Hello All!   
                   This Area is READ ONLY.  Do not post to this area.   
                   The following press release is Copyrighted by the   
                             Vatican Information Service.   
                   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~   
                                  VIS-Press releases   
      
   CARDINAL RATZINGER AND REVISION OF CANONICAL PENAL LAW   
      
   VATICAN CITY, 2 DEC 2010 (VIS) - Given below is the text of an article by   
   Bishop Juan Ignacio Arrieta, secretary of the Pontifical Council for   
   Legislative Texts. the article is to be published on 4 December by the Italian   
   magazine "Civilta Cattolica" under the title "Cardinal Ratzinger's Influence on   
   the Revision of the Canonical Penal Law System".   
      
   In the coming weeks, the Pontifical Council for Legislative Texts will   
   distribute to its Members and Consultors the draft of a document containing   
   suggestions for the revision of Book VI of the Code of Canon Law, the basis of   
   the Church's penal law system. For almost two years a commission of experts in   
   penal law has been re-examining the text promulgated in 1983, taking into   
   account the needs that have emerged in subsequent years. The aim is to maintain   
   the general plan and the existing numbering of the canons, while revising some   
   of the decisions taken at the time, which with hindsight can be seen to be   
   insufficient.   
      
   This initiative (which cannot be implemented yet, as the process of   
   consultation has still to be completed, at which point it will be presented to   
   the Supreme Legislator for approval) originated in a specific task entrusted to   
   the President and the Secretary of the Pontifical Council by Pope Benedict XVI   
   in the first Audience that he granted to the new Superiors of the Dicastery on   
   28 September 2007 at Castelgandolfo. In the course of that exchange, and in   
   view of the specific technical difficulties that spontaneously came to light,   
   it became clear that the initiative sprang from a deeply-held conviction of the   
   Pontiff, the fruit of years of personal experience, and from his concern for   
   the integrity and the consistent application of Church discipline. This   
   conviction and this concern - as will be seen below - have guided the steps of   
   the present Pope ever since he took office as Prefect of the Congregation for   
   the Doctrine of the Faith, despite the objective difficulties deriving, among   
   other factors, from the particular legislative situation of the Church at the   
   time, in the wake of the promulgation of the 1983 Code of Canon Law.   
      
   To facilitate a better understanding, it is helpful here to recall certain   
   elements of the newly revised legislative framework of the time.   
      
   The Penal Law System of the 1983 Code The juridical layout of the penal law   
   system of the 1983 Code is substantially different from that of the previous   
   Code of 1917, and it matches the ecclesiological context delineated by the   
   Second Vatican Council. What is important for our purposes is that the   
   principles of subsidiarity and "decentralization" have a key role in shaping   
   penal discipline (cf. 5th Guiding Principle for the Revision of the Code of   
   Canon Law, approved by the Synod of Bishops in 1967); this means that greater   
   weight is to be given to particular law, and especially to the initiative of   
   individual Bishops in their pastoral governance, since they, as the Council   
   teaches (cf. Lumen Gentium, 27), are Vicars of Christ in their respective   
   dioceses. In most cases, in fact, the Code entrusts to the judgement of local   
   Ordinaries and Religious Superiors the task of discerning whether or not to   
   impose penal sanctions and how to do so in particular cases.   
      
   There is a further factor, though, which marks the new canonical penal law even   
   more profoundly: the juridical procedures and safeguarding mechanisms that were   
   established for the application of canonical penalties (cf. 6th and 7th Guiding   
   Principles for the Revision of the Code of Canon Law). Consistently with the   
   listing of the fundamental rights of all the baptized (included in the Code for   
   the first time), there were now systems to protect and safeguard these rights,   
   drawn partly from the Church's canonical tradition and partly from other areas   
   of juridical experience: sometimes this was done in a way that did not fully   
   accord with the reality of the Church throughout the world. Guarantees are   
   essential, especially in the penal law system; but they must be balanced and   
   they must also allow the collective interest to be effectively safeguarded.   
   Subsequent experience has shown that some of the particular means adopted by   
   the Code to guarantee rights were not a sine qua non for safeguarding those   
   rights in accordance with the requirements of justice, and could have been   
   replaced by other safeguards more in harmony with the reality of the Church: in   
   some cases they even presented an objective obstacle - at times an   
   insurmountable one given the scarcity of resources - to the effective   
   application of the penal law system.   
      
