JURISDICTION
Rama Coomaraswamy
A person
who receives valid "orders" is imprinted with an "invincible
character" that cannot be removed from him. As a result of this he
receives the power to offer to God the Holy Sacrifice of the Mass and to
dispense the Sacraments and all the means of sanctification that are found in
the Church. So wonderful is this "character" and so great are the
"powers" that go with it that the Catechism of the Council of
Nevertheless,
under ordinary circumstances, priests are not free to use these powers without
permission of a bishop who "incardinates" them into his diocese (his
area of governance), provides them with their "office" (or function)
and gives them "jurisdiction" or the right to ply their craft.
Ultimately all jurisdiction derives from Christ and is
delegated to us through the pope who is, as the theologians say, "one
hierarchical person with our Lord." The Pope, by appointing bishops,
provides them with their powers of jurisdiction which in turn are dispensed to
priests under their governance.
It is clear
that the priest-presidents of the post-Conciliar Church have a certain
jurisdiction. They may not have the Catholic faith, but they are in union with
their "bishops" who are in turn in union with John Paul II. Such a
statement may seem offensive, but in so far as they accept Vatican II and the
new "mass," the statement is just and is not meant to be polemical.
Traditional priests - those who say the Tridentine Mass and reject the changes
in doctrine and the sacraments introduced by Vatican II and what followed
thereafter are clearly in disobedience and as such have lost their jurisdiction
- at least that jurisdiction which derivess from the present
Considerable
confusion has been spread among traditional Catholics by individuals contending
that they should not avail them selves of the services of traditional priests
because said priests lack proper jurisdiction. The net result is that some
formerly traditional Catholics are staying away from the Sacraments, and
inducing others to act likewise. Those responsible for propagating such views
are invariably weak in their knowledge of the Faith, and even weaker in their
knowledge of Canon Law. It is my intention to examine this issue in the light
of common sense. I shall try to do this without resorting to quotations from
canon law as I do not consider myself either capable or authorized to provide
definitive interpretations of said laws.
First of
all, just what is jurisdiction? A priest and/or a bishop, when ordained/consecrated,
is given both the power to confect the sacraments and
the office that goes with this power. The office [1],
or more literally, the authority to use this power in the name of the Church,
comes under the heading of jurisdiction. In essence Jurisdiction is the
AUTHORITY to teach, govern and sanctify in the name of the Church. (The Church
is the Body of Christ, and hence manifests His presence - teaching, governing
and sanctifying - in this world.) Whence comes this
authority?
Scripture
informs us that "all authority comes from God." It is in turn
delegated to appropriate individuals who - unless they be
tyrants - wield their authority in God's name or on behalf of God. This is true
in the family where the Father wields authority over his wife and children [2]; in the army where the general wields authority of
lesser officers and ordinary soldiers. It is also true with the Catholic
Church.
The
Authority to teach, govern, and sanctify within the Church derives from God and
no one else. However, as in other situations such as the army and the family,
it is delegated in a hierarchical manner. It is invested in the Pope (or some
might say, in the "papacy"), and is in turn delegated by him to the
"bishops in union with him." The bishops in turn are able to provide the
priests they ordain with an office which is to say that they in turn provide
the priests they govern with jurisdiction. Under ordinary circumstances no
layman has the right to teach, govern, or sanctify in the name of the Church.
This does not mean that a layman cannot state what the teaching of the Church
is on a certain subject. Nor does it mean that he does not have the
responsibility of teaching, governing and sanctifying himself and his family.
It simply means that he is not a member of the teaching hierarchy of the
Church. As such - and this is important - no layman should be telling other
Catholics (outside his own family) to stay away from the Sacraments. His
jurisdiction does not extend beyond his own family - and even within his family
he cannot tell his wife and children to sin. Should he do so, he would be
abusing the authority invested in him as a father, appropriating to himself
God's authority, and as such he should be labeled a tyrant. [3]
Does jurisdiction
exist in the post-Conciliar Church? As traditional Catholics know, the
post-Conciliar Church teaches falsely. To say it has jurisdiction is to state
that it has the authority to teach error in God's name. Such is of course
impossible for it imputes to God an evil intention. (God may allow evil, but
cannot intend it.) Hence traditional Catholics deny that the post-Conciliar
Church has any real jurisdiction. Those who believe otherwise had best obey the
teachings of this Church in toto which includes obeying all the post-Conciliar
"popes," accepting the new "mass" and all the errors
embraced by Vatican II. None of us can have our cake and eat it.
