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THE DISCORD AND THE RECONCILIATION BETWEEN CANON 221 HIGHLIGHTING THE PROTECTION OF THE RIGHT OF THE FAITHFUL NOT TO BE PUNISHED EXCEPT ACCORDING TO LAW AND CANON 1399 PROVIDING FOR A PENALTY IN CERTAIN EXTRAORDINARY CIRCUMSTANCES EVEN IF NO CANON EXPLICITLY PENALIZES THE PARTICULAR VIOLATION OF A DIVINE OR CANONICAL LAW

All the baptized form the ‘People of God.’ By the fact of baptism we are incorporated into God (internal forum) and into the People of God (external forum). As people of God, we are persons in the Church. Persons who are baptized and in communion with the Roman Catholic Church are the subjects of rights and obligations in the community. That means we have a juridic personhood. We have official standing in the Church’s system of rules (c. 96). Within the Catholic Church, the faithful are described canonically as either lay persons or as ordained ministers (c. 207/1). They all belong to the hierarchical constitution of the Church. In addition to that, from both the groups, people consecrate themselves by way of evangelical profession. They are the religious; and they belong to the life and holiness of the Church; they don’t belong to the hierarchy of the Church. In spite of all these differences, all the baptized are equal in dignity in the Church. Though there is a functional difference, there is a fundamental equality among all the baptized. All the faithful they have equal rights. Book II, The People of God treats with the obligations and rights of all the faithful, the lay Christian faithful, the clerics and finally the institutes and their members. One such basic Christian right is the right of the faithful not to be penalized except according to law (c. 221/3). c. 221 stands for the protection of the rights of the faithful. The following three principles are employed here in this canon: i) the right to vindicate and defend one’s rights; ii) the right to due process applied with equity; and iii) the right not to be penalized except in accordance with law. Therefore, the Church must promote and protect the human rights and freedom within the Church. This is very central and fundamental to the service of the Church to the people of God. The faithful have these rights as they are the children of God. As we have canons standing for the protection of the rights of the faithful, we do have the canon 1399 in Book VI, i.e. Sanctions in the Church, which is a general norm providing for a penalty in certain extraordinary circumstances even if no canon explicitly penalizes the particular violation of a divine or ecclesiastical law. This canon provides for a discretionary, indeterminate, ferendae sententiae penalty for any believer in exceptional circumstances where the Code does not penalize a legal violation. To invoke the application of this canon, the following conditions are to be verified: i) it has to be an external act; ii) there is to be a violation of a divine law or a canonical law; iii) there is to be a seriousness of the offense, instantly necessitating some action by the competent authority; iv) and finally there is to be an urgency to prevent or repair the damage done to the community. Some favour this canon arguing that it is impossible to list comprehensively all delicts notably impairing the Church’s integrity and mission; and therefore, there is a huge necessity of having this canon in the Code for the welfare of the community. Now this canon seems to be contradictory with c. 221 which stands for the protection of the rights of the faithful. c. 221 stands for the principle of legality, i.e. no penalty without a law. We can better translate it in canon law as ‘no penalty without culpability.’ Therefore, though one side c. 1399 is favoured, on the other side, some have a very critical outlook on this canon. They basically question the practical effectiveness of this canon and they do fear that this canon might lead to some arbitrary action by church authorities. In that case, it is a violation of the basic Christian right not to be penalized except in accordance with law. They also offer an alternative arrangement by way of a proposal that problematic disciplinary situations for which there is no legal sanction could be addressed by issuing pertinent penal precepts. But it requires a great amount of responsibility on the part of the church authority to deal with those situations.  When the contrary views were shared on c. 1399 in the Code Commission, what happened was that the apparently legitimate concerns about protecting the integrity of the Church’s mission and precluding spiritual damage to persons prevailed over reasonable concerns for legal security and the rights of believers. Therefore, we can say that this contradiction between c. 2213 and c. 1399 was there right from the time of the Code Commission. It was not actually resolved fully. It still continues. And that’s where it becomes a matter of research to explore and to find out some reconciliation between these two canons.

Date:4 Dec 2019  →  Today
Keywords:Right
Disciplines:Theology and religious studies not elsewhere classified
Project type:PhD project