response to the 2002 scandal, I am not
aware of any case in the United States in which a priest was dismissed from the
clerical state as a result of the diocesan penal process stipulated in canon law. In
the wake of the 2002 crisis and the failure of diocesan bishops to utilize the penal
process, the Congregation for the Doctrine of the Faith has routinely been rescind-
ing the prescription requirement for cases handled through the diocesan penal
process and through the administrative process.35

30. See, e.g., Francis G. Morrisey, The Pastoral and Juridical Dimensions of Dismissal
from the Clerical State and of Other Penalties for Sexual Misconduct, 53 CLSA Proceedings
221–39 (1991); and John P. Beal, Doing What One Can: Canon Law and Clerical Sexual
Misconduct, 52 Jurist 642–83 (1992).
31. See Canon 1362, § 1, 2°, CIC-1983.
32. The “derogation” was specific to the United States. See United States Conference
of Catholic Bishops, USCCB Efforts to Combat Clergy Sexual Abuse Against Minors: A
Chronology 1982–2006, at 2, sub “April 1994.”
33. 2004 John Jay Study, 7.
34. See note 28 supra.
35. See Canon 20, CIC-1983, which identifies the praxis of the Roman Curia as a
suppletory source of law.
60 canon law

The 1962 Instruction, Crimen sollicitationis, had reserved cases of clergy sexual
abuse to the Holy See.36 Pursuant to Canon 1555, Section 1, of the CIC-1917, the
reservation had the effect of suspending canonical prescription.37 Canon 1402
of the CIC-1983, which requires deference to the special law governing the
tribunals of the Holy See, arguably sustained the 1962 Instruction’s suspension
of prescription. If this analysis is correct, there was no statute of limitations in
effect from 1962 until the Holy See’s promulgation of the special law of 1994.
Although this interpretation is technically correct, it is problematic for two
reasons. First, the Instruction was never officially published by the Holy See, and
it only seems to have come to light because it was mentioned in a footnote in the
2002 Document from the Congregation for the Doctrine of the Faith.38 Whatever

36. See Brian E. Ferme, “Graviora delicta”: The Apostolic Letter M.P. sacramentorum
sanctitatis tutela, in Il Processo Penale Canonico 365, 369 (Zbigniew Suchecki ed.,
Laternan University Press 2003).
37. See Nicholas P. Cafardi, Before Dallas, The U.S. Bishops’ Response to Clergy
Sexual Abuse of Children 30–32 (Paulist Press 2008).
38. See Congregatio pro Doctrina Fidei, De delictis gravioribus, 3. There was a somewhat
similar document issued by the Holy See in 1922. Although the documents were never
officially promulgated, it could be argued that there was constructive notice of them. The
Instruction itself calls for distribution to bishops throughout the world who were to keep it
in the diocesan archives. However, the documents were apparently distributed by the Holy
See on a need to know basis to bishops and to a limited number of canonists. Although the
1962 Instruction permitted the religious superior to conduct a judicial or administrative
trial of the case of sexual abuse of a minor, it is also not clear that the Instruction was cir-
culated to religious superiors. Constructive notice occurs when the law’s existence is
known, or should be known, by the subject(s) of the law. For example, the famous decree
of the Council of Trent, Tametsi, was to be promulgated locally in each diocese throughout
the church. Due to a variety of historical circumstances such as opposition from the
Protestant government of a given geographic area, the local promulgation did not always
occur. Some canonists argued that Tametsi’s requirement of canonical form for the validity
of marriage between baptized persons was law by constructive notice. However, construc-
tive notice necessitates that there is at least some generally available form of notice of a
law’s existence as in the case of Tametsi where the law was not promulgated in a particular
diocese, but the law’s existence was evident from its promulgation and implementation in
other dioceses. The total absence of public promulgation of the 1962 Crimen sollicitationis
and its 1922 predecessor mitigate against constructive notice. Unlike Tametsi, which was a
public document of an Ecumenical Council with widespread, everyday, continuous appli-
cation to the celebration of marriage throughout the universal church, there was no guar-
anty that a bishop of a given diocese either had actual notice or should have known of the
1922 and 1962 Instructions about the relatively rare cases of solicitation in the confessional—
not to mention the Instruction’s brief mention of the sexual abuse of a prepubescent child.
To suggest that there was constructive notice of Crimen sollicitationis is tantamount to
saying that a law is given juridical effect without promulgation, that the lawgiver
does not inform the diocesan bishop of the law’s content or even existence, that the law
about one crime—solicitation in the confessional—also happens to mention briefly
 canon law and the sexual abuse crisis 61

force of law it may have once enjoyed, it was largely forgotten until 2002. The fact
that in 1994 the Holy See issued special law for the United States that extended
prescription to the victim’s twenty-eighth birthday indicates that even the Holy
See had forgotten the 1962 Instruction or at least overlooked its suspension of
prescription. Second, Canon 1402 notwithstanding, the Instruction was arguably
abrogated with the promulgation of the CIC-1983 which, as just discussed,
contained its own procedural provisions.
The 1962 Instruction was primarily concerned with the crime of solicitation
by a priest confessor of a penitent. The sexual abuse of a prepubescent child (cum
impuberibus) is mentioned only briefly at the end of the document comparing the
abuse to the “worst” or “most injurious” crime. A solicitation case involves an
accusation that a priest solicited a penitent for a sexual act during sacramental
confession. Based upon a rough English translation that appeared in the wake of
the sexual abuse crisis, the Instruction was interpreted by some to require the
same level of confidentiality in sexual abuse cases as in solicitation cases.39 This
led to the assertion that the Instruction proved that the church adopted a proce-
dure for the cover-up of sexual abuse.40 However, from a legal perspective, there
are numerous problems with this assertion.
First, an examination of the original Latin text of the Instruction reveals that
the reference to child abuse is limited to abuse of “prepubescent children.” Even
if it had been an attempt at a cover-up, it would not have pertained to the
vast majority of clergy sexual abuse cases in the United States which involved
adolescent males. Second, the Instruction expressly required anyone who knew
about the abuse of the child to make a denunciation of the cleric to the appropriate
church official under pain of excommunication.41 The Instruction was not
attempting to discourage the denunciation of a priest, rather it expressly required
it under penalty. Third, Number 72 of the Instruction contains a mutatis . . .
mutandi clause, which differentiates the process for the prosecution of a crime
for the abuse of the prepubescent child from that for a solicitation in the confes-
sional case.42 The latter involves the inviolability of the seal of sacramental

another crime—the sexual abuse of a prepubescent child, and that the diocesan bishop is
nonetheless bound by the law. I know of no fair and reasonable system of law that would
endorse such an approach. See Lon L. Fuller, The Morality of Law 39 (Yale University
Press 1967), which recognizes publication as a factor necessary to the validity of law.
39. This English translation is available at http://news.bbc.co.uk/1/shared/bsp/hi/
pdfs/28_09_06_Crimen_english.pdf. See Canon 88, § 2, CIC-1917, which established the
age of puberty for males at 14 and females at 12.
40. See Thomas P. Doyle, A. W. R. Sipe, & Patrick J. Wall, Sex, Priests, and Secret
Codes 47–51 (Volt Press 2006).
41. See Crimen sollicitationis, n. 15. This seems to expand the requirement of Canon
904, CIC-1917, which referred only to the penitent.
42. See John P. Beal, The 1962 Instruction ‘Crimen Sollicitationis’: Caught Red-Handed or
Handed a Red-Herring, 41 Studia Canonica 199, 231 (2007), which explains that one of
62 canon law

confession, and it therefore requires a process of strict confidentiality. The case

of clergy sexual abuse, unless the abuse was also a solicitation in the confessional
case, would be addressed to the ordinary processes in canon law with certain
modifications specified in the Instruction. All canonical cases, whether they
involve marriage annulments, contentious penal trials, or some other judicial or
administrative procedure, are treated with a certain level of confidentiality.
Confidentiality in canonical cases serves the following purposes: (1) it permits
parties to the action and other witnesses to testify freely, (2) it sets the conditions
in which the accuser might testify to the crime without undue publicity, and
(3) it protects the good reputation of the accused until a judicial finding of guilt
and imposition of a canonical penalty. Fourth, although canon law stipulates
confidentiality in the process, the penalty of removal from the clerical state is not
a confidential matter in canon law but an external and verifiable act. Moreover,
the obligation of confidentiality referred only to the canonical process of the case,
and in my view, it would not have prohibited reporting a crime to civil authorities.
In addition to all the above problems with the assertion of international cover-up
on the part of church hierarchy, it is also questionable as to whether the
Instruction ever enjoyed force of law in the church due to its lack of promulgation.
Certainly, the Instruction fails to prove that the Holy See intended to cover-up
cases of clergy abuse.
The second alleged obstacle to the prosecution of a clergy sexual abuse case
involved the issue of culpability. Canonists advised bishops that the psychological
state of a priest who committed an act of sexual abuse of a minor would mitigate
the priest’s culpability in a canonical trial.43 In other words, psychological factors
were thought to pose difficulty in meeting the standard of proof required by
canon law in a case of a priest accused of abusing a minor. The standard of proof
in the penal process for a determination of guilt is “moral certainty.” This is
the same standard for nullity of marriage cases. In a 1942 Allocution to the
Roman Rota, Pope Pius XII distinguished moral certainty from the extremes of
“absolute certainty” and “greater or lesser probability.” Absolute certainty
requires that “all possible doubt as to the truth of the fact and the existence of the
contrary is entirely excluded.” Greater or lesser probability “leaves a foundation
for the fear of error.” In contrast, moral certainty “is characterized . . . by the
exclusion of well founded or reasonable doubt.”44 The ecclesiastical tribunal

the most significant differences would be that a sexual abuse case would be adapted so as
not to conflict with the secular law of the particular jurisdiction.
43. See, e.g., Morrisey, The Pastoral and Juridical Dimensions of Dismissal from the Clerical
State and of Other Penalties for Sexual Misconduct, 232; and Beal, Doing What One Can:
Canon Law and Clerical Sexual Misconduct, 679–80.
44. Pius Pp. XII, Allocutio adstantibus Praelatis Auditoribus ceterisque Officialibus et
Administris Tribunalis Sacrae Romanae Rotae necnon eiusdem Tribunalis Advocatis et
Procuratoribus (Dei 1 mensis oct. anno 1942), 34 AAS 338–43 (1942); English translation
 canon law and the sexual abuse crisis 63

relies on the moral certainty or beyond a reasonable doubt standard in issuing

a judicial decision that a marriage is null. The reasonable doubt standard is
similar to that which is required in American criminal trials when a person has
been accused of sexually abusing a minor. Likewise, canon law requires that the
reasonable doubt standard be met in sexual abuse cases prior to pronouncing
the guilt of the priest and imposing the penalty of permanent removal from the
clerical state. The conclusion that meeting the moral certainty standard would
prove too difficult in the penal process that deals with a priest accused of sexually
abusing a minor must be evaluated in light of the significant judicial structures
and procedures functioning in virtually every diocese in the United States.
Canon law requires each diocese to establish a tribunal in which judicial cases
may be heard and resolved.45 Diocesan tribunals were routinely finding moral
certainty in nullity of marriage cases at the same time that church authorities
were receiving credible allegations of sexual abuse against priests. Since Vatican
II, the diocesan tribunals in the United States have functioned successfully to
process hundreds of thousands of marriage annulments. Over the ten-year
period from 1985 until 1994, the contentious process was utilized to grant
decisions declaring the nullity of marriage in average of over 40,000 cases per
year in the diocesan tribunals of the United States. Each case included a first
instance contentious trial, the sentence of which was confirmed by second
instance independent appeals tribunal. In comparison, all other diocesan tribunals
combined throughout the rest of the world utilized the contentious process to
grant annulments in an average of less than 14,000 cases per year over the same
ten-year period.46 Given the diocesan tribunals’ record of success in adjudicating
marriage cases, there is no reason why diocesan tribunals could not have been
utilized to adjudicate an allegation of sexual abuse against a priest.
Critics of the diocesan tribunals have charged that from the late 1960s through
the early 1990s, the tribunals misused psychological evidence in granting
marriage annulments.47 On numerous occasions, Pope John Paul II expressed
similar concern about excessive deference to psychological factors in the contentious
process for marriage cases.48 The excessive deference being shown to psycho-
logical factors in marriage cases may have influenced bishops into thinking that

in William H. Woestman, O.M.I., Papal Allocutions to the Roman Rota, 1939–2002,

at 17–22, at 18 (Saint Paul University 2002).
45. See Canons 1420 and 1421, CIC-1983.
46. See Robert H. Vasoli, What God Has Joined Together: The Annulment
Crisis in American Catholicism 4–5 (Oxford University Press 1998).
47. See id. 5.
48. See, e.g., Ioannes Paulus Pp. II, “Allocutiones: I. Ad Rotae Romanae Auditores coram
admissos (Die 5 m. februarii a. 1987),” 79 AAS 1454–58 (1987). For a complete English
language collection of John Paul II’s annual talks to the Roman Rota, see William H.
Woestman, O.M.I., Papal Allocutions to the Roman Rota, 1939–2002 (Saint Paul
University 2002).
64 canon law

the moral certainty standard could not be met in a penal process against a priest
for child abuse. Such excessive deference would mitigate the culpability of the
crime on the ground that the accused possessed a diminished capacity to control
his impulses.49 In 1988, Paul John Paul II observed that “only the most severe
forms of psychopathology impair substantially the freedom of the individual . . .
psychological concepts do not always correspond with canonical . . . the categories
that belong to psychiatry or psychology are not automatically transferred to the
field of canon law.”50 In canon law, culpability enjoys the presumption of law
when the offender has in fact committed an external violation of the law.51
Thus, the claim that the canonical penal process rendered it difficult or
impossible for an Ordinary to prosecute all cases of clergy sexual abuse of a
minor possesses only limited support. With regard to the statute of limitations,
an allegation made several decades after the abuse is alleged to have taken place
would have been barred by the original five-year period of prescription. This
would also be true even under the present statute, which permits the initiation
of a case within ten years of the victim’s eighteenth birthday. However, the
statute of limitations was unlikely to have been a problem in prosecuting a priest
who committed serial acts of child abuse when there were ongoing multiple
allegations against the priest. Likewise, the moral certainty standard of proof
required in the penal process should not have presented a problem, especially in
a case that involved multiple independent allegations of sexual abuse against a
priest. It remains true that the moral certainty standard might be difficult
to meet in a case in which only one allegation is brought without other corroborat-
ing evidence. This is not a problem unique to canon law but to any just legal
process in which conviction of a serious crime requires sufficient evidence that
the crime was committed.
Neither prescription nor culpability barred the imposition of canonical penalties
on priests who were guilty of serial child abuse. A small number of serial abuser
priests accounted for a significant percent of the child abuse covered by the John
Jay studies. Taking canonical action against such priests would have prevented a
great deal of injury to the victims. Canonical action against serial abusers would
also have conveyed that the Catholic Church was acting responsibly to prevent
future abuse.

49. Canon 1321, § 1, CIC-1983.

50. Ioannes Paulus Pp. II, Allocutiones: XII, Ad Romanae Rotae Auditores simul cum
officialibus et advocatis coram admissos, anno forensi ineunte (Die 25 mensis ianuarii
anno 1988), 80 AAS 1178, 1180–81; English translation in William H. Woestman,
O.M.I., Papal Allocutions to the Roman Rota, 1939–2002, 200 (Saint Paul University
2002).
51. Canon 1321, §3, CIC-1983.
 canon law and the sexual abuse crisis 65

II . the failure of the rule of law: antinomian and legalistic

approaches

Canon law functions to set the conditions for a just ecclesial order, protect
individual rights while respecting the common good, facilitate the mission of the
church in preaching the gospel and administering the sacraments, encourage
acts of charity, and promote peace and security in the here and now even as it
points to the ultimate justice of the life hereafter and the consummation of time.
These objectives of the rule of law in the life of the church are diminished by
antinomian and legalistic approaches. Antinomianism undervalues the signifi-
cance of canon law in the life of the church, and it is often accompanied by an
authoritarian legalism on the part of hierarchical superiors. In the antinomian
absence of the proper appreciation of canon law, superiors may feel free to use
their lawful power in an authoritarian manner. By disrupting the rule of law in
the life of the church, antinomianism and legalism hinder canon law from
fulfilling its objectives.

A. Antinomianism and Legalism during the Nineteenth Century

The history of the Catholic Church in the United States during the nineteenth
century offers a historical context for understanding the failure of canon law to
address cases of clergy sexual abuse. Both antinomian and legalistic approaches
to canon law in the United States were evident during the nineteenth century.
In his book, Defending Rights in the Church, Kevin E. McKenna offers some
prominent examples.52 For forty years during the second half of the nineteenth
century, James McMaster, a Catholic layman heavily influenced by the Oxford
movement, published the Freeman’s Journal and Catholic Register, which was at
the time “the most widely read Catholic newspaper in the country,” and read by
“more than 85% of the English speaking diocesan clergy of the United States.”
McMaster utilized this forum to lament the inapplicability of canon law in the
United States due to the country’s missionary status.53 Writing in the Freeman’s
Journal and Catholic Register, Eugene O’Callahan, a parish priest in Ohio,
employed a nom de plume to complain that certain bishops exploited the missionary
status of the United States to avoid establishing proper parishes entrusted to
permanent pastors with definite rights and responsibilities under canon law.54
McMaster, O’Callahan, and a group of like-minded priests sought to bring
their concerns about this antinomianism to Vatican I, where some American

52. See Kevin E. McKenna, Defending Rights in the Church 49–164 (Paulist
Press 2007).
53. See id. at 49–70. See also Robert F. Trisco, Bishops and Their Priests in the
United States 157–158 & 175–176 (Graland Publishing 1988).
54. See id. at 70–85. See also Trisco, Bishops and Their Priests, 157–59.
66 canon law

bishops like Rochester’s Bernard J. McQuaid successfully blocked the endeavor.55

In an example of how an antinomian attitude to canon law sometimes leads to
an authoritarian legalism, the Bishop of Alton, Illinois, Peter J. Baltes, went so
far as to ban publication of the Freeman’s Journal and Catholic Register, but he
eventually retracted the censure when other bishops refused to join him in a
united front.56
Richard L. Burtsell, a priest and expert in canon law in New York City during
the postbellum period, shared the concern about the plight of canon law in the
United States. When it was published in 1887, Burtsell’s book, The Canonical
Status of Priests in the United States, elicited a strong critical response from many
bishops.57 Consistent with the positions of McMaster and O’Callahan, Burtsell
maintained that bishops in the United States routinely flouted canon law. In his
view, certain bishops acted in an authoritarian manner in the appointment,
transfer, and removal of parish priests, in the manner of imposing penalties,
and in denial of appeals against the arbitrary exercise of episcopal authority.
A member of the so-called New York Academia, Burtsell joined fellow priests
such as Edward McGlynn in advocating an Americanism that called for the adoption
of democratic principles by the Catholic Church in the United States.58 When
New York’s Archbishop Michael A. Corrigan disciplined McGlynn by removing
him from his parish and imposing the penalty of excommunication for his
strong pro-socialist political activities, Burtsell rose to the defense.59 He also
served as a canonical advocate for Louis Lambert, a priest of Rochester, New
York, whose ministerial faculties had been severely restricted by Bishop
McQuaid.60 In response to Burtsell’s advocacy, Archbishop Corrigan removed
him from his office as Defender of the Bond at the Archdiocesan Tribunal and
as founding pastor of Epiphany Parish on the East side of Manhattan, transferring
him to a rural parish upstate. Obedient to the church, Burtsell accepted the
transfer despite its apparent inequity.61 Corrigan’s removal of Burtsell from his
offices in retaliation for his representation of McGlynn exemplifies a mix of
antinomianism and legalism. The antinomian element in the archbishop’s
actions corresponded to the inapplicability of canon law that established
permanent pastors who possessed canonical rights. The authoritarian use of his

55. See id. at 60–63. See also Trisco, Bishops and Their Priests, 189–90.
56. See id. at 63–69. See also Trisco, Bishops and Their Priests, 187.
57. See id. at 87. See also Trisco, Bishops and Their Priests, 252–253 & 257–258.
58. See id. at 88–90. See also Robert Emmett Curran, S.J., The McGlynn Affair and the
Shaping of the New Conservative Catholicism, in The American Catholic Religious Life:
Selected Historical Essays 183-201 (Joseph M. White ed., 1988).
59. See id. at 92–94. See also Trisco, Bishops and Their Priests, 251.
60. See id. at 94–98. See also Trisco, Bishops and Their Priests, 257.
61. See id. at 105–06. See also Trisco, Bishops and Their Priests, 257–58.
 canon law and the sexual abuse crisis 67

legitimate power of church governance, which sacred power itself was verified in
canon law, reflected legalism.
Another nineteenth-century priest with expertise in canon law, Peter A. Baart,
defended Dominic Kowalski, a Polish-born priest ministering in Detroit who
was at the center of an immense intraparish conflict with tragic consequences.
Spanning the years from 1885 to 1897, the conflict included the issue of trusteeism,
allegations of Kowalski’s sexual impropriety with adult women, questions over
financial accountability, intractable disagreement between rival Polish factions
of the parish community, and a parish riot which resulted in the death of one of
the rioting parishioners. Baart appealed Kowalski’s suspension and removal as
pastor to the Congregation for the Propagation of the Faith on the grounds that
the bishop had removed Kowalski without notice or a hearing and that the
charges against him had never been proven.62 Notice of the charges and the
opportunity to be heard by an impartial judge remain fundamental procedural
guarantees of natural law. The imposition of a canonical penalty in the absence
of these natural rights represented another example of how an authoritarian
legalism may stem from antinomianism.
Toward the end of the nineteenth century, in 1893, Pope Leo XII appointed
Archbishop Francesco Satolli as the first Apostolic Delegate to the United
States.63 Satolli not only facilitated the reconciliation of Father Kowalski but he
also lifted the excommunication imposed on Father McGlynn.64 The appointment
of an Apostolic Delegate, cessation of missionary status, and eventual promulgation
of the 1917 Code of Canon Law contributed to a more balanced functioning of
canon law in the Catholic Church in the United States. These examples from
the nineteenth century are not intended to suggest that every American bishop
vacillated between antinomian and legalistic approaches to canon law. However,
the examples demonstrate that antinomianism and authoritarian legalism had
already posed problems for the rule of canon law in the United States during the
nineteenth century. Nineteenth-century antinomianism and legalism seem
helpful in explaining the failure of the rule of canon law in dealing with
clergy sexual abuse in the United States during the second half of the twentieth
century.

B. Post–Vatican II Antinomianism: The Psychological Approach

The approach to canon law throughout the worldwide Catholic Church during
the several decades preceding and following Vatican II also assists in understand-
ing the 2002 sexual abuse crisis in the United States. It is fair to describe the

62. See id. at 114–19. See also E. Brooks Holifield, God’s Ambassadors: A History
of the Christian Clergy in America 192–194 (Wm. B. Eerdmans Publishing Co.
2007).
63. See id. at 145, 161–64.
64. See id. at 121–22. See also Trisco, Bishops and Their Priests, 260–61.
68 canon law

approach to canon law in the several decades immediately prior to Vatican II as

sometimes manifesting characteristics of legalism. This preconciliar legalism
reflected the view of canon law as an end in itself, separated from its spiritual
underpinning. The separation may result in casuistical and authoritarian manifesta-
tions of legalism.65 In 1959 Pope John XXIII announced his intention to convoke
an Ecumenical Council, and simultaneously, the pontiff called for the revision of
the 1917 Code.66 Pope John had urged a general renewal (aggiornamento) in the
church.67 The desire to revise the 1917 Code stemmed from the realization that
the legalism of the preconciliar period needed to be corrected in light of recent
developments, especially in the areas of theological anthropology and ecclesiology.68
These developments at the Ecumenical Council led Pope Paul VI to endorse a
much needed “new habit of mind” (novus habitus mentis) with regard to church
law and discipline.69
The process of the revision of the 1917 Code commenced at the conclusion
of the Council and continued throughout the pontificates of Pope Paul VI and
John Paul I with the hope that the new legislation would reflect the theology
of Vatican II.70 Over the course of almost three decades of revision, although
theoretically still the universal law of the church, the 1917 Code fell into general
disuse.71 It was in many instances abrogated in favor of postconciliar innovations

65. See Ladislas Örsy, Theology and Canon Law 96–100 (Liturgical Press 1992),
which discusses the separation between canon law and substantive values from after the
Council of Trent until Vatican II.
66. See Giuseppe Alberigo & Joseph A. Komanchak, 1 History of Vatican II, at 1
(Orbis Books 1995), which describes Pope John XXIII’s announcement at the Basilica of St.
Paul Outside the Walls on January 25, 1959 of the Ecumenical Council, Synod for the
Diocese of Rome, and the “desired and awaited modernization of the Code of Canon Law.”
67. See id. at 504–05, which discusses Pope John’s “spirit of search for ‘aggiornamento.’”
68. See Yves Congar, 1 I Believe in the Holy Spirit 66 (David Smith trans., Seabury
Press 1983), which recalls his thought at the start of Vatican II that the desired renewal in
the life of the Church would flow from a Christian anthropology that entails a new under-
standing of the human person.
69. Paulus Pp. VI, Allocutiones, (Die 20 mensis nov. anno 1965), 1 Communicationes
41 (1969).
70. See Paulus Pp. VI, Allocutiones: Ad Romanae Rotae Auditores simul cum officialibus et
advocatis coram admissos, Aequitas Canonica, (Die 8 mensis februarii anno 1973), 65 AAS
95, 98 (1973), which calls for the revision of the new Code of Canon Law to be guided by
the principle of canonical equity. See also John J. Coughlin, O.F.M., Canonical Equity, 30
Studia Canonica 403, 421–33 (1996), which compares the CIC-1917 and the CIC-1983
concluding that the present statute has an enhanced sense of the canonical equity that was
already evident in the former statute.
71. See Andrew Greeley, Canon Law and Society, in The Future of Canon Law, 48
Concilium 130, 131 (N. Edelby, T. Urresti, & P. Huizing eds., 1969), which concludes
from a sociological perspective that canon law “in its present form has become largely
irrelevant.”
 canon law and the sexual abuse crisis 69

ad experimentum.72 In retrospect, the ecclesial ambiance in the wake of Vatican II

represented a swing of the pendulum from the preconciliar legalism toward
the antinomian. While it would overstate the matter to claim that the juridical
structures of the church disintegrated during the postconciliar years, it seems
accurate to observe that proper function of law in the church became unbalanced.
The legalism of the past had been supplanted not only by openness to the new
spirit but perhaps also by the tendency to underestimate the need for a healthy
ecclesial order. The culture of canon law was reduced, with the effect that law
was seen as an obstacle to the manifestation of the spirit in the church.
Three factors in particular seem to have contributed to the failure of canon
law in addressing clergy sexual abuse. First and most important, the years
following Vatican II witnessed a decreased emphasis on the traditional spiritual
discipline of Christian life. In seminary formation, religious life, and diocesan
priesthood, individualism and the desire for personal fulfillment displaced the
asceticism traditionally associated with being a disciple of Christ. The traditional
Catholic asceticism values a daily commitment to celebration of the Mass, frequent
confession, communal and private prayer, fasting, self-denial, and acts of charity.
In an insightful study of the sexual abuse crisis, After Asceticism: Sex, Prayer and
Deviant Priests, the Linacre Institute attributes the large number of priests who
sexually abused minors during the post–Vatican II period to a breakdown in
traditional asceticism.73 This is not to suggest that the reform of canon law based
upon Vatican II degraded traditional spiritual values. On the contrary, Vatican II
represented a dissipation of legalism, a call to retrieve the authentic inner meaning
of the law, and openness to developments in the secular realm especially
concerning the protection of human rights.74 The breakdown in traditional
spiritual discipline together with an antinomian approach to canon law were
among the conditions that coincided with increased levels of clergy sexual abuse
in the United States during the post–Vatican II years.
Second, canonists advised bishops in the United States to adopt a pastoral
approach rather than to utilize the canonical process. As Nicholas P. Cafardi indicates,
concern for “fraternal correction and pastoral solicitude” led canon lawyers to
counsel “that the bishop’s first response should be pastoral and not punitive.”75

72. See Paul Winninger, A Pastoral Canon Law, in The Future of Canon Law, 48
Concilium 51, 59 (N. Edelby, T. Urresti, & P. Huizing, eds., 1969), which calls for an
“experimental law” to replace the 1917 Code.
73. See Linacre Institute, After Asceticism: Sex, Prayer, and Deviant Priests 3
(Author House 2006).
74. See Walter Kasper, The Theological Foundations of Human Rights, 50 Jurist 152–53
(1990), which states that from the Enlightenment through the nineteenth century, the
church sometimes expressed hostility to the new human rights language.
75. Cafardi, Before dallas: The U.S. Bishops’ Response to Clergy Sexual Abuse
of Children, 21.
70 canon law

Setting pastoral concerns over against the rule of canon law typifies antinomian-
ism. This approach ignores the reality that justice in the community depends on
a communal order protected by the rule of law. The pastoral solicitude shown to
the priest guilty of abuse was often not matched by pastoral solicitude for the
victim(s) injured by the priest’s conduct.
Third, the bishops opted for a therapeutic approach to the exclusion of
correcting the grave injury through the rule of law. Statistical information in the
John Jay studies reveals that from the end of Vatican II to the early 1980s, there
was a dramatic increase in the number of allegations of sexual abuse against
priests.76 It was also during this time period that the infamous crimes of priests,
such as Boston’s John Geoghan and Paul Shanley, first came to the attention of
diocesan officials.77 In response to these kinds of allegations, bishops routinely
sought psychological evaluations and treatment for the offenders. The church’s
emphasis on a psychological model reflected a general trend in American
society, and many mental health professionals believed at the time that a sexual
abuser could be reformed with proper treatment.78 Although the psychological
and canonical approaches have never been mutually exclusive, the focus shifted
from punishment for the crime to the rehabilitation of the priest through
therapy. It is fair to observe that the bishops were not acting in malice. As pastors
of the church, they believed the psychological approach to be proper. No doubt,
lawyers and insurances companies also advised them that placing an accused
priest in psychological treatment would be necessary to demonstrate an absence
of negligence in civil lawsuits brought by victims against the diocese.79
When the psychological model replaced the canonical order, the conditions
were set for great resulting damage to individuals and the common good. My
point is not that post–Vatican II antinomianism caused an increased level of
sexual abuse by Catholic priests. As the 2004 John Jay Study revealed, in every
year for the period covered by the study (1950–2002), there were incidents of
sexual abuse of minors by priests reported. The incidence of reported abuse
increased nearly threefold starting in the late 1960s and throughout the 1970s in

76. See 2004 John Jay Study, 28.

77. See Pam Belluck, Depositions Show Cardinal Was Notified Early of Abuse, N.Y. Times,
Nov. 20, 2002, at A16, which states that in depositions given in civil suit against the
Archdiocese of Boston, Cardinal Law acknowledged that he transferred abusive priests on
the basis of psychological and medical opinion that the priests had been effectively treated
and would not likely repeat their crimes.
78. See D. Kelly Weisberg, The “Discovery” of Sexual Abuse: Experts’ Role in Legal Policy
Formulation, 18 U. C. Davis L. Rev. 1, 2–10 (1984), which discusses the shift from crimi-
nalization to the psychological approach with regard to pedophilia during the 1970s.
79. See Adam Liptak, Religion and the Law, N.Y. Times, Apr. 14, 2002, at 1, 30, which
observes that insurance companies and not bishops often selected lawyers and legal
tactics in sexual abuse cases.
 canon law and the sexual abuse crisis 71

relation to the other decades covered by the study.80 There is no statistical

available evidence to demonstrate that from 1950 until the late 1960s cases of
clergy sexual abuse were addressed through the canonical process and that in the
late 1960s the canonical process was abandoned. Rather, my point is that when
the incidence of sexual abuse perpetrated by priests began to increase sharply in
the late 1960s, the canonical process if utilized properly could have served to
check the abuse. According to the 2004 John Jay Study, the incidents of abuse
decreased dramatically starting in the early 1980s and continued to decrease
until 2002. The decreased level of abuse coincided with the promulgation of the
CIC-1983 and the implementation of sexual abuse policies by diocese and
religious communities starting in the late 1980s. The statistical evidence
suggests the inference that the rule of canon law expressed in the universal law
of the church and the policies of American dioceses and religious communities
has proved effective in decreasing the incidence of sexual abuse of minors by
priests. Even if antinomianism had no direct causal relationship to increased
levels of abuse, it nonetheless mitigated against an adequate canonical response
to the problem.
Contrary to antinomianism, the statistical evidence points to the importance
of penal sanctions in canon law. The 2004 John Jay Study reveals that from 1950
to the mid-1960s, there was a relatively low incidence of clergy sexual abuse. The
low incidence of abuse corresponded with a strong respect for canon law, which
sometimes morphed into authoritarianism on the part of church superiors.
Unfortunately, there is apparently no available statistical evidence of the number
of clergy sexual abuse cases dealt with by the canonical process from 1950 to the
mid-1960s. Even if there were no trials during this time period, a proper respect
for canon law, not to mention the legalistic exaggeration of its importance, would
have communicated to clergy that the commission of a grave delict such as sexual
abuse of a minor carried serious canonical consequences. Consistent with post–
Vatican II antinomianism, any hint at a coercive element in canon law was
viewed as contrary to the spirit of renewal. Canonists argued that the new post–
Vatican II law did not favor the imposition of penalties on priests through the
penal process. In regard to priests who were guilty of the sexual abuse of minors,
Francis G. Morrisey stated “the imposition of penalties, and particularly a return
to the lay state, should be a last resort, a measure not applied until all other
possibilities are exhausted.”81 The Catholic Church is a community based on
faith, and the canon law which orders the community of faith is not defined
primarily by the coercive element. However, the failure to prosecute clergy sexual
abuse cases and to impose the permanent penalty of dismissal from the clerical
state on guilty priests demonstrates that the coercive element retains significance

80. 2004 John Jay Study, 24.

81. Morrisey, Pastoral and Juridical Dimensions, 227.
72 canon law

in maintaining a just order in the church. Predictability is an essential element

of any system of law. In terms of clergy sexual abuse, it warns the abuser that his
actions will have serious consequences. It assures the victims that the canon law
is designed to prevent future harm. It communicates to the church and to society
that the sexual abuse of minors by priests will not be tolerated in the church.
Vatican II was never intended to usher in an antinomian age. Following his
election as the Successor to Saint Peter in 1978, Pope John Paul II was determined
to check the antinomianism that had surfaced during the postconciliar years.
When he promulgated the new Code on the first Sunday of Advent in 1983,
John Paul II expressly acknowledged that the legislation was a response to the
“insistent and vehement demands of the bishops throughout the world.”82 Joined
with the Successor to Peter, the college of bishops had discerned the pressing
need to restore the rule of canon law in the church. Referring to the 1983 Code
as the “final document of Vatican II,” the Supreme Legislator intended the
revised universal law of the church to express in juridical terms the dynamic
theological perspective of the Council.83 While the new Code had the general
goal of restoring the balance between law and spirit in the life of the universal
church, it also affirmed the significance of the church’s penal order in dealing
with cases of the sexual abuse of minors by clergy. Antinomianism in the United
States defeated these general and specific goals of the rule of canon law.

C. The Legalist Response

The antinomianism of the second half of the twentieth century was met with a
legalistic response by the U.S. bishops at the start of the twenty-first century.
Confronted with the crisis of 2002, the bishops abrogated the psychological
model in favor of an absolute rule. In the spring of 2002, Pope John Paul II sum-
moned the American cardinals to the Vatican and urged them to deal with
the problem.84 Although several of the American cardinals had impressive
backgrounds in canon law, the Rome meeting failed to result in unanimity about
the rule of law.85 When the U.S. bishops assembled in Dallas in June 2002,
the atmosphere might fairly be described as one of extreme urgency, if not

82. See Ioannes Paulus Pp. II, Constitutio Apostolica Sacrae Disciplinae Leges (Die 25
mensis ian. anno 1983), xvi, 75 AAS II xi (1983).
83. Giovanni Paolo II, Il Diritto Canonico inserisce il Concilio nella nostra vita, 15
Communicationes 128 (1983).
84. See John Paul II, Address to Summit of Vatican, U.S. Church Leaders, 31 Origins
757, 759 (2002) (“[T]here is no place in the priesthood and religious life for those who
would harm the young.”).
85. See Adam Liptak, Scandals in the Church: News Analysis; Damage-Control Mode, N.Y.
Times, Apr. 26, 2002, at A1, which states that the cardinals’ statement following the
Vatican meeting exhibited classical signs of damage control by an institution in crisis.
 canon law and the sexual abuse crisis 73

bordering on the hysterical.86 Clearly under enormous pressure from the media
and victims groups, the bishops adopted a so-called “zero-tolerance” policy.87
Pursuant to the Dallas policy, any priest with an admitted or proven act against
him at any time was to be expelled from the clerical state or banned from public
ministry for life.88 The bishops elected to correct the decades-long absence of a
canonical response to the problem with a rule of strict criminal liability.
Law hastily framed runs the risk of abrogating any semblance of fundamental
fairness and justice. In the months following Dallas, it was not uncommon for a
priest with a single allegation against him, which was placed in his diocesan
personnel file twenty or more years ago, to be summarily dismissed from an
active and fruitful ministry. Following years of faithful service, the priest suddenly
found himself deprived of his life’s work and with his reputation irreparably
damaged. Placed on indefinite administrative leave without adequate notice or
opportunity to be heard, he received the same penalty as a serial child abuser.
The implementation of the zero-tolerance approach in certain instances stunned
priests and their parishioners and caused attorneys for the accused to raise
questions about a lack of fundamental due process.89
The due process concerns for the rights of the accused included, inter alia, the
following issues: the lack of notice of the precise nature of the allegation; the
imposition of indefinite administrative leave with no legal recourse; the vague-
ness of the definition of the offense of sexual abuse in the Dallas policy; the dis-
regard of the statute of limitations, which special canon law has established as
ten years running from the victim’s eighteenth year; the denial of the opportunity
to be heard and offer a defense; the absence of proportionality in penalties; and
the retroactive application of law.90 Few if any American or canon lawyers
would dispute that these issues pertain to the fundamental human rights of

86. See Bishop Wilton Gregory, Presidential Address Opening Dallas Meeting, 32 Origins
97, 101 (2002), which describes media coverage as sometimes “hysterical and distorted”.
87. See Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual
Abuse of Minors by Priests, Deacons, or Other Church Personnel: Pending “Recognitio,” 9A, 32
Origins 107, 108 (2002), which mandates that “even for a single act of sexual abuse of a
minor—past, present or future—the offending priest or deacon will be permanently
removed from ministry.”
88. See Charter for the Protection of Children and Young People, Art. 5, 32 Origins 102,
104 (2002). The Charter stipulates: “If the penalty of dismissal from the clerical state has
not been applied (e.g., for reasons of advanced age or infirmity), the offender is to lead a
life of prayer and penance. He will not be permitted to celebrate Mass publicly, to wear
clerical garb or to present himself as a priest.” Id.
89. See Laurie Goodstein, Call for Revision Means More Priests Are Likely to Fight Zero-
Tolerance Dismissals, N.Y. Times, Oct. 20, 2002, at A14.
90. See John P. Beal, Hiding in the Thickets of Law, Canonical Reflections on Some
Disturbing Aspects of the Dallas Charter, 187 America 15, 15–19 (Oct. 7, 2002), which iden-
tifies and discusses many of the canonical problems with the policy.
74 canon law

an accused person.91 The lack of concern to frame a fair and just policy that
would protect the rights of the accused displayed a strange combination of both
antinomian and legalistic approaches. On the one hand, the bishops seemed
simply to ignore many of the requirements of the natural law as expressed in
canon law. On the other hand, the bishops adopted an absolute rule that permitted
little or no discretion.
The Holy See declined to grant approval (recognitio) to the Dallas policy even
on an experimental basis.92 A mixed commission of representatives from Rome
and the American bishops was formed to suggest revisions. It is perhaps ironic
that the Vatican found itself in the position of raising questions about the Dallas
policy, which violated quite elementary principles of American justice. However,
these same basic principles are shared by the church’s canon law.93 In response
to the recommendations of the mixed commission, it was necessary for the
bishops to reconsider the policy approved at Dallas. Assembled in Washington
in November 2003, the bishops affirmed the zero-tolerance approach but
provided for it to be implemented in accord with the procedural requirements of
canon law.94 The rule of law is intended to set the conditions for a just ecclesial
order in which the rights of the individual are balanced with the requirements of
the common good. Antinomianism stifled the rule of law in permitting the grave
crime to go unpunished, while legalism undermined confidence in canon law by
creating the impression of a lack of justice for victims and accused alike.

91. See James H. Provost, Book II, The People of God, in CLSA-1985, 117, 134–37, which
discusses the development of a list of fundamental rights for the 1983 Code and the simi-
larities with the Bill of Rights and United Nations Declaration on Human Rights.
92. See Letter of the Cardinal Prefect of the Congregation for Bishops, 32 Origins 341 (Oct.
31, 2002).
93. See Provost, Book II, The People of God, 134–38.
94. See Charter for the Protection of Children and Young People, Revised, 32 Origins 409,
412 (2002) (the revision contains emphasis on the importance of adhering to Canons
1468–1477 of the 1983 Code); see also Vatican Approves Plan on Sexual Abuse by U.S. Priests,
N.Y. Times, Dec. 17, 2002, at A28.
3. canon law and the sexual abuse crisis
continued
The Consequences of the Failure of the Rule of Law

The primary consequence of the lack of balance in the bishops’ approach to canon
law was the damage suffered by the victims. When Bernard Cardinal Law, then
the Archbishop of Boston, claimed that canon law prevented him from protecting
the victims, they responded clearly: “Canon law was irrelevant to us. Children
were being abused. Sexual predators were being protected. Canon law should have
nothing to do with it. But they were determined to keep this problem, and their
response to it, within their culture.”1 Given the failure of the rule of canon law to
protect them, the victims quite understandably might attach little value to it. While
injury to the victims remains the primary harm, the failure of canon law also held
other consequences for the church and society. As with the defined parameters of
the previous chapter, I shall discuss some of the ways in which antinomianism
and legalism have disrupted the proper functioning of canon law.

