The furore caused by Misericordia et Misera is a damning indictment of those surrounding the Pope

By Ed Condon at theimage Catholic Herald:

Pope Francis is not an expert in canon law. I do not think His Holiness would mind me putting it that bluntly. In fact I rather suspect that, given his personal style, he would happily agree. It is far from heresy to point out that a pope might not be a born canonical expert, anymore than it would be unreasonable to suggest that Donald Trump has no particular natural expertise in American constitutional law.

The Pope wears a number of different hats (three, if you take a look at the papal coat of arms) and he is sometimes speaking as a priest, sometimes a teacher, and sometimes as the head of a coherent legal society. The roles are not distinct in how they are exercised, or at least they shouldn’t be, and what he does, or wants to do, as one necessarily has a direct impact on the other two. It is the job of those around the Pope to take his instructions and turn them into a statement that is coherent pastorally, legally, and theologically; that’s the proper function of all those well-dressed monsigniori gliding around the Vatican. Unfortunately they let the side down badly this week and the results have been totally unnecessary confusion.

Yesterday Pope Francis released the apostolic letter Misericordia et Misera. In it he extended the special provision he made for the Year of Mercy which granted every priest the faculty to lift the censure for the grave crime of abortion. That at least was what it should have said. In fact Misericordia et Misera stated, as did the original letter for the Year of Mercy, that the Pope was granting all priests “the faculty to absolve those who have committed the sin of procured abortion”.

Before trying to dispel the confusion which has, predictably and unnecessarily, grown up around it, I want to make one thing perfectly clear: the language of this statement is wrong – simply, avoidably and basically wrong. And while that is enormously frustrating, it is not the end of the world. It is, however, a damning indictment of those around the Pope who seem either unable or unwilling to ensure even a minimum of theological and canonical coherence in some of what is presented for the papal signature.

The Curia’s entire purpose is to assist the Pope in putting what he wants into practice, that means when he says “I want every priest to be able to deal with the situation of abortion for the Year of Mercy and beyond”, his minions are supposed to swing into action and prepare the necessary text to reflect what is going to actually happen. This is supposed to go somewhat beyond simply pressing *copy*, *paste*, *print* when they get the original memo from the Pope.

While the meaning of what the Pope wrote is pretty easy to guess if you’re a canon lawyer, it’s legal nonsense in and of itself. So when secular journalists read it and, absent any context for the subject, take the letter at face value, they can be forgiven for (wrongly) assuming that the Pope has changed something regarding the Church’s teaching on the sin of abortion.

Actually, even before the Year of Mercy, 99 per cent of priests already had the power to “absolve” the “sin” of abortion. Any priest who has the power to sacramentally forgive sins has the power to forgive all sins (the one exception to this is a priest cannot absolve his accomplice in a sim against the sixth commandment). The only priests who could not “forgive” the “sin” of abortion already were those who have had their faculty to hear confessions revoked and thus can’t forgive any sins, except in danger of death.

How the faculty to hear confessions and forgive sins works, in canon law, is like this: a priest gets the “power” to forgive sins through his ordination, but to validly use this power he needs the faculty to exercise it (c. 966 §1). He gets this faculty from the law itself in some circumstances, like in danger of death for the penitent (c. 976), but the normal process is for him to be given the faculty by his bishop for use in the diocese (c. 969 §1). Once he has the faculty from his bishop to hear confessions and forgive sins in his diocese, the law then extends that faculty to apply anywhere in the world (c. 967 §2). In short: if a priest has the faculty to hear confessions and absolve any sins, he can absolve all sins, and if he has the faculty to do this somewhere he can do it anywhere.

This means that the actual effect of the Pope’s concession of the “faculty” to absolve the “sin” of abortion to all priests is to grant them a faculty which 99 per cent of them already have. The one-percenters who don’t have the faculty are those who have not already been given it by their bishop, or have had it revoked; those suspended from ministry, for example. Now it is pretty obvious that this is not what the Pope meant, even if it is what he technically said. So what did he mean to say?