Canon Law
tells us that when a member of the hierarchy teaches heresy with pertinacity,
he losses his jurisdiction. This follows logically from the fact that one
cannot teach error with the authority of God. Like the Father in the family who
commands his wife or children to sin, such a person is abusing authority and
exercising jurisdiction in his own name. [4]
Those who
would persuade us that traditional priests lack
jurisdiction must face the following dilemma: if the post-Conciliar Church
lacks jurisdiction, and if the traditional priests lack jurisdiction, we are
led to the conclusion that the "Gates of Hell" have prevailed. If
there is no jurisdiction left, there is no Church left. To hold this is to deny
the very promise of Christ. This is not an option open to Catholics.
Let us
consider the issue from yet another angle. Supposing a Father, being sick or
having died, is no longer available in a family. Does this mean that there is
no authority in the family? Certainly not. In such a
circumstance, the wife or oldest child "steps in" to replace him. Or
again, let us imagine that in a just war the general dies. Would this require
that all the junior officers lay down their arms and cease to fight? Hardly. Coming back to the Church, let us ask what happens
to jurisdiction when a pope dies. Do bishops stop ordaining? Do priests stop
giving sacraments? Certainly not. Now, those of us who
believe there is no reigning pope have no problem in the lesser hierarchy
carrying on their proper functions. There have been long periods of interregnum
(times when there was no pope reigning) in the past - up to 18 years in one
situation. Did the Church come to an end? Again, one must answer, Certainly not. [5]
Consider
yet another situation - that of the Greek Orthodox Clergy. From the Roman
Catholic point of view, none of the orthodox have jurisdiction. How can they when they do not recognize the authority of Peter. Yet
the Catholic Church has always recognized the validity of their sacraments and
even allows Roman Catholics to receive the Last Rights from them when no
Catholic priest is available. How is this possible when they have no
jurisdiction? The answer is simple. The Church "supplies" them with
jurisdiction.
There have
been many historical situations in which bishops and priests have wielded their
(or rather, God's) authority without formal jurisdiction. Canon law allows for
this in situations where Epikeia is present. What is Epikeia? In simple
terms it is a situation where the rigid application of a law would frustrate
the author of the law's intention. Now the author of the law regarding
jurisdiction is God, and clearly the intention of God is the salvation of
souls. [6] The normal means by which this is
achieved, i.e., the "vehicles of grace," are the teachings of the
Church and the unquestionably valid sacraments. If the letter of the law frustrates
God's intent, then the principle of Epikeia applies. As St. Alphonsus states,
"it is a presumption, at least probable, that the legislator [God] in a
certain set of circumstances did [or, would] not wish to bind [the subject]. Where
Epikeia applies, the Church always supplies the jurisdiction. [7] Canonists would do well to at least read such
texts as The History, Nature and Use of Epikeia in Moral Theology by Father
Lawrence Riley (Catholic Univ. of America, 1948) before declaring -as they
implicitly do - that Epikeia cannot apply to the present circumstances in the
Church.
A final
word on would be canonists that have appropriated to themselves the teaching
function of the Church. This is a dangerous act, and one which they will have
to answer to God for. Consider the fact that Canon Law is a series of Canons
which cannot cover every circumstance. When a case comes up requiring
adjudication, as in civil law, two lawyers are assigned; one as prosecutor and
the other as defender. Both have access to the same laws or canons. Both argue
before a judge and/or jury as to what would be the appropriate application of
the law to the given circumstance. Both will seek out precedents where
available. It is then for the judge or the jury to decide how the law is best
applied. Now in the present circumstance in the Church we have the canon law
and innumerable partially trained canonists. There is no higher authority
(i.e., pope) who can decide the issues with certainty.