I . the canonical requirement of celibacy and the sexual abuse

of minors

A. Clerical Celibacy: Witness to Faith or Threat to the Public Good?

Canon 277, Section 1, of the CIC-1983, requires that priests in the Western
branch of the Catholic Church observe celibacy. In the Eastern branch, the value
of clerical celibacy is affirmed, but priests are permitted to marry in accord with
a long-standing practice tracing its roots to the primitive church.2 Since the 1950s
in the West, the church has sometimes permitted an exception to mandatory
celibacy for married former Protestant clergymen who became Catholic priests.3
Although the celibacy requirement in the West is technically considered to be a
disciplinary norm and not inherent in the nature of ordained priesthood, the
canonical requirement reflects theological reasons of ancient tradition.4 In his
study of the historical development of the canonical requirement of celibacy for

1. Boston Globe Investigative Staff, Betrayal: The Crisis in the Catholic

Church 153 (Little Brown Back Bay Books 2003).
2. See Canon 373, CCEO.
3. See R. Hill, Ordination of Married Protestant Ministers, 51 Canon Law Society of
America Proceedings 95–100 (1989).
4. See R. Garrity, Spiritual and Canonical Values in Mandatory Priestly Celibacy, 27
Studia Canonica 217–60 (1993).
76 canon law

priests, Stefan Heid presents significant evidence that the celibacy requirement
may be traced back through the centuries to spiritual values that originated in
the primitive church.5
From the church’s perspective, the discipline of clerical celibacy functions as
an important witness both within the church itself and to the larger society.
Clerical celibacy means that a man who would otherwise be married and the
father of a family chooses to sacrifice this fundamental human good in testimony
to his faith in Christ and dedication to the church. In Philip Jenkins’s words, the
sexual abuse crisis reversed this witness by presenting “a picture of a Catholic
priesthood heavily influenced by perverts and child molesters, whose activities
were treated so mildly by their superiors that the bishops themselves were virtual
accomplices.”6 Thus, the failure to apply canon law facilitated a misunderstanding
in the popular imagination that linked the canonical requirement of priestly
celibacy with sexual deviance.
The antinomian failure of the rule of canon law supplied the reality upon
which the canonical requirement of celibacy for priests was linked to the sexual
abuse of minors. During the 2002 sexual abuse crisis, intense media focus and
government responses seemed to reflect two assumptions. First, the Catholic
priesthood contains a disproportionate number of sexual abusers as compared to
the percent of sexual abusers in the general population and other professional
groups. The investigative staff of the Boston Globe stated: “[I]n the wake of relent-
less revelations about sexually abusive priests, even the most conservative
defenders of the Church have abandoned the argument that the priesthood is no
worse than any other profession in which adults work with children.”7 Second,
the widespread problem of sexual abuse among Catholic priests and cover-up by
church authorities pose a threat to the public good which required a response
from the secular government. State attorney generals and district attorneys in
places such as Massachusetts, Philadelphia, Cincinnati, and Suffolk County,
New York, impaneled grand juries to investigate the issue of the sexual abuse of
minors by Catholic priests and the possibility of criminal cover-ups by church
authorities.8 Numerous state legislatures either repealed or debated repealing
the statute of limitations in order that victims might bring civil suits against the

5. See Stefan Heid, Celibacy in the Early Church: The Beginnings of a

Discipline of Obligatory Continence for Clerics in East and West 347–50 (Ignatius
Press 2000). See also Christian Cochini, S.J., The Apostolic Origins of Priestly
Celibacy 429–39 (Ignatius Press 1990); and Alfons Cardinal Stickler, The Case for
Clerical Celibacy, Its Historical Development and Theological Foundations
83–103 (Ignatius Press 1995).
6. Philip Jenkins, Pedophiles and Priests: Anatomy of a Contemporary Crisis
133 (Oxford University Press 1996).
7. Betrayal, The Crisis in the Catholic Church, 166.
8. Id. at 112–13.
 canon law and the sexual abuse crisis continued 77

church. Such government actions were apparently seen as necessary to check the
threat posed by the Catholic hierarchy and priests to the public good.
It seems fair to ask whether or not these assumptions are supported by the
factual evidence. Does the Catholic priesthood in the United States contain a
disproportionate number of sexual abusers as compared to the percent of sexual
abusers in the general population and other professional groups? Does the
canonical requirement of priestly celibacy pose a threat to the public good such
that it justified the intense media focus of the 2002 crisis and the use of govern-
ment power against the Catholic Church to check the threat?
First, the Catholic priest sexual abuse crisis needs to be considered within the
context of the general problem of the sexual abuse of minors in the United States.
Recent studies measuring the incidence of the sexual abuse of minors in the
general population of the United States vary widely. David Finkelhor’s Child
Sexual Abuse: New Theory and Research, published in 1984, remains a frequently
cited theory of child sexual abuse.9 On the basis of what he considered to be con-
servative estimates of child sexual abuse (10 percent of girls and 2 percent of
boys), Finkelhor concluded that over 210,000 new cases of sexual abuse occur in
the United States each year.10 A scientifically controlled study led by Finkelhor in
1990 that was based upon a control sample of 2,626 citizens aged 18 or older
from all fifty states found that 27 percent of females and 16 percent of males had
been sexually abused as minors.11 Based on data collected from the National
Child Abuse and Neglect Data System, Finkelhor and Lisa M. Jones determined
the number of child abuse cases actually reported in the United States reached a
peak of 149,800 cases in 1992 followed by annual declines to a low level of 89,355
cases in 2000.12 In the fifty-two year period covered by the 2004 John Jay Study,
the average number of minors abused per year is 205,13 and the average number

9. See David Finkelhor, Child Sexual Abuse: New Theory & Research (Free
Press 1984).
10. See id. 2.
11. See David Finkelhor, Gerard Hotaling, I. A. Lewis, & Christine Smith, 14
Child Abuse and Neglect 19–18 (1990).
12. Lisa Jones & David Finkelhor, Explanations for the Decline in Child Abuse Cases,
OJJDP Bulletin, Office of Juvenile Justice and Delinquency Program, Office of Justice
Program, U.S. Department of Justice, Washington, D.C., 2004, cited in 2004 John Jay
Study, 25.
13. The mean average of victims per year is calculated by dividing the total number of
victims, 10,667, by the total number of years, 52, covered in the 2004 John Jay Study,
with the result of 205.134 victims per year from 1950 until 2002. As the 2006 John Jay
Study indicates dioceses and religious communities continued to receive allegations of
clergy sexual abuse from the period of 1940 to 2002 after the 2004 John Jay Study was
complete. The mean average of 205 minors per year is derived from the 2004 John Jay
Study and does not include allegations reported after 2004. Any study of sexual abuse,
whether of Catholic priests, Protestant clergy, or some other group, shares the phenomena
78 canon law

of priests accused per year is 85.14 By date of first instance, there were 421 priests
accused of having committed the sexual abuse of a minor in 1970, the highest
number of incidents for any year covered by the study. For the year 1984, the
2004 John Jay Study reports 204 priests by date of first instance. In 2002, by date
of first instance, there were twenty-four priests who allegedly were guilty of
abuse for that year.15 Even if one takes the low number of 89,355 actual reported
cases of the sexual abuse of minors per year in the United States, the average of
205 cases perpetrated by Catholic priests is less than one-quarter of one percent
of the larger societal problem.
Second, the 2006 John Jay Study found that 4.2 percent of diocesan priests
and 2.7 percent of religious priests, who had served during the fifty-four year
period covered by the study, had been accused of the sexual abuse of a minor.
These percentages were derived by comparing the number of priests accused to
the total number of priests in the United States during the period covered by the
study. In the absence of reliable statistical reports of the number of adult males
in the United States accused of sexual abuse in a given year as compared to
the total number of adult males in the United States for that year, it is impossible
to know with certainty how the percentage of priest abusers compares to the
percentage of abusers in the general population.
Third, it is possible to compare the rate of abusers among the celibate Catholic
clergy to the rate of sexual abusers in the general population according to marital
status. Another scientific study of the general problem of sexual abuse of minors
in the United States published in 1996 by Douglas W. Pryor found that 70 percent
of sexual offenders who abused minors were married.16 The Pryor study also
found that 23 percent of the incidents of sexual abuse were perpetrated by the
victim’s biological father; and another 38 percent of the abuse was perpetrated by
the minor’s stepfather, adoptive father, or mother’s boyfriend.17 In other words,
married men and men in other heterosexual adult relationships account for
the vast majority of the sexual abuse problem in the United States. The fact that
married men account for a much higher percent of the societal problem of the

of previously unreported allegations of sexual abuse being reported after the study is
complete as the number of incidents of abuse which may go unreported at all. This is the
additional issue raised by false positive reports when no sexual abuse actually occurred.
14. The mean average of priest per year is calculated by dividing the total number of
accused priests, 4392, by the total number of years, 52, covered in the 2004 John Jay Study,
with the result of 84.48 priests per year from 1950 until 2002.
15. These statistics of the annual breakdowns with regard to the number of priest
abusers were provided to me directly upon my request from the John Jay College through
the U.S. Conference of Catholic Bishops. The annual numbers of accused priests may
also be confirmed by reference to the 2004 John Jay Study, 30, fig. 2.3.2.
16. See Douglas W. Pryor, Unspeakable Acts: Why Men Sexually Abuse Children
23–24 (New York University Press 1996).
17. See id.
 canon law and the sexual abuse crisis continued 79

sexual abuse of minors than do celibate priests does not rule out the possibility
that priestly celibacy might lead some men to sexually abuse minors. However,
the possible link between celibacy and the sexual abuse of a minor is far from
substantiated on the basis of the available statistical evidence.
Fourth, due to the absence of comprehensive studies of the sexual abuse of
minors by clergy other than the John Jay studies, there is no reliable means of
ascertaining how the problem among Catholic priests compares to that among
other groups of religious ministers. The total number of cases included in
the 2004 John Jay Study over the fifty-two year period results in an average
of approximately 205 minors a year who report abuse by Catholic clergy. In
comparison to Protestant clergy, the New York Times reports that “the three major
companies that insure the majority of Protestant churches receive upward of two
hundred sixty reports a year” of sexual abuse of minors by church ministers.18 It is
not clear from the New York Times article whether 260 represents the number of
minors who claim to have been sexually abused or the number of ministers who
allegedly perpetrated the abuse. It is also important to keep in mind that a given
Protestant denomination’s definition of who counts as an official minister may
be broader and less carefully regulated than the Catholic Church’s understanding
of an ordained priest. Of the three insurance companies, one kept records for the
past twenty years, another insurer was reporting on the basis of its records cover-
ing the past fifteen years, and the third of the major insurers reported on the
basis of its ten-year records. The reports of the three insurance companies do not
include all allegations against Protestant ministers but only those recorded by
the three major insurers. Unlike the Catholic Church, none of the Protestant
denominations have a requirement of celibacy for their ministers.
Fifth, juxtaposing the rates of abuse by Catholic priests and public school
teachers may also offer a helpful comparative context from which to evaluate the
claim that the celibacy requirement poses a threat to the public good. On the
basis of a 1998 survey of nationwide newspaper articles, Education Week found
that over a six-month period there were 244 reported cases of sexual abuse of
public school students perpetrated by teachers.19 As is the case for Protestant
clergy mentioned above, it is not clear from the Education Week article whether
244 represents the number of minors who claim to have been sexually abused or
the number of public school teachers who allegedly perpetrated the abuse. For
the entire year 1998, the 2004 John Jay Study reports forty events of clergy sexual
abuse of minors which started in that year.20

18. N.Y. Times, June 16, 2007, at A11.

19. See Philip Jenkins, The New Anti-Catholicism: The Last Acceptable
Prejudice 144 (Oxford University Press 2003).
20. As noted above in regard to the mean average number of victims per year over the
52-year period covered by the 2004 John Jay Study, allegations received after the year 2004
are obviously not included in the study. Again, given the nature of sexual abuse, previously
80 canon law

Legitimate questions may be raised about the reliability of specific child abuse
studies, methodologies, and estimates based upon the studies. As the 2006 John
Jay Study indicates, dioceses and religious communities continued to receive
allegations of clergy sexual abuse from the period of 1940 to 2002 after the 2004
John Jay Study was complete. Any study of sexual abuse, whether of the general
U.S. population, Catholic priests, Protestant clergy, or some other group, shares
the phenomena of previously unreported allegations of sexual abuse being reported
after the study is complete. The nature of these kinds of statistical studies produces
a snapshot and cannot go beyond formulating a hypothesis about the future.
Again, I was unable to find any reliable statistical studies that would report
the percentage of abusers among the general population, Protestant ministers,
or public school teachers. However, the available statistical evidence suggests the
following: (1) Catholic priests account for only a very small percent of the total
number of cases of sexual abuse of minors that occur in the United States
each year; (2) the vast majority of sexual abusers in the general population of
the United States are married males or males living in some type of adult
heterosexual union; (3) the average per year number of victims of abuse perpe-
trated by Catholic priests is no greater or less than that perpetrated by Protestant
clergy; and (4) the average per year number of victims of abuse perpetrated
by Catholic priests is no greater or less than that perpetrated by public school
teachers. In other words, there is no conclusive evidence that proves that Catholic
priests pose a special threat to the public good.
Based on the available statistical evidence, it is also impossible to know with
certainty whether or not the rate of sexual abusers among Catholic priests is
greater than, the same as, or less than the rate of abusers among Protestant
clergy, public school teachers, or the general population. The statistical evidence
also suggests that the percentage of Catholic clergy accused of abuse from the
mid-1960s through the mid-1980s may well be higher than that of the percent of
abusers in the general population, clergy of other denominations, and public
school teachers. This is particularly true in certain geographic areas such as that
covered by the Archdiocese of Boston.21 It seems less true for other geographic
areas such as that covered by the Archdiocese of New York.22 The evidence also

unreported allegations of abuse being reported after the study is complete would also be
probable for the survey of public schools.
21. See Report of the Attorney General on the Sexual Abuse of Children in
the Archdiocese of Boston, Office of the Attorney General Commonwealth of
Massachusetts, July 23, 2003, which reports on page 12 that from 1940 to 2003, the records
of the Archdiocese of Boston indicated 789 victims of priest sexual abuse in the Archdiocese
of Boston.
22. See John J. Coughlin, O.F.M., Restoring the Faith: Responding to Clergy Sexual Abuse
through Justice, Redemption, and Reconciliation, Jurist, Nov. 11, 2002 (available at http://
jurist.law.pitt.edu), which reports that records of the Archdiocese of New York as of 2002
 canon law and the sexual abuse crisis continued 81

indicates that prior and subsequent to the balloon in the statistical curve of
Catholic clergy abusers (from 1950 until the mid-1960s and from the mid-1980s
until 2004) the percentage of child abuse cases among Catholic clergy may be the
same as or less than that of the general population, other clergy, and public
school teachers.23 If there were a statistical link between the canonical celibacy
requirement and elevated instances of the sexual abuse of minors among Catholic
priests in the United States, one would expect at least somewhat consistently
elevated rates in the population of priests in comparison to the general population
and other groups of professions over the period of the study. The statistical
evidence from the John Jay studies suggests that the opposite is true. Over the
five-plus decades encompassed in the studies, there are two periods of lower
rates of clergy sexual abuse (1950 to the mid-1960s and the mid-1980s to 2004)
and one period of higher rates (mid-1960 to mid-1980s).
Raising the question of whether the link between clerical celibacy and child
abuse is supported by the factual evidence is in no way intended to diminish the
significance of the problem among Catholic priests. However, it does seem help-
ful to put the problem in perspective. The antinomian failure to take canonical
action against serial abusers provided the reality which led to the 2002 sexual
abuse crisis in the Catholic Church. The rule of canon law would have served to
dismiss serial sexual abusers from the priesthood. For reasons discussed, nei-
ther the statute of limitations nor culpability was likely to have presented insur-
mountable issues in prosecuting the case against the priest who was a serial
child abuser. Neither canon law nor any other system of law can alter the reality
that certain adults are prone to commit serial child abuse. However, the rule of
canon law would have communicated that such priests were the exception and
not the norm in the Catholic priesthood. It would have prevented much injury to
many individuals and to the common good. To the extent that the 2002 sexual
abuse crisis was about the complicity of the bishops, the crisis was facilitated by
the failure of the bishops to honor the rule of canon law in dealing with cases of
serial child abusers.

B. The Sexual Abuse Crisis and American Anti-Catholicism

Given the lack of proof that priests pose a unique threat to the public good as
compared to the clergy of other denominations, public school teachers, and the
general population, what might explain the fascination of the media and
the response of government officials to take special action against the church?
In the 1996 book, Pedophiles and Priests: Anatomy of a Contemporary Crisis,
Philip Jenkins had suggested that starting in the early 1980s, the media were
“constructing a social reality” by focusing on cases of priests who were serial

showed fewer than thirty priests accused of abuse. The statistics are undoubtedly higher,
but would remain considerably less than those of Boston reported above.
23. See 2006 John Jay Study, 7, fig. 1.2.
82 canon law

child molesters.24 The construction of social reality involves certain facts which
are then interpreted to constitute a social problem that threatens the public good.
According to Jenkins, notorious cases such as those of James Porter and John
Geoghan, who forcibly molested scores of small children over many years,
afforded the basis for the construction of a social reality about the Catholic
Church. Rather than viewing serial child abuse as a matter of individual
pathology, the media focused on such cases as typical of “pedophile priests” and
church authorities who protected them.25 By the time it became full blown in
the 2002 crisis, the social construction of reality implicated the doctrine,
structure, and priesthood of Catholicism in the sexual abuse of minors. In
particular, the celibacy requirement for Catholic priests was seen as a threat to
the public good.26
According to Philip Jenkins, hostility generated by the clergy sexual abuse
issue revived the anti-Catholicism of the nineteenth-century literature in the
United States that linked priestly celibacy to sexual perversion.27 One strain of
the nineteenth-century literature portrayed Catholic priests as lecherous crimi-
nals who raped virgins and seduced married women even as they ruled their
flocks with iron fists.28 Another strain ascribed to Catholic clergy “authoritarian-
ism, ostentatious wealth, theatricality, and all the flamboyant trappings of
‘popery,’” that “implied effeminacy and secret homosexuality.”29 The alleged link
between priestly celibacy and sexual perversion enjoys almost as long a history
as the celibacy requirement itself, and was a standard feature of Reformation
polemic.30 Given the revival of the link in the twenty-first century, it is fair to ask
whether it is supported by the factual evidence.
In this regard, Jenkins’s theory needs to be qualified in several ways. First,
Jenkins’s 1996 study predated the John Jay studies. The studies demonstrate
that there has been a serious problem of the sexual abuse of minors by
Catholic priests in the United States from 1950 until 2004, the most recent year
covered by the studies. It remains the proper role of the media in a democratic
society to expose such a problem to public scrutiny. I do not understand Jenkins’s
theory to suggest otherwise. Second, I have presented here only a very brief

24. See Jenkins, Pedophiles and Priests: Anatomy of a Contemporary Crisis,

4–10.
25. See id. at 46–48, which discusses the Porter case; and Jenkins, The New Anti-
Catholicism: The Last Acceptable Prejudice, 134–38.
26. See Thomas P. Doyle, A. W. R. Sipe, & Patrick J. Wall, Sex, Priests, and Secret
Codes x–xi, 294 (Volt Press 2006).
27. See Jenkins, The New Anti-Catholicism, 43–45, 150–51.
28. See Mark Twain, Letters from the Earth 53 (Bernard DeVoto ed., Harper
Perennial Classics 1974).
29. See Jenkins, Pedophiles and Priests: Anatomy of a Contemporary
Crisis, 23.
30. See id. at 20–21.
 canon law and the sexual abuse crisis continued 83

summary of Jenkins’s substantial research. Any fuller account of the so-called

“social construction of reality” requires greater sophistication in theory and
method than I have presented. Third, even if one rejects entirely Jenkins’s
account of the social construction of reality, one might nonetheless acknowledge
that the 2002 sexual abuse crisis cast doubt in the popular imagination about the
value of priestly celibacy. As discussed above, the statistical evidence does not
necessarily support the aspersion cast on the canonical requirement of celibacy.
Given the reality of the virulent anti-Catholicism in American history, there may
be some truth to the claim that the sexual abuse crisis served to revive the
malady.
However, it would be reductionistic of the complex social reality represented
by the 2002 clergy sexual abuse crisis to attribute it entirely to anti-Catholicism.
The question remains: In light of the statistical evidence that Catholic priests in
the United States do not pose a unique threat to the public good as compared to
groups of other religious ministers, public school teachers, and the population
as a whole, what can account for the ferocious focus of the media on the priest-
hood and the reaction of certain government officials to investigate and punish
the Catholic Church? Moreover, why did the crisis occur in 2002 when the
evidence suggests that most of the sexual abuse cases were twenty to thirty years
old and that the two decades prior to 2002 have a low incidence of sexual abuse
cases among Catholic priests? Certainly, organized groups of victims of sexual
abuse were correctly indicating that the sexual abuse of minors was a serious
problem among Catholic priests. These organizations arose in part because
individual victims all too often found their complaints to ecclesiastical authorities
met with a combination of denial, incompetence, and arrogance. Starting in the
early 1980s, individual victims and survivor groups began to receive support
from professional psychological therapists in understanding the damage done
by sexual abuse. At the least, individual victims and the professional therapists
wanted the Catholic Church to pay for the costs of counseling. At the same time,
it was also in the interests of plaintiffs’ lawyers to facilitate the 2002 sexual abuse
crisis. As a result of its hierarchical form of government, the organization of the
Catholic Church entails a concentration of financial resources not in individual
parishes alone but in the dioceses of which they are a part. The hierarchical form
of government also meant that the diocese could be held liable for the torts
of individual priests. With potential damages and settlements in the billions of
dollars, plaintiffs’ lawyers, who are traditionally entitled to one-third of payments,
perceived the Catholic Church as a rich target. If the social construction of reality
applies to the 2002 Catholic sexual abuse crisis, it seems to be a complex social
reality which involved many factors and groups in contemporary American
society.
84 canon law

II . canon law and theology

A. Original Sin and the Limitation of Law

Although Catholic moral theology considers any offense by a cleric against the
Sixth Commandment of the Decalogue to constitute objectively grave sinful
matter, the CIC-1983 expressly recognizes only four types of sexual sin to constitute
crimes for which canonical penalties may be imposed. The four crimes include
a sexual sin committed by a cleric with a minor, a sexual sin that involves force
or threat of force, sexual sin committed in public, and continued open concubinage
by a cleric with a woman after the cleric has been officially warned.31 Canon law
of course expresses an aspirational function when it urges all priests to live a life
of chaste holiness.32 At the same time, in limiting the kind of sexual sin that can
be punished by canonical penalty, canon law reflects the anthropological reality
of fallen human nature. The theological doctrine of original sin places inherent
limitations on canon law’s aspirations. Neither policy nor law, no matter how
well designed, can eradicate sin from the fallen nature of the human situation.
Like all other human beings, priests are going to act in sinful ways, sometimes
gravely sinful. This has been the case from the beginnings of the church
when the gospels recall that Peter, the first of the Apostles, denied Christ in his
darkest hour.33
However, canon law’s limitation does not excuse the injury caused by a priest
to a victim of sexual abuse or by church authorities in covering up the crime. The
unity between the theological doctrine of original sin and canon law does not
mean that church authorities should not take all reasonable precautionary
measures to prevent sexual abuse. On the contrary, the evidence suggests that
clear policy and law assist in preventing sexual abuse by priests. Although the
wave of media reports reached a crest at the beginning of the twenty-first century,
the vast majority of cases of priest sexual abuse occurred several decades earlier
during the second half of the twentieth century. Since the promulgation of the
CIC-1983 and the implementation of diocesan sexual abuse policies, there has
been a marked decline in the number of incidents of sexual abuse reported. As
previously discussed, the available evidence about sexual abuse suggests that for
the last twenty years there may be a lower rate of sexual abusers among Catholic
priests than the percentage of offenders in the general population of the United
States, other groups of religious ministers, and public school teachers. The
antinomian and legalistic approaches both overlook the unity between canon
law and the theology of original sin. Antinomianism presumes that law is not
necessary to check the fallen human situation, and legalism suggests that law
has no limits in overcoming sin.

31. See Canon 1395, CIC-1983.

32. See Canon 276, CIC-1983.
33. John 18:15–17, 25–27.
 canon law and the sexual abuse crisis continued 85

B. Law and the Theology of Forgiveness

The ecclesiastical penal order depends primarily on “medicinal” sanctions.34
Excommunication, interdict, and the suspension of a cleric constitute remedial
penalties. The goal of such sanctions is to encourage the offender’s change of
mind and heart. Once conversion with repentance has occurred, the remedial
penalty is lifted, and the offender is to be reintegrated into the full communion
of the church. As an exception to the general principle, canon law provides for
certain “expiatory” or “vindictive” penalties.35 Such penalties obviously do not
depend on the offender’s change of heart, but are intended as a means of retribu-
tive justice. Few in number, they are imposed only for the most serious offenses,
such as the sexual abuse of a minor by a cleric. The penalty’s justification rests
on the reality that the priest who sexually abuses a child has not only harmed the
victim but the entire church. While the guilty priest may be forgiven his sin
no matter how grave, a just ecclesial order may require that he can no longer
function as a priest. Canon law’s focus on medicinal penalties, with a small
number of defined retributive exceptions for particularly grave crimes, thus
reflects the unity of law and theology.
Neither antinomianism nor legalism enhances the unity between canon law
and the theology of forgiveness. Antinomianism denies the need for penal sanc-
tions in the church altogether, while legalism demands the imposition of penal
sanctions without regard to mercy. The failure of rule of law in dealing with
clergy sexual abuse disrupted the church’s penal order with its deep roots in the
development of the theology of forgiveness. One of the great issues to face
the church of the first several centuries was the question of postbaptismal
forgiveness of sin.36 In the gospels, Jesus appears eating and drinking with sin-
ners, and the evangelium (good news) is addressed not to the self- righteous but
to those in need of redemption.37 Questions arose concerning whether or not

34. See Velasio de Paolis, Animadversiones ad schema documenti quo disciplina sanctio-
num seu peonarum in Ecclesia Latina denuo ordinatur, 63 Periodica 37, 39 (1974); and
Velasio de Paolis, Il Libro VI del Codice di Diritto Canonico: Diritto Penale, Disciplina
Penitenziale o Cammino Penitenziale? 90 Periodica 85, 98–106 (2001).
35. See Canon 1312, CIC-1983. Penalties in the church are either medicinal or expia-
tory. Most of the penalties are remedial in nature in that they are to be lifted as soon as the
offender demonstrates sincere repentance. A few penalties are expiatory in that they
deprive the offender of some good permanently or a fixed period of time regardless of the
offender’s subsequent disposition.
36. See Bernhard Poschman, Penance and the Anointing of the Sick 34–61
(Francis Courtney trans., Herder and Herder 1964).
37. See Joachim Jeremias, New Testament Theology: The Proclamation of Jesus
109 (John Bowden trans., Scribner 1971), which observes that Jesus brought the good
news to sinners; and John P. Meier, A Marginal Jew, Volume III, Companions and
Competitors 247 (Bantam Doubleday 2001), which states that Jesus “hobnobbed” with
sinners.
86 canon law

there was forgiveness of sin after baptism, and if so, how often it might be
repeated, what sins could be forgiven, and which sinners were worthy of
penance. The questions admitted of stricter or milder answers. The second-century
Christian writer, Hermas, endorsed the theory of “one penance” after baptism.38
The early Tertullian (c.203) advocated full forgiveness for even the gravest sins,
and to this end, described a rite of public penance.39 In addition to public
penance for postbaptismal sin, Origen (184–254) speaks of confessing one’s sins
to a priest who acts as a physician of souls.40 Contrary to the Montanists and
Novatians, who cast doubt about postbaptismal forgiveness, Canon 8 of the
Council of Nicea (325) permitted even apostates to return to the church after
penance.41 Nonetheless, Constantine, who feared dying in the state of sin, post-
poned baptism until shortly before his death in 337, and when he died, he lay in
state at Constantinople in the white robe of a neophyte.42 Eventually, the forgive-
ness of sins through confession, contrition, and penance became a central
feature of church doctrine and practice.43
Canon law recognizes a distinction between the internal and external fora in
order to facilitate the forgiveness of sin.44 The internal forum pertains to matters
of conscience, and it involves confidentiality in both sacramental and nonsacramen-
tal communications. If it involves pastoral counseling, the therapy afforded
priests accused of sexual abuse may sometimes fall within the parameters of the

38. See Jeremias, New Testament Theology, 37.

39. See id. at 39.
40. See id. at 70.
41. See Heinrich Denzinger, The Sources of Catholic Dogma 55 & 26 (Roy J.
Deferrari trans., from the thirteenth edition of Enchiridion symbolorum, Loreto
Publications 2001). Montanism was a second-century Christian movement that denied
the possibility for the post-Baptismal forgiveness of sin. Tertullian converted to Montanism.
Novatian was a Roman priest who in 251 ad opposed the election of Pope Cornelius.
During the Emperor Decius’s persecution of Christians in which many Christians went
to their deaths for refusing to worship the Roman deities, Pope Cornelius favored Cyprian
of Carthage’s policy of readmitting the lapsed (those who had obeyed the imperial edict
requiring the idolatry) to communion if they engaged in a period of penance.
42. See Henry Chadwick, The Early Church 136 (Penguin Books 1978).
43. In the thirteenth century, Thomas Aquinas afforded a sacramental analysis for the
three parts of penance. See ST, III, 90, 2, which identifies contrition, confession, and sat-
isfaction as the parts of penance.
44. Principle No 2 for the Revision of the CIC-1983 had called for improved harmony
between the internal and external fora especially with regard to the sacraments and eccle-
siastical penalties. 1 Communicationes 77, 79 (1969). See Thomas J. Green, The Future of
Penal Law in the Church, 35 Jurist 212, 220 (1975), which endorses the fundamental dis-
tinction in the CIC-1917, but notes that the confusion of fora also contributed to inefficacy
which needed to be corrected in the proposed new Code.
 canon law and the sexual abuse crisis continued 87

nonsacramental internal forum.45 In contrast, the external forum signifies an act

of governance, which remains public and verifiable. For example, a status of
person question, such as that of a cleric who has been suspended or dismissed
from the clerical state for the sexual abuse of a minor, belongs to the external
forum. Clearly, a credible accusation of the sexual abuse of a minor officially
reported to an ecclesiastical authority belongs to the external forum. In dealing
with clergy sexual abuse cases in the United States, the exclusive reliance on
the psychological model tended to create the impression of secrecy and
cover-up.
The distinction between the internal and external fora reflects a balance
between the common good and the individual person’s rights of privacy and
good reputation.46 When an act of governance is taken for the common good,
such as dismissal from the clerical state, it concerns the public social relations
among persons. Such an act must admit of external proof and verification.
Alternatively, the vast majority of sins, including most mortal sins, are not crimes
subject to the ecclesiastical penal order.47 The distinction protects not just clerics
but all of the vast mass of baptized persons who constitute the Body of Christ. In
accord with theological anthropology, all are sinners, and all may benefit from
the counsel and forgiveness available in the internal forum. The criticism of this
traditional distinction on the ground that it enables a “clerical culture of secrecy”
fails to appreciate the ancient wisdom of the church in protecting individual
dignity and privacy. In dealing with cases of sexual abuse, the church’s wisdom

45. The confession and forgiveness of sin belong to the sacramental internal forum,
which absolutely safeguards the matter and identity of a penitent in the sacrament of
Penance. In the sacramental forum, a priest-confessor can urge the penitent to disclose
the sinful abuse to the ecclesiastical and public authorities, but the confessor remains
always bound by the inviolable seal of the sacrament. See Canons 983, § 1 & 1388, § 1, CIC-
1983. The nonsacramental internal forum refers to matters outside the sacrament, but
which are not publicly known and best kept in confidence. Although not part of a sacra-
mental confession, the matter revealed by an individual to a counselor, whether priest or
layperson, constitutes a matter of conscience. Normally, the counselor bears the obligation
of confidentiality. When the law of a civil jurisdiction requires a counselor in the nonsac-
ramental internal forum to report child abuse, the counselor ordinarily may comply. See
Raymond C. O’Brien, Pedophilia: The Legal Predicament of the Clergy, 4 J. Contemporary
Health Law and Policy 91, 138–50 (1988). See also The Society of Jesus of New England
v. Commonwealth, 442 Mass. 1049 (2004).
46. See Canon 220, CIC-1983 (“No one may unlawfully harm the good reputation
which a person enjoys, or violate the right of every person to protect his or her privacy.”).
47. Some acts of governance, such as the lifting of nonpublic censures, may be exer-
cised solely for an individual’s own good and these acts remain in the internal forum. See
Green, The Future of Penal Law in the Church, 220, which discusses the need for a clear
distinction between the forum of law and the forum of conscience.
88 canon law

was not evident in a policy that focused on the therapeutic approach and neglected
the external forum of the canonical penal sanctions.48

C. Priesthood as a State of Life

By the time of Augustine, Bishop of Hippo (395–430), it was well established that
any sin, no matter how grave or frequent, might be forgiven as long as the sinner
manifested repentance. The penance was public for notorious sins and secret for
private ones.49 The question of postbaptisimal forgiveness of sin was connected
to another issue about the purity of the church. Particularly after the Constantinian
establishment, “the impure” swelled the ranks of the pristine church of the
martyrs. In fourth-century northern Africa, disagreement about the requisite
level of purity to be a member of the church led to the Donatist schism. The
Donatists wanted a church separate from the contamination of the world, one
that was morally without fault, whose ritual counted as a sealed fountain of
grace, a church whose clergy inherited the purity of the martyrs.50 The Donatists
pointed to the sins and corruption of Catholic deacons, priests, and bishops to
justify the schism. They counted it as a triumph when they publicly exposed the
sexual sins of the Catholic clergy. In the ensuing polemic, Catholics responded
with revelations of the immoral and criminal behavior of the Donatist clergy.51
Augustine himself remarked that one Donatist bishop had impregnated a
thirteen-year-old virgin girl.52 For Augustine, the rites of the church were holy
because of the objective holiness of the church as the redeemed body of Christ.
Neither the church’s holiness nor the administration of her sacraments depended
on the subjective qualities of the clergy. Rather, the sacraments, Augustine held,
claimed an objective and permanent validity independent of the subjective
experience of the individual deacons, priests, and bishops.53

48. Not all therapy necessarily falls within the internal forum. For example, therapists
are sometimes compelled by law to reveal clients’ secrets. Moreover, it is possible to con-
ceive of a therapeutic approach in which close surveillance of an abuser involves regular
reporting on the content of the therapy. Following the sexual abuse crisis, a report from
the Congregation for Catholic Education at the conclusion of the Apostolic Visitation of
seminaries in the United States stated that psychological counseling “may be confidential,
but it is not internal forum.” Congregatio De Institutione Catholica (De Seminariis Atque
Studiorum Institutis) (Die 15 mensis dec. anno 2008), Prot No. 1009/2002.
49. See Henry Chadwick, The Early Church, at 67–68, which discusses Origen’s
position that even the gravest of sins may be forgiven.
50. See Peter Brown, Augustine of Hippo 213 (University of California Press
1969).
51. See Heid, Celibacy in the Early Church, The Beginnings of a Discipline of
Obligatory Continence for Clerics in the East and West 204–06.
52. See Augustine of Hippo, Epistola 105, 2, 3f; 33 PL 396–97.
53. See Augustine of Hippo, De Baptismo Contra Donatistas, IV, 23, 30; 43 PL 170,
174.
 canon law and the sexual abuse crisis continued 89

The sexual abuse crisis has called into question canon law’s recognition of the
priesthood as an objective, permanent, and stable office in the church. CIC-1983
recognizes several distinct states of life in the church.54 The reference to states of
life is not intended primarily as a manifestation of the church’s hierarchical
order. On the contrary, Canon 208 states that all the baptized enjoy “a genuine
equality of dignity and action” in forming the “Body of Christ.” Through Baptism,
each member of the church participates in the priestly, prophetic, and kingly
office of Christ.55 Marriage, Holy Orders, and religious life are considered to be
states of life which reflect the free choice of individuals. Canon 207 draws a
fundamental distinction between clerics and laypersons, as well as recognizing
the religious life.56 Marriage is the most common state of life in the church. With
language drawn from Gaudium et spes, Canon 1055 describes marriage as “the
intimate partnership of life and love which constitutes the married state . . .”57
Canon law treats marriage as a permanent state of life in the church. An act of
adultery or even abuse, for example, does not dissolve a valid marriage. In such
circumstances, canon law provides that one spouse might temporarily or perma-
nently separate from the other, but canon law never grants an absolute divorce
in the case of a valid and consummated sacramental marriage.58

54. See J. Hervada, Commentary on Book II, in Ottawa-1993, 185–86, which discusses
the principles of radical equality and of variety as the two basic principles of Book II of the
CIC-1983.
55. See Canon 208, CIC-1983 (“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.”).
56. See Canon 330, CIC-1983 (“Just as, by the decree of the Lord, Saint Peter and the
rest of the Apostles form one College, so for a like reason the Roman Pontiff, the succes-
sor of Peter, and the Bishops, the successors of the Apostles, are united together in one.”).
According to Catholic belief, Christ originally entrusted the faith to the Twelve Apostles
with the mission to teach, sanctify, and govern. Canon 331, CIC-1983, focuses on the
divine institution of the Petrine ministry as the head of the “College of Bishops, Vicar of
Christ, and Pastor of the universal Church on earth.” Canon 375, § 1, CIC-1983 (“By
divine institution, Bishops succeed the Apostles through the Holy Spirit who is given to
them. They are constituted Pastors in the Church, to be teachers of doctrine, the priests of
sacred worship and the ministers of governance.”). See Lumen Gentium, 26–28, which
teaches that the hierarchical offices of bishop and priest are ministerial examples of the
self-emptying of Christ, which is the example for all Christians. See also St. Bonaventure,
Lignum Vitae, 7, in 8 Doctoris Seraphici S. Bonaventurae opera omnia, edita studio
et cura pp. Collegii a S. Bonaventura 72 (Collegium San Bonaventura 1882) (“So com-
plete was his humility, that He who was perfect justice subjected himself to the Law.”).
57. Gaudium et spes, 48.
58. See Canons 1151–1152, CIC-1983.
90 canon law

Likewise, the valid reception of the sacrament of Holy Orders means that the
deacon, priest, or bishop has entered into a permanent state of life.59 Theologically,
the reception of Holy Orders is claimed to place an indelible character onto
the recipient of the sacrament.60 In medieval theology, this character was
often described as an ontological change in the soul of the priest.61 Canon 290,
CIC-1983 affirms the ancient tradition when it states that ordination once
received never becomes invalid.62 Permanent dismissal from the clerical state
(laicization) does not mean that one is no longer a priest. Pursuant to Canon 292,
CIC-1983, the laicized cleric loses the rights of the clerical state, and he may no
longer be publicly acknowledged as a cleric. However, the imposition of the
canonical penalty only renders the exercise of the priesthood unlawful in most
circumstances. For example, a Mass celebrated by a priest who has been perma-
nently removed from the clerical state may be a valid Mass even though the
celebration is unlawful. In canonical terminology, validity of the sacrament per-
dures although the celebration by a laicized priest is illicit. Canon 976, CIC-1983,
permits a laicized priest to hear the confession of, and grant absolution to, a
person in danger of death. The danger of death provision is an example of the
principle of the salvation of souls as the supreme law of the church.63
Contrary to the Augustinian sacramental theology ex opere operato, antinomian
and legalistic approaches to canon law may reflect a desire for moral perfection-
ism in the church and the priesthood. Antinomianism espouses an idealistic
image of the church whose priests and members have no faults that may need
correction through the law. Legalism embraces a church whose priests and
members are rendered morally perfect through law alone dislocated from the
spiritual ends that underpin canon law.

III . antinomianism, legalism, and the nature of canon law

The antinomian and legalistic approaches to the sexual abuse of minors in the
United States raise a broad jurisprudential question about the nature of canon
law. Given the failure of canon law to render justice for victims, advance the

59. A religious who professes final vows has also entered into a permanent state of life
in the church. However, permanent religious vows are not sacramental, and may be dis-
pensed through the action of the Holy See.
60. See Sacrosanctum Concilium Oecumenicum Vaticanum II, Decretum De
Presbyterorum Ministerio et Vita, Presbyterorum Ordinis (Die 7 mensis decembris anno
1965), 2, 58 AAS 991–92 (1966); and Lumen Gentium, 21.
61. See Council of Florence, November 22, 1439, in Denzinger, The Sources of
Catholic Dogma, 695; and Council of Trent, March 3, 1547, in Denzinger, The Sources
of Catholic Dogma, 852.
62. See Lumen Gentium, 21.
63. See Canon 1752, CIC-1983.
 canon law and the sexual abuse crisis continued 91

common good, and protect individual rights, does canon law count as law,
properly speaking? Canon law purports to be normative in that it governs the
behavior of persons and groups in the life of the Catholic Church. Canon law
is, of course, not the most important normative domain in the church. Sacred
scripture, tradition, moral theology, faith, and practical reason all serve as guides
to the conduct of the baptized in the church. The question about the nature of
canon law inquires into how it differs from these complementary normative
domains and interacts with them.
Antinomianism raises the question as to whether coercive power remains an
essential characteristic of law that distinguishes it from other normative claims.
As reviewed at the outset of this chapter, canon law contains clearly established
substantive and procedural provisions for the imposition of penalties on a priest
who sexually abuses a minor. The antinomian approach to canon law meant that
these canonical provisions were not employed for at least several decades by
church authorities in the United States. From the perspective of Anglo-American
legal theory, the early legal positivists such as Jeremy Bentham and John Austin
argued that coercion counts as a constitutive component of law which separates
it from other normative domains in a community. According to Austin’s well-
known “command theory,” in order to count as law, each and every law of a
society must be backed by threat of sanction.64 Along similar lines, Hans Kelsen
thought that law functioned to monopolize violence in a society and to impose
its demands by violent means.65 For both Austin and Kelsen, the ability of a
subject and society to predict that punishment by the sovereign would follow
upon detected disobedience to the law is essential to distinguishing law from
other types of norms. If coercion is an essential characteristic of law, church
authorities’ antinomian approach to canon law in cases of priests who sexually
abused minors calls into question the very nature of canon law as law.
Later legal positivists, such as H. L. A. Hart and Joseph Raz, have argued that
the coercive element of law is more marginal than the pristine positivists thought.
Responding to Austin, Hart objected “that the predictive interpretation obscures
the fact that, where rules exist, deviations from them are not merely grounds
for the prediction that hostile reactions will follow . . . but are also a reason or
justification for such reaction and for applying the sanctions.”66 Likewise, Raz
points out that many reasons for action might contain a threat of coercion,

64. See John Austin, The Province of Jurisprudence Determined 14 (W. E.

Rumble ed., Cambridge University Press 1995).
65. See Hans Kelsen, Introduction to the Problems of Legal Theory 56–50 (B. L.
Paulson & S. L. Paulson trans., Clarendon Press of Oxford University 1992).
66. H. L. A. Hart, The Concept of Law 82 (2nd ed. Clarendon Press of Oxford
University 1997).
92 canon law

but do not necessarily constitute law.67 For example, in the case of a terrorist who
holds a gun to the hostage’s head, the hostage may be able to predict the
outcome should the hostage disobey the terrorist, but this threat of coercion does
not dignify the terrorist’s command by raising to the level of law. Hart and Raz
both consider the command theory of law to reduce law to coercion while it
ignores other important functions of law. I do not mean to conflate Austin’s
command theory of law with the view of law as coercion. An understanding of
law as command may be ascribed to motives such as obedience to the rightful
authority of the lawgiver while law as coercion may be understood simply as
obedience out of fear of punishment. Nonetheless, in regard to Hart’s terrorist
example, command and coercion seem to be inadequate descriptions of law.
Consistent with the criticism of the command theory of law, it would be
reductionistic to hold that canon law’s sole function in the church is its coercive
aspect with its related predictability. Rooted in its ancient historical tradition,
canon law serves many other functions in the life of the Catholic Church besides
mere coercion. Canon law fulfills aspirational and pedagogical purposes, embodies
communal values, sets standards for desirable behavior, resolves coordination
problems, and safeguards individual rights and the common good. Even if
coercion is not the defining characteristic of canon law, does not coercion
nonetheless fulfill an important function in the life of the church? Moreover,
does not the coercive aspect of canon law reinforce the other functions that canon
law fulfills in the life of the church and its members? To answer these complex
theoretical questions, suffice it to recall the Boston victims’ statement mentioned
above that canon law was irrelevant. In de facto abrogating the coercive function
of canon law in sexual abuse cases in favor of a psychological model, the
antinomian approach called into question the normative nature of canon law
itself.
Legalism also raises questions about the nature of canon law. In this regard,
the work of another secular legal theorist, Ronald Dworkin, proves helpful.
Rejecting the separation between fact and value drawn by the legal positivists,
Dworkin maintains that the nature of a norm as law derives from an integration
of facts and moral values. In Dworkin’s words, “According to law as integrity,
propositions of law are true if they figure in or follow from the principles of
justice, fairness, and procedural due process that provide the best constructive
interpretation of the community’s legal practice.”68 The legalistic approach of
church authorities following the 2002 sexual abuse crisis cast doubt on canon
law’s integrity. One such question was suggested by Julián Cardinal Herranz,

67. See Joseph Raz, The Authority of the Law: Essays on Law and Morality
242–44 (Clarendon Press of Oxford University 2002), which states that prudential reasons
such as fear of punishment do not in themselves give law authority.
68. Ronald Dworkin, Law’s Empire 225 (Belknap Press of Harvard University
2001).
 canon law and the sexual abuse crisis continued 93

who as Prefect of the Congregation for the Interpretation of Legislative texts,

commented: “[I]t was absolutely essential that the norms reaffirm the principle,
rooted in natural law and respected in legitimate legal systems throughout the
world, that a person who is accused of an offense must be considered innocent
prior to a determination of his guilt or innocence, either by means of a regular
process in which the truth of the accusation could be ascertained and the alleged
victim and the accused would both have the possibility of defending their
positions, or by virtue of a confession.”69 Another question is evident in the
appeal of the U.S. bishops described earlier in this chapter to establish a more
relaxed standard of proof than that of canon law’s moral certainty standard.
Perhaps, the most striking question of justice, fairness, and procedural due
process is raised by the absolute rule that treats every instance of sexual abuse of
a minor by a cleric as requiring the most severe canonical penalty of permanent
removal from the clerical state. Although divine, natural, and canon law consider
every instance of sexual abuse to be a grave wrong, all sexual abuse cases do not
have identical facts. The cases range from the extremes of a priest who serially
molested hundreds of young children over the course of several decades to that
of a priest who committed a single offence with a seventeen-year-old over thirty
years ago. In this second case, the priest has long since repented, and has given
devoted service over the ensuing decades to several parish communities who
hold him in high regard. Given the years of antinomianism that led to the 2002
crisis, the absolute rule of permanent dismissal may have been the only realistic
option open to the U.S. bishops when they adopted the 2002 Dallas Charter.
Even in the absence of the 2002 crisis, it may be true that the vast majority of
cases of priests found guilty ought to result in the penal sanction of permanent
removal. Nonetheless, each case remains fact-specific, and for this reason, the
discretion to make exceptions to the absolute rule, even if rare, seems more
reflective of the integrity of law as Dworkin describes it. Section 2 of Canon 1395,
CIC-1983, permits this kind of discretion as an aspect of the integrity of canon
law in promoting fundamental fairness and justice. In contrast, the 2002 Dallas
Charter’s absolute rule is more reflective of the rigidity that typifies legalism.
Canon law reflects the theological belief that bishops are successors to the
Apostles, and as such are vested with sacred responsibility to teach, sanctify, and
exercise a “ministry of governance.”70 The phrase “ministry of governance”

69. Interview with Archbishop Julián Herranz, Zenit, November 4, 2002, available at
http://www.zenit.org.
70. Canon 375, § 1, CIC-1983. This unitary ministry of governance is classified into
legislative, executive, and judicial functions. See Thomas J. Green, The Pastoral Governance
Role of the Diocesan Bishop: Foundations, Scope, and Limitations, 49 Jurist 472, 483–90
(1989), which discusses the unitary power of governance and its three distinct functions.
94 canon law

distinguishes the office of the bishop from some secular function.71 Canon law
considers the power of the bishop to be not worldly but sacred power. In fulfilling
his ministry of governance, the words of canon law require the bishop to act in
accord with “holiness, charity, humility and simplicity of life.”72 Although many
bishops undoubtedly exemplify these characteristics, some bishops failed to
convey the characteristics in addressing cases of clergy abuse. As just mentioned,
each one of these cases is fact-specific. Canon law is designed to permit some
flexibility and discretion in the way in which cases are resolved. The protection
of individual rights as well as the common good depends on this kind of intelli-
gent approach. Given the failure with regard to the rule of canon law, the bishops
in the United States have now found it necessary to surrender their discretion
for the zero tolerance rule. This absolutist approach may be necessary to restore
confidence in the church, but it belies canon law’s image of the bishop who
exercises a wise discretion that flows from integrity, compassion, and holiness.
The discussion of canon law from the perspective of certain secular legal
theorists is not intended to overlook what distinguishes canon law from modern
secular legal systems. In contrast to the fact/value debate which plays such an
important role in secular legal theory, canon law has no hesitation about its
connection to moral value. The question of the law’s authority, or what gives
canon law its power to bind, has a strong answer in divine and natural law. These
sources are normative in the Catholic community on the basis of the integration
of faith and practical reason. Even without canon law, the sexual abuse of a minor
remains a grave violation of divine and natural law. Although the normativity of
canon law interfaces with divine and natural law, canon law nonetheless enjoys

71. See Lumen Gentium, 2. As envisioned in the 1983 Code, the role of the bishop
reflects the ecclesiology of Lumen Gentium. The narrative of Lumen Gentium’s ecclesiology
starts with the radical economy of love in the absolute self-gift among each of the three
persons in the one God. The relational and donative characteristics of trinitarian love have
implications for membership in the College of Bishops. See id. at No. 20, 371–72. (Since
“that divine mission, which was committed by Christ to the Apostles, is destined to last
until the end of the world, . . . the Apostles took care to appoint successors in this hierar-
chically structured society.”). It means that the bishop is among his people in humble
service and kenotic love at the head of the one Body of Christ. See id. at No. 18, 370 (Article
18 of Lumen Gentium states that the church was hierarchically ordered by Christ in the
selection of the Twelve Apostles because: “He willed that their successors, namely the
bishops, should be the shepherds of the Church until the end of world.”). For a discussion
of the historical evidence for this theological truth, see generally Francis J. Sullivan, S.J.,
From Apostles to Bishops, The Development of the Episcopacy in the Early
Church (Newman Press 2001).
72. See Canon 343, § 1, CIC-1983, stating in part that “[i]n exercising his pastoral office,
the diocesan bishop is to be solicitous for all Christ’s faithful entrusted to his care, what-
ever their age . . .” and Canon 387, which envisions that the bishop will be “[m]indful that
he is bound to give an example of holiness, charity, humility and simplicity of life . . . seek-
ing in every way to promote the holiness of the Christian faithful . . .”
 canon law and the sexual abuse crisis continued 95

a certain level of autonomy. The restoration of confidence in the rule of canon

law will require that the bishop implement the new policy in a just manner.
Canon law functions to fulfill certain essential purposes in the life of the ecclesiasti-
cal community that only law, in distinction from other sources of normativity,
can fulfill. The consideration of certain aspects of secular legal theory assists in
revealing the negative impact of antinomianism and legalism on canon law as
proper law. By diminishing the rule of law in the life of the church, antinomianism
and legalism cause injury to the rights of individuals and communities, and thus
call the nature and effectiveness of canon law into question.
This page intentionally left blank
4. church property
A Comparison of the Theories of Property in Canon Law
and Liberal Theory

In Chapters 4 and 5, I discuss the ownership of property in the Catholic Church.

