The Church which is
both human and divine is governed by divine and human ecclesiastical laws.
These laws are as old as the Church even though changes, adaptations,
amendments or additions have been made as time passes. The notion of separation
has developed along with the history of the Church. For this reason we will
treat of this separation as found in Scriptures, patristic writings, canon laws
from various ecumenical councils and other canonical writings with legal
authority.
According to the
scriptural background of some canonical provisions, the primary lawgiver is
God. In fact, God has made known his law
to people by means of revelation or the Holy Scripture.
In relation to the punitive power of the Church,
it is important to point out the fact that,
While the Church is a graced community empowered by the
Holy Spirit, its members are sinners reflecting the limitations of human
condition. Occasionally their attitudes are contrary to faith (e.g., heresy) or their behavior
contradicts the Christian way of life (e.g., clerical sexual abuse of minors). This disturbs the community of
faith and brings such persons into conflict especially
with those in authority whose responsibility is to foster the integrity of the
community`s faith, communion, and
service.[1][72]
It can be said
from what precedes that one of the ways to protect the good of the Church and
of the individual is to initiate the separation of those who breach the
Church’s law. As compared to civil penal law which penalizes those who breach
the public order, the Church’s salvific purpose gives its penal order a unique
character which must always be remembered. In other words, the Church’s penal
activity must reflect its redemptive, healing character by primarily affirming
ecclesiastical unity through faith and charity rather than condemning
individuals expressing heterodox positions or behaving in ecclesiastical
detrimental fashion. The Church authorities should deal patiently and
charitably with those violating community ideals.[2][73] Not every sin is an
ecclesiastical delict warranting a penalty, and not every canonical violation
is a delict warranting a penalty.
In the Old
Testament, there are passages which portray the role of law in the community
and the punishment attached to the breach of law. In the First Book of Samuel,
Saul was rejected as King for not obeying the Lord`s command. He was anointed
King of Israel and was sent out with orders to destroy the wicked people of
Amalek but Saul did not obey the Lord, he rushed to seize the loot and so, did
what displeased the Lord. The punishment of Saul by God is expressed in these
words: “For rebellion is as the sin of divination, and stubbornness is an
iniquity and idolatry. Because you have rejected the word of the Lord, he has
rejected you from being King” (1Sam15:23). In the same way, God foresees
punishment for one who persists in disobedience: “If anyone goes for advice to
people who consult the spirits of the dead, I will be against him and will no
longer consider him one of my people”(Leviticus20:6). It means that among the
reasons for being separated from God and from the community there is
disobedience.
It appears clearly that the law as found in
the Old Testament went up to prescribing death for some delicts. For example,
if a man commits adultery with the wife of a fellow-Israelite, both he and the
woman shall be put to death. A man who has intercourse with one of his father`s
wives disgraces his father, and both he and the woman shall be put to death.
They are responsible of their own death. If a man marries his sister or
half-sister, they should be publicly disgraced and driven out of the community
(Leviticus20:10-11; 17). In the Book of Numbers, a man was stoned to death by the
whole community outside the camp at the command of the Lord because he broke
the Sabbath:
Once, while the Israelites were still in the wilderness,
a man was found gathering firewood on the Sabbath. He was taken to Moses,
Aaron, and the whole community, and was put under guard, because it was not
clear what should be done with him. Then the Lord said to Moses, “The man must
be put to death; the whole community is to stone him to death outside the
camp.” So the whole community took him outside the camp and stoned him to
death, as the LORD had commanded. (Numbers15:32-36).
In the New
Testament, there are passages which also treat of separation of the people from
the community because of their wrong doing. In the first place, Matthew`s
Gospel 18:15-20 contains a three-steps process for dealing with personal
disputes or “conflict resolution” which is also paradigmatic for Christian
communities.
If your brother sins against you go to him and show him
his fault. But do it privately, just between yourselves. If he listens to you,
you have won your brother back. But if he will not listen to you, take one or
two other persons with you, so that ‘every accusation may be upheld by the
testimony of two or more witnesses,’ as the scripture says. And if he will not
listen to them, then tell the whole thing to the Church. Finally, if he will
not listen to the Church, treat him as though he were a pagan or a tax
collector.[3][74]
This three-step
process has its roots in the Jewish legal tradition (Dt19: 15) but it also
reflects the actual practice of Matthew’s community when dealing with those who
do not abide by community standards. This process provides a classic pattern
for conflict resolution and reconciliation within the community. It also reminds us that, in a procedural way
of dealing with those who have committed delicts, one must be penalized after
establishing imputability.
