Ius & Iustitium is happy to present this guest post by Fr. James Bradley, JCD. Fr. Bradley is an assistant professor of canon law in the Catholic University of America and a priest of the Personal Ordinariate of Our Lady of Walsingham (U.K.)
On 8 December this year, a revised Book VI of the Code of Canon Law will come into effect. Book VI covers the penal law of the Latin Church, and it is the first time that an entire book of the code has been replaced. Despite some other major changes since 1983, the change represents perhaps the most significant change to the universal law since the code itself. In the new law, we find a reassertion of the longstanding principle that the Church is at liberty to create law, to adjudicate the behavior of its members, and even to apply sanctions to them. This claim can appear jarring to modern sensibilities, but it is crucial to what the Church understands herself to be as a true and whole, indeed perfect, society.
In several places in the code, the Church claims an innate right (ius nativum) to act. She does this with respect to teaching, for instance, in canon 747: “The Church … has the duty and innate right [(officium est et ius nativum)], independent of any human power whatsoever, to preach the gospel to all peoples.” And, again, in respect of supporting the Church in canon 1260: “The Church has an innate right [(nativum ius)] to require from the Christian faithful those things which are necessary for the purposes proper to it.” And she does this again with respect to penal sanctions in (the current) canon 1311: “The Church has the innate and proper right to coerce offending members of the Christian faithful with penal sanctions.” And although the text of canon 1311 is altered in the revised Book VI, changing the emphasis, the Church’s claim to this right is neither abrogated nor diminished in any way.
But who is the Church to make this rather audacious claim? The statement of a ius nativum is a most important juridical factor in the entire formulation of the Church’s life, as it reveals a legal foundation that undergirds everything that appears in her law. By this language, the Church declares in written law something that is inherent in her very nature, something not given or bestowed by an external force. In short, she asserts a birthright or ius nativum. How is this so? Of course we must say that the Church makes this claim because she was founded by Christ. This is true, but it is not the whole story. In fact, for a more essentially legal foundation we must say that the Church makes these claims because she is, in the words of the Second Vatican Council, “constituted and organized in the world as a society” (Lumen Gentium 8).
Much literature of the past sixty years or so has quite understandably focussed on the Church not as a society, but as the ‘people of God’ or the ‘mystical body’ of Christ, favoring ecclesiological and theological vocabulary over the juridical. On the face of it, there is nothing wrong with this. Indeed, it is particularly apparent in the teaching of both Pope Pius XII and the Second Vatican Council that these terms have great significance and importance to the Church’s self-understanding. There is therefore much that is positive about this language; it points to the true, ultimate purpose of the Church not as a merely human institution, which perhaps the word ‘society’ might be thought to connote, but as the universal sacrament of salvation (Lumen Gentium 48). Yet this linguistic shift has, in some quarters, set up a false dichotomy between the idea of the Church as a society, and a perfect society at that, and the Church as the people of God, or the mystical body of Christ; as if these concepts cannot coexist. This problem is in fact addressed head on by the reinforced language in the revised penal law, not least in the formulation that, common to all societies, the application of penal sanctions has as its aim the restoration of justice, the repair of scandal, and reform of the offender.
First of all, we should say that, as Lumen Gentium 8 itself shows, a view that rejects the language of a perfect society is at odds with the most recent magisterium, and even with the nature of the Church itself. The language of a ‘perfect society’ has at times been viewed as outdated, or superseded by other more ecclesiological terms, not least because the idea of describing this society as ‘perfect’ in our own day seems far removed from the malfeasance and very much imperfect behavior of some of the Church’s members and, most egregiously, some of her clergy. But the term, of course, refers not to a state of excellence in the Church’s structures or faithful; it refers to the completeness, the wholeness, and indeed the unity, that exists in the Church as a society that is uniquely established by Christ, and one that is perfect; that is (as a ius nativum proposes) independent of any other society or power for her life. Any reassessment of this term might more usefully, then, not relegate it to obscurity, but to a place in which it is conditional upon the foundation of the Church as a supernatural reality. The Church is a perfect society because she is the mystical body of Christ, the people of God, and the universal sacrament of salvation; as fruit of her divine foundation, rather than as something at odds with it.
This affirmation of the Church as a society is indeed a very necessary position in respect of the Church’s laws, and her existence at every level of, and interaction with, the civil society. That the Church has laws and claims for herself competence over the faithful is, as we have seen, predicated upon this idea. This is particularly the case in respect of her penal law, and it is something that is implicitly acknowledged even by the civil power: no civil court of which I am aware is prosecuting cases of sacramental profanation. The civil society thus broadly acknowledges the liberty and competence of the Church to establish and adjudicate her own laws. To quote Lumen Gentium 8 more fully:
This is the one Church of Christ … This Church constituted and organized in the world as a society, subsists in the Catholic Church, which is governed by the successor of Peter and by the bishops in communion with him, although many elements of sanctification and of truth are found outside of its visible structure. These elements, as gifts belonging to the Church of Christ, are forces impelling toward catholic unity.
That the Church is a perfect society, then, and that we recognize it as such, means that we can identify more readily the faults of her faithful, institutions, and structures. It means that we can see and name sinful, immoral, and delinquent behavior amongst her members, even those who hold high office, with greater honesty, and without impugning in any way the Church as a divine institution. To speak of the Church in such terms acknowledges the possibility of failure, not on the part of Christ — the author and perfecter of our faith — but on those earthen vessels who, though unworthy, are entrusted with some share in his life and some part in his authority.
Fr. James Bradley, JCD