Chapter 4 lays the theoretical foundation for the discussion through a comparison
of several seminal elements in the understanding of property in canon law and
the liberal political theory. The idea of property—its justifications, functions, and
limitations—plays an important role in both canon law and liberal theory.
Property is in essence the relationship between an individual, group, community,
or state and a tangible or intangible thing. It includes not just real property, such
as land and edifices constructed upon it, but also intangible acquisitions, as—to
mention but a few examples—copyrights, trademarks, stocks, bonds, promissory
notes, air rights, options for purchase, franchises, and government licenses for
broadcasting. The concept of property admits of various other distinctions.
Property may be public or private, movable and immovable, fungible or personal,
productive or consumptive. It may be owned in a plenary sense of permanent
control or partially in the sense of entitlement to its usufruct. The focus here is
on private property and its fruitful ownership.
In the teaching of the Catholic Church, private property is understood as a
way of assigning common resources. It is not absolute. Section 1 of Canon 1254,
CIC-1983, states: “The Catholic Church, in order to pursue its proper objectives, has
the inherent right, independent of any secular power, to acquire, retain, adminis-
ter, and alienate temporal goods.” The phrase “independent of any secular
power” indicates both the basis of the property right, which in the teaching of the
church may be traced to the nature of the human person and therefore is not
dependent on the state. The phrase also reflects the long experience of the church
with governments hostile to the church’s property rights. However, according to
the church’s teaching, the state regulates private property for the common good.
Consistent with state regulation, the church controls its own property for its
mission, which transcends the common good.

I . elements in canon law’s approach to property

Here, I shall identify five elements that have influenced canon law’s approach to
property including: (1) the anthropological basis of private property based on
reason, freedom, and the social nature of the human person; (2) the position of
the fathers of the church, who considered private property to be a consequence
98 canon law

of original sin and therefore not part of the original state of nature; (3) property
ownership in the early church; (4) medieval approaches to property, especially
the theory of Thomas Aquinas; and (5) the social teaching of the church about
property.

A. Anthropological Basis for Private Property

The anthropology, or understanding of the human person, that underpins canon
law offers a positive justification for the institution of private property as necessary
to the good of the human person and society. First, without the use of material
things, the person would be unable to survive, to care for family, to develop
potentiality, to fulfill his or her ultimate end. The right to the use of material
things flows from the reality of the human person as an embodied spirit. The
fundamental right to the use of material things would prove nugatory without
the right of the human person to acquire and possess material things. The institu-
tion of private property is the necessary extension of the primordial principle of
use and the correlative rights of the person to acquire and possess material
things. As the philosopher Simon Weil expressed it:
Private property is a vital need of the soul. The soul feels isolated, lost, if it is
not surrounded by objects which seem to it like an extension of the bodily
members. All men have an invincible inclination to appropriate in their own
minds anything which over a long, uninterrupted period they have used for
their work, pleasure, or the necessities of life. But where the feeling of appro-
priation doesn’t coincide with any legally recognized proprietorship, men are
continually exposed to extremely painful spiritual wrenches.1
From Weil’s perspective, private property then is a legal recognition of the nature
of the human person and what the person needs for the body and soul to flourish.
Second, the human person’s capacity for reason and freedom require the
recognition of private property. If one was unable to exclude others from the use
of his or her property, an ordered and virtuous life would prove next to impossible.
One would be unable to advance a plan for life by procuring the property necessary
for the activity which implements and perfects one’s life plan. One would be
unable to direct one’s work to the goods of consumption and production. The
human person’s rational nature, and the acquisition of material goods in accord
with that nature, presents opportunities for virtue through which the person
shapes the self. The freedom of the human person as a unique being who
participates in the creation of self through reason and will depends on the exclusive
use of material things. The facts that the person wears certain clothes, the scholar
acquires books, the sculpture needs a piece of marble, and the musician an
instrument with which to practice and to play all express the link between private

1. Simon Weil, The Need for Roots: Prelude to a Declaration of Duties

towards Mankind 34–35 (Arthur Wills trans., Routledge Classics 2002).
 church property 99

property and individual creativity. For this reason Margaret Jane Radin observes
“most people posses certain objects they feel are almost part of themselves.”2
Private property may be “personal” as opposed to “fungible” in the meaning that
it holds for an individual human person. Private property then encourages both
virtue and creativity in the human person.
Third, private property is also indispensable given the social nature of the
human person. Private property is a legal institution that enables the coordination
of the use and distribution of material resources in a way that promotes societal
harmony and peace. Moreover, participation and cooperation in complex and
far-reaching enterprises makes possible progress in civilization. Such enter-
prises depend on the fact that some persons possess more property than is
necessary for their maintenance and are able to invest their surplus wealth into
the financing of the enterprises. Public works such as hospitals, roads, libraries,
tunnels, performance centers, canals, and stadiums all require government
taxation on surplus wealth and/or private investment. The role of private wealth
in developing industry for the manufacture, sale, distribution, and maintenance
of goods further demonstrates that private property is a powerful factor in the
advance of civilization. Private property is necessary not only in order to set the
economic conditions in which the human person may survive and flourish, but
it also betters the progress of the arts and sciences. Public and private invest-
ment in an artistic production or scientific research serves the good of individuals
and society.
Fourth, although the anthropology points to the necessity of private property,
it also suggests that exclusive use of material goods cannot be unfettered lest it
disrupt a just economic and social order. Material goods are meant to be useful
to all persons, and no one should take unjust advantage of others by an acquisi-
tion of private property that results in material deprivation. Each human person
needs more than just those material things which are necessary to survival, but
no human person needs so much surplus wealth as to result in a disproportionate
distribution of material goods. Profit pursued without limit is devoid of the social
responsibility that the human person bears on account of his or her social nature.
Not only does the anthropology call for a just distribution of goods, but it also
suggests a certain generosity of spirit on behalf of those who have ample wealth
toward those who are in need. An aspect of the anthropology holds that human
freedom depends on acts of sacrifice so that one can more readily participate in
solidarity with others.
Fifth, the fourth aspect of the anthropological justification of private property
leads to a theological qualification. Based on the example of the poor Christ,
Christians throughout the centuries have voluntarily relinquished the right to

2. See Margaret Jane Radin, Property and Personhood, 34 Stanford L. Rev. 957, 959
(1982).
100 canon law

private property. This voluntary act of self-sacrifice is understood to increase

human freedom. Unfettered from material concerns, the human person may
more fully devote himself or herself to the love of God and the love of others.
This qualification need not be theological. It is also possible that a person might
renounce the ownership of material goods for philosophical reasons not neces-
sarily related to theological ones. The possibility of renouncing the ownership of
private property suggests that the human person has the freedom to constitute
the self in favor of the higher human capacities of the intellect and will over the
needs of the body. Whether for theological or philosophical reasons or a combina-
tion thereof, the desire for some level of detachment from material wealth seems
characteristic of human flourishing. Weil’s description of private property as
“a vital need of the soul” needs to be understood in the light of the human desire
to gain greater freedom through detachment from material goods.

B. The Fall and Private Property

Complementary to the positive anthropological justification of private property,
the biblical anthropology offers a negative justification for private property.
Patristic authorities such as Irenaeus, Ambrose, and John Chrysostom thought
that private property was a result of original sin.3 The fathers hypothesized that
there was no need for private property prior to the Fall, original sin, and disorder
of the human situation.4 Focusing on original sin, Augustine acknowledged
the existence of two approaches to property in a Christian society reflecting the

3. See Irenaeus, Adversus Haereses Libri Quinque, 4, 30, 1; 7 PG 1065 (“All of us receive
a greater or smaller number of possessions from the mammon of injustice. Whence
comes the house in which we dwell, the clothes we wear, the vessels we use, and every-
thing else that serves us in our daily lives if not from that which we gained either through
avarice while we were yet pagans or through inheritance of what was unjustly acquired by
pagan parents, relatives, and friends?”); Ambrose, In Psalmum CXVIII Expositio, 8, 22; 15
PL 1372 (“God our Lord wanted the earth to be the common possession of all men and to
offer its fruits to all; but greed has fragmented the right of ownership.”); John Chrysostom,
Homiliae XVIII in Epistolorum primam ad Timotheum, 12, 4; 4 PG 562–63. (“Tell me where
you got your wealth? You owe it to another. And this other, to whom does he owe it? . . .
Will you be able now, following the tree of genealogy, to give proof that this possession
was acquired justly? You cannot. On the contrary, its beginning, its root, must lie in
injustice. Why? Because God did not in the beginning create one man rich and another
poor . . . but gave to all men the same earth as their possession.”); cited in Hans Urs von
Balthasar, The Christian State of Life 116–17 (Sister Mary Frances McCarthy trans.,
Ignatius Press 1983).
4. Genesis 1:27–30. See Ambrose, Expositionis in Evangelium secundum Lucam Libri X,
7, 124; 15 PL 1819. (“Consider the birds of the air! They rejoice in the abundance of
nourishing food available to them without toil only because they have nothing of the
presumption that would lay claim by a kind of private ownership to what is proffered as
the common food of all.”).
 church property 101

heavenly and earthly cities.5 Augustine thought that the heavenly treasury had
its own rules of property in which one gave up private wealth for the sake of
the heavenly city to the dominium of God. For Augustine, to endow God in this
world meant to endow the church.6 In contrast, secular rulers of the earthly city
made human laws by which “a man says ‘this is my villa, this is my house, this
is my slave.’”7 Augustine held that neither the state nor private ownership, even
of slaves, was evil, arguing on the basis of Christ’s command to respect political
authority.8 He was adamant, however, that all earthly goods belong to God, and
that one possesses private property only by human law.9 In the patristic
view, original sin and its consequence of human selfishness make private
property necessary as an institution which enables the imperfect justice of the
earthly city.

C. The Early Church

The gospels express a preference for poverty and common ownership of prop-
erty as marks of discipleship.10 This theological characteristic is evident in the
Acts of the Apostles, which records that the members of the early Christian
community:
were of one heart and soul, and no one said that any of the things which he
possessed was his own, but they held everything in common. . . . There was
not a needy person among them, for as many were possessors of lands or
houses sold them, and brought the proceeds of what was sold and laid it at the
apostles’ feet; and distribution was made to each as any had need.11
The theological ideal of the gospel existed in tension with the church’s institu-
tional need for secure structures to enhance its mission.
During the first several centuries of its existence, Christianity developed in a
social context marked by governmental suspicion and intermittent persecution.
The Eucharist was often celebrated secretly in private homes and the catacombs
of the early martyrs. Christianity was illegal, and the church could not own property.
By the year 251, the church in Rome had, nonetheless, accumulated sufficient
resources to support “not only the bishop, 48 presbyters, 7 deacons, 7 subdeacons,

5. See David Ganz, The Ideology of Sharing: Apostolic Community and Ecclesiastical
Property in the Early Middle Ages, in Property and Power in the Early Middle Ages
18–20 (Wendy Davies & Paul Fouracre eds., Cambridge University Press 1995).
6. See Augustine of Hippo, Enarrationes in Psalmos, 38, 12; 38 PL 327.
7. Augustine of Hippo, In Ioannis Evangelium Tractatus CXXIV, 6, 2518–2026; 35 PL
1437.
8. See Augustine, De Moribus Ecclesiae Catholicae, et De Moribus Manichaeorum Libri
II, I, 35; 32 PL 1342–44.
9. See Augustine of Hippo, In Ioannis Evangelium Tractatus CXXIV, 6, 25; 35 PL 1437.
10. Mark 10:21.
11. Acts 4:32.
102 canon law

42 acolytes, and 52 exorcists, readers and doorkeepers, but also more than 1,500
widows and needy persons . . .”12 In 260, the Roman emperor Gallineus issued
an edict granting toleration of Christianity. In response to petitions from bish-
ops, the emperor restored churches and property which had been previously
confiscated by the Roman government.13 Starting after the year 312, the benefac-
tions of Constantine to the church were on a large scale and included land, build-
ings, and a generous fixed proportion of provincial revenues for the support of
the church’s charitable activity. Government recognition of Christianity permit-
ted the church to acquire property. Roman law distinguished between possessio
and dominium. Possessio was a question of fact, while dominium meant that one
had an enforceable legal title and ultimate right to the land. Possessio could be
terminated through a legal process by one who had dominium.14
Some of the Constantinian era donations to the church were secured through
a document known as The Donation of Constantine. Like many such early prop-
erty documents, it is spurious, probably having been forged in the eighth cen-
tury. Forgeries of this type were common during late antiquity and the early
middle ages and represented attempts to secure legal title to property based on
accumulated oral tradition, legend, and the desire for a larger justice. In the
words of one scholar:
The forgeries, which are a conspicuous feature of the age, provided documen-
tary proofs for claims which, in the minds of those who made them, scarcely
needed to be justified. The pen corrected the corruptions of nature and
restored the gross imperfections and injustices of the world to a primitive
excellence. The falsehoods in these documents did indeed raise moral
problems of which contemporaries were not unaware, but the authors believed
that they enforced truths which could not be abandoned without grave danger
to their souls. Forgeries . . . brought order into the confusions and deficiencies
of the present. Such, among very many other documents, was the Donation of
Constantine.15
Despite the apostolic ideal of poverty, ecclesiastical authorities drafted such doc-
uments in order to secure property through dominium of which they clearly had
possessio. The “not of this world” needed to be reconciled to the “mission to the
world.”16 Sacred worship, Christian education, and charitable causes such
as care for widows, orphans, and the sick were enhanced by the ownership of

12. Henry Chadwick, The Early Church 57–58 (Penguin Books 1978).
13. See id. at 120.
14. See W. W. Buckland, A Text-Book of Roman Law From Augustus to Justinian
186–99 (3rd ed. rev. by Peter Stein, University of Cambridge Press 1966).
15. R. W. Southern, Western Society and the Church in the Middle Ages 93
(Penguin Books 1977).
16. Balthasar, The Christian State of Life, 115.
 church property 103

property. The endowments of the church were retained to sustain a community,

and the ownership of property within the ecclesiastical community was held in
tension with the apostolic ideal of poverty and common ownership.
John Cassian explained how the pristine perfection of the apostolic church
waned soon after Pentecost. In his view, even as the lukewarm and tepid joined
the church, the original apostolic ideal was kept alive by early Christian monks.17
In the sixth century, the Christian Emperor Justinian legislated that the private
property of those who entered monastic communities passed to the monastery.18
Justinian also enacted laws that prohibited the alienation of church property but
permitted churches to exchange property with one another without either
of them incurring liability. Such an exchange required the approval of the
ecclesiastical authority, who acted as “steward” of the property.19 The legislation
identified church property as including “churches, hospitals, monasteries,
orphan asylums, old men’s homes, foundling hospitals, insane asylums or any
other establishment of this kind.”20 Justinian also legislated to protect the will of
a person who wished to bequeath his estate, or a part thereof, to the church. In
such instances the church beneficiary enjoyed the right to retain or sell the
bequeathed property with the approval of the bishop and clergy.21
Various theories and textual proofs have been offered to explain the juridical
status of ecclesiastical property in the Roman Empire, but they seem to raise
more questions than answers. Was the property vested in the church (ecclesia
catholica) as a whole? Was God himself viewed as the owner of ecclesiastical
property? Was each separate local church recognized as an institution with
proprietary rights? Were the patron saints of churches considered to be succes-
sors to the Roman gods such as Jupiter and Diana who owned res sacra such that

17. See John Cassian, De Coenobiorum Institutis, 2, 5; 49 PL 84–86.

18. See Justinian, Codex, 1, 13, in 12 The Civil Law including the Twelve Tablets,
the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the
Enactments of Justinian, and the Constitutions 19 (S. P. Scott ed., Central Trust Co.
1932); Novellae, 5, 5, in 16 The Civil Law including the Twelve Tablets, the
Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments
of Justinian, and the Constitutions 27–28; and Novellae, 123, 38, in 17 The Civil
Law including the Twelve Tablets, the Institutes of Gaius, the Rules of Ulpian,
the Opinions of Paulus, the Enactments of Justinian, and the Constitutions 101.
19. See Justinian, Codex, 1, 14, in 12 The Civil Law including the Twelve Tablets,
the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the
Enactments of Justinian, and the Constitutions of Leo, 19 & 25.
20. See id. at 1, 18, in 12 The Civil Law including the Twelve Tablets, the
Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments
of Justinian, and the Constitutions of Leo, 27.
21. See id. at 1, 14, 1, in 12 The Civil Law including the Twelve Tablets, the
Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments
of Justinian, and the Constitutions of Leo, 19.
104 canon law

Saint Agnes and Saint Peter were regarded as the proprietors of what belonged
to the churches dedicated to them? Was ecclesiastical property owned by the
bishop, who in some way “incarnated” it? It may well be the case that the jurists
of the early centuries held no clear conception of the precise nature of ecclesias-
tical property rights. In his study of the early church prior to the law of Justinian,
Jean Gaudemet concludes that ecclesiastical goods were considered the property
of local churches under the authority of the bishop.22

D. Medieval Theory
With the flourishing of monastic communities in the early Middle Ages, the
tension between the theological ideal and institutional necessity expressed itself
in the idea of common property owned by the monastic community and
governed by its communal authority.23 The tension was reinforced by rediscov-
ery of the sixth-century Justinian Digest, a rediscovery that coincided with the
renaissance in legal studies and law schools during the third quarter of the elev-
enth century. Scholars at the new centers would discover in the Digest the
assumption that natural law (ius naturale) contained no provision for private
ownership. The Emperor Justinian’s great compilation reinforced the view held
from the earliest days of Christianity that private ownership was a provision of
the law of nations (ius gentium), that part of human legal systems which is widely
shared because its rationality is apparent.24 Indeed, the medieval canonist Gratian
identified the common possession of all things as an example of natural law.25
Likewise, Thomas Aquinas observed that worldly goods considered per se
belong no more to one person than to another.26 Although he borrowed the
terminology of the Roman jurists, he changed its meaning.27 For Thomas, God
alone has dominium over created things. Property is “merely a power of stewardship
over what belongs to God, who intends material goods to be for the benefit of all
men.”28 Possessio embraces both collective and private ownership; it means the

22. See Jean Gaudemet, L’Eglise dans L’Empire Romain: IVe–Ve Siècles 299–315
(Sirey 1990).
23. See David Ganz, The Ideology of Sharing: Apostolic Community and Ecclesiastical
Property in the Early Middle Ages, in Property and Power in the Early Middle Ages
17–30 (Wendy Davies & Paul Fourace eds., Cambridge University Press 1995).
24. See Justinian, Digest, 41, 1, 1–13, in 9 The Civil Law including the Twelve
Tablets, the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the
Enactments of Justinian, and the Constitutions of Leo, 154–55.
25. D. 1, c.7, 3.
26. See ST, II-II, 57, 3 (“For if a particular piece of land be considered absolutely, it
contains no reason why it should belong to one man more than to another . . .”).
27. Drostan Maclaren, Private Property and Natural Law, Aquinas Papers, no.
8 at 15 (Blackfriars 1948).
28. See id. at 18.
 church property 105

thing owned either by everyone or by some specific person.29 Thomas recognized

private property (proprietas) as the “ownership of possessions . . . not contrary to
natural law, but an addition thereto devised by human reason.”30 Proprietas is the
right to private property. It is a legal right established by positive law.31 In terms
of positive law, Thomas described the ius gentium and the ius civile as being
derived from the ius naturale in two ways. First, the ius gentium, as the law
common to all nations, means generally applicable conclusions draw from the
basic principles of ius naturale. Second, the ius civile represents the specification
(determinationes) of these conclusions in the law of particular states.32 In Thomas’s
description, the ius gentium is a bridge between the ius naturale and ius civile.
Although he did not deny that private property is a natural right, as far as I am
aware, Thomas did not expressly identify it as such.
Thomas justified private property rights on the grounds that they are necessary
to avoid quarreling, to provide an incentive for work, and to ensure that property
is cared for by the owner.33 He required that private property be possessed in
such a way that it is always in readiness for the community.34 Based upon the
Thomistic analysis, the right to private property in the Catholic tradition is a
qualified, and not absolute, right. The Thomistic theory of property affirms the
legal right to private property while balancing the right against the common
good and requirements of distributive justice.35 Commenting on Thomas’s
theory, John Finnis observes:
(1) everything one has is ‘held as common (or in common)’ in the sense that it
is morally available, as a matter of right and justice, to anyone who needs it to
survive; (2) one’s superflua are all ‘held as common,’ in the sense that one has
a duty of justice to dispose of them for the benefit of the poor.36

29. See ST, II-II, 66, 2, 2 (“A rich man does not act unlawfully if he anticipates someone
in taking possession of something which at first was common property, and gives others
a share: but he sins if he excludes others indiscriminately from using it.”).
30. See id. at II-II, 66, 2 (“Hence the ownership of possessions is not contrary to natural
law, but an addition thereto devised by human reason.”).
31. See id. at II-II, 57, 3.
32. See id. at I-II, 95, 2.
33. See id.
34. See id. at II-II, 66, 2 (“In this respect man ought to possess external things, not as
his own, but as common, so that, to wit, he is ready to communicate them to others in
their need.”).
35. See Dennis P. McCann, The Common Good in Catholic Social Teaching, in In Search
of the Common Good 121–46 (Patrick D. Miller & Dennis P. McCann eds., T & T Clark
2005).
36. John Finnis, Aquinas: Moral, Political, and Legal Theory 191 (Oxford
University Press 1998).
106 canon law

Thomas argues that for persons in extreme necessity all resources become
common resources to the extent that the life-threatening condition requires.37
Moreover, a person who is aware of another’s extreme necessity has a duty to
relieve it not just from superflua but through contributing resources up to the
extent that the contribution does not reduce the donor and dependents them-
selves to extreme necessity.38 Absent extreme necessity, the right of owners to
keep property extends only so far as necessary to maintain oneself and depen-
dents in a reasonable condition of life. All further resources are held in common,
and are to be given to the poor.39 These obligations, Finnis notes, were not simply
from charity, but strict obligations in justice necessary to the common good.40
Hans Urs von Balthasar argues that the Thomistic theory of private property
reflected a change in the understanding of the natural law itself.41 Up to Thomistic
theory, von Balthasar contends, the ius naturale represented the law of the human
person in the state of nature prior to the Fall. According to von Balthasar,
Thomas’s approach represented a new way of thinking in which the ius naturale
came to represent the law of human nature without regard to history, in other
words, absent any notion of the Fall. Von Balthasar thus sees the shift in the
approach to the state of nature from the historical (focus on human nature prior
to and after the Fall) to the unequivocal (without reference to history). The sharp
distinction drawn by von Balthasar between the historical and ahistorical may be
overstating the case. The general theory understands natural law as not confined
to prelapsarian paradise but more or less a universal law of reason. Thomas had
predecessors in this view, not the least of whom was Gratian, who ascribed to the
theory that natural law was available to all persons through the use of reason.
While recognizing that the Thomistic approach to property remained rooted
in the “evangelical ethic,” von Balthasar sees Thomas’s adoption of Aristotle’s
unequivocal concept of nature in favor of the historical concept as “laying the
foundation for the canonization of private ownership.”42 Von Balthasar’s use of
the term canonization seems to mean not the legitimate recognition of the right
to private property but a legal approach that displaces the essential theological
meaning. Again, von Balthasar may also be overstating the case. As already men-
tioned, Thomas justifies the division and legal regulation of property
with the reservation that property remains fundamentally available to the
community. For this reason, von Balthasar acknowledges that “the evangelical
ethic was thus preserved” in the Thomistic theory of property rights.43

37. See ST, II-II, 32, 7, 3; and II-II, 187, 4c.

38. See id. at II, 32, 5c.
39. See id. at II-II, 87, 1, 4; and II-II, 66, 7c.
40. See Finnis, Aquinas, 192.
41. See Balthasar, The Christian State of Life, 115–19.
42. Id. at 115.
43. Id. at 117.
 church property 107

Even as the Dominican Thomas Aquinas developed his influential theory of

property rights, an already existing dispute among the Franciscans reflected the
continuing power of the theological ideal. Based upon his reading of the gospels
and profound religious experience, Saint Francis of Assisi embraced a radical
poverty forsaking ownership of material possessions.44 From the time of Francis
of Assisi, his followers fell into dispute about the meaning of poverty in the
Franciscan Order.45 In particular, the spiritualist wing of Franciscans repudiated
the need for any material goods and property.46 This was consistent in general
with the spiritualists’ antinomian approach to the Franciscan Order and the
institutional church.47 In 1230, Pope Gregory IX attempted to resolve the dispute
over Franciscan poverty with the decree Quo elongati.48 The decree permitted the
Franciscan Order to possess and enjoy the use of property while the Holy See
held title to the property. The attempted papal resolution thus recognized the
need for institutional structure and property while granting pontifical approval
to the Franciscan desire to live the gospel ideal.49 A contemporary of Thomas
Aquinas in the faculty of theology at Paris, Bonaventure, who was elected General
of the Franciscan Order, remained an apologist for evangelical poverty while
checking the antinomianism of his spiritualist brethren.50 The expression usus
pauper (use as a poor person) gained currency among the spiritualist Franciscans,
who held that renunciation of ownership was insufficient. They argued that
gospel poverty required restricting possession within the church to the barest
minimum.51 Neither Pope Gregory’s decree nor Bonaventure’s governance
quelled the dispute over Franciscan poverty, which continued to weaken the
unity of the Order and trouble the life of the church well into the fourteenth
century.52

44. Legenda maior, 3, 3, in 8 S. Bonaventura Opera Omnia, edita studio et cura pp.
Collegii a S. Bonaventura 504, 510 (Quaracchi: Collegium S. Bonaventura 1882). See
also Lawrence D. Cunningham, Francis of Assisi, Performing the Gospel Life 25
(Eerdmans Publishing 2004).
45. See C. H. Lawrence, The Friars: The Impact of the Early Mendicant
Movement on Western Society 39–42 (Longman 1994).
46. See David Burr, The Spiritual Franciscans: From Protest to Persecution in
the Century after Saint Francis 2–41 (Pennsylvania State University Press 2001).
47. For a discussion of the antinomian effects of the theology of Joachim of Fiore on
the Franciscan spiritualist, see Joseph Ratzinger, The Theology of History in St.
Bonaventure 48–55 (Zachary Hayes trans., Franciscan Herald Press 1971).
48. See John Moorman, A History of the Franciscan Order 89–91 (Clarendon
Press of Oxford University 1968).
49. See Rosalind B. Brooke, Early Franciscan Government, Elias to Bonaventure
74 (Cambridge University Press 1959).
50. See Lawrence, The Friars, 57–60.
51. See David Burr, Olivi and Franciscan Poverty: The Origins of the Usus
Pauper Controversy 111 (University of Pennsylvania Press 1989).
52. See id. at 60–64; and Moorman, A History of the Franciscan Order, 307–19.
108 canon law

E. The Social Teaching of the Church

The Thomistic synthesis, of course, has a general applicability to society, and it
is not limited to the question of the ownership of property within the Catholic
Church. Starting with Pope Leo XIII’s 1891 encyclical, Rerum Novarum, Catholic
social teaching would recognize the right to private property based upon the
Thomistic theory.53 According to the social teaching, the right to private property
is not based on “indiscriminate ownership” and must “serve the common interest
of all” even as the compensation for individual labor justifies private property as
“clearly in accord with nature.”54 Pope Pius X articulated two principles for the
regulation of private property: (1) “unlike the beast, man has on earth not only
the right to use, but a permanent right of ownership; and this is true not only of
those things which are consumed in their use, but also of those which are con-
sumed by their use”; and (2) “private property is under all circumstances, be it
the fruit of labor or acquired by conveyance or donation, a natural right, and
everybody may make such reasonable disposable of it as he thinks fit.”55 On the
fortieth anniversary of Pope Leo’s Rerum Novarum, Pius XI issued the encyclical,
Quadragesimo anno, which reiterated the natural right to private property while
emphasizing the correct proportions of the right in terms of the human person
and the social order.56
In this regard, Pope John XXIII’s Mater et Magister states: “private property,
including that of productive good, is a natural right possessed by all, which the
State may by no means suppress. However, as there is from nature a social aspect
to private property, he who uses his right in this regard must take into account
not merely his own welfare but that of others as well.”57 Recall that Thomas
Aquinas had no doubt that the human person has a natural right to the use of

53. Leo Pp. XIII, Litterae Encyclicae Rerum Novarum (Dei 15 mensis maii anno 1891),
10–17, in 11 Leonis XIII P.M. Acta 97-144 (Editrice Vaticana 1892).
54. Id. at 14–15.
55. Pius Pp. X, Motu Proprio, Arduum sane munus (Die 18 mensis decembris anno
1903); 37 ASS 549–51 (1903–1904) (emphasis added).
56. See Pius Pp. XI, Litterae Encyclicae, Quadragesimo anno (Die 15 mensis maii anno
1931), 44–48; 23 AAS 171–228 (1931). In No. 45 Pope Pius XI states: “let it be considered
as certain and established that neither Leo nor those theologians who have taught under
the guidance and authority of the Church have ever denied or questioned the twofold
character of ownership, called usually individual or social according as it regards either
separate persons or the common good. For they have always unanimously maintained
that nature, rather the Creator Himself, has given man the right of private ownership not only
that individuals may be able to provide for themselves and their families but also that the
goods which the Creator destined for the entire family of mankind may through this insti-
tution truly serve this purpose. All this can be achieved in no wise except through the
maintenance of a certain and definite order.” (emphasis added).
57. Ioannes Pp. XXIII, Litterae Encyclicae, Mater et Magister (Die 15 mensis iulii anno
1961), 19; 53 AAS 401–64 (1961) (emphasis added).
 church property 109

material things, but he understood the property right as part of the ius gentium.
For Aquinas, it is quite certain that property is a relative and not absolute right.
The Thomistic theory agrees with the patristic theory that understood private
property as not necessary in the original state of nature but as a consequence of
original sin. The twentieth-century papal pronouncements that private property
is a “natural right” must be interpreted with this tradition in mind as well as the
historical circumstances in existence at the time of these pronouncements. The
twentieth-century identifications of private property as a natural right were a
response to the challenges of unbridled capitalism and Marxist collectivism. On
the one hand, the unregulated free market of certain capitalist approaches could
indicate the acquisitive instinct of the human person was free from moral
restraint. On the other hand, state ownership and control of all property and
means of production defiled individual dignity, freedom, and creativity.
Vatican II’s Gaudium et Spes affirmed that social principle that the goods of
this world are originally meant for all and stated that the necessity of private prop-
erty does not nullify this principle.58 This teaching was reinforced by Pope John
Paul II in Soliticitudo Rei Socialis, in which the pontiff criticized communism for
its collective ownership for the means of all production and liberal capitalism for
its inequitable distribution of material resources.59 In John Paul II’s words:
“Private property, in fact, is under a ‘social mortgage,’ which means that it has an
intrinsically social function, based upon and justified precisely by the principle of
the universal destination of goods.”60 On the one hundredth anniversary of Rerum
Novarum, Pope John Paul II in Centesimus Annus, extolled the right to private
property which must be understood in light of the principle of the “universal
destination of the earth’s goods.”61 In fidelity to the Thomistic tradition, Catholic
social teaching affirms the human reality of need for private property but calls for
proper state regulation to ensure a just economic and social order.

II . property in liberal political theory

What follows is by no means a comprehensive treatment of property rights in

liberal political theory. Rather, I present several seminal elements of the theory
in order to facilitate the comparison with the understanding of property in canon
law. The philosophical justification for the law of private property rights in
liberal theory traces its roots to theorists such as Thomas Hobbes, John Locke,

58. See Gaudium et Spes, 69.

59. See Ioannes Paulus Pp. II, Litterae Encyclicae, Sollicitudo Rei Socialis (Die 30 mensis
decembris anno 1987), 20, 21, 41, and 42; 80 AAS 513–86 (1988).
60. Id. at 42.
61. Ioannes Paulus Pp. II, Litterae Encyclicae, Centesimus Annus (Die 15 m. maii a.
1991) 6.2; 83 AAS 793–887 (1991).
110 canon law

and David Hume. Writing in seventeenth-century England, Hobbes rejected the

idea that ownership of property derived from nature. He envisioned nature as a
state in which property belonged to no one, and competition among persons to
acquire property produced a “war of all against all.”62 The desire of self-preservation
led the individual to surrender self-governance to the state. Prior to the state,
there was no society, only warring individuals. Private property is the invention
of the state to protect the owner from encroachments from other individuals.63
In contrast to Hobbes, Locke depicted the state of nature not as one of constant
strife, but of freedom and equality. In Locke’s view, the self-sufficient individual
in the state of nature consents to enter society in order to obtain certain
advantages.64 These advantages include, inter alia, increased personal security,
the right to private property and the state’s protection of it, the specialization of
work, availability of capital, the market economy, and opportunities to maximize
individual wealth. For Locke, the supreme responsibility of the state is to set the
rules that protect the individual’s right to own private property.
Hobbes and Locke shared the underlying assumption that the individual
agrees to forego the state of nature in order to gain the benefit of private property,
which is protected by the state. This “contractarian individualism” focuses on
the human being as autonomous, ceding the minimum amount of autonomy to
the state in order to gain these advantages. Private property plays a critical role
both in protecting individual autonomy and maximizing wealth. Freedom is
defined as the absence of government constraint on the individual. The
economic goal of the individual is to acquire as much private property as possible
in accord with the minimal constraints placed on individual freedom by the
government. Writing in the eighteenth century, Hume thought of private property
as a mere convention that people respected because it set the conditions for
general economic prosperity. Viewing the human person as filled with various
gradations of vices and virtues, Hume thought that the individual owned private
property in an individual and exclusive way. He stated: “’tis certain, that rights,
and obligation, and property, admit of no such insensible gradation, but that
a man either has a full and perfect property, or none at all.”65 Consistent
with these elements of liberal political theory, the “fee simple absolute” is the
most unrestricted form of holding real property known to Anglo-American law.

62. See Thomas Hobbes, De Cive, 6–7, in De Cive: the English version (Howard
Warrender ed., Clarendon Press of Oxford University 1983).
63. See Thomas Hobbes, Leviathan, 2, 21, at 165 (J. C. A. Gaskin ed., Oxford University
Press 1998).
64. See John Locke, Second Essay Concerning Civil Government, §§ 15, 21, 87,
95, in Locke, Two Treatises of Government 278, 282, 324, 330–31 (Peter Laslet ed.,
Cambridge University Press 1988).
65. David Hume, A Treatise on Human Nature 3.2.6, 339 (David Fate Norton &
Mary Jane Norton eds., Oxford University Press 2001).
 church property 111

As with chattel, which may also be owned absolutely, it is of infinite duration and
permits the titleholder to use the property in accord with subjective preferences
with few restrictions. It testifies to the sovereignty of individual autonomy in
Anglo-American property law.
An early U.S. Supreme Court case, Johnson v. M’Intosh,66 has been termed
“the unofficial beginning of American property law.”67 The 1823 case turned on
a title dispute to real property. The plaintiff Johnson had first possession in the
land originally purchased from Native Americans. The defendant M’Intosh had
acquired a later title to the same land in a chain of ownership that could be traced
to the grant of the English Crown. Chief Justice John Marshall reasoned that,
although the plaintiff’s title was first in time as to its origin, it did not come
through the U.S. government, and therefore could not be recognized by the
Court.68 Marshall based the Supreme Court’s decision on the 1783 Treaty of
Paris, which brought an end to the Revolutionary War. Pursuant to the treaty,
any rights in land that the English sovereign had granted prior to the Revolution
were to be respected and enforced. The defendant’s right to the disputed property
fell clearly within the terms of the treaty. In Marshall’s view, the plaintiff’s title
was based on rights in property which, although they may have possessed some
validity among Indian nations, could not be recognized by a court of the United
States. The Court therefore held for the defendant.
The Chief Justice attempted to bolster the Supreme Court’s ruling in Johnson v.
M’Intosh with additional arguments. First, Marshall argued that the law of dis-
covery entitled the nation which discovered a particular territory first to occupy
and control the property, subject to limited rights of occupancy in the aborigi-
nals. He analogized the law of discovery to the law of conquest in which the
spoils of war belong to the victor. Second, Marshall seemed to believe that the
law of discovery applied only to the nations of Europe on account of the “superior
genius” that they contributed to aboriginals.69 Marshall’s line of argument has,
of course, been the subject of a much deserved critique not the least of
which considers the reasoning to be racist.70 The problems of Marshall’s reason-
ing notwithstanding, Johnson v. M’Intosh affirmed the understanding of private
property held by the liberal theorists that the individual has an absolute right
to property to the extent that the title to the property is recognized by the govern-
ment. The idea of property in Anglo-American law has gone through many

66. 21 U.S. 543, 8 Wheat, 543 (1823).

67. Note, The Myth of Johnson v. M’Intosh, 52 UCLA L. Rev. 289, 290 (2004).
68. See 21 U.S. at 572.
69. Id. at 573.
70. See, e.g., Robert A. Williams, Jr., The American Indian in Western Legal
Thought: The Discourses of Conquest 317 (Oxford University Press 1990); and
Richard A. Epstein, Property Rights Claims of Indigenous Populations: The View from the
Common Law, 31 U. Tol. L. Rev. 1 (1999).
112 canon law

developments in the course of its history, not the least of which have been the
development of the modern corporation, financial markets, income taxation, the
rise of the welfare state, entitlements, the regulatory state, and environmental
protection. While many of these developments have tended to weaken property
rights, the idea that an individual enjoys the right to private property contingent
on state approval has perdured as characteristic of liberal theory.

III . comparison of catholic and liberal theories of property

What conclusions might be drawn from the comparison of the seminal elements
of canon law and liberal theory in their respective approaches to property? First,
both canon law and liberal theory recognize the right to private property. Both
understand the right as essential to human flourishing for somewhat different
reasons. Liberal theorists would not necessarily dispute Thomas Aquinas’s three
justifications for private property, which are applicable to religious and secular
societies alike. According to Thomas, the right to private property serves to offer
incentives for human productivity, care of property, and the avoidance of property
disputes. However, there is a difference between canon law and liberal theory
about the source of the right. The anthropological foundation for private property
in canon law suggests that the right reflects the nature of the human person. The
location of the right in the reason, freedom, and social nature of the human
person justifies the conclusion that private property is a natural right. At the
same time, this conclusion must be understood in light of Christian theology.
According to the theological understanding private property is a consequence of
human nature after the Fall, but not part of human nature as it was originally
created by God. Form the a-historical perspective, one may speak of a natural
right to private property, but less so from the historical perspective. The balance
between the historical and a-historical approaches to private property means that
the right must not be understood as absolute. The right of private property in
canon law is limited by the theological concerns about evangelical poverty and
common ownership. Liberal political theory developed in separation from divine
revelation, and consequently, the political theory was not concerned with the
theological ideals. For the early liberal theorists, it is in the interests of the indi-
vidual to leave the state of nature and enter the social contract. Although Hobbes
and Locke endorsed a certain view of natural law, they did not understand a right
of private property to exist prior to the social contract. In liberal theory, the state
creates the right in order to set the conditions which are most advantageous to
the greatest number of individuals. The right to private property may be more
absolute in liberal theory than it is in canon law. Pristine liberal theory does
not endorse the Catholic view that private property be possessed in such a way
that it is always in readiness for the community. Nonetheless, this theoretical
difference may not be so great in practice. Property law rooted in liberal theory
 church property 113

has developed in order to permit the state to act against individual interests for
the common good. As the law of eminent domain illustrates, the state may use
its power to take private property from individuals who receive compensation for
the taking if the state’s action is justified by the common good.71
Second, the juxtaposition of the fundamental approaches to property in canon
law and liberal theory reflects different anthropological conceptions. Canon law
assumes an understanding of the human person as one who is essentially social
in nature and who discovers fulfillment through participation and solidarity with
others.72 This anthropological understanding differs from the image of contrac-
tarian individualism in the pristine version of liberal theory. According to Locke’s
articulation of the pristine version, the individual cedes a degree of autonomy to
enter the social contract in order to optimize the opportunities to acquire material
wealth in accord with subjective choices. In a more recent version of the liberal
tradition, John Rawls described society as a cooperative venture of individual
citizens based upon a theory of justice.73 For Rawls, justice depends on the
distribution of societal goods to each individual in accord with legitimate need.
Although not antithetical to Rawls’s theory of distributive justice, Catholic
tradition considers justice in human society to be more than that of the Rawlsian
description.74 With the focus on individual need, Rawls’s account may under-
value communities that are distinct from political society, such as family, church,
and nonpolitical associations. From the Catholic perspective, these communities
naturally constitute the person as a social being, and foster the conditions for
participation and solidarity. If these communities are to prosper, Catholic social
theory holds that it is not sufficient for the government to simply secure the
protection of individual property rights, a market economy, and an ever-increasing
subjective consumerism. The tax-exempt status of churches and other not-
for-profit organizations is an indication that the secular state recognizes the

71. See Kelo v. City of New London, 545 U.S. 469 (2009) (holding that pursuant to emi-
nent domain, the city could take private property owned by an individual and transfer the
property to a private developer on the ground that the general benefits a community
gained from economic growth qualified the redevelopment plans by the private developer
as a permissible “public use” under the Takings Clause of the Fifth Amendment). See also
Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 Mich. L.
Rev. 101, 142-147 (suggesting that high compensation to individuals by the government
for the taking of property may not always advance the common good as the high compen-
sation may undermine political opposition to the project and may result in non-instru-
mental harms to individuals and communities).
72. See Lumen Gentium, 18–29.
73. See John Rawls, A Theory of Justice 515–20 (Harvard University Belknap Press
1971).
74. See Jean Porter, The Common Good in Thomas Aquinas, in In Search of the
Common Good 106–20 (Patrick D. Miller & Dennis P. McCann eds., T & T Clark 2005).
114 canon law

value that religious and other communities afford to the individual and the
common good.
Third, the comparison of the approaches to property in canon law and liberal
theory points to diverse definitions of freedom. The theological element in canon
law includes the gospel preference for poverty. Canon law reflects the theological
view that the intentional renunciation of property may facilitate human freedom.
According to the theological view, the more one is detached from material
possessions, the more one experiences inner freedom. Not endowed with the
theological meaning, liberal theory maintains a close nexus between the right to
own private property and individual freedom. The state functions to ensure that
each individual is afforded an equal opportunity to acquire a fair share of property,
defined broadly as any right, benefit, or entitlement that enhances individual
well-being. Liberal theory has no interest in propagating the theological view that
true freedom depends on detachment form material goods.
Finally, canon law exhibits trust in ecclesiastical authority to direct the use of
the church property so that the property serves the mission of the church. Liberal
theory, of course, neither shares the church’s mission nor recognizes an ecclesias-
tical office vested by divine authority to discern how best to implement that
mission. A central feature of liberal theory values a minimal level of government
regulation on the individual’s right to private property. While canon law reflects
trust in ecclesiastical authority with regard to the regulation of ecclesiastical
property in accord with the church’s mission, liberal theory holds to a rule of
suspicion of the exercise of government power lest it infringe on the freedom
of the individual to employ the property right.
5. church property continued
The Diocese and Parish; Canon Law and State Law

Given the theoretical differences discussed in the previous chapter, it would be

an ill fit simply to superimpose the liberal theory of property onto canon law. The
imposition would disturb the careful balance canon law attempts to attain
between the theological ideal, which values common ownership and apostolic
poverty, and the legal reality, which recognizes that private property arises from
legitimate human need as well as the institutional stability and continuity of the
church. Approaching the question of the ownership of property in the Catholic
Church from the perspective of liberal theory alone fosters legalism. Legalism
overlooks the proper role played by theology in affording the inner meaning or
intellectus of canon law. The legalistic approach obscures the fact that ecclesiasti-
cal property always serves the mission of church. Absent this intellectus, canon
law fails to function as a life-giving force in the church.
A legalistic approach to church property in the United States was advocated
by John J. McGrath. In the years immediately following Vatican II, McGrath
argued that a great deal of ecclesiastical property in the United States was not in
fact ecclesiastical property subject to the provisions of canon law.1 He based his
argument on the historical assumption that many institutions such as colleges,
universities, and hospitals, which were originally founded by Catholic religious
communities and dioceses, were intended to fulfill a primarily secular purpose,
and therefore ought not to be regarded as ecclesiastical property. Other canonists,
including Adam Maida and Nicholas Cafardi, have questioned the historical
assumption that underpins the McGrath thesis. They argue that there can be no
doubt that such institutions, even if they may have also served secular purposes,
were originally intended as primarily religious in nature and a direct manifestation
of the church’s apostolic activity.2 Pursuant to the McGrath thesis, the theological

1. See John J. McGrath, Catholic Institutions in the United States: Canonical

and Civil Law Status (Catholic University Press 1968). See also Robert T. Kennedy,
McGrath, Maida, Michiels: Introduction to a Study of the Canonical and Civil Law Status of
Church Related Institutions in the United States, 50 Jurist 351–401 (1990).
2. See Adam J. Maida, Canonical and Legal Fallacies of the McGrath Thesis on the
Reorganization of Church Entities, 19 The Catholic Lawyer 275–86 (1973); Adam J.
Maida & Nicolas P. Cafardi, Church Property, Church Finances, and Church-
Related Corporations 271 (Catholic Health Association of the United States 1984).
See also James A. Coriden & Frederick R. McManus, in Church and Campus: Legal
Issues in Religiously Affiliated Higher Education 145–46 (University of Notre
Dame Press 1979).
116 canon law

element of canon law remains obscure or irrelevant in the determination of the

ownership of many institutions founded under church auspices.
In this chapter, I address several specific issues in light of the theories of
property discussed in Chapter 4. First, I examine the theological and canonical
relationship between the diocese and the parish in terms of the ownership of
property. Second, I recount the nineteenth-century struggle of the Catholic
Church to secure its parish property in accord with the hierarchical structure
required by canon law in opposition to the congregational model embraced by
many Protestant churches. Third, I discuss the relationship between canon law
and state law with regard to ecclesiastical property and in particular the ways in
which state law permits the Catholic Church to hold its property in accord with
canon law. Finally, I consider antinomian and legalistic approaches to church
property and their impact on the rule of law from the perspective of the seculariza-
tion of Catholic institutions.

