Ratzinger's influence in revising the criminal code of Church law reviewed

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 §1, 1° 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 observing the norms of the newly promulgated Code on the part of those who had the authority and the juridical power to do so.+The text that the then President of the Pontifical Commission sent to the Cardinal Prefect of the Congregation for the Doctrine of the Faith also made reference to the current situation:

"I can well understand Your Eminence's concern at the fact that the Ordinaries involved did not first exercise their judicial power in order to punish such crimes sufficiently, even to protect the common good of the faithful. Nevertheless the problem seems to lie not with juridical procedure, but with the responsible exercise of the task of governance.

"In the current Code, the offences that can lead to loss of the clerical state have been clearly indicated: they are listed in canons 1364 §1, 1367, 1370, 1387, 1394 and 1395. At the same time the procedure has been greatly simplified in comparison with the previous norms of the 1917 Code: it has been speeded up and streamlined, partly with a view to encouraging the Ordinaries to exercise their authority through the necessary judgement of the offenders "ad normam iuris" and the imposition of the sanctions provided.

"To seek to simplify the judicial procedure further so as to impose or declare sanctions as grave as dismissal from the clerical state, or to change the current norm of can. 1342 §2 which prohibits proceeding with an extra-judicial administrative decree in these cases (cf. can. 1720), does not seem at all appropriate. Indeed, on the one hand it would endanger the fundamental right of defence - and in causes that affect the person's state - while on the other hand it would favour the deplorable tendency - owing perhaps to lack of due knowledge or esteem for the law - towards ambivalent so-called "pastoral" governance, which ultimately is not pastoral at all, because it tends to obscure the due exercise of authority, thereby damaging the common good of the faithful.

"At other difficult times in the life of the Church, when there has been confusion of consciences and relaxation of ecclesiastical discipline, the sacred Pastors have not failed to exercise their judicial power in order to protect the supreme good of the "salus animarum".

The letter then proceeds with an excursus on the debate which had taken place during the revision of the Code prior to the decision not to include so-called dismissal "ex officio" from the clerical state. It was considered, in fact, that the causes which might have justified this procedure "ex officio" had almost all been included among the offences for which dismissal from the clerical state was already envisaged (cf. Communicationes 14 [1982] 85). Hence, for precisely this reason, not even the new Norms for Dispensation from Priestly Celibacy of 14 October 1980 (AAS 72 [1980] 1136-1137) made reference to this procedure, which the previous Norms of 1971 (AAS 63 [1971] 303-308), by contrast, had allowed.

"All things considered - the reply concluded - this Pontifical Commission is of the opinion that Bishops must be suitably reminded (cf. can. 1389), whenever it should prove necessary, not to omit to exercise their judicial and coercive power, instead of forwarding petitions for dispensation to the Holy See".

"While agreeing on the fundamental requirement to protect "the common good of the faithful", the Pontifical Commission considered it dangerous to circumvent certain practical safeguards, preferring instead to exhort those in positions of responsibility to implement the provisions of the law.

"The exchange of letters between the Dicasteries was concluded, for the time being, with a courteous reply, dated the following 14 May, from the Prefect of the Congregation to the President of the Pontifical Commission:

"I am pleased to inform you that this Dicastery has received your valued opinion on the possibility of providing for a swifter and more simplified procedure than the one currently in force for the imposition of sanctions by competent Ordinaries on priests guilty of grave and scandalous conduct. In this regard, I wish to assure Your Eminence that the arguments you have put forward will be carefully considered by this Congregation".

Pastor Bonus extends the Competences of the Congregation (June 1988)

The issue appeared to be formally closed, but the problem had not been resolved. In fact, the first important sign of a change in the situation took place via a different route, just one month later, with the promulgation of the Apostolic Constitution Pastor Bonus, which altered the overall structure of the Roman Curia as established in 1967 by Regimini Ecclesiae Universae, and reallocated the competences of individual Dicasteries. Article 52 of this pontifical legislation, still in force today, clearly laid down the exclusive penal jurisdiction of the Congregation for the Doctrine of the Faith, not only with regard to offences against the faith or in the celebration of the sacraments, but also with regard to "more serious offences against morals". The Congregation for the Doctrine of the Faith "examines offences against the faith and more serious ones both in behaviour or in the celebration of the sacraments which have been reported to it and, if need be, proceeds to the declaration or imposition of canonical sanctions in accordance with the norms of common or proper law" (Pastor Bonus, 52).

This text, evidently suggested by Cardinal Ratzinger's Congregation on the basis of its own experience, is directly related to what we are examining, and it is even more significant in view of the fact that the previous "draft" of the law - the 'Schema Legis Peculiaris de Curia Romana', prepared three years earlier - did little more than reproduce the formulation of the Dicastery's competences made in 1967 in 'Regimini', saying simply that the Congregation "delicta contra fidem cognoscit, atque ubi opus fuerit ad canonicas sanctiones declarandas aut irrogandas, ad normam iuris procedit" (art. 36, Schema Legis Peculiaris de Curia Romana, Typis Polyglottis Vaticanis 1985, p. 35).

