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Protection by Virtue of the Law?

Protection by Virtue of the Law?

by Klaus Lüdicke

translated for www.womenpriests.org by Mary Dittrich. From the original German text ‘Schutz durch das Recht?’ inOrientierung 66 (2002) pp. 178 - 181, 15 Sept 2002; republished here with permission of the author and editor.

The excommunication of women for having received priestly ordination

The historically-minded will be recalling the stream of excommunications “hurled” by medieval Popes at Emperors and suchlike if they thought fit, as in the investiture dispute. Observers more in tune with the present will perceive the excommunication pronounced on 5 August 2002 by the Congregation for the Doctrine of the Faith of the seven women who had themselves ordained to the priesthood aboard a ship on the Danube on 29 June 2002 to be a necessary clarification by the Church’s top most guardians of the Faith. Others view it as an “absurd reaction” to an “absurd action” (1). I would like to try and explain and assess what it is really all about on the basis of ecclesiastical penal law, which is unfortunately - or maybe fortunately? - largely unknown. Because usually the law is consciously discerned only when it is infringed, or when it is used as a means of resolving conflicts.

Peculiarities of Ecclesiastical Penal Law

Let us start with some notes on the peculiarities of the Church’s penal law. The fundamental idea is as in the law of the State: if a person commits an act open in penal law to punishment, the competent authority must or can investigate, within a regulated process, the deed, the perpetrator, its illegality, the guilt and other prerequisites for culpability, so that a penalty may be imposed either by administrative decree or by court judgment.

The first peculiarity in ecclesiastical penal law (2) is that one can incur punishment without intervention by an authority. If the legal threat of a so-called automatic penalty (poena latae sententiae) meets with the committing of the relative action, the law declares the perpetrator to have already been penalised. Of course, such an automatic penalty is really only a matter for the perpetrator himself, whereas usually third parties do not know of it. An example: Can 1388 §1 CIC threatens excommunication for direct breach of the seal of confidentiality in the confessional. If only the confessor knows he has betrayed knowledge gained there, only he himself can be challenged by the penalty of adhering to the excommunicatory interdictions under Can 1331 §1: he may conduct no further public worship, neither bestow nor receive any sacrament, and hold no office nor exert any authority. (How that would work out in practice is another matter.) Can 1314, sentence 2 CIC lays down that an automatic penalty exists only where the law or the order for punishment (3)expressly says it does. All other penalties are declared penalties which come into being only through a punitive decree or a verdict (poenae ferendae sententiae). In English these are known as declared penalties. (4)

The second peculiarity lies in the nature of the penalties. Apart from the expiatory penalties (poenae expiatoriae) which are paralleled in civic law by detention and fines (5), there are so-called censures (censurae). Their characteristic is that they (mainly) serve to reform the culprit, so they can be imposed only on a culprit who persists in infringing the law; they must be lifted if a culprit renounces his rebellion (cf Can 1347 CIC). Nearly all automatic penalties are also censures, because only rare expiatory penalties - certain bans on functioning as indicated in Can 1336 §2 - can be threatened as automatic penalties.

A third peculiarity is that in many cases ecclesiastical law envisages no specific penalty, merely a just one. A just penalty (iusta poena) applies, for instance, to presumption of ecclesial office according to Can 1381 CIC. It stands to reason that such a just penalty (iusta poena) cannot be an automatic one, and that the punishment can only ensue via a procedure determining the proper penalty.

The Route to Ecclesiastical Punishment

Against the background of these peculiarities, ecclesiastical punishment may be as follows:

-- The fact that a person has committed a deed calling for an automatic penalty subjects that person to penalty without the intervention of authority. It may well be that the person is ignorant of the deed (6).

-- If those in authority are aware of the deed, they may declare that automatic penalty to have supervened. This entails them pursuing prosecution through the (ecclesiastical) administration or court of law, within which the conditions entailing the incidence of the automatic penalty must be examined, and the persistent resistance of the perpetrator to the rule of law must be established (7). Once such an automatic penalty has been pronounced there are further punitive consequences because, for instance, excommunication of third parties can and must be taken into consideration (8).

