QUESTIONS AND ANSWERS
Principles
The first principle to be recognized is the universally accepted theological principle that a law is by definition an ordering of reason to the common good. Consequently a human law (e.g. an ecclesiastical law) that is manifestly unjust because it is opposed either to the common or to the divine law, (that is, to the natural law or to divine revelation), is not a law at all, being incapable of attaining the end of the law, "the salvation of souls, which in the Church is always the highest law" (1983 Code, Canon 1752).
The second principle is that the 1983 Code, like all collections of law that preceded it, is a collection of different laws, originating at different times and in different circumstances, although all promulgated at the same time. Consequently, it is perfectly possible to accept one law as just, and reject another as manifestly unjust, and still to respect the legislator who promulgated such a confusing mixture of good and evil.
A third principle is the clear statement made by Pope John Paul II in his Apostolic Constitution introducing the 1983 Code, Sacrae Disciplinae Leges, that the "fundamental reason for the novelties" found in this Code is the new Ecclesiology of Vatican II. This new ecclesiology, or new understanding of the Church, with its collegiality, religious liberty, ecumenism, and denial of the necessity of belonging to the Catholic Church, outside of which there is no salvation, is manifestly opposed to the divine revelation found in the Gospel and repeatedly taught by the Church's Magisterium. We cannot, therefore, accept the new Code as a whole as a law of the Church, on account of the danger to the Faith that this would mean, on account of the revolutionary end for which it was instituted, and on account of the liberal spirit that permeates it.
Canons Opposed to the Faith
There are consequently some canons that all traditional Catholics clearly see must be refused, such as Canon 844 that promotes sacramental hospitality with non-Catholics. Such a law destroys the Faith in the Catholic Church as the one true Church, and is no law at all, being directly opposed to the common good and salvation of souls. Another example of a canon that is opposed to the Church's Faith is Canon 1055, §1, that redefines the two ends of marriage, in direct contradiction to the constant teaching of the Church, for example in Casti Connubii of Pope Pius XI. The consequences are tremendous, particularly in the whole question of declarations of nullity of marriage.
Canons Opposed to Tradition
There are other canons that are not directly opposed to a teaching of the Church but are entirely unacceptable because they undermine, destroy, or contradict an age-old tradition of the Church, protecting the sacredness of its sacraments and teaching. The typical example of this is the passage into the Code of Paul VI's 1972 abolition by omission of the tonsure and all the minor orders, and even the subdiaconate (Canon 266), the tonsure having existed for 11 centuries, and the minor orders for at least 17 centuries. Canon 5 of both the 1983 and 1917 Codes admits the possibility of maintaining centennial and immemorial customs that are not against the law. This is one such case, necessary for the existence of the traditional rite, even in communities that are approved by Rome, but for whose tonsure and minor orders there is no canonical provision.
Questions of Purely Positive Law
Finally, there are other canons that depend purely and simply upon the will of the Sovereign Pontiff, the Church's supreme legislator, such as the granting of indulgences, or censures or obligations under pain of mortal sin. In such cases, we are obliged to accept the much reduced protection for the Church, her faith, and her moral life that the 1983 Code provides.
One typical example of this is the law that frees Catholics who have formally apostatized from the Church from the obligation of observing the canonical form of marriage (Canon 1117). This canon is also a tragic betrayal of the Faith. It means that a Catholic can be recognized to have left the Church, that one who is a Catholic is not necessarily always a Catholic; namely, that one has a right to apostatize, which the Church recognizes, permitting a Catholic in such a state to marry validly outside the Church. This causes great confusion, for when such persons return to the Church, usually after the failure of their non-Catholic marriage, they are no longer free to marry in the Church on account of the sins committed in apostasy. However, since the Pope does not bind such persons to the canonical form of marriage, neither can we, and consequently we have to accept this canon, as unfortunate as it might be.
The same applies for censures, such as the excommunication against Freemasons contained in the 1917 Code (Canon 2335), but no longer contained, alas, in the 1983 Code (Canon 1374). Those who joined the Freemasonic sect after 1983 cannot, then, be considered as automatically excommunicated.