I. the diocese and the parish

In the wake of plaintiffs’ lawsuits against dioceses as a result of clerical sexual

abuse, the decisions of several dioceses to enter into bankruptcy proceedings
under U.S. federal law have called into question the relationship between diocese
and parish.3 Specifically, the dioceses have asserted that parish property is not to

3. By a conservative estimate, the cost of settlements of sexual abuse cases to dioceses

and religious communities in the United States has thus far easily been several billion dol-
lars. See The Nature and Scope of the Problem of Sexual Abuse of Minors by
Catholic Priests and Deacons in the United States, A Research Study Conducted
by the John Jay College of Criminal Justice, 6.1.1, 105 (2004), which states that the
total costs paid by diocese and religious communities for compensation to victims, treat-
ment of offenders, and attorneys fees was $572,507,095; see also 2004 Annual Report on
the Implementation of the Charter for the Protection of Children and Young
People, United States Conference of Catholic Bishops, 3, 9 (United States Conference
of Catholic Bishops 2005), which states that in the year 2004, the total costs paid by diocese
and religious communities for compensation to victims, treatment of offenders, and attor-
neys fees was $157,802,811. These two reports placed the cost of the sexual abuse cases
from 1950 to 2004 for the Catholic Church in the United States at $730,309,906. However,
another 2005 account stated that the total amount of settlements has exceeded one billion
dollars. See N.Y. Times, June 12, 2005, at 1, 33. In reality by 2007, the amount may have been
in excess of three billion dollars. See Stephen M. Bainbridge & Aaron H. Cole, The Bishop’s
Alter Ego: Enterprise Liability and the Catholic Priest Sex Abuse Scandal, 46 Journal of
Catholic Legal Studies 65–106 (2007). At the time of writing this chapter, at least seven
Roman Catholic dioceses had filed for bankruptcy protection. They are: the Archdiocese of
Portland, Oregon, see N.Y. Times, July 7, 2004, at A12; the Diocese of Tuscon, Arizona, see
N.Y. Times, Sept. 21, 2004, at A18; the Diocese of Spokane, Washington, see N.Y. Times,
Dec. 7, 2004, at A24; the Diocese of Davenport, see N.Y. Times, Oct. 11, 2006, A, 22;
 church property continued 117

be counted as part of the assets of a diocese in a federal bankruptcy proceeding.4

This assertion has a certain technical validity in light of the fact that under the
CIC-1983, the parish is a distinct juridic person with the right to own ecclesiasti-
cal property.5 As convenient as the assertion may be for the diocese at this time,
however, I do not believe that it fully reflects the correct relationship between the
diocese and its parishes with regard to the ownership, administration, regulation,
and alienation of parish assets.6 The assertion carries multifaceted consequences
that transcend the significance of the diocese attempting to shield parish assets
when the diocese files for bankruptcy relief in a federal court. The assertion may
well prove detrimental to the interest of a diocese in a different kind of case in
the secular courts where control of parish assets is contested. It certainly will not
serve diocesan interests in a financing endeavor backed by diocesan assets as the
security. More importantly from an ecclesiastical perspective, the assertion
dislocates canon law from the theology of the particular church expressed in the
documents of Vatican II.

A. The Unity of Law and Theology

A correct analysis of the relationship between the diocese and the parish reflects
the unity of law and theology. The theology of the particular church articulated
at Vatican II is indispensable to the analysis of the canonical relationship. The
documents of Vatican II use the term “particular church” in a variety of ways.
First, it means the autonomous churches of the East in union with Rome.7 The
term also refers to patriarchal and major archiepiscopal churches as well as to the
church that comprises a certain cultural and/or geographic region.8 Canon 368

the Diocese of San Diego, California, see N.Y. Times, Feb. 28, 2007, at A16; the Diocese of
Fairbanks, Alaska, see N.Y. Times, Feb. 16, 2008, at A12; and the Diocese of Wilmington,
Delaware, see N.Y. Times, October 20, 2009, at A14. See also In re The Catholic Bishop of
Spokane, United States Bankruptcy Court, Eastern District of Washington (Aug. 26, 2005),
which held that the parish property belongs to the diocese for the purposes of a bankruptcy
proceeding.
4. See, e.g., Statement of Archbishop John Vlazny of Portland, Oregon, Archdiocese Files
for Bankruptcy Protection, 34 Origins 113, 113–15 (July 15, 2004) (“Under canon law,
parish assets belong to the parish.”).
5. See Canons 516, § 3 and 1256, CIC-1983.
6. Please permit me to clarify that when I refer to parish property, I am addressing all
the assets including but not limited to real property. Furthermore, I have in mind the
normal relationship between the diocese and parish. In the long history of the Catholic
Church, there are, of course, exceptions in which a religious order or some other canoni-
cally recognized entity owns specific property related to a parish ministry. Instead, I have
in mind the more normative relation between the diocese and parish in which the parish
property is under the authority of the bishop. See Canons 515, § 1 & 381, § 1, CIC-1983.
7. See generally Orientalium Ecclesiarum, 441.
8. Lumen Gentium, 13. See also Canon 55, CCEO, which recognizes the ancient
tradition of the Patriarchal Church; and Gianfranco Ghirlanda, S.J., Il diritto nella
118 canon law

of the CIC-1983 incorporates a third meaning derived from Vatican II in which

the particular church includes the diocese and similar juridical structures such
as territorial prelature, territorial abbacy, apostolic vicariate, apostolic prefecture,
and an apostolic administration which has been erected on a stable basis.9 All of
these meanings share the sense of the autonomy of the particular church. The
particular church is not a mere administrative unit of the Roman church.
According to Lumen Gentium, the universal church, in its concrete and historical
manifestation, exists “in and from” the particular churches.10 An influential
theologian at Vatican II, Henri De Lubac explains that each particular church is
considered to constitute the Body of Christ and contains within itself all that is
necessary for salvation.11 At the same time, the communio of the particular
churches with the Successor to Saint Peter at its head is viewed as more than a
federation. Rather, in words of De Lubac, the communio is “organic and
mystical.”12 De Lubac explains that the relationship between the universal church
and the particular churches is one of “mutual interiority.”13 The universal church,
according to Lumen Gentium, remains always a reality ontologically prior, from
which the particular churches take their origin.14 In the words of Eugenio
Correco, “the particular church cannot exist except in so far as she is a concrete
realization of the universal Church.”15 The ecclesial communio of all of the
particular churches united in the universal church coincides with the hierarchi-
cal communio of the college of bishops with the Roman Pontiff at its head. As the
title “Roman Pontiff” indicates, the pope who is the Bishop of Rome serves as
a “bridge” among all the particular churches which are headed by his brother
bishops. The delicate relationship between the Roman Pontiff and the bishops
responsible for the particular churches is at the same time collegial and

Chiesa mistero di Comunione 42 (Editrice Paoline e Roma: Editrice Pontificia Università

Gregoriana 1990).
9. See CIC-1983, Canon 368. There was no parallel definition in the CIC-1917. The
CCEO, Canon 177, § 1 identifies the eparchy as a particular church.
10. Lumen Gentium, 23 (“in quibus et ex quibus”).
11. See Henri De Lubac, Particular Churches in the Universal Church, in The
Motherhood of the Church 191–211 (Sergia Englund trans., Ignatius Press 1982).
12. See De Lubac, Particular Churches in the Universal Church, 191–211. See also Joseph
Ratzinger, The Pastoral Implications of Episcopal Collegiality, 1 Concillium 37–38 (1975).
13. De Lubac, Particular Churches in the Universal Church, in The Motherhood of
the Church, 201, citing Yves Congar, La collégialité de l’épiscopat, I: “Avant le milieu du
IV° siècle.”
14. Lumen Gentium, 26. See also Wilhelm Bertrams, S.J., De analogia quod structuram
hierarchicam inter Ecclesiam universalem ac Ecclesiam particularem, 56 Periodica 267–308
(1967).
15. Eugenio Corecco, Canon Law and Communio, Writings on the
Constitutional Law of the Church (Graziano Borgonovo and Arturo Cattaneo, eds.,
Liberia Editice Vaticana 1999), 74.
 church property continued 119

hierarchical. Out of respect for the collegiality among the bishops and the auton-
omy of the individual churches, the Roman Pontiff does not generally interfere
in the governance of the particular churches.
The diocese is the most common canonical manifestation of the particular
church.16 A definition of the diocese may be found in Christus Dominus: “A diocese
is a section of the people of God entrusted to a Bishop to be guided by him with
the assistance of his clergy so that, loyal to its pastor and formed by him into one
community in the Holy Spirit through the Gospel and the Eucharist, it constitutes
one particular Church in which the One, Holy, Catholic and Apostolic Church of
Christ is truly present and active.”17 In no sense is the diocesan bishop an
employee of the pope. The existence of a hierarchical relationship between
parties does not automatically give rise to an employee-employer relationship.
While it is often the case that the Roman Pontiff appoints the diocesan bishop,
the diocesan bishop teaches, sanctifies, and governs as a successor to the
Apostles. The diocese then is an autonomous church in ecclesial communion
with the universal church.
In contrast, the parish does not constitute an autonomous church.18 Section 1
of Canon 515 of the CIC-1983 describes the parish as “a certain community of
Christ’s faithful stably established within a particular church, whose pastoral
care is entrusted to a priest as its proper pastor under the authority of the diocesan
bishop.” For the purpose of this discussion, this description contains three
significant elements. First, the parish is a community of the Christian faithful. The
element of the description reflects a return to the ancient understanding of the
term “parish,” which finds its etymological roots in the Greek word paroikia
(παροικι′α), meaning a pilgrim people.19 It is perhaps at the local level that the
communio of the church may be experienced in its most intimate form. In the
words of Lumen Gentium: “In these communities, though frequently small and
poor, or living far from any other, Christ is present.”20 Second, the parish is estab-
lished within a particular church. Defining the parish in relation to the diocese,

16. As the particular church is more than a mere administrative unit, one must be
careful that the canonical word “diocese” means more than the idea evoked by the ancient
diocese of the Roman Empire. See De Lubac, Particular Churches in the Universal Church,
200–01.
17. Christus Dominus, 11, Canon 369 of the CIC-1983 contains a similar definition of
the diocese.
18. See Louis Boyer, L’Église de Dieu 488 (Cerf 1970).
19. See Ludwig F. von Hertling, Communio: Church and Papacy in Early
Christianity 102 (Jared Wicks, S.J. trans., Loyola University Press 1972).
20. “In his communitatibus, licet saepe exiguis et pauperibus, vel in dispersione
degentibus, praesens est Christus . . .” Lumen Gentium, 26. See Francesco Coccopalmerio,
De Paroecia 8 (Editrice Pontificia Università Gregoriana 1991).
120 canon law

Christus Dominus states that the parish is a part of the diocese.21 It is only by
analogy to the communio of the particular churches that one may speak of communio
as the relationship between the diocese and the parishes that comprise it.22 Third,
the care of the parish is entrusted to a priest under the authority of the diocesan
bishop. The parish is the communion of the baptized presided over by the priest
who is appointed by and collaborates in the pastoral ministry of the bishop.23 Not
only is the priest appointed pastor by the bishop, canon law establishes the
diocesan bishop’s right to remove or transfer him under certain conditions and
procedural safeguards.24 Although the bishops form one college with the Roman
Pontiff at its head, the pastor of a parish is in a hierarchical relation to the
diocesan bishop. The parish is of its nature dependent on the bishop as head of
the diocese. Section 2 of Canon 529 requires the priest to foster among the faithful
an authentic sense of communion with the diocesan bishop and the Roman
Pontiff.
As with the hierarchical relationship between the Roman Pontiff and the
bishop, canon law does not view the parish priest as an employee of the diocesan
bishop. The hierarchical relationship between the diocesan bishop and the pastor
of the parish reflects the theological belief that the bishop is a successor to the
Apostles and that the priest cooperates in this apostolic ministry.25 In accord
with the apostolic tradition, the governing role exercised by the diocesan bishop
remains primarily pastoral. Canon 383 of the CIC-1983 urges that the diocesan
bishop is: to “function as a pastor”; “show concern for all”; “extend an apostolic
spirit”; “provide for spiritual needs”; “act with humanity and charity”; and “shine
the charity of Christ as a witness before all people.” The governing power of the
bishop is exercised as the spiritual father of the priest and parish. Likewise, the
priest who is pastor of the parish is the minister of the Word, the minister of the
Sacraments, and the minister of pastoral charity to the portion of the people of
God entrusted to his care.26

21. Sacrosanctum Concilium Oecumenicum Vaticanum II, Decretum De Pastorali

Episcoporum Munere In Ecclesia, Christus Dominus (Die 28 mensis octobris anno 1965),
30,1; 58 AAS 673–96 (1966). See John A. Renken, Parishes and Pastors in CLSA-2000,
676 (“The parish is part of the particular church, not an autonomous entity.”). See also
James A. Coriden, The Parish in Catholic Tradition, History, Theology, and Canon
Law 101–03 (Paulist Press 1997), which discusses the parish as part of the diocese.
22. See Congregatio pro Doctrina Fidei, Litterae ad Catholicae Ecclesiae Episcopos de
aliquibus aspectibus Ecclesiae prout est Communio (Die 28 mensis maii anno 1992), 85 AAS
838–50 (1993), which explicates the dogmatic implications of communio.
23. See Francesco Coccopalmerio, Il concetto di parrocchia nel Vaticano II, 106 La
Scuola Cattolica 123–42 (1978).
24. See Canons 1732–1752, CIC-1983.
25. See Canon 375, § 1, CIC-1983.
26. See Canons 528, §§ 1 & 2; and Canon 529, CIC-1983.
 church property continued 121

This theological justification for the careful and consultative nature of the
bishop’s ministry is reenforced by the natural law principle of subsidiarity. Pope
Pius XI formulated a description of the principle as an integral aspect of the
church’s social teaching: “it is an injustice . . . to transfer to the larger and higher
collectively functions which can be performed and provided for by the lesser and
subordinate bodies.”27 Consistent with the principle of subsidiarity, the parish
structure enables a local congregation of the faithful to engage in activities that
foster a community of faith among the members. Just as the specific traditions
and customs of the particular church do not detract but enhance the universal
church, the local parish churches also enjoy a legitimate right to develop special
practices as long as they express the unity of the one faith of the universal church.
However, Pius XI’s philosophical description of subsidiarity was formulated in
response to societal developments in the industrialized world. It would be a
methodological error to apply it as a general sociological device to structures in
the church.28 The natural law principle of subsidiarity is not intended to detract
from the hierarchical relation between the diocesan bishop and the parish. In
the exercise of his pastoral leadership, the bishop is always to be respectful of the
life of the local community. This in no way abrogates the bishop’s responsibility
and right to exercise pastoral governance over his diocese and the parishes which
are part of it.
In defining the relationship between the diocese and the parish, the CIC-1983
holds in tension the principle of hierarchy and the principle of equality. Canon 330
reflects the ecclesiological claim that Christ instituted the church as a hierarchical
communion of the Apostles and their successors with Saint Peter and his
successors at the head of the College of Bishops. At the same time, Canon 208
recognizes the fundamental equality of all the baptized as members of the People
of God. These canons are based upon the idea that the church is at once a
communion in which holiness is equally available to all, and one in which the
members of the College of Bishops function with hierarchical office. The theologi-
cal understanding of the church as communio is at odds with competition between
individual baptized persons or groups to acquire exclusive property rights over
the church’s temporal goods. An approach to canon law that neglects to take
account of this theological claim amounts to legalism. It approaches the law as
separate from the theology of the church.

27. Pius Pp. XI, Litterae Encylicae, Quadragesimo Anno (Die 15 mensis maii anno
1931), 79–80, 23 AAS 35 (1931). English translation in Seven Great Encyclicals 147
(William J. Gibbons ed., Paulist Press 1963).
28. See Corecco, Canon Law and Communio, Writings on the Constitutional
Law of the Church, 375.
122 canon law

B. Parish Property in Canon Law

In their respective commentaries on church property, Francis G. Morrisey and
Robert T. Kennedy concur that “property legitimately acquired by a parish . . .
is owned by the parish, not by the diocese.”29 Morrisey describes the parish
ownership as “exclusive.”30 He explicates his opinion by stating that a diocese
that seeks to appropriate parish property must purchase or lease the property
from the parish in question.31 The justification for this opinion may be found in
Section 3 of Canon 515 of the 1983 Code of Canon Law, which recognizes the
parish as a juridic person. Kennedy provides a description of a juridic person
as “an artificial person, distinct from all natural persons or material goods,
constituted by competent ecclesiastical authority for an apostolic purpose, with a
capacity for continuous existence and canonical rights and duties like those of a
natural person . . .”32 Canon 1256 establishes that “[u]nder the supreme authority
of the Roman Pontiff, ownership of goods belongs to that juridic person which
has legitimately acquired them.” It follows that the parish owns the property
which it has legitimately acquired. To end the inquiry at this point of the analysis,
however, would be incomplete. In regard to the ownership of parish property,
several other specific provisions of the canon law need to be considered. These
canonical provisions reflect the theological concerns about the hierarchical
relation between the diocese and the parish, the dedication of ecclesiastical property
to the mission of the church, and the gospel ideal of common ownership and
poverty. The juridic person of the parish in canon law is different from the
corporation in secular legal theory on account of these theological concerns.
First, the recognition of an entity as a juridic person in canon law does not
abrogate the principle of hierarchy. Although the parish is a separate juridic
person with the right to private property (dominium or proprietas), it remains part
of the diocese and subject to the authority (imperium) of the diocesan bishop.33
Section 1 of Canon 1276 requires that the “Ordinaries must carefully supervise
the administration of all the goods which belong to the public juridic persons
subject to them . . .” As the Ordinary of the diocese, the bishop incurs the obligation
to supervise the administration of all the assets of the parishes and other juridic
persons under his authority. Consistent with Vatican II’s theology of the particular

29. Robert T. Kennedy, Book V, The Temporal Goods of the Church, in CLSA-2000, 1457;
see also Francis G. Morrisey, Book V, The Temporal Goods of the Church, in CLSGB &
Ireland, 709.
30. Morrisey, Book V, The Temporal Goods of the Church, 709.
31. See id.
32. Kennedy, Book V, The Temporal Goods of the Church, 155.
33. The CIC-1983 uses the terms dominium (Canon 1256) and proprietas (Canon 1284,
§ 2, 2°) interchangeably to signify the ownership of property. The interchangeable use of
the terms in the CIC-1983 means that they are different in meaning from the ancient
Roman jurists’ use of dominium, which signified an undivided and absolute ownership.
See Kennedy, Book V, The Temporal Goods of the Church, 1458.
 church property continued 123

church, the juridic personality of the parish does not constitute it as an autono-
mous unit which may acquire, administer, or alienate its property without regard
to the authority of the diocesan bishop. The parish is a part of the diocese, and
the bishop has both the responsibility and right to exercise the power of governance
over it. Section 1 of Canon 381 recognizes that the bishop exercises ordinary,
proper, and immediate power with the jurisdiction of his diocese. This includes
power over any of the temporal goods that belong to the parish.
Several additional canonical provisions are helpful in clarifying the hierarchical
relation between the diocese and parish with regard to the ownership of parish
property. Canon 532 establishes that the parish priest acts in the name of the
parish as a juridic person. Section 1 of Canon 1279 vests the administration of
ecclesiastical goods in one who “exercises the direct power of governance” over
the juridic person. Pursuant to Canon 531, the parish priest exercises the direct
power of governance over the parish. However, within his diocese the bishop
sets the limits for ordinary and extraordinary administration. A priest who is
pastor of a parish has the right to engage in the ordinary administration of the
parish, which includes, inter alia, control of its temporal goods. Beyond what the
bishop has declared for ordinary administration in his diocese, any act of extraordi-
nary administration by a pastor in the absence of the bishop’s permission would
constitute an invalid alienation of ecclesiastical property. Canon 1291 sets the
requirement for valid alienation, and Canon 1296 deals with an invalid alienation
under canon law which might be valid under civil law.
The hierarchical principle is also evident in Section 2 of Canon 515 establishing
that only the diocesan bishop may erect, suppress, or alter parishes. When a
parish is entirely suppressed, Canon 123 requires that the property of the now
extinct juridic person be distributed in accord with the suppressed parish’s
statutes. Presumably, the parish statutes and bylaws have been drawn in such a
way as to ensure that the property passes to the diocese.34 In the case that the
parish statutes do not make provision for the distribution of its property upon
extinction, Canon 123 provides that the property reverts to the diocese. The merg-
ing of two or more parishes into one presents a different case. Canon 122 states
that “the first obligation is to observe the wishes of the founders and benefactors,
the demands of acquired rights, and in accord with the approved statutes.”
Generally speaking, when the juridic person of one parish is to be altered by combining
it with the juridic person of another parish, the property of the first parish is transferred

34. Canon 117, CIC-1983, requires that the statutes of the juridic person be approved
by the competent ecclesiastical authority. In the case of the approval of the statutes of the
parish, the competent ecclesiastical authority would be the bishop. In this regard, the
civil law for tax exemption requires a provision for distribution to other tax-exempt
organizations upon dissolution.
124 canon law

to the remaining juridic person with which it is combined.35 This is accomplished

through the canonical authority of the diocesan bishop. Such a transfer is also
consistent with the exercise of the bishop’s pastoral care for the members of the
parish. In light of the canonical aspects of the hierarchical relation between
the diocese and the parish, it is misleading to state that the parish exercises an
“exclusive right of control” over its own property.
Finally, the ecclesiastical property of a juridic person remains an integral part
of the mission of the church. All ecclesiastical property is dedicated to the
mission of the church, and serves communities by advancing the mission under
the supervision of the appropriate hierarchical figure.36 Any given piece of church
property must always be available to serve the common good in light of the
gospel ideals of common ownership, apostolic mission, and poverty. Parish
property is part of the mission of the diocese as the particular church within the
universal church. The ultimate authority in the diocese with regard to the
church’s mission is vested in the diocesan bishop. Based on Vatican II’s theology
of the particular church, the diocesan bishop retains the right to direct the prop-
erty under his canonical jurisdiction in accord with what he discerns best
advances the mission of the church. It would be an error about canon law if a
pastor, parishioner, or group of persons concluded that the diocesan bishop
lacked the authority to direct parish property in accord with the church’s mission.
Such an error would deny the theological element that forms the intellectus of
canon law, yielding legalism rather than the unity of law and theology. In the
words of von Balthasar, it would result in a “canonization of private ownership”
as an absolute right distinct from the particular and universal church.37

II. congregationalist v. hierarchical forms of church

governance

The nineteenth-century historical experience of the United States Catholic bishops

attempting to organize parish property in accord with church teaching demon-
strates the importance of the unity of law and theology. During the eighteenth
century, the United States had emerged as a Protestant nation. While the various
denominations maintained their independence, a commonality of habits, customs,
and mores resulted in a de facto Protestant establishment. Only those who shared
Protestant culture could claim to be authentically American. Starting in the
1820s, the dominant Protestant ethos would be challenged by massive waves of
Catholic immigrants from Ireland and Germany. By 1850, Roman Catholics

35. See Dario Cardinal Castrillon, Letter to United States Bishops Concerning the Assets of
Merged Parishes, in 36 Origins 190 (Aug. 31, 2006).
36. See Canon 1254, §§ 1 & 2, CIC-1983.
37. Balthasar, The Christian State of Life, 115.
 church property continued 125

constituted the single largest Christian denomination in the United States. The
arrival of new immigrants who did not share in the ethos of the dominant
religious culture posed a threat not only to the de facto establishment but to the
self-identity of the United States as a Protestant nation. Due to their numbers,
Catholics could not be ignored, and opposition to their religion soon produced a
virulent anti-Catholicism.38
According to Philip Hamburger, the anti-Catholicism could be attributed in
no small part to the growth of the liberal Protestant emphasis on individual freedom.
Consistent with attitudes formed in post–Reformation and Enlightenment
Europe, nineteenth-century American liberalism saw Catholicism’s adherence
to a unified creed enforced by a central ecclesial governance as a threat to the
primacy of individual conscience.39 John T. McGreevy states that throughout the
nineteenth century the American “focus on individual autonomy . . . continued
to nurture a concomitant anti-Catholicism.”40 Anti-Catholic hostility was embodied
by the Know Nothings of the 1850s. Philip Jenkins has examined how this hostility
was inflamed in anti-Catholic literature by unfavorable depictions of Catholic
priests and by antagonism to hierarchical forms of church governance. One
strain of the literature portrayed Catholic priests as lecherous criminals who
raped virgins and seduced married woman even as they ruled their flocks with
iron fists.41 Another strain ascribed “authoritarianism, ostentatious wealth,
theatricality, and all the flamboyant trappings of ‘popery,’” that “implied effeminacy
and secret homosexuality” to the Catholic clergy.42 Jenkins suggests that the
nineteenth-century literature presented Catholicism as an “emotional, irrational,
effeminate” religion in contrast to the “virile” nature of liberal Protestantism
with emphasis on individual autonomy.
Given the hostility toward Catholicism during the nineteenth century, it is not
surprising that the Catholic bishops’ efforts to organize ecclesiastical property
conflicted with widely held notions about church property in the United States.43
In nineteenth-century America, the accepted approach to church property was
Protestant. It focused on local democratic control by laymen. Church property
was viewed as belonging to a trustee corporation through which the elected lay

38. See Thomas J. Curry, Farewell to Christendom, The Future of Church and
State in America 18, 53–56 (Oxford University Press 2001).
39. See Philip Hamburger, Separation of Church and State 194–202 (Harvard
University Press 2002).
40. John T. McGreevy, Catholicism and American Freedom 94–95 (Norton
2003).
41. See Mark Twain, Letters from the Earth 53 (Bernard DeVoto ed., HarperCollins
Perennial Press 1974).
42. See Philip Jenkins, Pedophiles and Priests 23 (Oxford University Press 1996).
43. See Patrick J. Dignan, A History of the Legal In-Corporation of Catholic
Church Property in the United States (1784–1932) 51 (Catholic University of
America 1933).
126 canon law

trustees exercised physical control over it.44 Legislators, judges, and other public
servants were largely Protestant and tended to view the Catholic Church’s claim
that its temporal goods were under the control of its hierarchy as nothing less
than an attempt to impose government by a foreign sovereignty.45 Eager to adapt
to the American way of life, some Catholics were also attracted to the concept of
local democratic control of church property by the laity.46
The lay trustee controversy presented a significant challenge to the Catholic
Church’s understanding of itself and regulation of its temporal goods in the
United States. During the nineteenth century, some states, such as Pennsylvania,
adopted statutes that required control of church property be vested in the lay
members of the various congregations.47 This kind of statute set the stage for
bitter disputes between lay members of Catholic parishes and their bishops over
title to parish property. During these disputes, the laity sometimes also sought to
exercise control over the hiring and discharge of the pastor and all other significant
administration of the parish. In certain instances, bishops were left with no
alternative but to resort to strong canonical penalties against the laity.
On occasion these conflicts over lay trustees in Catholic parishes were
litigated in the courts. The verdicts of various state courts during this time period
must be described as mixed and fact specific. No clear pattern in favor of either
side can be said to have carried the day. In a Pennsylvania case, for example, the
highest court of the state held that canon law could not predominate over civil
law and that the state simply did not recognize any temporal power of the bishop.48
While in states such as Missouri, precedent was established that recognized the
hierarchical nature of the Catholic Church and vested control over church property
in the diocesan bishop.49
In response to this confusion, the Catholic bishops asserted the church’s
rights pursuant to canon law in a series of provincial and plenary councils at
Baltimore. As early as 1829, while assembled for the First Provincial Council of
Baltimore, the American bishops expressed their position that:
Since lay trustees have frequently abused the right given to them by the
civil power to the great detriment of religion and not without scandal to the
faithful, we most earnestly [maxime optamus] desire that in the future no

44. See Note, Judicial Intervention in Disputes over Church Property, 75 Harv. L. Rev.
1142, 1149–54 (1962).
45. See Paul G. Kauper & Stephen C. Ellis, Religious Corporations and the Law, 71 Mich.
L. Rev. 1499, 1521 (1973).
46. See Dignan, A History of the Legal In-Corporation of Catholic Church
Property in the United States, 72.
47. See 2 Pa. Digest of Laws (1860) (12th ed. 1895), as amended, Pa. Stat. Ann. tit. 10,
§ 81 (1965).
48. See Krauczunas v. Hoban, 70 A. 740 (1908).
49. See Klix v. Polish Roman Catholic St. Stanislaus Parish, 137 Mo. App. 347 (1909).
 church property continued 127

church shall be erected or consecrated, unless it shall be assigned by written

instrument to the Bishop in whose diocese it is to be erected, wherever this
can be done . . .50
The aversion of the American bishops to utilizing state statutory provisions that
regarded church property as held by lay trustees was again evident at the Fourth
Provincial Council of Baltimore of 1840. When necessary to secure ecclesiastical
property, movable and immovable, the Council decreed that the property was to
be held in the bishop’s name and passed to his successor through the provisions
of civil law, such as wills and testaments.51 In 1843, the First Decree of the Fifth
Provincial Council required that the diocesan bishop, within three months of his
taking possession of the diocese, execute a written will securing ecclesiastical
property in accord with state law.52 The Seventh Decree of the same council
admonished that no church property was to be alienated (sold, mortgaged, or
leased) without the bishop’s approval.53 The First and Second Plenary Councils
of Baltimore affirmed the necessity of holding title to property in accord with the
canon law of the church and whatever appropriate provisions of the civil law
insured that the rights of the bishop were respected.54 In 1866, the Third Plenary
Council permitted the bishop to hold title under three different legal theories: as
corporation sole, as trustee for the diocese, or as an individual with title in fee
simple absolute.55

50. Concilia Provincialia Baltimori habita ab anno 1829 usque ad annum 1849,
at 5, 74 (Joannem Murphy et Socium 1851). The above translation of the quoted portion
of the Fifth Decree of the First Provincial Council of Baltimore appears in Dignan, A
History of the Legal In-Corporation of Catholic Church Property in the United
States, 145.
51. See Concilia Provincialia Baltimori habita ab anno 1829 usque ad annum
1849, at 8, 172. This portion of the Eighth Decree of the Fourth Provincial Council of
Baltimore is quoted in Dignan, A History of the Legal In-Corporation of Catholic
Church Property in the United States, 162 (“We advise all prelates sedulously to look
after the security of ecclesiastical goods by every means in their power; therefore they are
to seek the protection of the laws or of the civil authority, wherever it can be had, the safety
of the rights of the bishop, however, being guaranteed.”); Peter Guilday, A History of
the Councils of Baltimore, 1791–1884, at 138 (Arno Press 1969).
52. Concilia Provincialia Baltimori habita ab anno 1829 usque ad annum 1849,
at 1, 216. See Guilday, A History of the Councils of Baltimore 138, which states that
the will was to be deposited with the archbishop or, in the case of the archbishop’s will,
with the senior suffragan bishop.
53. Concilia Provincialia Baltimori habita ab anno 1829 usque ad annum 1849,
at 7, 217. See Guilday, A History of the Councils of Baltimore, 139.
54. See Dignan, A History of the Legal In-Corporation of Catholic Church
Property in the United States, 189, 210–11.
55. See Acta et Decreta Concilii Plenarii Baltimorensis Tertii, 153–54, 267–69
(Joannis Murphy et Sociorum 1886). English translation in John D. M. Barrett,
128 canon law

A notorious case in 1888 involving the Archbishop of Cincinnati, John Baptist

Purcell, exposed the dangers of allowing bishops to hold title to diocesan
property in fee simple.56 The Vicar General of the Archdiocese, who was the
brother of the archbishop, had been accepting deposits of money from individual
Catholics and then lending to others at interest. The archbishop had guaranteed
to insure the deposits with his personally owned property, which included all the
diocesan property that he held in fee simple. When the credit scheme failed, an
assignee of the original investors sued the archbishop and the archdiocese for
recovery. In Mannix v. Purcell, the Ohio courts denied the requested relief,
holding that the bishop had no power under canon law to bind church property
for his personal debts. 57 This holding was significant in that it deferred to the
provisions of canon law. Although the archdiocese was saved by the civil courts
from financial ruin, the American bishops and the Holy See were deeply
concerned that an individual bishop, who held ecclesiastical property in fee
simple, might be able to jeopardize or even pillage church property.58 In 1911,
the Sacred Congregation for the Council issued a decree that required the bishop
to hold title to church property either through the method of religious corporation
or corporation sole. The Sacred Congregation also decreed that “[t]he method
which is called in Fee Simple is totally to be abolished.”59 In situations where the
civil law did not permit the religious corporation or corporation sole, canonical
commentators at the time suggested that the bishop was permitted to hold the
property as a trustee but not in his own name in fee simple.60
Starting at the end of the Civil War and continuing through the first half of
the twentieth century, the hostility of civil law jurisdictions in the United States
to the Catholic hierarchy’s claims about church property gradually subsided. A
variety of state arrangements emerged under which the rights of the church
were recognized.61 A prototypical statute was adopted in New York State at the
end of the nineteenth century that allowed the acts of incorporation to be drawn
so that the control of church personal and real property was left in the hands of

A Comparative Study of the Councils of Baltimore and the Code of Canon Law
186–87 (The Catholic University of America 1932).
56. See Dignan, A History of the Legal In-Corporation of Catholic Church
Property in the United States, 219–22.
57. See Mannix v. Purcell, 24 N.E. 595 (1888).
58. See Dignan, A History of the Legal In-Corporation of Catholic Church
Property in the United States, 235.
59. An English translation of the decree appeared in 45 American Ecclesiastical
Rev. 585–86 (1911). See also A History of the Legal In-Corporation of Catholic
Church Property in the United States, 239–40.
60. See Dignan, A History of the Legal In-Corporation of Catholic Church
Property in the United States, 266–68.
61. See id. at 214–44.
 church property continued 129

the bishop.62 In the statute, each parish corporation is composed of the bishop,
the vicar general, and two other trustees who serve at the bishop’s will.63 The
New York law functioned as the basis for the Congregation of the Council’s 1911
decree.64 That decree expressed a preference for the parish corporation over the
corporation sole.65 As a result of the changes to civil law during the twentieth
century, dioceses throughout the United States were able to secure title to
diocesan property, including that of the parishes. The history of the long,
difficult, and ultimately successful effort of the Catholic bishops in the United
States to obtain state law recognition of the hierarchical nature of parish property
should not be overlooked in the discussion of the contemporary issue about the
ownership of parish property raised in the bankruptcy claims noted at the outset
of this chapter.

III. canon law and state law

This section of Chapter 5 continues to draw upon the specific example of how
the Catholic Church in the United States is able to secure its property in a way
that reflects a harmony of canon law and state law. I use the phrase “state law” to
refer in general to the concept of the civil law of the state as distinct from the
canon law of the church. Depending on the context, I hope it will be clear when
I employ the same phrase in reference to the law of the fifty states that comprise
the United States. As a global institution, the Roman Catholic Church encounters
many different forms of state law with regard to property. These various forms
range from nations with which the Holy See has a formal concordat that protects
the property rights of the church to nations which curtail the church’s religious
freedom and property rights. The United States represents a modern democracy
that respects religious freedom while purporting to maintain neutrality about
religion. This section of the chapter first discusses the various ways in which
state law in the fifty states permits the Catholic Church to hold its property in
accord with canon law. In light of the harmony between canon law and state law,

62. See Act Supplementary to the Act entitled An Act to Provide for the Incorporation of
Religious Societies, passed April 5, 1813, in Laws of New York State Passed at the Eighty-Sixth
Session of the Legislature (Albany 1863).
63. See Gen. Laws of N.Y., I, 499 (1895).
64. See 45 American Ecclesiastical Rev. 585–86 (1911), which translates 1° of the
Sacred Congregation’s 1911 decree as: “Of the methods which now exist in the United
States, for possessing and administering the possessions of the Church, that is to be
preferred, which is popularly called the Parish Corporation, with however, those conditions
and precautions, which are in use in the State of New York.”.
65. See id.
130 canon law

this section of the chapter then treats the specific question of the hierarchical
relationship between the diocese and parish.

A. The Harmony of State and Canon Law

Canon 1290, CIC-1983, establishes the importance of securing the rights of the
church through respect for, and use of, the provision of state law. Canon 22,
CIC-1983, provides that canon law yields to state law in certain instances. As
mentioned in Chapter 1, this is known as the “canonization” of the state law. To
mention but one example, Section 1 of Canon 1282, CIC-1983, requires that
state statutes of labor law and policy be meticulously observed together with the
church’s own social teaching in the church’s employment policies. The church
employer is thus bound by canon law to follow the state legislation that might for
example establish a minimum wage or social security. Of course, it could be the
case that the social teaching of the church requires even greater benefits than the
state law requires. Canon law does not yield to state law in general, but only in
certain matters defined by the canon law itself. Canon 22 requires that the effects
of state law be observed in canon law with the same effects, and in this sense, the
effects of the state law are canonized. In other words, the effects of the specific
state law become part of the canon law.
Sixteen states now provide special corporate forms for specific religious
denominations, and nine of those states expressly identify the Catholic Church.66
Many states also generally permit the establishment of some type of a religious
corporation for other religious denominations.67 At least seventeen states and

66. They are: Connecticut, Conn. Gen. Stat. Ann. §§ 33-265 to -281a (West 1997);
Delaware, Del. Code Ann. tit. 27, §§ 114–18 (2004); Illinois, 805 Ill. Comp. Stat. Ann.
110/50 (West 2004); Louisiana, La. Rev. Stat. Ann. §§ 12:481–:483 (West 2004); Maine,
Me. Rev. Stat. Ann. tit. 13, § 2986 (West 2003); Maryland, Md. Code Ann., Corps. &
Ass’ns § 5-314 to -338 (2004); Massachusetts, Mass. Gen. Laws Ann. ch. 67, §§ 39–46, 55
(West 2001); Michigan, Mich. Comp. Laws Ann. §§ 458.1–.535 (West 2002); New
Hampshire, N.H. Rev. Stat. Ann. §§ 292:15–:17 (2004); New Jersey, N.J. Stat. Ann. §§
16:2-1 to :20-7 (West 2004); New York, N.Y. Relig. Corp. Law §§ 40–455 (McKinney
2003); Vermont, Vt. Stat. Ann. tit. 27 §§ 861–66 (2003); and Wisconsin, Wis. Stat. Ann.
§§ 187.04, .10–.11, .15, .17–.19 (West 2004). The state statutes of Connecticut, Delaware,
Massachusetts, Michigan, New Jersey, New York, and Wisconsin—specifically mention
the Roman Catholic Church. It should also be noted that the state constitutions of Virginia
and West Virginia expressly forbid the granting of a charter of incorporation to any church
or religious entity. See Va. Const. art. IV, § 14; W. Va. Const. art. VI, § 47. At least one
court, however has found such a provision unconstitutional under the free exercise clause
of the First and Fourteenth Amendments of the United States Constitution. See Falwell v.
Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002).
67. They are: Alabama, Ala Code § 10-4-20, -4-40 (2003); Colorado, Colo. Rev. Stat.
Ann. § 7-51-113 (West 1998); Connecticut, Conn Gen. Stat. Ann. § 33-264a (West 1997);
Delaware, Del. Code Ann. tit. 27, § 101 (2004); Washington, D.C., D.C. Code Ann.
§ 29-801 to -806 (2004); Georgia, Ga. Code Ann. §§ 14-5-43 to -51 (2004); Kansas, Kan.
 church property continued 131

the District of Columbia permit the corporation sole, which, as its name implies,
is a one-person incorporation.68 In hierarchical churches such as the Catholic
Church, the office holder of this corporate form is the diocesan bishop. All of
the states have some form of statutory recognition of nonprofit incorporations,
which include not only religious organizations but also other kinds of educa-
tional, social, and charitable organizations. Twenty-one states plus Washington,
D.C., have statutes that recognize unincorporated voluntary religious associations,
and two other states unincorporated voluntary associations without specification
of whether or not these associations are religious.69 Numerous states allow a
church to elect one or more of the above types of organization.

Stat. Ann. § 17-1701 (2003); Illinois, 805 Ill. Comp. Stat. Ann. 110/35 (West 2004);
Maine, Me. Rev. Stat. Ann. tit. 13, §§ 2861 (West 2003); Maryland, Md. Code Ann.,
Corps. & Ass’ns § 5-301 to -313 (2004); Massachusetts, Mass. Gen. Laws Ann. ch. 67, §§
21–23, 47–54 (West. 2001); Minnesota, Minn. Stat. Ann. §§ 315.01–.51 (West 2004); New
Jersey, N.J. Stat. Ann. § 16:1-1 to -39 (West 2004); Ohio, Ohio Rev. Code Ann. §§ 1715.01-
.22 (West 2005); Vermont, Vt. Stat. Ann. tit. 27 §§ 701–706 (2003); and Wisconsin, Wis.
Stat. Ann. § 187.01 (West 2004).
68. They are: Alabama, Ala. Code § 10-4-1 (2003); Alaska, Alaska Stat. §§ 10.40.010-
.150 (Michie 2003); Arizona, Ariz. Rev. Stat. Ann §§ 10-11901 to -11908 (West 2004);
California, Cal. Corp. Code §§ 10000–15 (West 2004); Colorado, Colo. Rev. Stat. Ann.
§§ 7-52-101 to -106 (West 1998); Hawaii, Hawaii Rev. Stat. §§ 419-1 to -9 (2002); Indiana,
Ind. Code Ann. § 23-17-2-12 (West 2005); Mississippi, Miss. Code Ann. §§ 79-11-127
(2004); Montana, Mont. Code Ann. §§ 35-3-101 to -103 (2003); Nebraska, Neb. Rev. Stat.
§ 21-1914 (2004); Nevada, Nev. Rev. Stat. 84.002–.150 (2003); Oregon, Or. Rev. Stat. §
65.067 (2003); South Carolina, S.C. Code Ann. § 33-31-140 (Law. Co-op. 2004); Utah,
Utah Code Ann. §§ 16-7-1 to -16 (2004) (but note that according to § 16-7-16 a corporation
sole cannot be formed in Utah after May 3, 2004); Washington, Wash. Rev. Code Ann. §§
24.12.010–.060 (West 2004); and Wyoming, Wyo. Stat. Ann. §§ 17-8-101 to -117 (Michie
2004).
69. They are: Alaska, Alaska Stat. § 10.40.120 (Michie 2003); Arkansas, Ark. Code.
Ann. §§ 18-11-201 to -202 (Michie 2002); Connecticut, Conn. Gen. Stat. Ann. § 33-264a
(West 1997); Washington, D.C., D.C. Code Ann. § 29-701 to -712 (2004); Florida, Fla.
Stat. Ann. §§ 617.2004–2005 (West 2001); Kansas, Kan. Stat. Ann. §§ 17-1711 to -1758
(2003); Kentucky, Ky. Rev. Stat. Ann. §§ 273.090–.140 (Banks-Baldwin 2003);
Massachusetts, Mass. Gen. Laws Ann. ch. 67, § 2 (West 2001); Mississippi, Miss. Code
Ann. §§ 79-11-31 to -47 (2004); Nebraska, Neb. Rev. Stat. §§ 21-2801 to -2803 (2004); New
Hampshire, N.H. Rev. Stat. Ann. §§ 306:1–:12 (2004); New Jersey, N.J. Stat. Ann. §
16:1-39 (West 2004); North Carolina, N.C. Gen. Stat. §§ 61-1 to -6 (2004); Oklahoma,
Okla. Stat. Ann. tit. 18, § 562 (West 1998); Pennsylvania, Pa. Stat. Ann. tit. 10, §§ 21, 81
(West 1998); Tennessee, Tenn. Code. Ann. §§ 66-2-201 to -203 (2003); Utah, Utah Code
Ann. §§ 16-7-10 (2003); Vermont, Vt. Stat. Ann. tit. 27, §§ 781–944 (2003); Virginia, Va.
Code. Ann. §§ 57-1 to -17 (Michie 2003); West Virginia, W. Va. Code Ann. §§35-1-1 to -13
(Michie 2004); Wisconsin, Wis. Stat. Ann. § 187.07 (West 2002); and Wyoming, Wyo.
Stat. Ann. § 1-32-121 (Michie 2004). While not specifically religious, New Mexico and
Texas do allow for unincorporated associations formed for nonprofit reasons, and thus
132 canon law

B. The Relationship between Diocese and Parish in State Law

The structures of organization that a particular diocese adopts to secure its
temporal goods in state law should reflect the hierarchical relationship between
the diocese and parish. In many instances, parishes are separately incorporated
from the diocese in state law. Other dioceses elect to form religious associations
under a particular state’s statutory scheme. Alternatively, the bishop may be
recognized under state law as a corporation sole with the power over the property
of the diocese and all its parishes. The separate incorporation of parishes should
not be understood as meaning that the bishop intends to forsake his hierarchical
authority in favor of self-rule by the parish corporation. As discussed in the
previous section, the separate incorporation of Catholic parishes in the United
States is not a new phenomenon. During the nineteenth century, the United
States Catholic bishops engaged in an arduous battle to secure state law recogni-
tion of their church’s hierarchical form of government. From the perspective of
the Catholic Church, the preferential organizational form for the diocese pursuant
to state law remains separate parish incorporations. Typically, the bylaws for
each of the parish corporations establish the bishop as the sole member with
power to appoint and remove directors at will. They also identify the bishop as
one of the directors. Characteristic bylaws require that all actions of the board of
directors must have approval of the bishop. The bishop may exercise control over
the parish corporation through his veto power and his power to appoint the vicar
general and pastor as directors. The state’s corporation law thus provides a legal
method for the Catholic bishop to fulfill his responsibility under canon law to
govern the diocese and its parishes. In canon law, the canonization of state law
is intended to secure the right of the Catholic Church to own property in accord
with the church’s communal and hierarchical characteristics that are intended to
foster certain religious and charitable objectives.
Whether or not separate incorporation of diocesan units such as parishes,
hospitals, and schools will shield them from liability in a child abuse case against
the diocese is open to debate. The secular legal doctrines of piercing the corporate
veil and enterprise liability apply when a court concludes that the separate
incorporation must yield to a functional unity between it and some other legal or
real person on account of ownership and/or control. The idea that the separate
incorporations function as the “alter ego” of the bishop remains critical to
piercing the corporate veil, a finding of enterprise liability, or some other legal
means for reaching the assets of the separate corporations. Stephen M. Bainbridge
and Aaron H. Cole argue that the alter ego principle does not apply to the
diocesan-parish relationship.70 An entity such as a parish corporation is considered

include religious associations. N.M. Stat. Ann. §§ 53-10-1 to -7 (Michie 2004); Tex. Corps.
& Ass’ns Code Ann. §§ 252.001–.017 (Vernon 2004).
70. See Bainbridge & Cole, The Bishop’s Alter Ego: Enterprise Liability and the Catholic
Priest Sex Abuse Scandal, 65–106.
 church property continued 133

to be the alter ego of another person or entity such as a bishop or diocese when
two requirements are met. First, one entity exercises such a high degree of
control over the other that the entities have lost a separate existence. As evident
from the relationship between diocese and parish as discussed in this chapter,
the parish enjoys a significant amount of autonomy although the bishop has
ultimate responsibility for its governance and continued existence. Second, the
control of one entity over the other must involve an abuse of the power of
control. In evaluating the second requirement, courts may take into account the
ability of an innocent party to fulfill its legitimate corporate ends. In a lawsuit
against the diocese for clergy sexual abuse, the parish which has no connection
to the sexual abuse and which is separately incorporated from the diocese may
claim that a finding that it is liable for the abuse that occurred in another place
would unfairly penalize its ability to pursue its corporate ends.

