How Can You Tell a Real Law from an Illegal Decree?

Q: In this period of such confusion in the Church, you sometimes point to the law as the final answer on the subject.  Other times, though, you have criticized a law as being unjust and said that it must be disobeyed or at least ignored.

I’m not disagreeing with your reasoning, but could you give some general pointers on how to identify a law as “unjust,” and how to know when we ought to challenge or disregard it? –Richie

A: It’s a great question!  Richie is certainly right about this being a period of confusion in the Church, all around the world.  In particular, this past year has seen historically unprecedented (see “Did the Spanish Flu of 1918 Create a Precedent for Closing Churches and Cancelling Masses Today?” and “Are We Under Interdict? Sanctions, Part V” for more on this) violations of church law by Catholic clergy at practically every hierarchical level “because of the virus”—and  mind-bending violations of the rights of the faithful who depend on those clergy for Mass and the sacraments, which are vital to their spiritual wellbeing. We’ve seen heart-breaking examples of this in “Do Bishops Have the Authority to Cancel Masses Completely?” “Our Priest Cancelled Our Wedding, So Who Else Can Validly Marry Us?” and “Refusing a Funeral Mass, Because of the Virus,” to cite only a few.

As a rule, however, these legal violations have been couched in terms that suggest that they themselves constitute laws which thus have to be obeyed—something which (as was discussed at length in “Can We Be Required to Receive Communion in the Hand, Because of the Virus?” among others) is decidedly not the case. Words uttered or written by Catholic clergy aren’t necessarily “laws,” no matter how authoritative they may sound.  But at the same time, many clerics do indeed have the power to establish laws, which therefore must be followed by those subject to them.  How can a Catholic tell the difference?

There’s no denying that in this chaotic and bewildering era, average Catholics frequently can’t figure out whether what they’re being told by church officials is legitimate or not—so they aren’t sure if they should protest or accept it.  This is hardly their fault: the faithful should, by definition, be able to depend on their parish clergy and diocesan bishop to give them the truth, out of a mutual concern for the salvation of their souls!  Your typical lay-Catholic hasn’t spend years studying theology or canon law; that is primarily the responsibility of their clergy.  Interestingly, many of these typical lay-Catholics nonetheless have, as it turns out, an accurate “gut feel” that what they’re hearing from church officials isn’t theologically or legally sound.  There’s a good reason for that, as we’ll see in a moment.

Let’s take a look at the definition of law which was given to the world by St. Thomas Aquinas nearly 800 years ago.  We’ve looked at Aquinas’ teachings many times before in this space, which makes sense since canon law follows Catholic theology, and Aquinas was arguably the greatest theologian the Catholic Church has ever produced.  The voluminous writings of Thomas Aquinas are rightly referenced even today as the authoritative word on many theological topics—and his discussion of the nature and purpose of law is no exception.  In his Summa Theologica, Aquinas spends many pages talking about the law, but his basic definition of it is usually condensed like this:

Law is an ordinance of right reason, ordained for the common good, and promulgated by one who has the care of the community. (I-II, q. 90, aa. 1-4)

If you find this pretty abstract, you’re right.  Thomas Aquinas was theorizing about laws in general, and so his concepts are applicable to every type of law, not just the laws of the Church or the laws of the era or region in which he himself lived.  We can take this definition apart and analyze its components; and when we apply them to concrete laws and situations with which we’re familiar, its accuracy and also its usefulness should become evident.

1) Law is an ordinance of right reason.

law Saint Thomas Aquinas Plato Aristotle Gozzoli

Benozzo Gozzoli, St. Thomas Aquinas Between Plato and Aristotle, 1471, Musée du Louvre, Paris

The importance of rational thinking is central to the Thomistic worldview.  Aquinas raised the ire of many of his 13th-century Catholic professor-colleagues by asserting that when the ancient (and pagan!) Greeks used their reason to draw conclusions about The Way The World Works and The Right Way To Live, they gave the world a philosophical blueprint that can be used by Catholics too.  It was Thomas Aquinas who stated unequivocally that faith and reason are fundamentally compatible—or in other words, there is nothing irrational about believing the Catholic faith.  Thus it’s no surprise that he would also tell us that laws must be reasonable.  After all, laws should promote justice, which is one of the four Cardinal Virtues set out first by the ancient Greeks, and later embraced by Christianity (CCC 1805-1809; see also here).

In the Code of Canon Law there are plenty of examples of laws which are just plain common sense (or in other words, reasonable).  We saw one good example in “Canon Law and Non-Infant Baptism,” involving the baptism of a child under the age of seven.  Canon 97.2 states that such a child is called an “infant” and considered incapable of personal responsibility—which is why parents/guardians have the right to decide for them whether they will be baptized or not (cf. c. 867.1).  It’s only logical that a little child—who is, by definition, unable to understand what baptism is all about—is naturally unable to make that decision for himself!  Thus canons 97.2 and 867.1 are entirely reasonable.