-- On the basis of a criminal procedure as described, sentence may be pronounced, either as specified in penal law (eg. clerical concubinage calls down suspension, Can 1394 §1) or with an unspecific penalty as “iusta poena” (as in Can 1381 §, already cited). Punishment by sentence depends ‘per definition?’ on a criminal procedure, even if a specific penalty threatens. Sentence may take the form of censures (censurae) or expiatory penalties (poenae expiatoriae), the first of these, however, only if the accused persists in breaking the law.

What is the Excommunication all About?

In reaction to seven women having had themselves ordained to the priesthood by an excommunicated bishop - the Congregation for the Doctrine of the Faith does not go into the fact of his own valid ordination (9) -, that body has issued two pronouncements. The first, dated 10 July 2002, is headed “Declaration (Warning)” - “Dichiarazione (Monitum)”. The content insofar as it is relevant here:

“. . . .the above mentioned ‘priestly ordination’ constitutes the simulation of a sacrament and is thus invalid and null, as well as constituting a grave offence to the divine constitution of the Church. Furthermore, because the “ordaining" Bishop belongs to an schismatic community, it is also a serious attack on the unity of the Church . . . ”

“The present Declaration, . . . gives formal warning to the above-mentioned women that they will incur excommunication reserved to the Holy See if, by July 22, 2002, they do not (1) acknowledge the nullity of the "orders" they have received from a schismatic Bishop in contradiction to the definitive doctrine of the Church and (2) state their repentance and ask forgiveness for the scandal caused to the faithful.”

The warning is signed by the Prefect (Cardinal Ratzinger) and the Secretary (Archbishop Bertone) (10).

The second proclamation is headed “Decreto di Scomunica” or “Decree of Excommunication”, and it is prefaced by a “Premessa al Decreto di scomunica” which states in a single sentence that the ordaining bishop had already been excommunicated as a schismatic. The decree runs as follows (a fresh translation, as the version published on the Internet by the Vatican is imprecise):

“With reference to the Monitum of this Congregation dated 10 July - - and since within the legal period up to 22 July 2002 the women - - (the seven names are listed) have shown no signs of a change of mind or of repentance for the very serious offence they have committed, this authority declares in consequence of the above mentioned Monitum, that the women named have brought down on themselves excommunication as reserved to the Holy See with all effects as laid down in Can 1331 CIC. ”

The text which embodies the hope that the delinquents will with the aid of the Holy Spirit find their way back to the unity of the Faith and the community of the Church, is also signed by the Prefect and Secretary of the Congregation.

Understanding the Congregation’s proclamations

The following is not about whether and how the seven women may have become culpable or could yet become so. It is only a matter of appreciating the pronouncement of the Congregation in the light of canonical penal law.

Let us start from a basic right of the faithful expressed in Can 221 §3 CIC, which reads: “Christian believers may rightfully incur canonical penalties only within the boundaries of the law. (11)

Automatic Penalty or Declared Penalty?

The wording of the Monitum and Decree is clear. The first contains the Congregation’s formal warning that the women “incorreranno nella scomunica”, and in the decree we read that this authority “dichiara che le suddette donne sono incorse nella scomunica” (12). The formula “in poenam incurrere” is used in penal canon law exclusively for automatic penalties (13), which corresponds with their definition in Can 1314 CIC. So the Congregation holds that the seven women have, by receiving priestly ordination, brought about a delict menaced by excommunication as automatic penalty.

What delict?

It strikes one that the pronouncements of the Congregation for the Doctrine of the Faith fail to name a crime specifically embodied in a legal regulation. The Monitum starts by stating that the “ordination” was the simulation of a Sacrament. According to Can 1379 CIC (14), simulation of a Sacrament is an offence. But it is an offence only for the bestower, not for the recipient (15). So Can 1379 does not apply.

But the seven women might be accomplices in the bishop’s offence under Can 1329 § 1 CIC. This reads: “Those who under a common plan commit an offence and are not expressly named in law or ordinance, are subject, if penalties are imposed on the chief perpetrator, to the same penalties or to others of the same of lesser import.” Under Can 179 the bishop is subject to a just penalty, a “iusta poena”. This could also apply to the seven women. As explained above, there can be no declared penalty without a trial. By virtue of can 1329 § 1 as linked with Can 1379 no automatic penalty is entailed, so it cannot have been incurred in the present case.