IV . antinomian and legalistic approaches to church property

Up to this point in this chapter, I have been primarily concerned with the proper
relationship between the diocese and parish with regard to property. The theory
of property, with its unity of law and theology, which I discussed in the previous
chapter, is not limited to the relationship between the diocese and the parish, but
pertains to ecclesiastical property in general. Prior to leaving the subject of
church property, I therefore wish to make several brief observations on the ways
in which legalistic and antinomian approaches to church property can defeat the
unity of law and theology. Again, my focus is on the recent experience of the
Catholic Church in the United States, but the specific examples raise broader
issues in canon law. Antinomian and legalistic tendencies pose threats to the
proper canonical order for the ownership of ecclesiastical property.
First, legalism has been evident in the secularization of church property
associated with institutions such as hospitals, universities, and colleges during
the second half of the twentieth century in the United States. These kinds of
institutions were often started by religious communities in the United States to
serve both religious and secular purposes. In canon law, it is possible that the
Catholic institution itself has been recognized as a juridical person directed “to a
purpose befitting the Church’s mission” and which “concerns of piety, of the
apostolate, or of charity, whether spiritual or temporal.”71 When a Catholic institu-
tion is a juridical person under canon law, it enjoys the right to own its own
property. More likely, the Catholic institution has been considered part of the
juridical person of the religious community that founded it. The juridical person
of the religious community seeks “the perfection of charity in the service of

71. Canon 114, §§ 1 & 2, CIC-1983.

134 canon law

God’s Kingdom, for the honor of God, the building up of the Church, and the
salvation of the world.”72 In this case, the religious community as the juridical
person owns the property of the Catholic institution according to canon law.
Pursuant to state law, the Catholic institution may be recognized as a religious
not-for-profit entity either in a corporate or noncorporate form. The law of the
state requires that the purposes for the institution’s existence, articulated in the
articles of incorporation or other relevant documents, be fulfilled. The seculariza-
tion of Catholic institutions in the United States represents a legalism in which
the religious mission of the institution and its property is diminished while the
secular purposes of the property are exaggerated. The secularization is contrary
to both canon law and state law, which share the expectation that the institution
will fulfill its religious mission.
Second, during the last five decades in the United States, it has been increas-
ingly common that the control over such Catholic institutions and their property
has been given to a board of trustees, whose membership consists principally or
entirely of laypersons. As far as canon law is concerned, it ultimately makes little
difference whether a Catholic institution is directed by priests, religious, laypersons,
or any combination of these. Canon law envisions that whoever has responsibil-
ity for the governance of a Catholic institution will exercise vigilance to ensure
that the religious purpose of the institution is being fulfilled.73 From a theological
perspective, this responsibility pertains to all the baptized no matter what their
status in the church. On the basis of natural law and the requirements of justice,
the responsibility is not limited to members of the church, but it pertains to any
human person who accepts the responsibility to participate in the governance of
the Catholic institution. To give but one example, the president of a Catholic
hospital who happens to be Jewish has just as much responsibility for the
religious mission of the institution as a Catholic bishop who is a member of the
board of directors. This is not to diminish the fact that the bishop who is a director
brings a grace of office, which any person of intelligence and goodwill would
recognize and value. Likewise, the state law also anticipates that the directors of
a religious entity, recognized by the state, will fulfill their fiduciary duties in
ensuring that the institution satisfies its religious purpose. Contrary to these
theological and natural expectations, the shift in control of many Catholic
institutions to a lay board of directors often leads to a reduction or even abrogation
of the institution’s religious mission and reason for existence.
Third, the process of the secularization of Catholic institutions has often also
meant the de facto alienation of church property.74 The governance of the Catholic
institution may have been transferred from the religious community to a lay

72. Canon 573, § 1, CIC-1983.

73. See Canons 114, §§ 1 & 2; and Canon 118, CIC-1983.
74. See Adam J. Maida, Canonical and Legal Fallacies of the McGrath Thesis on the
Reorganization of Church Entities, 275–86.
 church property continued 135

board of trustees. The creation of a board of trustees does not automatically

result in the alienation of ecclesiastical property according to canon law. Such a
valid alienation would require official canonical permission. While canon law
recognizes the validity of state law provisions that secure the right of the church
to acquire and sell private property, canon law stipulates its own requirements
for the valid alienation of ecclesiastical property.75 For example, the religious
community that sponsors a Catholic healthcare or educational institution holds
title to the property of the institution in a way that is protected pursuant to the
state law as well as recognized as valid in canon law. In some instances, the title
to such property may have been transferred pursuant to state law, but without
the requisite permission required from the competent ecclesiastical authority as
required by canon law for the valid alienation of ecclesiastical property. Under
canon law, the property of the Catholic institution has never been licitly alienated,
and therefore, the property still belongs to the religious community. My concern
in this example is to illustrate the de facto but invalid alienation of church property.
There are, of course, other possibilities. First, a less absolute de facto alienation
of church property might occur when control of the institution has been secular-
ized but the title to its property remains with the religious community under
both state and canon law. Second, title could be passed in a way that is valid in
both state and canon law. In canon law, this would be an alienation of the property
de facto and de iure. A third, perhaps less likely, possibility could occur when the
property has been validly alienated in canon law but not so under state law. In
any event, ignoring the requirements of canon law for the valid alienation of
property represents an antinomianism. Like the legalism that separates the
theological purpose from the question of legal ownership, this antinomianism
threatens the rule of law in the church.
Finally, as the secularization process and the invalid alienation of the property
of Catholic institutions has been occurring in the church in the United States for
the last five decades, there often seems to be no intervention on the part of
church authorities. One aspect of this problem is to know who has responsibility
to intervene. Canon law is not always totally clear on this point. Canon law
also fails to provide an immediate and effective way for the diocesan bishop to
intervene in a situation where the religious community or the juridical person in
question is situated in his diocese, but is not under his direct hierarchical authority.
This situation is different from the relationship between the diocesan bishop
and a parish which, as discussed, does fall directly under his canonical authority.
With exempt religious communities and juridical persons that report directly to

75. See CIC-1983: Canon 1291 (valid alienation of church property requires the proper
process and permission from the competent hierarchical superior); Canons 1292–1298
(general rules for the alienation of church property); Canon 1254; Canons 634 §§ 1 & 2,
and 741 (alienation of the property of religious institutes and societies of apostolic life);
and Canon 1190 (alienation of relics and sacred images).
136 canon law

the Holy See, it may be the case that the geographic distance involved makes it
difficult for the Holy See to have the necessary knowledge upon which to take
affirmative action to check against the problems associated with the seculariza-
tion of Catholic institutions. It may also be the case that the Holy See elects not
to intervene directly in a local situation in accord with the understanding of
the universal as a communio of the particular churches. Another aspect of the
problem is that the diocesan bishop, who is more likely to have knowledge of the
situation, neglects to exercise his responsibility as the “coordinator” of all apostolic
activity in his diocese and to conduct the required “apostolic visitation” of the
Catholic institutions within his diocese.76
Another disquieting aspect of the apparent lack of intervention on the part of
church authorities in the process of the secularization of Catholic institutions
concerns the relation between the religious community that founded and
sponsors the Catholic institution and the members of the board of directors of
the Catholic institution. As mentioned, the laypersons who are members of the
board have just as much responsibility for the Catholic character and mission of
the institution as the members of the religious community. However, it may also
be the case that the lay trustees through no fault of their own have little under-
standing of the Catholic mission of the institution. In such a case, it would seem
to be the responsibility of the superiors in the religious community to make
provisions for faithful ongoing education about the Catholic character and
mission of the institution. An aspect of this education would offer a deeper
understanding of the institution’s expression of its Catholic character and
mission in the local and universal church.77
The present confusion over the ownership of parish property is illustrative of
a misunderstanding of the proper function of canon law. It is true that canon
law establishes the parish as a juridical person with the right to own property
(dominium). However, when a bishop repudiates canonical authority (imperium)
over parish property, it fosters a congregationalist approach in which the parish
owns property irrespective of the Church’s communal and hierarchical nature.
An equally, and perhaps even more, troubling question concerns the status
of Catholic institutions and their property which do not fall under the direct
hierarchical authority of the diocesan bishop. The on-going secularization of
Catholic institutions and their property reflects antinomianism and legalism.
Legalism diminishes the theological emphasis on the religious mission, common
ownership, and apostolic property in canon law. By severing the unity of law and

76. See Canons 294, §§ 1 & 2; and Canon 397, §§ 1 & 2, CIC-1983.
77. For an analysis of the importance of the relation of Catholic Universities and
the bishop according to Ex Corde Ecclesiae, see James Conn, S.J., L’Applicatione della
‘Ex Corde Ecclesiae’ negli Stati Uniti: Analisi e Valutazione delle ‘Ordinationes,’ in Parola
di Dio e Missione della Chiesa, A cura di Davide Cito e Ferando Puig 193–214 (Giuffrè
2009).
 church property continued 137

theology, legalism diminishes the function of any given piece of ecclesiastical

property to serve the apostolic mission of the Church. Antinomianism rejects
the function of canon law in regulating church property, and fosters misunder-
standing about the hierarchical nature of the Catholic Church. Both types of
confusion disrupt the careful balance between theological and legal elements in
canon law’s approach to ecclesiastical property.
This page intentionally left blank
6. indeterminacy in canon law
The Refusal of Holy Communion to Catholic Public
Officials: Canon 915: “A Central Case”

In Chapters 6 and 7, I raise the indeterminacy claim with regard to canon law.
Specifically, I consider the indeterminacy claim from the perspective of the
refusal of Holy Communion to Catholic public officials pursuant to Canon 915
of the CIC-1983.1 My purpose here is not to offer an argument about whether or
not Catholic public officials ought to be excluded from Holy Communion.
Rather, I am examining the application of a particular canonical provision and
the disagreement among the bishops over its application in an attempt to gain
a deeper understanding of the way in which canon law functions. Chapter 6
consists of three major sections. First, I describe the controversy about the
application of Canon 915 during the 2004 U.S. electoral campaign and discuss
this controversy in reference to the indeterminacy claim. Second, I rely on two
prominent features of H. L. A. Hart’s legal theory—the rule of recognition and
internal aspect of the law—to explore whether the application of Canon 915
to public officials is valid in the legal system of canon law. I also discuss indeter-
minacy and Canon 915 in light of another feature of Hart’s theory—the law’s
open texture. Third, I ask whether the application of Canon 915 is a “central
case” in light of traditional aspects of Catholic doctrine such as objective truth,
individual conscience, and cooperation in evil.
While I believe that certain features of H. L. A. Hart’s legal theory assist in
understanding the legal aspects of the controversy over the application of Canon
915, several preliminary qualifications are in order. First, I do not mean the
reliance as an endorsement of Hart’s legal positivism. Pristine legal positivism
denies any connection between law and morality. It has been criticized as
legalstic and amoral.2 Hart’s so-called “soft positivism” acknowledges an overlap
between law and morality as well as a kind of minimum content that can be

1. See also Canon 712, CEEO.

2. See John Finnis, On the Incoherence of Legal Positivism, 75 Notre Dame L. Rev. 1597,
1598 (2000); and Ronald Dworkin, Taking Rights Seriously 17–80 (Harvard University
Press 1978). See also Brian Leiter, Legal Realism and Hard Positivism, in Hart’s Postscript:
Essays on the Postscript to the Concept of Law 355–70 (Jules Coleman ed., Oxford
University Press 2001), which distinguishes between hard positivism, which requires a
complete separation of law and moral principles, and soft positivism, which acknowl-
edges that if officials decide legal questions by reference to morality, then morality is a
criterion of validity in that legal system.
140 canon law

derived from natural law.3 In his 1958 debate with Lon Fuller, Hart argued that
legal positivism was more likely than natural law to afford a clear moral evalua-
tion of law as a result of the separation of the question “what is law” from the
question “what is moral.”4 Nonetheless, canon law is a system of a religious law
ultimately based upon a thick natural law theory as well as claims rooted in
revealed truth. Irrespective of one’s position on the Hart-Fuller debate, I believe,
for reasons that I hope will be evident in this chapter, that Hart’s positivism is
particularly helpful as an analytical tool in understanding the controversy about
Canon 915.
Second, Hart’s theory represents a legal positivist’s rendition of what counts
as law. Typical of the legal positivists, Hart thought that a proper law contained
its own authority and carried the power to bind. If Canon 915 satisfies Hart’s
requirements for proper law, a positivist approach to the law would call for its
intelligent enforcement as part of the rule of law. Canon law shares the concern
about the rule of law but claims to transcend legal positivism, asserting a meta-
physical basis for its authority. For one who accepts the validity of canon law on
its own terms, such as a Catholic bishop, canon law would seem to offer a more
profound justification of law than that of legal positivism. Apart from the meta-
physical claim, assuming that Canon 915 satisfies Hart’s requirements for
proper law, the reticence of many Catholic bishops to enforce Canon 915 may
reveal something about the indeterminate nature of this provision in canon law.
Whether from a positivist or metaphysical perspective on the authority of law,
this indeterminacy weakens the rule of law in the life of the Catholic Church.
Third, in relying on Hart’s theory, I am aware that it has been the subject of
much criticism. In addition to Fuller, theorists such as Ronald Dworkin, John
Finnis, and Joseph Raz have raised significant questions about Hart’s approach
to law.5 To the extent that they prove helpful in exploring Canon 915, these
questions are mentioned in this chapter. In the Postscript to The Concept of Law,
Hart conceded that some of the criticism held merit.6 Despite the criticism,
Hart’s theory has remained influential especially in the English-speaking legal
world. The theory has proved particularly useful in examining the nature of law.
With these qualifications in mind, I rely on Hart’s theory to explore the nature of
canon law in light of the controversy raised by the application of Canon 915.

3. See H. L. A. Hart, The Concept of Law 195–200 (Penelope A. Bulloch & Joseph
Raz eds., 2nd ed. with Postscript, Oxford University Press 1997).
4. See H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev.
593, 621–42 (1958); cf. Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor
Hart, 71 Harv. L. Rev. 630 (1958).
5. For a collection of essays discussing Hart’s legal theory, see Hart’s Postscript:
Essays on the Postscript to the Concept of Law (Jules Coleman ed., Oxford University
Press 2001).
6. See Hart, The Concept of Law, 238–76.
 indeterminacy in canon law 141

I. canon 915 and indeterminacy

During the 2004 U.S. presidential campaign, Archbishop Raymond L. Burke of

Saint Louis and several other bishops announced their intention to enforce
Canon 915 against certain Catholic political officials.7 Canon 915 of the 1983
Code of Canon Law states:
Those upon whom the penalty of excommunication or interdict has been
imposed or declared, and others who obstinately persist in manifest grave sin, are
not to be admitted to Holy Communion. (italics added for emphasis).8
Specifically, the bishops indicated that the words “obstinately persist in manifest
grave sin” applied to Catholic public officials who had clear records in support of
legalized abortion (hereafter “the application of Canon 915”). The position and
voting record of the Democratic candidate for president, Senator John Kerry, a
Catholic, seemed to place him within the stricture of Canon 915. Other U.S.
bishops objected to Burke’s interpretation, and public controversy soon ensued.
Some political commentators opined that the refusal of Holy Communion to
Catholic political officials transgressed the acceptable parameters of church
involvement in the political process. In a hotly contested and close presidential
race, the commentators worried that the Burke position could tip the balance of
the electorate’s vote.9 Other commentators praised Burke and his fellow bishops

7. On November 23, 2003, the Most Reverend Raymond L. Burke, then the Bishop of
La Crosse, issued a pastoral letter to his diocese, about the dignity of human life and civic
responsibility. See Raymond L. Burke, Pastoral Letter to Christ’s Faithful of the
Diocese of La Crosse, On the Dignity of Human Life and Civic Responsibility
(2003). Months before, Bishop Burke had initiated communications with Catholic political
officials who were members of the diocese and who had taken public pro-abortion stances.
The bishop urged the Catholic political officials to consider the truth of the church’s teach-
ing about the value of every human life and to change their public positions. Only after
certain public officials remained unpersuaded did Bishop Burke bar them from receiving
Holy Communion. Pursuant to the bishop’s policy, the individuals were to be excluded
from reception of the sacrament until such time as they might publicly modify their position
in accord with the teaching of the church. On January 26, 2004, Most Reverend Raymond
L. Burke was installed as the archbishop of St. Louis. In response to inquiries from
members of the press during the heated presidential campaign of 2004, Archbishop Burke
indicated his intention to continue his pastoral initiative in his new Metropolitan See.
See Raymond L. Burke, Prophecy for Justice: Catholic Politicians and Bishops, 190 America
11–15 (June 21–28, 2004).
8. In Catholic theology, the terms Eucharist and Holy Communion refer to the reception
of sacramental bread and sometimes also wine, which Catholics believe are transformed
into the Body and Blood of Christ at Mass. Eucharist and Holy Communion are used
interchangeably in this chapter to represent the action of receiving the sacrament.
9. See David D. Kirkpatrick & Laurie Goodstein, Group of Bishops Using Influence to
Oppose Kerry, N.Y. Times, Oct. 12, 2004, A1; Kenneth L. Woodward, A Political Sacrament,
op. ed., N.Y. Times, May 28, 2004, A21.
142 canon law

for courageously fulfilling their responsibilities as pastors in the church. They

viewed the application of Canon 915 as a matter of internal church discipline,
which remained independent of the secular political process.10
A bishops’ task force was formed to consider the application of Canon 915.
Some forty-eight Catholic members of Congress wrote to the bishops’ task force
and stated that while they are personally opposed to abortion, they favor legalized
abortion as a matter of public policy.11 The head of the bishops’ task force,
Theodore Cardinal McCarrick, then the Archbishop of Washington, emphasized
that every bishop must judge “not whether denial of communion is possible, but
whether it is pastorally wise and prudent.”12 The Congregation for the Doctrine
of the Faith (CDF) circulated an unofficial protocol that essentially affirmed
Archbishop Burke’s approach to Canon 915.13 In the brief statement issued after
the June 2004 meeting in Colorado, the U.S. bishops declined to adopt a general
policy with regard to Canon 915. The bishops explained:
The question has been raised as to whether the denial of Holy Communion
to some Catholics in political life is necessary because of their public support
for abortion on demand. Given the wide range of circumstances involved in
arriving at a prudential judgment on a matter of this seriousness, we recognize
that such decisions rest with the individual bishop in accord with established
canonical and pastoral principles. Bishops can legitimately make different
judgments on the most prudent course of pastoral action.14
Subsequent to the U.S. 2004 elections, a synod of bishops from around the world
meeting at the Vatican advised that the application of Canon 915 should be left
to the determination of the individual bishop in his diocese.15 At a June 2006 meet-
ing of the U.S. bishops, Cardinal McCarrick made the final report of the bishops’
task force reaching the same conclusion.16
Although certain bishops apparently thought that the law permitted only one
correct interpretation, a large majority of the bishops in the United States were

10. See Richard John Neuhaus, Bishops at a Turning Point, First Things 78–81
(October 2004).
11. This was essentially the position taken by Mario Cuomo several decades ago in a
well-known speech at the University of Notre Dame. Critics of the Cuomo position argue
that one cannot logically profess to believe on a personal level that abortion or euthanasia
is the killing of innocent human life while speaking and acting in public as if the crime
constituted some kind of good. See 34 Origins 35–36 (June 3, 2004).
12. 34 Origins 107–09 (July 1, 2004).
13. The protocol was published in the U.S. See Congregation for the Doctrine of the
Faith, Vatican, U.S. Bishops: On Catholics in Political Life (Statement of Six Principles for the
Application of Canon 915), 34 Origins 133 (July 1, 2004).
14. Id. at 99.
15. See Overview of the Synod’s Propositions, 35 Origins 348 (Nov. 3, 2005).
16. See Final Report: Bishops and Catholic Politicians, 36 Origins 97–100 (June 29, 2006).
 indeterminacy in canon law 143

unwilling to apply Canon 915 to public officials who had public records in favor
of permissive abortion laws. The disagreement among the bishops raises the
indeterminacy claim. The indeterminacy claim holds “that legal questions do
not have correct answers, or at least not unique correct answers.”17 The indeter-
minacy claim is based on the vague nature of language, exceptions to the rules,
the application of law to specific cases, contradictions between particular
statutes, gaps in the law (lacunae legis), inconsistencies between legal precedents,
incommensurability, the subjective nature of interpretation, cultural differences,
and the need for resort to extra-legal materials and sources in order to interpret
the law.18
One formulation of the indeterminacy claim stresses law’s instrumental
possibilities over it normative content. Starting with the thought of Oliver
Wendell Holmes, Jr., American legal realism advanced the indeterminacy claim
against what it considered to be formal and legalistic reasoning. Legal realism
focused on the “open-textured vague” meaning of the law rather than its “precision”
or “certainty.”19 During the last decades of the twentieth century, the realist
approach to law was adopted and intensified by the critical legal studies
movement. Critical theorists ascribe radical indeterminacy to the law.20 From
this perspective, law is simply a cover for ideological interests that attempt to use
the power of law to achieve their own political ends.21 Building on the realist
belief in the manipulability of law, the critical theorists reject the idea that law
reflects neutral principles designed to guarantee fundamental fairness. Duncan
Kennedy, for example, argues that, from a phenomenological perspective,
indeterminacy is not the result of legal texts but rather the interaction between
legal texts and interpreters who advance ideological interests by blurring the
meaning of the law.22
Another formulation of the indeterminacy claim is that the law per se does
not provide correct answers to legal claims. This formulation suggests that
certain legal questions have correct answers only when extra-legal materials are
considered to supplement the legal texts. The possibilities for the extra-legal
materials may range from economic factors to sociological evidence to religious

17. See Brian H. Bix, A Dictionary of Legal Theory 97 (Oxford University Press
2004).
18. See Timothy A. O. Endicott, Vagueness in Law 31–55 (Oxford University Press
2000).
19. See Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and
Some Possibilities, American Bar Foundation Research Journal 613, 624 (1986).
20. See Joseph Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L. J.
1, 13 (1984).
21. See David Kairys, Introduction, in The Politics of Law 5–6 (Pantheon Books 1982).
22. See Duncan Kennedy, A Critique of Adjudication {fin de siècle} 316–19
(Harvard University Press 1997), which discusses how judges interpret the language of
rights, as an example of legal rules in general, on the basis of ideological considerations.
144 canon law

claims.23 The introduction of extra-legal materials such as moral principles

is obviously problematic for the pure legal positivists and other theorists who
advocate law’s autonomy from extra-legal sources. As we shall see in this chapter,
the application of Canon 915 raises a series of theological, pastoral, and political
issues which are related to canon law and are indispensable from the perspective
of the unity of canon law and theology. In this regard, the unity of canon law and
theology distinguishes canon law from secular legal theories that depend on the
strict separation of law from morality.
Still another formulation of the indeterminacy claim concerns linguistic
indeterminacy. Timothy Endicott acknowledges that the vague nature of law
may render its application in specific cases indeterminate.24 However, Endicott
notes that from a linguistic perspective every rule involves the interpretation of
language, and in this sense, the indeterminacy claim is vast and typical.
Nonetheless, Endicott points to the meaning of a stop sign to indicate that
linguistic indeterminacy may be overstated. The interpretation of the stop sign is
not indeterminate. The correct interpretation is to stop. Not to stop is an infraction
of the rule signified by the stop sign.25 Endicott’s example points to cross-cultural
indeterminacy in law. With respect to canon law, it is appropriate to recall that it
consists of rules for a church with a global presence. Anyone who has driven an
automobile in Italy or certain countries in Latin America understands that the
meaning of a stop sign may be interpreted in a different way than it is in Anglo-
American culture. The cross-cultural application of canon law seems to fuel the
indeterminacy claim. As with linguistic indeterminacy, cultural indeterminacy
may also be overblown. Since at least the third quarter of the eleventh century,
canonists have applied the rules across cultural, racial, and national lines. While
the application of canonical provisions has not always been successful in
transcending such categories, there has obviously been sufficient success over
time to permit canon law to develop and flourish.
It may be impossible to prove or refute the indeterminacy claim. In response
to the claim, Ronald Dworkin suggests that nearly all legal questions have
correct answers. Dworkin advances numerous arguments in favor of his “right
answers thesis.”26 One of his main arguments is that judges believe there are
correct or at least best answers to legal cases, and that some answers are better

23. See, e.g., Richard A. Posner, Overcoming Law 471–72 (Harvard University
Press 1995).
24. See Endicott, Vagueness in Law, 7–29.
25. See id. at12–13, 159–83.
26. See Ronald Dworkin, A Reply by Ronald Dworkin, in Ronald Dworkin and
Contemporary Jurisprudence 275–78 (M. Chen ed., Duckworth 1984). Cf. E. Philip
Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 Mich. L.
Rev. 473 (1977).
 indeterminacy in canon law 145

than others from the perspective of reason in light of past legal precedents.27 If
the indeterminacy of law is vast, then this has negative implications for the rule
of law. It means that the rule of law is based upon vague meanings and subjective
interpretations rather than fundamental concepts of justice and fairness.28 In
this chapter, I shall suggest that the arguments for the indeterminacy of Canon
915 are in each case met by detached normative statements based on the interdepen-
dence of canon law, theology, and practical reasonableness. At the same time,
the confusion among the bishops about the correct application of Canon 915
suggests that the indeterminacy claim may have at least some merit with regard
to canon law.

II. the rule of recognition and the internal aspect of law

In applying Hart’s theory of law to the question of refusing Holy Communion to

Catholic public officials, pursuant to Canon 915, a preliminary issue must be
considered. Is the application of Canon 915 a valid law? Hart identified the
rule of recognition as that rule or rules by which a legal system identifies what is
valid law.29 In Hart’s conception, the rule of recognition is a secondary or power-
conferring rule which identifies the primary rules of the legal system.30 It posits
the existence of “conventional criteria, agreed upon by officials, for determining
which rules are, and which are not, part of the legal system.”31 In other words,
my question here is whether the refusal of Holy Communion to Catholic public
officials is a valid rule of canon law.

27. See Ronald Dworkin, Pragmatism, Right Answers, and True Banality, in Pragmatism
in Law and Society 360 (P. Amselek & N. MacCormick eds., Westview Press 1991).
28. See Endicott, Vagueness in Law, 185–203. One of the early theorists of the rule
of law in a modern democratic society, F. A. Hayek, argued, in a book first published in
1944, that the rule of law could guarantee procedural justice through the principle of
equality before the law but not substantive equality such as that called for by the principle
of distributive justice. See F. A. Hayek, The Road to Serfdom 87–88 (Chicago University
Press 1994).
29. See Joseph Raz, The Authority of the Law: Essays on Law and Morality 95–97
(Oxford University Press 2002). Raz suggests that a legal system may have more than one
rule of recognition which sets up the criteria for the validity of law. Id.
30. See Hart, The Concept of Law, 91–92.
31. Brian Bix, Jurisprudence: Theory and Content 39 (3rd ed. Carolina Academic
Press 2004). See Hart, The Concept of Law, 94–110. This aspect of the theory comports
with the separation of law from morality. It permits the separation of statements about
what the law is from statements about what the law ought to be. See Hart, The Separation
of Law and Morality, 600–06.
146 canon law

A. The Rule of Recognition and Canon 915

In light of the rule of recognition, the question may be raised as to whether or
not the application of Canon 915 constitutes valid law within the context of the
system of canon law. One aspect of the rule of recognition in canon law is the
promulgation of law through the appropriate hierarchical authority. There can
be no question that the relevant words of Canon 915 are part of the CIC-1983. At
their November 2006 meeting, the U.S. bishops voted to issue a document that
affirms the significance of the relevant words of Canon 915.32
A more interesting aspect of the rule of recognition in canon law involves
continuity with a vast history of doctrine, law, rules, interpretation, tradition,
custom, and jurisprudence in the Catholic Church. Requirements for participation
in, and the reception of, the Eucharist are not new in the history of the church.
In his First Letter to the Corinthians, Saint Paul admonished:
Whoever, therefore, eats the bread or drinks the cup of the Lord in an unworthy
manner will be guilty of profaning the body and blood of the Lord. Let a man
examine himself , and so eat of the bread and drink of the cup. For any one
who eats and drinks without discerning the body, eats and drinks judgment
upon himself.33
Over the course of many centuries, a system of canon law emerged in the church
with specific provisions for the reception of Holy Communion. Canonical
provisions indicate that ecclesiastical authorities have a long history of barring
persons guilty of certain types of behavior from the reception of Holy Communion.
In the third century, Cyprian, Bishop of Carthage, denied communion to the
so-called “lapsed,” who had offered sacrifice to Roman deities, until the lapsed
repented of their idolatry.34 The medieval law of the Corpus Iuris Canonici
mentions blasphemers, historines (operators of brothels), and public usurers,
who were ipso facto not permitted to receive Holy Communion.35
The first edition of the Roman Ritual published in 1614 provided the following
illustrative list of public and notorious sinners who were to be barred from
reception of Holy Communion: usurers, sorcerers, prostitutes, persons living in
concubinage, and blasphemers.36 During the eighteenth century, Pope Benedict
XIV affirmed the ancient tradition that public and notorious sinners must not be

32. See 36 Origins 389, 393 (Nov. 30, 2006).

33. 1 Corinthians 11:27–29. See also Augustine of Hippo, Sermo 227, In die Paschae, IV,
Ad Infantes, de Sacramentis; 38 PL 1101.
34. See Cyprian of Carthage, Epistolae 5–10, & 19; 4 PL 235–46, 259–81.
35. See, e.g., X 5. 19. 3. 5. See also C. 24, 86; C. 11, 9, 3; C. 24, 20, 3; D. 2, 95, de cons.
36. See Tit. IV, c.1, De sanctissimo Eucharistiae, n. 8, in 7 Codicis Iuris Canonici
Fontes 143, n. 4598 (Typis Polyglottis Vaticanis 1933–1962); see also Rituale Romanum,
Editio Princeps (Malino Sodi & Juan Javier Flores Arcas eds., Vaticano, Liberia Editrice
Vaticana 2004) (1614).
 indeterminacy in canon law 147

admitted to Holy Communion, whether they request the sacrament publicly or

secretly.37 On August 1, 1855, the Holy Office ordered that notorious and public
members of the Freemasons be refused Holy Communion.38 In a 1930
Instruction, the Sacred Congregation of the Council forbade the ministration of
the Eucharist to immodestly dressed women.39 Although some of these examples
seem curious and dated to contemporary sensibilities, the Roman Curia continues
to define what conduct might be a ground for the refusal of Holy Communion.
As recently as 2000, the Pontifical Council for Legislative Texts affirmed a 1994
declaration from the CDF that the minister of Holy Communion must refuse it
to divorced and civilly remarried Catholics who have not obtained a church
annulment.40 In 2002, Pope John Paul II issued the Encyclical Letter, Ecclesia de
Eucharistia, which affirms the application of Canon 915 to those who remain
obstinate in manifest grave sin.41
In June 2004, Cardinal Joseph Ratzinger, then Prefect at CDF, issued a
Statement of Six Principles concerning the application of Canon 915 to the
Catholic political official. Principles 2 and 3 state that abortion and euthanasia
have a greater moral weight than other serious moral issues including ones that
involve the taking of human life, such as the death penalty and the application of
just war theory. Principle 5 affirmed the applicability of Canon 915 to Catholic
political officials with clear public records in support of abortion and/or euthanasia.
Regarding the specific situation of the Catholic political official, the CDF princi-
ples address only the issues of abortion and euthanasia. However, the document
does not expressly limit the application of Canon 915 to these two cases. It is
doubtful that the CDF principles enjoy force of law in the church. These princi-
ples were originally communicated by Cardinal Ratzinger in a private manner to
the U.S. bishops. Although they were eventually published in Origins, the princi-
ples were not published as an authoritative decree of the Holy See.42 For this

37. See Benedictus Pp. XIV, Ex omnibus (Die 16 mensis oct. anno 1756), § 3f, in 2
Codicis Iuris Canonici Fontes, 536, n. 441.
38. See Coll. Propaganda Fide, n. 1116, see also 8 Codicis Iuris Canonici Fontes, 546,
n. 6426.
39. See S. C. C., instr. (Die 12 mensis dec. anno 1930), IX; 22 AAS 26 (1930).
40. See Pontifical Council for Legislative Texts, Declaration, II, Concerning the Admission
to Holy Communion of the Faithful Who Are Divorced and Remarried, June 24, 2000, available at
http://www.vatican.va/roman_curia/pontifical_councils/intprtxt/documtnts/rc_pc_20000706_
declaration_en.html; and Congregatio Pro Doctrina Fidie, Epistola ad Catholicae Ecclesiae
Episcopos De Receptione Communionis Eucharisticae a Fidelibus Qui Post Divortium Novas
Inierunt Nuptias (Die 14 mensis septembris anno 1994); 86 AAS 974–79 (1994).
41. See Ioannes Paulus Pp. II, Litterae Encyclicae, Ecclesia de Eucharistia (Die 17 mensis
aprilis anno 2003), 37; 95 AAS 433–75 (2003).
42. See Congregation for the Doctrine of the Faith, Vatican, U.S. Bishops: On
Catholics in Political Life (Statement of Six Principles for the Application of Canon 915),
133–34.
148 canon law

reason, the CDF principles remain private and in comparison to a decree that
has been officially promulgated, they enjoy only a limited authority. This, of course,
does not necessarily render the principles any less correct as an interpretation
of the law. They are from an authoritative source even though they were not
officially promulgated.
Three observations may be made on the basis of the rule of recognition. First,
ecclesiastical authorities have long been concerned with protecting the ecclesial
order of the Eucharist by positing rules that prohibit participation by those
who persist in public behavior deemed to be gravely sinful. Starting with sacred
scripture and the ancient church, through the medieval and Tridentine periods,
and continuing to the present time, ecclesiastical authorities have set forth rules
for the reception of Holy Communion. This historical continuity indicates that
such rules are not simply the product of a particular lawgiver’s will. Rather, they
are an aspect of well-established canonical tradition and law.
Second, the provisions indicate that the question of what constitutes the kind
of public grave sin, which requires denial of Holy Communion, has been
answered differently throughout the church’s history. Presumably, even within
a given time frame and a particular place, there may have been disagreement
among ecclesiastical authorities regarding what behavior triggered the canonical
stricture. This suggests that any particular provision of church law on this
subject such as Canon 915 is positive law rather than divine or natural law. In
contrast to legal positivism, canon law recognizes divine and natural law
as immutable sources of law. The positive provisions of canon law regulating
reception of Holy Communion have changed over the course of time and in
response to the social context of the ecclesiastical community in a particular
place. Canon 915 may be described as the positive law of the church which
reflects the legislative intent to design positive law on the foundation of natural
and divine law. The designation of Canon 915 as a positive law does not diminish
its significance as an aspect of the rule of law in the Roman Catholic Church.
Third, notwithstanding the historical continuity of canonical provisions about
the reception of Holy Communion, if a majority of bishops refuse to apply Canon
915, one must ask if they have internalized law. Hart’s rule of recognition stands
in contrast to Austin’s so-called command theory of law in which law is a mani-
festation of will backed by coercive force. Hart observed that there are many
persons who obey the law not on the basis of threat but because they have inter-
nalized the rules as reason for acting in a certain way and for censuring others
when they do not act as the rule requires. Otherwise, Hart noted, one could not
distinguish law from the threat of a gunmen.43 A hostage to a terrorist may obey

43. Hart objected to the command theory as inconsistent with modern systems of
government with checks and balances, as unable to explain the continuity of law when a
sovereign is replaced by a new sovereign who has no history of receiving habitual obedience
 indeterminacy in canon law 149

the terrorist’s demands no matter how unreasonable, but that does not make the
demands law.
Commenting on Hart’s rule of recognition, Raz notes that “the behavior of the
population is not part of the conditions for the existence of the rule of recognition.”
Rather, “its existence consists in the behavior of the ‘officials’ of the system, by
which Hart presumably means law-applying officials.”44 With regard to the appli-
cation of Canon 915, it is the understanding of the bishops as the law applying
officials, and not that of the Catholic public officials as the subjects of the law,
which is crucial to the rule of recognition. For example, the pro-choice Catholic
public official may claim to object on jurisprudential or moral grounds to the
U.S. Supreme Court’s decision in Roe v. Wade, which recognized a constitu-
tional right to abortion. At the same time, this Catholic layperson recognizes the
constitutional right as a legal fact. This official decides that the constitutional
right is established, whether rightly or wrongly, as a legal matter until Roe may
be overruled. Such a Catholic public official may see the application of Canon
915 to his or her case as merely a command of the church to be obeyed under
threat of deprivation of Holy Communion. Assuming arguendo that the position
of this public official has some validity, it has no bearing on the rule of recogni-
tion and the validity of Canon 915. If the bishops as the law applying officials in
the system of canon law have internalized the perspective of the public official
just described, it might create doubt as to whether or not the application of
Canon 915 represents a valid law under the rule of recognition. This leads to
Hart’s point about the internal aspect of law.

B. The Internal Aspect of Law and the Application of Canon 915

Hart rejected the position of early legal positivists who “claimed that the only
method of representation of the law to figure in a modern rational science of law
was one which shared the structure and logic of statements of empirical
science.”45 Hart found the scientific method, which relies solely on objective
data, to be inadequate for understanding law. According to Hart, law is a human
and social process unlike scientific method, which requires an objective descrip-
tion of processes such as photosynthesis or atomic fusion. In Hart’s legal theory,
whatever insight the external point of view of scientific method offers, it fails
to account adequately for the perspective of the participant in the legal system.
Hart postulated that the internal aspect of law remains indispensable to a proper
understanding of the law’s nature, function, and purpose. In Hart’s own
words, “the methodology of the empirical sciences is useless; what is needed is

from subjects, and as an incomplete description of law which is a richer concept than that
of commands backed by threats. See Hart, The Separation of Law From Morality, 603.
44. Raz, The Authority of the Law, 92.
45. H. L. A. Hart, Essays in Jurisprudence and Philosophy 30 (Clarendon Press of
Oxford University 1983).
150 canon law

a ‘hermeneutic’ method which involves portraying rule-governed behavior as it

appears to its participants.”46 Hart wanted the legal theorist to act both as an
external observer and as one who endeavors to understand the “internal aspect”
of the legal system. He sought a legal theory that would be free from moral
judgments and based on an objective description of the internal point of view of
an actual participant in a given legal system.47
In any legal system, there are, of course, many different participants, and not
all of them share the same point of view about the rules of the system. In adopt-
ing the internal perspective of a participant, how does the legal theorist choose
among the various participants’ perspectives? A student of Hart’s, Joseph Raz,
offers some helpful examples in response to this question. Raz notes that
someone who is not a vegetarian is nonetheless able to advise a vegetarian friend
in a restaurant “given your beliefs you should not order that dish.”48 Likewise,
Raz observes that a Catholic who is an expert in orthodox Judaism may be able
to make correct statements about faithful observance of rabbinical law even
though the Catholic is not committed to that normative system of religious law.49
According to Raz, these are examples of “detached normative statements.”50 A
detached normative statement permits one to make a factual statement about
what there is reason to do from the perspective of a normative system of which
one is not an adherent.
Raz suggests that such detached normative statements represent a middle
ground between two other approaches to the question about participant perspec-
tives. Another student of Hart’s, John Finnis, posits that the perspective chosen
should be that of the participant who relies on practical reasonableness to recog-
nize binding moral obligations established by law.51 In contrast, Ronald Dworkin
argues that the perspective must be that of a participant in the legal system
who offers an interpretation of the law on the basis of the morally soundest of
past governmental actions.52 When it comes to canon law, Raz’s detached
normative statement and Finnis’s practical reasonableness may amount to
unequivocal approaches. It is a correct detached normative statement to observe
that the practical reasonableness of natural law theory is a prominent feature of
canon law.

46. Id. at 13
47. See Hart, The Concept of Law, 56–58; 88–91.
48. Joseph Raz, Practical Reason and Norms 175–76 (2nd ed. Princeton University
Press 1990).
49. See Raz, The Authority of Law, 156–57.
50. Id. at 153.
51. See John Finnis, Natural Law and Natural Rights 3–18 (Clarendon Press of
Oxford University 1986).
52. See Ronald Dworkin, Law’s Empire 46–48, 225–28, 245–58 (Belknap Press of
Harvard University 1986).
 indeterminacy in canon law 151

Hart’s internal aspect of the law proves helpful in understanding the disagree-
ment among the bishops about the application of Canon 915. From an internal
perspective, it is possible to identify at least four different approaches among the
U.S. bishops. First, a bishop could conclude that the applicability of Canon 915
constitutes a clear case and enforce it after a consideration of all the circum-
stances in the particular case following dialogue with the Catholic public official.
Second, a bishop could conclude that the applicability of Canon 915 is uncertain
and therefore elect not to apply it after a consideration of a number of theological,
canonical, political, and pastoral issues which seem to render the applicability of
the canon indeterminate. Third, a bishop could refuse to apply Canon 915 in
complete antinomian deference to the individual conscience of the Catholic
public official who is pro-choice and decides to receive Holy Communion.
Fourth, a bishop might adopt a legalistic interpretation that considers the question
about reception of the Eucharist to be a confidential matter belonging strictly to
the internal forum. Legalism would also be evident in an application of Canon
915 without consideration of the various circumstances involved in an individual
case or in a rigid manner that precludes dialogue between the bishop and the
Catholic public official.

III . the open texture of law: a central case

Hart thought that the application of law included “central cases,” in which the
application of law is clear, and a “penumbra of doubt,” in which the application
of the law is uncertain.53 The first possibility then is the central, certain, and clear
case, and the second possibility is the doubtful, difficult, and hard case. Hart’s
example of the distinction involved the rule “No vehicles in the park.” The rule
was intended to ban automobiles, but Hart queried, did the rule also apply to
bicycles, roller skates, or baby carriages?54 Hart attributed two possibilities
to account for the “open texture” of law. First, the legislative intent could be
incomplete, as the legislator did not consider all of the possibilities. Second, the
language of the rule could be imprecise as in what the term vehicle means.55
Hart’s analysis suggests that the fundamental disagreement among the bishops
about the application of Canon 915 concerns whether the application is a clear or
hard case. To the extent that the application of Canon 915 amounts to a hard
case, it favors the indeterminacy claim. The bishops who consider the application
of Canon 915 to constitute a clear or central case may support their interpreta-
tion on the (1) plain meaning of the words of the canon, (2) theological and

53. Hart, The Concept of Law, 123.

54. Id. at 126–27.
55. See id. at 126–30.
152 canon law

canonical justifications that underpin the canon, and (3) limited effects of
application of the words of the canon.