2) Law is ordained for the common good.

Since virtues like justice are to be practiced by all of us, no matter our age, gender, nationality, wealth or educational level, laws likewise are applicable to all and should be of benefit to society as a whole.  That’s why laws mustn’t be created solely for the benefit of one person or group, to the detriment of another.  History is filled with instances where kings or other legislators passed unjust laws designed to protect or profit their cronies and/or themselves, while simultaneously harming the general populace—and this is the sort of bad law which Aquinas would argue isn’t really a law at all.

Again, there are many canons in the code which of their very nature indicate a concern for the spiritual wellbeing of everyone, not just a select group.  To cite only one example, in “Stipends and Sacraments” we saw that in order to support the clergy as well as the operation of their parish, the faithful are generally expected to give a monetary offering for the celebration of of sacraments and sacramentals, including not only “ordinary” Masses but also baptisms, funerals, and weddings (cf. cc. 952 and 1264 n. 2).  But when poor Catholics are unable to pay the standard stipends, canon 848 explicitly states that they are not to be deprived of the help of the sacraments by reason of poverty.  This clear, unequivocal exception ensures that Mass and the sacraments are to be provided to all the faithful who request them—not just those Catholics who can afford them.  Clearly these canons (and the Church’s general position on this subject) manifest concern for the common good.

3)  Law must be promulgated.

If laws are supposed to be reasonable, and they’re supposed to be followed by those who are subject to them, then it only makes sense that laws cannot be secret.  People who are expected to obey the laws first have to be able to understand what they are!  Punishing people for violating a law, when the legislator had never told them of the law’s existence, would obviously be unjust as well as irrational.

Canon 7 is simply a restatement of this basic principle, that a law comes into existence when it is promulgated—meaning that if it hasn’t been promulgated, then that law isn’t a law!  More specific examples of this concept can be seen clearly in a number of different penal canons, such as canon 1313.1: if a Catholic carries out an action which at that very moment isn’t a crime under canon law, but the law is later changed to make that action illegal … the Catholic cannot be held to have committed a crime.  That’s because, of course, we can only judge our actions against laws which exist at the time we act, not against laws which might exist in the future but have not been promulgated yet.

4) Law must be made by someone entrusted with the care of the community.

Not everyone can make laws and expect others to follow them.  This job is the responsibility of legislators, who have been given the authority to enact laws which are binding on others.  In general, it’s important to know not only what the laws are, but who made them, and this isn’t unique to church law.  Well trained members of the military of any country are familiar with the concept of an “illegal order,” which is basically defined as a command issued by someone who has no authority to do so—and must therefore be disregarded.  Similarly, if someone makes a “law” but has no legislative power; or perhaps has the power to make laws in certain areas but not in others; or has legislative authority over certain people but not over you … then it’s not reasonable to assume that you have to obey.

This particular legal concept is so fundamental that it can be seen innumerable times throughout the Code of Canon Law.  Various canons explain who exactly has legislative power, such as canon 391, which asserts that diocesan bishops have legislative power within their dioceses.  Other canons describe what a person with legislative power can actually do.  Canon 135.2, for example, gives us the basics, and adds that a lower legislator cannot validly issue a law contrary to higher law.  More specific info is provided by canon 1315.1, which notes that someone with legislative power can also make penal laws.  It goes without saying in each case, that when a canon tells us that such-and-such person has this or that kind of legislative power, that canon is indirectly telling us that there are other persons who do not have that power.

Now that we’ve seen what the creation of sound laws entails, let’s return to Richie’s original question.  It should be relatively easy at this point to take a look back through the various issues that have arisen in the Church in the past year “because of the virus,” many of which were discussed here in this space … and appreciate that many of the declarations of various bishops and priests around the world who purportedly legislated “for our good” weren’t legitimate laws at all.  There have been so many illegal decrees issued in this regard that it’s impossible to address them all here—in fact, it might be a good topic for a canon-law student’s doctoral dissertation (students, take note!), which would run for hundreds of pages.  But in short, a whole host of “laws” have been decreed in the recent past which don’t meet the criteria set out by Thomas Aquinas.

To begin with, declarations that Masses will be cancelled (discussed in the abovementioned “Do Bishops Have the Authority to Cancel Masses Completely?” as well as “Can Priests Cancel Public Masses and Say a Private Mass Instead?”), that the faithful can’t receive the sacraments for fear of contagion even if they take appropriate precautions (as seen in “What Happens When the Clergy Refuse to Baptize, Because of the Virus?” in addition to many of the articles already cited above), that funeral Masses cannot be celebrated even in an empty church by a solitary priest (“Refusing  a Funeral Mass, Because of the Virus”), and other similar refusals of clergy to provide the faithful with access to the spiritual goods of the Church, have rightly been protested by the laity—who have instinctively and accurately realized that for members of the Catholic faith, none of this is reasonable.  After all, since the Church has always taught that the salvation of our immortal souls is infinitely more important than the health of our mortal bodies, it only makes sense that Catholic priests should be willing to move heaven and earth in order to provide the faithful with access to Mass and the sacraments that they need!  Thomas Aquinas seems to have been a very quiet, reserved sort of person, but one can imagine him howling in indignation at such irrational rulings by authority figures in the Church.

