The Binding Nature of Canon Law and Its Interpretation
© Copyright 2009, 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.)
When you read your driver’s manual to retake your driving test, what is your attitude toward all the laws of the road concerning driving? Do you intend to stop at every stop sign, signal at every turn, do the speed limit, keep your vehicle repaired, drive safely at all times, refrain from driving after drinking? If you are a Catholic, you probably take these and all the other laws governing day-to-day life seriously because you know the Church expects you to obey even the civil law; to render unto Caesar his due. And you also know failure to obey the law will cost you money, inconvenience and even jail time.
Now of course federal and state laws are human laws, enacted by the secular authority. And humans rule these countries, states and towns and are responsible for making and proposing these laws. This is not true of the Catholic Church. The Catholic Church is a Divine society. Many of Her laws are based in whole or in part on laws which are Divine or natural and some laws are based entirely on Divine positive law. While the majority of Canon Law is ecclesiastical law, it was still created by a divinely established society for the common good of all Catholics. It is the infallible teaching of the Church Herself, in the Vatican Council (DZ 1827) and elsewhere, that ecclesiastical discipline is (indirectly) infallible. So why do so many Catholics render unto Caesar without question, yet fail to render unto God what is God’s?
When any normal human being reads over federal or state laws, it is usually with an eye to understanding how to avoid violating these laws or to discover what penalties are attached to the various laws. One does not take the laws in hand with the intention of seeing how far they can be stretched or how close one can come to the actual line without crossing it. No one, ordinarily, would dream of looking at these laws with the idea that they could be interpreted to one’s advantage, changed, ignored or dispensed from in certain cases; yet this is exactly what has happened with Canon law for over 50 years. The reason this doesn’t happen with civil law is because there are real consequences involved in breaking the law, those consequences are enforced and they have a meaningful effect. But since the exodus of Catholics from the Novus Ordo church began in the 1960s resulting in the absence of any true authority in the Church, there has been no way to enforce Church law and therefore no meaningful consequences. And those who have tried to uphold the continuing application of Canon Law have been condemned for daring to presume to interpret it.
Pius XII did in fact write a law, however, that should have determined our actions during this crisis in the Church, and it is quite specific about how we must regard Canon Law during a vacancy of the Holy See:
1. “While the Apostolic Seat is vacant, let the Sacred College of Cardinals have no power or jurisdiction at all in those things which pertain to the Pope while he was alive…but let everything be held, reserved for the future Pope. And thus we decree that whatever power or jurisdiction pertaining to the Roman Pontiff, while he is alive (unless in as far as it is expressly permitted in this, Our Constitution) the meeting of Cardinals itself may have taken for exercising, is null and void.
2. “Likewise we order that the Sacred College of Cardinals is not able to dispose of the laws of the Apostolic Seat and the Roman Church in any manner it wishes, nor may it attempt to detract wheresoever from the laws of the same, either directly or indirectly through a species of connivance, or through dissimulation of crimes perpetrated against the same laws, either after the death of the Pontiff or in time of vacancy, [however] it may seem to be attempted. Indeed, we will that it [the Sacred College] ought to guard and defend against the same contention of all men.
3. “Laws given by the Roman Pontiffs are in no way able to be corrected or changed through the meeting of the cardinals of the Roman Church [the See] being vacant; nor is anything able to be taken away or added, nor is there able to be made any dispensation in any manner concerning the laws themselves or some part of them. This is very evident from pontifical Constitutions [on]…the election of the Roman Pontiff. But if anything contrary to this prescript occurs or is by chance attempted, we declare it by Our Supreme authority to be null and void.” — Vacantis Apostolica Sedis, paras. 1- 3, Ch. 1; Pope Pius XII, 1945.
Pope Pius XII was the last legislator in the Catholic Church. He speaks here as a ruler and teacher, invoking his Supreme Authority, in a matter concerning the entire Deposit of Faith, in a Constitution that has been publicly circulated to all, to forbid any and all attenuation of the law during an interregnum. And it is clear from the curse attached to this Constitution and the inhabilitating nature of his decision that he wishes to bind the whole Church, since any such actions are null and void, however they may be attempted. No one can hope to invoke epikeia to override a pronouncement of the ordinary magisterium. There are many laws given by Pope Pius XII that have been ignored or violated in the course of the past 50 years. The mind and teaching of the legislator was clear; the understanding of the law was woefully lacking. In light of Pope Pius XII’s binding teachings, a fresh look must be taken at all that has transpired from a canonical point of view over the past several decades. And we must keep in mind that regardless of what may have taken place all these years, Pope Pius XII already has declared it null and void, even if his own cardinals had attempted it. So how does this apply to us?
Basically anything that violated any of the laws made by Pope Pius XII himself (“Pope while he was alive”) or the “Roman Church…laws given by the Roman Pontiffs,” — and this is a wide-open field — is made null and void by an infallible decree here. IS this decree infallible? It is at least a document of the ordinary magisterium, since it is contained in the Acta Apostolica Sedis (AAS XXXVIII), and “Humani Generis” states all doctrines found there can be considered “official.” Canonists confirm that the AAS, since the early 1900s, has been the designated repository of official documents issuing from the Holy See. We stand exactly as we stood, then, according to this law, at the death of Pope Pius XII on Oct. 9, 1958. So what all has been done since his death that is now null and void?