With respect to the previous situation, then, the change introduced by the Apostolic Constitution Pastor Bonus is of some importance, all the more so since this time it occurred within the context of the norms of the 1983 Code, with reference to the offences defined there as well as to the "proper law" of the Congregation itself. Within a normative framework governed by the above-mentioned criteria of "subsidiarity" and "decentralization", then, the Apostolic Constitution Pastor Bonus now executed a juridical act of "reservation" to the Holy See (cf. can. 381 §1 CIC) of a whole category of offences that the Supreme Pontiff entrusted to the exclusive jurisdiction of the Congregation for the Doctrine of the Faith. It is quite unlikely that a choice of this kind, better defining the competences of the Congregation and revising the Code's criterion regarding who should apply these canonical penalties, would have been implemented at all if the overall system had been working well.

The norm in question, however, was still insufficient at the practical level. Elementary requirements of the certainty of law now made it necessary to identify exactly what these "more serious offences" were, both those against morals and those committed in the celebration of sacraments, that Pastor Bonus was entrusting to the Congregation, withdrawing them from the jurisdiction of Ordinaries.

Two Subsequent Interventions of Importance

The events described thus far, as we have seen, occurred within a short period of time: a few months during the first half of 1988. In the years that followed - to put it in general terms - efforts were still being made to address emergency situations arising within the Church's penal sphere by following the general criteria of the 1983 Code as broadly summarized in the letter from the Pontifical Commission for the Interpretation of the Code of Canon Law. There were moves to encourage the intervention of local Ordinaries, sometimes accompanied by efforts to streamline the procedures, if necessary by means of a special law, mainly through dialogue with the Episcopal Conferences concerned. Later, in the course of the 1990s, there were numerous meetings and proposals of this kind, involving different Dicasteries of the Roman Curia, as can be readily documented.

Yet repeated experience confirmed the inadequacy of these solutions and the need to find others of greater scope, operating on a different level. Two solutions in particular significantly altered the framework of canonical penal law on which the Pontifical Council for Legislative Texts has been working in recent months, and both were instigated by the current Pontiff, in perfect continuity with the concerns he expressed in the above-mentioned letter of 1988.

The first initiative, now quite widely known, concerns the preparation in the late 1990s of the Norms on the so-called 'delicta graviora', which effectively implemented article 52 of the Apostolic Constitution Pastor Bonus by specifically indicating which crimes against morals and which crimes committed in the celebration of sacraments were to be considered "more serious" - thus bringing them under the exclusive jurisdiction of the Congregation for the Doctrine of the Faith.

These Norms, finally promulgated in 2001, inevitably appeared to "go against" the criteria provided by the Code for the application of penal sanctions, so much so that in many areas they were immediately branded "centralizing" norms, whereas in reality they were responding to a particular need for "completion", aimed in primis at resolving a serious ecclesial problem regarding the proper functioning of the penal system and in secundis at ensuring uniform treatment of this type of case throughout the Church. To this end the Congregation had first to prepare the relevant internal procedural norms, and likewise to reorganize the Dicastery so as to harmonize this judicial activity with the Code's rules on processes.

In the years after 2001, moreover, and on the basis of the juridical experience acquired, the then Prefect of the Congregation obtained from the Holy Father new faculties and dispensations to deal with the various situations, to the point of actually defining new offences. In the meantime it was recognized that the "grace" of dispensation from priestly obligations and the consequent reduction to the lay state of clerics found guilty of very serious crimes was also a grace given 'pro bono Ecclesiae'. For this reason, in some particularly serious cases, the Congregation did not hesitate to ask the Supreme Pontiff for the decree of dismissal 'ex officio' from the clerical state in the case of clerics who had committed appalling crimes. These subsequent modifications are now codified in the Norms on the 'delicta graviora' published by the Congregation last July.

There is, however, a second and much less well-known initiative of the current Pope that I should also like to mention briefly, since it has certainly helped to change the overall application of the Church's penal law, namely his intervention as a Member of the Congregation for the Evangelization of Peoples in the preparation of the special faculties that, similarly by way of necessary "completion", were granted to that Congregation for purposes of addressing other kinds of disciplinary problems in mission territories.

It is not hard to understand that, owing to the scarcity of resources of every kind, the obstacles to implementation of the Code's penal law system were felt particularly keenly in mission territories dependent on the Congregation for the Evangelization of Peoples, which, broadly speaking, represent almost half of the Catholic world.

Hence, in its Plenary Assembly of February 1997, the Congregation decided to request from the Holy Father "special faculties" which would allow it to act administratively in specific penal situations on the margins of the general provisions of the Code: the Relator of that Plenary Assembly was the then Prefect of the Congregation for the Doctrine of the Faith. It is public knowledge that these "faculties" were updated and extended in 2008, while others of a similar nature and manner, have since been granted to the Congregation for the Clergy.

It seems unnecessary to add more. Specialized studies have already been published which offer a good account of the variations in the Church's penal law system produced by all these initiatives. Experience will tell to what extent the modifications to Book VI that are now in preparation, keeping in mind these new faculties, will succeed in restoring balance. For present purposes, though, my principal intention has been to highlight the crucial role played, in this more than 20-year process of renewing penal discipline, by the decisive action of the current Pope, to the point that - together with many other practical initiatives - it truly constitutes one of the "constant elements" in the activity of Joseph Ratzinger.

© La Civiltà Cattolica 2010 IV; pp. 430-440; issue 3851.