[8] These half-baked canonists in determining how we should behave on the
basis of their interpretation of Canon law, are declaring
themselves both lawyer, jury and judge. They are presuming to teach, to govern
and to sanctify. But none of them have been invested with the triple crown. To them I say, it is all right for them to
follow their own conscience (the application of God's law to specific
circumstances), but totally inappropriate for them to try and form the
consciences of their fellow Catholics. [9] Fools walk where angels
fear to tread.
Another
issue which comes up are the limits of jurisdiction
which traditional priests have. The answer is again quite simple. They have
that amount of jurisdiction which allows them to function for the salvation of
souls in the present circumstances. Claims on the part of any to
"universal jurisdiction" seem excessive and are beyond what is
required by circumstance. And so it is that a priest can hear confession for
example, without any universal jurisdiction. The claim to universal jurisdiction
can only lead to futile arguments as no one can force another to accept the
limits on his functioning and jurisdiction in the present circumstances. This
of course does not mean that an individual priest cannot attach himself to a
given bishop and in a sense therefore derive his jurisdiction from said bishop.
But in general lay people should not involve themselves in these technical
issues. They should rather avail themselves of the sacraments and thank God for
their availability. Sufficient unto the day is the evil thereof.
Nothing
said herein should be taken as suggesting that Canon Law is not important, or
that we can ignore it under the present circumstances. Clearly we must try, as
much as is reasonable, to fulfill the requirements of Canon Law. The laws
instituted by the Church have their purpose and our submitting to them submits
our will to
Let us then
thank God that he has provided us with traditional priests. Regardless of their
personal foibles - and they have many - they provide us with true doctrine and
unquestionably valid sacraments. To refuse their services is equivalent to
refusing to allow an otherwise fully qualified physician to see a dreadfully ill
child because he is not licensed in the state where one resides.
JURISDICTION
- PART II
WHAT HAPPENS WHEN A CATHOLIC DEPARTS FROM THE FAITH?
A
priest can legitimately disobey his bishop or the pope only if:
i) he is commanded to do something sinful,
ii) if his superior commands without authority.
In the
present circumstances when priests are commanded to accept the teachings of
Vatican II as part of the "supreme magisterium," and to use rites
which are not Catholic, both can be said to apply. There is no problem with the
first, for reason tells us that no one can demand that we accept black as being
white or error as truth. However the second principal also applies, for the
Church cannot allow one who denies the faith to wield authority over the
faithful.
To say that
the second principle applies is to say that the post-Conciliar hierarchy has
defected from the Faith. Again reason tells us that a person who leaves the
Catholic Faith is no longer a Catholic, and if he held a position or authority
within the Mystical Body of Christ, he would, as a result or his defection,
simultaneously loose it. Now one cannot go around accusing people of being
heretics and apostates without clear-cut definitions of what is meant. The
Church provides such within her Canon Law.
A "heretic"
is defined in Canon 1325 as: "Any baptized person who, while retaining the
name of Christian, obstinately denies or doubts any of the truths proposed for
belief by the Divine and Catholic Faith".
For the law
to be clear certain terms must be explained. The First point to be made is that
to be a heretic one need only deny or doubt a single truth of the Divine and
Catholic Faith. Thus for example when Pius XII defined the dogma of the
Assumption of the Blessed Virgin, he stated that "it anyone, which God
forbid, should dare willfully to deny or call into doubt that which we have
defined, let him know that he has fallen away completely from the Divine and
Catholic Faith" (Munificentissimus Deus). In a similar manner Pope Leo
XIII said in his Encyclical Sapaentiae Christianae that for a Catholic "to
refuse to believe in any one of (the dogmatic teachings of the Church) is
equivalent to rejecting all of them."
Next, the
Canon pertains to those TRUTHS PROPOSED FOR BELIEF BY THE DIVINE AND CATHOLIC
FAITH, truths defined as such by the Church, and falling within the realm of
the "Solemn" or the "Ordinary and Universal" Magisterium. There
are many truths which the Church holds "infallibly", but which have
not yet been defined as such - should one doubt or disbelieve in one of these
one could well be a "heretic", but not within the province of this
Canon. The point is important for the post-Conciliar hierarchy has with
almost diabolic cleverness tried to keep to within these bounds. They deny
innumerable infallible truths taught by the Church, Scripture and the Fathers,
and yet claim that they have never denied anything that is "de fide".
