Benedict Nguyen is a civil and canon lawyer who writes for the National Catholic Register. In a piece published yesterday, he tries to piece together what legal implications Pope Francis’s odd letter to Archbishop Rino Fisichella on the Jubilee year for Mercy really has.
First, on the issue of abortion:
Because of the importance of the Holy Father’s desire to make mercy known generously in this coming jubilee year, and with complete filial respect and affection to our Holy Father, it is necessary to identify a few canonical ambiguities in the letter that will seriously need clarifications, so that the Pope’s desires can be implemented appropriately.
First, what is the canonical weight of this letter? It is not a law (Canon 8ff). It is not a general decree (Canon 29). It is not a general executory decree (Canon 31). It is not a canonical “instruction” (Canon 34). It is not indicated to be a motu proprio (of his own initiative).
It clearly is just a letter written to the president of the Pontifical Council for the Promotion of the New Evangelization, yet one that appears to be making some pretty bold grants regarding indulgences, faculty, etc. for the Year of Mercy. For a holy year, these type of things are usually in the form of a papal bull, such as the Pope’s document declaring the Year of Mercy, or at least a decree or motu proprio, so that there is no confusion as to its official canonical weight. The form, or lack thereof, and the ambiguities in the letter seem to be creating some canonical doubts of law, which I am afraid may possibly nullify or suspend some of its application (Canon 14).
Second, in the letter, the Pope seems to be granting the ability to all priests to forgive the sin of abortion. While in the Eastern Churches the forgiveness of the sin of abortion is reserved to the bishop (Code of Canons of the Eastern Churches, 728), in the Latin rite, all priests who have the faculty to absolve sins in confession are already seemingly able to do this.
It is important to keep in mind that there is a distinction between the sin of abortion and the excommunication that could also result from it (Canon 1398). These two are not the same thing. Sin is a moral condition; excommunication is a juridical one that deprives a Catholic of certain rights and benefits of being in full communion with the Catholic Church (Canon 1331).
There seems to be much confusion regarding the difference between the sin of abortion and the penalty of excommunication. It is important to remember that the so-called automatic (latae sententiae) excommunication is not necessarily always “automatic,” since there may be a number of exempting or mitigating circumstances, as listed in Canons 1323 and 1324.
In the Latin rite, regarding abortion, presuming that someone has indeed incurred not only the sin of abortion, but also the juridical penalty of excommunication resulting from it, the ability to lift the penalty of excommunication is reserved to the bishop. In many dioceses in the U.S., the bishop has delegated this ability to lift the excommunication to priests who have the faculty to hear confession validly.
So herein lies the problem: The Pope’s letter does not mention anything of granting the ability to priests to lift the penalty of excommunication that may result from the sin of abortion, but, rather, only seems to grant the ability to priests to forgive the sin of abortion.
For Latin-rite priests who have the faculty to hear confessions validly, this is not granting them anything new, and they are still not able to lift the penalty of excommunication if they are not able to do so by grant of their own bishop.
And then there’s the matter of the SSPX, where Nguyen seems even more confused, and wades deeper into speculation:
[R]egarding the priests of the Society of St. Pius X (SSPX) being able to grant absolution validly and licitly, there is no doubt that this is truly a generous gesture on the part of Pope Francis, one that shows his fatherly pastor’s heart. He clearly indicates that it is his hope that in the near future restoration to full communion of the priests and superiors of the SSPX can be achieved.
However, in the meantime, this does seem to imply a couple of things. First, that the priests of the SSPX are not in full communion with the Church [Does it? I don’t see that it implies any more than is already implied but never clearly stated as regards their state of “communion” – Steve] and, second, that the priests of the SSPX in fact have not had and currently do not have the faculty to absolve sins validly and licitly in confession and will not have it until the beginning of the Year of Mercy on Dec. 8.
Let me pause a minute here to examine these two points. First, I don’t see that this statement implies anything specific about the state of SSPX “communion” that isn’t already out there and subject to speculation. Pope Benedict’s explanation that they have “no canonical status” is the closest thing to an official definition of their situation that we have from Rome after the lifting of the excommunications, and nobody seems to know what it actually means for a group to be close enough to the Church to be considered Catholic but lack this status.
Secondly, the questions on jurisdiction are some of the hardest fought points in the SSPX debate. The members of the Society and their supporters argue for “supplied jurisdiction” when it comes to sacraments that require it (ie., Confession and Matrimony) and whether in fact this exists is beyond the pay grade of any layman, no matter how theologically adept, to settle definitively. From a strictly legal standpoint, we have no choice but to assume, based on their suspension a divinis, and the fact that Pope Benedict said that they exercise “no legitimate ministry in the Church” that they lack this jurisdiction. But to keep things muddy, canon law makes provisions that the Society continues to rely upon to make their case (with my emphasis):
Can. 144 §1. In factual or legal common error and in positive and probable doubt of law or of fact, the Church supplies executive power of governance for both the external and internal forum.