Another biblical
passage is from Mk 9:42. This passage portraits in one way or the other the
punishment of the heretics and schismatics: “If anyone should cause one of
these little ones to lose his faith in me, it would be better for that person
to have a large millstone tied round his neck and be thrown into the sea.”
The Pauline letters have enough material which
treats about exclusion of members from the community. We read in the first
letter of Saint Paul to the Corinthians that immorality in the Church must be
prohibited. In chapter five of this letter, Saint Paul rebukes the sexual
immorality among Corinthians. After being told how men are sleeping with their
stepmother, Paul said that they should be expelled from the fellowship.[4][75]
To conclude, some
sanctions draw there origin from the Scriptures. In the community of believers,
those who do not want to comply with regulations may incur the penalty of
exclusion which must be taken as the last resort after exhausting pastoral
means of helping the person to remain part of the community.
According to the history
of the Church, the Apostles received from Jesus Christ the power to issue laws
for the universal Church. These laws are contained in Scripture and in the
Church Tradition. The Bishops, as successors of the Apostles and Church Fathers
and other great theologians have contributed to the legislation of the Church
in their own time.
In the first
place, we have to make clear what we mean by Fathers of the Church and Doctors
of the Church. The Fathers of the Church in a restricted sense, is a term applied
to a group of Greek-language writers who were among the martyrs and major
figures of the 1st and 2nd centuries in the Christian
Church. In a wider sense, “Fathers of the Church” is a name given by the
Christian Church to the writers who established Christian doctrine before the 8th
century. The writings of the Fathers, or
patristic literature, synthesized Christian doctrine as found in the Bible,
especially the Gospels, the writings of the Apostolic Fathers, ecclesiastical dictum, and decisions of Church
councils.[5][76]
In the early
Church, the form of separation of members from the community was called
“excommunication.”[6][77] By definition, excommunication is an
ecclesiastical censure whereby a member of the Church is deprived of the
benefits and privileges of membership that means he is separated from the
Church. Excommunication is the most serious ecclesiastical censure; it is
rather a corrective than a vindictive form of punishment.
The power of
excommunication was recognized since the inception of the Christian Church. Two
degrees of excommunication, major and minor excommunications, were defined
early in Church history. Minor excommunication involved exclusion from the
sacrament of the Eucharist and from the full privileges of the Church. Major excommunication
was pronounced upon obstinate sinners, relapsed apostates, and heretics; its
form was more solemn, and it was less easily revoked. The duration of the
excommunication was decided by the Bishop.[7][78]
It is worthy noticing
that, in Africa and Spain, the absolution of lapsed individuals, those who, in
times of persecution had fallen away from their Christian profession by actual
sacrifice to idols, was for the most part forbidden except at death. In the
early Church, no civil disabilities were connected with excommunication, but as
governments became Christian, major excommunication was followed by loss of
political rights and exclusion from public office.
Separation in the
period between the third century and the decree of Gratian is mostly
characterized by the excommunication of heretics. This does not mean that there
were no heresies before the third century. In the early Church, whenever a
believer deviated from the original message, he was rejected by the Church.
This rejection is apparent in the first Apostolic community (cf. Mt 7: 15-23;
24:11), in those of John (cf. 1Jn 4: 1-6) and in the Acts 24: 5; 24: 14; 28:
22. It means that from the very beginning, there were heresies within the
Church. The heretical groups in opposition to the early Church were connected
either with Jewish parties or with the Hellenistic schools of philosophy.
In the history of
heretical groups, Fathers of the Church considered the Samaritan Simon Magus or
Simon the Magician as the first heretic (Acts8:9-25). He tried to buy the power
of making the Holy Ghost come down upon the faithful, with money and gave his
name to “Simony”, which was later regarded as one of the greatest of heresy[8][79]. Simon the Magician was one of the leaders of
Gnosticism. Gnostics considered themselves as original thinkers who could not
conform to the faith of simple believers.
Gnostics followed the oldest known heresy in
the history of the Church, that of the Judaizers. The Judaizing heresy was the
obstinate error of those who opposed the extension of the ranks of the Church
so that pagans could enter it en masse.
These heretics rejected the dogma of the catholicity of the Church.[9][80] Among the Gnostic sects, there was one which
worshipped the serpent of the paradise. These worshippers are called Ophites,
or Worshippers of the serpent. Thereafter, came the heresy called Montanism.
This heresy came from Montanus who pretended to be the spokesman of the Holy
Spirit promised by Christ. He appeared to be always in ecstasy. Montanists
professed Millenarianism, an error that Christ would come soon to establish his
Kingdom foretold in Apocalypse. The sect, with the Second Coming of Christ in
view, preached a strict moral rigorism which led astray many believers and
lasted until the 8th century.[10][81]
Let us find some concrete cases where some
members were excluded from communion in the Church. Among other heretics who
were excluded from the Church for their erroneous ideas, particular attention
must be drawn to the priest Arius.[11][82] This priest who taught that the Son of God was created in the
beginning, rather than begotten of God’s own substance, was rejected and
condemned at Nicaea.
