OUR LADY OF FATIMA  CATHOLIC CHURCH

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Eminent Canonists from the Official Catholic Apparatus
on Episcopal Consecration and the State of Necessity

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THE EPISCOPAL CONSECRATIONS: A CANONICAL STUDY

Rev. Fr. Rudolf Kaschewsky

Una Voce Korrespondence, March-April 1988

Father Kaschewsky is a German Canon lawyer

I

The consecration of a bishop has, in the hierarchy of the Sacrament of Orders, pride of place. A cardinal and the pope do not have a higher consecration. A bishop possesses two powers:

—a power of consecration;

—a power of jurisdiction, which he can exercise only if he is in charge of a diocese.

II

The episcopal power is a power of divine right which endows a bishop with a personal authority and gives him a legal and constitutional status which the pope can neither suppress nor modify.

A bishop is not allowed to confer episcopal consecration on anyone without papal mandate (Canon 953, CIC 1917). Whoever acts contrarily incurs an excommunication latae sententiae—”reserved to the Holy See” (Canon 1382, CC 1983). The excommunication Latae sententiae takes effect by the very act itself; it does not need to be decreed. In this particular case, the 1917 Canon Law inflicted only a suspen­sion (“Ipso iure suspensi sunt, donec sedes Apostolica eos dispen­averit”—"They are suspended by the law itself, until the Apostolic See dispenses them” [Canon 2370, CC 19171).

It is only since the Decree of the Holy Office of August 9, 1951, that the sanction of the excommunication ipso facto most specially reserved to the Holy See was introduced for illegal episcopal consecrations. This was due, without doubt, to the tragic turn of the Church in the People’s Republic of China. This sanction was later confirmed after the actions of the sect of Palmar de Troya in Spain.

III

However, Canon law is far from judging things only according to their exterior aspects. Not to take into account the particular circumstances and the subjective disposition of the persons in question would also be in contradiction with the Church’s current notion of justice. In the case of an episcopal consecration without papal mandate, the threat­ened sanction, according to the terms of Canon 1382, is very clearly an ipso facto sanction as stated above. Therefore, in this case one must apply the principle: “An ipso facto sanction does not apply if there exists an attenuating circumstance as laid down by law.”

There is thus need to consider attentively the rules of Canons 1323 and 1324 of the Code of Canon Law (CIC) of 1983, which correspond to Canon 2205 (n. 2, 3) of the CIC

1917. These canons deal with the case of an act to which a sanction is normally attached but which was done only in order to avoid a grave inconvenience or to provide for a necessity. Here is a quote from Canon 1323 n. 4 (CIC 1983):

“No penalty is incurred by a person forced by a necessity to act against the law.” The former Code (Canon 2205, n. 2) speaks in the same sense.

IV

What does the law mean by “grave inconvenience” and “necessity”?

Let us quote from the book on canon law written by F. Eichmann-Morsdorf: “A grave inconvenience or necessity is a situation of constraint such that, without fault, the person in difficulty is physically or morally obliged to do something against the law in order to avert the danger. (Necessitas non habet legem—necessity has no law.) This may be a threat against his spiritual goods, his life, his freedom or other earthly goods.”

V

It is generally granted—and no one seriously questions this—that due to the orientations taken after the council one finds within the Church a serious threat against the spiritual goods especially regarding priestly formation, faith, morals and religious worship. The proof of this affirmation is found in many publications including our review, Una Voce Korre­spondenz.

The question is to know if and how one can combat this attack upon the spiritual goods. No one will contest that one way (if not the only way) of healing the evils which we are suffering from resides in the raising of priestly vocations and the formation of good priests. Oftentimes young theologians ask us which diocesan seminary may be recommended, i.e., in which the deadly spirit of adaptation to the world has not yet entered, where true devotion is taught and given priority of place, where the adoration of Jesus Christ in the Blessed Sacrament of the Altar is the center of the priestly life, where Communion kneeling down and the wearing of the cassock are natural. (I say this in order to speak also of the exterior signs, since they are always the indication of an interior disposition.) The answer is ‘There is none.”

