Who May Interpret Canon Law?
© Copyright 2009; revised 2013 T. Stanfill Benns (This text may be downloaded or printed out for private reading, but it may not be uploaded to another Internet site or published, electronically or otherwise, without express written permission from the author.)
The excerpts below demonstrate who may interpret Canon Law and how, according to the law itself, it is to be interpreted. Contrary to the teachings of Traditionalists, private individuals are free to apply the proper canons in the Code that are designated for use as tools of interpretation in a doubt of law, or where there is no law in a certain case. As will be demonstrated, Traditionalists have never followed these laws and maintain that they may operate without following them at all. Had they observed them it would quickly have been revealed that they were unable to function in any presumed capacity because they could not point to a canonical provision, fashioned according to the canons that permitted them to do so. The reason we may fashion such a provision is that today there is no one able to provide an authentic interpretation of the law. It is not enough for Traditionalists to say that the law ceases to bind them today because it is obsolete. They must prove either that there is a doubt of law and follow the canons laid down to resolve that doubt or prove that there is no law covering the situation and proceed to Can. 20. In the case at hand it will be shown that in reality the dilemma the faithful faced following the false Vatican II council can be and is resolved by reverting to the old law, as Can. 6§4 commands. This is true on both the case of Can. 209 as well as Can. 2261§2.
Rev. Matthew Ramstein, S.T. Mag, J.U.D., OFM (“A Manual of Canon Law,” 1947, above) states: “In the absence of an authentic declaration concerning the meaning of the law, ANYONE may interpret the law for himself, provided he observe the rules set down by the lawgiver in Canons 18-21.” This is confirmed by the following canonists. Speaking of Pope Benedict XV’s Motu Proprio promulgating Canon Law, Monsignor Amleto Cicognani writes: “There is no prohibition in the Motu-proprio of private interpretation, which may be doctrinal or usual…It is said to be doctrinal when it is given by those skilled in canon law; customary (also called usual) when it is derived from unwritten practice, that is custom…General rules for the right interpretation of the Code are given in Canons 17 ff, besides those of Canons 5 and 6, (“Canon Law,” 1935, pgs. 434, 598-9). As Rev. Nicholas Neuberger explains in his dissertation, “Canon 6,” (Catholic University of America, 1927), “Of old the jurists distinguished between a mere declaration of and the interpretation of the law. The declaration today is called comprehensive interpretation. Its scope is not to change the law but determines the sense of the law comprehended therein from the beginning. Therefore, it adds or subtracts nothing from the original meaning…The comprehensive interpretation adds nothing anew but explains more and more the significance attached to the words …Ordinarily, every private individual may interpret laws according to the rules of jurisprudence, unless a special prohibition has been made…The code, in Canon 6 §2 bids us have recourse to the doctrine of the approved authors. The authentic, however, always remains the guide for the doctrinal.”
So what is given in way of “interpretation” on this site is not interpretation at all in the true sense, but is really only a survey of what approved authors have said themselves, what the words of the various laws mean, what can be gleaned from similar laws in the Code, what the lawgiver has said in similar matters and what the Sacred Congregations have taught concerning questions posed to them in regards to the law. To the best of my knowledge, no Traditionalists have even made a feeble attempt to follow these laws and provide the proofs demanded, even though both lay and “cleric” types among Traditionalists present themselves to their followers as “eminent canonists.” Truth is, they skipped Canons 6§4 and 18 entirely and stopped at the second condition found in Can. 20 to establish a canonical provision to justify what they are doing. This was only one out of five conditions that, if they were able to invoke this canon, they needed to satisfy under the law. It will be no surprise to those reading this that that particular provision had to do with epikeia, or the equity proper to applying the law. Instead of using it in conjunction with the other required conditions, Traditionalists used it exclusively and sacrilegiously, since they advised their followers that it could apply to the present case, without the requisite proofs, when this is nowhere permitted in the law.