The wrong teaching of Arius
was as follows:
God is one and eternal; the Word or Logos is his first
creature, having been created by him out of nothing; he made use of him to
create our world. Therefore, the Word is superior to and older than all other created
things but he cannot be called God save in so far as the Creator of the world.
In fact he is only an adopted son of God. The Holy Spirit in his turn is the
first creature of the Son and is therefore inferior to him. It was the Word
that came to animate the body of Jesus, born of the Virgin Mary. That is why St
John says “the Word was made flesh” and not “the Word was made man.” In Jesus
the Word replaces the human soul and its function.[12][83]
Against this
teaching, the Council of Nicaea, convened at the Emperor Constantine’s behest
in 325, and drew up a short creed summing up Christian belief and
specifically condemning Arius' belief. The Council adopted the term
“Consubstantial” in order to confirm the perfect equality of the Word with the
Father. In other words, by the Council of Nicaea in 325,
Jesus was identified as God, of the same substance, essence or being, hence in
the further wording of the Creed, "Θεόν αληθινόν εκ Θεού αληθινού" (Theón
alēthinón ek Theoú alēthinoú) 'true God from true God.’[13][84] The word used was Homoousios,[14][85] which means
“consubstantial” was proposed to the conciliar Fathers by Athanasius, a deacon,
chief theologian to the bishop of Alexandria, where the Arian heresy had first
seen the light.
Arius’ doctrine
that the Son of God was created in the beginning, rather than begotten of God’s
own substance, was rejected and condemned by the Council of Nicaea. But, this
Council had other lesser issues to address as well. The decisions were given in
a series of twenty "canons," or “rules” addressing many issues in
order to maintain the unity and order in the Church.
Among those canons, let us recall the first canon which goes as
follows:
If any one has been maimed by doctors at the time of
illness or has been castrated by barbarians, let
him remain among a clergy; but if any one, already being a cleric and in good
health, castrates himself, he must be excluded from the clergy and in no such person shall be ordained. As it is obvious that what
has been said above concerns those who act on their own volition and who have
dared to castrate themselves, the ruling permits, therefore, those who have
been made eunuchs by barbarians or by their masters to become clerics, if on
other grounds they are judged to be worthy.[15][86]
That means no one
should be a eunuch by his own will. Whoever does so, by his own design should
not be appointed elder. Why would someone do this? In the early Church, remaining
a virgin in your whole life was regarded as an honour. This practice was
borrowed from Greek ascetic philosophies, not from the apostles. It eventually
led all Bishops and elders to encourage the taking of the vow of chastity.
It is to be
mentioned that after Nicaea, councils have been gathering to settle the
problems arousing among believers and it became a common practice of the Church
leaders to gather regularly and issue norms as guidelines for the discipline in
the Church in the East as well as in the West.
In addition,
other heretics condemned and excommunicated from the Church were the following:
the Donatists professed two equally heretical principles that public and open
sinners, especially Bishops and priests, are no longer worthy belonging to the
Church; and that all sacraments outside the true Church were invalid. Donatists
were condemned at the Council of Lateran in Rome in 313, and again at the
Council of Arles in 314, which the emperor Constantine presided over. Then, the
Priscillian heresy held that “all men are born under a conjunction of stars,
and they claim in support of their error that a new star appeared when our Lord
showed himself in the flesh. The Council of Braga solemnly condemned the
Priscilians in 565.”[16][87]
Another heresy is
Pelagianism. Pelagians teach that it is not possible for the soul created by
God to be tainted by sin. So they reject the idea of a possible original sin.
They refuse therefore to admit that baptism removes original sins in the soul
of the recipient. One of the Pelagians,
Celestius, a Roman young lawyer, was condemned and excommunicated during the
Council of Carthage in 411.[17][88]
With regard to
the Christological errors from the fourth to the seventh centuries, the
following heresies were strongly condemned by the Church: Apollinarianism,
Nestorianism, Eutychianism, Origenism and Monothelitism. In reaction to these
heresies, councils were convoked and the conciliar Fathers issued decrees in
order to safeguard the Church order. The Council of Nicaea did not put an end
to the disruptions caused by the teaching of Arius.
