Excommunication!

EDITOR'S NOTE (May 16, 2007): This interview was originally published on IgnatiusInsight.com on November 6, 2006. In light of recent statements by Pope Benedict XVI about pro-abortion politicians and excommunication (in the context of a trip to Mexico and South America), as well as remarks by other Church leaders and by certain American politicians, I'm posting it again for readers of this site.

Dr. Edward Peters has doctoral degrees in canon and civil law, and operates the Canon Law Info website and the "In The Light of the Law" web log. He has authored or edited several books, including Annulments and the Catholic Church (Ascension Press), and is the translator of the English edition of The 1917 Pio Benedictine Code of Canon Law, published by Ignatius Press. His most recent book is Excommunication and the Catholic Church, published by Ascension Press. IgnatiusInsight.com editor Carl E. Olson, who had the pleasure of studying canon law under Dr. Peters, recently interviewed the canon lawyer about excommunication and his new book.

Peters: Yes. Excommunication is the most serious censure the Catholic Church imposes on her members. Excommunication has roots deep in ecclesiastical history, and it is still applied, in fact increasingly applied, today. But it's more than a penalty for past actions; it's really an urgent call to reform one's conduct in the future. Excommunication is classified as a "medicinal penalty" by the Church precisely because its main purpose is to bring about reform in the individual. Having certain actions punished by excommunication demonstrates that certain actions are gravely wrong in themselves and cause deep harm both to their perpetrators and to others.

IgnatiusInsight.com: Is it correct, in your opinion, to say that the topic of excommunication is the most misunderstood and misrepresented topic that canon lawyers have to deal with? Or do annulments give excommunication a run for the money?

Peters: Annulment questions are posed more frequently than anything else, but that's because so many more people are directly involved in marriage nullity cases. But in terms of how widespread confusion can be, or as a measure of genuine interest in what's happening in the wider Church today, excommunication issues are quite common. That's in part why I wrote the book. I've been saying for some time, excommunication issues are going to increase, and the recent trends back me up. You can see those trends set out on my Excommunication Blotter.

IgnatiusInsight.com: What would you say are the most common misconceptions about excommunication? Why are they so prevalent, even among Catholics?

Peters: Let's start with your second question. There are two factors behind the prevalence of the misconceptions about excommunication: first is the complexity of the subject matter itself, of course, and the second is the lower average level of catechesis that today's Catholics bring to the dicussion. It is harder for people to understand the notion of excommunication if they have insufficient appreciation of the underlying concept of sin, or of what membership in the Church implies, or what kind of authority the Church has from Christ, and so on. Again, all factors leading me to write the book.

First, there is the idea that excommunication kicks one out of the Church. That is not right. There are ways to cancel one's Church membership, but excommunication isn't one of them. The analogy I use to explain it is that of a felon serving a long prison term; he's in prison, but he remains a citizen bound by the laws of his country. If he, say, owns property upon which he incurs taxes while in prison, he still owns the property and is still liable for the tax from prison; if he commits a crime in prison, he can be prosecuted for it, and so on. A felon loses certain important rights, obviously, like freedom of movement and the right to vote, but he is still a citizen. Similarly, an excommunicated person is still a member of the Church, but he or she has lost certain key rights attached to Church membership and is cut off from many of the activities and benefits of the Church.

The second misconception is that people who die excommunicated go to hell. Maybe they do, and maybe they don't, but we don't know with certainty either way. In any case, the Church does not claim to exercise jurisdiction over the dead, and one's final fate is determined by God based on the life one leads. Of course, appearing before God for judgment in the state of excommunication from His Church on earth is not a good thing.

IgnatiusInsight.com: I am going to post this interview on InsightInsight.com, and as you know, our readers are among the brightest people on earth. So...

Peters: Okay, let's go. Basically, the third misconception is this: many people think that, because a given Catholic committed an action for which automatic excommunication is the penalty (for example, heresy, schism, abortion), the penalty was actually incurred in that case. That's not necessarily true, but the reasons behind my claim require us getting into Canons 18, 1323, and 1324, among others, canons that contain a startling list of factors that mitigate or even remove liability for canonical crimes. Now taken individually, these exceptions to penal liability make sense, but when read as a whole, as we have to do, they make it much more difficult to determine whether an automatic excommunication was actually incurred in a specific case.

