Every now and then, one hears or reads about abusive behavior on the part of ecclesiastics—from sexual misbehavior of sacred ministers or mishandling of parish funds to disobedience to lawful authority. Less frequently, one also hears of less-than-Christian actuations of the lay members of the Church—from intrigues in the parish pastoral council to outright mudslinging among factions in lay associations or movements. In all of these instances, one gets the impression that the Church authorities seem to be helpless to force people to toe the line.Is there such a thing as Penal Law in the Church?
Ecclesiastical Penal Law and the Mystery of the Church
In a perfect world, the ideal of the Church would imply that the faithful submit to ecclesiastical discipline, in order to attain freely and in an orderly manner the end of the Mystical Body. In that case, there would seem to be no need for a Penal Law in the Church. However, the reality of sin and man’s fallen nature makes it necessary to have some means of coercion, without which it would not be possible to maintain order within the ecclesial society. Hence, there exists a Penal Law, as part of Canon Law, whereby certain actions are typified as criminal and proportionate sanctions are likewise established.
The need and justification of punitive sanction are contained by direct implication in the correct concept of law itself. A system of law lacking such sanction would prove ineffective in practice, defeating its own primary purpose of self-enforcement. Those in charge of the common good must be armed with coercive as well as legislative and judiciary powers, for they govern and direct free, rational agents, whose complex nature responds not only to the dictate of reason but also to threat and punishment.
Justification for the ius poenandi in the Church
Several theories have been proposed to justify the punitive right (ius poenandi) of Church authority:
1) Defense of the Juridic Order. The ultimate justification of penalty is the same as that of Law: The need to maintain the juridic order, without which society (civil or ecclesial) would be impossible. Traditionally, punishment had been justified by three purposes:
a) Retribution of the damaged juridic order. Punishment aims to redress the disorder introduced by the offense, by depriving the offender of a good of a proportionate degree to that which was suffered by the offended, or—in the ultimate analysis—by the society. Hence, the punishment must be commensurate to the gravity of the offense. In any case, retribution cannot be confused with revenge.
b) Reformation of the offender. Since society is for man (not vise-versa), when society inflicts punishment, it must redound to the good of individual man. Thus, punishment must contribute to the correction of the offender, giving him a chance to change for the better. The first two ends of punishment are succinctly summarized by the Catechism of the Catholic Church in the following terms: Punishment has the primary aim of redressing the disorders introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people’s safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party (n.2266).
c) Deterrence for future offenses. Punishment must deter crime, and it does so to the extent that the severity of the punishment produces fear, which hinders one from committing a crime. Thus, a successful deterrent must be a psychologically effective threat.
2) Perfect-Society Ecclesiology. A perfect society needs a coercive power in order to protect its juridic order against those who may want to disturb or destroy it from within. Since the Church is a perfect society, it needs such power.
3) Magisterium of John Paul II. In an address to the Roman Rota (17.II.1979), John Paul II gave the ultimate justification for the ius poenandi in the Church: “In the image of a Church which safeguards the rights of every faithful, and which—even more—fosters and protects the common good as an indispensable condition for the integral development of the human and Christian person, penal law is positively included. The penalty inflicted by the ecclesiastical authority (which in reality only acknowledges the situation in which the subject has placed himself) should be recognized as an instrument of communion, i.e., as a means to recover those deficiencies of the individual good and of the common good arising from whatever anti-ecclesial, delictive and scandalous behavior of some members of the people of God.”
Legal Declaration of the Existence of a Ius poenandi in the Church
The Code of Canon Law limits itself to declaring firmly the existence of the ius poenandi in the Church, leaving the question of its justification to Canonical doctrine. In sum, we can quote the following legal texts:
1) The Preface of the Codex states: As an external, visible and independent society, the Church cannot renounce penal law.
2) Can.1311 further declares: The Church has an innate and proper right to coerce offending members of the Christian faithful by means of penal sanctions.
From the above-mentioned legal texts, we can conclude the following characteristics of the ius poenandi in the Church:
1) Foundation. The foundation of the ius poenandi in the Church is the damage to the ecclesial public order inflicted by the delinquent action.
2) Finality. The primary end of penalty is the restoration of the perturbed order (common good) and the correction of the offender (particular good).
3) Measure. The measure of the ius poenandi is twofold:
(i) The salus animarum, which is the ultimate pretension of the whole canonical order (c.1752); and more specifically the salus animae of the offender himself. This means that the degree and kind of punishment must look at the good of souls in general and even the good of the offender in particular.
(ii) The social harm caused by the delictive act, or equivalently the restoration of the public order which is the immanent common good of the ecclesial society.
Principles of Canonical Penal Law
The Preface of the Codex affirms: 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 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. From this, we can deduce the following principles regarding the Penal Law of the Church:
1) Principle of External Forum: The potestas poenandi arises in the Church in the external forum, distinguishing it from that other exercise of the power of the keys in the internal forum proper of the sacrament of Penance. This is a clear departure from the CIC 17, where the confessor played a significant penal role in certain theoretically extraordinary situations (cf. CIC 17, cc.2252-2254; 2290), which practically speaking became increasingly ordinary.
2) Principle of Legality: Simply stated, in general penalties should be imposed only after due process, implying previous typification of the delictive behavior by law. Even in the case of penalties latae sententiae (i.e., automatic penalties), such can only be inflicted only in few cases and only for the most serious offenses (again implying previous typification of such cases by law). Nulla poena sine lege—“No penalty without law”—is a modern principle, based on human dignity.
3) Principle of Discretionality: As a counterpoint to the previous principle, c.1399 maintains the principle enshrined in the former c.2222, which stated that the Superior could inflict a just penalty even in the case of violation of a law which does not carry a penal sanction, if such violation implies special seriousness or scandal. This was an old principle, based on the idea of power of legitimate authority.
4) Principle of Subsidiarity: While certain universal norms are deemed necessary for a proper application of penal law throughout the Latin Church, the principle of subsidiarity calls for increased legislative competence for other Church authorities below the level of the Holy See. Thus, aside from the obvious possibility that the universal legislator always has to increase the number of offenses typified by law, Particular Law can also establish other types of crimes which may be necessary or advisable in a given place (c.1315,§3).
5) Preference for Judicial Procedure. Another noteworthy change in the revised law is its theoretical preference for judicial rather than administrative procedure in the infliction of penalties. Nevertheless, given the contemporary demands on church tribunals, because of the sharp increase in matrimonial cases, in practice penalties may continue to be imposed administratively except where judicial procedure is strictly required.
6) Reduction of Latae Sententiae Penalties. Closely related to the preference for the judicial procedure (over the administrative one) is the concern to ensure the personal involvement of church authorities in dealing with potential offenses. Thus, there is a noteworthy emphasis on ferendae sententiae penalties as a general rule. Accordingly, in contrast to the large number of latae sententiae penalties in the CIC 17, the new Codex contains only 17 of them (four interdicts, six suspensions, and seven excommunications), only five of which are reserved to the Holy See. These are incurred only for the most serious offenses.
7) Penalties as an Ultima Ratio. Finally, a renewed recognition of the salvific character of Church law and of the dignity of the human person leads to a stress on penalties as a last resort, after all other legal-pastoral measures have proven fruitless.
Answering the original question, then, yes there is Penal Law in the Church of Christ. Perhaps it has not been exercised sufficiently—especially with the so-called pastoral approach of the post-Vatican II era. Perhaps the spate of undesirable—for not to say scandalous—behavior outlined in the original question shows that such Penal Law needs to be applied more.