After Nicaea,
certain people who accepted the divinity of the Son started to affirm that the
Holy Spirit was only a superior creature. They were called “Macedonians”
because they were followers of Macedonius who was the homoeousian Bishop of
Constantinople deposed by the Arians. Other promoters of the heresy which
fought against the Holy Spirit were Eustathius of Sebaste, Eleusius of Zicus
and Marathonius. They were called “Pneumatomachians” because they fought
against the Spirit.[18][89]
It is good to look at some canons of those
Councils which are related to the reasons for the separation of members from
Church. In reaction to the above heresies including those of Macedonius and of
Apollinaris, the Council of Constantinople opened in May 381 and closed on July
of the same year during the Consulship of the most illustrious Flavius
Eucherius and Flavius Evagrius.
Macedonianism heresy denied the full deity of the Holy Spirit while
Apollinarism heresy was a theory of the hypothetic union in Christ and denied
the presence of a human soul in Christ.[19][90] During the Council, seven canons were ruled. The fourth canon
declares:
Concerning Maximus the Cynic and the Disorder that he
caused in Constantinople, we
have decided that Maximus has never been and is not now a Bishop, nor are those that he ordained, no matter what
order of the clergy they were ordained to, everything
that was done in his name or done by him is declared null and void.[20][91]
After the Council
of Constantinople which condemned those who were hostile to the Spirit, the
Council of Ephesus anathematized those hostile to Christ. Among them, was an
eloquent man known as Nestorius. He was a priest of Antioch. We know very
little about his personality before he became a Bishop unless we give credence
to the legends which were later concocted by Monophysite writers. These legends
state that probably he was the student of Theodore of Mopsuetia. The problem of
Nestorius is that he criticized those who call the Virgin Mary Theotokos,
God-bearer.[21][92] For him, this is a sign of confusion between
the divinity and humanity of Christ. He was condemned by the Council of Ephesus
in 431. It is to be noted that Nestorians are still found today in Iraq, Persia
and India. It is estimated that there are 30,000 in Iraq, some thousands in
Syria, 9,000 in Persia and 2,000 in India, under the name of Mellusians. The
estimation attests that there are less than 100,000 authentic Nestorians.[22][93]
There were eight
canons issued during the Council of Ephesus in which 200 conciliar Fathers
participated. The fourth canon from this Council goes as follows: “If any
cleric should apostatize and, in private or in public dare to take the side of
Nestorius’ or Celestius’ideas, the holy Council has thought it good and proper
that they be deposed.”[23][94]
It was only with
the Council of Chalcedon that the definitive formulation of the two natures in
Christ without separation and confusion was clarified. This Council of the 630
Fathers took place in 451. It occupies a place right after Nicaea as the second
major watershed for the development of the Trinitarian doctrine. Chalcedon
fought again Monophysitism heresy which recognizes only one nature in God the
Son. Among those who were condemned and excommunicated by the Council, we have
Eutyches.[24][95] He was excommunicated because he rejected the
existence of two natures after the incarnation.
The twenty eight
canons issued during the Council of Chalcedon did not only address those who
opposed the two natures of Christ. Some of them anathematized those who
practiced simony (cf. canon 2 of Chalcedon), those religious who took an active
role in the army (canon 7 of Chalcedon) and canon 27 stipulates:
Those who carry off women by force under the pretext of
marriage, as well as those who aid approve those who carry
out such actions, the Holy Council has
decided that if they are clerics,
they are to be deposed from their position, and
if they are laymen, they are
excommunicated.[25][96]
It is worth mentioning that these four
Councils occupied a special place in the structure of dogmatic authority in the
Church.[26][97] Even after, there had been additional councils
that were recognized by both East and West as ecumenical and authoritative,
Nicaea, Constantinople, Ephesus and Chalcedon remained and continued to have a
special importance.
In order to have
a clear picture of the Church legislation we have to consider now the
contribution of Gratian to the Code of Canon Law. Our next point will pinpoint
briefly the historico-canonical development as from the decree of Gratian up to
the Council of Trent.
Gratian
is said to have become a Camaldolese monk and then he taught Canon Law at the monastery of Saints Nabor and Felix in Bologna between 1130
and 1140, and devoted his life to studying canon law. Gratian was the first who taught canon law as
an autonomous science. He was also the one who distinguished theology from
canon law and is called Pater scientiae
canonicae.[27][98]
The Decretum Gratiani
or the Concordia or Concordia discordantium canonum or
Concordantia discordantium canonum or Rosarium
decretorum or Decretum[28][99] is
a collection of Canon law compiled and written in the twelfth century
as a legal text book by Gratian. It forms the first part of the collection of
six legal texts, which together became known as the Corpus Iuris Canonici.[29][100]
Gratian himself named his work Concordia Discordantium
Canonum "Concordance of Discordant Canons." The name is fitting:
Gratian tried to harmonize apparently contradictory canons with each other, by
discussing different interpretations and deciding on a solution. This dialectical approach allowed for other law
professors to work with the Decretum
and to develop their own solutions and commentaries.
