NEWSLETTER NO. 154 JUNE 2008
1. Golden Jubilee Conference [Fr
Aidan Prscott]
2. Papal Address to the Roman Rota
(26th January, 2008)
3. Comment [Fr John Hadley]
4. Papal address to the Study Day of
the Pontifical Legislative Council (25th January, 2008)
5. Comment [Fr John Hadley]
6. Code of Canon Law: Past, Present
& Future [Mgr John Alesandro]
7. Comment [Mgr Gordon Read]
8. Infants who died with baptism
[Mgr Gordon Read]
9. Receiving Holy Communion worthily
[Mgr Gordon Read]
10. The Sarum and Tridentine Mass in
England [Fr Derek Vidler]
11. Army of Mary excommunications [CDF
Declaration]
12. Background to the Army of Mary
excommunications [Mgr Gordon Read]
13. Marriage ministry and Rite of
Marriage [comment by Fr John Hadley]
14. National Tribunal for Wales
[Canon Matthew Jones]
15. Recent Rotal Jurisprudence:
Deceit [Professor Augustine Mendonca]
16. The Travels of the President
[Mgr David Hogan]
17. Ecclesial Movements [Pontifical
Council for the Laity]
The Conference, to mark the Golden
Jubilee of the Canon Law Society, took place at the Casa La Salle on
Via Aurelia between 5 and 9 May 2008. It was attended by over 150
participants. Papers were given by Archbishop Francesco
Coccopalmerio, the President of the Pontifical Council for
Legislative Texts. He forecast wide-scale alterations in the law of
the Code over the future years.
Monsignor Charles Scicluna, Promotor of Justice at the Congregation
for the Doctrine of the Faith, dealt with the Bonum Commune
Ecclesiae as a criterion for the regimen and exercise of rights
in the 1983 Code. His paper was regarded as the best presentation to
the Conference. There was a very high powered Question and Answer
session chaired by Father Aidan McGrath. He was accompanied on the
panel by Father Michael Hilbert of the Gregorian; Father Luis
Navarro of Santa Croce; Father Michael Kavanagh of the Angelicum;
and Father Manuel Arroba Conde of the Lateran.
There was a (very) general Audience on the Wednesday of the week.
Unfortunately, it was not a private Audience for the CLS like that
in Rome in 1992. However, the President and the Secretary met with
the Pope afterwards. Monsignor Bob Deely and Fathers John Kennedy
and Patrick Burke very courteously received visitors at the CDF.
They were most helpful in their description of their (very
different) work in the Congregation. The same day – or evening – was
given over to visiting and hospitality at various National Colleges
in Rome.
Archbishop Stankiewicz, the Dean of the Rota, celebrated Mass on the
Thursday; and Archbishop Velasio de Paolis led a review of the main
documents of the Church on the Pastoral Care of Migrants. On the
final day, Cardinal Urbano Navarrete gave his paper in Italian on
his involvement in Canon Law for the last fifty years. At the end of
his talk, the President presented the Cardinal with its singular
tribute of honour, namely, Honorary Life Membership of the Society –
which brings the number holding that honour to three. Cardinal John
Patrick Foley celebrated the last Mass and formally closed the
Conference. [See Document No.I by Father Aidan Prescott]
The Holy Father, as usual, addressed the
Judges and other officials and members of the Roman Rota this year
on 26 January 2008. An essential point he makes about the decisions
of the Roman Rota is that they do not form a “binding precedent” as
presentations of the law. The Pope reminds his audience that the
rationale of the Church is not the need for good order, nor even for
distributive justice, but the need for communion. He examines this
in THE context of the Roman Rota, but also for the Churchs’ Courts
throughout the world. For the Holy Father’s allocution see Document
No.II. Father John Hadley examines the address at Document No.III.
The day before the Pope’s Address to the Rota, he addressed the
Study Congress organised by the Pontifical Council for Legislative
Texts to mark the 25th anniversary of the publication of the New
Code of Canon Law. His remarks are set out at Document No.IV; with a
brief commentary by Father John Hadley at Document No.V.
Monsignor John Alesandro, known as Jack,
gave a paper to after the Canon Law Society of America in October
2007. The paper was reprinted in Origins. Vol.37, no.23, 15 November
2007, pp.357-370. Jack Alesandro was a very important member of the
group who advised the Cardinals at their meeting on the final draft
of the Code in 1982. Bishop Joe O’Connell wrote a piece in CLSN
No.153, March 2008 (Golden Anniversary edition), pp.38-41. This
dealt with the last pages of the Revision of the Code. Reference
there will show Monsignor Alesandro as part of the final revision
stages. Consequently, there could hardly be a better commentator on
the first twenty-five years of the New Code than Monsignor
Alesandro.
