Tuesday, April 29, 2008

The Locus of Punishments in the Life of the Church

An institution that spouses communion as its nature, forgiveness and love as necessary expressions of its essence, would seem short changed to find within itself a system that pursues crime and punishment. This is precisely the quandary of some members of the Church who feel that penal system runs counter to the essence of the Church as a Communio. As one Prelate told me: “Laws are strait-jacketed norms of behavior, restrictive in posture, coercive for the children of God who are supposed to be free. What I do is to tell my priests to always pursue the good and avoid by all means into falling into grave lapses that could get them in trouble with law and penalty.”

I am a Canon Lawyer of the 1917 Code - an oldie in any standard. The Church was then conceptualized as a perfect society of law and order; an independent and proud institution where rights and obligations of each member are meticulously defined and respected, defended when impugned, vindicated when violated. Clearly, the aim of the law is to establish and sustain a Church that is just, a visible society that seriously looks after the harmonious and orderly development of the life both of the ecclesial society and of the individual members; a society that is proud to preserve right order. In sum, it looks into the promotion and protection of the common good of the Church. For this kind of society to survive it calls for a legal system that must be objective, that is, the competence and the exercise of its ecclesiastical power must give due emphasis to the external forum. Hence, in the Church a system was established to delineate the internal and external forum, out of which the principle like this come out: “De internis Ecclesia non judicat.” For the law to be objective, the rule of law must be observed, out of which maxims come out like this: “The reason of the law, is not the law”; or, “dura lex sed lex.” Within the nature of this concept, the system moves toward the protection, and in any case, toward the restoration of the social order that may be harmed by the offense. From this point of view, it can be understood why the system has to be strict and objective. Also, it can be observed that the preoccupation of the law and its application by the administration was on judging the pastoral activities from the point of view of right or wrong, validity or invalidity of an act; the offense and restoration of just order. It is along this concept also that penal system is required and needed to be instituted. In fact, this is inherent to any legal system that has for its purpose the proper protection of a perfect society.

However, this kind of legal system suffers a flaw: it gave emphasis on peace and order to the Church, on the rights and obligation of the constituents, on the defense and vindication of justice, that it had somehow veered its focus away from the concept of the Church as communion whose main attention is the salus animarum, the sanctification of souls, the development of the members of the Church as a community based on faith, grace, charisms and charity.

The revision of the Code was inspired by the theology of Vatican II. Here, the Church is immediately presented as a great Mystery, a reality that has temporal, measurable qualities, yet transcends the dimension of the temporal order, straddling that it is on the temporal and the spiritual. As such it is a Sacrament of unity for the world, a sign that effects the communion of all men. In this concept the Church is still a society, an association of men and women with rights and obligations. But the focus is no longer on the external discipline that would guide the proper ordering and the harmonious interplay of individuals or group of individuals as they exercise their subjective rights, but shifts more to the internal life of the People of God who are called to holiness and are living as a community.. Of course, Vatican II still talks about this Church as hierarchical, that is, it is set up as an institution with a variety of offices which aim at the good of the whole body. With a sacred power invested on them, the holders of these offices are dedicated to promote the interest of their brethren, and with free and well-ordered efforts bringing them to a common goal which is salvation. They have to look intently into the internal life of the Church, building up the body of Christ through the law of love.

No wonder that in the revision of the 1917 Code, there were quarters, many of them, would like to remove the penal system of the Code, for it seems to run counter to the image of a spiritual Church, that is built on the strength of faith and love. Granted the weaknesses of human nature, they are ready to concede the introduction of a disciplinary system, but one that adheres less to the rigid concepts of crime and punishment, and more along the lines of a sanctioning administrative system. They appeal to the spirit of Vatican Council II, that gives emphasis to the concept of communion which seems not to jibe with a penal system that is by nature coercive, that defines with strict interpretation the alleged offense vis-à-vis the “allata et probata”, and that inflicts just and proportionate punishments. Perhaps disciplinary regulation of some sort with a touch of some undefined sanctions would do.

But, communion is not an ambiguous feeling nor an imprecise sentiment. Communion is an organic reality that requires juridical form. The community of free individuals, to exist as a real communion, is essentially organic and requires a juridical form. The law does not create a community; the community itself, requiring a juridical form consistent to its nature, enacts the law. Through the years the Church has shaped a juridical form that incorporates the penal system for it serves to protect the dignity of its constituents and defend the dignity of the community and the subjective rights of each individual member.

The Church as a communion has to be protected. Penal sanctions do that service. With this concept, penal law can be considered as a necessary instrument in the service of the salus animarum. Salvation may not be its direct and proper objective, but it offers a ready environment for it to flourish and take effect. The Holy Father, Pope John Paul II, in his Apostolic Constitution “Sacrae Disciplinae Leges” underlined the importance of the Code in the life of the Church as a social and visible unit in these words: “… It is sufficiently clear that the purpose of the Code is not in any way to replace faith, grace, charisms and above all charity in the life of the Church or of Christ’s faithful. On the contrary, the Code rather looks towards the achievement of order in the ecclesial society, such that while attributing a primacy to love, grace and the charisms, it facilitates at the same time orderly development in the life both of the ecclesial society and of the individual persons who belong to it.”