Of course Vatican II does deny de fide teachings of the Church, and when this
is pointed out they claim that they have not contradicted anything that is
proclaimed ex cathedra which they falsely limit to pronouncements of the
Extraordinary Magisterium; with regard to the Ordinary Magisterium, they teach
that it can change.
Now, a
person can even be in error about the "defined" teachings of the
Church without being a "heretic" within the definition of this Canon,
for it is not heresy, but OBSTINATE heresy that is under consideration.
OBSTINACY does not imply any particular duration of time, or even any duration
or time at all. According to Bousearen and Ellis "Pertinaciter (obstinacy)
does not imply duration, nor violence; it simply means setting up one's mind
against the known mind of the Church".
Thus a
Catholic (even a priest) who believed or taught an
heretical doctrine would not be considered obstinate, and thus a heretic within
the meaning of the law, until the correct doctrine had been pointed out to him
together with the evidence supporting it, and he against such evidence
continued to maintain his erroneous belief. Now the error he held to in
ignorance is still an error, so it is called "material" heresy; only
when "obstinacy" is introduced, does material, heresy becomes
"formal". A Catholic who adhered to a theological error in ignorance would
be a material heretic, but if he knew that he believed something that the
Church taught was an error, or refused to believe something that he knew the
Church taught as truth, he would be a formal heretic. (The Church allows a
period of six months before declaring that a material heretic
who has been corrected, is a formal one.) Note that the error doesn't change,
but only the attitude of the individual towards it. (Catholics who knowingly
accept Protestant or Modernist principles that are against the teaching of the
Church are "formal" heretics.) The distinction between the two lies
in the fact that in the latter situation the individual adds the component of
his "will" to the error, and by "willing" to believe an
error he becomes guilty of heresy. All sin involves the will.
The Church
cannot and never has allowed public obstinate heretics, even if they are
validly ordained clerics, to perform spiritual functions with her approval.
Pope Paul IV in 1559 summarized this principle in his Apostolic Bull CUM
EX APOSTOLATUS OFFICIO, from which I quote the following pertinent paragraphs:
"Should it happen that a bishop, cardinal, legate or even the Roman
Pontiff had deviated from the Catholic Faith or had fallen into some heresy
before his nomination as bishop, cardinal or pope, the following dispositions
are compulsory. The promotion or election, even if the
cardinals have consented to this of common accord, are null and void.
They cannot acquire validity by the fact of the subject's entry into function
or by the fact of consecration or subsequent exercise of authority, nor - in
the case of a pope by the fact of enthronement, of the act of veneration or
subsequent general obedience, whatever may be the duration of this situation
nor can they be considered as partially legitimate."
"Nor can they confer upon such persons promoted to the dignity or bishop,
archbishop, or primate, or called to the dignity of cardinal, or to occupy the
See of Peter, any power to command either in the spiritual or the temporal
domain. On the contrary, ail their words, actions, and dispositions, and their
consequences, have not the least juridical effect and do not confer the
slightest right upon anybody."
"Persons promoted or called in this way lose, by that very fact, and
without further declaration, their dignity, position, honor, title, authority,
function, and power all at the same time."
"To all persons promoted or called in this way - all the members or the
secular clergy, all religious clerics, laymen, and also the cardinals who have
participated in the ejection or a pope who already deviates from the Catholic
Faith, have the right to refuse obedience and veneration towards these people
thus promoted or called, and with impunity. They have the right to avoid them
like warlocks, pagans, publicans and heresiarchs..."
"Whoever does not refuse fidelity and obedience to such persons thus
promoted or called are tearing the Lord's robe and will consequently be
chastised by censures and penalties."
"No one is permitted to reduce the bearing of this document.., nor to act against it. Let whoever presumes to attack this
document know that he calls down the wrath of Almighty God and of the holy
Apostles Peter and Paul."
