The threat of excommunication may have been denied, but people are still asking about the what and how of excommunication. I hope the following can help.
First of all, what is excommunication. It is a penalty which excludes a person from communion with the rest of the church. Its effects can depend on the status or position of the person in the Church. For ecclesiastics, for instance, it can mean prohibition from the exercise of priestly functions and ministry, while for lay people it can mean exclusion from the reception of the sacraments. It is the severest penalty under Church law, but it is good to remember that excommunication is intended to be medicinal, designed to bring about the correction of a person’s behavior and his or her reintegration into the full life of the Church. In other words, it is not meant to destroy but to redeem.
There are two kinds of excommunication: automatic and imposed. Automatic excommunication is incurred when one freely and knowingly commits an offense to which church law attaches excommunication. This is called latae sententiae. It does not come cheap. It comes in connection with outstanding and malicious offenses.
The number of offenses punishable by excommunication latae sententiae in the universal law has been radically reduced. And the sentence is really not that automatic because, aside from the requirement of full knowledge of and consent to the sinful act, the offense must be gravely imputable by reasons of malice. Thus the offender must also know that an automatic penalty is attached to the offense. Priests who hear confessions know that many sinners do not incur excommunication automatically because they do not know about the attached penalty. How widely known is it, for instance, that deliberate abortion can be ground for excommunication latae sententiae.
The other kind is imposed excommunication. The books call this ferendae sententiae. It is a penalty that is prescribed by law for an offense and imposed by one who has both authority and jurisdiction to impose excommunication. For instance, a bishop has authority and jurisdiction to excommunicate a person of his diocese.
The basic law on both kinds of excommunication says: “No one can be punished for the commission of an external violation of a law or precept unless it is gravely imputable by reason of malice or culpability.” The violation consists of both an objective element and a subjective element.
The objective element is the external act. It is one that can be perceived by someone who is present and it must admit of proof in the external forum. Thus a merely internal act of mind or will cannot be subjected to penalty.
The subjective element is present if the offense committed is “gravely imputable by reason of malice.” The concept of imputability must be understand clearly. It is not just imputability in the moral order, in the order of sin; it is imputability specifically in the juridical order. This means that the damage must be done in the public or social order. It is this damage in the juridical order which subjects a persons to the public authority of the Church in the external forum.
There are two important concepts that must be understood: malice and culpability. “Malice must be understood as the deliberate intention of violating a law or precept; culpability, on the other hand, involves the ‘omission of due diligence,’ i.e. the law or precept was violated through culpable ignorance or neglect of one’s own legal responsibilities.” The onus of establishing and proving malice and culpability belongs to the competent ecclesiastical authority.
That is not all, however. There still is the legal component of the offense. An external violation of a law is punishable only if the law provides for a penalty. As lawyers always say, nullum crimen sine lege, nulla poena sine lege. Moreover, as in the case of secular criminal law, church penal law is interpreted strictly, i.e., in such a way as not to enlarge the scope of its application
What can be seen from all this is that an important element of due process in church legislation is the recognition of the fact that, although penalties have an important role to play, they are not a substitute for ordinary pastoral approach. This fact must be kept in mind by persons administering the law. There is a distinction between the imputability of the objective element of the offense and the imputability of the subjective element of the offense. Either one can be focus of pastoral approach and determination of guilt.
Another indication of the pastoral thrust of church law is the enumeration of instances when violation of a law is not subject to penalty. There are many instances when the law exempts or excuses from penalties. These instances include lack of age, ignorance of the law through no fault of one’s own, duress, or mental incapacity. Moreover, even people who are not exempt from church penalties may be given a lower penalty if they are affected by a variety of extenuating circumstances. It is also good to remember that Jesus said that he came to save, not to destroy.
P.S. In my next column I shall write about the question whether a public official may impose his religious belief on those who follow a different set of beliefs
4 October 2010
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