VI

Thus it is sufficiently, clearly and undoubtedly estab­lished that there is a situation of grave inconvenience. In order to avert this truly dangerous situation, some candi­dates to the priesthood are correctly trained outside of official seminaries, who, if the law were strictly followed, would almost certainly never be ordained, i.e., would not be able to become priests. Here is certainly such a situation of necessity, from which any penalty is excluded, Only the consecration of a bishop who would ordain these priests can avert the above-mentioned danger. Otherwise not only the studies and the priestly formation of these candidates for the holy priesthood would be lost, but also the faithful who depend upon them would not benefit by these spiritual goods which they would be able to receive through them. Thus the faithful also find themselves in a situation of danger. Of course it would be exaggerating to say that the spiritual goods neces­sary for the salvation of souls are not administered in any official post-conciliar church; but the disastrous present situation consists in Catholics often having to wonder whether the catechesis and religious services are still truly Catholic or not. Even moderate and objective observers of the present situation of the Church acknowledge that at least in some cases the true intention of the priest, absolutely indispensable for the validity of the sacraments, is doubtful or even clearly not there.

VII

First restriction of the principle applied above: In Canon 2205, n. 2., of the 1917 Code, the threat of sanction in such situations of emergency was lifted only when it was a law purely of ecclesiastical right and not of divine right. This restriction is no longer found in the new Code, Now since those who would like to apply this sanction would most certainly use the new Code, such a restriction would not apply, even if the one performing these consecrations would feel bound by it.

VIII

Another restriction: Only situations of necessity of an accidental nature may free from the sanction, This means that the inconveniences which are naturally linked with the fulfillment of a certain law must be accepted and do not author­ize one to break the law. However, this restriction does not apply in our case since it is precisely accidental, unusual and highly against the nature of things that respect for the law in our case—that is, to abstain from the episcopal consecration without papal mandate—leads to the situation of peril. The fact that the salvation of souls is endangered by abstaining from such episcopal consecration does not constitute, at least not according to the nature of things, a situation of peril normally linked to obedience to the law but rather is a characteristic of the present abnormal situation.

IX

Another restriction: An action incurring a punishment, but performed in order to avert a danger, is not exempted from sanction if it is intrinsically evil or brings prejudice to souls (Canon 1324, n. 1.5). In the former Code, the limits of the dispensation from sanctions were still more restricted (Canon 2205, n, 2): Any action leading to the contempt of Faith or of the hierarchy of the Church was also condemned.

The question whether or not an episcopal consecration without papal mandate is an act intrinsically evil or leading to the prejudice of souls, without any doubt, goes beyond the framework of law of the Church, or at least cannot be decided by purely juridical considerations. But precisely here judg­ments differ: Some say that it would cause an immense damage for souls because of the danger of schism; others speak of an action absolutely required for the salvation of souls.

X

However, we need not answer this question since Canon 1324, n. 3, CIC 1983, simply says that in situations described in n. 1 there is no sanction for the person who does not follow the law. This means that even if one would claim that an episcopal consecration without papal mandate would in all cases be an act by itself worthy of an automatic sanction, and bringing prejudice to souls, it would still remain free from an automatic sanction (latac sententiae) because of the emergency situation described above. Now exactly such a sanction is threatened in the case of a non-authorized episco­pal consecration by Canon 1382, CIC 1933! It follows, on the basis of a situation of evident peril (Canon 1323 n. 4, Canon 1324, n. 1.5 and n. 3), that the excommunication threatened by Canon 1332 against the unauthorized consecrator would not apply.

XI

Even if one were to call in question, or actually deny altogether, the existence of a situation of emergency, as we have described it, the following would still apply:

No one will deny that a bishop who, in the aforemen­tioned situation, consecrates another one, would be at least subjectively of the opinion that he is in a situation of neces­sity such as we have described above. Thus one cannot speak of a premeditated violation of the law: for one who goes against the law but believing even wrongly that his action is legitimate, does not act in a premeditated way. The new Code is even clearer:

a)    The person who thought, without fault on his part, that a circumstance foreseen in Canon 1323, n. 4,5,7 applied when he was breaking the law or an administrative order does not incur any punishment.

b)   The violator of the law is not exempt from all penalty but the penalty laid down in the law or in the administrative order must be mitigated, or a penance must be substituted, if the offence was accom­plished by someone believing through an error, even if culpable, that he was in a circumstance foreseen in Canon 1323, n. 4 and 5 (Canon 1324, n. 18).

Moreover, Canon 1324, n. 3, says, ‘In the circumstances explained in n. 1, the violator does not incur any latae sententiae penalty [automatic penalty].” Thus those who would suppose that the emergency exists only in the fantasy and the imagination of the bishop concerned could hardly argue that this supposedly erroneous conception would be punishable. 

