Sacrae Disciplinae Leges Deus—Canon Law and the Enforcement of Norms in the Catholic Church
April 2012, Santa Clara University School of Law
With over 1.1 billion members and a history dating back to the days of the Apostles and to Jesus Christ himself, the Catholic Church “—its history, its institutional structure, its beliefs and practices, and its place in the world—is an indispensible component of cultural literacy.” The influence of the Church can be seen in innumerable aspects of modern western culture, and, in return, secular institutions have played a role in shaping the landscape of Catholicism today. This paper explores some of the rules and norms regulating the behavior of Church officials, lay members, as well as looking into the formal legal structures in place to enforce canon law. While the Code of Canon Law addresses many issues including family law and property ownership, the focus of this paper is on the penal system regulating the behavior of individuals.
The Structure of the Catholic Church
Given the official teaching that the line of popes has descended directly from Saint Peter along with the acknowledged supremacy of the pope within the Church, Catholicism as an institution claims the title of the oldest continuing absolute monarchy in the world.  The pope holds the official titles of the bishop of Rome, the vicar of Jesus Christ, successor to the prince of the Apostles, pontifex maximus of the universal church, as well as the sovereign of the state of Vatican City.  “By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.”
The supreme authority of the pope is also bolstered by the concept of papal infallibility. While sometimes understood as standing for the proposition that a pope can never be wrong, papal infallibility actually only applies when a pontiff specifically invokes his authority to demand irrevocable assent on a matter of faith or morals. Although the practice is rarely used, it helps to bolster the common idea of the scheme of the structure of the church as a pyramid with the pope at the apex and the members of the church making up the base.
The pyramid view of the Church seriously understates the complexity of the institutions of the Church. While the pope’s authority as having the final say in matters of doctrine is largely unchallenged, the idea of Catholicism as an absolute authoritarian regime runs contrary to the actual teachings of the Church following the Second Vatican Council and the very statutes of the Canon. The college of bishops “together with its head [the pope] and never without its head, is also the subject of supreme and full power over the universal Church.” As a result, “the episcopacy as a whole could not be suppressed even by the Roman Pontiff.” “The college of bishops also possesses infallibility in teaching” in certain circumstances.
A select group of bishops, called the Synod Of Bishops is chosen from different regions around the world and meets with the pope on a regular basis in order to foster unity and consider issues of faith happening around the world. One other subsection of bishops is the College of Cardinals. In additions to their role of ‘collegially assisting’ the pope on matters of faith, the Cardinals are charged with selecting a new pontiff upon the death of a pope. 
In addition to those special duties and responsibilities given to certain bishops, the main job of a bishop is to preside over a diocese.  In the United States today there are 33 Archdioceses and 148 Dioceses presided over by an Archbishop or a Bishop, with many parishes making up each individual diocese. While each individual bishop, or ‘Ordinary’ as the head of a Diocese is called, has the personal responsibility for his own Diocese, each is also a member of the National Conference of Catholic Bishops, an organization charged with the ecumenical care of all American Catholics.
To Whom Do the Laws of the Church Apply?
With over a billion members worldwide, and a United States population of around 70 million, one might think that the system of norms and the actual legal structure of the Catholic Church would have quite enough to get on with policing its own members. Taking stock of this, laws which refer only to religious practices “bind [only] those who have been baptized in the Catholic Church or received into it, possess the sufficient use of reason, and unless the law expressly provides otherwise, have completed seven years of age.” This concept of not applying the law to non-Catholics has only taken root in modern times. Even within the last century, some canonists insisted that purely ecclesiastical laws applied to Protestants, schismatics, and those who had been excommunicated.
Even the text of the modern Church statutes seem to be pulled in two different directions; one driven by the idea that following the laws of the Church is essential for salvation coupled with the Church’s desire to save all of humanity, and one dominated by the tenet that such salvation must be the choice of the individual. One statute from the Code states
[i]t belongs to the Church always and everywhere to announce moral principles, even about the social order, and to render judgment concerning any human affairs insofar as the fundamental rights of the human person or the salvation of souls requires it.
