« Legal Relevance of Canon Law »
by: Rik Torfs
1. Putting the problematic and desire for reform in perspective
Canon law is not only a matter of well formulated legislation, also its concrete implementation is of paramount importance. This leads me to five crucial questions that were often implicitly or explicitly present in the research and writing of former Strasbourg professor Jean Werckmeister (1947-2011), a leading canon lawyer of the last decades.
Jean Werckmeister discussed in depth the issue concerning the scope and significance of canon 915 of the CIC 1983. This canon is formulated as follows: “Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest great sin are not to be admitted to Holy Communion.”
On this issue Jean Werckmeister wrote two articles in the Revue de droit canonique, the first one in 1998, the second one in 2001. In between the Pontifical Council for Legislative Texts issued a declaration concerning the admission to Holy Communion of faithful who are divorced and remarried (June 24, 2000). Probably, without the first contribution by Werckmeister, it would not have been issued. And the second article by the French canon lawyer is a reaction to the declaration.
The differences in viewpoint between Werckmeister and the Pontifical Council reveal five fundamental topics of debate within current canon law. Moreover, they are highly relevant for the future.
 Werckmeister, J., “L’accès des divorcés remariés aux sacrements”, in Revue de droit canonique 48/1, 1998, 59-79; Werckmeister, J., “L’admission des divorcés remariés aux sacrements et l’interprétation du can. 915”, in Revue de droit canonique 51/2, 2001, 373-399.
 Pontifical Council for Legislative Texts, Declaration of June 24, 2000: II. Concerning the Admission to Holy Communion of Faithful Who are Divorced and Remarried (accessed May 2016).
2. Basic topics of debate calling for reform of the canon law
2.1. Role of Mens legislatoris in the interpretation of legal texts
The first topic having relevance for the future refers to the role and importance attributed to the mens legislatoris in what regards the interpretation of a legal text. The question that is raised is, “Is the intention of the legislator more important than the wording of the law?”
How should a legal text be interpreted? In his 2001 contribution Jean Werckmeister clearly takes position. He disagrees with the famous Belgian canon lawyer Gommarus Michiels according to whom the intention of the legislator, the mens legislatoris, prevails on the text of the law as it is formulated: “Verba sunt intelligenda, non secundum quod sonant, sed secundum mentem proferentis.” This means that a legislator, who in the canonical system is very often also a judge and a head of the executive power, remains the true master of his text. In case its content does not please him at the moment of implementation, he just can invoke his hidden yet badly expressed intention. It goes without saying that the viewpoint formulated by Michiels is an implicit recognition of the supremacy of theology and ecclesial power over legal orthodoxy.
 Michiels, G. , Normae Generales Juris Canonici. Commentarius Libri I Codicis Juris Canonici, 2nd ed., Vol 1, Paris, Typis Societatis S. Joannis Evangelistae, 1949, 475.
Werckmeister follows another tradition, expressed by various authors including Bouscaren and Piñero. They defend the opinion that, in case the text of a law is clear, no other forms of interpretation are needed. This is true for parallel texts, the mens legislatoris and the epikeia. A similar position used to be held by Francisco Suárez (1548-1617). The famous Spanish philosopher and theologian argued that the legislator lost his power on the law immediately after the promulgation of the latter. He had his chance before and will have chances again later, as he remains competent for changing the law.
Meanwhile, it is important that the mind of the legislator only plays a part when the text is unclear. Werckmeister courageously defends this position as an advocate of limpid legal norms, not darkened by theological or pastoral considerations. The primacy of the text is an absolute condition for the future credibility of canon law in a society underpinned by the rule of law. In that regard correct interpretation and, if necessary, an even clearer formulation of canon 17 of the present Code of Canon Law is important: “Ecclesiastic laws must be understood in accord with the proper meaning of the words and considered in their text and context. If the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law and to the mind of the legislator.”
2.2. Relationship between doctrinal statements and legal norms
The second topic of debate having relevance for the future touches on the question: “What is the exact relationship between doctrinal statements and legal norms?”
In his 2001 contribution, Jean Werckmeister enters into discussion with a text by Mgr John J. Myers, Peoria (Illinois) concerning the admission to the Eucharist of divorced and remarried faithful. Myers holds that a refusal of the communion is a result of a text by St Paul (Eph. 5, 25-30) who identifies the love of the spouses with the love of Christ for his Church. Hence, the possible admission to the Eucharist of divorced and remarried people touches upon crucial questions including the presence of Christ in the Eucharist, the indissolubility of marriage, the unity of the Church and the communion of the faithful with Christ in his Church.
Werckmeister criticizes the notion of identification as used by Myers. What St Paul describes is rather a matter of comparison or analogy. Even worse in the eyes of Werckmeister, and rightly so, is the further legal reasoning offered by Myers. He writes that his ‘identification’-image is clearly supported by the Catechism of the catholic church of 1992. Still according to Myers this Catechism is superior to canon law and has a direct legislative value as it was promulgated on 11 October 1992 by the Apostolic Constitution Fidei depositum. An Apostolic Constitution clearly is a legislative text, Myers continues. Consequently the Catechism offers an authentic interpretation, in the sense of canon 16, of canon 915. Werckmeister disagrees with that viewpoint and formulates two important remarks (a) the apostolic constitution Fidei depositum certainly is a legislative text, yet it just promulgates the Catechism. This does not mean that the Catechism itself is a legislative text; (b) the Catechism cannot be seen as a way of interpretation of the code.