In “Mystici Corporis Christi,” Pope Pius XII expressly defined the power of bishops as issuing directly from Christ Himself, yet he taught that only the Roman Pontiff can determine the manner in which such power may be used. This forever banished the Gallican contention which held that the very reason bishops can function independently during a vacancy of the Holy See, or an extended period of uncertainty about its true occupant such as occurred during the Western Schism, is precisely because they receive their power directly from Christ and may exercise it independently of the Roman Pontiff. There is no doubt that Pope Pius XII defined this as an article of faith; Cardinal Ottaviani even specifically changed a thesis he had delivered that was contrary to the Pope’s definition to reflect this decision, according to Rev. Joseph C. Fenton. We can understand why those bishops living at the time of the Western Schism could have been confused concerning their standing at that time. But how and why is there any confusion today, when the teaching of the Church is crystal clear on this matter?
This is the basic Church teaching that has been violated in our time. Every act attempted since the exodus began from the Novus Ordo church is an act that required the power and jurisdiction of a bishop, and the jurisdiction needed by that bishop to licitly function and govern the faithful. Most importantly, it governed the creation of any new bishops during this time. So any declaration of certain validity or their current standing as Catholics would depend on their future review by a canonically elected Roman Pontiff, as indicated in “Vacantis Apostolica Sedis.” This constitution effectively interprets their ordinations and consecrations as attempts to circumvent the law, and nullifies any actions performed by these men; this is the only meaning that could be wrung from what Pius XII says, no matter what tortuous methods might be applied to his words. Clearly what the Church has forbidden cardinal-bishops and cardinal priests to do during an interregnum it would even more stringently forbid simple bishops to do. The one possible exception to this prohibition would be the following: if a body of faithful bishops yet possessing jurisdiction from this same Pope determined that no cardinals any longer existed. Pius XII seems to allude to this possibility in paragraph 34 of his constitution. That being the case, as the law clearly provides and a good number of theologians agree, such bishops could act. At the request (or if necessary the insistence) of the remaining clergy and faithful, these bishops could have met in an Imperfect Council, as St. Robert Bellarmine teaches, to elect a true pope, because essentially the power to elect would devolve upon them. But this is not what happened, and that golden window of opportunity is now long since past.
American sedevacantists may have realized this at some point early on in the game. But the decisions made at that point do not reflect any knowledge of Pope Pius XII’s law or any intent, if knowledge indeed existed, to follow his law. They were bound to know the law, because Canon Law denies ignorance as an excuse in invalidating and in inhabilitating laws (which declare things null and void) under Can. 16, and Pius XII’s constitution is such a law. But most importantly, Pius XII sealed this law with his Apostolic authority. Whatever happened outside that law is as if it never existed. Priests acting as bishops could not erect parishes or churches, could not preach, could not teach and could not establish seminaries. Priests without jurisdiction could not receive it, since it must come directly from a true pope or a bishop granted jurisdiction by a true pope. Nor could those possessing jurisdiction yet acting outside their territory, except in danger of death, claim this jurisdiction. All this required an official interpretation of the law, a dispensation from the law or a partial adjustment of the law, able to be made only by a true and canonically elected Pope or his designee. In writing the law on papal election, it was Pope Pius XII’s clear intention to faithfully guard the deposit of faith, even from the cardinals if necessary, but from any and all who might attempt to change papal laws in any way during an interregnum. “ALL MEN” must be prevented from changing these laws in any way, and bishops and priests are men.
There is no evidence of any kind in “Vacantis Apostolica Sedis” that Pope Pius XII intended in any way to supply jurisdiction for those operating outside the very laws he ordered the cardinals to uphold. This is the stated mind and intent of the lawgiver (Can. 18); this is the infallible teaching of the Church. No exception whatsoever to the existing laws is hereby granted. This includes “Mystici Corporis Christi,” which requires that the divine jurisdiction received by bishops directly from God be regulated only by the Roman Pontiff. It includes “Ad Apostolorum Principis,” which patently requires a papal mandate for the consecration of bishops. It includes also the law of Pope Innocent XI requiring that where the validity of the Sacraments (penance, primarily, but also ordination) is concerned, one is to take the safer course to avoid receiving an invalid Sacrament or sacrilegiously conferring such a Sacrament. These and other subjects will be explored further in the course of this study.
An infallible decree is scarcely the equivalent of a human or ecclesiastical law. It speaks most especially to what has been attributed to St. Alphonsus, that the presumption is for the continuance of the law, since it was certainly made, and there is no probability for its non-continuance. “Vacantis Apostolica Sedis” sets this phrase in stone, in the sense that Pope Pius XII has effectively guaranteed the presumption for the continuance in full force of all laws during an interregnum. He has removed any probable cause for questioning or dispensing from these laws. What remains in all this is the permission given, in Can. 2261 §2, for the administration of the Sacraments to Catholics by excommunicates against whom no declaratory or condemnatory sentence has been issued. The word “excommunicates” in this canon is currently interpreted by priests and faithful alike as pertaining to all excommunicates, including those excommunicated for heresy and schism. This is forbidden by Pope Pius XII’s law; those deposed are forbidden to vote, and all heretics, apostates and schismatics are deposed form any offices (cardinals included) for these crimes. Only a future Roman Pontiff or those he designates to interpret the law may authentically interpret Pius XII’s election law. Until then the Sacraments and the faithful are to be protected from injury by abstaining from participation until a decision can be made.
There are certain indicators of how the Church interprets the meaning of the word excommunicate, and the circumstances required to allow Can. 2261 §2 to be applied as the Church intended. These will be examined elsewhere.