The
Decretum
became the standard text book for students of canon law throughout
Europe, but it never received any formal official recognition by the papacy. However, Gratian
was recognized as "the Father of the science of Canon law" and he
later found a place in Dante’s Paradise among
the doctors of the Church.
Concerning separation of members from the Church, the Decretum, in its Secunda Pars[30][101], contains
various canons about the separation. Canon 1 talks about Simony. This canon
reads as follows:
Symoniaci gratiam non
prestant, quamquerunt uendere. Gratia si non gratis datur uel accipitur, gratia non est. Simoniaci autem
non gratis accipiunt: igitur gratiam,
quae maxime in ecclesiasticis ordinibus
operatur, non accipiunt. Si autem accipiunt, non habent; si autem non habent,
neque gratis, neque non gratis cuiquam dare possunt. Quid ergo dant? profecto
quod habent? quid autem habent? spiritum utique mendatii. Quomodo hoc probamus?
quia si spiritus ueritatis (testante ipsa ueritate, de qua procedit) gratis
accipitur, proculdubio spiritus mendatii esse conuincitur, qui non gratis
accipitur.[31][102]
Whereas canons 17 and 18
talk about transfer from regular order to secular order, canon 19 talk about
the transfer from secular order to regular order, and canon 24 speaks about the
heretics and their excommunication:
Excommunicetur clericus
per creaturas pertinaciter iurans. Item ex Concilio
Cartaginensi IV (c. 61 et 62) Clericum per creaturas iurantem acerrime
obiurgandum; si perstiterit in uicio, excommunicandum. Inter epulas uoro
cantantem supradictae superdictae sententiae seueritate ohercendu.[32][103]
In
the 16th century, prior to the Council of Trent (1545-1563), the
Medieval Christian society became politically and ecclesiastically divided
according to the principle of cujus regio, ejus religio
(“whose region, his religion;” i.e., the religion of the prince is the religion
of the land).[33][104] Every prince was thus given the right to
determine not only his own personal religion, but also the religion of all his
subjects. This resulted in supremacy of the temporal power over the spiritual
power inside the Lutheran state. In chronological order, it followed
two other branches of the reforming movement, Anglicanism and Calvinism. The
origin and course of the Reformation in England sprang from the personal
passions of the autocratic ruler of England, Henry VIII. Henri VIII lacked a
male heir so he wanted to marry Queen Elisabeth I a child of one of his
marriages. The Catholic Church considered this marriage as null and that was
the main reason for his separation from Rome. The king developed anti-catholic
complex and spread now the Anglicanism.[34][105]
During feudalism, canon law which was dealing with
benefices, chapters, and monasteries, changed.[35][106]
Since the Council of Trent was convened at the beginning of modern times marked
by the birth of historical science but also by Protestant-Catholic polemics,
canon law took on a more defensive character, with prohibitions regarding
books, mixed marriages, participation of Roman Catholics in Protestant worship
and vice versa, education of the clergy in seminaries, and other such areas of
concern. As Okere puts it,
The
attack of reformers in the 16th century forced the Church at the
Council of Trent to take a firm stand against the heretical teachings of the
Protestants, who denied the visible, juridical, institutional and hierarchical
structure of the Church. They rather emphasized only the invisible, internal
and charismatic aspects of the Church.[36][107]
As a result, the
doctrine of the Tridentine Fathers was anti-heretical and anti-protestant to
the point that the post-tridentine ecclesiology largely stressed the nature of
the Church as a hierarchically organized society governed from above by the
Bishops of Rome. Commenting on this vision of the Church, Yves Congar talked of
“hierarchology” which means the affirmation of the reality of the Church as a
machinery of hierarchical mediation of powers and the primacy of the Roman See.[37][108]
However, the Council of Trent did not confine
itself to doctrinal decrees alone; it issued disciplinary canons as well. Some
canons are related to doctrinal matters, others are addressed to the reformers,
and others again deal with the internal order of the Church. Let us quote in
passing canon 7 from the Council of Trent, on
the Sacrament of Order:
If any one says, that bishops are not superior to priests; or,
that they have not the power of confirming and ordaining; or, that the power
which they possess is common to them and to priests; or, that orders, conferred
by them, without the consent, or vocation of the people, or of the secular
power, are invalid; or, that those who have neither been rightly ordained, nor
sent, by ecclesiastical and canonical power, but come from elsewhere, are
lawful ministers of the word and of the sacraments; let him be anathema.[38][109]
Since our essay
is much concerned with separation of members from the Church we have to mention
that this notion of separation is also dealt with in the 1917 Code in book two,
canons 632 to 672. There are 5 canons of the 1917 Code, from 632 to 636 which
treat specifically the transfer to another institute (De transit ad aliam religionem).