Conclusion
The great difficulty, then, in assessing the 1983 Code will be to consider each canon separately, as to its justice and conformity with the teaching and Tradition of the Church. Those canons that are not just nor in conformity with the Church's teachings or Tradition are not to be observed, unless they are questions that depend upon the sole will of the legislator.
Note especially that it is the 1917 Code alone that gives us the mind of the Church and that can be safely followed in questions of morality and the spiritual life. Note, also, the real danger of would-be canon lawyers quoting canons out of context, without understanding the fundamental principles of law and the principles of interpretation. A purely exterior legalism is the consequence, not so different from the attitude of the Pharisees towards Our Lord, refusing to see in Him the Messias because he fulfilled the fundamental reason for the law rather than the external observances that preoccupied them. Such an empty legalism despises the role of Theology and Tradition in interpreting the law.
Can traditional priests absolve from censures in the internal forum?
Censures are canonical punishments that are imposed upon Catholics who have committed grave crimes against God or the Church. There are much fewer censures in the 1983 Code than in the 1917 Code. However, some still remain, such as the automatic excommunication for any Catholic who would perform or in any way cooperate in an abortion (Canon 1398). Normally such a censure, which prevents a Catholic from receiving any of the sacraments, is to be remitted by the Ordinary of the diocese. However, both Codes foresee the possibility of remission in the confessional, either with delegation from the Ordinary, or in the usual situation in which it is spiritually urgent to receive the absolution from the censure so that the sacraments can be received (Canon 2254 of the 1917 Code and Canon 1357 of the 1983 Code).
There are some minor differences between the two Codes on secondary questions. One such difference, which concerns the priests of the Society, is the 1983 Code's omission of the possibility of remission of censures by the confessor in the internal forum in the exceptional case of moral impossibility of recourse to the proper superior, as provided for by anon 2254, §3 of the 1917 Code. Canon 1357 of the 1983 Code is otherwise very similar, permitting priests to absolve from censures in the internal forum, but simply does not speak of the exceptional case of moral impossibility of recourse. Our priests are certainly in this case, given that the bishops and the Sacred Penitentiary regularly refuse to grant the jurisdiction to absolve in such cases. However, it is perfectly understandable that the law could not foresee the case of our priests having to absolve with supplied jurisdiction. Nor need it for that matter, for nobody can be bound to have recourse when it is impossible, nor does the Church refuse the sacraments in such cases. To the contrary, it always grants the priest the right to absolve from sins, as, for example, in case of danger of death (Canon 882 of the 1917 Code and Canon 976 of the 1983 Code).
The laws concerning correct interpretation are to be followed in such cases, as described in Canons 17 and 19 of the 1983 Code. The interpretation is to be made according to laws in similar circumstances (i.e. the absolution from sins by a priest without jurisdiction in case of danger of death), the general principles of law, and the common practice of the Roman Curia. This interpretation is precisely what is contained explicitly in the 1917 Code. This particular precision is not opposed to the new law, but is simply not mentioned in it.
In such cases the 1917 Code helps us to interpret the 1983 Code. The 1983 Code, Canon 6, §2 points out that canons that refer to the old law (this is the case) are to be judged according to canonical Tradition, and that customs that are not against the law are to be maintained (Canon 5, §2). Also, Canon 20 of the 1983 Code states that a later law only abrogates an earlier law if it explicitly states so, or if it is directly contrary to it, or if it regulates the whole matter treated by the law. This is not the case with the moral impossibility of recourse, for it is simply not treated. Consequently, this particular detail is not abrogated.
The 1917 Code is more explicit when it states the canonical principle that in case of doubt the prescriptions of the old law are to be retained (Canon 6, §4). Consequently in such cases there is really no opposition between the Codes, but it is simply an application of the more general principles of interpretation and supplied jurisdiction admitted by both Codes.
Fr. Peter Scott was ordained by Archbishop Lefebvre in 1988. After assignments as seminary professor and the U.S. District Superior, he is currently the rector of Holy Cross Seminary in Goulburn, Australia.
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