Of Mercy and Minions

Canon law is not something which gets a lot of press, as a rule. Cause God doesn’t do laws, ok man?

Every now and then, however, something happens which brings canon law into the mainstream news. An unfortunate cultural by-product, in and out of the Church, of ignoring canon law 99% of the time is that when it suddenly becomes important nobody actually knows what is going on. Canon lawyers, myself included, often do not help matters because we have a tendency to assume that what is obvious to us should be obvious to everybody. Such a case has been brewing since the spring, and hit the mainstream media this week, regarding the Pope’s special “ambassadors of mercy”.

In his letter concerning the Year of Mercy, the Holy Father has stated that he is going “to concede to all priests for the Jubilee Year the discretion to absolve of the sin of abortion those who have procured it and who, with contrite heart, seek forgiveness for it.” Before parsing this statement and going into the confusion which has, predictably and unnecessarily, grown up around it, I want to make one thing perfectly clear: the language of this statement is wrong, and that is neither impossible, nor the end of the world.

The Vatican Press Office...
The Vatican Press Office…

Popes are not born legal experts, necessarily, any more than presidents, ministers, or legislators are when they come to office. The Pope wears a number of different hats (three, if you take a look at the papal coat of arms) and he is sometimes speaking as a priest, sometimes a teacher, and sometimes as the head of a coherent legal society. The roles are not distinct in how they are exercised, or at least they shouldn’t be, and what he does, or wants to do, as one necessarily has a direct impact on the other two. It is the job of those around the Pope to take his instructions and render them into a coherent statement, pastorally, legally and theologically; that’s the proper function of all those well-dressed monsigniori gliding around the Vatican, and they properly shat the bed on this one. The curia’s entire purpose is to assist the Pope in putting what he wants into practice, that means when he says “I want every priest to be able to deal with the situation of abortion for the year of mercy”, his minions are supposed to swing into action and prepare the necessary text to reflect what is going to actually happen. Not just press *copy*, *paste*, *send* when they get the memo from Himself.

While the meaning of what the Pope wrote is pretty easy to guess if you’re a canon lawyer, it’s legal nonsense in and of itself. So when some halfwit at the New York Times reads it and doesn’t, as is their wont, bother to even google the context of the thing, confusion goes viral.

So, getting back to the Pope conceding to all priests the “discretion” to “absolve” the “sin” of abortion for the Year of Mercy. Let’s start by pointing out the obvious: 99% of priests already have the power to absolve the sin of abortion. Any priest who has the power to sacramentally forgive sins has the power to forgive all sins*.  The only priests who cannot “forgive” the “sin” of abortion already are those who have had their faculty to hear confessions revoked and thus can’t forgive any sins, except in danger of death.

And that’s another thing: let’s disregard the word “discretion”, which should read “faculty”; discretion implies a freedom of personal judgement bordering on the arbitrary. A priest either has the power and authority to do something sacramental and/or canonical, or he does not; he does not get to decide depending on how he feels that day.

How faculties to hear confessions and forgive sins work, in canon law, is like this: a priest gets the “power” to forgive sins through his ordination, but to validly use this power he needs the faculty to exercise it (c. 966 §1). He gets this faculty from the law itself in some circumstances, like in danger of death (c. 976), but the normal process is for him to be given the faculty by his bishop for use in the diocese (c. 969 §1). Once he has the faculty from his bishop to hear confessions and forgive sins in his diocese, the law then extends that faculty to apply anywhere in the world (c. 967 §2). In short: if a priest has the faculty to hear confessions and absolve any sins, he can absolve all sins, and if he has the faculty to do this somewhere he can do it anywhere.

This means that the actual effect of the Pope’s concession of the “discretion to absolve the sin of abortion to all priests” is to grant them a faculty which 99%of them already have. The one-percenters who don’t have the faculty are those who have not already been given it by their bishop, or have had it revoked; those suspended from ministry, for example. Now it is pretty obvious that this is not what the Pope meant, even if it is what he technically said. So what did he mean to say?

What was supposed to be announced, and what would have been announced had his curial assistants done their job, was the concession of the “faculty” to “remit the censure” for the “delict/crime” of abortion.

As was discussed in the previous post on the excommunicated, not every sin is also a canonical crime, though some of the most serious are. Abortion is, for sure, a grave sin. It is also a delict (c. 1398) which carries the penalty of excommunication. Now let’s be clear: there is no such thing as a “reserved sin”, but there are “reserved crimes”. A reserved crime is one where only a person with particular authority can lift the penalty. In the case of abortion, only the ordinary of the territory (the bishop, for all intents and purposes) can lift the censure, in this case of excommunication. It is common practice for some bishops to give their priests this faculty by delegation, along with the faculty to hear confessions. But, since the faculty to lift the penalty is not extended by the law, as it is with absolving the sin, to cover everywhere, but is limited to the territory of the ordinary, the power to lift the censure does not travel with the priest, even if he has it at home.

Putting it as simply as possible: every priest has the power to forgive any sin, by virtue of his ordination; almost every priest (excepting those denied it for good reason) gets the faculty to exercise this power from his bishop, once he has this power in his home diocese he can use it anywhere; if the bishop also gives him the faculty to lift censures for certain reserved delicts (like abortion) he can only use this when he is physically in his home diocese.

So let’s take a hypothetical: a student at a Catholic university (an actually Catholic one, not Georgetown) commits an abortion. They want to go to confession and, it being a Catholic university, there are lots of priests around, so she goes to the chapel and asks a priest there to hear her confession. As it happens, this priest is himself a graduate student at the university and from another diocese. As he hears the confession he realises (because his graduate degree is, mercifully, in canon law) that he has the faculty to absolve the sin but not lift the excommunication.

Now, because the excommunicated are forbidden to receive the sacraments (c. 1331 §1, 2º) he cannot licitly (as opposed to validly) give her absolution until the penalty is lifted. He should (compassionately etc.) explain the situation to her and arrange, preserving her total anonymity, to have her penalty lifted by one who has the power to do so (every diocese has a canon penitentiary for just these situations).  He will then meet her again, by prior arrangement and still preserving her total anonymity, when this is done, tell her the penalty is lifted, and grant her absolution.

Complicated and not very pastoral you say? Typical of evil canon lawyers, getting into the confessional and keeping people hanging around in sin? But wait, there’s more: if there is a danger this person is going to die, then the law gives the priest the power to both lift the penalty and forgive the sin on the spot (c. 976), and even if he just decides that its “burdensome” to the penitent to have to remain in a state of sin while he sorts things out, he can grant a special remission of the penalty and absolve the sin, as long as the penitent undertakes to present themselves to the proper authority within a month and have the penalty properly lifted (c. 1357).  So there.

Anyway, what the Pope is actually doing is giving all priests (excluding, let’s hope, the suspended ones) the faculty to lift the excommunication, always and everywhere and on their own, for the Year of Mercy. This is not actually that uncommon, Pius XI did the same thing for the Holy Year in 1926. It’s a nice thing to do, it does highlight the Church’s mission of mercy and it will, hopefully, just by drawing attention to the sacrament and not because of any actual drastic change, bring people back to the confessional. But it’s hardly the disciplinary earthquake people are assuming it is, and that was a very avoidable distraction. Even in the Vatican, you just can’t get the staff these days.

*The exception to this rule is that they cannot absolve an accomplice in a sin against the 6th Commandment.

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