   One could say, paradoxical though it may now seem, that of all the books of the   
   Code, Book VI on penal sanctions was the one that "benefited" least from the   
   constant fluidity that characterized the normative framework of the   
   postconciliar period. Other areas of canonical discipline at the time could be   
   assessed in the light of practical ecclesial reality by evaluating positively   
   or negatively the results of various norms ad 'experimentum' when it came to   
   drawing up the definitive norms of the Code. The new penal law system, however,   
   being "completely new" in relation to what had gone before, or almost so,   
   lacked this "opportunity" for experimental evaluation, and so it was   
   established practically 'ex nihilo' in 1983. The number of delicts listed had   
   been drastically reduced to include only particularly grave forms of conduct,   
   and the imposition of sanctions was dependent upon the criteria of evaluation -   
   inevitably diverse - of each individual Ordinary.   
      
   It should be added that in this area of canonical discipline, a widespread   
   anti-juridical bias has exercised, and continues to exercise, a degree of   
   influence, giving rise, among other things, to the supposed difficulty of   
   harmonizing the demands of pastoral charity with those of justice and good   
   governance. Even the wording of some canons in the Code, where tolerance is   
   invoked, could be misinterpreted as seeking to dissuade the Ordinary from   
   applying penal sanctions where the demands of justice require them.   
      
   This broad outline, naturally in need of further elaboration which cannot be   
   provided in the space of a few lines, spells out in general terms some of the   
   key elements of the penal law system contained in the present Code. In its   
   turn, the Code must be situated within the general context of other important   
   changes to discipline and governance which the Second Vatican Council promoted,   
   but which came to be defined only with the promulgation of the revised Code.   
      
   The Request from the Congregation for the Doctrine of the Faith (February 1988)   
   Within this legislative framework that I have attempted to outline, a   
   contrasting element emerged in the shape of a letter dated 19 February 1988   
   from the Prefect of the then Sacred Congregation for the Doctrine of the Faith,   
   Cardinal Joseph Ratzinger, to the President of the then Pontifical Commission   
   for the Authentic Interpretation of the Code of Canon Law. It is an important   
   and unique document that draws attention to the negative consequences produced   
   in the Church by some of the options contained within the penal law system   
   established barely five years earlier. This document has come to light in the   
   context of the work being carried out by the Pontifical Council for Legislative   
   Texts on the revision of Book VI.   
      
   The reason for writing the letter is clearly explained. The Sacred Congregation   
   for the Doctrine of the Faith was competent at the time for examining petitions   
   for dispensation from the priestly obligations assumed at ordination. Such   
   dispensations were granted as a maternal gesture of grace on the part of the   
   Church after, on the one hand, examining attentively the full circumstances of   
   the particular case and, on the other hand, taking into account the objective   
   gravity of the obligations undertaken before God and the Church at the moment   
   of priestly ordination. Yet the circumstances motivating some of the requests   
   for dispensation were anything but deserving of a gesture of grace. The text of   
   the letter sets out the problem eloquently:   
      
   "Your Eminence, this Dicastery, in the course of examining petitions for   
   dispensation from priestly obligations, has to deal with cases of priests who,   
   in the exercise of their ministry, have been guilty of grave and scandalous   
   conduct, for which the Code of Canon Law, after due process, provides for the   
   imposition of specific penalties, not excluding reduction to the lay state.   
      