Even if someone were to put it to him that he was guilty for having arrived at such a mistaken notion of the existence of an emergency (not, in fact, existing), still:

1) The automatic excommunication could not follow as mentioned in Canon 1382 (it could not he automatic).

2) In any case, an eventual penalty which a judge might apply would have to be more clement than that foreseen in the law, so that here too an excommunication would be out of the question.

XII

A. Due to the existence of a real emergency, a bishop who would consecrate another one without a papal mandate would not fall under the sanction foreseen for illegal consecration (Canon 1323, n. 4).

B. Even if the emergency did not objectively exist, the violator would remain exempt from any sanction since he would have subjectively and in a non-culpable way esti­mated that there was a real emergency (Canon 1324, n. 1.5).

C. One must also say that even if there were an erroneous and punishable supposition of an emergency, still there would be no automatic sanction, much less an excommuni­cation (Canon 1324, n. 1,8,3).

XIII

Therefore, the widely spread opinion that the consecra­tion of one or several bishops without papal mandate would cause an automatic excommunication and would lead to schism is false. Due to the very terms of the law itself, an excommunication for the aforementioned case could not he applied, neither automatically nor by sentence of a judge.

Is Tradition Excommunicated ?, Where is Catholicism Today ? Angelus Press, Kansas City, 1993, pp. 103-110

THE DISPOSITION OF LAW IN CASE OF NECESSITY WITHIN THE CHURCH

Dr. Georg May

State of Necessity

The Code of 1917 spoke of necessity in Canon 2205, §2 and §3; the Code of 1983 deals with it in cc. 1324, §4 and 1324, §1, 5. The law does not say what is meant by this item; it leaves to jurisprudence and doctors the task of giving it a precise meaning. But it is clear from the context that necessity is a state wherein goods necessary for life are put in danger in such a way that to come out of this state the violation of certain laws is inevitable.

Law of Necessity

The Code recognizes necessity as a circumstance which exempts from all penalties in case of violation of the law (NC.1324, §4), provided that the action is not intrinsically bad or harmful to souls; in this latter case necessity would only mitigate the penalty. But no latae sententiae penalty can be incurred by anyone who has acted in this circumstance (NC.1324, §3).

State of Necessity in the Church

In the Church, as in civil society, it is conceivable that there arrive a state of necessity or urgency which cannot be surmounted by the observance of positive law. Such a situ­ation exists in the Church when the endurance, order or activity of the Church are threatened or harmed in a consid­erable manner. This threat can bear principally on ecclesias­tical teaching, the liturgy and discipline.

Law of Necessity in the Church

A state of necessity justifies the law of necessity. The law of necessity in the Church is the sum total of juridical rules which apply in case of a menace to the perpetuity or activity of the Church.

This law of necessity can he resorted to only when one has exhausted all possibilities of re-establishing a normal situation, relying on positive law. The law of necessity uniquely justifies the measures which are necessary for a restoration of functions in the Church. The principle of pro­portionality is to he observed.

The Church, and in the first place its organs, has the right but also the duty of taking all the measures necessary for the removal of dangers. In a situation of necessity the pastors of the Church can take extraordinary measures to protect or re-establish the activity of the Church. If an organ does not carry out its necessary or indispensable functions, the other organs have the duty and the right to use the power they have in the Church so that the life of the Church is guaranteed and its end attained, If the authorities of the Church refuse this, the responsibility of other members of the Chinch increases, but also their juridical competence.

Excerpted Dr May's Notwehr, Widerstand, Notsand (Legitimate Defense, Resistance, Necessity) 1984 - president of the Seminary of Canon Law at the Unibersity of Mainz.

Is Tradition Excommunicated ?
various authors Angelus Press, 1993 pp 111 - 113

"A comparable pressure situation is one in which a person violates the law out of necessity. This means that one breaks the law to preclude the threat of some personal or social evil arising from its observance. Furthermore, while it may be burdensome to observe any law, serious inconvenience in observing positive ecclesiastical law possibly exempts one from a penalty. This is because such a law does not bind in circumstances in which there is no reasonable alternative to its violation."

New Commentary on the Code of Canon Law
 edited by John P. Beal et al Paulist Press, 2000 p 1543

"Circumstances may require that someone violate a law or precept in order to prevent personal harm or damage or harm or damage to others. In such a case, the person is constrained by necessity to act against the law. Similarly, if the observation of a law or precept would lead to serious trouble for the offender or for others, the violation is caused by grave inconvenience and the person iks exempt from the penalty."