Rev. William Conway, a Doctor of Divinity and a Doctor in Canon Law, explains interpretation in his “Problems in Canon Law” as follows: “The object of interpretation is to discover the meaning which the legislator intended the words of the law to have. If that meaning is discoverable, as it usually is, then the words must be interpreted in that sense. That is true even when the words are capable of being understood in a way other than that intended by the legislator, which must always be followed…The words of the law are thus especially a medium of communication between the will of the legislator and the community; they are the outward expression of his will and have the power to bind the community. It follows then that they must be understood in the sense in which the legislator meant them to be understood. Fundamentally it is the reason and will of the legislator and not the mere words that bind the community.” Rev. Conway lists those norms laid down in Canons 6§4, 18 and 20 concerning a doubt of law or fact and what is to be done when it appears there is no law governing a particular situation. Provisions of the old law, parallel passages in the Code, the history of the law and its circumstances, the original purpose of the law, the legislator’s known attitude in the matter — all are to be considered in deciding what the law actually means. If they were faithfully followed, there would be few questions about what these laws mean.
Words taken in their true context
By citing the use of epikeia, Traditionalists pretend to have been faithful to the law, when this is far from the truth. Following the false Vatican II council, clergy and laymen already were busy interpreting Canon Law authoritatively for themselves and were acting on these interpretations. For beginning in the early 1970s, Traditional mass centers were being set up all over the world. The first acts Traditionalists performed, providing Mass and Sacraments, was explained by impossibility, necessity and epikeia, but no comprehensive document justifying their use of these principles was ever set forth. Certainly the starting point was the fact that they had a doubt of law; this is what they said, at any rate, for they kept repeating that in a doubt of law the law ceases to bind. But where was their compliance with Can. 6§4, which says they are to follow the old law in such cases? And in the case of Can. 209, where is the studied consideration of the words of the laws they invoked to shore up their decision to proceed if indeed the law had ceased to exist? The first four words of Can. 209, “the Church supplies jurisdiction,” had Can. 18 been followed, would have proven that it could not be applied to the case of Traditionalists. And the word “except” in Can. 2261§1, prefacing Can. 2261§2, also the words “excommunicated” and “for any just reason” in Can. 2261§2 itself would have excluded the use of these canons. The following are examples of the rules necessary for Traditionalists to have observed in order to apply Can. 18.
1. Clear words admit no interpretation nor conjecture of the will.
2. General words are to be generally understood, (“excommunicated”).
3. Where the law does not distinguish, neither are we to distinguish.
4. An indefinite expression is equivalent to one that is universal.
5. The words of law also should be considered in their context, (“except,” “any just reason”).
6. Any argument made should not be made outside the heading of the statute, (i.e., it should remain within the bounds of the subject being discussed under the heading of each section insofar as is possible. The heading for this statue involves censures and excommunication, not infamy of law or vindicative penalties.)
7. Where the words are not ambiguous, they need no interpretation, (1-7 from Monsignor Cicognani).
And there are other rules which govern evidence that must be taken into consideration whenever a case is being made. They are:
- In a doubt of fact, the law still binds (1) where there is question of the necessary means of salvation; (2) where there is question of the validity of the Sacraments and (3) where the certain right of a third person is involved. Rev. Dominic Prummer says this is the unanimous teaching of theologians, hence is infallible, (see DZ 1151).
- “If no serious reasons can be found to prove or directly disprove that a certain law has ceased or been abrogated, the principle to be followed is: ‘In doubt, decide for that which has the presumption.’ In this case the presumption is for the continuance of the law, since it was certainly made, and there is no probability for its non-continuance,” (St. Alphonsus Liguori as quoted by Revs. McHugh and Callan under the rules of conscience in their Moral Theology: A Complete Course). This teaching of the great doctor is embodied in Can. 23.
- A proof based on experience is a proof of facts [if a witness has been proven credible] and so must be supported by concrete instance in experience.
- Every judgment must be based on proof.
- In doubt, facts cannot be presumed, but must be proved.
- When in doubt one must stand by presumption and presumption must yield to truth.
- There is no argument against the evidence.