Monsignor Gordon Read has written a piece following the Origins
article about the Code and its development. He draws attention to
the little known (or little recollected) fact of a body established
by Pope Benedict XV: a commission not only for the interpretation of
the 1917 Code; but also this new body was to review any new general
decrees of the Roman Congregations. The new Commission would have
the responsibility of determining whether such new decrees should
become law in the Church. As Monsignor Read comments: “This became a
dead letter”. Monsignor Alesandro’s paper is essential reading for
modernising the present law. Clearly, with the present Holy Father’s
interest in these changes, this should be an interesting area to
watch in the development of the Church’s legal system. [see Document
No.VI for Monsignor Alexandro’s paper; and Document No.VII for
Monsignor Gordon Read’s comment]
Whole generations of the faithful grew
up on the basis (or the theory) that infants who died without
baptism are deprived of the beatific vision and enjoy natural
happiness: what was called “limbo”. This whole matter was recently
addressed by the International Theological Commission in a document
called “The Hope of Salvation for Infants who Died Without Being
Baptised” published by the authority of Pope Benedict XVI on 19
January 2007. This is described as “the thinking of theologians
approved by the Church”: a doctrinal reflection rather than a
canonical document.
Monsignor Gordon Read has studied the document and sets out a
commentary. The theory of “limbo” was never part of the doctrine of
the Church. The Commission says towards the end of the document:
“Our conclusion is that the many factors that we have considered
above, give rise to theological and liturgical grounds for the hope
that unbaptised infants who die will be saved and enjoy the beatific
vision”. The Commission also makes it very clear that there is no
intention to de-emphasise the importance of infant baptism and goes
on to say “while the Church has hopes for the salvation of
unbaptised infants, it is pastorally important to administer the
Sacrament to provide an assurance of this hope”. [See Document
No.VIII]
On 14 November 2006 the United States
Conference of Catholic Bishops produced a teaching document on the
Reception of the Eucharist, “Happy Are Those Who Are Called To His
Supper: On Preparing to Receive Christ Worthily in the Eucharist”.
In some ways it is similar to the document ‘One Bread, One Body’
produced jointly by the Bishops’ Conferences of Ireland, Scotland,
England and Wales some years ago.
In the first part of the document the Bishops set out to answer the
basic questions: what do we believe about Holy Communion, and what
is the significance of being united to Christ in Holy Communion? The
first section speaks about the doctrine of transubstantiation, and
what this means in terms of receiving the Eucharist. The second
section explores the implications at greater depth. We find healing
and strength by participating in the one sacrifice of Christ. We
enter into communion with one another as the Body of Christ.
Receiving Communion is a personal action, but not a private
devotion. We are united to the Holy Trinity and to the community of
the Church. We share in Christ’s resurrection and divinity. From
this foundation, the document passes on to a question of a more
disciplinary nature, albeit founded on doctrine: who may receive
Holy Communion?” The American Bishops then move on to the tricky
question: “Should we ever refrain from receiving Holy Communion?
This is a controversial issue in the light of differing public
positions taken by Bishops with regard to politicians with
questionable views on abortion, homosexuality, etc. Monsignor Read
analyses the Bishops’ Document on this very delicate point. [See
Document No.IX]
Father Derek Vidler has done some most
interesting research into the use of the Sarum Rite in England and
the introduction of the so-called Tridentine Rite. The Decree of
Pius V (1570) did not bind in those places where their own rites
were two hundred or more years old. The Sarum Rite, of course, was
far older than that; hence technically the decree did not bind. But
equally because 1570 was not a particularly propitious time to
introduce legislation in this country from the Holy See, there
obviously could be no promulgation here. Father Vidler examines the
history of the Rites of Mass and the Breviary long before the
Reformation in England as well as after it. [See Document No.X]
It was reported that on 11 July 2007 the
Congregation for the Doctrine of the Faith had declared the
excommunication of those who subscribed to the doctrines of the
Community of the Lady of the Nations (known as the Army of Mary).
This statement from the CDF confirmed a doctrinal judgement
expressed by the Catholic Bishops of Canada on 29 June 2001.