In the Monitum the Congregation adduces as a second circumstance “un grave delitto contro la divina constituzione della Chiesa.” If one takes “delitto” here to be not a legal term, but a general expression of a serious contravention, one can agree. But canon penal law does not furnish a legal crime of “a grave offence against the divine constitution of the Church.”

Thirdly, the Monitum speaks of a “grave offesa contra l’unità della Chiesa”, serious violation of the unity of the Church. Does this mean the crime of schism as under Can 1364 CIC? Schism calls down excommunication as an automatic penalty. Its definition can be found in the “Doctrinal Law Section”, Book III of the CIC, in Can 751. It reads: “Schism is the refusal of submission to the Pope or of communion with the branches of the Church which are subject to him” (16). Schism is defined as the rejection of submission. Persons within the Catholic Church asserting (presumed) rights are not thereby rejecting submission. Since the seven women have repeatedly stated their wish to become by virtue of ordination priests of the Roman Catholic Church (17), and that they have repeatedly approached the Pope to obtain recognition as such (18), there is no question of refusal of communion with the Roman Catholic Church. This presupposition of culpability would have to be elucidated within a legal case.

The decree of excommunication specifies no crime. It refers to the Monitum and quotes a “gravissimo delitto da loro compuito” but it does not say what this consists of. So the two pronouncements fail to show what the excommunication is based on.

The Monitum as an order for punishment

A person in the Church invested with the administrative authority to issue administrative orders (‘praecepta’ as in Can 49 CIC) can use this method to threaten certain (= specific) penalties. That is the content of Can 1319 § 1 CIC. Can one perhaps view the Congregation’s Monitum as such a “praeceptum poenale”?

Firstly the text itself makes no such point. On the contrary, it presents itself rather as the warning called for under Can 1347 § 1 to desist from rebellion against the legal system, the warning without which a censure (such as excommunication) may neither be imposed nor declared.

Still, one should check whether an interpretation as a verdict might be possible. Excommunication would be threatened as an automatic penalty. Culpable behaviour can only relate to something which happened after that sentence was pronounced. That is because in judging a crime only the law extant at the time of the deed (or which works in favour of the perpetrator) can apply. This principle applies to verdicts too: if at the time of the deed there was no prescription, no punishment is justifiable.

So that means that a punishment threatened in the form of a “praeceptum” could be based only on those involved failing to recognise the nullity of the “ordinations” and not demonstrating repentance - a “crime of omission”. But one can hardly interpret the text in such a laboured way, because the decree of excommunications views the omission as a precondition for the imposition of the penalty, not as the matter for which it refers back to the Monitum.

Culpability under Can 1399 CIC?

In canon law the principle “nulla poena sine lege” applies, but only with reservation. As explained above, in principle only a penalty which threatened before the deed can be imposed, otherwise the “law more favourable to the perpetrator” prevails, ie. acquittal. But Can 1399 CIC allows the Church authorities an exception. It runs: Apart from the cases specified in this or other laws, the external infringement of a divine or canon law may be punished with an admittedly just penalty only if the particular severity of the infringement calls for punishment and there is an urgent need to prevent or redress a scandal" (19). If one takes it that the Congregation would have wished to apply this principle, a penal process would surely have been needed so as to establish the “iusta poena” by way of a verdict-based penalty.

Culpability under law proper to the Congregation?

Now that consideration of the CIC’s criminal law has shown that the excommunication of the seven women is not covered by these norms, the question of other ‘leges’(other laws) arises, of law proper to the Congregation. Article 52 of the Apostolic Constitution “Pastor Bonus” (20) bestows on the Congregation for the Doctrine of the Faith inter alia competence to decide on grave delicts in the celebration of the Sacraments, and to declare or impose canonical penalties “ad normam iuris, sive communis sive proprii” (according to the norms of either common or particular law). Whether this clause means only procedural norms within the Congregation’s own law, or also material penal law may be left open. For whenever the norms are to be binding on the faithful as “leges” which must be observed under Can 221 § 3 regarding punishment, the rule in Can 7 CIC applies: “Lex instituitur cum promulgatur” - a law takes effect when it is published. Norms guaranteeing objective rights - and they include all litigious prescriptions in canon law - and also first and foremost those infringing subjective rights, and these include the material penal laws - cannot take effect if they have not been made known to the persons subject to them (21). So if one is to assume that there exists a “ius proprium” (a particular system of law) of the Congregation for the Doctrine of the Faith which would underpin the imposed excommunication, one must conclude that not even the professional canon lawyers know of it. It would be pretty hard to discern in it a “lex” (law) in the sense of Can 221 § 3.

