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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

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