So what happens in cases where canon law seems to impose automatic excommunication? Invariably, the discussion in such cases turns to the technicalities of canon law, instead of staying focused on the offensive behavior that gave rise to the discussion. Many canonists believe that the automatic aspect of excommunicable offenses is actually hindering the effectiveness of the law today, and they would prefer to see the automatic aspect of the penalty shelved. They note that no modern legal system has what amounts to an "automatic conviction" upon the commission of a crime, that the long list of exceptions to automatic penalties substantially lessens the chances that such penalties are really incurred in most cases, and that the Eastern Code of Canon Law (which came out a few years after the 1983 Code for the Roman Church) has dropped automatic penalties entirely.

For all that, though, the 1983 Code says what it says. Our task is to apply the law as it is written as faithfully as we can. I treat all these issues in the book.

Peters: An even briefer sixty-four, actually. And a couple of those pages are indexes, so they don't really count.

IgnatiusInsight.com: You are far too modest. Have there been false or mistaken excommunications?

Peters: Undoubtedly. St. Joan of Arc comes to mind. Any time human judges make decisions about behavior, there is the possibility of mistake, excess, or flat-out dishonesty. An erroneous or contrived excommunication, however, does not bind God, as we mentioned before. He is the ultimate judge of hearts.

On the other hand, the failure to impose an excommunication can be a mistake, too. Remember, excommunication is a medicinal penalty that serves the common good of the Church. If it is deserved in a specific case, but not imposed, the goods that excommunication can serve might be left unprotected in that case. I said a minute ago that I think automatic excommunication ought to be dropped, but I also think that formal excommunication ought to be applied more frequently. Those are not inconsistent positions.

IgnatiusInsight.com: The mainstream media usually presents excommunication in terms of ideological or political differences. Why do you think that is the case?

Peters: I never read the mainstream media on religion anymore (or, come to think of it, on science, politics, modern literature, the Middle East, or anything else that is not the weather) but it sounds like the kind of mistake they would make. Excommunication is not about politics or ideology; at root, it's about sin. The mainstream media doesn't understand what sin is, so they surely aren't going to understand what's behind excommunication. Now, there are lots of examples of sinful behavior out there, but only some of them, in general the worst ones, are also crimes under canon law. Those are the kind of things that are the subject of excommunication.

IgnatiusInsight.com: Some Catholics wish that Catholic politicians who support abortion would be excommunicated immediately. Other Catholics think that excommunication of such politicians would be an attack on their individual consciences. Can you shed some light on the matter?

Peters: To those wanting the immediate excommunication of pro-abortion politicians, I have to say that canon law simply does not read that way. To make a long story short, an excommunication for abortion has to be linked to a specific abortion and, given the structure of American government and medical institutions, one simply can't link a given legislator's vote with a specific abortion within the limits of causality recognized by canon law. Now, I like to think that the words of law generally mean what they say. If we distort the words of penal canon law to the degree necessary to make legislators fall within the present terms of the abortion canon, we would do violence to the text of the law, and that's always bad; distortions in law tend to come back and haunt us in other contexts.

Of course, maybe it's time to redraft the canon law in this area, precisely to help the Church deal more directly with the grave scandal and harm being caused by pro-abortion Catholic politicians; but the law itself would need to be changed. I'm certainly open to that, but as I've said, the rule of law means that such changes must come about in accord with the law.

In the meantime, though, as I have also pointed out many times, there are most certainly immediate actions that the Church can take against pro-abortion politicians, and I'm happy to say that some bishops are doing that. I have in mind here, for example, the withholding of the Eucharist under Canon 915 from those whose conduct in government office is objectively gravely evil. Elsewhere, I have argued that Canon 1369 gives us canonical leverage against those who use their public office to spread contempt for the gift of life. I look at several of these options in the book, and people can also go my website, www.canonlaw.info.

IgnatiusInsight.com: Do Catholics have an obligation to know their rights and duties under canon law?