In the Code
of Canon Law promulgated in 1917 the penalty imposed for obstinate
("formal") heresy is enshrined in Canon 188, which Canon makes
reference to this document as its source. The reference is important because it
is this document which is to be used to clarify any doubt about the meaning of
the Canon. Canon 188 states: "Through tacit resignation, accepted by the
Law itself, all offices become vacant by the fact itself (ipso facto) and
without any declaration if a cleric ... (the canon gives eight possible
occurrences of which the fourth is) ... has publicly defected from the Catholic
Faith."
In order that
the text be fully understood certain terms need explanation:
TACIT means "understood" or "without being stated" i.e., by
the person resigning. Canon 186 had stated that the resignations must be made
either in writing or before two witnesses; so the word tacit is necessary in
order to waive this requirement. ACCEPTED BY THE LAW ITSELF means that the
resignation does not have to be accepted by a superior ( as
do "resignations" not covered by Canon 188). ALL OFFICES: an
"Office" is defined in Canon 145 as any employment which is
legitimately practiced for a spiritual purpose and entailing some participation
at least in ecclesiastical power, whether of orders or jurisdiction. Reference
to the Apostolic Bull CUM EX APOSTOLATUS OFFICIO makes it clear that this
phrase includes the Papal Office. IPSO FACTO means that no warning by a
superior is required for this law to take effect. It is a "latae
sententiae" penalty which "is incurred by the mere fact of the
commission or the offence", WITHOUT ANY DECLARATION. These words are also
found in the Bull Cum Ex Apostolatus Officio and make it clear that each member
of the faithful is free to use his own judgment and is not obliged to rely upon
the assistance of any official member of the hierarchy. Obviously, with the case
of a usurping Pope, such assistance is impossible, for no one and no court
whatever has the power to subject the Pope to a juridical trial (Canon 1556).
PUBLICLY means self-evident.
Adherence
to the erroneous teachings of Vatican II is clearly both public and
self-evident. According to Father Augustine, DEFECTION FROM THE CATHOLIC FAITH,
if public, deprives the individual of all ecclesiastical offices he may hold.
Thus a "formal heretic" automatically loses his
"jurisdiction", all his "offices" and all his spiritual
functions.
Even if one
were to argue that we can only suspect the current pontiffs and the
"bishops in union with them" of heresy, the problem is not solved.
Where a "suspicion of heresy" is raised, Cation 2315 applies.
"A
person who is suspected of heresy, and who after admonition has not reinoved
the cause for suspicion, shall be forbidden to exercise legal ecclesiastical
acts; if he is a cleric, and after repeated admonition has not removed the
cause for suspicion, lie shall be suspended 'a divinis' ('from divine things',
such as administering the sacraments. If a person suspected of heresy is
punished with the penalties here stated, and does not amend within six months
of their imposition, lie shall be considered a heretic and liable to the
penalties of heresy."
The
criminal actions incurring "suspicion of heresy" are detailed in
Canon 2316 and include helping to propagate heresy and taking part in sacred
rites with heretics as well as those who defend or fail to denounce heretics;
Canon 2119 which includes agreeing to educate one's children as non-Catholics,
or procuring their baptism or education outside the Catholic Faith; Canon 2320
which includes sacrilegious abuse of the Holy Sacrament, Canon 2332 which
includes the appealing of a decree of a Roman Pontiff to a ecumenical council;
Canon 2340 which includes stubborn per severance in excommunication for one
year; and Canon 2371 which includes the reception or orders through simony or
ordaining or administering other sacraments through simony.
Now, if one
holds that the post-Conciliar hierarchy is such that one can only suspect them
of heresy - and certainly they have violated Canon 2316 innumerable times and
had more than six months to amend - then they become guilty or heresy under the
rules of Canon 2315 and once again Canon 188 applies.
CAN
A LAYMAN DENOUNCE A CLERIC AS A HERETIC?
The
argument that a laymen cannot state his firm
conviction that a cleric of whatever rank is a heretic can hold no water.
Reason tells us that if a layman cannot make such a judgment, then he cannot be
held responsible for following a heretic and being one himself. Canon Law
however makes the issue quite clear. Canon 1935 state:
"Any
member of the faithful may at all times denounce the offence of another, and
the obligation of denouncing another becomes urgent... when one is obliged to
do so in virtue of the natural law where there is danger to faith or religion
or other imminent public evil."
