ByJuan Ignacio Arrieta*
Osservatore Romano
December 2, 2010

http://www.vatican.va/resources/resources_arrieta-20101202_en.html

[See also the original Italian text.]

In the coming weeks, the Pontifical Council for Legislative Texts will distribute to its Members and Consultors the draft of a document containing suggestions for the revision of Book VI of the Code of Canon Law, the basis of the Church’s penal law system. For almost two years a commission of experts in penal law has been re-examining the text promulgated in 1983, to maintain the general plan and the existing numbering of the canons, while revising some of the decisions taken at the time, which can be seen to be insufficient.

This initiative originated in a task entrusted to the new Superiors of the Dicastery by Benedict XVI on 28 September 2007. In the course of that exchange it became clear that the initiative sprang from a deeply-held conviction of the Pontiff, the fruit of years of personal experience, and from his concern for the integrity and the consistent application of Church discipline. This conviction and this concern guided the steps of Cardinal Joseph Ratzinger since he took office as Prefect of the Congregation for the Doctrine of the Faith, despite the objective difficulties deriving, among other factors, from the particular legislative situation of the Church at the time, in the wake of the promulgation of the 1983 Code of Canon Law. To facilitate a better understanding, it is helpful here to recall certain elements of the newly revised legislative framework of the time.

The Penal Law System of the Code

The juridical layout of the penal law system of the 1983 Code is substantially different from that of the previous Code of 1917 and it matches the ecclesiological context delineated by the Second Vatican Council. The principles of subsidiarity and “decentralization” have a key role in shaping penal discipline; the latter concept indicates the greater weight given to particular law, and especially to the initiative of individual Bishops in their pastoral governance, since they, as the Council teaches (cf. Lumen Gentium, 27), are Vicars of Christ in their respective dioceses. In most cases, in fact, the Code entrusts to the judgement of local Ordinaries and Religious Superiors the task of discerning whether or not to impose penal sanctions and how to do so in particular cases.

There is a further factor, though, which marks the new canonical penal law even more profoundly: the juridical procedures and safeguarding mechanisms that were established for the application of canonical penalties. Consistently with the listing of the fundamental rights of all the baptized (included in the Code for the first time), there were now systems to protect and safeguard these rights, drawn partly from the Church’s canonical tradition and partly from other areas of juridical experience: sometimes this was done in a way that did not fully accord with the reality of the Church throughout the world. Guarantees are essential, especially in the penal law system; but they must be balanced and they must also allow the collective interest to be effectively safeguarded. Subsequent experience has shown that some of the particular means adopted by the Code to guarantee rights were not a sine qua non and could have been replaced by other safeguards more in harmony with the reality of the Church: in some cases they even presented an objective obstacle – at times an insurmountable one given the scarcity of resources – to the effective application of the penal law system.

One could say, paradoxical though it may now seem, that of all the books of the Code, Book VI on penal sanctions was the one that “benefited” least from the constant fluidity that characterized the normative framework of the postconciliar period. Other areas of canonical discipline at the time could be assessed in the light of practical ecclesial reality by evaluating positively or negatively the results of various norms ad experimentum when it came to drawing up the definitive norms of the Code. The new penal law system, however, being “completely new” in relation to what had gone before, or almost so, lacked this “opportunity” for experimental evaluation, and so it was established practically ex nihilo in 1983. The number of delicts listed had been drastically reduced to include only particularly grave forms of conduct, and the imposition of sanctions was dependent upon the criteria of evaluation – inevitably diverse – of each individual Ordinary.

It should be added that in this area of canonical discipline, a widespread anti-juridical bias has exercised, and continues to exercise, a degree of influence, giving rise, among other things, to the difficulty of harmonizing the demands of pastoral charity with those of justice and good governance. Even the wording of some canons in the Code, where tolerance is invoked, could be unduly misinterpreted as seeking to dissuade the Ordinary from applying penal sanctions where the demands of justice require them.