Secondly, there have likewise been recent instances where Catholic clergy have issued decrees which benefitted certain members of the faithful while directly excluding others.  In some dioceses, for example, bishops actually announced that Catholics over the age of 65 or 70 were not permitted to come to Mass, “for their own good”!  Incredibly, these bishops suddenly decided not merely that they are medical experts (which would be absurd enough), but that they know better than a person’s own doctor what is medically best for him/her, based solely on age.  Obviously such declarations weren’t focused on the spiritual wellbeing of all the faithful; they only benefit those who happened to be younger, as if being elderly were some sort of moral failing that merited ecclesiastical punishment.  Thus they both ignored the common good and were manifestly unreasonable at the same time.

Along comparable lines, in regions where civil authorities placed limits on the size of a church congregation, some parish priests declared that only those parishioners who regularly donated sizeable amounts to the parish would be allowed to attend Mass.  (Yes, this really happened.)  Needless to say, punishing certain members of the faithful for being poor—which is hardly a spiritual flaw—fails utterly to evince concern for the common good.

Regarding the third point, far too many clergy around the world have randomly decided on the spur of the moment that henceforth, this will be permitted and that will not, “because of the virus.”  Many parishioners have therefore arrived at church and discovered that they wouldn’t be allowed to enter without a mask (see “Can We Be Required to Wear Masks at Mass?” for more on this topic), or that they couldn’t receive Communion on the tongue (discussed in “Can We Be Required to Receive Communion in the Hand, Because of the Virus?” already mentioned above), without any advanced written notice or public declaration of these new “rules.”  It should be evident that these arbitrary, on-the-spot decisions do not constitute “laws.”

And in many of these cases, the clergy who have made these random rules had no authority to do so—bringing us to the fourth point.  This past year has seen a truly astonishing plethora of Catholic clergy abruptly deciding on their own initiative to overrule universal church laws which bind all Catholics without exception.  We’ve seen Episcopal Conferences publicly declaring that they will ignore canon law (addressed in “Episcopal Conferences and Communion on the Tongue,” among others), and bishops asserting that “in my diocese” universal law will not be followed (in addition to many articles already mentioned see also “The Virus and the Bishops: Twisting Canon 223 to Further an Agenda,” as well as “The Virus and the Bishops: Twisting a Vatican Document to Further an Agenda”).  We’ve also seen parish priests (who by the way are not legislators, as was discussed in “Excommunication and the Authority of the Parish Priest”) willfully choosing to ignore legitimate laws established by their bishops and by Rome (discussed in “Our Priest Cancelled Our Wedding, So Who Else Can Validly Marry Us?” among others).

Once you’ve seen the dramatic variations in the current liturgical praxis of one diocese when compared to another, the inconsistencies found in one parish versus another, or the contradictions sometimes encountered even among the actions of different priests of the same parish, it’s easy to understand why the Blessed Virgin Mary said this in 1973 at Akita, Japan (a Marian apparition formally recognized by the Catholic Church as authentic):

The work of the devil will infiltrate even into the Church in such a way that one will see cardinals opposing cardinals, bishops against bishops.  The priests who venerate me will be scorned and opposed by their confreres … churches and altars sacked; the Church will be full of those who accept compromises and the demon will press many priests and consecrated souls to leave the service of the Lord.

Sitting in the professor’s chair in his classroom at the University of Paris, Aquinas taught his students what constitutes a true law, and what doesn’t—and that a “law” which doesn’t meet the definition isn’t really a law at all.  If he had been faced with this deluge of bad laws, arbitrary decrees and illegal orders, Aquinas’ response would actually have been quite simple: these aren’t laws, and they shouldn’t be followed.  And if challenged, he would have had both reason and the virtue of justice on his side.

When most people think of St. Thomas Aquinas, they don’t consider him a wild-eyed radical!  But back in the 1200’s, this quiet Dominican priest-professor was viewed as exactly that—by many of his fellow professors, fellow Dominicans, fellow priests, fellow Catholics.  Some of Aquinas’ teachings were even condemned by the then-bishop of Paris multiple times, in the late 1200’s; but the Universal Church later recognized that his work was actually a priceless contribution to Catholic theology, and Aquinas was proclaimed a Doctor of the Church by Pope St. Pius V in 1567.  Nearly eight centuries later, his true genius is fully evident, and we can easily see that in this time of chaos and confusion in the Church, what he taught in the Middle Ages is still relevant today.


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