Clearly
such is the case today when many through ignorance of the Faith give their
allegiance to false shepherds.
ARE
CATHOLICS WHO WENT ALONG WITH THE POST-CONCILIAR CHURCH HERETICS?
It must
also be recognized that many priests "went along" with the
The same is
also true of the laity. Speaking from personal experience, many traditional
Catholics went along with the teachings of Vatican II because they thought
these teachings represented the Magisterium established by Christ. Few actually
read the documents which are lengthy and boring, and quite naturally thought
that statements by the hierarchy which did not coincide with the previous
teachings of the Church were misinterpretations of what had been said. With
time however they became familiar with the documents and realized that error
was being introduced into the bosom of the Church. While they did not know who
was responsible, they continued to be members or the post-Conciliar Church
while separating themselves from such errors. In a similar manner, they
realized that the new Sacraments were not Catholic and were of dubious
validity. This led to their returning to the traditional rites of the Church.
And even today there are people who accept the fact that dubious individuals
sit on the Chair of Peter, that they do not know the "Status" of such
individuals, but who steadfastly refuse to follow them in their false teachings
or to accept the dubious post-Conciliar rites on their authority.
Now to
accuse such individuals of being "formal heretics" is to state that
in acting in this manner they willed to separate themselves from the Mystical
Body or Christ. Such is clearly not the case. Even those who in the present
confusion continue to accept -the "popes" as having some sort or
authority, but who in no way accept their heresies,
cannot be accused of being "formal heretics". The problem is that
despite their intentions, their participation in the rites and their listening
to sermons by the clergy of the post-Conciliar establishment,
slowly corrupts their faith. Their children, having no grounding in the true
faith are inevitably turned into Protestants or worse.
THE
POST-CONCILIAR CHURCH
Far
different is the situation of those who knowingly and with full intent embrace
the Modernist deviation. Modernism is a condemned "heresy" and the
Oath against Modernism falls within the realm of what is "de fide".
If the Conciliar Religion teaches doctrines contrary to Divine and Catholic
Faith, it is a heretical religion. Those who publicly and obstinately embrace
it would clearly become heretics and would loose their office and jurisdiction.
WHAT
ABOUT PRIESTS WHO REFUSE OBEDIENCE TO THE POST-CONCILIAR ESTABLISHMENT?
As a
result, there are many priests in every country who refuse obedience to the
post-Conciliar establishment. Whether or not they do this formally, by
insisting on using the traditional rites of the Church they are in fact
"disobedient," not to Christ and the true Church, but to the new or
Conciliar Church. As such, they clearly cannot have jurisdiction.
Traditional
priests were either ordained prior to 1969 or were ordained by traditional
bishops who were themselves consecrated by traditional rites. Few indeed were
the priests who saw the problems from the start - most remained for a time
"in obedience" and then separated themselves from this Church in
order to retain their Catholic faith.
None of
these priests can claim to have "jurisdiction" through normal
channels, because none of them recognize the governing bishops or are
recognized by said bishops. If and when they provide the faithful with the
Sacraments, they do so or seem to do so "illicitly." (licit essentially means legal.) It is important to
understand that in the present circumstances these priests are in fact provided
with jurisdiction by the Church, and that their function is entirely licit. The
principle involved is enshrined in Canon Law under the title of Epikeia.
SALUS
ANIMARUM SUPREMA LEX
Yet these
priests continue to hear confession and to administer the Sacraments. How can
they do this without violating the laws or the Church? The answer stems from
the principle that the supreme law or the Church is the Salvation or Souls.