The Canadian Bishops’ Conference explained in a statement:
“Following earlier consultations with the Bishops of Canada and also
with the Congregation for Institutes of Consecrated Life and
Societies of Apostolic Life, the Congregation for the Doctrine of
the Faith has issued a declaration of excommunication that applied
to various members of the Army of Mary. Despite repeated warnings by
the Bishops of Canada, including Cardinal Marc Quellet, Archbishop
of Quebec City, members of the Army of Mary earlier this year
participated in Ordinations forbidden by and not recognised by the
Catholic Church. The actions obliged the Congregation to issue the
declaration, it states, because of ‘the very grave situation’ and
given there was no ‘hope of another solution’”. Those who incurred
excommunication include Father Jean-Pierre Mastropietro, for having
attempted to perform ordinations not approved or recognised by the
Church. Others who are excommunicated claim to have been ordained by
him as deacons and priests.
[See Document No.XI for the statement of the CDF; in Document No.XII
for a comment by Monsignor Gordon Read].
Paul Covino is an associate Chaplain and
Director of Liturgy at the Holy Cross College in Worcester, Mass. He
gave a paper at the National Marriage Symposium at Boston College on
26 September 2007. In his paper he focuses on the role of the Rite
of Marriage. He says: “The liturgy expresses the belief of the
Church and shapes the faith of the assembly. Rather than liturgy
being the exclusive focus on marriage ministry it is most effective
when theology and catechesis, marriage preparation and enrichment,
and the wedding liturgy are experienced as inseparable components in
a cohesive whole”. Covino considered both the verbal and non-verbal
aspects of the rite, commenting that for instance the Rite of
Marriage does not mention “the custom whereby the bride enters with
her father and the bridesmaids and meets the groom, who appears out
of the blue at the head of the aisle”, a custom that many see as the
bride being given from one man to another.
The whole of the paper is reported in Origins, 1 November 2007,
vol.37, no.21,pp.333-339. A comment on the whole paper has been
prepared by Father John Hadley. [Document No.XIII].
For some years there have been
discussions about the rationalisation of the Tribunal system in
Wales. Prior to 1987 there were two dioceses in Wales – covering the
South and the North. In 1987 the Diocese of Wrexham was created
making three dioceses: Wrexham in the North, Menevia in the centre
and Cardiff in the South. With this step in 1987, there was
established a joint Tribunal for Cardiff and Menevia; with a
separate Tribunal established for Wrexham.
Since the late 1990s there have been discussions about a possible
regional Tribunal for the whole of the Welsh province. When
Archbishop Peter Smith, himself a Canon Lawyer, arrived he moved
these discussions forward; and finally a request for a regional
structure was approved by the Signatura Apostolica on 28 September
2004. Canon Matthew Jones of Cardiff, the Judicial Vicar of the new
structure, has written about it at Document No.XIV.
Professor Augustine Mendonça, this time
writing in the Philippine Canonical Forum for Manila,
directs his attention to Deceit. He considers five rotal decisions
relating to this ground. All of these cases have come to the Rota on
appeal; two of them considered of second Instance; and three of them
at third Instance. The names of distinguished Rotal Judges figure
here, e.g. Pompedda, De Filippi, Serrano, (and two by) Faltin. Three
of these marriages took place before the1983 Code; and two of them
afterwards. The cases are based on such things as the blood
condition of the Petitioner, allegations of pregnancy, departure
from the faith and sterility.
Each case (whether pre-or post-Code) deals with whether deceit Canon
1098) is retroactive or not. Professor Mendonça indicates that there
are two schools of thought. He helpfully refers readers to a work
dealing with the whole question, namely “Fraud and Nullity of
Marriage in Canon Law and Civil Law: A Comparative Analysis” by J.P.
Kallikka – a Dissertation to St Paul University, Ottawa 2004,
pp.104-116. Mendonça first considers the prescript of Canon 1098 as
only positive law. In fact, it stands as an exception to the
prescript of Canon 125 §2 on deceit in general. Therefore, the
proponents of this theory argue that deceit per se does not
invalidate consent by virtue of the natural law. They acknowledge,
however, that the effect of error produced by deceit can invalidate
marital consent by virtue of Canon 126 under the title of either
substantial error or accidental error which amounts to a condition
sine qua non. Both these situations are now covered by Canon 1097
for marriage cases. This was the approach taken by ecclesiastical
Tribunals, especially by the Roman Rota, when faced with cases of
marriage celebrated prior to the coming into effect of the new Code
and proposed on the ground of deceit. The fundamental reasoning
behind their argument is that error mentioned in Canon 1097, §2
invalidates consent whether it is caused from within or from
without, and it does so by force of natural law itself. Because
deceit causes an error of quality in the mind of its victim, that
error causes the invalidity of the act of consent. Therefore, the
norm of Canon 1098 can be retroactively applied to marriage cases
celebrated prior to the coming into effect of the new Code. The
opponents of this view argue that the norm of Canon 1098 is a
principle of natural law. Their reasoning is based on the dignity of
the human person, both of the deceiver and of the deceived. By
deliberately distorting his self-image the author of the deceitful
action in effect lies to self in order to obtain the consent of the
other. And with such a lie he denigrates the dignity and trust of
the victim of deceit. This is gross injustice in a matter that is so
deeply personal and interpersonal. The deceitful action in effect
denies its victim the freedom of choice by controlling the mind of
that person through an inauthentic or distorted self-image.
