Pontifical Council for Legislative Texts, Declaration on the Proper Application of Canon 1382 of the Code of Canon Law, 6 June 2011.
Over the last ten years various episcopal ordinations without the pontifical mandate have taken place in different countries. These rupture communion with the Roman Pontiff and violate ecclesiastical discipline in a grave manner. As Vatican Council II recalls, if the Successor of Peter refuses or denies apostolic communion, bishops cannot be assigned to the episcopal office (see Lumen gentium, 24).
Since this is a question so important and delicate, the Holy See has always paid great attention to it, and will work in all ways to prevent illegitimate episcopal consecrations from taking place.
In this context, the Pontifical Council for Legislative Texts has made a thorough study of the problem, together with the correct application of canon 1382 of the Code of Canon Law, with particular reference to the canonical responsibilities of those involved in an episcopal consecration without the necessary apostolic mandate.
The result of this study is the Declaration which is published below.
1. The Pontifical Council for Legislative Texts has been asked to clarify some details regarding the correct application of CIC canon1382, especially in relation with the canonical responsibilities of the subjects involved in an episcopal ordination without the necessary apostolic mandate.
The question, strictly speaking, does not raise questions of law as such, but only requires some insights useful for adequate knowledge of the most salient points of the penal norm and for the manner in which it ought to be considered applicable to concrete cases, taking into account the personal circumstances of the subjects who take part in committing the delict.
2. As is known, canon 1321 defines a delict as the external violation of a law or precept, gravely imputable by reason of malice or negligence. The canon adds that, when there has been an external violation, imputability is presumed unless it appears otherwise (c. 1321 §3). For the offense to exist, it is sufficient that the offender knows that he is violating a canonical law; it is not necessary that he knows that a penalty is attached to the canonical law.
CIC canon 1382 punishes with a latae sententiae excommunication reserved to the Apostolic See the bishop who, without apostolic mandate, consecrates someone as a bishop and also those who receive episcopal consecration in this fashion. This delict violates Catholic teaching which is confirmed, inter alia, by the dogmatic constitution Lumen gentium, nn. 22 and 24, and by the decree Christus Dominus, n. 20, and which is included in CIC canon 377 §1: “The Supreme Pontiff freely appoints bishops or confirms those legitimately elected,” and in CIC canon 1013: “No bishop is permitted to consecrate anyone a bishop unless it is first evident that there is a pontifical mandate.”
First of all, CIC canon 1382 is a disciplinary norm of the Church which, as CIC canon 11 indicates, applies only to those who have been baptized in the Catholic Church or to those who have been received into it. Moreover, it corresponds to the offense identified in canon 1459 §1 of the Code of Canons of the Eastern Churches, although in the penal tradition of these Churches there exist no latae sententiae penalties, so the same penalty is inflicted ferendae sententiae.
3. The delict punished by CIC canon 1382 is committed both by the bishop who consecrates and by the cleric who is consecrated. Moreover, inasmuch as episcopal consecration is a rite which usually involves the participation of several ministers, those who assume the task of co-consecrators by the imposition of hands and the recitation of the consecratory prayer (see Caeremoniale episcoporum, nn. 582 and 584) are co-authors of the offense and are equally subject to the penal sanction. This interpretation has also been confirmed by the tradition of the Church and its recent practice.
4. As regards the punishment of the delict, however, the penalty of excommunication envisioned in CIC canon 1382 is subject to the common conditions required by canon law in order to occur effectively and certainly a latae sententiae penalty. As is well known, besides the common penal ferendae sententiae sanctions which are inflicted by a legitimate authority by means of a sentence or a decree at the conclusion of a corresponding penal procedure, in the canonical system there exist also so-called latae sententiae penalties which do not depend on an external judge who imposes them but which depend only on the committing of the delict, without prejudice to what is prescribed in canon 1324 §3. This canon exempts from a specific latae sententiae penalty if there are verified circumstances which, in accord with the norm of §1 of the same canon, though not eliminating the penalty as such, mitigate it. As a matter of fact, canon 1324 §3 specifies that the offender does not incur the latae sententiae penalty if one of the circumstances listed in canon 1324 §1 exists.