A Request from Cardinal Ratzinger (19 February 1988)

Within this legislative framework a contrasting element emerged in the shape of a letter dated 19 February 1988 from the Prefect of the then Sacred Congregation for the Doctrine of the Faith, Cardinal Joseph Ratzinger, to the President of the then Pontifical Commission for the Authentic Interpretation of the Code of Canon Law, Cardinal José Rosalío Castillo Lara. It is an important and unique document that draws attention to the negative consequences produced in the Church by some of the options contained within the penal law system established barely five years earlier. This document has come to light in the context of the work being carried out by the Pontifical Council for Legislative Texts on the revision of Book VI.

The reason for writing the letter is clearly explained. The Sacred Congregation for the Doctrine of the Faith was competent at the time for examining petitions for dispensation from the priestly obligations assumed at ordination. Such dispensations were granted as a maternal gesture of grace on the part of the Church after, on the one hand, examining attentively the full circumstances of the particular case and, on the other hand, taking into account the objective gravity of the obligations undertaken before God and the Church at the moment of priestly ordination. Yet the circumstances motivating some of the requests for dispensation were anything but deserving of a gesture of grace. The text of the letter sets out the problem eloquently:

“Your Eminence, this Dicastery, in the course of examining petitions for dispensation from priestly obligations, has to deal with cases of priests who, in the exercise of their ministry, have been guilty of grave and scandalous conduct, for which the Code of Canon Law, after due process, provides for the imposition of specific penalties, not excluding reduction to the lay state.

“These provisions, in the judgement of this Dicastery, ought in some cases, for the good of the faithful, to take precedence over the request for dispensation from priestly obligations, which, by its nature, involves a 'grace' in favour of the petitioner. Yet in view of the complexity of the penal process required by the Code in these circumstances, some Ordinaries are likely to experience considerable difficulty in implementing such a penal process.

“I would be grateful to Your Eminence, therefore, if you were to communicate your valued opinion regarding the possibility of making provision, in specific cases, for a more rapid and simplified penal process”.

The letter expresses, first and foremost, the natural repugnance of the system of justice towards bestowing as an “act of grace” (dispensation from priestly obligations) something which should instead be imposed as a punishment (dismissal ex poena from the clerical state). As a means of avoiding the “technical complications” of the process established by the Code for punishing delicts, recourse was sometimes made to a “voluntary” request on the part of the offender to leave the priesthood. In this way the same “practical” result, so to speak, could be achieved, namely the expulsion of the subject from the priesthood – if this was the penal sanction called for – while at the same time circumventing a “burdensome” juridical process. It was a “pastoral” way of proceeding, as we tended to say in such cases, at the margins of what the law prescribed. Nevertheless, this approach also sidestepped justice and – as Cardinal Ratzinger explained – it unjustly omitted from consideration “the good of the faithful”. This was the central motive for the request, and it was the reason for asserting the need for precedence in these cases to be given to the imposition of just penal sanctions through a more rapid and simplified process than the one provided in the Code of Canon Law.

It should be noted that, while the Code recognized the existence of a specific jurisdiction on the part of the Congregation for the Doctrine of the Faith in penal matters (can. 1362 §1, 1° CIC), one not limited to cases of evidently doctrinal character, it was not at all evident in the normative context of that time which other specific crimes would fall under the penal competence of that Dicastery. Canon 6 of the Code, moreover, had expressly abrogated all other previously existing penal laws.

Cardinal Ratzinger's letter presupposes, therefore, that juridical responsibility in penal matters lies with Ordinaries or Religious Superiors, as is indicated by the letter of the Code.

The Response (10 March 1988)

After an interval of three weeks, the reply came from Cardinal Castillo Lara in a letter dated 10 March 1988. The swiftness and the content of the response can be understood if one takes account of the particular legislative situation at the time: since the vast work of compiling the Code had only just been completed, having occupied the Commission for decades, the task of adjusting other norms of universal and particular law was still in progress. The response was certainly sympathetic to the motivation of the request and the appropriateness of the criterion of giving precedence to penal sanctions over the concession of graces; inevitably, though, it also confirmed the prior necessity of duly observing the norms of the newly promulgated Code.