It seems both views are not without merit, and they certainly create
a juridical conundrum which is not without its practical
consequences. The prescript of Canon 14, which provides for a
situation involving a doubt of law (dubium iuris), is not
applicable to this case because Canon 1060 clearly overrides it by
stating that marriage enjoys the favour of law; therefore, in a case
of doubt, the validity of a marriage must be upheld until the
contrary is proven. Even those who favour the natural law basis of
Canon 1098 are forced to agree that, in the presence of such a
divide in views, there is doubt of law (dubium iuris)
concerning the retroactive force of Canon 1098 as per Canon 1060.
For this reason, some Rotal Auditors have deliberately refrained
from applying Canon 1098 to concrete cases involving marriages
celebrated prior to the coming into effect of the new Code, but have
not hesitated to use the principle of substantial error or error of
quality directly and principally intended (Canon 1097, §2) to such
cases. If this approach is legitimate, which we strongly believe it
is, the whole question of retroactivity of Canon 1098 might be
considered as moot. An abbreviated version of this study is
reproduced at Document No. XV with the kind permission of Professor
Mendonça and the Editor of the Philippine Canonical Forum, vol.VII
(2005) pp.55-90.
One of the first things the new
President, Monsignor David Hogan had to do on his election as
President was to pack his bucket and spade to travel to North
America. He describes his visits to the American and Canadian
Conferences at Document No.XVI.
Recently the Pontifical Council for the
Laity published a list of “movements” which have been granted
juridical Status and whose statutes have been approved. This list is
reproduced at Document No.XVII. It includes a list of those bodies
which have requested canonical recognition and which are presently
under investigation by the Pontifical Council.
Belated congratulations are offered to
Monsignor Graham Adams who was named as a Prelate of Honour by the
Holy See on 18 June 2007.
Father Gerard Skinner of the Archdiocese
of Westminster has recently published: The Pallium: A Brief Guide
to its History and Significance. A review of this work has been
written by Father Ian Waters, an historian and Canonist of note, and
the President of the Canon Law Society of Australia and New Zealand.
The review originally appeared in CLSANZ Newsletter 2007, no.2, at
p.345. [See Document No.XVIII].
As already noticed in CLSN for March
2008 (No.153), the Honour of the Dame of St Gregory was awarded to
Mrs Veronica Mars by the Holy See for her services to the Canon Law
Society of Great Britain and Ireland. The Insignia of the Order was
conferred upon her by the CLS President, Monsignor David Hogan, on
12 March 2008. A copy of the press release appears at Document No.
XIX.
Sister Sharon Euart has been appointed
as the new Executive Co-ordinator of the CLSA. She succeeds Father
Art Espelage who has held office since 1999. Sister Sharon will
assume her new position on 1 August 2008. Sister Euart has been a
member of the Canon Law Society of America since 1984 and served as
its President in 2004-2005. In addition to serving as President of
the Society, she has served as a Consultor on the Board of Governors
from 1995-1997. Sister Euart holds a Doctorate in Canon Law from the
Catholic University of America and a master’s degree from John
Hopkins University. Sister Euart entered the Sisters of Mercy of the
Americas Regional Community of Baltimore in 1966. The Executive
Co-ordinator is the chief administrative officer of the Canon Law
Society of America, and provides Services to the Board of Governors
and the Society’s more than 1,500 members. Sister Euart is the
eighth person to hold this office.
The CLSANZ Annual Conference will take
place between 15-18 September at the Holiday Inn Hotel, Hindley
Street, Adelaide, South Australia.
The CLSA Annual Conference will take
place between 12-16 October 2008 at the Hyatt Regency, Crown Center,
Kansas City, Missouri, USA.
Two interesting books published by
Wilson and Lafleur in the Gratianus series are:-
"A Handbook on Canon Law" by Joseph Martin De Agar (Can)
$21.95
"Introduction to the History of the Sources of Canon Law" by
Brian Ferme (Can) $49.95
The books can be obtained from:
Wilson & Lafleur Ltd
40 Rue Notre-Dame Est,
Montreal
Quebec H2V 1B9, Canada
e-mail:
jean-noel@wilsonlafleur.com
[Visa/Mastercard accepted]