Canon laws derive from two sources. The first is the divine law which can never
be violated. The second is the law of. the Church
which has as its immediate aim the safeguarding of the divine law and as its
ultimate aim the salvation of souls. Divine Law was established by Our Lord and
the Apostles, while the remainder of Canon Law was established by the hierarchy
of the Church. Now, the canonical rules which regulate the normal exercise of
sacerdotal functions are always subject and subordinated to the Divine Law
which remains supreme. When the formal observation or the ecclesiastical law
impedes or acts against the fulfilment of the divine law, it is the latter
which must prevail. As St. Thomas Aquinas says, "the power of jurisdiction
is not granted a man for his own benefit, but for the good of the people and
for the glory or God" and further, "since necessity knows no law, in
cases of necessity the ordinance of the Church does not hinder" (Summa,
Suppl. Q. 8, Art. 5 and 6).
We do not
live in normal circumstances. Valid and orthodox priests are caught in a
seeming dilemma. Are they to obey the letter of the law or are they to fulfill
the requirements of charity and justice. Putting it in different terms, are
they to follow the ecclesiastical laws legitimately established by man, but
which in the present circumstances act to frustrate the intent of the Church
and her founder, or are they to follow the higher law of charity and justice
established by God. According to the moral theologians, "in a conflict of
obligations the higher one takes precedence. Duties conflict when two laws apparently
oblige simultaneously and only one can be observed. In such circumstances, only
the more important one actually obliges".
EPIKEIA
The
principal involved is covered by what the Canonists call Epikeia. Epikeia is
explained by St. Thomas Aquinas as a virtue that guides one in those
cases where the law fails because of its universality, in such wise that to
observe it strictly according to its letter manifestly defeats the
"spirit" or very purpose of law to provide for the common good. In
such exceptional cases epikeia directs us to disregard the literal sense of the
law and be guided rather by the obvious intent of the legislator which is the
Church acting in persona Christi (Summa 11-Ila, q. 120, a. 1, and I-IIa, q. 94,
a. 6).
St.
Alphonsus Liguori defines epikeia as "a presumption, at least
probable, that the legislator in a certain set of circumstances did [or, would]
not wish to bind [the subject]". St. Antoninus taught the judicious
use of epikeia was a special virtue given by God to the subject of a law, to
enable him to recognize when he may discount the words of the law, and follow
instead what he deems to be the intention or the legislator. Cajetan
taught that the purpose of the law is signified by its words, and that this
constitutes the intrinsic end of the law; whereas the intention of the lawmaker
is the extrinsic end. The ultimate and extrinsic purpose of every law (that is
to say, the intention or the legislator) is the good of the citizens for whom
it is enacted. Consequently, if a conflict should arise between the extrinsic
end and the intrinsic end (that is, the proximate purpose of the law as
evidenced by its words), the former must prevail.
Father
Riley summarizes the teaching of St. Thomas Aquinas on this virtue (slightly
adapted): "He clearly taught that epikeia is a judgment of a subject about
the case at hand, and not about the law itself... That the public good must in
some way be involved before an individual subject may deviate from the letter
of the law... The use of epikeia in cases where the literal observance of the
law would be evil, is certainly justified. Possibly also in other cases in which the lawmaker would not be
willing to bind the subject where he, the legislator present. It seems
to be the preferable opinion is that
Moral
theologians in the Church are quite clear on this principle. Herbert Jone
states that "a law that falls short of these qualifications [i.e. does not
fulfill the purpose in the mind of the lawmaker] and which does not serve the
common welfare has no binding force." Father Dominic Prummer states that
"with the complete destruction or the law's purpose or adequate motive the
law itself ceases to exist".
Now
obviously the invoking of Epikeia is not without certain dangers. It was never
meant to allow for any individual to use it to interpret the law for his own
convenience. Canon Law was developed and codified to handle all the
circumstances that those responsible foresaw. Clearly the true Church, like a
loving mother, has provided within her laws for almost every conceivable
circumstance. Despite the apocalyptic circumstances of the present day, priests
can legitimately provide the Sacraments and sacramentals of the Church without
placing themselves in violation of her laws. Moreover, she goes further and
states that under such circumstances, she provides the necessary jurisdiction.
Canon 209 (1917) states: "The Church supplies the necessary jurisdiction
when a common error or a positive doubt arises."