- No argument or conclusion contrary to the evident facts is valid. (Items 1-8 are taken from Rev. Bernard Wuellner, S. J., “Summary of Scholastic Principles,” 1956).
- Canon 1812 tells us that acts issuing from the Roman Pontiff and the Roman Curia during the exercise of their office and entered as proof in ecclesiastical courts “prove the facts asserted,” (Can. 1816), and force the judge to pronounce in favor of the party producing the document, (commentary by Revs. Woywod-Smith).
- Proof to the contrary is not admitted against Letters of the Roman Pontiff bearing his signature,” (Cicognani, ibid. p. 626, ft. note).
So where is the necessary evidence required for Traditionalists to operate? What signed documents of the Roman Pontiff can they produce proving that in the present situation, they are allowed to function? What approved doctors of law and other authors can they point to (those cited prior to Pope Pius XII’s death) to prove their case?
The old law must prevail in a case of doubt
In the scheme of things, Can. 6§4 must be followed before Can. 18 or 20 can even be consulted. Revs. Woywod-Smith write in the commentary: “The student of Canon Law must keep in mind the rules of Can. 6 throughout the whole course of study of the Code, for these rules are the key to the correct interpretation of all the laws of the Code.” As Monsignor Cicognani points out: “correction of the law is essentially odious,” and Pope Pius XII has infallibly enshrined this statement in his “Vacantis Apostolica Sedis.” If we apply Can. 6§4 to Can. 2261§2, for example, we find the old law listed for this Canon as “Ad Evitanda Scandala,” (see the article on this piece in the Articles section, 10b. (e) at / ). In this article, we explain that Ad Evitanda Scandala applies only to those personally excommunicated by the Church Herself for some offense, NOT to heretics, apostates or schismatics. And “Ad Evitanda…” itself even gives Traditionalists the boot, although they entirely ignore this salient fact:
“Notwithstanding any apostolic or other constitutions to the contrary, save the case of someone of whom it shall be known so notoriously that he has incurred the sentence passed by the canon for laying sacrilegious hands upon a cleric that the fact cannot be concealed by any tergiversation nor excused by any legal defence. For we will abstinence from communion with such a one, in accordance with the canonical sanctions, even though he be not denounced.” Now in his “Ad Apostolorum Principis,” Pope Pius XII makes reference to just such bishops consecrating without the necessary papal mandate, and characterizes their ministrations as follows: “41. Acts requiring the power of Holy Orders which are performed by ecclesiastics of this kind, though they are valid as long as the consecration conferred on them was valid, are yet gravely illicit, that is, criminal and sacrilegious.” And one presumes that the same would apply to bishops ordaining priests without dimmissorial letters, although Pius XII does not mention this.
Concerning the proper interpretation of “Ad Evitanda Scandala,” St. Robert Bellarmine teaches: “There is no basis for that which some respond to this: that these Fathers based themselves on ancient law, while nowadays, by decree of the Council of Constance, they alone lose their jurisdiction who are excommunicated by name or who assault clerics. This argument, I say, has no value at all, for those Fathers, in affirming that heretics lose jurisdiction, did not cite any human law, which furthermore perhaps did not exist in relation to the matter, but argued on the basis of the very nature of heresy. The Council of Constance only deals with the excommunicated, that is, those who have lost jurisdiction by sentence of the Church, while heretics already before being excommunicated are outside the Church and deprived of all jurisdiction. For they have already been condemned by their own sentence, as the Apostle teaches (Tit. 3:10-11), that is, they have been cut off from the body of the Church without excommunication.” So what basis for proceeding to act per Can. 2261§2, in light of Can. 6§4 can Traditionalists possibly pretend to contrive for themselves?