“I can well understand Your Eminence’s concern at the fact that the Ordinaries involved did not first exercise their judicial power in order to punish such crimes sufficiently, even to protect the common good of the faithful. Nevertheless the problem seems to lie not with juridical procedure, but with the responsible exercise of the task of governance.

“In the current Code, the offences that can lead to loss of the clerical state have been clearly indicated: they are listed in canons 1364 §1, 1367, 1370, 1387, 1394 and 1395. At the same time the procedure has been greatly simplified in comparison with the previous norms of the 1917 Code: it has been speeded up and streamlined, partly with a view to encouraging the Ordinaries to exercise their authority through the necessary judgement of the offenders 'ad normam iuris' and the imposition of the sanctions provided.

“To seek to simplify the judicial procedure further so as to impose or declare sanctions as grave as dismissal from the clerical state, or to change the current norm of can. 1342 §2 which prohibits proceeding with an extra-judicial administrative decree in these cases (cf. can. 1720), does not seem at all appropriate. Indeed, on the one hand it would endanger the fundamental right of defence – and in causes that affect the person’s state – while on the other hand it would favour the deplorable tendency – owing perhaps to lack of due knowledge or esteem for the law – towards ambivalent so-called ‘pastoral’ governance, which ultimately is not pastoral at all, because it tends to obscure the due exercise of authority, thereby damaging the common good of the faithful.

“At other difficult times in the life of the Church, when there has been confusion of consciences and relaxation of ecclesiastical discipline, the sacred Pastors have not failed to exercise their judicial power in order to protect the supreme good of the ‘salus animarum’”.

The letter then proceeds with an excursus on the debate which had taken place during the revision of the Code prior to the decision not to include so-called dismissal ex officio from the clerical state. “All things considered”, the reply concluded, “this Pontifical Commission is of the opinion that Bishops must be suitably reminded (cf. can. 1389), whenever it should prove necessary, not to omit to exercise their judicial and coercive power, instead of forwarding petitions for dispensation to the Holy See”.

While agreeing on the fundamental requirement to protect “the common good of the faithful”, the Commission considered it dangerous to circumvent certain practical safeguards, preferring instead to exhort those in positions of responsibility to implement the provisions of the law. The exchange of letters was concluded with a courteous reply, dated the following 14 May, from Cardinal Ratzinger:

“I am pleased to inform you that this Dicastery has received your valued opinion on the possibility of providing for a swifter and more simplified procedure than the one currently in force for the imposition of sanctions by competent Ordinaries on priests guilty of grave and scandalous conduct. In this regard, I wish to assure Your Eminence that the arguments you have put forward will be carefully considered by this Congregation”.

Competences further extended (28 June 1988)

The issue appeared to be formally closed, but the problem had not been resolved. In fact, the first important sign of a change in the situation took place just one month later, with the promulgation (28 June 1988) of the Apostolic Constitution Pastor Bonus, which altered the overall structure of the Roman Curia as established in 1967 by Regimini Ecclesiae Universae, and reallocated the competences of individual Dicasteries. Article 52 clearly laid down the exclusive penal jurisdiction of the Congregation for the Doctrine of the Faith, not only with regard to offences against the faith or in the celebration of the sacraments, but also with regard to “more serious offences against morals”, proceeding to the declaration or imposition of canonical sanctions in accordance with the norms of common or proper law”.

This text, evidently suggested by Cardinal Ratzinger’s Congregation on the basis of its own experience, is directly related to what we are examining, and with respect to the previous situation the change introduced by the Apostolic Constitution Pastor Bonus is of some importance. Within a normative framework governed by the above-mentioned criteria of “subsidiarity” and “decentralization”, then, Pastor Bonus now executed a juridical act of “reservation” to the Holy See (cf. can. 381 §1) of a whole category of offences that the Supreme Pontiff entrusted to the exclusive jurisdiction of the Congregation for the Doctrine of the Faith. It is quite unlikely that a choice of this kind, better defining the competences of the Congregation and revising the Code’s criterion regarding who should apply these canonical penalties, would have been implemented at all if the overall system had been working well.