A. The Plain Meaning

The pertinent words of Canon 915 state that those “who obstinately persist in
manifest grave sin are not to be admitted to Holy Communion.”56 This phrase
consists of three subphrases, which are considered here in reverse order.
1. “Are Not to Be Admitted” The Latin phrase of the authoritative text is
“ne admittantur,” which constitutes the subjunctive imperative. The equivalent
provision of the 1917 Code, Canon 855, Section 1, employed the Latin passive
periphrastic form “arcendi sunt” with the same imperative meaning that the
“publicly unworthy” must be barred from the Eucharist. Indeed, the Latin word
“arceo” carries the meaning of to be “prevented from approaching” or “kept at a
distance.” Canon 712 of the 1990 Eastern Code of Canon Law also employs the
Latin form “arcendi sunt.” The imperative meaning of all three of these provisions’
terms leads to the conclusion that the application of Canon 915 is not optional.
2. “Manifest Grave Sin” It would be a detached normative statement to observe
that the Roman Catholic Church considers abortion and euthanasia to constitute
gravely sinful matter (“gravi peccati”). Speaking of the “deplorable crime” of abor-
tion in Evangelium Vitae, Pope John Paul II taught:
Therefore, by the authority which Christ conferred upon Peter and his
Successors, in communion with the Bishops of the Catholic Church . . . I
declare that direct abortion . . . constitutes a grave moral disorder, since it is
the deliberate killing of an innocent human being.57
This rare formulary invocation of the apostolic authority vested in the Petrine
ministry attests to the level of gravity that the church attributes to the taking of
innocent human life. A Catholic’s public support of abortion or euthanasia would
thus differ from many other issues that do not involve the taking of innocent
human life, but which nonetheless might give rise to a discontinuity between
church teaching and civil law.

56. The Latin original of Canon 915, CIC-1983, reads as follows: “Ad sacram commu-
nionem ne admittantur excommunicati et interdicti post irrogantionem vel declarationem
poenae aliique in manifesto gravi peccato obstinate perseverantes.”
57. Ioannes Paulus Pp. II, Litterae Encyclicae, Evangelium Vitae (Die 25 mensis martii
anno 1995), 57; 87 AAS 401, 464–66 (1995). English translation from Evangelium Vitae, in
The Encyclicals of John Paul II 682, 739 (J. Michael Miller, C.S.B. ed., Our Sunday
Visitor Press 2001). In No. 56, John Paul stated: “Therefore, by the authority which Christ
conferred upon Peter and his Successors, and in communion with the Bishops of the
Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is
always gravely immoral.” (emphasis in original). In No. 60, the pope affirmed the Catholic
teaching that human life begins at conception.
 indeterminacy in canon law 153

However, the church teaching on the direct and voluntary taking of innocent
human life does not settle the matter. In order to apply Canon 915, a bishop still
has to determine that the Catholic public official has committed grave sin.
Pursuant to Canon 1398, the clear case of the person who performs or procures
an abortion results in an automatic penalty of excommunication.58 Does public
speech and government action favorable to the direct and voluntary taking of
human life also constitute a clear case? The bishop’s determination as to whether
or not to bar the Catholic public official from Holy Communion would involve
an application of the traditional principles of formal and material cooperation in
evil. Formal cooperation in evil is always morally prohibited. In this regard, the
application of Canon 915 to a Catholic public official finds confirmation in
number 5 of the CDF principles, which states:
Regarding the grave sin of abortion or euthanasia, when a person’s formal
cooperation becomes manifest (understood, in the case of a Catholic politician,
as his consistently campaigning and voting for permissive abortion and euthan-
asia laws), his Pastor should meet with him, instructing him about the
Church’s teaching, informing him that he is not to present himself for Holy
Communion until he brings to an end the objective situation of sin, and
warning him that he will otherwise be denied the Eucharist. (emphasis
added).59
Principle 5’s identification of “campaigning and voting for permissive abortion
and euthanasia laws” with formal cooperation in grave sin would seem to encom-
pass even a vote to decriminalize abortion or euthanasia as well as voting in favor
of public funding of these practices. For the bishop who agrees with this assess-
ment, the application of Canon 915 to the Catholic public official constitutes a
clear case. I shall say more about the principles of cooperation, the political
autonomy enjoyed by Catholics, and individual conscience in the next section on
hard cases. Suffice it to say at this point of the analysis that Principle 5 reflects
the conclusion that consistent voting in favor of liberal abortion or euthanasia
laws is a clear case.60
As to when grave sin is manifest (“manifesto”), the tradition draws a distinction
between occult (private) and public (well-known) sin. Occult sin may be known
to some, but it is not generally known throughout the community. Rumors and
suspicion do not render occult sin public. In contrast, sin becomes public when

58. Canon 1392, § 2, CIC-1983, defines an accomplice to abortion as one without whose
assistance the crime would not be committed, and states that such an accomplice incurs
the automatic excommunication.
59. Congregation for the Doctrine of the Faith, Vatican, U.S. Bishops: On Catholics in
Political Life (Statement of Six Principles for the Application of Canon 915),134.
60. See Kevin T. McMahon, Pro-Abortion Politicians and Voters and the Reception of Holy
Communion, 73 Linacre Quarterly 153, 160-161 (2006).
154 canon law

there is widespread knowledge of it. The determination of what sin is public

belongs to the competent ecclesiastical authority who must render any such
decision with justice and charity always before his eyes. Church teaching holds
that all persons are sinners in need of the redemptive love of Christ. The long-
standing rule is that occult sinners who publicly approach the minister of Holy
Communion should not be refused.61 The rule regarding occult sinners rests on
the need to spare the good reputation of the individual especially where refusal
of Holy Communion by the minister would create suspicion and scandal.62 In
contrast, the tradition requires that those who persist in manifest grave sin may
not receive Holy Communion. The refusal of Holy Communion can occur only
in those rare cases when the proper ecclesiastical authority has recognized the
widespread knowledge of the sin throughout the community.
3. “Obstinately Persists” The words “obstinate perseverantes” indicate that the
legislator does not intend the stricture of Canon 915 to be applied indiscrimi-
nately or facilely. In order to determine whether a Catholic public official falls
within the narrow parameters of the stricture, the bishop incurs the responsibility
to examine carefully the whole of the voting record and public statements of the
political official. To start, the determination that the grave sin is obstinate
requires more than a superficial review. The bishop fulfills this responsibility by
personally contacting the public official involved and attempting to persuade the
official to correct his or her position. Canon 915 does not expressly require such
a personal and individual approach. However, CDF Principle 5 calls upon the
pastor of the Catholic political official to conduct just such a personal interven-
tion and meeting.63 Principle 6 states that only after such “precautionary measures”
on the part of the pastor have been unsuccessful must the minister of Holy
Communion refuse the sacrament to the person. Although Canon 915 does
not mention a warning to the public official, the determination that one has
obstinately persisted seems to require such a formal warning. A public official
who speaks or votes publicly in favor of abortion or euthanasia could claim to be
unaware of the possible canonical consequences of his or her actions. It could be
argued that the official is not obstinately persisting until he or she has actual
notice of the possible canonical consequences. In contrast, a Catholic who speaks
or votes publicly in favor of abortion or euthanasia, and then refuses to correct
this position after a warning by his or her pastor, would be “obstinate” within the
meaning of Canon 915.

61. See Benedictus Pp. XIV, Ex omnibus, § 3f; Canon 912, CIC-1983.
62. See Canon 220, CIC-1983.
63. The use of the term pastor would not be limited to the person’s bishop, but it would
also include the parish priest as pastor of the parish to which the person belonged. See
Canon 519, CIC-1983. However, the bishop as the chief pastor of the diocese has the final
authority, and in most cases, it would seem that he would act as both the primary and
ultimate judge in his diocese about whether or not to apply Canon 915.
 indeterminacy in canon law 155

Additionally, the bishop must take into account any specific circumstances
that might excuse or mitigate the behavior of the public official. To mention one
example, a politician who votes in favor of pro-abortion legislation or funding is
not necessarily obstinately persisting in a pro-abortion position. Number 73 of
Evangelium Vitae clarifies when a legislator might vote in favor of a specific
pro-abortion bill. This is only permissible where a liberal abortion law is to be
restricted by a more limited legislative provision. Thus, it would not be permis-
sible for a legislator to vote in favor of a pro-abortion statute or funding unless
the specific piece of legislation was restricting a more liberal pro-abortion law.
Number 73 requires that a legislator who votes in favor of a more restrictive
measure has the duty to make public his or her anti-abortion position on the
issue (“whose absolute personal opposition to procured abortion was well
known”). Advocates of the clear case approach to Canon 915 would conclude that
if the examination establishes that a Catholic public official has an obstinate
pro-abortion or pro-euthanasia position, it then becomes incumbent upon the
bishop to exclude the official from Holy Communion.

B. The Justifications for the Application of Canon 915

The clear case approach to Canon 915 rests on at least four justifications. First,
Canon 915 was designed to protect the Christian faithful from the public scandal
caused when a pro-abortion or pro-euthanasia public official receives the Body
and Blood of Christ. The second goal of Canon 915 is to safeguard the sanctity
of the Eucharist from those who judge themselves justified in receiving the
sacrament even while publicly and adamantly denying church teaching. Third,
Canon 915 is intended to foster conversion for those who reject the church’s
teaching on the sanctity of life. In denying the reception of Holy Communion to
pro-abortion and pro-euthanasia public officials, Canon 915 aims to correct an
erroneous conscience and act as an incentive to the sinner. It corresponds to the
principle that the salus animarum remains the supreme law of the church.64
Finally, Canon 915 protects innocent human life from laws and policies which
permit or encourage unjust killing. In light of these four goals, the bishop’s duty
to enforce Canon 915 is not abrogated by the possibility that its enforcement
might be detrimental to other aspects of the good.65

C. Effects of Canon 915

As is obvious from the words of Canon 915, the refusal of Holy Communion due
to obstinate and manifest grave sin is to be distinguished from excommunication
and inderdict. Excommunication and interdict constitute canonical penalties

64. See Canon 1752, CIC-1983.

65. No. 74 of Evangelium Vitae recognizes that the pro-life stance on the part of Catholic
public officials “may require the sacrifice of prestigious professional positions or the
relinquishing of reasonable hopes of career advancement.”
156 canon law

which are established in Book 4 of the 1983 Code of Canon Law. An excommu-
nicated person is incapable of celebrating and receiving any of the sacraments
and sacramentals of the church.66 Additionally, an excommunicated person may
not exercise any ecclesiastical office, ministry, or function, or posit an act of gov-
ernance.67 An interdict also prohibits one from celebrating and receiving the
sacraments and sacramentals, but does not necessarily deprive one of the right
to exercise ecclesiastical office.68 In contrast, a person who has been refused Holy
Communion for manifest grave sin under Canon 915 suffers only this particular
ill effect. While it does not constitute a penal sanction in a technical or formal
sense, it seems to me that the refusal of Holy Communion functions nonethe-
less as a kind of censure. At the least, it restricts the general right of the faithful
to receive the Eucharist, which is recognized in Canon 912. Canon 18 therefore
applies. It requires that: “Laws which prescribe a penalty, or restrict the free
exercise of rights, or contain an exception to the law, are to be interpreted strictly.”
As it restricts the general right to receive the Eucharist, the strict interpretation
of the relevant provision of Canon 915 requires that its application be limited
only to clear and necessary cases.
In the alternative, a bishop might elect to conduct a penal trial and impose a
ferendae sententiae penalty, excommunication, or interdict, rather than refuse
Holy Communion to pro-abortion politicians. One might think that the trial with
a pronounced penalty affords greater clarity than the alternative refusal of Holy
Communion. The penalties are certainly more severe. As mentioned, the excom-
municated person cannot receive any of the sacraments. Sacramental absolution
cannot be given unless the excommunication has been lifted or there is danger
of death. In contrast, the political official barred from reception of Holy
Communion under the nonpenal provision of Canon 915 may continue to attend
Mass, hear the Word of God, pray with the Catholic community, and receive the
other sacraments. Although some might prefer a trial and ferendae sententiae
censure, Canon 915 has vested the bishop with discretion to act pastorally or
in a more formal juridic mode. In light of this canonical analysis, a strong
argument can be made that the plain meaning of the words of Canon 915 along
with the protocol for its application, the strong theological and canonical justifica-
tions that underpin the canon, and its limited effects render the application of
Canon 915 a clear and central case.

66. See Canon 1331, § 1, 1 & 2°, CIC-1983.

67. See Canon 1331, § 1, 3°, CIC-1983.
68. See Canon 1332, CIC-1983.
7. the indeterminacy claim continued
Canon 915: “A Doubtful or Hard Case”

In the previous chapter, I explored the nature of the indeterminacy claim and
offered an argument that the application of Canon 915 to Catholic public
officials is a central case. Most of the bishops in the United States apparently
thought that the application of Canon 915 constitutes a more difficult case. There
are at least five objections that might be raised in relation to the application of
Canon 915 as a clear case. The objections are based upon: (1) doubt about
whether or not a Catholic public official, who favors permissive abortion or
euthanasia laws, is in fact a “grave sinner”; (2) undue interference in the political
process through an arbitrary application of law; (3) the social teaching of the
church; (4) the sacramental nature of the Eucharist; and (5) other provisions
of canon law, including the right to receive the sacraments and the diocesan
bishop’s authority. Each of these objections calls into question the clear case
approach to Canon 915, and thus raises the indeterminacy claim. I shall present
each of the five objections and then discuss them in terms of responses based
upon what Joseph Raz describes as detached normative statements. My purpose
here is not to evaluate whether or not the application of Canon 915 is a good
church policy. Rather, I am attempting to clarify what might be the correct
internal point of view of a bishop participant in relation to Canon 915.
To play on Raz’s example, a rabbi, imam, Mormon bishop, or atheist could
earn a doctorate in Catholic theology. The non-Catholic expert does not necessarily
believe what Catholic theology and canon law espouse, but is able to function as
a detached observer making normative statements about Catholic belief.
Although I shall rely on Raz’s example of the detached observer, a theological
qualification is in order. Through the use of reason and study, a nonbeliever may
well understand certain principles of natural law and theology. Canon law,
however, would reflect the theological belief that grace enhances this natural
understanding. Thus, canon law would consider the similarly intelligent and
informed baptized Catholic, and even more so one who also holds sacramental
office in the church, to have the assistance of grace in addition to natural ability
to understand the inner meaning of some aspect of Catholic belief. In particular,
the canon law would consider the Catholic bishop to be the recipient of special
graces from his ordination and office that enable him to understand, interpret,
and apply principles of Catholic teaching.
158 canon law

I. doubt regarding the attribution of “grave sin” to the

public official

The attribution of manifest grave sin to a Catholic public official who favors per-
missive abortion or euthanasia laws raises issues about the political autonomy
enjoyed by Catholics, the principles of material and formal cooperation, and the
primacy of individual conscience. Each of these issues could arguably bolster the
indeterminacy claim with regard to Canon 915.

A. Political Autonomy
The Catholic tradition respects the proper autonomy of the Catholic laity in politi-
cal affairs. The teaching acknowledges that Christian faith does not contain spe-
cific solutions to all political problems, and the Church can claim no expertise to
determine all of the prudential choices faced by the governmental official regarding
the political ordering of society through laws. As Pope John Paul II put it:
Extremely sensitive situations arise when a specifically religious norm becomes
or tends to become the law of the state without due consideration for the dis-
tinctions between the domains proper to religion and to political society. In
practice the identification of religious law with civil law can stifle religious free-
dom, even going so far as to restrict or deny other inalienable human rights.1
The technical complexity of particular legislative and judicial situations, the
different interpretations of basic principles of law, the variety of political and
legal strategies for encoding the human good into the law, and the historical,
sociological, and economic factors that influence the order of a society’s law
point to the autonomy of the political process and law. The Catholic tradition
recognizes that the church possesses no authority to impose one solution given
the legitimate plurality of political options. For example, a Catholic public official
might believe that an act of abortion constitutes grave sin, but conclude that it
ought not be punished by the state’s criminal law. It is not the proper function
of the state’s criminal law to attempt to suppress all sin and vice. Arguably, all
questions of punishment by the state are for the prudence of the civil magistrate.
In light of the rightful political autonomy of the Catholic public official vested
with governmental responsibility, the bishop could conclude that the application
of Canon 915 is a hard case. In other words, for the bishop to exclude the Catholic
public official from Holy Communion could be an undue interference in
autonomy of the official’s prudential judgment.
However, the bishop should take into account, the 2002 Doctrinal Note from
CDF, On Some Questions Regarding the Participation of Catholics in Political Life,
distinguished the legitimate plurality of prudential choices from choices that are

1. John Paul II, Message for the 1991 World Day of Peace: “If you want peace, respect the
conscience of every person,” 4, 83 AAS 414–15 (1991).
 the indeterminacy claim continued 159

not compatible with fundamental moral principles derived from the natural
moral law.2 Pope John Paul II was clear that Catholic lawmakers have a “grave
and clear obligation to oppose” any law that threatens innocent human life.3
Regarding the morality of permissive abortion or euthanasia laws, the Doctrinal
Note states that “for every Catholic, it is impossible to promote such laws or to
vote for them.”4 In evaluating Canon 915, the bishop should carefully balance
the proper political autonomy of Catholics and the moral truth as taught by
the church. In light of Catholic teaching, the rabbi who is an expert in Catholic
theology might offer the following detached normative statement: It is not morally
permissible for a public official in reaching prudential decisions to exercise
political autonomy in a manner that is contrary to fundamental moral principles
that protect innocent human life. Such a normative statement would not end the
bishop’s careful balancing of the factors in the decision-making process with
regard to the application of Canon 915. The bishop must also consider whether
the Catholic public official’s action constitutes “grave sin” within the meaning of
the canon.

B. Formal and Material Cooperation

Catholic moral theology and canon law have drawn a traditional distinction
between formal and material cooperation in evil. According to the classic distinc-
tion articulated by Alphonsus Liguori, formal cooperation is never morally
permissible, but material cooperation is sometimes permissible under certain
circumstances. As previously mentioned, the CDF Principles identify campaign-
ing or voting for a permissive abortion or euthanasia law to count as formal
cooperation. Despite this identification, a bishop might still conclude that the
application of Canon 915 is a hard case. Alphonsus Liguori described formal
cooperation as that “which occurs in the bad will of the other.”5 Formal cooperation
is a direct participation in the evil intent of the wrongdoer. The public official
is not an abortionist. A bishop might question whether a public official who
promotes or votes in favor of a particular piece of legislation has the requisite evil
intent to come under the stricture or formal cooperation. For example, a vote to
decriminalize abortion might simply reflect the legislator’s prudential judgment

2. See Congregation for the Doctrine of the Faith, Doctrinal Note on Some Questions
Regarding the Participation of Catholics in Political Life, 2, 3, and 5, November 24, 2002, in
32 Origins 537, 539–41 (Jan. 30, 2003).
3. Ioannes Paulus Pp. II, Litterae Encyclicae, Evangelium Vitae, 73 (Die 25 mensis
martii anno 1995), 57; 87 AAS 401, 486–87 (1995).
4. Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political
Life, 2, at 540.
5. Alphonsus Liguori articulated the classic statement about cooperation: “That [coop-
eration] is formal which occurs in the bad will of the other, and it cannot be without sin . . .”
2 Theologia Moralis § 63 (L. Gaudé ed., Typographia Vaticana 1905–1912).
160 canon law

that the prohibition is impossible to enforce. The wrong of abortion is going to

take place in spite of the prohibiting law, and thus the law is ineffectual and as a
jurisprudential matter should be repealed. The bishop doubts that the Catholic
legislator who votes to decriminalize is formally complicit in any act of abortion.
In the bishops’s view, the legislator is only voting to repeal an ineffective law,
and the bishop does not believe that the legislator formally intends to cooperate
in evil by this jurisprudential judgment. Alternatively, the Catholic public official
might believe abortion to be a grave sin, but the official feels that it ought not to
be punished in the criminal law. As previously discussed, the criminal law does
not punish every type of sin. Again, the bishop doubts the public official’s formal
complicity in the bad will of the other.
Even if the bishop has doubt about formal cooperation, does the Catholic
public officially materially cooperate in grave evil? In contrast to formal cooperation,
Liguori held that material cooperation is permissible when: (1) the cooperator’s
act is good or indifferent in itself, (2) the cooperator has a reason for acting that
is just, and (3) the cooperator’s reason is proportionate to the gravity of the
wrongdoing and to the closeness of the assistance.6 The Catholic official who
votes to decriminalize abortion may satisfy the first two conditions for permissible
material cooperation. With regard to the first condition for permissible material
cooperation, the official is arguably not endorsing abortion but recognizing it as
an unfortunate social fact. As for the second condition, the reason for the vote
to decriminalize abortion is to address the problem of an unenforceable and
ineffective law.
The third condition for material cooperation could raise a problem for the
bishop who thinks that the application of Canon 915 is a hard case. First, the
third condition requires in relevant part that the cooperator’s reason is propor-
tionate to the wrongdoing. In John Paul II’s view, abortion is always a grave
wrong, and accordingly, the cooperator’s reason necessarily fails the proportionality
requirement. In the decriminalization example, while the closeness of the assis-
tance would seem remote, as decriminalization does not change the social fact of
abortion, the material cooperation would be morally impermissible because the
proportionality requirement can never be satisfied. Second, the third condition’s
connection between the cooperation in evil and the closeness of assistance could
also raise a problem. In contrast to the decriminalization example, the Catholic
public official who votes in favor of funding for abortion or euthanasia violates
not only the proportionality requirement but also the closeness requirement of
the third condition. Without the government funding, certain acts of abortion or
euthanasia would not take place. The gravity of the wrong remains unchanged,
and now the closeness of the assistance is proximate. An imam with knowledge
of Catholic teaching might observe that the grievous nature of the taking of

6. See id.
 the indeterminacy claim continued 161

innocent human life never gives rise to a sufficiently proportionate reason for
permissible material cooperation. Even in light of the normative statements
offered by the rabbi and imam, the bishop must still consider the Catholic tradition
on individual conscience.

C. Individual Conscience
One possible internal perspective of a bishop with regard to Canon 915 is to
grant complete deference to the conscience of the Catholic political official. At
the end of this section of the chapter, I suggest that absolute deference to indi-
vidual conscience in the application of Canon 915 represents an antinomianism
that renders it invalid as an internal perspective. In contrast, I am concerned
here with the bishop who legitimately wants to take into account the conscience
of a Catholic political official as one factor in the bishop’s determination with
regard to the application of Canon 915. Previously, I mentioned the Catholic
public official who recognizes the legal fact of abortion as a recognized constitu-
tional right even though the official believes that the judicial decision on which
the right is based was wrongly decided. Presume that the public official has no
direct power to revoke the constitutional right. At the same time, the official is
charged with enforcing the law, voting to fund the provision of abortion through
governmental programs, and/or administering some program which involves
the provision of abortion. Realizing that the law is imperfect, such an official
nonetheless understands the value of the rule of law and wants to live within
its framework. On this basis, the public official concludes that one is legally
obligated to uphold the law which recognizes abortion as a constitutional right
until the law is changed. When the bishop and the Catholic public official
discuss the situation, the bishop wants to respect the official’s conscience.
This situation, however, raises similar issues to those already addressed in
regard to political autonomy and material cooperation. The CDF Doctrinal Note
indicates that a “well-formed Christian conscience” does not permit one to act in
a way that assists in a gravely immoral act. In confirming the traditional teaching
on conscience in Veritatis Splendor, Pope John Paul II observed that “conscience
is not infallible; it can make mistakes.”7 “Correct conscience,” the pope stated,
“is a question of objective truth,” rather than what a person “mistakenly, subjectively
considers to be true.” First, one’s commitment to the rule of law does not release
one from the obligation to form a correct conscience. If a state were to repeal
its laws against homicide, the government official who abetted the ensuing
homicidal regime could not be morally excused on the ground that the rule of
law required cooperation. In the Catholic tradition, a correctly formed conscience

7. Ioannes Paulus Pp. II, Litterae Encyclicae, Veritatis Splendor (Die 6 mensis aug.
anno 1993), 62; 85 AAS 1133–1228 (1993).
162 canon law

would oppose a grave moral wrong sanctioned by the state even when the grave
wrong was in accord with the rule of law.
Second, Germain Grisez has indicated that continuous interaction with
wrongdoing tends to dull the conscience to the gravity of evil.8 The initial
decision about cooperation in a given case might be well reasoned, but as the
cooperation continues, the cooperator tends to become what he or she does. The
more that one cooperates in evil, the more that one may discover a personally
diminished capacity both in terms of one’s ability to recognize the good and
to resist evil. The Mormon with a doctorate in Catholic theology might feel
compelled to remind the Catholic bishop that he incurs the responsibility to
inform the Catholic public official of the church teaching that the conscience
is unitary and indivisible. In the words of John Paul II: “there cannot be two
parallel lives . . . on the one had, the so-called ‘spiritual life,’ with its values and
demands; and on the other, the so-called ‘secular life,’ that is, life in a family, at
work, in social responsibilities, in the responsibilities of public life and culture.”9
In accord with Catholic teaching, a detached normative statement would hold
that the dignity of individual conscience does not abrogate one’s responsibility
to the common good in protecting innocent human life. Even if the bishop is
persuaded by the normative statements of the rabbi on political autonomy, imam
on cooperation in evil, and Mormon on individual conscience, the bishop might
remain concerned about the effect of a doubtful law.

D. Doubtful Law
The lack of agreement among the U.S. bishops about the correct approach to
Canon 915 may cause public doubt about the law. Such doubt further supports
the indeterminacy claim. William Cardinal Keeler, another member of the bishops’
task force, commented: “We are not yet united on how best to address these
matters—locally or nationally, formally or informally, . . . There is no consensus
on how the doctrinal note applies to particular issues.”10 The public lack of agree-
ment among the U.S. bishops could convey the impression that canon law on
the question of the refusal of Holy Communion as required by Canon 915 is in
doubt. Given the present confusion, a Catholic political official could conclude

8. See Germain Grisez, 3 Difficult Moral Questions 880 (Franciscan Press 1997).
9. Ioannes Paulus Pp. II, Adhoratio Apostolica, Chistifideles laici (Die 30 mensis
decembris anno1988), 59; 42 AAS 81 (1989).
10. William Cardinal Keeler, Summary of Consultations, 34 Origins 106 (July 1, 2004).
Keeler’s reference to “doctrinal note” refers to the Doctrinal Note on Some Questions
Regarding the Participation of Catholics in Political Life, mentioned above and which was
promulgated by the Congregation for the Doctrine of the Faith with the approval of Pope
John Paul II on November 24, 2002. It is not clear whether Cardinal Keeler’s statement
was made with an awareness of the Six Principles communicated privately to the United
States bishops by the Congregation for the Doctrine of the Faith.
 the indeterminacy claim continued 163

that he or she is not bound by a law upon which the bishops themselves are
unable to agree. This is especially the case in a diocese where the bishop has
expressed public reluctance, or refusal, to apply Canon 915. The understandable
confusion on the part of Catholic public officials and other laypersons does not,
however, excuse the bishops from exercising the responsibility to interpret and
apply canon law in a clear manner. The episcopal responsibility requires an
appreciation of the rule of law in the life of the church. It is an elementary aspect
of the rule of law that in order for a law to be effective, it must be promulgated,
clear, and enforceable. A proponent of legal positivism might observe that
if doubt about the law results, not from the law itself, but from the bishop’s
reluctance to interpret it correctly, then the reticence contravenes the rule of law
in the church. However, any rabbi, imam, Mormon, or legal positivist could
reasonably ask the bishop if doubtful law gives rise to the related issue that a
specific enforcement of doubtful law might appear to be arbitrary.

II. undue interference in the political process through an

arbitrary application of law

The application of Canon 915 to Catholic public officials presents a sensitive case
since it occurs in an ecclesial context in which the general disciplinary rules for
worthy reception of Holy Communion have not been uniformly enforced.
During the years prior to Vatican II, the standard practice was that any number
of people at Sunday Mass did not approach the altar to receive Holy Communion.
Some of these individuals had undoubtedly not observed the mandatory hours of
preparatory fast; others may have been in so-called bad marriages; and still others
carried some sense of serious sin. The ecclesiastical law that prevented reception
of Holy Communion in such cases was clear and well known to Roman Catholics.
In the United States, the situation changed in the years following Vatican II.
Church discipline on the worthy reception of Holy Communion seemed to be
rarely, if ever, mentioned or enforced. The general rule remains that in order to
receive the Eucharist worthily one must observe the mandatory fast (at present
one hour in the Latin Church), be properly disposed, and not be in the state of
mortal sin.11
Our detached observers might offer two normative observations. First, when
a bishop enforces Canon 915, it is well within his ecclesiastical responsibility,
and the enforcement per se does not constitute interference in the political
process. Rather, the enforcement is intended to bring order to the eucharistic
assembly, and it is not intended as a breach of proper church-state relations.

11. To be properly disposed, the person should not be conscious of grave sin and must
abstain from food and drink, except water and medicine, for at least one hour prior to
reception of Holy Communion. See Canons 916 and 919, § 1, CIC-1983.
164 canon law

Second, given the general lack of notice and enforcement with regard to the
requirements for the worthy reception of Holy Communion over the last several
decades in the United States, the sudden application of Canon 915 to a Catholic
political official might create the overall impression of an arbitrary application of
the law. It was unfortunate that discussion about the application of Canon 915
coincided with the 2004 presidential election. In such circumstances, the
application of Canon 915 could create the impression that a particular candidate
or political party has been singled out in order to influence a specific political
contest. In the 2004 presidential campaign, the Democratic nominee, Senator
John Kerry, a Roman Catholic, had a well-established pro-choice stand. In fact,
consistent with past practice, the National Democratic Party had a pro-choice
plank in its platform, and in reality, it would have been difficult to secure the
Democratic nomination for the presidency without publicly embracing the
pro-choice position.
The refusal of Holy Communion to a particular candidate for office, especially
one involved in a heated and close election campaign, might be viewed as an
impermissible interference in politics on the part of church leaders who wish to
influence the outcome of the election. The detached observer might note that
canon law was never intended as a means to influence the outcome of any
election to the government of the state. A correct enforcement of Canon 915
would, of course, not be limited to a particular political party or candidate.
According to the detached observer, if Canon 915 is going to be applied to public
officials, it needs to be applied to any candidate, regardless of party affiliation,
who professes Catholic faith and at the same time obstinately persists in mani-
fest grave sin. When Canon 915 has not been enforced for decades, its application
to a political official coinciding with an electoral campaign obviously undermines
confidence in canon law as an objective means of promoting peace, justice, and
the common good. At the same time, the bishop is required to enforce the law
without regard to political considerations even if it might be politically costly.

III. political and financial threats to the church’s social

teaching and charitable works

An argument may be advanced that the refusal of Holy Communion to public

officials could have an overall detrimental effect with regard to issues of social
justice. This objection to the enforcement of Canon 915 goes something like the
following. The positions of pro-choice public officials are often closer to the
teaching of the Catholic Church on other issues of social justice than those of
pro-life social conservatives. No matter what action the church takes, it is
observed that the legal situation in the United States with regard to the legality
of abortion on demand is not likely to change. While it would not alter the legality
of abortion in the United States, the enforcement of Canon 915 might alienate
 the indeterminacy claim continued 165

socially progressive public officials from the church jeopardizing political and
financial cooperation from valuable allies in advancing other important aspects
of the Catholic social justice and charitable works.
The argument just described possesses a functional and pragmatic validity.
However, from the perspective of Catholic moral theology, a question may be
raised as to whether the objection constitutes a “proportionalist argument”
which exhibits “an inadequate understanding of the object of moral action.”12 As
described in the first part of this chapter, the relevant provision of Canon 915
serves to advance at least four goals related to individual and communal good. In
light of the canon’s goals, negative political and financial possibilities must be
balanced against other aspects of the good such as the rule of law itself and the
right order of the ecclesiastical community.

IV. sacramental theology

Some bishops declined to apply Canon 915 to public officials on the ground that
such an action is inconsistent with the sacramental nature of the Eucharist.
According to this internal perspective, the church’s eucharistic theology conflicts
with Canon 915 rendering its meaning indeterminate. Theologically, the
Eucharist constitutes the “source and summit of Catholic faith.”13 When a
Catholic in the state of grace receives Holy Communion, the church believes that
he or she partakes of the Body and Blood of Christ, and becomes one with the
Mystical Body of Christ.14 Saint Augustine described the Eucharist as the signum
unitatis (sign of unity) and vinculum caritatis (bond of charity).15 The first aspect
of the theological objection is that the application of Canon 915 to political
officials disrupts the unity of the Eucharist. Bishop John Kinney, for example,
argued that the application of Canon 915 “politicizes the Eucharist” and allows
“Holy Communion to be used as a weapon in ongoing ideological battles.”16 As
a detached normative statement, the theological objection rightly indicates that
it would be wrong to introduce ideological considerations into the celebration of
the Eucharist. The second aspect of the theological objection is that the applica-
tion of Canon 915 offends the charity of the Eucharist. According to the Council
of Trent, the Eucharist serves “as an antidote to free us from daily faults and
preserve us from mortal sin.”17 This aspect of the theological objection rests on

12. Veritatis splendor, 75.

13. Lumen Gentium, 11; Canon 897, CIC-1983.
14. See Catechism of the Catholic Church 1391–1397 (2nd ed. Liberia Editrice
Vaticana 1997).
15. See Augustine of Hippo, In Ioannis Evangelium Tractatus XXVI, 26, 13; 35 PL 1613.
16. Bishop John Kinney, May 27, 2004 Statement, in 34 Origins 193 (Sept. 2, 2004).
17. Council of Trent, Session 13, Chap. 2 (Oct. 11, 1551), in 2 Tanner 693.
166 canon law

the view that it is inconsistent with divine charity to withhold the source of
healing grace from one who humbly approached the altar in need of that grace.
The third aspect of the theological objection is that the application of Canon 915
fosters moral perfectionism. This aspect of the objection suggests that it is
hypocritical to bar a public grave sinner from the Eucharist as in reality all are
sinners. The central mission of the church, the objection observes, is to proclaim
redemption from sin through Word and Sacrament. Canonical discipline should
be neither Donatist nor Jansenist in establishing standards of moral perfection
for the worthy reception of Holy Communion.
Does the theological objection make the application of Canon 915 a doubtful
case? A detached observer with expertise in the Catholic tradition, even an
atheist, might respond that, in framing Canon 915, the legislator has fully con-
sidered the sacredness of the sacrament and its ecclesiological implications.
Apart from the authority Canon 915 carries as a valid law, the detached atheist
might add that solid theological reasons underpin this aspect of church disci-
pline. First, as the sign of Catholic unity, the Eucharist means that all those who
approach it remain in full communion with the teaching and governing author-
ity of the church. The application of Canon 915 is not based on ideological or
political grounds. Rather, the application is based upon verifiable outward
conduct that contravenes the truth as defined by the church. Second, as the bond
of charity, the Eucharist requires that one who is a member of the Body of Christ
must be committed to protecting the sacredness of human life of the innocent
and powerless. As the church understands it, there is perhaps no greater example
of the poor and powerless in contemporary society than the unborn child. The
application of Canon 915 is not intended to be mean spirited. In framing Canon
915, the legislator has concluded that pastoral charity sometimes requires firm
action. Third, the legislator does not intend the application of Canon 915 to
support a hypocritical moral perfectionism. As indicated in the first part of this
chapter, Canon 915 applies to publicly manifest sin which continues even after
pastoral admonition of the sinner. Precisely because such sin disrupts the unity
and offends the charity of the Eucharist, the church has found it necessary to
distinguish it from occult sin, which of its very nature is not known publicly. The
canonical discipline remains that anyone with serious sin should not receive the
Eucharist prior to sacramental confession.
Aware of the theological considerations and the history of the church’s disci-
pline, the detached atheist notes that the legislative authority has nonetheless
chosen to promulgate the relevant provision of Canon 915. In affording an inter-
pretation of Canon 915, the Congregation for the Doctrine of the Faith has
affirmed its application to public officials who obstinately maintain positions
in favor of abortion and/or euthanasia. It always remains possible for a bishop
who objects to a particular canonical provision to voice his opposition to the
 the indeterminacy claim continued 167

Holy See.18 However, the rule of law requires that until the legislation or its
official interpretation is changed by the proper authority, Canon 915 be correctly
interpreted by the bishops. From the detached normative point of view, the
atheist would correctly observe that the legislator believes Canon 915 to be in
harmony with sacramental theology. If a bishop objects to the plain meaning of
the canon, he should seek to change the canon through the process afforded in
canon law.

V. other provisions of canon law

Two additional canonical provisions might be considered to augment the hard

case approach to the application of Canon 915. These are: (1) the right to receive
the sacraments, and (2) the autonomy of the diocesan bishop.

A. The Right to Receive the Sacraments

Book 2 of the 1983 Code of Canon Law contains the lex ecclesiae fundamentalis
(fundamental law of the church), which is a codification of certain fundamental
rights enjoyed by all the members of the church. Canon 213 expressly recognizes
the right (ius) of the faithful to receive the sacraments. Canon 912 reflects this
fundamental right when it declares that: “Any baptized person who is not forbidden
by law may and must be admitted to Holy Communion.” Some bishops have
implied that Canon 912 overrides the requirements of Canon 915.19 A detached
observer with some legal expertise in the interpretation of statutes might point
out that such a conclusion demonstrates a lack of proper interpretation. None of
the rights that are expressed in the lex ecclesiae fundamentalis are absolute in
nature so that they simply abrogate another provision of the universal law of the
church. The placement of Canon 915 in close proximity to the right stipulated in
Canon 912 is evidence that the legislator intended the fundamental right to
receive Holy Communion to be respected unless one of the conditions recog-
nized in Canon 915 was present. If Canon 912 were interpreted to confer an
absolute right to receive Holy Communion, it would negate all other conditions
and restrictions on the reception of Holy Communion. Such a conclusion is not
only contrary to the present Code of Canon Law, it also contradicts the sacramental
tradition of the church, which has always recognized valid conditions and
restrictions on the reception of the sacraments.

18. There are a variety of methods through which a bishop might voice his objection,
such as through the nation conference of bishops, the papal nuncio, and/or directly to the
appropriate dicastery of the Roman Curia.
19. See Archbishop William J. Levada, Reflections on Catholics in Political Life and the
Reception of Holy Communion, 34 Origins 104 (July 1, 2004); Bishop Denis Schnurr,
Catholics and Political Life, 34 Origins 187 (Sept. 2, 2004).
168 canon law

B. The Autonomy of Diocesan Bishop

Consistent with the theology of communio described in Chapter 1, each bishop is
a member of the college of bishops, with the pope at its head. The diocesan
bishop is not a mere administrative functionary who carries out Vatican policy.
Rather, he is the head of his own church, which according to ancient theology
contains everything within it that is necessary for salvation. It is clear from the
brief statement issued by the bishops’ task force that the U.S. bishops were
concerned that their rightful autonomy in governing the diocese not be usurped
by a general policy with regard to Canon 915. The bishop must, of course,
consider the overall effect of the enforcement of Canon 915 within his specific
diocese and in a given case.
A poignant example was obviously presented by the situation of Senator Kerry
who resided in Boston and therefore had a canonical domicile within the
Archdiocese of Boston. It seems evident that there was sufficient public informa-
tion to cause the Archbishop of Boston to begin to ask whether Canon 915
applied. This was true not just in the Archdiocese of Boston, but in any diocese
in which Kerry might approach the altar to receive Holy Communion. As far as
I am aware, Cardinal Sean O’Malley of Boston did not exclude Senator Kerry
from Holy Communion. In defense of O’Malley, a detached observer might
suggest that it was not in the best interest of the church in Boston to take action
against Senator Kerry or other politicians at this time. Boston was at the epicenter
of the shock waves that hit the Catholic Church in the United States as a result
of the clergy sexual abuse crisis. As a result, a detached observer could have
legitimately determined that in those circumstances the enforcement of Canon
915 might have had a more detrimental than good effect. It would not be
unreasonable to determine that the enforcement might disrupt the process of
healing that the church in Boston needs. This prudent course of action, of course,
would not permanently abrogate the need for enforcement of Canon 915. The
autonomy of the diocesan bishop to consider the overall effect of enforcement of
a positive law remains an aspect of the system of canon law. In order for the
system of canon law to function properly, the bishop should not exercise his
discretion in such a way that it damages the rule of law.

VI. antinomianism and legalism

Up to this point in Chapters 6 and 7, I have examined the indeterminacy claim

in light of the clear and hard case positions among the bishops responsible for
the enforcement of Canon 915. The clear and hard case positions represent
a possible internal perspective of the bishop participants. In this section of
Chapter 7 I describe antinomian and legalistic perspectives and argue for their
invalidity as approaches to Canon 915.
 the indeterminacy claim continued 169

A. Antinomianism
A possible internal perspective of a bishop with regard to the application of
Canon 915 would be to defer completely to the individual conscience of a Catholic
public official. Vatican II affirmed the long-standing teaching of the Catholic
tradition when it affirmed the dignity of individual conscience.20 A member of
the bishops’ task force that considered the application of Canon 915, Archbishop
William Levada, then of San Francisco, soon to succeed Cardinal Joseph
Ratzinger as the Prefect for the CDF, stated: “The practice of the Church is to
accept the conscientious self-appraisal of each person.”21 In Number 37 of
the Encyclical Ecclesia de Eucharistia, John Paul II drew a distinction between the
conscience and the outward conduct that falls within the parameters of the
relevant provision of Canon 915:
The judgment of one’s state of grace obviously belongs only to the person
involved, since it is a question of examining one’s conscience. However, in
cases of outward conduct which is seriously, clearly and steadfastly contrary
to the moral norm, the Church, in her pastoral concern for the good order of
the community and out of respect for the sacrament, cannot fail to feel directly
involved. The Code of Canon Law refers to this situation of a manifest lack of
proper moral disposition when it states that those who “obstinately persist in
manifest grave sin” are not to be admitted to Eucharistic communion.22
If it were true that deference to a politician’s conscience prohibited a bishop
from refusing Holy Communion, the relevant provision of Canon 915 (“and
others who obstinately persist in manifestly grave sin are not to be admitted
to Holy Communion”) would be rendered meaningless. In the absence of the
penalties of excommunication or interdict, one could not prevent the grave and
obstinate sinner from receiving the Eucharist. It is a fundamental principle of
statutory interpretation that legislation is not intended to be meaningless. To the
contrary, John Paul II’s interpretation as contained in Number 37 of Ecclesia de
Eucharistia, reveals that the supreme legislator in the Catholic Church intended
the words of Canon 915 to enjoy full force. Number 37 interprets the relevant
provision of Canon 915 to pertain to public and open conduct on the part of
Catholic political officials who are not excommunicated or under interdict, a
rightful deference to individual conscience notwithstanding. Complete deference
to individual conscience would amount to an antinomian rejection of the law.
Such antinomianism does not constitute a valid internal perspective for a bishop
who incurs the responsibility to interpret and apply the law.