In the very next canon, though, the faithful are admonished: “No one is ever permitted to coerce persons to embrace the Catholic faith against their conscience.”
Regardless of whether or not the religious laws are applied to a specific person, both the non-judicial system of enforcing norms and the operation of canonical courts are largely voluntary with respect to lay people—those Catholics not ordained as church officials. The system is largely based on an individual’s desire to be “turned back to God.”
Non-Judicial Norms: Crime, Punishment, and Absolution Outside Formal Courts
Outside the formal structure of the system of canon law, the primary forces at play in enforcing the norms of the Church are sin, repentance, damnation and salvation. For thousands of years Christians have been concerned with the salvation of their eternal souls. Over the centuries and guided by Catholic teaching, a fairly clear-cut set of alternatives has emerged: follow the teaching of Jesus and the Church and receive eternal reward, follow a different path and face an eternity in hell. With the stakes so high, it is easy to understand why hundreds of millions of believers do their best to follow the Church’s teachings and undertake the necessary procedural steps to remain in compliance and earn their eternal reward.
The main way that the Catholic Church gets its members to conform to the norms and practices of which it approves is by preaching a prohibition against mortal sins. Mortal sins are so called because the Church teaches that their commission leads to the spiritual ‘death’ of a person’s soul.
The Catechism of the Catholic Church, a Vatican-issued summary of the Church’s doctrinal positions and teachings juxtaposes a person’s ability to commit mortal sin and one’s ability to love: both are radical possibilities which result from the free will of humanity. If a mortal sin “is not redeemed by repentance and God’s forgiveness, it causes exclusion from Christ’s kingdom and the eternal death of hell, for our freedom has the power to make choices forever, with no turning back.”
Sins are evaluated as either mortal or venial based on their gravity. “One commits a venial sin when, in a less serious matter, he does not observe the standard prescribed by the moral law, or when he disobeys the moral law in a grave matter, but without full knowledge or without complete consent. Fr. Colin B. Donovan notes that the gravity of a sin might also be measured by its consequences: “If we gossip and destroy a person's reputation it would be a mortal sin. However, normally gossip is about trivial matters and only venially sinful.”
There are no comprehensive lists of mortal sins, only general principals regarding the severity of any particular act.
Sins can be distinguished according to their objects, as can every human act; or according to the virtues they oppose, by excess or defect; or according to the commandments they violate. They can also be classed according to whether they concern God, neighbor, or oneself; they can be divided into spiritual and carnal sins, or again as sins in thought, word, deed, or omission.
In order for a sin to be considered mortal, it must concern “a grave matter and [must] also [be] committed with full knowledge and deliberate consent.” Along with the knowledge and consent requirements, the Catechism also notes that “[f]eigned ignorance and hardness of heart do not diminish, but rather increase, the voluntary character [and therefore the gravity] of a sin.” Unintentional ignorance, on the other hand, has the potential to diminish or remove the fault of a grave sin. There is a caveat, though: “no one is deemed to be ignorant of the principles of the moral law, which are written in the conscience of every man.” Additionally, “[t]he promptings of feelings and passions can also diminish the voluntary and free character of the offense, as can external pressures or pathological disorders. Sin committed through malice, by deliberate choice of evil, is the gravest.”
With regard to the consequences of mortal sins, the Catechism warns,
There are no limits to the mercy of God, but anyone who deliberately refuses to accept his mercy by repenting, rejects the forgiveness of his sins and the salvation offered by the Holy Spirit. Such hardness of heart can lead to final impenitence and eternal loss.
Implicit in the Church’s teachings condemning sinful practices is the idea that, through the embracing of the practices of Catholicism, a person can properly repent from his sins and still attain salvation. This is done through the process of the Sacrament of Penance, more commonly known simply as ‘confession.’