What was supposed to be announced, and what would have been announced had his curial assistants done their job, was the concession of the “faculty” to “remit the censure” for the “delict/crime” of abortion.

While every canonical crime is a sin, not every sin is also a canonical crime, though some of the most serious are. Abortion is, for sure, a grave sin. It is also a delict (c. 1398) which carries the penalty of excommunication. To be clear: there is no such thing as a “reserved sin”, but there are “reserved crimes”. A reserved crime is one where only a person with particular authority can lift the penalty. In the case of abortion, only the ordinary of the territory (the diocesan bishop, for all intents and purposes) can lift the censure, in this case of excommunication. It is common practice for some bishops to give their priests this faculty by delegation, along with the faculty to hear confessions. But, since the faculty to lift the penalty is not extended by the law, as it is with absolving the sin, to cover everywhere, but is limited to the territory of the ordinary, the power to lift the censure does not travel with the priest, even if he has it at home.

Putting it as simply as possible: every priest has the power to forgive any sin, by virtue of his ordination; almost every priest (excepting those denied it for good reason) gets the faculty to exercise this power from his bishop, once he has this power in his home diocese he can use it anywhere; if the bishop also gives him the faculty to lift censures for certain reserved delicts (like abortion) he can only use this when he is physically in his home diocese.

What the Pope is actually doing, and I hope this will be clarified in the not too distant future, is giving all priests (excluding, let’s hope, the suspended ones) the faculty to lift the excommunication, always and everywhere and on their own. He did this first for the the Year of Mercy and is now making it permanent.

The Pope has in no way downgraded or mitigated the severity of the sin of abortion, and effectively ending the reservation of the delict is hardly the disciplinary earthquake some people are assuming it is.

Conversely, neither does the Pope’s letter imply that women who went to Confession and received absolution for the sin of abortion before the Year of Mercy did so invalidly – a tragically avoidable fear which has touched more than a few women today.

While canon law seems very out of fashion in some quarters at the moment, this situation highlights it’s essential service of clarity and precision for the help of the faithful. Those around the Pope would serve him and the Church better by remembering this.

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3 Responses to The furore caused by Misericordia et Misera is a damning indictment of those surrounding the Pope

  1. mmvc says:

    It is, however, a damning indictment of those around the Pope who seem either unable or unwilling to ensure even a minimum of theological and canonical coherence in some of what is presented for the papal signature.

    Sweet of Ed to completely let the pope off the hook about yet another mess, but this also begs the question: why does PF surround himself with a bunch of incompetent or ‘unwilling’ people and sack the likes of Cardinal Burke, canon lawyer par excellence?

  2. Toad says:

    “The furore caused by Misericordia et Misera is a damning indictment of those surrounding the Pope…”
    No it isn’t. Typical sloppy thinking. It is only an indictment if you want it to be one.
    It’s like everything else. Everything is a matter of opinion, nothing more.
    Sure, you can claim that this, or that, is “God’s word,” but it all depends in no more than prejudice. When a Mormon, Methodist, or Muslim, tells us it’s God’s word – we tell him to go forth and multiply (mote or less). And we are right to do so.
    If a Catholic says the same thing, it”s Gospel Truth.
    Right.

  3. Tom Fisher says:

    Typical sloppy thinking. It is only an indictment if you want it to be one.
    It’s like everything else. Everything is a matter of opinion, nothing more.
    Sure, you can claim that this, or that, is “God’s word,”…

    Since it is ground that Toad feels much more comfortable on, let’s put this in the language of 20th century philosophy: it is an indictment because of the context in which it must be interpreted, it is an indictment when measured against the value system it took place in. Blah blah blah… Everything may well be prejudice and opinion, but everything also has a context. And in context the author of the post was not guilty of sloppy thinking

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