20. See Sacrosanctum Concilium Oecumenicum Vaticanum II. Declaratio De Libertate

Religiosa, Dignitatis Humane (Die 7 mensis decembris anno 1965), 3, 2; 58 AAS 931 (1966).
21. Levada, Reflections on Catholics in Political Life and the Reception of Holy Communion, 104.
22. Ioannes Paulus Pp. II, Litterae Encyclicae, Ecclesia de Eucharistia (Die 17 mensis
aprile anno 2003), 37; 95 AAS 433–75 (2003).
170 canon law

B. Legalism
As seen in previous chapters, antinomian and legalistic approaches to canon law
often coincide. Abrogation of Canon 915 in deference to individual conscience
could result in a legalistic approach to the church’s traditional distinction
between the internal and external fora. The internal forum pertains to matters
of conscience, and it involves confidentiality in both sacramental and nonsacra-
mental communications. In contrast, the external forum signifies all information
which is public and verifiable. Public communications, votes, and other actions
through which a political official advocates a pro-abortion and/or pro-euthanasia
stance fall within the parameters of the external forum. A possible perspective of
a bishop would be to approach the application of Canon 915 in a legalistic way
suggesting it is wholly a matter of the internal forum. Such a perspective would
argue that as a matter belonging to the internal forum the application of Canon
915 remains private and not subject to public enforcement. When something is
revealed in the internal forum, it does not mean that this information has now
been eradicated from the external forum. For example, one could imagine a situa-
tion in which a pro-choice politician made a sacramental confession regarding
material cooperation in a statute that liberalized abortion. The confession would
enjoy internal forum protection. However, this would not change the fact that
the same politician had publicly spoken or acted in favor of abortion in the
external forum.
The requirement of Canon 915 pertains to publicly manifest speech and
action on the part of public officials who are baptized Catholics. It has nothing to
do with the internal forum. Nor does it in anyway offend the confidentiality
afforded the internal forum. In other words, the grave sin committed by a
Catholic political official who publicly and obstinately continues to favor law,
regulation, or funding in support of abortion or euthanasia remains a matter of
the external forum, whether or not the official has resorted to the internal forum.
Theologically, reception of the Eucharist is not a matter of purely personal choice
based on subjective preference. Rather, the church believes that reception of the
Eucharist is of its essence a communal act in which the believer is united to the
Mystical Body of Christ. To sever the unity of this eucharistic theology from
Canon 915 as a result of confusing the external and internal represents a legalis-
tic approach to the issue. Legalism would also taint the decision of a bishop who
fails to enter into dialogue with the Catholic public official and/or fails to take
into account the specific circumstances of the case. Legalism remains contrary to
the spirit of canon law and would not represent a valid internal perspective on
the part of a bishop.
The clear and hard case approaches can each claim to be valid internal per-
spective to the application of Canon 915. Each of the approaches finds support in
theological and canonical reason. Alternatively, bishops might approach the
application of Canon 915 from antinomian and legalistic perspectives which
I have argued remain inconsistent with the nature and function of canon law.
 the indeterminacy claim continued 171

The arguments in favor of the hard case approach situate the application of
Canon 915 within the penumbra of doubt suggesting that the meaning of the
canon is indeterminate. As it places the application of Canon 915 within the
penumbra of doubt, the hard case approach serves as an example of indetermi-
nacy in canon law. The hard case approach should be evaluated with regard to its
long term impact on the rule of law in the Church. Detached normative state-
ments based on traditional Catholic teaching call into question the correctness of
the hard case approach. To the extent that it causes injury to the rule of law, the
hard case approach is contrary to the peace, order, and justice of the ecclesiastical
community.
This page intentionally left blank
8. concluding observations
Antinomianism, Legalism, and the Rule of Law

In this final chapter, I offer a conclusive synthesis of the study. The first part of
the chapter identifies the natural and supernatural ends of canon law. The second
part of the chapter summarizes the examples of clergy sexual abuse, the owner-
ship of church property, and the application of Canon 915. Based upon the three
examples, I present some general conclusions about antinomianism and legalism.
The third part offers observations about canon law from the comparative
perspective. In this third part, I return to the three basic questions posed in the
Introduction about the nature of law, a legal system, and the rule of law. While
primarily descriptive, the chapter also serves a prescriptive function. The com-
parison with Anglo-American legal theory not only clarifies the nature of canon
law, but also suggests ways in which the system of canon law might more
effectively fulfill the requirements of the rule of law. As canon law is the home
system of the comparative study, the purpose of this book has not been to offer an
exhaustive description or critique of Anglo-American legal theory. However, the
comparison with the home system inevitably entails some level of descriptive and
critical reciprocity. In these concluding observations, I shall try to avoid undue
repetition, although some repetition is necessary for the synthetic summary.1

I. the natural and supernatural ends of canon law

Throughout this study, I have suggested that canon law advances natural and
supernatural ends. On the natural level, canon law traces its origin to the interac-
tion between individual and community. Fundamental justice requires that the
community develop rules which are fair, understandable, and applied evenly.
This basic justification of law intensifies as communities develop in sophistication.
Canon law respects the dignity of the human person by protecting individual
rights, while at the same time advancing the common good. It deals with the
coordination of resources, interests, and rights in a just manner. It sets the condi-
tions in which the human person may find a sense of participation, membership,

1. In this concluding chapter, when I simply summarize the material of the previous
seven chapters, I shall keep footnotes to a minimum. I shall of course provide notes for
any new material, direct quotations, and attributions.
174 canon law

and solidarity in the community.2 By maintaining continuity with the past, the
tradition of canon law offers security in the present and hope for the future.3
Canon law represents an attempt to integrate these natural ends of the rule of law
with supernatural ones. As a corpus of religious law, canon law may be under-
stood as “an order derived from the theological notion of communio.”4 Canon law
assists the Christian faithful to deepen their baptismal identity through participa-
tion in what transcends the self. It facilitates membership and participation in
the church as the Mystical Body of Christ. Its supreme law is the salvation of
souls.5 It aims to set the conditions in the here and now, which point to the ultimate
end of the human person, eternal happiness with God. Through fidelity to its
inner meaning, canon law serves a symbolic function that communicates the
supernatural destiny of the human person.
The measure of canon law is the extent to which it advances these natural and
supernatural ends. Canon law is indispensable to achieving the natural ends,
and it is helpful in facilitating the supernatural ends. Grace builds upon and
perfects, rather than replaces, nature. When it fulfills its natural ends, the rule of
law assists in setting those conditions in the church which favor the supernatural
ends. I do not mean to conflate canon law with either its natural or supernatural
ends. Canon law is a developed legal system, and it would be reductionistic to
equate the legal system with its ends. Nor do I mean to suggest that canon law is
merely a means to the natural and supernatural ends. As I shall suggest in the
second part of this chapter, the authority of canon law to bind individuals depends
in part on the believer’s insight that the rule of law is a good in itself. My point
here is that a consideration of the natural and supernatural ends demonstrates
the importance of the rule of law and the danger raised by threats to it.
During the long course of its historical development, canon law has sometimes
encountered resistance from antinomianism and legalism in fulfilling its natural
and supernatural ends. As I discussed in Chapter 1, canon law confronts the
antinomian objection that the early church was a spiritual rather than juridical
reality. This objection fails to account for the numerous sacramental and juridical
characteristics that are evident in sacred scripture and the historical develop-
ment of the early church. The Christian experience from its origins was not

2. See Karol Wojtyla, Participation or Alienation?, in Person and Community, Selected

Essays 181–207 (Theresa Sandok, O.S.M. trans., Peter Lang 1993).
3. See Avery Dulles, Models of the Church, A Critical Assessment of the
Church in All Its Aspects 39 (Doubleday 1974). See also Joseph Ratzinger, Principles
of Catholic Theology, Building Stones for a Fundamental Theology 86–87
(Ignatius Press 1987), which discusses the link between person, memory, community,
and tradition.
4. Eugenio Corecco, The Theology of Canon Law: A Methodological Question
147 (Francesco Turvasi trans., Duquesne University Press 1992).
5. See Canon 1752, CIC-1983.
 concluding observations 175

merely spiritual but necessarily entailed ecclesiological and juridical factors.

Antinomianism undervalues the function of the natural ends in facilitating the
supernatural ends of canon law. As mentioned in the Introduction, the various
forms of legalism discount the supernatural ends that canon law is designed
to facilitate. In its bureaucratic form, legalism insists that the letter of the law
predominate over the ends. Another form of legalism involves the abuse of
reason through a sophistry that obscures canon law’s supernatural ends. A third
form of legalism disrespects free will through an authoritarian imposition of
canon law. While Saint Paul and the early Christians believed that the law has no
power to save, they also understood the need for a basic order in the Christian
community.

II. the three examples of antinomianism and legalism

In the previous chapters of this book, I have examined the sexual abuse crisis, the
ownership of ecclesiastical property, and the application of Canon 915 to Catholic
public officials as contemporary examples of antinomian and legalistic approaches
to canon law. Although the examples are drawn from the experience of the
Catholic Church in the United States, they offer insight into the long-standing
theoretical and practical difficulties that these approaches pose to canon law.

A. Clergy Sexual Abuse

Chapters 2 and 3 explored the ways in which the antinomian and legalistic
approaches of ecclesiastical authorities to the sexual abuse of minors in the
United States resulted in injury to individuals and the common good.
Antinomianism was evident in ignoring the canonical provisions designed to
address a case of the sexual abuse of a minor by a priest. Although problems
resulting from the statute of limitations and imputability may have impeded the
prosecution of canonical action in certain cases, a priest who was guilty of serial
child abuse likely could have been prosecuted. The prosecution might have
prevented further abuse. At the least, it would have communicated that church
authorities were intent to protect individuals and the common good. The image
of the priest pedophile that was at the center of the 2002 crisis in the United
States, and subsequently spread internationally, was constructed on the basis of
the reality of priests who were serial abusers. The proper use of canon law would
have conveyed to the public at large that there was no room in the Catholic priest-
hood for such criminals, and it may have tempered the social construction of
reality that has become the sexual abuse crisis. I have not argued that the phe-
nomena of clergy sexual abuse may be explained by antinomianism. Rather, my
point is that antinomianism assists in explaining the failure of church authorities
to rely on canon law in order to address the phenomena.
176 canon law

Not only did the failure to employ the canonical provisions in such cases
damage the natural ends of canon law in protecting individuals and the common
good, it also had theological consequences that injured the supernatural ends of
canon law. It called into question the witness of clerical celibacy as a sacrifice in
testimony to faith in Christ and love for his church. It disrupted the careful bal-
ance in the church’s penal order between medicinal sanctions and the rare expi-
atory penalty such as permanent dismissal from the clerical state that reflects the
relationship between canon law and the theology of forgiveness. It confused the
ancient distinction between the internal and external fora, and the function of
the distinction in facilitating the forgiveness of sin while maintaining individual
dignity. It diminished the canonical recognition of the priesthood as a perma-
nent state of life in the church that results from the reception of Holy Orders.
Given the nineteenth-century history of canon law in the United States, it was
perhaps no surprise that the antinomianism of the sexual abuse crisis was met
with legalism on the part of church authorities. When antinomian neglect of the
proper role of law yields disorder, the response is sometimes a bureaucratic form
of legalism. It focuses on rules rather than the justice that underlies the rules.
The legalistic reaction of the U.S. bishops to the 2002 sexual abuse crisis raised
doubt about the bishops’ adherence to fundamental principles of natural justice
such as innocent until proven guilty and the right to a fair procedure. The legalis-
tic approach to canon law results in an environment of suspicion and doubt
about fundamental justice in the public order of the church. For decades, the
antinomian approach to cases of sexual abuse meant that canon law failed to
protect the rights of the victim to be heard, receive justice for past injury, and
prevent future harm. With canon law thus discredited, it became difficult to rely
on it to protect the rights of an accused priest in the aftermath of the 2002 crisis.
Legalism in response to antinomianism only further diminishes the function of
canon law in fulfilling its natural and supernatural ends. Antinomianism and
legalism with regard to cases of clergy sexual abuse of minors belied the unity of
law and theology that is supposed to characterize the rule of law in the Catholic
Church.

B. Church Property
As discussed in Chapters 4 and 5, the example of the ownership of church prop-
erty also illustrates that antinomianism and legalism disrupt the unity of law and
theology. Antinomianism diminishes the importance of canon law in safeguard-
ing the ownership of property when it suggests that the church is only a spiritual
reality. According to Thomas Aquinas, private property serves to avoid contentious
disputes, affords an incentive to work, and ensures that goods receive proper
care from their owners. In Thomistic theory, private property is a qualified and
not absolute right. It is held in readiness for the community in a way that respects
the requirements of distributive justice. Antinomianism fails to recognize that
these natural justifications and qualifications of private property are just as
 concluding observations 177

applicable to the ecclesiastical community as to any other. Legalism tends to

deny the theological elements that govern the church’s ownership of property.
Ecclesiastical property also serves supernatural ends, which canon law is
designed to safeguard. The right of private property enhances the mission of the
church to worship, teach, and engage in charitable services. Its supernatural
dimension is further evident in light of the evangelical precepts of apostolic poverty
and common ownership. While antinomianism reduces the church to a spiritual
reality with no need for rules to protect the right to private property, legalism
reduces the church to a merely temporal entity in which private property is
acquired, owned, used, and sold with indifference to the supernatural community
whose mission is the salvation of souls.
The controversy in the United States over the ownership of parish property
exhibits antinomian and legalistic elements. During the nineteenth century, the
U.S. bishops struggled for state recognition of the Catholic Church’s right to
hold its property in accord with the hierarchical structure of the church rather
than in the then dominant congregational form. Eventually, the success of the
bishops’ efforts led to several different ways in which state law might respect the
right of the church as a religious entity to hold and govern its property in accord
with canon law. Given the arduous nineteenth-century struggle of the Catholic
Church in the United States, it seems ironic that at the start of the twenty-first
century, some ecclesiastical authorities seemed to suggest that parish property
in the Catholic Church is held according to a congregational rather than hierar-
chical form of government. As mentioned in Chapter 5, the abrogation of the
principle of hierarchy in favor of congregationalism disrupts the harmony
between the dominium and imperium in the canonical design for the ownership
of church property.
On the basis of Canons 1266 and 515 § 3 of the CIC-1983, the parish is a
juridic person, and it may own its own property (dominium). These canons might
be interpreted in isolation from other canonical provisions that recognize the
function of hierarchical authority in regulating parish property (imperium). In
particular, these two canons might be interpreted in isolation from other relevant
canons that establish the hierarchical relation between the diocesan bishop and
priest who serves as pastor of the parish. Moreover, this underinclusive interpreta-
tion of canon law overlooks the theological provisions about the parish as an
integral part of a diocese. This kind of narrow interpretation combines elements
of legalism and antinomianism. In neglecting the theological claim about the
divine origin of the hierarchical form of church governance, the narrow reading
represents legalism. At the same time, in failing to account for the legal structure
by which canon law entrusts hierarchical authority with the regulation of eccle-
siastical property, the narrow interpretation represents antinomianism. The
interpretation’s combination of legalism and antinomianism distorts the canoni-
cal vision for ecclesiastical property. By denying the principle of hierarchy, the
interpretation transposes the absolute ownership of private property characteristic
178 canon law

of pristine liberal political theory onto the canonical vision. This transposition
displaces the unity of law and theology that recognizes a right to private property
qualified by theological concerns about mission, distributive justice, the church’s
hierarchical nature, and the Gospel ideals of apostolic poverty and common
ownership.
In addition to parish property, antinomianism and legalism influence the
ownership of church property such as that associated with educational institu-
tions, health care providers, and other charitable organizations. Canon law recog-
nizes the importance of the civil law of the state in regulating church property.
However, the incorporation of church property under the laws of the state was
never intended to result in the secularization of the church property. Church
property is “secularized” either when it is no longer directed by the juridic person
that owns the property according to canon law, or when the property ceases to
serve some purpose that furthers the mission of the church. During the second
half of the twentieth century, church property in the United States was in fact
secularized. Typically, the secularization occurred when control and sometimes
title of property that was originally owned by a religious community or other
church entity was transferred to a so-called “lay board of trustees.” If transfer of
title to church property occurs pursuant to the civil law, canon law requires that
the juridic person selling the property follow the rules for the valid alienation
of property. If the transfer of church property occurs in accord with the civil
law without a valid alienation of the church property in canon law, the result is a
de facto alienation of the property but an invalid de iure alienation. Ignoring the
requirements of canon law for the valid alienation of church property reflects an
antinomian approach to canon law.
The direction of church property that defiles the theological character and
aims of the property is a form of legalism. In canon law, it is ultimately of little
difference whether church property is under the direction of a diocese, a religious
community, or laypersons. Laypersons who have received proper ecclesiastical
approval have just as much right and responsibility as a diocese or religious
community to own and direct property in order to exercise some apostolic function
in the church. The transfer of a Catholic institution to the control of a board of
directors, even one composed entirely of laypersons, does not necessarily mean
that the institution has lost its Catholic mission or that its property no longer
exists to serve that mission. In light of the fact that state law is willing to permit
the church to hold and control its property in accord with its hierarchical form of
governance, Catholic hierarchy, religious communities, and laypersons should
rely upon the relevant provisions of state law in order to safeguard the theological
character of ecclesiastical property. Merely following state law, while forsaking
the canonical provisions for the regulation of church property, runs the risk that
church property will cease to be used in a way that facilitates some aspect of the
church’s mission to engage in spiritual and corporal works of mercy. It further
 concluding observations 179

jeopardizes the symbolic function of church property as an institutional witness

to the sacred in the secular order.

C. Canon 915
In Chapters 5 and 6, I examined antinomian and legalistic approaches to the
application of Canon 915 to Catholic public officials. Relying on the legal theory
of H. L. A. Hart, I presented arguments that support the clear case interpretation
of Canon 915. The words of the applicable provision of Canon 915 seem clear in
their plain meaning. In its historical development, the canon enjoys a long pedi-
gree. The canon fulfills the requirements of the rule of recognition as it has been
promulgated by the authority of the pope as part of the universal law of the
Catholic Church. The lawmaker has promulgated Canon 915 for valid reasons
relating to the order of the Eucharist, the avoidance of scandal, the protection of
fundamental moral principles such as the sacredness of human life, and the
salvation of souls. However, many bishops concluded that the interpretation of
Canon 915 constitutes a more difficult case. Again, relying on Hart’s theory, I
offered analysis of the hard case approach. This internal point of view is based
upon concerns about the political autonomy of a Catholic public official, respect
for individual conscience, interference by the church in the political process,
threats to other aspects of the church’s moral and social teachings, and the right
to receive the sacraments. Disagreement about the correct application of Canon
915 bolsters the indeterminacy claim about canon law. It suggests that the mean-
ing of canon law is often unclear, open to various interpretations, and therefore
highly subjective in nature. This kind of indeterminacy tends to have a negative
impact on the rule of law.
The disagreement among the bishops also exhibits the characteristics of anti-
nomianism and legalism in canon law. On the one hand, the clear case interpreta-
tion to the application of Canon 915 risks the pitfall of legalism. It would be
sheer legalism to apply the canon without a full consideration of all the facts of
the specific case. Such a legalistic application would not serve the legislative
intent that underpins Canon 915. This kind of legalism risks fostering disrespect
for the law. A lack of respect for the canonical provision would lead many to
disregard it, and thus add to the impression of the indeterminate nature of canon
law. On the other hand, the difficult case approach to Canon 915 leads to the
antinomianism that sustains the indeterminacy charge. It would be sheer anti-
nomianism to conclude that Canon 915 is abrogated by deference to the individual
conscience of the person who approaches to receive the Eucharist. Likewise, the
determination that Canon 915 never applies to Catholic public officials who
persist in positions in opposition to the church’s fundamental moral teaching
reflects an antinomian approach to canon law. This approach completely ignores
the legislative intent of the canon. Even more than legalism, antinomianism
buttresses the argument in favor of the indeterminate nature of canon law.
180 canon law

It suggests that the meaning of the canon is so vague that its fair enforcement as
part of a coherent policy is impossible.

D. General Conclusions about Antinomianism and Legalism

On the basis of the historical and contemporary manifestations of antinomian-
ism and legalism, it is possible to draw several general conclusions. First, both
antinomianism and legalism diminish the ability of canon law to fulfill its natural
and supernatural ends. Antinomianism discounts the function of canon law in
establishing the natural conditions that respect the dignity of persons through
the protection of fundamental rights, that facilitate participation and solidarity in
community, that enable the just coordination of resources, and that advance the
common good. Legalism approaches canon law as a legal system separate from
its inner theological meaning. It overlooks the distinctive religious character of
the church as the community of faith formed around the Paschal Mystery of the
Lord, which serves as a sign of God’s presence in the world.
Second, although they are opposites, antinomianism and legalism often go
together, and there is a rule of reciprocity according to which one tends to
produce a reaction that leads to the other. The antinomian disregard for canon
law yields disorder in ecclesiastical community which can open the way for an
authoritarian and rigid legalism. Likewise, an overly strict regime of law can
result in an antinomian response that denies the legitimacy of the law. For these
same reasons, antinomian and legalistic approaches to canon law can coexist in
the same situation in which each approach is a misguided attempt to counterbalance
the other.
Third, it seems that the theological or spiritual essence of the church renders
canon law vulnerable to antinomianism. The theological and pastoral elements
of canon law do not inherently cause antinomianism. Neither theological nor
pastoral concern per se denies the validity of canon law. To the contrary, as Klaus
Mörsdorf and Eugenio Corecco have proposed, theology and its pastoral applications
remain essential to canon law. However, an excessive or exclusive focus on theo-
logical and pastoral elements can lead to the disordered understanding which is
antinomianism.
Fourth, when it is improperly understood, the exercise of authority in the
church can lead to legalism. Because authority in the church is claimed to be
derived from divine intention, the authority tends to elicit a high level of trust
from the believer. This sacred trust may be subject to abuse by the office holder
through a legalistic approach to canon law. The authoritarian form of legalism
results when the office holder acts in a manner that is inconsistent with the
example of Christ’s humble service. The casuistical form of legalism reflects a
skewed reasoning on the part of the office holder who interprets canon law in
a way that distorts its inner meaning and purpose. The bureaucratic form of
legalism occurs when the office holder overlooks the theological doctrines of the
 concluding observations 181

dignity of the individual person created in the image and likeness of God and of
the community that embodies the presence of Christ within it.
Finally, a balanced approach to canon law requires an integration of faith and
reason in ordering the church. The balanced approach realizes that while canon
law has no power on its own to achieve salvation, canon law remains necessary
to the order of the church. Canon law serves as a means for faith to flourish in
the lives of persons and communities in the church. Antinomianism dismisses
the canon law as a hindrance to the spiritual character of the church. It denies the
role of reason in setting a just order for the community. Legalism emphasizes
the role of law to such an extent that it denies the primacy of the spiritual and
theological. It favors a form of reason divorced from faith. While antinomianism
rejects canon law on the ground that it is incompatible with faith, legalism repu-
diates the attempt to integrate canon law and theology on the ground that it
detracts from the efficacy of the law. As I believe the contemporary examples of
the sexual abuse crisis, the ownership of church property, and the interpretation
of Canon 915 make clear, antinomianism and legalism jeopardize the function
of the rule of law in the Roman Catholic Church, resulting in great damage to
individuals and the faith community.

III . the rule of law: comparison of canon law with

anglo-american legal theory

At neuralgic points throughout this study, I have discussed aspects of Anglo-

American legal theory in order to afford a comparative perspective on the function
of canon law as the rule of law in the Catholic Church. Here, I return to three
basic questions posed at the outset of this book from the perspective of Anglo-
American legal theory. Does canon law count as law? Is canon law a system of
law? Does canon law represent the rule of law? As evident from the discussion
that follows, the basic questions are distinct but related. The comparative aspect
of this study suggests that despite the dangers posed to it by antinomianism and
legalism, canon law exhibits the essential characteristics of law, a developed legal
system, and the rule of law.

A. Does Canon Law Count as Law?

According to Thomas Aquinas’s well-known definition, law is “an ordinance of
reason for the common good, promulgated by him who has care of the
community”6 The identification of reason, the common good, legislative power,
and a receptive community are elements in the classical understanding of law
discussed in Chapter 1. The classical understanding holds that law possesses the

6. ST, I-II, 90, 4.

182 canon law

authority to bind at least in part because it is grounded in divine and natural law.
During the twentieth century, Anglo-American legal theorists, and the legal pos-
itivists in particular, directed attention to whether law’s authority enjoys autonomy
from moral rules. In light of this twentieth-century discussion, I ask: “Where
does the authority of canon law come from?”
1. Canon Law and Coercive Power In modern democracies, the law’s effective-
ness derives at least in part from the fact that an individual who breaks a particu-
lar law is subject to punishment by the coercive power of the state. The state
exercises the power to punish one found guilty of breaking the law by taking
away the person’s liberty, property, or even life itself. The coercive power of the
state may only be exercised in accord with the requirements of procedural due
process. F. A. Hayek posited a connection between the rule of law and the exercise
of the state’s coercive power. He suggested that law is to be “fixed and announced
beforehand” by the governing authority in order for the individual “to foresee
with fair certainty how the authority will use its coercive powers in given circum-
stances, and to plan one’s individual affairs on the basis of this knowledge.”7
According to this theory, enforcement of the law through the state’s coercive
power is essential to the rule of law. If individuals may decide to break laws
without consequence from the state, the overall peace, security, and common
good of society cannot be guaranteed.
In contrast to the law of modern democracy, adherence to a great deal of
canon law rests upon moral authority rather than any coercive power that church
authorities might exercise. It is true that canon law has a limited tradition of
penal sanctions. Some of the early church councils concluded canons with the
threatened sanction: Anathema sit. The CIC-1983 also contains provisions for
penal sanctions such as excommunication.8 Most of the canonical sanctions
provided for in the CIC-1983 are medicinal in nature. They are designed to bring
about a change of heart in the offender and to be lifted once the offender has
expressed true repentance. The penal sanctions in canon law are guided by the
theology that any sin can be forgiven, and that the salvation of souls remains the
supreme law of the church. However, the expiatory sanction of permanent
removal from the clerical state of a priest who has been found guilty of sexually
abusing a minor is a rare permanent penalty. Like any other human being, the
guilty priest may be forgiven his sin, but the imposition of the sanction means
that he may not exercise his office. The sanction is a legal recognition that an act
of sexual abuse offends the dignity of the victim, constitutes a grave offense
against the natural and divine prohibitions of such acts, and damages the
common good. With the exception of the limited number of remedial and expiatory
penal sanctions, compliance with canon law is largely voluntary, and coercive

7. Friedrich A. Hayek, The Road to Serfdom 54 (G. Routledge & Sons 1944).
8. See Canons 1311–1399, CIC-1983.
 concluding observations 183

power does not count as a major factor in the law’s authority. The minimalist
provisions for sanctions and the general absence of coercive power in canon law
raises a question about whether it counts as law from the perspective of the legal
positivists. Given the concern of the early positivists about how law differs from
other societal norms, one might ask whether canon law is different from any
other normative rules of conduct defined by the church. In other words, is canon
law really law or just another form of moral theology, and in the absence of
sanctions, how does one tell the difference between the two?
2. Canon Law as Command John Austin distinguished law from other societal
norms on the ground that law is the command of the sovereign. The law differs
from other societal norms because the sovereign has elected to promulgate
this particular norm as necessary to some aspect of the peace, security, and order
of society. For example, the sovereign does not make all forms of lying illegal,
but adopts a law that specifies perjury as a particular kind of lying which is illegal.
Perjury threatens the correct operation of the legal system in its effort to
ascertain the truth about a particular situation, and therefore it counts as a
harmful form of lying in terms of the operation of the rule of law. Likewise,
Catholic moral theology identifies all lying as morally defective, but the CIC-1983
does not punish most forms of lying. Canon 1368 of the CIC-1983 establishes
perjury as a canonical offense for which a just penalty may be imposed. In
promulgating Canon 1368, the pope has decided to make perjury a punishable
offense in order to create an incentive to truth-telling in ecclesiastical tribunals.
The canonical prohibition of perjury is an implicit recognition that perjury
differs from other forms of lying in that it constitutes a particular and direct
threat to the rule of law. This does not mean that the pope has exercised his
governing authority in a way that suggests that other forms of lying do not violate
the moral law or that perjury is necessarily the most morally serious form of
lying. However, the governing authority of the church has recognized the necessity
of the law against perjury as a way of safeguarding the natural and supernatural
ends of the rule of law in the Catholic Church. Canon law’s function as the
rule of law in the church distinguishes it from other norms that claim moral
authority.
As a religious system of law, canon law enjoys a theological dimension that is
not present in secular systems of law. The member of the church who obeys
some provision of canon law is recognizing the authority of the pope or bishop
who promulgated the law. This authority arises not just from the reality of the
church as a human community but also from the theological understanding of
the origin of sacred power (sacra potestas). According to the theological under-
standing previously discussed, the pope and the bishop exercise governing
authority as a result of the sacred power which is conferred by Christ. The theo-
logical understanding of the nature of sacra potestas contrasts with Hart’s analogy
184 canon law

in which he likened the command theory of law to the threat of a gunman.9 The
analogy between the gunman and the pope or bishop who promulgates a law
seems less than appropriate. The argument from authority in the church reflects
a fundamental trust in the good intention and fairness of the lawgiver. As the
examples of antinomianism and legalism illustrate, there is no guarantee that
every individual who exercises governing authority in the church will act in a
manner that is worthy of the trust. Nonetheless, canon law attributes a grace to
the office itself, and this grace remains always available to the individual office
holder who disposes himself to accept and act in accord with it. The believer is
disposed to obey the command of canon law in deference to the sacred office,
which the believer accepts as established by divine intention.
3. The Intellectus of Canon Law Although it has a theological significance,
obedience to the command of the lawgiver is not necessarily a complete, or even
the best, explanation of canon law’s authority. In the Thomistic definition, law is
first described as an ordinance of reason. The reason (or what I have termed the
intellectus) of canon law integrates natural, theological, and historical truths.10
First, the intellectus of canon law reflects the universal and transcendent princi-
ples of natural law. Second, the intellectus expresses theological truths derived
from the divine revelation of sacred scripture. Third, the intellectus also includes
a historical consciousness that elicits respect for custom and tradition in shaping
law according to present and future circumstances. The believer’s insight about
the intellectus of canon law is a critical element in explaining canon law’s power
to bind.
The intellectus of canon law rests on an anthropological foundation of one
universal human nature which, having been redeemed by Christ, is dynamic
rather than static, as it is actualized in a concrete and particular historical existence.
The human person is endowed with intellect and free will. The intellect enables
the human person to understand not only the purpose of a particular canonical
norm but also how the particular norm fits into canon law as a legal system. Free
will enables the human person to act in accord with the understanding of the
particular and transcendent good identified by the intellect. The believer who
voluntarily obeys canon law understands the authority of the law on the basis of
divine law and natural law. One obeys the canon law derived from divine and

9. See Hart, The Concept of Law, 6–7.

10. Thomas employs the Latin word ratio, which I am translating with the word reason.
In Chapter 1, I noted that Hans Urs von Balthasar attributes the word intellectus to
Bonaventure when Bonaventure actually relies on the word logica. See Hans Urs von
Balthasar, A Theological Anthropology 162–63 (Sheed & Ward 1967). Each of the
three Latin words has a distinct definition. However, I am using them somewhat inter-
changeably to indicate that law is a product of practical reason. My point is that absent this
internal ratio, logica, or intellectus, canon law would have no power to bind persons and com-
munities in the church.
 concluding observations 185

natural law because the failure to obey would damage one’s participation in the
ecclesial community as the Mystical Body of Christ and might interfere with the
salvation of one’s soul. From the perspective of faith, these are of course powerful
motivations for obeying the canon law. To the extent that the believer under-
stands that the canon law facilitates its supernatural and natural ends, the believ-
er’s understanding is the insight that counts as the explanation of canon law’s
authority. Insight about the intellectus of the law disposes the believer to exercise
an act of the will in obedience to the law.
Canon law is not a mere copy of divine and natural law. While it reflects
divine and natural law, canon law has its own positive character. As a human
creation, positive law can never perfectly capture the law’s inner meaning.
However, the positive law is necessary for the sake of justice and the common
good. For example, the requirement that a bishop voluntarily submit his resignation
to the pope upon reaching the age of seventy-five, or that a novice in an institute
of consecrated life complete a novitiate of at least one year’s duration, might be
described as “purely positive law.” Neither of these provisions of canon law is
strictly speaking required by divine or natural law. The promulgation of such
positive law, however, creates a moral obligation that did not exist until the
moment of the law’s promulgation.11 The particular provision of positive law
becomes part of the rule of law. The bishop voluntarily submits his resignation
as stipulated not only because it is the command of the pope, but also because
the bishop understands the purpose of the retirement provision in maintaining
sound government throughout the dioceses of the church. The bishop may not
think that his continuation in office beyond the retirement age poses a particular
threat to his diocese. Nor may he necessarily think that the retirement policy is the
most desirable policy for the church. Nonetheless, the bishop understands the
provision to advance a reasonable policy about retirement, and he accepts
it as a rational policy choice made by the legislator. As a believer, the bishop
recognizes the moral obligation to conform to the provision of positive law
because it is part of the rule of law.
Likewise, the novice completes the novitiate not merely because it is the com-
mand of the constitutions of the religious community in accord with the CIC-1983,
but because the novice understands the spiritual benefits that the novitiate year
promises. The novice, with the concurrence of the religious superior, might
conclude that in his or her particular case only eight months of novitiate is necessary,
but the novice accepts the one-year canonical requirement as a an aspect of the
rule of law for religious life in the church. In either the case of the bishop or of
the novice, the believer’s insight is that conformity with this particular provision
of positive law is an aspect with conformity to the rule of law and the natural and

11. See John Finnis, Propter Honoris Respectum: On the Incoherence of Legal Positivism, 75
Notre Dame L. Rev. 1597, 1607 (2000).
186 canon law

supernatural ends that it protects in the Catholic Church. The rule of law is itself
a rational motive that affords the insight to the believer to obey the law. The func-
tion of canon law as the rule of law is a natural dimension of canon law’s inner
meaning from which canon law derives its authority. The believer understands
that, absent the rule of law, there could be no lasting order, peace, and justice in
the universal church. The rule of law serves both as an aspect of the intellectus
from which canon law derives its authority and as a means to the natural and
supernatural ends of canon law.

B. Does Canon Law Constitute a System of Law?

As previously mentioned, early legal positivists such as John Austin argued that
law was distinguishable from other kinds of societal norms in that law was the
command of the sovereign. H. L. A. Hart criticized Austin’s command theory on
the ground that it explains only the primary rules of law that either require or
prohibit certain actions. Hart posited that the secondary rules of recognition,
change, and adjudication were critical to any “system of law.” Secondary rules
“specify the ways in which the primary rules may be conclusively ascertained,
introduced, eliminated, varied, and the fact of their violation conclusively
determined.”12 Hart posited that the rules of recognition, change, and adjudica-
tion, taken together, “are enough to convert the regime of primary rules into
what is indisputably a legal system.”13 As Hart considered these secondary rules
to be characteristic of a “developed legal system,” it follows that they are also
foundational to the rule of law.14 While the idea of a legal system and the rule of
law are not synonymous, I am presuming that the effectiveness of the rule of
law depends in part on the existence of a system of law. On the basis of this
comparative study, I shall suggest that Hart’s secondary rules may be identified
in the system of canon law.
First, Hart argued that uncertainty over what norms carry binding force in a
community requires a rule of recognition that specifies the properties by which
a rule possesses legal validity in the legal system. For example, he described the
rule of recognition in English law as “whatever the Queen in Parliament enacts
is law.”15 As discussed in Chapter 1, the CIC-1983 was promulgated by the pope,
and it in turn acknowledges that the pope exercises legislative authority for the
universal church and that the diocesan bishop exercises this authority for his
diocese. However, canon law would not be accurately described as “a very simple
system of law,” in which system, what the pope or diocesan bishop enacts is law,

12. H. L. A. Hart, The Concept of Law 94 (2d ed. Clarendon Press of Oxford University
1997).
13. Id.
14. Id. at 95.
15. Id. at 107.
 concluding observations 187

and in which no legal limitations are imposed upon the legislative power.16
Rather, the developed system of canon law has a sophisticated rule of recognition
according to which a law’s “pedigree” is more complex than merely acknowledg-
ing it as the command of one who exercises the power of governance. The legiti-
macy of canon law also entails multiple criteria such as its derivation from, or at
least conformity to, sacred scripture and natural law, its integration of faith and
reason, its continuity with tradition, its semantic stability, and its reception by
the community. As I discussed above, canon law is not merely the command of
the legislator. However, in terms of meeting the limited purpose of the rule of
recognition which distinguishes law from other types of norms in the community,
it is sufficient to determine that a particular provision has been enacted by the
legislator.
Joseph Raz suggests that the rule of recognition is not so much a “power
conferring” as a “duty imposing” rule.17 This understanding of secondary rules
fits well with the theological understanding of authority in canon law. The church
views the institutionalization of authority in a way that is intended to transcend
merely human social reality. In accord with this understanding, authority in the
church is not simply the product of social necessity, but the result of the divine
plan for salvation revealed by Jesus Christ. Canon law traces the source of the
governing power to the original authority conferred on Peter and the other
Apostles by Christ, which is shared by their successors, the pope and the bishops.18
The authority is intended to be exercised in the example of the humble service of
Christ who gave his life for the many.19 The idea of the imposition of responsibil-
ity rather than the conferral of power fits canon law’s theological claim about
authority as humble service. The church does not bestow the governing authority
on someone for the self-interested enjoyment of prerogatives but for the humble
discharge of a sacred trust. Those vested with hierarchical authority in the church
have the responsibility to serve in an intelligent manner that promotes the
natural and supernatural ends of canon law. Antinomianism and legalism
diminish the rule of recognition as a duty-imposing rule. The antinomian and
legalistic approaches of church authorities to clerical sexual abuse, the owner-
ship of church property, and the application of Canon 915 represent a refusal by
these church authorities to fulfill the responsibilities imposed upon them
by canon law.
Second, Hart further stipulated that in a legal system the static character of
customary norms is addressed by a rule of change. In Chapter 1, I traced the
origin of such a rule in canon law to the Council of Jerusalem, as recorded in

16. Id. at 100.

17. Joseph Raz, Practical Reasons and Norms 93 (Princeton University Press
1992).
18. See Canons 330, 331, 336, 337, and 375, CIC-1983.
19. Cf. Matthew 20:28; Mark 10:45; Luke 22:27; and John 13:12-17.
188 canon law

Acts of the Apostles, when Peter and the Apostles met with Paul and Barnabas
to hold that the circumcision requirement of the Jewish Law did not bind gentile
converts to Christianity.20 The historical development of canon law from the
early church to the medieval Corpus Iuris Canonici to the twentieth-century codi-
fications suggests the continuity of this system of law through the rule of change.
A modern example of this secondary characteristic of the rule of law is the
process that led to the CIC-1983. Commencing at the end of Vatican II in 1965,
the complex process involved a central commission composed of curial officials
and other experts; the drafting of several schema; numerous consultations with
diocesan bishops, religious superiors, and other experts throughout the world;
and the final promulgation of the new Code by Pope John Paul II in 1983.
The process that led to the promulgation of the CIC-1983 differed from the
legislative process characteristic of the modern democracy. As previously
discussed, canon law does not reflect an absolute separation of executive, legisla-
tive, and judicial powers. The process for the CIC-1983 did not involve a separate
legislative branch, let alone a bicameral legislature with a clearly defined process
of how a bill becomes law. If the definition of the rule of law necessitates the
separation of powers and the democratic legislative process, canon law does not
meet the requirements for the rule of law. However, if a central goal of the
democratic legislative process is to prevent the adoption of law by the imposition
of the arbitrary will of an individual or group, this goal was achieved by the
process that led to the CIC-1983. Although the promulgation of the CIC-1983
was ultimately contingent on the pope’s legislative power, the process depended
on a large central commission with numerous subdivisions, consultation with
all of the bishops throughout the world as well as with hundreds of diverse
experts, the drafting of several major schema, and public debate about the merits
of these drafts. Despite the fact that it was not the democratic legislative process,
the complex process helped to ensure that canon law was modified in order to
meet the needs of the contemporary church fulfilling the directive of Vatican II.
Canon law develops through changes to the positive character of the canons,
and sometimes a change to the positive character of the canons reflects develop-
ment in the church’s doctrine. The inclusion of a list of fundamental rights at
the beginning of Book II of the CIC-1983 stemmed from a development which
reflected a heightened focus on the church’s teaching about the fundamental
dignity of the human person.21 Although the medieval canonists recognized the
dignity of the individual and corresponding subjective rights, it was not until the
CIC-1983 that these rights were expressly recognized.22 The millenary function

20. See Acts 15:6–29.

21. See Canons 208–223, CIC-1983.
22. See Brian Tierney, The Origin of Natural Rights Language: Texts and Context, in
Rights, Laws, and Infallibility in Medieval Thought 626 and 638 (Variorum 1997),
which discusses the subjective meaning of ius in medieval canon law. Cf. Walter Ullmann,
 concluding observations 189

of a secondary rule of change is also evident in the historical development of

canon law’s theory of church property. The CIC-1983 incorporates the ancient
church’s understanding which places an emphasis on the evangelical ideals of
poverty and common ownership. The contemporary canons integrate this theo-
logical understanding with the medieval theory about the need for private
property after the Fall and the recognition of a qualified right to private property.
Additionally, the CIC-1983 expresses respect for the modern theory of the secular
state and defers to the state’s role in protecting property rights. At the same time,
current canon law establishes its own rules whereby the appropriate hierarchical
authority in the church bears the responsibility to ensure that the acquisition,
administration, use, and alienation of church property remain in accord with
natural rights, theological values, and the mission of the church.
Finally, Hart claimed that a rule of adjudication is necessary to resolve
disputes about interpretations of the rules. The CIC-1983 requires each diocese
to establish and maintain a diocesan tribunal and tribunal officials.23 It also
mandates the establishment of a tribunal of second instance, which hears an
appeal from the decision of the diocesan tribunal.24 It further establishes a system
of judicial tribunals and administrative bodies at the level of the Holy See, while
specific laws regulate jurisdiction and procedure in the exercise of the executive
and judicial powers of government.25
The church tribunals differ from many kinds of tribunals that function in the
modern secular democracies in that the decisions of the church tribunals do not
enjoy precedential value. Rather, the judicial power in canon law is exercised
primarily with a particular case in mind and not necessarily with an eye toward
its implications for the development of the law.26 Consequently, while canon

The Individual and Society in the Middle Ages 136–37 (Johns Hopkins Press 1966),
which argues that the concept of the individual was of Enlightenment origin; and see John
Finnis, Aquinas: Moral, Political, and Legal Theory 133–38 (Oxford University
Press 1998); John Finnis, Natural Law and Natural Rights 206–07 (Clarendon Press
of Oxford University 1986), which discuss the objective meaning of ius in Thomas
Aquinas’ thought. At Vatican II, the connection between human dignity, religious free-
dom, and the natural order was recognized in Dignitatis Humanae. The recognition laid
the basis for the development by which a list of fundamental rights were incorporated into
the CIC-1983. See Sacrosanctum Concilium Oecumenicum Vaticanum II, Dignitatis
Humanae (Die 7 mensis decembris anno 1965), 58 AAS 929–46 (1966).
23. See Canons 1419–1437, CIC-1983.
24. See Canons 1338–1441, CIC-1983.
25. See Canons 1442–1445, 360–61, CIC-1983; and Ioannes Paulus Pp. II, Constitutio
Apostolica De Curia Romana, Pastor Bonus (Die 28 mensis iunii anno 1988), 80 AAS
842–912 (1988).
26. See Canon 16, §3, CIC-1983 (“. . . an interpretation by way of a court judgment or of
an administrative act in a particular case, does not have force of law. It binds only those
persons and affects only those matters for which it was given.”).
190 canon law

law has secondary rules which provide for tribunals, establish jurisdiction, and
identify individuals who adjudicate disputes (judges and other tribunal officials),
it does not have a recognized system through which judges in effect create law
through the precedential values of their interpretations. Although lacking the
power of precedent, the decisions of the canonical judges are not completely
bereft of authority beyond the particular case at hand. The decisions of the
Roman Rota, for example, have proved highly influential in shaping the canon
law of marriage. Not only are the rotal decisions given careful consideration by
other ecclesiastical judges in deciding like cases, but they are also carefully
studied by canonists and theologians in articulating the church’s doctrine and
practice.
The authority of the rotal judge’s reasoning sits well with Ronald Dworkin’s
view that judicial decision-making is a matter of interpretation in light of
the soundest legal traditions within the complex environment of interrelated
principles and ideals.27 However, the rule of adjudication in canon law is not
necessarily focused on judges or limited to the judicial power. Canon 16 of the
CIC-1983 provides that “laws are interpreted by the legislator and to that person
to whom the legislator entrusts the power of interpretation.” At the level of the
church’s universal law, the task of interpretation has been entrusted to the
Pontifical Council for the Interpretation of Legislative Texts.28 Canon law also
draws a sharp distinction between judicial and administrative matters. The
CIC-1983 establishes procedural law for hierarchical recourse against the “single
administrative act . . . posited in the external forum outside of a trial with the
exception of those acts issued by the Roman Pontiff or an ecumenical council.”29
Recourse against the administrative act of the diocesan bishop may be brought
to the competent Dicastery of the Roman Curia and from the Dicastery to the
section of the Apostolic Signatura, which serves as the supreme administrative
tribunal of the church. The kinds of administrative disputes are diverse in nature
and concern matters such as the suppression of a parish, the removal of a pastor
from office, the dismissal of a religious, the disputed election of a religious major
superior, the dismissal of a professor from an ecclesiastical faculty, the suppres-
sion of a monastery or religious house, and the validity of action taken by the
chapter in an institute of consecrated life.30

27. See Ronald Dworkin, Law’s Empire 410–13 (Belknap Press of Harvard University
1986).
28. See Pastor Bonus, 154–58. See also Javier Otaduy, Ecclesiastical Laws, in Navarra-
2004, 318–24.
29. Canon 1732, CIC-1983.
30. See Zenon Grocholewski, La giustzia amministrativa presso la Segnatura Apostolica,
4 Ius Ecclesiae 14–19 (1992).
 concluding observations 191

C. Does Canon Law Fulfill the Requirements of the Rule of Law?

In the Introduction of this study, I described various aspects of the rule of law.
First, the rule of law refers to rule by a system of law and not by the arbitrary and
capricious will of an individual or group. Second, Anglo-American legal theory
stipulates that the rule of law must include provisions for procedural justice.
Third, certain theorists would argue that the rule of law entails an explanation of
the law’s authority that transcends procedural justice. As discussed above, canon
law meets the requirements for a system of law which is the first aspect of the
rule of law. I now examine the second and third aspects, and I also raise the
issues of unjust law and indeterminacy as they relate to the concept of the rule
of law.
1. Procedural Justice In Anglo-American legal theory, some form of procedural
justice is essential to a legal system’s adherence to the rule of law. Lon Fuller
identified eight characteristics or demands of the rule of law. Law must be:
(1) general and not ad hoc, (2) publicized, (3) prospective and not retroactive,
(4) clear, (5) logical, (6) capable of obedience in practice, (7) stable and not subject
to too frequent change, and (8) administered in a way that is congruent with the
rule as announced.31 Recognizing the “utopian aspiration” that a legal system
embodies all eight of the desiderata perfectly, Fuller nonetheless admonishes:
“A total failure in any one of these eight directions does not simply result in a
bad system of law; it results in something that is not properly called a legal
system at all.”32 In light of the specific examples that I have discussed in this
book, the nexus between procedural justice and the rule of law raises questions
about canon law as the rule of law.
What do the decades of antinomian refusal on the part of the U.S. bishops to
utilize the penal process in clergy sexual abuse cases suggest about the viability
of the rule of law? In response to the 2002 sexual abuse crisis, what does the
legalistic response of the bishops indicate about procedural justice? In the wake
of the crisis, Avery Cardinal Dulles, S.J., faulted the bishops’ response on several
procedural grounds. First, in utilizing the definition of sexual abuse which they
adopted in 2002 to settle cases that were most often decades old, the bishops
violated the principle against the retroactive application of law. Additionally, the
bishops’ response ignored the canonical period of prescription (statute of limitation)
in which an action against an accused priest might be brought. Further, Dulles
argued that the bishops’ response to the 2002 crisis abrogated the presumption
of innocence.33 Adherence to these procedural requirements of the rule of law
might not have enjoyed popular support in the heat of the crisis, but would have
served the interests of fairness in the long term. Antinomian and legalistic