Can. 1335 If a censure prohibits the celebration of sacraments or sacramentals or the placing of an act of governance, the prohibition is suspended whenever it is necessary to care for the faithful in danger of death. If a latae sententiae censure has not been declared, the prohibition is also suspended whenever a member of the faithful requests a sacrament or sacramental or an act of governance; a person is permitted to request this for any just cause.
Some have argued that since the priests of the Society are not under ecclesiastical censure (and since even the bishops have had their excommunications lifted) then the bolded sentence above applies to them, and has, even before this gesture from Pope Francis.
Does it? I don’t know. I’m not even going to speculate, but I think it’s important to be familiar with the positions here, and why Nguyen’s attempt to figure this out is such an obvious struggle. We’re in a no-man’s land of possible loopholes in the law. Back to Nguyen’s analysis:
Fourth, a question also arises as to why there was not a direct communication to the SSPX. The communiqué from the SSPX indicates that they only learned about it via the press. Generally, grants of faculty are communicated directly to the cleric to whom the faculty is being granted or to the cleric’s superior, where appropriate.
Fifth, it is puzzling that the letter does not explicitly use the word “faculty” at all when speaking of this grant to the SSPX priests of the ability to absolve validly and licitly. While it seems that the mens (intention) is indeed to grant a faculty to the priests of the SSPX, it is unusual that the language does not simply issue a grant of faculty to them to do so. Rather, the letter seems to place the emphasis on the good of the faithful and their ability to approach SSPX priests.
While there may be some similarities to a situation of a person in danger of death being able to approach any priest for absolution, regardless of his status (Canon 976), this situation is not analogous. The danger-of-death situation does not involve a general grant of faculty, but a grant for that specific circumstance. The language of the current letter seems to be envisioning a more general situation.
However, while seeming to intend a general-grant faculty to the priests of the SSPX to hear confessions validly and licitly, it never actually says so clearly. So the question remains as to whether this is a grant of a general faculty to hear confessions — i.e., for all situations where someone approaches a priest of the SSPX — or if there is any sort of limitation that the Holy Father envisions by placing the emphasis not on the SSPX priests but on the faithful who approach them. If this is a general grant of faculty, why was the language of “faculty” never used; but if there are limitations, why are they not listed?
Confused yet? Yeah, me too.
For all of Pope Francis’s derogatory comments about “doctors of the law,” they do serve a vital function in the discipline and governance of the Church. And despite labored assertions that it’s perfectly fine that Pope Francis “doesn’t do doctrine,” the manifest confusion that stems from his personal brand of antinomianism is making things difficult for the faithful.
It all reminds me of the priest who refuses to give a concrete penance in the confessional. “Go and do something nice for someone,” or, “Give some thought to some ways you might be able to do something positive for people in the coming liturgical season” are things that leaves us antsy to know we’ve fulfilled the requirements of the sacrament. I’m happy to consider any program for improvement, but make sure you also give me my decade of the rosary so I can be confident I have been obedient to God’s minister.
And if the legal questions rising from this letter weren’t enough to keep your mind busy, there’s more. You may recall that I said, in my initial analysis of the letter, that I felt I was missing something. My quiet concern has been that by extending “mercy” to one group, there will be a tit-for-tat expectation that those individuals will not begrudge “mercy” shown to another group when the Synod rolls out a month from today. Over at Commonweal, Robert Mickens takes this concern from the dark recesses of my mind and runs with it in the light of day:
This past Tuesday, September 1, was the first annual World Day of Prayer for the Care of Creation. Pope Francis announced the initiative only a few weeks ago—on August 10, to be exact. And many immediately touted it as an important step towards galvanizing the world’s 1.2 billion Catholics to take up the urgent ecological concerns that the pope laid out so prophetically (and, for some, controversially) in his recent encyclical, Laudato Si’.
The prayer day initiative was also heralded as a significant ecumenical gesture, seeing that the Bishop of Rome was merely adopting a practice that the Ecumenical Patriarch of Constantinople had already established within the Orthodox Church almost twenty-five years ago.
But does anyone remember that the World Day of Prayer for the Care of Creation even took place this week? Or that Pope Francis marked the day by presiding at a Liturgy of the Word service in St. Peter’s Basilica that was attended by foreign ambassadors accredited to the Holy See, cardinals, bishops and other Vatican officials?
If you did not know, it’s not your fault. There was nothing in the media about it. And why would there have been?
In one simple act of releasing a new papal document on the upcoming Extraordinary Jubilee of Mercy, the Vatican completely killed all interest in the prayer day.[…]
Pope Francis is a master tactician and what he did this past Tuesday was make a move to outflank various groups and people that continue to oppose many of his initiatives.