The Canon Law - Letter and Spirit,
Canon Law Society of Great Britain and Ireland,
Geoffrey Chapman, 1996 p756

An interview with Count Neri Capponi
Eminent canonist offers controversial views

In Latin it means a kind of a decision taken by the person outside all departments. That would be a decision of the Pope by himself. These names nowadays mean little, except that they signify very often the importance of the document itself.

Well, it's less important than a Bull, for instance. But in canon law the nature of the document doesn't mean much. It's the content that counts. A pope can decide even to proclaim a dogma from a motu proprio. He hasn't ever done so, but he could if he wanted to. The form is less important than the substance.

Yes, it is one of the foundations of canon law. The form may be the indication of the substance sometimes, but in itself it has no importance.

Definitely. It has been so interpreted by the special Commission Ecclesia Dei which was appointed by John Paul II to deal with these problems. And the Commission Ecclesia Dei issued two letters under the signature of Cardinal Mayer, the [former] president of the Commission, which state very clearly that "Ecclesia Dei" establishes a "privilege." A "privilege" must be understood in the sense that it has in canon law, that is to say as a lex privata, a derogation from general law, which means that the special law has the force of law.

Therefore, the motu proprio "Ecclesia Dei," according to the Commission, establishes a privilege in the sense that all those who feel inclined towards the old Roman Rite have a right to be satisfied in their aspirations.

It had been said that the indult of 1984 gave a right to bishops to accord to everybody the so-called Tridentine Mass. Now it is no longer a right given to bishops, it's a right given to the faithful-the right of hearing, following the Tridentine Rite.

The present head of the Ecclesia Dei Commission has tried to back out of it, but he has not managed to do so, because these letters are known to I the general public. They just can't say that Cardinal Mayer was wrong, without implicitly accusing the Pope of having chosen a totally incompetent man to head the Ecclesia Dei Commission. They can't do that.

Yes, regularly, every Sunday. During weekdays, I go to the usual Novus Ordo. I haven't got a Tridentine Mass during weekdays.

Well, I think things have changed. It's a transition stage, so the new lives with the old and it's very difficult to know what's happening sometimes. For instance, if you consider that

ecclesiastical courts-the Rota, the Signatura-are part of the Vatican, then of course when they deal with matrimonial cases...well, as we all know, matrimonial law has undergone a profound change in emphasis, not in substance, with Vatican II. Therefore the attitude of the Church is slightly different.

To speak of departments: Take, for instance, the Congregation for the Clergy. Before Vatican II, the Congregation was pretty impartial when it came to controversies between bishops and priests. It has now come down heavily on the side of bishops. So also the other congregations. Certain emphases have changed, but the mentality of the Roman Curia is more or less the same. It's a bureaucratic body with strong bureaucratic loyalties.

Well, yes. But you see, it's a bureaucratic body which takes its orders from the top man. Where bureaucracy is concerned, there's a spoils system, by which a lot of people are brought into office when a certain party wins. It's the top man who gives the line and the others follow.

The general attitude since Vatican II is, "Bishops are always right, even when they're wrong."

Well, from the point of view of its guidelines, the ideas on which it is founded-it's a good code, a very much better code than 1917, which was too rigid and formal.

Of course, it has suffered from certain fads, which have come out of the one-sided interpretation of the decisions or the documents of Vatican II. And therefore, in certain cases, the penal side is not satisfactory-it's much too lenient. But especially with progressive bishops, when it's a question of penalizing anybody who's a follower of tradition, they forget the code of 1983 and they go by the code of 1917. And sometimes they even invoke penalties which had been abolished by 1983, and which existed in 1917.

I know of a case in the United States in which a bishop did inflict a local interdict [a suspension of all liturgical celebrations of a certain diocese, locality or parish].

Yes, and I told him that unfortunately the penalty had been abolished, that the case would likely go to Rome, and so he retracted.

But from a technical point of view, the new code lacks precision. It lacks clarity. And the law must be precise and clear, otherwise it's open to all kinds of interpretations.

There are many, many cases in which you really don't know what they want. Take for instance, the list of the rights of the faithful. I was told by an authoritative clerical canonist that the rights of the faithful as listed in the new code are theological statements, they are not legal rights at all. Well, where are you then?

But certain parts of the new code are very well done. All norms governing administrative acts are very well thought out. But as a whole it's very uneven.

That's too strong. And it depends what you mean by revolutionary document. The form of the new code is revolutionary. It's detached itself from the form which canon law took from the twelfth century onwards. Canon law was molded in the forms of Roman law, and these have been abandoned. So the mold is different. But it's not revolutionary in substance.