The reaction by Jean Werckmeister is important for two reasons. Firstly, he rejects the easy confusion between canon law norms and theological principles, always leading to fostering the dominance of the latter. Secondly, he openly criticizes a bishop, which was certainly not an easy thing to do for a canonist in the days of the pontificate of John Paul II. For instance, at the annual conference of the Canon Law Society of America, bishops are often keynote speakers, not because they are outstanding canon lawyers, but because they are bishops. Being a bishop is (almost?) seen as a canonical argument.
2.3. Relevance of forum internum in canonical norms
Keeping the hope of future reform of canonical law alive, it is eminently reasonable to ask the question, “Is (should) there (be) any place for the forum internum in canonical norms?” This question is being raised as object of our third topic of debate thanks to the confusion created by canon 915 between the forum internum and the forum externum. Indeed, a grave sin is composed of two elements, an objective one and a subjective one, the latter being the result of the intentions and the free will of the potential sinner. According to the (Pontifical Council’s) declaration of 2000, there are three required conditions determining the notion of “obstinately persisting in manifest grave sin”. The three required conditions are (a) grave sin understood objectively, being that the minister of Communion would not be able to judge from subjective imputability; (b) obstinate persistence which means the existence of an objective situation of sin that endures in time and which the will of the individual member of the faithful does not bring to an end, no other requirements (attitude of defiance, prior warning, etc.) being necessary to establish the fundamental gravity of the situation in the Church; (c) the manifest character of the situation of grave habitual sin.
 Pontifical Council for Legislative Texts, Declaration of June 24, 2000.
However, the list of those three requirements, though solid at first glance, is far from being satisfactory. The grave sin itself remains elusive; only its objective component, unlike its subjective counterpart, can be assessed by another person than the potential sinner himself. It is very well possible that the legally established grave sin is, theologically speaking, not a sin at all.
The relevance of the forum internum in canon law is as dangerous as the direct relevance of ethics in both canon and secular law. Indeed, legally speaking, the relevance of ethics is a disaster. It endangers legal security, which is a supreme form of justice. A lawyer should be humble enough not to pronounce himself on internal motives and moral considerations that he cannot know, as any human being partly remains a secret to all others.
2.4. Reviewing of the place accorded to the notion of scandal in canonical system
The fourth topic of debate, having future relevance, surrounds scandals. It is high time we got the place assigned to the notion of scandal in the canonical system reviewed. What is the relevance of the notion of scandal in a canonical system focusing on truth?
The notion of scandal is a notion with a long tradition in canon law. Its history has not always been glorious. The notion of scandal suggests that, even in a context where both truth and existential considerations prevail, also rumors, gossip and emotional feelings entail some legitimate legal consequences.
Yet there are two possible ways in dealing with scandal when it comes to the interpretation of canon 915. The first way seems to be the more logical one: the faithful are scandalized (or are not) because the communion is refused to a divorced and remarried person they know well and they esteem highly. In this hypothesis, scandal is based upon real, concrete feelings by identifiable people or by a specific community.
Yet, according to the declaration of 2000, another form of scandal is at stake: “In the concrete case of the admission to Holy Communion of faithful who are divorced and remarried, the scandal, understood as an action that prompts others toward wrongdoing, affects at the same time the sacrament of the Eucharist and the indissolubility of marriage. That scandal exists even if such behavior, unfortunately, no longer arouses surprise. In fact it is precisely with respect to the deformation of the conscience that it becomes more necessary for Pastors to act with as much patience as firmness as a protection of the sanctity of the sacraments and for the correct formation of the faithful.”
 Pontifical Council for Legislative Texts, Declaration of June 24, 2000, §1.
Obviously the notion of scandal is no longer connected to the concrete feeling of the faithful or to an observation of visible reality. It becomes a theoretical and philosophical notion that should always be present even if, empirically speaking, it is not. This is the true triumph of a deductive approach.
2.5. Choosing between the inductive and deductive approaches to canon law
Can one argue that the main choice to make in canon law is the answer to the question whether an inductive or a deductive approach is preferable?
What precedes, leads to the final and essential question asked by Jean Werckmeister in his 2001 article. Should canon law start form a deductive or from an inductive approach? Werckmeister openly prefers the inductive approach. According to him, canon law, as any other legal system, is much more flexible than abstract ideas may suggest at first glance. Real law tries to connect theory and practice. Consequently it has to take into account both principles and contingencies. Pastors and judges, confronted with concrete cases often end up with new and liberating solutions. Canon law has evolved a lot all over its history. It continues to adapt itself and it is implemented in various different ways.
The five debate topics/points described above show that canon law is not just and even not mainly a matter of translating theology into legal principles and norms. The way law is concretely implemented and taken care of is at least equally important. It is also the visit card of the Roman Catholic Church to the external world. For that reason, while reflecting on the future of canon law, the methodology used for the implementation of norms should be focused on very strongly. Canon law cannot survive with the abstract beauty of theologically underpinned legal norms alone.
Rik Torfs was born in Turnhout, Belgium, on 16 October 1956. Since 2013 he is the Rector of KU Leuven on1 August 2013. He successively held the posts of Assistant of Civil Law at the Faculty of Law (1981-1982) and Assistant of Canon Law at the Extraordinary Faculty of Canon Law (1982-1988), both at KU Leuven. In 1982, he was appointed Lecturer of Canon Law and in 1996, Full Professor of Canon Law at KU Leuven. He has been visiting professor at several universities, including the Universities of Paris, Strasburg, Stellenbosch and Nijmegen. He is the former chair and director of the European Consortium for Church and State Research. He has also given presentations and organized international conferences and colloquia in more than forty countries across five continents.