During the Sacrament of Penance, a Catholic who confesses her sins, is sorry for them, and intends to reform herself obtains forgiveness for those sins through the absolution imparted by a priest. In order for confession to actually be effective, a person must come to the Sacrament having rejected the sins they have committed and fully intend to amend their behavior. Before heading to the confessional for the forgiveness of their sins, a Catholic is expected to undertake a diligent examination of conscience in order to be able “to confess in kind and number all grave[--that is to say, mortal--]sins committed after baptism and not yet remitted directly through the keys of the Church nor acknowledged in individual confession, or which a person has knowledge.” Adult Catholics are expected to confess mortal sins at least once a year, but it is only recommended that venial sins are revealed in the context of Penance because they do not have the potential to damn a person’s soul. While the canon law does not technically require the confession of venial sins, the Catechism warns, quoting Saint Augustine, “if you take [venial sins] for light when you weigh them, tremble when you count them. A number of light objects makes a great mass; a number of drops fills a river; a number of grains makes a heap. What then is our hope? Above all, confession.”
The required procedures for an effective confession are laid out as statutes of canon law. Priests are reminded that, when they are hearing confessions they are to act as both judge and physician, in a role “ordained by God as a minister of divine justice and mercy.” Although it is the duty of the priest to determine the number and the gravity of the confessor’s sins, he is advised “to proceed with prudence and discretion, attentive to the condition and age of the penitent” when asking questions about the nature of the sins. Everything revealed during the confession is entirely secret. “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” Such a violation would result in the excommunication of the confessor.
Priests hearing confessions and absolving sins are required to “adhere faithfully to the doctrine…and the norms issued by competent authority.” Without pigeonholing itself into defining specific punishments for specific sins, the Church in this way is attempting to create a uniform system of appropriate penance-to-gravity-of-sin ratio. An act of penance is an act indicative of a person’s desire to turn away from sin which a priest who has heard a confession will ‘assign’ the sinner so that the sinner may further solidify their commitment to return to God. Penances can include prayer, fasting, and almsgiving.
The confessor is to impose salutary and suitable penances in accord with the quality and number of sins taking into account the condition of the penitent. The penitent is obliged to fulfill these personally.
Even before the penance or penances are undertaken, the sinner who has sought forgiveness for their sins usually receives absolution, although this is in the discretion of the priest in his role as judge. “If the confessor has no doubt about the disposition of the penitent…absolution is to be neither refused nor deferred.”
Perhaps the most notable aspect of this particular means of ‘enforcing’ norms is the fact that the entire process is voluntary. While the statutes of canon law require Catholics to receive the Sacrament of Penance once a year, there is no mechanism for ensuring that this is done beyond the belief of Catholic adherents that the eternal lives of their immortal souls depend on it. While this notion might seem like hardly a system of guaranteeing compliance with norms at all to an outsider, the protection of one’s soul can obviously be a powerful motivator for a true believer. Even so, a survey published by the Center for Applied Research in the Apostolate at Georgetown University found that three quarters of American Catholics surveyed said that they either never participate in the Sacrament of Penance or that they do so less than once a year.
Formal Adjudication: The Courts of Canon Law
“May God grant that joy and peace with justice and obedience obtain favor for this Code, and that what has been ordered by the Head be observed by the members.” With that hope for the blessing of providence and the compliance of the sinners of the world, Pope John Paul II officially placed his seal of approval on the new Codex Juris Canonici. The year was 1983, and for just the second time in the history of the Catholic Church, there was a pontifically approved Code of the official laws of the Church.
In the early days of the Church the disciplinary and procedural laws were made up of the letters and epistles that prominent bishops of the early Church wrote to one another regarding the legal matters arising in their own jurisdictions. One of the earliest attempts to officially compile the legal writings and standards of the Church came around 1140 when a monk named Gratian compiled nearly 3,800 earlier authoritative writings on the issues of Church law and regulation and provided commentary based on Roman law and scholarly works of noted Christians to try to iron out apparently contradictory ideas. This work became known as Gratian’s Decretum and became the earliest part of the Corpus Juris Canonici—the Body of Canon Law.
Over time, the writings of several popes were included with Gratian’s work, including many decretals—responses by the pope to a particular question of church discipline—and a more formal Corpus began to take shape. At the Council of Trent from 1545-63 a group of cardinals and canon experts poured over the Corpus and revised it for Pope Gregory XIII, who required the new official Corpus to be taught in schools of canon law and in the courts of the church. This was the official body of the Church’s laws until 1917.