Father
Waywod comments on this to the effect that "common error exists in the
erroneous belief of all or nearly all the people of a place, parish, community,
that a man has jurisdiction" and "the fact that a person knows that
he has no Jurisdiction does not interfere with the validity of his acts if by
common error he is believed to have jurisdiction." He continues: the
Church likewise supplies jurisdiction in a positive and probable doubt... For
example, the reasons for and against the existence of jurisdiction in a certain
case create a positive doubt; and if the reasons on both sides are of such
weight so as to create a bona fide doubt, the Church supplies the jurisdiction,
even though actually the person does not possess it."
Can the
principle of Epikeia be applied to the interpretation of the law in present
circumstances?. There are not lacking those who would
deny its use. However, if the present circumstances are not such as to
legitimately invoke it, then I would find it very
difficult to imagine when it could be applied. The most important function of
the Church is, as has been pointed out, the salvation of souls. This is the
supreme law. Now the laws of the Church were created to safeguard just this
purpose. And when these laws act so as to prevent and frustrate this purpose,
epikeia should and does apply.
FOOTNOTES:
[1] The word office comes from the Latin
"opus" meaning work and "facere" meaning to do. Webster's
defines it as "a special duty, trust, charge or position conferred by an
exercise of governmental authority..."
[2] It is pertinent that the term "father"
is shared by the head of a household, the priest, as father over the community,
by the Pope as Father in the Church, and by God who is father over all
creation. Some will object to my drawing a parallel with regard to jurisdiction
in the family. But the family is just as much "divinely constituted"
as is the Church. This is more than adequately made clear in St. Paul's Letter
to the Ephesians, Chapter 5.
[3] An individual must follow the dictates of his own
conscience - conscience being the interpretation of God's law as applied to a
given circumstance. He may guide the consciences of those under his authority
(wife and children), but he cannot force them to violate their own consciences.
[4] A caveat. Before declaring that any given
individual or group of individuals are teaching error, we must be sure that
they do so with full knowledge. A traditional priest may teach something in
error - we are all capable of being mistaken - and such is called a
"material" heresy. Before we condemn the leaders of the
post-Conciliar Church of being heretics, we must -as has been repeatedly done -
show that they teach error with pertinacity. This means that the error has been
pointed out to them repeatedly over a period of at least six months, and that
they have refused to correct their mistakes. This makes them
"formally" heretics. "Pertinacity" means that they have
willingly persisted in their errors. The grounds for condemning the
post-Conciliar hierarchy as heretical are beyond the scope of this paper.
[5] This is not the place to discuss the differences
between those who hold that the Chair of Peter is empty (sede vacantists) and
those who believe the post-Conciliar "popes" are "material"
but not "formal" popes. Suffice it to say that both groups are in
full agreement that whatever these individuals are, they do not wield authority
in the name of God.
[6] It should be clear that the proscriptions of the
Church regarding the rights of the clergy to use their sacramental functions is
part of ecclesiastical law. Some of the would-be canonists have claimed that it
is part of divine law. (This would make it equivalent to proscription against
murder.) This only shows their ignorance of the law as well as of history. The
Apostles and early bishops did not check in with Peter when they decided to
ordain local Bishops and priests - indeed, in the practical order such was
impossible. They knew however that their actions were in accord with what Peter
(and God) would have wished. I would ask the reader to imagine that by some
means or other a true pope were to be established on the Chair of Peter. Would
he condemn those priests and bishops who, despite persecution and tremendous
difficulties, have persisted in their efforts to provide the faithful with
solid doctrine and true sacraments. One may be
permitted to doubt it.
[7] As St.
Thomas Aquinas says, "the power of jurisdiction is not granted a man for
his own benefit, but for the good of the people and for the glory of God"
and further, "since necessity knows no law, in cases of necessity the
ordinance of the Church does not hinder" (Summa, Suppl. Q. 8, Art. 5 and
6)
[8] None of these individuals are trained in Canon Law
- there are in fact traditional priests whho have doctorates (plural) in Canon
law. Why people listen to unqualified individuals -individuals endorsed by no
traditional priest - is beyond me. It is like letting an untrained surgeon
operate on one.
[9] While it is true that we must follow the dictates
of our own conscience, it is also true that our conscience may err. Hence the
importance of having a well formed conscience - i.e., one formed on the basis
of Catholic principles.