We will come back to these canons when we explain the sources of the canons on separation
in the 1983 Code.
The Second Vatican Council promoted the
understanding of the Church as people of God and a vision of the Church as a community in which
all possess the sacramental mission to live and proclaim the Gospel, and all
have a function in the service of the Church. With regard to religious life,
the legislative and administrative functions remained related to the hierarchy,
but this became much more expressly seen as a service for the religious life of
the community and the notion of sanctions and modes of separation of members
from religious institutes were reformulated especially when we consider them in
comparison with the 1917 Code of Canon Law.
From 1967 to 1970, more changes were made in canonical
regulations. For example, in 1967, there
was a total revision of the norms for indulgences, establishment in the Roman
Curia of the Council of Laymen and in the study Commission Justitia et Pax (“Justice and Peace”), new dispensation rights for
Eastern Bishops, directory for ecumenical cooperation with Christian Churches,
regulation of the office of the diaconate to include married men, and
reorganization of the Roman Curia; in 1970, the secretary of state discussed
with the world Episcopacy about the question of celibacy and ordination of
married men in areas that need priests.[39][110]
Moreover, new regulations were to be enacted only after
extensive and open inquiry and test by experience, with possibilities for
experimentation. In place of regulations of religious behaviour, canon law was
becoming an ordering of the cooperation of all members of the Roman Catholic Church
for the realization of its mission in the world. In this regard, it is of the
highest importance to recognize the relationship of the 1983 Code of Canon Law
to the Second Vatican Council. In fact, the 1983 Code is the theology of Second
Vatican put into juridical terms.
It is important to mention that the intention of the
drafters of the new Code was to give practical effect to the theological
insights of the Second Vatican Council. The emphasis in the new law was on the
people of God, and the governing power of the hierarchy was presented as a call
to serve. The fundamental rights of the faithful were clearly asserted, and
their active participation in the life of the Church was encouraged. Finally,
an effort was made toward decentralization, with local Bishops enjoying more
autonomy.[40][111]
However, not everybody was happy with the new laws
especially those regarding sanctions in the Church. Many were against the
presence of the penal law in the Church because, for them, the Church is a
spiritual and charismatic reality. They just reacted like Rudolph Sohm who saw
the Church and law as mutually exclusive.[41][112]
While most theologians and canonists had suggested a
thorough recasting of the penal law system of the Church, some others had
advocated for a total abolition of penal law, abolition of all latae sententiae penalties and the
exclusive use of ferendae sententiae
penalties and a reduction of all penalties. Likewise, others, like Huizing and
O’ Connor, suggested that the concept of penal law should be dropped in
preference to that of “disciplinary order” of the Church, since according to
them, canonical sanctions are not punishments but disciplinary sanctions.[42][113]
Despite criticism from some scholars and clerics that the
new code remains conservative on certain issues, it is recognized that the body
of the law is permeated by an ecumenical spirit and displays a respect for the
freedom of conscience and religious conviction of every human being. With the
new code, the hermeneutics of canon law have changed significantly. Apart from
the strictly legal transactions, creating enforceable rights and duties, the application of
the laws must be guided and moderated according to pastoral needs. This is true
because, even though the need for penal law in the Church is recognized, the
Church penal order must be directed to favour salvation of souls. In other words,
no matter what it could be, ecclesiastical sanction is made for the salvation
of souls which is the supreme law the Church (can. 1752).[43][114]
Many factors have
led the Church to set up regulations in order to protect both the integrity of
the Church and the care for the salvation of souls. The Scripture which is one
of the reliable sources of canon law has some passages which display how the
members of the believing community should treat those who defect from it and
those who may endanger the life of the Church. Sometimes when the misdeeds are
serious and public and contrary to the faith or discipline of the Church, the
community must respond with a sanction (Mt 18: 5-9, 15-18 and 1Cor 5).
In most cases,
the Church seeks for pastoral means in order to help the offender to retract
from his anti-juridical or anti-community behaviour. But if the offender does
not repent even after being warned more than once, the Church can make use of
her right to punish the offender with penal sanctions (c. 1311). However, not
every offence committed is punishable; not every mistake or violation of a
canon can be punished by Church authority.
Since heresies
started to destroy the unity of the Church, the Fathers of the Church strongly
defended the Church teaching and wrote
extensively to clarify some issues related to the disputed matters; and various
Councils were called forth to settle some disputes among believers. Those who
persisted in errors were deposed or excommunicated.