   "These provisions, in the judgement of this Dicastery, ought in some cases, for   
   the good of the faithful, to take precedence over the request for dispensation   
   from priestly obligations, which, by its nature, involves a "grace" in favour   
   of the petitioner. Yet in view of the complexity of the penal process required   
   by the Code in these circumstances, some Ordinaries are likely to experience   
   considerable difficulty in implementing such a penal process.   
      
   "I would be grateful to Your Eminence, therefore, if you were to communicate   
   your valued opinion regarding the possibility of making provision, in specific   
   cases, for a more rapid and simplified penal process".   
      
   The letter expresses, first and foremost, the natural repugnance of the system   
   of justice towards bestowing as an "act of grace" (dispensation from priestly   
   obligations) something which should instead be imposed as a punishment   
   (dismissal 'ex poena' from the clerical state). As a means of avoiding the   
   "technical complications" of the process established by the Code for punishing   
   delicts, recourse was sometimes made to a "voluntary" request on the part of   
   the offender to leave the priesthood. In this way the same "practical" result,   
   so to speak, could be achieved, namely the expulsion of the subject from the   
   priesthood - if this was the penal sanction called for - while at the same time   
   circumventing a "burdensome" juridical process. It was a "pastoral" way of   
   proceeding, as we tended to say in such cases, at the margins of what the law   
   prescribed. Nevertheless, this approach also sidestepped justice and - as   
   Cardinal Ratzinger explained - it unjustly omitted from consideration "the good   
   of the faithful". This was the central motive for the request, and it was the   
   reason for asserting the need for precedence in these cases to be given to the   
   imposition of just penal sanctions through a more rapid and simplified process   
   than the one provided in the Code of Canon Law.   
      
   It should be noted that, while the Code recognized the existence of a specific   
   jurisdiction on the part of the Congregation for the Doctrine of the Faith in   
   penal matters (can. 1362 õ1, 1^o CIC) - one not limited to cases of evidently   
   doctrinal character, such as crimes of heresy, and including 'delicta graviora'   
   concerning the sacrament of Penance, such as the crime of solicitation - it was   
   not at all evident in the normative context of that time which other specific   
   crimes would fall under the penal competence of that Dicastery. Canon 6 of the   
   Code, moreover, had expressly abrogated all other previously existing penal   
   laws: "When this Code comes into force, the following are abrogated: . all   
   penal laws enacted by the Apostolic See, whether universal or particular,   
   unless they are resumed in this Code itself". Moreover, the norms of the   
   Apostolic Constitution 'Regimini Ecclesiae Universae' of 1967, which   
   established the competence of the Dicasteries of the Roman Curia, merely   
   entrusted the Congregation with the task of "safeguarding doctrine regarding   
   faith and morals in the whole Catholic world" (art. 29).   
      
   "The letter of the Prefect of the Congregation presupposes, therefore, that   
   juridical responsibility in penal matters lies with Ordinaries or Religious   
   Superiors, as is indicated by the letter of the Code.   
      
   The Response of the Pontifical Commission for Interpretation (March 1988) After   
   an interval of three weeks, the reply came from the then Pontifical Commission   
   in a letter dated 10 March 1988. The swiftness and the content of the response   
   can be understood if one takes account of the particular legislative situation   
   at the time: since the vast work of compiling the Code had only just been   
   completed, having occupied the Commission for decades, the task of adjusting   
   other norms of universal and particular law, as well as those proper to other   
   institutions of Church governance, to bring them into harmony with the new   
   discipline of the Code, was still in progress. The response was certainly   
   sympathetic to the motivation of the request and the appropriateness of the   
   criterion of giving precedence to penal sanctions over the concession of   
   graces; inevitably, though, it also confirmed the prior necessity of duly   
      
   --- MPost/386 v1.21   
    * Origin: Sursum Corda! BBS =Meridian, MS= bbs.sursum-corda.com (1:396/45)