Influenced by the dramatic increase in the popularity of legal codes following the example of the Napoleonic Code and a desire for clarity and uniformity, a plan was put in place in 1904 to promulgate a comprehensive code of the laws of the Church. All of the bishops of the world, as well as other religious superiors and educators at Catholic universities, were invited to participate in the process of compiling the new code, a process which took 13 years. Following the reforms going on in the Catholic Church during the middle of the twentieth century, particularly the substantial changes being considered by the Second Vatican Council, Church leaders saw a need to revise the Code of Canon Law beginning in 1959.
The second code, written in Latin, consists of 1,752 canons organized into 7 books. Books I and II define the positions and responsibilities of both the laity and the clergy; Book III deals with the promulgation of the church, including the subjects of teaching, preaching, and the church’s relations with the media; Book IV contains guidelines for the administration of the sacraments, with the greatest emphasis on the sacrament of marriage; Book V concerns the church’s handling of money, property, and other temporal goods; Book VI deals with sanctions, reducing the number of excommunicable actions from 37 to 7; and Book VII provides a structure for the establishment of church courts and the settlement of internal disputes.
Although the Code was promulgated for the purpose of ensuring that the legal actions of the Church were being undertaken justly and uniformly, the Code itself discourages litigation. Catholics, it says, “are to strive diligently to avoid litigation among the people of God as much as possible.” This command applies “especially [to] bishops,” which seems reasonable given the fact that “[w]henever [a bishop] has knowledge, which at least seems true, of a delict, he is carefully to inquire personally or through another suitable person about the facts, circumstances and imputability” in order to decide whether extra-judicial punishment should be applied or whether the judicial process must commence.
A delict is “an external and morally imputable violation of law to which a canonical sanction is attached.” It is important to note, though, that “[n]ot every sin is a crime. The Church, as a visible society punishes by sanctions only certain external transgressions which disturb the social order.” Considering this tenet of the canon law system, it is interesting to note that only three aggravating factors are listed in the Code; two of them have to do with the situation of the crime—dealing with repeat offenders and those who had the opportunity to avoid a crime of negligence but proceeded anyway --but a person’s punishment may also be increased based on the fact that he or she “has been established in some dignity or … position of authority.”
When it comes to delicts which are normally punishable through the canonical judicial process, the Church also provides a list of excusing factors, including not having attained 16 years of age, coercion by physical force or grave fear, or the inability to use reason. There are also mitigating factors, which include delicts committed by minors over 16, by those with inability to reason as a result of drunkenness or similar state, or acting without moderation in response to an unjust aggressor.
While it is the responsibility of local bishops to investigate and bring actions for penal cases (those involving the determination and punishment of delicts), “[a]nyone, whether baptized or not, can bring action in a [canonical] trial…[and] a party legitimately summoned must respond.” The Church today does not have anything like a police or marshal’s service to haul people into courts so, as discussed in the non-judicial section above, the Church relies on the desire of the faithful to preserve their souls and to remain in union with their fellow Catholics.
Initially trials take place at the diocesan level. “[T]he judge of first instance is the diocesan bishop, who can exercise judicial power personally or through others.” In most cases, though, the bishop will not actually decide the matter personally, because “[e]ach diocesan bishop is bound to appoint a judicial vicar, or officialis, with ordinary [simply meaning ‘innate’] power to judge.” There may also be assistants called adjutant judicial vicars or vice-officiales. All of these people with the power to judge must be priests “of unimpaired reputation, doctors or at least licensed in canon law, and not less than thirty years of age.” While bishops receive lifetime appointments, the judicial vicars and adjutants only serve limited terms. Once instated, though, they “cannot be removed except for a legitimate and grave cause.”
While matters involving goods may be heard by just one judge, a panel of at least three judges (and as many as five) is required to hear “contentious cases” involving the bonds of Holy Orders (the priesthood), marriage dissolution, or penal cases where the potential punishment includes dismissal from the clergy or excommunication. When more than one judge is hearing a case, the “tribunal must proceed collegially[,] and render its sentences by majority vote.” In cases with no potential penal result, parties are free to appoint their own canonical advocates. “In a penal trial, the accused must always have an advocate either appointed personally or assigned by the judge.