It is for this reason that
Aris noted that a contumacious, anti-juridical and anti-community attitude of
the offender is incompatible with and contradictory to the community life and
mission. Hence appropriate penal sanctions even including exclaustration and
excommunication or exclusion from the community may be called for the integrity
of the community and the good of the offender.[44][115]
The offender is separated from the community to which he belonged. However, not
each separation from the community is a sanction. For this reason, in the next
chapter, we will clarify the three types of separation, especially, the
separation of members form the religious institute as found mainly in the 1983
Code of Canon Law but with brief reference to the previous Code of Canon Law.
[1][72] J. GREEN,
“Sanctions in the Church,” in J. P. BEAL, J. CORIDEN, T. GREEN (eds.), The New Commentary on the Code of Canon Law, Theological
Publications in India, Bangalore 2004, p. 1529.
[3][74] Mt 18: 15-20;
see also M. DUGAN (ed.), The Penal
Process and the Protection of Rights in Canon Law. Proceedings of a Conference
held at the Pontifical University of the Holy Cross Rome, March 25-26, 2004,
Wilson & LaFleur, Montréal 2005, p. 147. “The Church never rejected the use
of disciplinary measures in the face of hardness of heart and the refusal of
conversion, as we can see from the conduct of Paul when dealing with the person
guilty of incest in Corinth (1Cor 5:1ff),
and on other occasions (cf.1Tim.1:20; 2Tim.2:17; etc.); or from the words of
Christ in the Gospels of Luke (17:3-4) and Matthew (18:17-18).”
[5][76]Cf. K. RAHNER, Encyclopedia of Theology. The Concise
Sacramentum Mundi, The Seabury Press, New York 1975, p. 32.
[6][77]K. RAHNER, Encyclopedia of Theology. The Concise
Sacramentum Mundi, p. 1191. “Since the practice of excommunication existed
in the Synagogue and in the Qumran Rule
of the Community (it was to be expected that exclusion and readmission
would be provided for in Jesus community.”
[11][82] Arius was
born in Egypt c. 256. He was a priest who began the care of a parish in the
great city of Alexandria. He was large, gaunt man, distinguished, austere,
capable and eloquent, very popular in his parish of Baucalis. Moreover, he was
ambitious, full of self-importance and very obstinate in his ideas which were
condemned by the Council of Nicaea in 325. There are differences in estimating
the numbers of bishops who participated in this Council, According to Eusebius
250 bishops took part in the Council, 270 bishops according to Eustathius of
Antioch, more than 300 according to Constantine, 300 according to Athanasius
and 318 according to Hilary of Poitiers. This number 318 recalls that of
Abraham’s servants and it was adopted and passed on to posterity (cf. P.
HUILLIER, The Church of the Ancient
Councils. The Disciplinary Mark of the First Four Ecumenical Councils, St
Vladimir’s Seminary Press, New-York 2000, p. 18).
[14][85] The Greek
word “Homoousios” which means “consubstantial” should not be confused with
homoiousios” which means “similar in substance” for the Semi-Arianism. Those
who are in favor of the wording “Homoiousios” are called Homoiousians. Those
who opposed and remained pure Arians by maintaining that the Word was
“dissimilar” that is “Anomoios” were called Anomoeans. That means from the
wrong teaching of Arius, there flew many heresies such Arianism and varieties
of Semi-Arianism. (L. CHRISTIANI,
Heresies and Heretics, pp. 23-24).
[15][86]P. HUILLIER, The Church of the Ancient Councils. The
Disciplinary Mark of the First Four Ecumenical Councils, St. Vladimir’s
Seminary Press, New-York 2000, p. 31.
[17][88]Donatus was
bishop of Casae Nigrae in Africa; whereas Priscillian was bishop of Avila
(birth place of St. Teresa). He belonged to a noble Spanish family and was well
versed in the art of divination, which was very popular at the time and in
practice versed in magic. About the year 370 Priscillian began to spread ideas
of Gnostic and Manichean origin through which he claimed to lead his followers
to perfection. He was excommunicated for his heretical ideas (Cf. L. CHRISTIANI, Heresies and Heretics, pp. 33).
[18][89]Cf. P. HUILLIER,
The Church of the Ancient Councils,
p. 102. See also F. DVORNICK, The General Councils of the Church,
Bruns & Oates, London 1961, pp. 13-20.
[19][90]Cf. P.
JAROSLLAV, The Spirit of Eastern
Christendom (600-1700), The University of Chicago Press, Chicago 1974, p.
41.
[24][95]Cf. M. E.
MARTY, A Short History of Christianity,
The World Publishing Company, New York 1967, pp. 146-147.