According to Rev. Miaskiewicz, “the rules set down by Canon 6, nn. 2-5, are to be followed in the interpretation of Can. 209,” (Ibid). In the case of Can. 209 a doubt of law exists because many have questioned the validity and liciety of Traditionalist “clerics.” The old law required the colored title or office (at least an apparent standing of some kind in the Church), and Traditionalists do not even claim to occupy offices, according to Traditionalist “cleric” Anthony Cekada. Although there is no actual old law listed for Can. 209 in the footnotes, referring this law to Can. 18 will easily dispel any possibility that it could apply to Traditionalists. For any doubt of law is easily resolved by reading the first four words of this canon in context and especially in defining the word “Church” as it has always been understood where the supplying principle is involved. Historically no one but the Roman Pontiff has ever supplied such jurisdiction, and this can be traced back to the 13th century, (see Rev. Francis Miaskiewicz’s “Supplied Jurisdiction According to Can. 209,” (Catholic University of America, 1948, where he provides a complete analysis and history of this law.) Rev. Charles Journet, Can. E. J. Mahoney, Rev. Jean Marie Herve and others all verify that the pope secretly supplied jurisdiction to the orthodox, confirming that he alone would be the supplying principle in this case, since it is the pope alone who enjoys the primacy of jurisdiction. The Vatican Council forever condemned Gallicanism, infallibly defining the pope as supreme in his jurisdictional powers. “Mystici Corporis” ruled out any possibility that such jurisdiction is held by the bishops unless specifically granted by the Roman Pontiff. “Vacantis Apostolica Sedis” rules out the possibility, as put forward by Traditionalists, that such jurisdiction could be directly granted by Christ Himself. Why else would Pope Pius XII specifically declare all acts of papal jurisdiction assumed by others during a sede vacante, and any abrogation of papal laws null and void during an interregnum if Christ Himself supplied? Traditionalists fail to consider that whatever the popes bind on earth is likewise bound in Heaven.
If the true intent of those refusing to accept the NOM and V2 changes really was to keep the faith as it had existed for nearly 2,000 years, then they were still bound by the laws and teachings of the Church existing at the time of Pope Pius XII’s death. This is proven in paragraphs 1-3 of Pope Pius XII’s “Vacante Apostolica Sedis,” which simply states that we must wait for a decision of the future Roman Pontiffs on these matters involving papal jurisdiction and any changes in papal law. This is in line with Cicognani’s comment on Can. 20, that, “the teaching here in question, even though it be the teaching of those skilled in the law, of expert canonists, of juriconsultists, is of private authority and as such has no legal force…Those learned in the law are not sources of legislation, but of interpretation…An authoritative interpretation can come only from the lawgiver,” (“Canon Law”). But “Vacantis Apostolica Sedis” was never even factored into the equation. Instead, the general assumption was that canon laws no longer applied because they were impossible to follow — “impossibility excuses from observance of the law.”
Following closely behind was another reflex principle: “Necessity renders licit what is not licit in the law,” (Rule of Law # 4). Epikeia also was cited as a reason why the law should be relaxed, and in fact became the primary reason offered for relaxing it.
This is why, in these treacherous times, we first return to the old law in cases of doubt and then to Canons 18-21 in that order, should any further issues need to be resolved. We hold with the private canonical interpretations of approved theologians when they treat of subjects disputed today. We have no right, however, to take the things they have written and apply our own interpretations, or seize on some stray quotes(s) removed from the context of their work without considering the conclusions they have reached. We can readily see from their works that they have based these conclusions on Holy Scripture, Tradition, papal and conciliar decrees, decrees of the Holy Office and Canon Law itself. As long as it appears that they have faithfully and diligently kept to these fonts of Divine revelation, and we have no reason to believe they have been criticized by their fellow clergy or sanctioned by their bishop, then their conclusions must become our own. This is not an expression of a new interpretation on our part, but only the adoption of one already existing, duly approved and examined. If we pretend at all to keep the faith of the Church as it existed during the pontificate of Pope Pius XII, the final lawgiver, we need only read and obey. As mentioned repeatedly throughout this site, this pope closed the case on any changes, dispensations from or interpretation of the law in the 1945 papal election law, where he authoritatively declares even any attempted changes null and void. As Can. 1812 states, when one has a signed papl document, no further proof is admitted as evidence. And with this presumption of law, the burden of proof is shifted squarely to one’s opponents.