The Church cannot say anything new where doctrine is concerned. Dogma is dogma. But where Church discipline is concerned, there are lots of novelties. You have one famous novelty-I think it's Canon 844 which says that if it is physically or morally impossible to approach a Catholic priest, you can take Communion, Confession and the sacrament of the anointment of the sick from a minister of religion of a church which is not in communion with Rome but has valid ministry.

Yes. The code says if you cannot approach either physically or morally a minister of the Catholic religion which means that if a minister of the Catholic religion is your enemy, or he has a reputation which is not savory you can turn to, say, the Orthodox. And so, of course, even better, to a Lefebvrist priest.

But it's extremely difficult to contradict the obvious meaning of the code. You'd have to change the law, I should say. If the pope said, "No, that's not what I meant," then he'd have to say what he meant.

It's not arisen.

If it's not morally or physically possible to approach a minister of the Catholic religion.

It's a huge and general term, yes.

A sympathizer, but certainly not a follower.

No.

It was rather ambiguous. And may I say, many Curia cardinals questioned it, privately of course.

I'm well aware of the names.

Yes, I'm well aware of the names. May I say that they are also experts in canon law.

No, didn't question the excommunication-because the code is very clear on the subject-but questioned that those consecrations should be interpreted as a schismatic act. Because if the legislator had considered the unauthorized consecration of bishops as a schismatic act, he would not have added that special canon to the penal book of canon law.

I mean, supposing consecration of bishops without authorization is a schismatic act, it would fall under the canon which punishes schism. Why have a special canon which says that excommunication applies to people who consecrate bishops without authorization? It's completely superfluous. It means that it's a special violation of the law envisioned by the code which does not fall under schism. In order to have schism you have to do something more than that.

No. No. No. He must do something more. For instance, had he set up a hierarchy of his own, it would have been a schismatic act. The fact is that Msgr. Lefebvre simply said: I'm creating bishops in order that my priestly association can continue. Therefore they have no jurisdiction. They do not take the place of other bishops. I'm not creating a parallel church. I'm simply giving the full Sacrament of Orders to a certain number of people so that they can ordain others.

Therefore this act was not per se schismatic. Otherwise, it would not have been provided for in the code under a different canon. It would have been all grouped under schism.

Automatic! Because that particular infringement of the law is punished by automatic excommunication. But automatic excommunication punishes a lot of other ecclesiastical crimes which are not schism or heresy.

But I would also argue that the excommunication may not in fact be valid, because the allowances for extenuating circumstances in the new code are such that Archbishop Lefebvre would have got easily away without being excommunicated. He could have argued state of necessity, he could have argued a host of extenuating circumstances.

You can't have your cake and eat it. Rome wanted a lenient code, they filled the code with extenuating circumstances so that practically no penalty applies, but they have to pay the consequences. They can't go back to the 1917 code to punish Lefebvre when he committed his crime after 1983.

No question about it. The extenuating circumstances are-there's a list of them in the code, one more lenient than the other. Their practical effect is that ninety-nine times out of a hundred the penalty does not apply. It's ridiculous, perfectly ridiculous.

It's a joke. But then if you've chosen to establish a joke, you have to go by it. You can't say because it's a joke, I'm going back to what doesn't exist anymore.

Ah, under the old code there were very few extenuating circumstances.

No, he would still not be considered a schismatic. But he would certainly have incurred excommunication. No ambiguity. There's a certain ambiguity today because of the allowance for extenuating circumstances.

Lefebvre was not in schism. Whether the situation has evolved since his death is a different problem.

No schism, no schism in '88.

And according to the old code also, it was not a schismatic action. And that the excommunication itself under the rulings of the new code was certainly ambiguous.

And are considered scandalous today by the Eastern rites.

There's a notice in the Latin Catholic cathedral in Athens: "In this Church no Communion in the hand is given." Because they know perfectly well if they start giving Communion in the hand there'll be hell to pay with all the Orthodox getting up in arms: profanation of the Sacrament.

(...)

Yes, yes.

Well, I would say yes. We have to interpret these things with a spirit of equity, and equity would say yes. I mean, say you've got a Lefebvre priest celebrating a Tridentine Mass down the street, and in your own church you have all sorts of dances, and all sorts of curious circus-like things happening during Mass; it's bad for your soul. For God's sake go to the Lefebvre Mass.

Extracts from The Latin Mass MAY-JUNE, 1993 pp 14-19

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