Therefore, in the case of an episcopal consecration without the apostolic mandate, each subject is to be considered individually and according to his own personal circumstances as regards his having incurred the penalty of latae sententiae excommunication reserved to the Holy See. These personal circumstances can be very diverse and, in some instances, they can constitute the extenuating circumstances envisioned by the law. In this regard, CIC canon 1324 §1 indicates that, for example, the heat of passion, being a minor, grave fear even if only relatively such, necessity, unjust provocation, or ignorance of the canonical penalty, are extenuating circumstances which exclude the latae sententiae penalty in the forms identified by the law.
Few of these circumstances can be configured in the offense of consecration without a mandate. There is, however, a set of extenuating circumstances listed in CIC canon 1324 §1, 5º which history has revealed to be compatible with offenses of this nature: when the person, who commits the delict as the one ordained or the one being ordained, is “coerced by grave fear, even if only relative, or by necessity or by grave inconvenience.” Therefore, in the concrete case of an episcopal consecration without a mandate, the extenuating circumstances of grave fear or grave inconvenience (or the exempting circumstance of physical violence) must be verified as regards each of the subjects who take part in the rite: the consecrating ministers and the clerics consecrated. Each of these knows in his heart the degree of his personal involvement, and a correct conscience will indicate to each if he has incurred a latae sententiae penalty.
5. With regard to the canonical responsibilities of the subjects involved in an episcopal consecration without the necessary apostolic mandate, however, the following must be added:
The external committing of an act punished by CIC canon 1382 spontaneously provokes among the faithful reactions, even scandal and confusion, which in no manner can be underestimated and which postulate – in the bishops involved – the need to recover their authority through signs of communion and of penance which can be appreciated by all and without which the pastoral governance of the bishop “could be received with difficulty by the People of God as a manifestation of the active presence of Christ in his Church” (Pastores gregis, n. 43). In fact, as the Second Vatican Council teaches, bishops govern the particular Churches entrusted to them “by their counsel, exhortation, and example” (Dogmatic Constitution Lumen gentium, n. 27; see CIC canon 387).
Furthermore, one recalls that CIC canon 1331 §1 indicates that an excommunicated person is prohibited: 1) to take part as a minister in the celebration of the Eucharist or in any other ceremony of public worship; 2) to celebrate the sacraments and sacramentals, and to receive any sacrament; 3) to exercise ecclesiastical ministerial functions and to place acts of governance. These prohibitions take effect ipso iure from the very moment when a latae sententiae penalty is incurred. Therefore, there is no need for any authority to intervene to impose these prohibitions on the subject: knowledge of the delict itself is sufficient for the one who has incurred the sanction to be bound before God to abstain from such acts, under pain of committing an act morally illicit and therefore sacrilegious. Nevertheless, acts deriving from the power of order and done in these sacrilegious circumstances would still be valid.
6. As is obvious, the preceding does not exclude the possibility that, in cases of episcopal ordination without pontifical mandate, the Holy See can find itself needing to inflict censures directly on the subject, for example, when, from his subsequent behavior or from his reluctance to provide the necessary explanations about his personal degree of participation in the delict, there emerges an attitude incompatible with the requirements of communion. Furthermore, having obtained new and certain information, the same Holy See could even find it necessary to declare the latae sententiae excommunication, or to impose other sanctions or penances, if this becomes necessary in order to repair the scandal, to dissipate the confusion of the faithful, or, more generally, to safeguard ecclesiastical discipline (see c. 1341).
The penalty of the latae sententiae excommunication established by canon 1382 is a censure reserved to the Holy See. As a censure, it is a so-called “medicinal” penalty because its purpose is to move the offender to repent: when he has demonstrated that he is sincerely repentant, he acquires the right [diritto] to be absolved from the excommunication. Moreover, since it is reserved to the Holy See, the repentant offender can approach only the Holy See in order to receive absolution from the excommunication and to be reconciled with the Church.
From the Vatican, 6 June 2011
Juan Ignacio Arrieta
Pontifical Council for Legislative Texts, Declaration on the Proper Application of Canon 1382 of the Code of Canon Law, 6 June 2011, Communicationes 43 (2011) 30-33. English translation by John A. Renken.