Penal Law of the Church PL 3. The challenge of Vatican II: reshaping sanctions in accordance to fundamental rights and religious freedom

1. The milestones of penal law in the Code of Wide discretion in the administration of penalties 1.2 Resort to the secular arm 1.3 Latae sententiae penalties 1.4 Dual jurisdiction over the for internum and externum

1.1 Discretion in the administration of penalties Code 1917 Can 2218 §1 An equitable balance must be kept between the penalty and the offence, having regard to imputability, scandal and the harm caused. Not only the object and gravity of the law must be considered, but also the age, knowledge, education, sex, condition, mental health of the offender. The dignity of the offender and the victim must be taken into account as well as the purpose, the context of the violation. It will be necessary to investigate whether the offender acted under pressure by passion or fear, whether he repented and attempted to limit the harm caused by his action, and other such circumstances.

1.1 Discretion in the administration of penalties Code 1917 Can 2222 §1 Even if a law does not include a sanction in case of transgression, the legitimate superior is entitled to inflict a just penalty, even without previous warning, if this is required by the scandal which has been caused or by the exceptional gravity of the violation. Otherwise, the offender can only be punished if he has violated the law after having been warned that in case of violation he would have been punished with a penalty ‘latae’ or ‘ferendae sententiae’.

1.2 The secular arm Code 1917 Can 2198 Delictum quod unice laedit Ecclesiae legem, natura sua, sola ecclesiastica auctoritas persequitur, requisito interdum, ubi eadem auctoritas necessarium vel opportunum iudicaverit, auxilio brachii saecularis; delictum quod unice laedit legem societatis civilis, iure proprio, salvo praescripto can. 120, punit civilis auctoritas, licet etiam Ecclesia sit in illud competens ratione peccati; delictum quod laedit utriusque societatis legem, ab utraque potestate puniri potest. Only the ecclesiastical authority is entitled to punish an offence, which, because of its nature, violates solely the law of the Church. The ecclesiastical authority can resort to the help of the secular arm, if this is deemed necessary and convenient; (…) by its own right the civil authority is entitled to punish offences violating civil law uniquely, but the Church is competent by reason of the sin; offences against both the civil and the Church laws can be punished by either power.

1.3 Latae sententiae penalties Code 1917 Can 2217 §1 No2 A penalty is called ‘Latae sententiae’ if according to the law or precept the penalty applies because of the fact itself of the commission of the offence; ‘ferendae sententiae’ if it belongs to the judge or the superior to administer it. §2 Penalties are always understood as ‘ferendae sententiae’ unless explicitly defined as ‘latae sententiae’ Can 2223 §4 The declaration of a penalty ‘latae sententiae’ is generally left to the prudence of the superior; however a declaratory sentence is necessary if requested by the offender or when indispensable for the common good.

2.1 Vat II: the rights of the Christ faithful v the right to coerce Because of the very economy of salvation the faithful should learn how to distinguish carefully between those rights and duties which are theirs as members of the Church, and those which they have as members of human society. Let them strive to reconcile the two, remembering that in every temporal affair they must be guided by a Christian conscience, since even in secular business there is no human activity which can be withdrawn from God's dominion. In our own time, however, it is most urgent that this distinction and also this harmony should shine forth more clearly than ever in the lives of the faithful, so that the mission of the Church may correspond more fully to the special conditions of the world today. Lumen Gentium, 21 November 1964, No 36

2.2 Vat II: religious freedom v the right to coerce It is in accordance with their dignity (…) that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth. However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom. Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed. Dignitatis humanae, 7 December 1965, No 2

3 Synod of 1967: guidelines for revision of penal canon law 3.1 Rights and obligations within a legal framework 3.2 Coordination of the internal and external forum 3.3 Pastoral care and equity; faculty to dispense from general laws 3.4 Penal law to be safeguarded, but in the external forum and normally through ferendae sententiae sanctions Synod of Bishops, Principles guiding the revision of the 1917 Code, October 1967, No 1

3.1 Synod of 1967: rights and obligations In renewing the law the juridic character of the new Code, which the social nature of the Church requires, is to be retained. Therefore the Code is to furnish norms so that the members of the Christian faithful in living the Christian life may share in the goods offered by the Church to lead them to eternal salvation. Hence, in view of this end, the Code must define and protect the rights and obligations of each person towards others and towards the ecclesiastical society to the extent that these rights and obligations pertain to divine worship and the salvation of souls. Synod of Bishops, Principles guiding the revision of the 1917 Code, October 1967, No 1

3.2 Synod of 1967: coordination between the external and the internal forum There is to be a coordination between the external forum and the internal forum, which is proper to the Church and has been operative for centuries, so as to preclude any conflict between the two. Synod of Bishops, Principles guiding the revision of the 1917 Code, October 1967, No 2

3.3 Synod of 1967: pastoral care and equity (…) unduly rigid norms are to be set aside and rather recourse is to be taken to exhortations and persuasions where there is no need of a strict observance of the law on account of the public good and general ecclesiastical discipline. Synod of Bishops, Principles guiding the revision of the 1917 Code, October 1967, No 3

3.4 Synod of 1967: penal law to be safeguarded verum suppressionem omnium poenarum ecclesiasticarum, cum ius coactivum, cuiuslibet societatis perfectae proprium, ab Ecclesia abiudicari nequeat, nemo canonistarum admittere videtur Indeed no canon lawyer seems to accept the repeal of all eccelsiastic penalties, based on the assumption that the Church is unable to adjudicate the right to coerce, which belongs to any perfect society. Synod of Bishops, Principles guiding the revision of the 1917 Code, October 1967, No 9

3.4 Synod of 1967: penal law to be safeguarded As an external, visible and independent society, the Church cannot renounce penal law. However, penalties are generally to be ferendae sententiae and are to be inflicted and remitted only in the external forum. Latae sententiae penalties are to be reduced to a few cases and are to be inflicted only for the most serious offenses. Synod of Bishops, Principles guiding the revision of the 1917 Code, October 1967, No 9

Penal Law of the Church PL 3. The challenge of Vatican II: reshaping sanctions in accordance to fundamental rights and religious freedom