Punishment based on the primacy of jurisdiction

The development of law within the Catholic Church, chiefly the abstract formation in the guise of legislation, is much more recent than the investiture struggle. The possibility of the Pope excommunicating a person in the absence of any legally normed prerequiste has been retained by virtue of the primacy of jurisdiction defined by the First Vatican Council. Until Pope Paul V1’s reform of the Curia in 1967 (22), according to Can 247 § 1 CIC/1917 the Pope was himself Praeses (= President) (23) of the Congregation for the Doctrine of the Faith (at that time still called the Sanctum Officium - Holy Office). That is nowadays no longer so. The Congregation holds only that share of the juridical primacy of the Pope which he bestows on it (24 - read this note!). As both the pronouncements by the Congregation analysed here bear only the signatures of the Prefect and the Secretary, without any approbation by the Pope himself, the question of whether the Congregation is competent to pronounce an excommunication without a legal threat of punishment and without a penal process must remain unanswered.

Klaus Lüdicke, Munster/Westf


1) Matthias Drobinski, in: Suddeutsche Zeitung dd. 6 Aug 2002 P4.

2) From here on, the term “penal laws” without further elaboration relates to ecclesiastical penal law as in Can 1311-1379 CIC/1983.

3) A penal precept (“praeceptum poenale”) rather differs from that found in state law. It is the threat of a penalty imposeable by the admintrative authority for future concretely designated action, thus in the form not of a law, but of an administrative act (cf Can 1319 CIC).

4) In state penal law there exist only verdict-based penalties in this sense. But again, in the codex of the Eastern Catholic Churches (Codex Canonum Ecclesiarum Orientalium - CCEO) there are no automatic penalties.

5) In ecclesiastical penal law these would include residential ban or prescription, withdrawal of office or privilege banishment, and, at worst, dismissal from the clergy, cf Can 1336 § 1 CIC.

6) Generally speaking there are serious obstacles to enforcing automatic penalties, because every mitigating factor as propounded in Can 1324 § 1 CIC tends to ensure non-enforcement (cf Can 1324 § 3 CIC). That applies, for instance, to someone who innocently did not know that a law carries the threat of penalty (cf Can 1324 § 1, 9E), as one presumes must regularly happen in the case of abortion, for lack of ecclesiastical proclamation.

7) For the procedure in administrative cases, cf Cann 1717- 1720 CIC, and for that in court cases, Cann 1717- 1719, 1721-1728 and 1731 CIC.

8) Thus, for instance, an excommunicated person can be refused the Eucharist only if excommunication by virtue of automatic penalty has been pronounced by administrative decree or court judgment, cf 915 CIC.

9) If he himself has been validly ordained, that means that his ordination of persons who can validly be ordained - ie under Can 1024 CIC, baptised men - would be valid. That he himself is excommunicated, (undeniably) does not affect this, not does the question of whether he is a “Roman Catholic” bishop, a point on which the Archbishopric of Munich and Freising is in legal dispute with the Patmos-Verlag (transl: publishers). Cf KNA Inland 27.7.2002).

10) For the author’s own translation from the Italian, I have substituted the official version in English.

11) Christi fidelibus ius est, ne poenis canonicis nisi ad normam legis plectantur.

12) The German internet version of the decree reads: “ - - verhangt dieses Dikasterium ube die genanten Frauen - die - Exkommunikation (Trans: “ - this Disastery pronounces the excommunication of these women"). Since the Italian text is declared to be the original one, and as such printed in the Osservatore Romano, the faulty German translation cannot influence these considerations.