Peters: Yes, and you could say that's what my wider work is all about. Knowing the law, knowing one's rights and duties, is not sufficient for leading an honorable life, of course; but knowing the law makes leading the upright life easier. One knows what's expected. For too long, canon law, even though it is an incredibly important source for knowing one's rights and duties as a Catholic, was neglected. Today we are, I think, paying the price for that widespread disregard of Church law right and left. But things are slowly changing. The value of stability, the wisdom of experience, the basic commitment to dignity, all of these are waiting for us in canon law. The more people learn about it, the more they see how valuable it is, and the more they want to learn.

Peters: Growing up in the '60s and '70s, canon law was not something pew Catholics talked much about. I think I had heard the term "canon law" maybe once in my life through the whole time I was in college, and that was in Catholic schools the whole time. Earlier generations in my family went into medicine and science, or into engineering-related fields, and I considered those. But my interest in the Faith was taking hold in college, and when folks told me I had a legal turn of mind, I decided on civil law school with the idea of maybe becoming a diocesan attorney or perhaps doing political advocacy work in pro-life or related fields.

It was in law school at a secular university that I discovered canon law, quite by accident, in the course of doing legal history research on what turned out to be medieval canon law cases on contracts. I was amazed at the existence of this complete religious legal system and I asked my professor something like, Does the Catholic Church still do this? He answered Yes, and I immediately started looking into the field.

IgnatiusInsight.com: What are some of the important differences between civil law and canon law?

Peters: Your question is a bit ironic because, in fact, I was so taken with canon law that I almost quit law school. Fortunately, my dad talked me out of that, and I'm very glad he did, because I see now how the discipline of completing law school and passing a bar exam gave me some powerful analytical tools for later approaching canonical questions. The two fields are quite distinct, of course, but good law is good law, and canon law and common law have learned, and can continue to learn, much from each other. I have joked that my first year of canon law school was spent unlearning many things I learned in civil law school, but it's only a joke. I am blessed to have been able to study both.

If I had to pick one key difference between canon law and common law, first I'd try to get out of having to pick only one, but if I couldn't get out of it, I'd probably highlight the difference between a system that accords primacy to the legislator (as does canon law) and one that accords it to the judiciary (as common law basically does). But that's for another interview.

But beyond that, my main responsibilities are teaching at Sacred Heart Major Seminary in Detroit. It's an amazing place. A talented faculty, more seminarians, and increasing numbers of lay students. If you meant what are my current research areas, just now they would include a forthcoming book on indulgences, articles on euthansia and canon law, and a study of the canonical thought of John Paul II. I also think good scholars should always have a translation project on their to-do list, and I'm looking at a couple of ideas there. And I get requests for canonical analysis articles from Catholic World Report, Our Sunday Visitor, The Catholic Answer, and so on. One especially interesting project involves my service on a committee tasked with developing an American Sign Language translation of the Mass directly from the Latin, instead of relying on the English as we currently do; it's a fascinating and important project.

Peters: As Hilaire Belloc once said: I would prefer to retire and read, but my children keep screaming for caviar and diamonds.

Dr. Peters appeared as a guest last night on Johnette Benkovic's program. Fascinating disucssion with great insight into Canon Law.

. . . especially interesting project involves my service on a committee tasked with developing an American Sign Language translation of the Mass directly from the Latin . . .

I'll say that sounds interesting!

Part of why people don’t read canon law is that, even in translation, it’s impossible to interpret for most people.

Care to translate this?

“If a party has contracted an invalid marriage with another, or if they have lived in public and notorious concubinage, the matrimonial impediment exists between each of them and the relations of the other to the second degree in the direct line.”

Suppose a couple wants to confirm whether it’s licit to live together chastely for a few weeks before their marriage. Is that statement really of any help at all?

That’s not just an abstract example... I know a couple whose priest said that, given their circumstances, it was OK. They decided to look up canon law because friends had them nervous that living together before marriage (even if for only a brief time) could invalidate their marriage. Now, the bridegroom is afraid their pastor may be granting leeway that he has no authority to grant, but they’ve already moved in together, and the wedding is only two weeks away.

So what does the church mean by “concubinage”? It’s hard to figure that she’s his “concubine,” but I tried to help them research, and that’s the only passage I could find relating to “cohabitation” at all.

I would suggest that you contact Dr. Edward Peters. His email address is available at the link posted above.

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