Because of the concept of papal supremacy, any party to any canonical litigation, at any time, has the ability to appeal to the pope to request that he decide the matter himself. Such an appeal to the Apostolic See, though, does not necessarily suspend the lower-level proceedings, and the most likely outcome of such an appeal at an early stage in litigation would be that the pope would allow the first tier litigation to continue and defer to that judge’s ruling for the time being.
Once a trial has been heard and decided in the first instance, an appeal may be made at the next level of Church hierarchy; cases first heard in a diocesan court are appealed to the archdiocese, those initially heard in archdiocesan courts go to a special intermediary court. In these courts of second instance, the same or a greater number of judges must be used to determine the outcome of the case.
If a person feels that justice has still not been served, his final recourse is to Rome. “The Roman Pontiff is the supreme judge for the entire Catholic world; he renders judicial decisions personally, through the ordinary tribunals of the Apostolic See, or through judges he has delegated.” Normally, appeals from lower decisions are handled by an institution known as the Sacred Roman Rota. The Rota is made up by a number of appointed judges who hear cases on a rotating basis. They are appointed by the pope and must have special canonical training, rendering them laurea utriusue iuris. In addition to its appellate jurisdiction, the Rota also has primary jurisdiction over contentious cases involving the bishops, because anyone at a diocesan level who would normally hear and decide cases would either be under the authority of the bishop, or be the bishop himself.
In addition to the Rota and the pope’s personally authority, there is also the Apostolic Signatura. The Signatura is given the specials task of watching over the entire administration of justice within the Catholic Church in order to ensure its correct administration and extend the competence of tribunals. These duties are in addition to the Signatura’s role as “the supreme tribunal of the Church, endowed with ordinary vicarious jurisdiction to act in the name of the Holy Father himself.” The Signatura is made up of ten Cardinals. While they mainly hears appeals from and accusations of impropriety against the Rota, because of their vicarious papal authority, these Cardinals can accept any appeal or any case of first instance happening within the Church at any time. It may also assign such cases to the Rota for consideration there.
Whether at the time of the initial ruling or after the exhaustion of appeals, those Catholics wishing to remain in communion with the Church who have been sentenced to penal sanctions must eventually face the penalties. “The Church has the innate and proper right to coerce offending members of the Christian faithful with penal sanctions.” However, as noted by the Council of Trent, “Bishops and other Ordinaries should remember that they are shepherds and not slave-drivers, and that they must rule over their subjects as not to domineer over them but to love them as sons and brothers.” In that spirit, penalties are not to be imposed unless “other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, [or] reform the offender.”
There are three kinds of penalties which can be imposed upon a person under the Code of Canon Law for the violation of a delict: penances, expiatory penalties, and censures. A penance is “the performance of some work of religion piety, or charity” as assigned by the judge.  As noted earlier, penances are commonly given out in the non-judicial context of confession.
Expiatory penalties (which can be handed down independently or alongside penances at the discretion of the judge) can include the denial of the use of certain religious titles, offices, rights, privileges, or insignia, or in more extreme cases, can forbid a person from residing within particular territories of the church. Because the Church does not have the power in most jurisdictions to physically require an individual (non-clergy member) to move, this punishment can be accomplished by denying Catholics membership in certain parishes or dioceses.
The most severe form of punishment imposed for delictal violations are censures. For the clergy, censures can include suspension or removal from religious life, and for any of the Catholic faithful, can mean interdiction or excommunication.
Interdiction is the punishment where a member of the Church is still considered to be in communion with the rest of the body, but is forbidden from doing certain things. Some Sacraments (which Catholics believe to be necessary for salvation) can be withheld, as well as the right to Christian burial. Excommunication removes a person entirely from communion with the Church. These kinds of censure penalties cannot be validly imposed on a person unless he has been given at least one warning to change his behavior and sufficient time to repent.