[26][97]We have to
note there were many other Councils apart from these four great Councils. There
were: Council of Jerusalem in 49, Council of Rome in 251, Council of Elvira in
300, of Hippo in 393, Council of Carthage in 397, Council and the Eastern
Councils namely, Council of Ancyra in 414, Council of Caesarea between 414 and
318, Council of Antioch 341, Council of Gangres in 343, Council of Laodicea
between 343 and 381) etc. (cf. C. VAN DE WIEL, History of Canon Law, Peeters Press, Louvain 1983, pp. 38-42; 44.)
[28][99]Cf. P. GUITRANCOURT, Introduction sommaire à l’étude du droit en
général et du droit canonique contemporain en particulier, Sirey, Paris
1963, p. 737. L’œuvre de Gratien a été connue et citée sous des titres
divers. Tantôt on l’a appelée « Concordia » ou «Concordantia
discordantium canonum » ou encore parfois « Rosarium
decretum » ; tantôt et plus simplement « Decretum (…). D’autres
titres furent encore donnés par la suite à l’œuvre magistrale qui valut à son
auteur le surnom de divin. En voici quelques exemples : Decreta, Corpus
decretorum, Liber canonum, Corpus iuris.
[30][101] Cf. P. GUITRANCOURT, Introduction Sommaire à l’Etude du Droit en
Général et du Droit Canonique Contemporain en Particulier, p. 745.
[31][102] A. FRIEDBERG, Corpus Iuris Canonici, Edtio Lipsiensis secunda,
Decretum Magistri Gratiani, Akademsche Drck- U. Verlagsanstalt 1959. Decreti
Secunda Pars Causa I Quest. I. c.I.
[33][104] Cf. E. SIDNEY, Twenty Centuries
of Church and State. A Survey of their Relations in Past and Present, The
Newman Press, Westminster 1957, p. 56.
[35][106] Cf. http://www.britannica.com/EBchecked/topic/92870/canon-law/67227/From-the-Council-of-Trent-1545-63-to-the-Codex-Juris-Canonici-1917,
accessed on 26/ 09/ 2011.
[36][107] H. OKERE, The Juridical Status of Baptized
Non-Catholics and their Communities in Canon Law. An Analytical Study of the
Evolution in Recent Ecclesiological Context, Pontifica Universitas
Urbaniana, Roma 1982, p. 64. Quoted by M. IHESIABA ELEKWACHI, An Exegetical Study of Canons 204-207 in the
Light of Canon 129, Urbaniana Facultas Iuris Canonici, Roma 1988, p. 2.
[37][108] Cf. Y.
CONGAR, Lay People in the Church. A Study
for a Theology of the Laity, Geoffrey Chapman, London 1985, p. 45.
[39][110] Cf. http://www.britannica.com/EBchecked/topic/92870/canon-law/67227/From-the-Council-of-Trent-1545-63-to-the-Codex-Juris-Canonici-1917,
accessed on 26/ 09/ 2011.
[41][112] Cf. L. ÖRSY,
Theology and Canon Law, New Horizons for Legislation and Interpretation,
The Liturgical Press, Collegeville1992, pp. 182-183.
[42][113] Cf. J. O’
CONNOR, “Trends in Canon Law: The Question of Penalties,” in Studia Canonica 3 (1969) 209-237. See
also P. HUISING, “Crime and Punishment,” in Concilium
28 (1967), pp. 113-128; Cf. M. IHESIABA ELEKWACHI, An Exegetical Study of Canon 204-207 in the Light of Canon 129, p.
152.
[43][114] The notion
of “supreme law” was adapted from the Roman Law. The sources of c. 1752
indicate that the source of this maxim is Ivo of Chartres (1040-1115 A.D), St.
Raymond of Penafort (1222-1274). However, according to some historical
investigation, the roots of this maxim go back to the Twelve Tables of Roman
Law (approx. 450 B.C.) to which Cicero refers; “Salus populi suprema lex esto”
which means “the salvation (safety/welfare) of the people shall be the supreme
law” (Cicero, De Legibus 3.3.8, Loeb
Classical Library, 1977, pp. 466-467; Cf. B. NICHOLAS., An Introduction to Roman Law, Oxford, Clarendon 1962, p. 15; Cf. H.
JOLWICZ and B. NICHOLAS, Historical
Introduction to the Study of Roman Law, 3rd ed., Cambridge
University Press, Cambridge 1972, pp. 5, 13, and 191.
[44][115]Cf. J. ARIS, “Principios basicos para la reforma del
derecho penal canonico,” in Ius Canonicum
10 (1970) 193-208. See also, James A. Coriden, An Introduction to Canon Law, Paulist
Press, New York 1990, p. 173.
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