13) Cf Xaverius Achoa, Index verborum ac locutionum codicis iuris Canonici, Rome 1984, p221.

14) “Qui, praeter casus di quibus in Can 1378. Sacramentum se administrare simulat, iusta poena puniatur". Can 1378 is about the acquittal of an accomplice, celebration of the Eucharist by the non-ordained, and the pretence of sacramental absolution.

15) It is quite evident that canon law contains no penal provision of its own for “receiving invalid sacraments". Hitherto there is - was? - no need for it, for who would do such a thing, and for instance be confirmed by a Permanent Deacon? Should such a thing happen it will surely be regarded rather as an aberration than as a threat to ecclesiastical law.

16) Translator: This is an English version of the Münster Commentary on the CIC’s German translation of “Dicitur - - schisma, subiectionis Summo Pontifici aut communionis cum Ecclesiae membris subditis detractatio".

17) Cf the statement by Iris Müller and Ida Raming in June 2002 (www.ikvu.de/frauenordination/raming - mueller - frauenordination.aspl).

18) Cf the letter of Gisela Forster and Christine Mayr-Lumetzberger to Pope John Paul II (undated, but post 10 july 2002). cf www.de/frauenordination/ priesterinnen - ratzinger.aspl).

19) “Praeter casus hac vel aliis legibus statutos, divinae vel canonicae legis externa violatio tunc tantum potest iusta quidem poena puniri, cum specialis violationis gravitas punitionem postulat, et necessitas urget scandala praeveniendi vel reparandi.”

20) 28 June 1988 in: AAS 80(1988)pp 841-934. A German translation appears in the Latin-German issue of the CIC, published inter alia by the German Bishops, Kevelaer (5)2001.

21) Can 1323, 2E CIC states that no penalty attaches to a person who does not know that he has infringed a law or administrative order. Ignorance of unpublished laws is guilt-free.

22) Ap. Const. Regimini Ecclesiae Universaee dated 15.8.1967 in: AAS 59 (1967) pp 885-928.

23) The text reads “praeest”.

24) Maybe the Congregation believes for theological reasons that it does not need such an authorisation. In connection with the reform of the Codex, Cardinal Ratzinger had pleaded for excommunication as automatic penalty for apostasy, heresy and schism, whereas the Commission wanted a verdict based- penalty. Ratzinger had argued that a person committing such an offence would no longer be in the full community of the Church, whether or not the bishop pronounced the penalty. The reply of the Commission was, inter alia, (in my translation, italics in original): “The penalty cannot be automatic. Such penalties may only be imposed for specific delicts consisting of a demarcated content, so that doubt remains that they have been committed, ie. that completion of the criminal matter, for instance in abortion (Can 1350), physical force against the Pope or Bishop (Can 1322) etc. Furthermore, one must distinguish precisely between the objective reality, that somebody stands outside the community of the Church, and the punitive sanction imposed by the Church. Not every baptised person who finds his or herself to be outside the community of the Church is at the same time excommunicated. The penalty of excommunication punishes the crimes of heresy, apostasy or schism, but this crime has to be legally proven, so that not only the objective gravity, but also the accountability is established, which is not always easy. In this complicated material great legal surety is required, which is absent unless the judge or head personage considers the case and all its circumstances and decided whether a crime has been committed and accordingly on the imposition of the penalty. No self-imposition of the penalty (“auto-applicatio poenae"), as is characteristic of automatic penalties, can be demanded when nearly always the existence of the delict is uncertain, even for the perpetrator." (cf Comm. XV1 {1984} pp46-48). If the report on 8 August by KNA on an interview with Archbishop Bertone on Radio Vatican is correct, he said that “the attitude of the women and of the excommunicated bishop - - endangers the structure of the Church as willed by Christ. Thus it merits the severest ecclesiastical penalty. This is imposed when somebody attempts to destroy the inheritance of the Faith and the fundamental order of the Church."

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The Institute is known for issuing academic reports and statements on relevant issues in the Church. These have included scholars' declarations on the need of collegiality in the exercise of church authority, on the ethics of using contraceptives in marriage and the urgency of re-instating the sacramental diaconate of women.

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