There are two categories which determine at what point a particular penalty becomes binding on a guilty person. The default timing is called ferendae sententiae. Ferendae penalties do not become binding until a judge has imposed them upon the guilty party. In a curios twist for such an elaborate legal system, more serious penalties attach latae sententiae—they are incurred ipso facto upon the commission of the delict. For example, “an apostate from the faith, a heretic, or a schismatic incurs a latae sententiae excommunication.” In order for justice to be satisfied, a judicial determination of the person’s guilt is still required, but the penalty has already been justly attached before the judge has ruled.
Aside from heresy, the other excommunicable offenses—all of which attach latae sententiae—that can be committed by any person are throwing away or sacrilegiously using the Eucharist, attempting to consecrate the Eucharist without being a part of the priesthood,attempting to absolve another’s sins through confession without being a part of the priesthood, and using physical force against the pope. Priests can be excommunicated for attempting to consecrate new bishops without a mandate from the pope, attempting to absolve a murder committed by a person who is not in danger of death at the time of the confession, and violating the confessional seal by revealing what any person has said during the Sacrament of Penance.
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 Canon 331. Any citations to the Code of Canon Law in this paper come from “Code of Canon Law Latin-English Edition New English Translation” Prepared under the auspices of the Canon Law Society of America. This English edition of the code is translated directly from the Codex Iuris Canonici published by the Liberia Editrice Vaticana and has received the Nihil obstat (a declaration of freedom from any canonical flaws or departures from authoritative Church teachings) from the Most Rev. Anthony M. Pilla, President of the National Conference of Catholic Bishops and the Imprimatur of the Most Rev. William E. Lori, S.T.D., V.G., Auxiliary Bishop of the Archidiocese of Washington.
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 Canon 336
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 Canon 749 §2
 Canon 342
 Canon 368
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 Canon 11
 Bouscaren, Canon Law, Supra at 27
 Canon 747 §2
 Canon 748§2
 Canon 987
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 Cat. 1854
 Cat. 1862
 Donovan, “Mortal versus Venial Sin,” Supra
 Cat. 1853
 Cat. 1857
 Cat. 1859
 Cat 1860
 Cat. 1864
 Canon 959
 Canon 987
 Canon 988
 Canon 989
 Canon 988 §2
 Cat. 1863
 Canon 978 §1
 Canon 979
 Canon 983 §1
 Canon 1388
 Canon 978 §2
 Canon 981
 Canon 980 (emphasis added)
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 Canon 1446 §1
 Canon 1717 §1
 Canon 1718 §1
 Bouscaren, Canon Law, Supra at 864
 Id. (emphasis in original)
 Canon 1326 1ľ
 Canon 1326 3ľ
 Canon 1326 2ľ
 Canon 1323 1ľ
 Canon 1323 3ľ
 Canon 1323 4ľ
 Canon 1323 6ľ
 Canon 1324 4ľ
 Canon 1324 2ľ
 Canon 1324 6ľ
 Canon 1476
 Canon 1419
 Canon 1420 §1
 Canon 1420 §3
 Canon 1420 §4
 Canon 1422
 Canon 1425 §2
 Canon 1425 §1
 Canon 1426 §1
 Canon 1481 §1
 Canon 1481 §2
 Canon 1417 §1
 Canon 1417§2
 Canon 1438 1ľ and 2ľ
 Canon 1441
 Canon 1442
 Bouscaren, Canon Law, Supra at 169
 Bouscaren, Canon Law, Supra at 170
 Bouscaren, Canon Law, Supra at 169
 Canon 1445 §3 1ľ
 Canon 1445 §3 2ľ
 Bouscaren, Canon Law, Supra at 170
 Canon 1311
 Bouscaren, Canon Law, Supra at 872, citing Council of Trent, Sess. XIII, de ref., cap. 1
 Canon 1341
 Canon 1340 §1
 Canon 1336 §1
 Canon 1336 §1 2ľ
 Canon 1336 § 1ľ
 Bouscaren, Canon Law, Supra at 906
 Canon 1331; Bouscaren, Canon Law, Supra at 902
 Canon 1347
 Canon 1314
 Canon 1364
 Canon 1367
 Canon 1378 §2 1ľ
 Canon 1378 §2 2ľ
 Canon 1370
 Canon 1382
 Canon 1378 §1
 Canon 1388