31. See Lon L. Fuller, The Morality of Law 39 (Yale University Press 1967).
32. Id.
33. See Avery Dulles, Rights of Accused Priests, Toward a Revision of the Dallas Charter
and the “Essential Norms,” 188 America 19, 21 (June 21–28, 2004).
192 canon law

responses to the ownership of church property and the application of Canon 915
raise similar kinds of questions about the rule of law in the life of the church.
Does the de facto alienation of church property without observing the procedural
requirements stipulated in canon law support the rule of law? Likewise, does the
bishops’ refusal to agree on a correct interpretation of Canon 915 indicate a lack
of respect for the procedures suggested by the Holy See as an aspect of the rule
of law in the church? The injury to individuals, communities, and the church as
a whole presented by these examples illustrate the responsibility of those with
governing power in the church to honor the requirements of procedural justice.
Fuller contends that his eight procedural requirements constitute the natural
internal morality of law.34 He conceives the internal morality of the law to be
a type of natural law, stating that it is “a procedural as distinguished from
substantive natural law.”35 For Fuller, the procedural form of the law ensures the
moral substance of the law. Hart disagrees, suggesting that what Fuller identi-
fies as the internal morality of the law are not moral principles, but notions of
purpose and efficiency. Faithful to his own positivist theory, Hart argues that the
procedure by which law is made is “independent of law’s substantive aims just
as the principles of carpentry are independent of whether the carpenter is making
hospital beds or torturer’s racks.”36 As Hart observes, law might fulfill the eight
procedural requirements, but remain “unfortunately compatible with very great
iniquity.”37 Whether one views Fuller’s requirements as part of the natural law or
maxims of legal efficacy, it seems clear that the eight procedural requirements
remain indispensable to the rule of law.
Hart does recognize a certain “minimum” content of “natural procedural
justice.”38 He concedes that a legal system consists of general rules which require
that “like cases be treated alike.”39 For Hart, such procedural justice is “justice
in the administration of the law, and not justice of the law.”40 A legal system
might satisfy “the minimum requirements . . . with the most pedantic impartial-
ity” and yield “laws which were hideously oppressive.”41 While Fuller is con-
cerned with too little procedural legality, Hart seems to acknowledge that a rigid,
narrow, and exclusive adherence to the procedural law of a legal system would be

34. See Fuller, The Morality of Law, 96–106.

35. Id. at 96–97.
36. H. L. A. Hart, Book Review of The Morality and the Law by Lon L. Fuller, 78 Harv. L.
Rev. 1281, 1284 (1965).
37. Hart, The Concept of Law, 202.
38. H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593,
623–24 (1958).
39. Id. at 624.
40. Id.
41. Id.
 concluding observations 193

too much legality.42 I have already defined such pedantic scrupulosity as a form
of legalism. Judith Shklar critiques this kind of “extreme legalism” as a reduc-
tion of the morality of the law to mere rule following.43 Assuming that proce-
dural justice cannot ultimately ensure the fundamental fairness of the rule of
law, the question arises about the substantive authority of the law.
2. Substantive Justice According to Jürgen Habermas, neither coercion, nor
command, nor procedural justice suffices to guarantee the rule of law.44 In a
democratic society, Habermas observes that the “legitimacy” and “binding force”
of the rule of law depends on its power to communicate that it derives from the
legitimate political process.45 He contends that the rule of law requires “rational
motives for obeying the law,” which make it “possible for everyone to obey the
legal norm on the basis of insight.”46 The Catholic Church is not a democracy,
but the motives for obeying canon law are natural and supernatural. On a natural
level, one perceives the importance of the rule of law for the good of individuals
and the community. A member of the Catholic Church has the right to anticipate
a fundamental and just order in the ecclesiastical community. On the supernatural
level, grace enhances this natural insight. One freely chooses to be a member of
the church as a result of faith and the desire for eternal salvation. This kind of
ultimate insight suggests that canon law’s power to bind stems not simply from
its reality as an order of reason but also as an order of faith. The natural and
supernatural intellectus or substantive inner meaning of canon law transcends
coercion, command, and process. As the earlier examples of the bishop and
novice illustrate, the rule of law itself is a substantive rational motive that affords
insight to persons to obey canon law.
Insight about the rule of law stems from a communal context. The rule of law
is justified on the basis of the anthropological reality that the human person is a
social being whose interactions with other persons, communities, and society
necessitate a system of ordered justice. The rule of law presumes a society of
persons who value a set of norms that are designed to achieve fundamental fairness.
The Thomistic description requires that law be given to a receptive community
in order to advance the common good. On the natural level, the rule of law aims
to facilitate those conditions in which persons experience optimal opportunities

42. See Leslie Green, Positivism and Inseparability of Law and Morals, 83 N. Y. U. L. Rev.
1035, 1057 (2008).
43. See Judith N. Shklar, Legalism: Law, Morals, and Political Trials 122
(Harvard University Press 1964). But see Neil MacCormick, The Ethics of Legalism, 2 Ratio
Juris 184, 188–89 (1989), which advocates a restatement of Fuller’s description of the rule
of law as “ethical legalism”.
44. See Jürgen Habermas, Beyond Facts and Norms 189 (William Rehg trans., MIT
Press 1996).
45. Jürgen Habermas, Three Normative Models of Democracy, in 1 Constellation 8
(1994).
46. Habermas, Beyond Facts and Norms 121.
194 canon law

for participation, solidarity, and membership in the community. On the super-

natural level, the rule of law assists in setting the conditions in which the
Christian community is “the communion of the Catholic Church on this earth
who are joined with Christ in its visible structure by the bonds of the profession
of faith, the sacraments, and ecclesiastical government.”47 The believer’s insight
about the function of the rule of law in facilitating these natural and supernatural
ends is nourished within the local, particular, and universal communities of the
church.
The theological understanding of office and sacra potestas in canon law
reinforces the authority of the rule of law. As discussed in Chapter 1, the division
of the legislative, executive, and judicial powers of government in canon law
exhibits a qualitative difference from the separation doctrine in liberal political
theory. The political theory rests on a suspicion of the governing authority. In
Raz’s understanding, the rule of law requires: independent, transparent and fair
hearings; review of governing officials; and limitations on the governing pow-
er.48 The hermeneutic of suspicion attempts to check the concentration of too
much government power in one individual or group, the abuse of power for
personal gain, and undue limitations on individual liberties. In contrast, the unitary
power of governance, vested in the bishop for his diocese and the Roman Pontiff
for the universal church, displays trust that the governing power will be exercised
in accord with the natural and supernatural ends of canon law.
The hermeneutic of trust, however, does not mean that the governing power
in canon law is without limitation. To an extent defined by law, the acts of gover-
nance placed by the diocesan bishop are subject to review by Roman Curia on
behalf of the Roman Pontiff. The exercise of the bishop’s legislative power is not
subject to judicial review, but it may not be contrary to the universal law of the
church. Hierarchical recourse against the bishop’s executive act may be brought
to the appropriate Dicastery of the Roman Curia and eventually to the Apostolic
Signatura. Appeal from the judicial power that is exercised by the diocesan
tribunal may be brought to the Roman Rota and then to the Apostolic Signatura.
Recourse directly to the person of the Roman Pontiff is also possible. The bishop,
who abuses the governing power or culpably neglects some duty of his office, is
liable to penal sanctions as specified in canon law; and in a power that is rarely
utilized out of respect for the communio of the church, the Roman Pontiff
may remove a diocesan bishop from office.49 While he is bound by natural and
divine law, the governing power of the Roman Pontiff is not subject to review.50
The Pontiff’s governing power derives from his primacy as the Successor to

47. Canon 205, CIC-1983.

48. See Joseph Raz, The Authority of Law, Essays on Law and Morality 216–17
(Clarendon Press of Oxford University 2002).
49. See Canon 1389, §§ 1 and 2, CIC-1983.
50. See Canons 332, §1 and 333, § 3, CIC-1983.
 concluding observations 195

Saint Peter, Bishop of Rome, and Vicar of Christ, who is entrusted with a ministry
of unity among all the particular churches that comprise the universal church.51
The theological understanding of the grace of the bishop’s office suggests that
insight would be offered to the office holder about the function of the rule of law
in the life of the church. Although his governing power is not subject to review,
the theological understanding is that the grace of office offers the pope super-
abundant insight about respect for the rule of law. Whether for those who
exercise governing power or those who wish to direct their own conscientious
actions in accord with it, the theological understanding buttresses the authority
of canon law to bind.
3. Unjust Law The moral obligation to obey specific canons that flows from
the rule of law raises the question of unjust law. As mentioned in the Introduction,
Hart focused on law from an intersystemic expository viewpoint and did not
seem particularly concerned about unjust law, while Fuller thought that fidelity
to his eight procedural desideratum protected against unjust law. The natural
law theorist, John Finnis, asks how injustice in law affects the obligation to obey
the law. Given that the legal system of canon law is by and large just, does a
particular injustice in canon law impose any obligation on the believer to obey
the canonical provision that results in the injustice? Noting that Thomas Aquinas
never adopted the slogan that “unjust law is no law,” Finnis argues that there
may be a “collateral obligation” to obey a specific unjust law in deference to the
rule of law.52 However, Finnis argues that unjust law does not create a moral
obligation in precisely the same way that just law does. According to Finnis, “the
ruler and his rules” have authority “only because of what is needed if the common
good is to be secure and advanced.”53 According to Finnis, “stipulations made for
partisan advantage, or (without emergency justification) in excess of legally
defined authority, or imposing inequitable burdens on their subjects, or the
directing of doing things that should never be done, simply fail, of themselves,
to create any moral obligation whatever.”54 In Chapter 1, I discussed the role of
canonical equity as a response to various types of injustice in law. The fact that
the legislator has incorporated provisions for responding to unjust law through

51. See Canon 331, CIC-1983. Pope John Paul II convened a Synod of Bishops, who
met in Rome May 21–24, 2001, in order to discuss the relationship between the Petrine
office and the College of Bishops. In Number 44 of Novo Millennio Ineunte, the Pontiff
stated: “The new century will have to see us more than ever intent on valuing and develop-
ing the forums and structures which, in accordance with the Second Vatican Council’s
major directives, serve to ensure and safeguard communion. How can we forget in the
first place those specific services to communion which are the Petrine ministry and,
closely related to it, episcopal collegiality?” Ioannes Paulus Pp. II, Litterae Apostiolica,
Novo Millenio Ineunte (Die 6 mensis ianuarii anno 2001), 44, 93 AAS 266–309 (2001).
52. See Finnis, Natural Law and Natural Rights, 364–65.
53. Id. at 359.
54. Id. at 360.
196 canon law

canonical equity adds to canon law’s inner meaning. The incorporation commu-
nicates the legislator’s intent to respect the dignity of individuals and the common
good by protecting against unjust law. The provisions for canonical equity
enhance the authority of canon law by deepening the rational motives and insight
of the believer who chooses to obey.
4. Indeterminacy of Law Finally, the intellectus of canon law may afford a
moral foundation that mitigates the force of the indeterminacy claim. As discussed
in Chapter 6, the indeterminacy claim stresses the vague meaning of law over its
precision and clarity. It holds that law does not provide correct answers to legal
questions. It doubts whether the application of abstract rules to specific legal
cases yields consistent results.55 The indeterminacy claim calls into question
the very idea of the rule of law. It leads to the conclusion that there are not
persuasive reasons which enable like cases to be decided alike. The disagree-
ment among the U.S. bishops about the application of Canon 915 bolsters the
indeterminacy claim by suggesting that there is not a correct approach to the
law’s meaning and application. However, as I suggested in Chapter 6, antinomian
and legalistic approaches to canon law, rather than sound canonical and theo-
logical reasons, may be more responsible for the confusion over Canon 915 than
the law’s indeterminacy.
The rise of the indeterminacy claim in Anglo-American legal theory coincides
with the positivist approach to law, which calls for the separation of law from
moral value. The separation ostensibly avoids the so-called “naturalistic fallacy”
in which moral values are derived from facts.56 Legal positivism takes an inter-
systemic viewpoint which is not an attempt to eliminate moral consideration
from human deliberation. As throughout this comparative study, my point here
is not to offer a general criticism of legal positivism. Rather, this dominant aspect
of Anglo-American legal theory functions as a counter example with regard to
canon law and indeterminacy. The separation of law from moral value tends to
support the perception of law’s indeterminacy. If positive law is not grounded in
immutable moral principles, doubt may be raised about the authority of the law.
One might conclude that answers to legal questions are based on the relative
circumstances of political, economic, and social facts rather than moral princi-
ples. The perception that legal decisions stem from political, economic, and
social power rather than moral principle is not likely to afford respect for law so
that persons are disposed to obey it. From the natural law perspective, the split

55. Ronald Dworkin’s rejection of the indeterminacy claim in favor of the position that
there are right answers to legal questions is based in no small part on his argument that,
from the perspective of reason, some answers to legal questions are more correct than
others. See Ronald Dworkin, A Reply by Ronald Dworkin, in Ronald Dworkin and
Contemporary Jurisprudence 275–78 (M. Chen ed., Duckworth 1984).
56. See Hilary Putnam, The Collapse of the Fact/Value Dichotomy and Other
Essays 28–40 (Harvard University Press 2002).
 concluding observations 197

between law and moral value produces a lack of coherence—a coherence the law
depends upon for its authority to bind. Finnis argues that legal positivism is
“incoherent” because it “has nothing to say to officials or private citizens who
want to judge whether, when, and why the authority and obligatoriness claimed
and enforced by those who are acting as officials of a legal system, and by their
directives, are indeed authoritative reasons for their own conscientious action.”57
As it is firmly grounded in natural and supernatural truths, canon law does not
suffer from this incoherence. Rather than bolster the indeterminacy claim, the
coherence of canon law offers insight to the believer about deference to the law’s
authority.
In sum, the descriptive aspect of this comparative study suggests that canon
law meets the requirements for law, a system of law, and the rule of law. As
it contains only a minimum of penal sanctions, canon law’s authority is not
primarily derived from coercive power. In accord with the early legal positivists’
understanding, canon law reflects the will of the sovereign governing power
vested in the pope and the bishops. The theological understanding of sacred
power enhances the duty of obedience the believer owes to canon law. However,
the command theory is neither the sole nor best explanation of canon law’s
authority. Canon law’s authority ultimately rests on the insight of the believer
who voluntarily obeys canon law because it functions as the rule of law that
advances natural and supernatural ends. At the same time, the study’s prescriptive
function suggests that challenges also remain. Canon law fulfills Hart’s require-
ments of a developed system of law as it exhibits not just primary rules but also
the secondary rules of recognition, change, and adjudication. The examples of
clergy sexual abuse, the ownership of church property, and the application of
Canon 915 indicate that antinomian and legalism sometimes diminish the
adherence of ecclesiastical officials in abiding by the secondary rules. On the
basis of the three examples, the secondary rules for procedural justice seem
particularly susceptible to antinomian and legalistic maladies. When the rule of
law is weakened, serious injury results to individuals and the common good.
Antinomianism and legalism may thus obscure the individual and communal
perceptions of the intellectus of canon law, and threaten the insight that affords
the basis for canon law’s authority. Despite the issues raised by antinomianism
and legalism, the intellectus of canon law remains grounded in natural and super-
natural truth which affords a metaphysical basis for the rule of law.

IV. conclusion

Canon law attempts to fulfill its natural requirements even as it integrates these
with the supernatural requirements of faith. Stephan Kuttner observed that the

57. See Finnis, Propter Honoris Respectum: On the Incoherence of Legal Positivism, 1611.
198 canon law

medieval canonists developed a legal methodology that brings into harmony

“all the tensions and dissonances, all the apparent incompatibilities of the spiritual
and the temporal, the supernatural and the natural.”58 Although canon law is
neither sacred scripture nor a constitution, the medieval legacy serves as a
reminder that canon law fulfills a vital function in the church. Antinomianism so
privileges the spiritual that it discounts the importance of the rule of law.
Legalism forsakes the theological, and places the law above the supernatural
destiny of the human person. A balanced approach to canon law recognizes its
auxiliary but vital function as a bridge between theology and practical action.
Despite the probability that antinomianism and legalism are likely to pose
continuing problems, canon law remains a system of religious law that serves as
the rule of law in facilitating its natural and supernatural ends.

58. Stephan Kuttner, Harmony from Dissonance: An Interpretation of

Medieval Canon Law 50 (The Archabbey Press 1960).
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index

A B
Ackroyd, Peter, 7n29 Bacon, Francis, 7n28
Acts of the Apostles, 23, 23n24, 101, 188 Bainbridge, Stephen M., 132n70
Ademi, Guri, 10n38 Barrett, C. K., 23n25
Ad tuendam fidem, 41 Baura, Eduardo, 47n146
Alberigo, Giuseppe, 68n66 Beal, John P., 61n42, 73n90
Alesandro, John A., 46n143 Bellomo, Manlio, 35n102
Allegations, of sexual abuse, 56–58, 63, 64, Belluck, Pam, 70n77
70, 77–78n13, 80. See also Benedict XV, 8n30, 35
Sexual abuse Benedict XVI, 41, 41n124. See also
Allen, John L., Jr., 2n4 Ratzinger, Joseph
Anathema sit, 182 election of, 1
Anglo-American legal theory, 6–10, Berman, Harold J., 7n27, 31n76
181–94. See also Canon law Bernadin, Joseph Cardinal, 51n2
Anthropological basis, for private Bix, Brian H., 143n17, 145n31
property, 98–100. See also Private Blasphemers, 146
property Boff, Leonardo, 4n13
Anti-Catholicism, sexual abuse and, 81–83 Bonaventure of Bagnoregio, 3,
Antinomianism, 3–4, 168–69 22n20
legalistic response, 72–74 Bonhoeffer, Dietrich, 14, 14n61
in nineteenth century, 65–67 Boniface VIII, 34
post–Vatican II, psychological approach, Boston Globe, 76
67–72 Boyer, Louis, 119n18
Antoine, Fenet, P., 8n30 Brooke, Rosalind B., 107n49
Apostolic Signatura, 190 Brown, Neville, 6n23
Aquinas, Thomas, 5, 13, 14, 33n86, 86n42, Brown, Peter, 30n71, 88n50
98, 104, 112, 176, 181, 195 Brown, Raymond E., 23n26
on private property, 176 Bruce, F. F., 24n39, 26n51
on property rights, 107 Brundage, James A., 28n61, 31n79
on use of material things, 108–9 Buckland, W. W., 102n14
Araujo, Robert John, 42n131 Burchard, 32, 32n81
“Arcendi sunt,” 152 Burke, Raymond L., 141, 141n7, 142
“Arceo,” 152 Burr, David, 107nn46,57
Archdiocese of Boston, on clergy sexual
abuse, 57, 57n26, 80, 80n21
C
Archdiocese of New York, on clergy sexual
abuse, 80, 80n22 Cafardi, Nicholas P., 60n37, 69, 115
Arias, Juan, 46n142 Canon 3, CIC-1983, 42
Augustine, 30, 30n71–30n75, 165 Canon 8 of the Council of Nicea, 86
on property, 100–101 Canon 13, CIC-1983, 41
rites of church, 88 Section 1, 41
Austin, John, 9, 91, 91n64, 92, 148, 183, Canon 16, CIC-1983, 47, 189n26, 190
186. See also Command theory Canon 17, CIC-1983, 46
218 index

Canon 18, CIC-1917, 46 Canon 1266, CIC-1983, 177

Canon 18, CIC-1983, 47 Canon 1291, CIC-1983, 135n75
Canon 19, CIC-1983, 45 Canon 1314, CIC-1983, 46
Canon 20, CIC-1917, 45 Canon 1368, CIC-1983, 183
Canon 22, CIC-1983, 43 Canon 1392, CIC-1983, 153n58
Canon 26, CIC-1983, 42 Canon 1395, CIC-1983, 53, 54, 93
Canon 76, CIC-1983, 47–48 Section 2, 53, 54, 93
Canon 79, CIC-1983, 48 Canon 1402, CIC-1983, 60
Canon 81, CIC-1917, 46 Canon 1555, CIC-1917, 60
Canon 84, CIC-1983, 48 Canon 2359, CIC-1917, 52, 53
Canon 85, CIC-1983, 46 Section 2, 52, 53
Canon 87, CIC-1983, 47 Canon law, 2, 2n5. See also specific Canons
Section 2, 47 codification of, 35–38
Canon 110, CIC-1983, 43 and coercive power, 192–93
Canon 135, CIC-1983, 38. See also as command. See Command theory
Powers of governance grave sin. See Grave sin
Canon 207, CIC-1983, 89, 89n56 historical development of, 17–35
Canon 208, CIC-1983, 89, 89n55 medieval, 31–35
Canon 213, CIC-1983, 167 modern, 35–38
Canon 277, CIC-1983, 75 patristic, 28–30
Canon 290, CIC-1983, 90 scriptural, 21–28
Canon 292, CIC-1983, 90 intellectus of, 184–86
Canon 330, CIC-1983, 20, 89n56 natural and supernatural ends of,
Canon 331, CIC-1983, 89n56, 195n31 173–75
Canon 335, CIC-1917, 39n120 and state law. See State law
Canon 343, CIC-1983, 94n72 as a system of law, 186–90
Canon 368, CIC-1983, 117–18, 118n9 Canonical equity, 45–46
Canon 375, CIC-1983, 89n56, 93n70 defined, 45
Canon 383, CIC-1983, 120 implicit written, 45
Canon 387, CIC-1983, 94n72 unwritten, 45
Canon 515, CIC-1983, 119, 177 written, 45, 45n140
Canon 519, CIC-1983, 154n163 Cappello, Felix M., 39n120
Canon 712, CIC-1983, 152 Cassian, John, 103n17
Canon 750, CIC-1983, 41 Castrillon, Dario Cardinal, 124n35
Canon 912, CIC-1983, 167 Catholic public officials, refusing Holy
Canon 915, CIC-1983, 179–80 Communion to
catholic public officials, refusing Holy application of law (Canon 915)
Communion to. See Catholic public effects of, 155–56
officials, refusing Holy Communion to justification for, 155
effects of, 155–56 plain meaning of the words, 152–55
indeterminacy claim. See Indeterminacy indeterminacy claim. See Indeterminacy
claim claim
justifications for, 155 rule of recognition, 145–49
plain meaning of the words of, 152–55 vs. command theory, 148–49, 148n43
Canon 976, CIC-1983, 90 ecclesiastical authorities and, 146, 148
Canon 1055, CIC-1983, 89, 89n57 law applying officials, 149
Canon 1108, CIC-1983, 20n12 Raz, Joseph on, 149, 149n44
Canon 1254, CIC-1983, 97 Catholic theory, liberal political theory vs.,
Section 1, 97 112–14
 index 219

CCEO, 20, 38 universal law. See Universal law

liturgical law, 44 written equity, 45
Section 1 of Canon 1453, 54 Cicero, 7n26
Section 1 of Canon 1536, 47 Cicognani, Amleto Giovani, 35, 35n100
and sexual abuse. See Sexual abuse Civil law, 43–44
unity of law and theology, 48–49 Clement V, 34
universal law, 38. See also Universal law Clementinae, 34
CDF. See Congregation for the Doctrine of Clergy sexual abuse. See Sexual abuse
the Faith (CDF) Coccopalmerio, Francesco, 120n23
Celibacy, and sexual abuse, 75–81 Code Napoleon, 37
Chadwick, Henry, 86n42, 88n49, Code of Canon Law, 36–37, 169. See also
102n12 CIC-1917; CIC-1983; CCEO
Child sexual abuse. See Sexual abuse Codification of canon law, 35–38
Child Sexual Abuse: New Theory and Coerced sex, 53–54, 54n9
Research, 77, 77n9 Coercive power, canon law and, 182–83
Chodorow, Stanley, 32n82 Collectio Viginti Extravagantium, 34
Church property, 176–79 College of Cardinals, 1
antinomian approaches to, 133–37 Command theory, 91–92, 183–84, 186
diocese and parish, 116–17 vs. rule of recognition, 148–49, 148n43
parish property, 122–24 Communio, 21, 118–21
unity of law and theology, 117–21 Comparative law, 6–10, 6n23
legalistic approaches to, 133–37 Concept of Law, The, 11
liberal political theory of, 109–12 Concordance of Discordant Canons, 31, 31n80
vs. catholic theory, 112–14 Congar, Yves, 68n68
medieval approaches to, 104–7 Congregation for the Doctrine of the
nineteenth-century struggle, 124–29 Faith (CDF), 142
ownership in early church, 101–4 Congregationalist form, vs. hierarchical
private property. See Private property form of governance, 124–29
social teaching of, 108–9 Conn, James, S.J., 136n77
state law and. See State law Constantine, 86, 86n42
CIC-1917, 36, 52 Contract law, 34
benefits of, 37 Corecco, Eugenio, 48, 48n152, 118n15,
Canons. See specific Canons 121n28, 174n4, 180
powers of governance, 39, 39n120 Coriden, James A., 115n2
CIC-1983, 37, 39n116, 48, 84, 122n33, 188, Cornelius, 30
189, 190 Corpus Iuris Canonici, 33, 35, 146, 188
Book 1, Title 3 of, 40 established, 34
Book 4 of, 20, 20n12, 44 Corpus Iuris Civilis, 31, 31n78
Book 6 of, 45 Coughlin, John J., 19n8, 80n22
Book 7, Title 2 of, 40–41 Council at Jerusalem, 26–28
canonical penal process in sexual abuse Crimen sollicitationis, 53, 53n8
cases, 59 and clergy sexual abuse, 60, 60n36
custom and, 42 Cross-cultural indeterminacy, 144
diocese and parish, 121 Curran, Robert Emmett, 66n58
Latin Rite, 54 Curry, Thomas J., 125n38
liturgical Law. See Liturgical law Cuss, Dominique, 23n30
particular laws. See Particular laws Custom, as a source of law, 42
penal sanctions, 182, 182n8 Cyprian, Bishop of Carthage, 29–30, 146,
states of life, 89, 89n54 146n34
220 index

D Ellis, Robert L., 7n28

Ellis, Stephen C., 126n45
Dawson, John P., 33n93 Endicott, Timothy, 143n18, 144, 144n24
Decius, 29, 29n65 English Society of Comparative
Decretum, 32 Legislation, 8n31
de Fuenmayor, Amadeo, 43n133 Epstein, Richard A., 111n70
Delict, 52, 53. See also Sexual abuse Equity, concept of, 44, 44n137
Denzinger, Heinrich, 86n41 Evangelium Vitae, Number 73 of, 155
de Paolis, Velasio, 85n34 Exception, 47
Derrett, J. Duncan M., 24n36 Excommunication, 141, 155–56
Dicastery of the Roman Curia, 41, 190 automatic penalty of, 153, 153n58
Dictionnaire de Droit Canonique, 44 Executive power, 39–41
Dignan, Patrick J., 125n43, 127n54, Extravagantes Communes, 34
128n56, 128n58, 128n60
Diocesan bishop, 38, 39n116, 119, 120 F
autonomy of, 168
diocesan tribunal, 40 Faith and reason, 48–49
dispensation, 46–47 Fee Simple, 110, 128
and ecclesiastical property, 127 Ferendae sententiae, 46, 156
and nullity of marriage, 48 Ferme, Brian E., 60n36
and parishes, 123, 124 Fides quaerens intellectum, 33
Diocesan priests, accused of sexual Findlay, Stephen W., 52n5
abuse, 78 Finkelhor, David, 77, 77n9–77n12
Diocesan tribunal, 40, 48, 55, 189, 194 Finnis, John, 9, 13, 13n57–13n59, 105,
Diocese, and parish 105n36, 106, 106n40, 139n2, 140, 150,
parish property, 122–24 150n51, 185n11, 189n22, 195, 197. See
unity of law and theology, 117–21 also Unjust laws
Disciplinary law, 20–21 First Corinthians, 25, 25n41
Dispensation, 46–47 Forgiveness, of sin, 85–88. See also Sin
Divine law, 32, 33n86, 184–85 internal vs. external fora in, 86–88
Doctrinal law, 20 penance, 86, 86n43, 88, 88n49
Doctrinal Note, 158–59 postbaptismal forgiveness, 85–86
Dolan, John, 28n62 repentance and, 88
Dominium, 102, 104, 122, 136, 177 French Civil Code of 1804, 8n30
Donahue, Charles, 6n23 Friedrich, Carl J., 34n95
Donation of Constantine, The, 102 Fuller, Lon, 9, 11–12, 12nn48, 49, 13,
Donatist schism, 88 61n38, 83, 140, 191, 191n31, 192,
Doyle, Thomas P., 61n40, 82n26 195
Duchesne, Louis, 29n63 Fundamental rights, 188
Dulles, Avery, 174n3, 191, 191n33
Dworkin, Ronald, 9, 92, 92n68, 93, 140, G
144–45, 144n26, 145n27, 150, 150n52,
Gamaliel, 24
190, 190n27, 196n55
Ganz, David, 101n5, 104n23
Garnett, Nicole Stelle, 113n71
E
Garrity, R., 75n4
Ecclesia de Eucharistia, Number 37 Gasparri, Petrus Cardinal, 8n30, 35
of, 169 Gaudemet, Jean, 104n22, 28n61
Ecclesial reality, 21 Gauthe, Gilbert, 57
Education Week, 79, 79n19 Gauthier, Albert-M., 33n89
 index 221

General German Commercial Code of vs. congregationalist form, 124–29

1861, 8n30 Hierarchical relationship
General German Negotiable Instruments between diocesan bishop and parish,
Law of 1848, 8n30 121, 122, 123–24
General Norms, 37 between diocesan bishop and
Geoghan, John, 57, 57n26, 59, 70, 82 pastor, 120
Glendon, Mary Ann, 10n36 Hill, R., 75n3
Goodstein, Laurie, 141n9, 73n89 Historines, 146
Gratian, 31–32, 31n80 History of the English Law, 11
Grave sin, 152–54 Hobbes, Thomas, 110n62, 110n63
occult (private), 153, 154 Holdsworth, Sir William, 11, 11n40
public (well-known), 153–54 Holifield, E. Brooks, 67n52
public officials, attribution to Holmes, Oliver Wendell, Jr., 143
doubtful law, 162–63 Holy Communion, 141n8
formal and material cooperation, persons refused by, 146–47
159–61 Holy Communion, refusal to Catholic
individual conscience, 161–62 public officials
political autonomy, 158–59 application of law (Canon 915)
Greeley, Andrew, 68n71 effects of, 155–56
Green, Leslie, 193n42, justification for, 155
Green, Thomas J., 86n44 plain meaning of the words, 152–55
Gregory, Bishop Wilton, 73n86 indeterminacy claim. See Indeterminacy
Gregory XIII, 34, 35 claim
Grisez, Germain, 162n8 rule of recognition, 145–49
Grocholewski, Zenon, 39n120, 190n30 vs. command theory, 148–49, 148n43
Grosheide, F. W., 25n43 ecclesiastical authorities and,
146, 148
H law applying officials, 149
Raz, Joseph on, 149, 149n44
Habermas, Jürgen, 12–13, 12n52–13n56,
Holy Matrimony, 20, 20n12
193, 193nn44–46
Holy See, 42–43, 47, 48, 54, 56, 59–61, 74,
Haenchen, Ernst, 27n54
107, 128, 129, 136, 147, 189, 192
Hamburger, Philip, 125, 125n39
Hug, Walther, 6n23,25
Hart, H. L. A., 9, 11nn43,46, 12, 13, 91,
Hume, David, 110n65
91n66, 92, 139, 140, 140nn3,4, 145,
148–49, 149n45, 150, 151, 179, 183,
I
186–87, 186n12, 189, 192, 192nn36,38,
195, 197. See also Rule of recognition Imperium, 122, 136, 177
on morality, 11, 11n43 Indeterminacy claim, 143–45, 196–97.
on rule of law, 11, 11n44–11n47 See also Canon 915
Hayek, F.riedrich A., 11, 11n41, 145n28, concept, 143
182, 182n7 cross-cultural, 144
Heath, Douglas D., 7n28 doubtful law, 162–63
Heid, Stefan, 76, 76n5 formal and material cooperation, 159–61
Helmholtz, R. H., 5n16, 7n29, 52n3 formulation of, 143–44
Hermas, 86, 86n38 individual conscience, 161–62
Hermeneutic method, 150 legal realism and, 143, 143n19
Hervada, J., 89n54 linguistic indeterminacy and, 144
Hierarchical form of governance, 83 political autonomy, 158–59
222 index

Ingels, Gregory, 55n15 Kirkpatrick, David D., 141n9

Intellectus, 115, 184–86 Knowlesq, David, 33n91
International law, 42–43 Knox, John
Ius civile, 6, 6n25 on Paul of Tarsus, 24–25, 25n40
Ius gentium, 6, 6n25 Knox, Wilfred A., 25n46, 27n52
Ivo, Bishop of Chartres, 32, 32n82 Komanchak, Joseph A., 68n66
Kötz, Hein, 6n23
J Kuttner, Stephan, 14, 14n63, 17–18, 18n3,
33n92, 197–198, 198n58
James H., 74n91
Jedin, Hubert, 28n62 L
Jenkins, Philip, 76, 76n6, 79n19, 81–83,
82n24,25, 125, 125n42 Lacuna legis, 45–46, 143
Jeremias, Joachim, 85n37 Ladislas Örsy, S. J., 7n26
Joachim of Fiore, thought of, 3 Lambert, Edouard, 8n31
John Jay College of Criminal Justice, Latae sententiae, 46
56–57, 56n19, 57n21 Latin Rite, 54
John Jay Study, 77–78, 77n13, 79–80, 79n20 Laurent, Charles, 20n11
John Paul II, 1, 37, 41, 41n124, 53, 54, 63, Law
64, 72, 109, 147, 152, 159, 160, 161, internal aspect of, 149–51
162, 169, 188, 195n51. See also and theology. See Unity of law and
Wojtyla, Karol theology
John Rawls, A, 113n73 Thomistic definition of, 181
John XXII, 34 Lawrence, C. H., 107nn45,50
John XXIII, 36, 37, 53, 68, 68n66, 108 Le Bras, Gabriel, 34n95
Jolowicz, Herbert F., 34n96 Lebreton, Jules, 28n62
Jolowicz, Herbert H., 7n26 Lefebvre, Charles, 10n36, 45n137
Jones, Lisa M., 77, 77n12 Legal positivism, 163, 196, 197, 197n57
Jonsen, Albert R., 5n21 of Hart, H. L. A., 9, 139, 140
Judicial power, 39–41 pristine, 9, 139, 139n2
Justinian, 103n19, 104n24 Legal scholarship, 7–8, 7n27, 7n30–7n31
Legal systems, 9, 9n34, 186–90
primary rules of, 11
K
secondary rules of, 11
Kahn-Freund, Otto, 8nn31,32 Legalism, 170–71
Kairys, David, 143n21 authoritarian form of, 5–6
Kantorowicz, Hermann, 33n94 forms of, 4–6
Kasper, Walter, 69n74 letter of the law application, 6
Kauper, Paul G., 126n45 in nineteenth century, 65–67
Keeler, William Cardinal, 162n10 Legislative power, 39–41
Kelsen, Hans, 91, 91n65 Leibniz, Gottfried Wilhelm, 7n28
Kemp, Eric Waldram, 2n5 Levada, William J., 167n19
Kennedy, Duncan, 143, 143n22 Liber Sextus Decretalium, 34
Kennedy, Robert T., 43n132, 122, 122nn29, Liberal political theory, of church
32 property, 109–12
Kerry, John, 141, 164, 168 vs. catholic theory, 112–14
King, Martin Luther, Jr., 14, 14n60 Liddell, Henry G., 23n27
Kirk, Kenneth E., 5n20 Liguori, Alphonsus, 159, 159n5, 160
 index 223

Liptak, Adam, 70n79, 72n85 Motu proprio, 41

Liturgical law, 44 Mysterion, 29
Locke, John, 110n64
Loisy, Alfred, 17, 17n2 N
Lombardi, Federico, 2n4
Luther, Martin, 5, 5nn18,22 National Child Abuse and Neglect Data
on validity of canon law, 3–4, 4n10 System, 77
Natural law, 32, 33n86, 184–85
M Naturalistic fallacy, 196
Nature and Scope of the Problem of Sexual
Maclaren, Drostan, 104n27 Abuse of Minors by Catholics Priests and
Mahoney, John, 20n11 Deacons in the United States, The, 56,
Maida, Adam J., 115, 115n2, 134n74 56n19
Maitland, Frederic W., 34, 34n99 Nazi law, 11
Mannix v. Purcell, 128, 128n57 Fuller, Lon, 12
Marital status, and sexual abuse, 78–79 Hart, H. L. A. on, 11
Marius, Richard, 7n29 “Ne admittantur,” 152
Marriage. See also Celibacy, and sexual Neuhaus, Richard John, 142n10
abuse Newman, John Henry Cardinal, 19n9
nullity of, 48 Newman, Rabbi J., 23n33
as a state of life, 89, 89n57 Newman, Ralph A., 10n36
Martinez-Torron, Javier, 10n36 New York Times, 2, 2n3
McCann, Dennis P., 105n35 on sexual abuse by Protestant churches,
McGrath, John J., 115, 115n1 79, 79n18
McGreevy, John T., 125, 125n40 Nicholas, Barry, 7n26, 26n48
McKenna, Kevin E., 65n52 Novatians, 86, 86n41
McMahon, Kevin T., 153n60 Novo Millennio Ineunte, Number 44 of,
McManus, Frederick R., 115n2 195n51
Media, and sexual abuse, 1
Medieval canonists, 31–35
O
legal writings, 31–33, 31n76–31n77
methodology of, 33–34 O’Brien, Raymond C., 51n2, 87n45
and Roman law, 31–34 “Obstinately persists,” 154–55, 154n63
Meier, John P., 17n2, 85n37 Ojetti, Benedict, 39n120
Minor O’Malley, John W., 52n3
defined, 54 O’Malley, Sean, 168
sexual abuse of, 1, 1n1. See also Sexual On Some Questions Regarding the
abuse Participation of Catholics in Political
Molester, 57. See also Sexual abuse Life, 158
Montanists, 86, 86n41 Onclin, Willy, 40n121
Moorman, John, 107nn48,52 Ordinary, and investigation of sexual
Moral theology, 19–20, 20n11 abuse allegations, 55
Morality, 11, 11n43 Original sin. See also Sin
Morality of Law, The, 12 and canon law’s limitation, 84. See also
More, Thomas, 7, 7n29 Grave sin
Morrisey, Francis G., 59n30, 62n43, 71, private property as, 100–101, 100n3
71n81, 122, 122n30 Örsy, Ladislas, 68n65
Mörsdorf, Klaus, 18, 48, 180 Otaduy, Javier, 47n147
224 index

P parish property, 122–24

unity of law and theology, 117–21
Parish, diocese and legalistic approaches to, 133–37
parish property, 122–24 liberal political theory of, 109–12
unity of law and theology, 117–21 vs. catholic theory, 112–14
Particular laws, 41–42 medieval approaches to, 104–7
Pastor Bouns, 41 nineteenth-century struggle, 124–29
Paul of Tarsus, 18–19, 19n7, 24–26, ownership in early church, 101–4
146, 175 private property. See Private property
Paul VI, 38, 46n141 social teaching of, 108–9
Pedophiles and Priests: Anatomy of a state law and. See State law
Contemporary Crisis, 81–82, 82n24 Protestant churches, and sexual
Pelikan, Jaroslav, 18, 18n6 abuse, 79
Penalties, for sexual abuse, 85, Provida mater, 36, 36n103
85n34–85n36 Pryor, Douglas W., 78, 78n16
People of God, The, 37 Public officials, refusing Holy
Pepper, Stephen L., 143n19 Communion to. See Catholic public
Pio-Benedictine Code, 35 officials, refusing Holy Communion to
Pius X, 35, 108 Public school students, sexual abuse of,
Pius XII, 36, 36n104, 37, 62 79, 79n19
Plato, 6n24 Public school teachers, sexual abuse by,
Pontifical Commission, 36, 37, 38 79, 79n19
Porter, James, 57, 82 Public usurers, 146
Porter, Jean, 113n74 Putnam, Hilary, 196n56
Poschman, Bernhard, 85n36
Positive law, 32–33, 33n86, 185 R
Posner, Richard A., 144n23
Pound, Roscoe, 8n31 Radin, Margaret Jane, 99, 99n2
Powers of governance, 38–40 Rashdall, Hastings, 31n79
Praetor peregrinus, 6–7, 7n26 Ratzinger, Joseph, 2, 3, 3n7, 18n5, 107n47,
Priest pedophilia, 2, 2n3 147, 174n3
Priesthood, as a state of life, 88–90 Rawls, John, 9, 113
Private property Raz, Joseph, 9, 9n34, 11n42, 12, 91, 92,
anthropological basis for, 98–100 92n67, 140, 145n29, 150, 150nn48,49,
necessity of, 99 157, 187, 187n17, 194, 194n48
and reason and freedom of human on rule of law, 11, 11n42
person, 98–99 on rule of recognition, 149, 149n44
and social nature of human Reason, faith and, 48–49
person, 99 Reeves, Marjorie, 3, 3n6
theological qualification, 99–100 Reiman, Mathias, 6n23
as original sin, 100–101, 100n3 Religious priests, accused of sexual
Privilege, 47–48 abuse, 78
Procedural justice, 191–93 Rietmeijer, Jan, 4n12
Process, canonical, 54–56, 58–64, Right to privacy, 87, 87n46
189–93, 197 Right to receive the sacraments, 167,
Process, revision of CIC-1983, 37, 188 167n19
Property, 176–79 Rocca, María J., 48n151
antinomian approaches to, 133–37 Rodes, Robert E., 14, 14n62, 33n89
diocese and parish, 116–17 Rodopoulos, Panteleimon, 2n5
 index 225

Roe v. Wade, 149 Congregation for the Doctrine of the

Roman Pontiff, 20, 120, 190, 194 Faith on, 56
and bishops, 118–19 contentious penal process for, 55–56
dispensation, 46 as a general problem, 77–78
election of, 1n2 investigation, adjudication, and
judicial power, 41 resolution, 52–56
legislative power, 38 marital status and, 78–79
promulgation of canon laws, 38 statistical evidence of, 56–58
universal laws, 41 Sexual contact, between cleric and minor,
Roman Ritual, 146, 146n36 53–54
Roper, William, 7n29 Sexual perversion, and celibacy, 82
Rule of law, 10–14 Sexual sin, 84, 84n31
indeterminacy claim. See Shanley, Paul, 57, 57n26, 70
Indeterminacy claim Sheehan, Michael M., 4–5, 5n17
procedural justice and, 191–93 Sherman, Charles P., 33n90
substantive justice and, 193–95 Shklar, Judith N., 4n14, 193n43
unjust laws and. See Unjust laws Sin
Rule of recognition, 145–49 and canon law’s limitation, 84
vs. command theory, 148–49, 148n43 forgiveness, of sin, 85–88
ecclesiastical authorities and, 146, 148 grave sin. See Grave sin
law applying officials, 149 original sin
Raz, Joseph on, 149, 149n44 private property as, 100–101, 100n3
sexual sin, 84, 84n31
Singer, Joseph, 143n20
S
Sinners, public and notorious, 146–47,
Sacra potestas, 183–84. See also Sacred 146n36, 147n37
power Sipe, A. W. R., 61n40, 82n26
Sacramental absolution, 156 Sixth Commandment, 52–53, 52n6
Sacraments, right to receive, 167, Smith, Margaret Leland, 57n21
167n19 Social construction of reality, 81–83
Sacramentum, 29 Société de Législation Comparée,
Sacred power, 39, 94, 183–84, 197 8n31
Sacred scripture Sohm, Rudolf, 17, 17n1
and tradition, 19, 19n10 Southern, R. W., 102n15
Salus animarum, 155 Spedding, James, 7n28
Sanctifying Function of the Church, Spirit age, 3
The, 37 Stanley, Alexandra, 57n20
Sanctions in the Church, 37 State law
Schnackenburg, Rudolf, 22n23 and canon law, 129–31
Scientific method and law, 149–59 diocese and parish in, 132–33
Scott, Robert, 23n27 Statement of Six Principles, for
Semikhah, 23, 23n33 Canon 915 application, 147–48,
Semper reformanda, 3 147n42
Serial child abuse, 82 Statistical evidence, of sexual abuse,
Setién, José, 4n11 56–58, 56n19–56n28, 77–81
Sexual abuse, 1, 1n1, 75–81, 175–76 Stop sign, 144
canonical process difficulties and, Strauss, Peter L., 39n117
58–64 Substantive justice, 193–95
celibacy and, 75–81 System of law, canon law as, 186–90
226 index

T V
Tamanaha, Brian Z., 13n56 Van Hoecke, Mark, 10nn35,37
Teaching Function of the Church, The, 37 Vasoli, Robert H., 63n46
Tejero, Eloy, 44n136 Von Balthasar, Hans Urs, 3n9, 22n20,
Temporal Goods of the Church, The, 37 102n16, 106n41, 124n37, 184n10
Terry, Karen, 57n21 von Hertling, Ludwig F., 119n19
Tertullian, 28–29
Theology, law and. See Unity of law and W
theology
Tierney, Brian, 4n16, 188n22 Wall, Patrick J., 61n40, 82n26
Toulmin, Stephen, 5n21 Weigel, George, 2n4
Tradition Weil, Simon, 98, 98n1, 100
development of, 19, 19n9 Weisberg, D. Kelly, 70n78
sacred scripture and, 19, 19n10 Wiljens, Myriam, 18n5
Trisco, Robert F., 65nn53 & 54, 66nn56, 60 Winninger, Paul, 36n105, 69n72
& 61, 67n64 Winroth, Anders, 32n80
Twain, Mark, 82n28, 125n41 Woestman, William H., 55n12, 56n17,
63n44, 64n50
U Wojtyla, Karol, 174n2

United States Conference of Catholic Z

Bishops, 56
Unity of law and theology, 15, 37, 48–49 Zeiller, Jaques, 28n62
church property and, 117–21 Zero-tolerance policy, 73
Universal law, 41 Zimmermann, Reinhard, 6n23
Universi Dominici gregis, 41 Zirk-Sadowski, Marek, 10, 10n37
Unjust laws, 13–14, 195–96 Zweigert, Konrad, 6n23
Urrutia, Francisco J., 39n120
Usurers, 146
Utopia, 7, 7n29