The norm in question, however, was still insufficient at the practical level. Elementary requirements of the certainty of law now made it necessary to identify exactly what these “more serious offences against morals” were, that Pastor Bonus was entrusting to the Congregation, withdrawing them from the jurisdiction of Ordinaries.

Two Subsequent Interventions of Importance

The events described thus far occurred within a short period of time: a few months during the first half of 1988. In the years that followed efforts were still being made to address emergency situations arising within the Church’s penal sphere by following the general criteria of the 1983 Code as broadly summarized in the letter from Cardinal Castillo Lara. There were moves to encourage the intervention of local Ordinaries, sometimes accompanied by efforts to streamline the procedures, if necessary by means of a special law, mainly through dialogue with the Episcopal Conferences.

Yet repeated experience confirmed the inadequacy of these solutions and the need to find others of greater scope, operating on a different level. Two solutions in particular significantly altered the framework of canonical penal law on which the Pontifical Council for Legislative Texts has been obliged to work in recent months, and both were instigated by the current Pontiff, in perfect continuity with the concerns he expressed in the above-mentioned letter of 1988.

The first initiative, now quite widely known, concerns the preparation in the late 1990s of the Norms on the so-called delicta graviora, which effectively implemented article 52 of the Apostolic Constitution Pastor Bonus by specifically indicating which crimes against morals were to be considered “more serious” – thus bringing them under the exclusive jurisdiction of the Congregation for the Doctrine of the Faith.

These Norms, finally promulgated in 2001, inevitably appeared to “go against” the criteria provided by the Code for the application of penal sanctions, so much so that in many areas they were immediately branded “centralizing” norms, whereas in reality they were responding to a particular need for “completion”, aimed in primis at resolving a serious ecclesial problem regarding the proper functioning of the penal system and in secundis at ensuring uniform treatment of this type of case throughout the Church. To this end the Congregation had first to prepare the relevant internal procedural norms, and likewise to reorganize the Dicastery so as to harmonize this judicial activity with the processual rules of the Code.

After 2001, moreover, and on the basis of the juridical experience acquired, Cardinal Ratzinger obtained from John Paul II new faculties and dispensations to deal with the various situations, to the point of actually defining new offences. These subsequent modifications are now codified in the Norms on the delicta graviora published by the Congregation last July.

There is, however, a second initiative of Cardinal Ratzinger that helped to change the overall application of the Church’s penal law, namely his intervention as a Member of the Congregation for the Evangelization of Peoples in the preparation of the special faculties that, similarly by way of necessary “completion”, were granted to that Congregation for purposes of addressing other kinds of disciplinary problems in mission territories.

It is not hard to understand that, owing to the scarcity of resources of every kind, the obstacles to implementation of the Code’s penal law system were felt particularly keenly in mission territories dependent on the Congregation for the Evangelization of Peoples, which represent almost half of the Catholic world.

Hence, in its Plenary Assembly of February 1997, the Congregation decided to request from the Holy Father “special faculties” which would allow it to act administratively in specific penal situations on the margins of the general provisions of the Code: the Relator of that Plenary Assembly was Cardinal Ratzinger. It is public knowledge that these “faculties” were updated and extended in 2008, while others of a similar nature, have since been granted to the Congregation for the Clergy.

Experience will tell to what extent the modifications to Book VI will succeed in restoring balance, making special measures no longer necessary. In any case, the role played in this more than 20-year process of renewing penal discipline, by the decisive action Cardinal Ratzinger, has been crucial, to the point that it truly constitutes one of the “constant elements” that have characterized his Roman years from the very first.

* Titular Bishop of Civitate
Secretary of the Pontifical Council for Legislative Texts