He sacrificed his fledgling creation day celebration (no worries, it’s an annual event) in order to throw a bone to critics inside the church, including cardinals and bishops, that are not at all on board with his encyclical, Laudato si’. And by doing so he also tossed another bone—and a challenge—to hard-line traditionalists who see his theology of mercy as wishy-washy and a threat to certain church teachings, especially on marriage.
There is no doubt that Francis wants the Synod of Bishops to find a way to develop the church’s doctrine and practice pertaining to failed marriages and other related issues. Otherwise he would never have asked Cardinal Walter Kasper to preface the first Synod session with theological proposals to explore possibilities for a doctrinal/pastoral move forward.
The pope must have been shocked at the fierce pushback Cardinal Kasper and his allies provoked. His announcement last June of the upcoming Jubilee Year of Mercy seemed to be aimed, at least in part, at softening the hard-heartedness of the opponents of doctrinal development. But it barely made a dent.
With this week’s letter Francis has taken another shot, especially by allowing the Lefebvrists—also critics of Cardinal Kasper and his influence at the Synod—to “validly and licitly” absolve sins in the confessional.
The pope said he decided this at the behest of “several Brother Bishops.” It is likely that the bishop-emeritus of Rome, Benedict XVI, was one of them. He made healing the Lefebrvist schism and enhancing neo-Tridentinist groups within the Church a major project of his pontificate. There are still many bishops and cardinals that support this thrust and some of them just so happen to be the part of the bloc at the Synod that opposes any change in marriage rules.
Pope Francis is walking through minefield of a very divided church, and an increasingly divided hierarchy, and he must keep both sides content to some extent.
That’s why something else that happened on Tuesday, but which went unnoticed by just about everyone, is also important to note. The pope appointed Archbishop Piero Marini, president of the Pontifical Committee for International Eucharistic Congresses, as head of a special liturgical commission at the Congregation for Oriental Churches. This is hardly an earthshaking appointment.
Archbishop Marini is the former longtime Master of Pontifical Liturgical Ceremonies and an unabashed proponent of the Vatican II liturgical reforms. The retrodox neo-Tridentinists that grew in prominence during the last pontificate absolutely despise him, evidenced by the vitriol they spread when rumors went round last year that Pope Francis was about to name Marini prefect of the Congregation for Divine Worship.
It is said that a very senior bishop in Rome eventually took the unprecedented step to advise Francis not to appoint the Vatican II liturgist to the post if he wanted to keep peace in the church. So, instead, he chose Cardinal Robert Sarah—a Guinean who supports the Tridentinists and opposes the theology of Walter Kasper.
By announcing Archbishop Marini’s appointment on Tuesday, even to a minor post, Pope Francis made another announcement—he’s keeping score.
Mickens speaks about this with a confidence I don’t possess, but his speculation rings true. Some will balk at his characterization of Pope Francis as a “Master Tactician” who is “keeping score,” seeing in him nothing more than guileless simplicity. But it’s a characterization that has been getting more play lately. Back in March, National Geographic ran a feature on the Holy Father in which two paragraphs stood out starkly:
Vatican officials are still taking their measure of the man. It is tempting for them to view the pope’s openhearted reactions as evidence that he is a creature of pure instinct. “Totally spontaneous,” Lombardi says of Francis’s much commented-on gestures during his trip to the Middle East—among them, his embrace of an imam, Omar Abboud, and a rabbi, his friend Skorka, after praying with them at the Western Wall. But in fact, Skorka says, “I discussed it with him before we left for the Holy Land—I told him, ‘This is my dream, to embrace beside the wall you and Omar.’”
That Francis agreed in advance to fulfill the rabbi’s wish makes the gesture no less sincere. Instead it suggests an awareness that his every act and syllable will be parsed for symbolic portent. Such prudence is thoroughly in keeping with the Jorge Bergoglio known by his Argentine friends, who scoff at the idea that he is guileless. They describe him as a “chess player,” one whose every day is “perfectly organized,” in which “each and every step has been thought out.” Bergoglio himself told the journalists Francesca Ambrogetti and Sergio Rubin several years ago that he seldom heeded his impulses, since “the first answer that comes to me is usually wrong.”
Is he always a step ahead? Is he meticulous, despite his penchant for spontaneity? Is confusion one of the tactics that keeps his ideological opponents on their toes? I don’t know the answers to these questions, but it’s almost never a good idea to underestimate people – especially those who have risen to positions of power almost impossible to obtain by mere good fortune or accident.
One thing’s for sure – Popr Francis has a fondness for a “God of Surprises” that is reflected in the way he conducts his papacy: you never can tell what’s coming next, and you very rarely know with any certainty what it means.
Steve Skojec is the Founding Publisher and Executive Director of OnePeterFive.com. He received his BA in Communications and Theology from Franciscan University of Steubenville in 2001. His commentary has appeared in The New York Times, USA Today, The Washington Post, The Washington Times, Crisis Magazine, EWTN, Huffington Post Live, The Fox News Channel, Foreign Policy, and the BBC. Steve and his wife Jamie have seven children.