More on Salzburg

It turns out that, despite media reports to the contrary, Bishop Laun did not excommunicate anybody. The story actually comes from a German-language interview on Kath.net (English translation provided by The Cafeteria is Closed) in which Bishop Laun's opinion was asked as to whether the landlord in question has excommunicated himself. This statement is a far cry from the legal process by which ordinaries can impose/declare penalties. See 1983 CIC cann. 1341–1353.

Thus, it seems it is a purely academic discussion and not a formal process to penalize anyone. Well, how about we take the academic discussion slightly further.

Could the landlord be considered an accomplice within the meaning of can. 1329, and thus incur the same penalty?

Maybe. The requirement for whether he would be considered an accomplice would be whether he conspired together with those who procure abortions to commit an offense. Id. can. 1329 § 1. It sounds like this would apply here. Since the penalty for procuring an abortion is an automatic censure though, id. can. 1398, the only way the landlord would be liable for the same automatic penalty if he were an accomplice would be if without [his] assistance, the crime would not have been committed, and if the penalty is of such a nature as to be able to affect [him], id. can. 1329 § 2. I am not sure as to whether this would be applicable. The second part of this criterion is easy: as a Catholic, he can receive an excommunication, so the penalty is able to affect him. The first part is trickier. On first look it would seem that without the landlord's help abortions would not be procured. However, penal laws require strict interpretation, and Jimmy Akin, applying strict interpretation, argues that the landlord is not an essential accomplice.

Regardless of whether the landlord is an essential acccomplice, he would still only be liable for the automatic excommunication once the actual delict (procuring an abortion) actually occurs. This is just a matter of time, though, once the clinic opens. Even if Jimmy Akin is right (as I suspect he is) and it turns out that the landlord is not essential in the procurement of the abortions at this clinic and thus is not liable for the automatic censure, he can definitely receive imposed censures if he were actually a non-essential accomplice. Id. § 1. This is, of course, assuming that he is indeed an accomplice under the law, because he might not be.

How about Bishop Laun imposing a penal precept on the landlord?

Assuming that Bishop Laun has ordinary executive power in this case (my previous post went over the necessary conditions), he should also be able to impose penal precepts. He has already argued that the divine law is the law in question here (citing the Catechism), and precepts can be used to enforce divine law that does not already have a penalty prescribed by ecclesiastical law. He still probably could not prescribe an automatic penalty for a precept of this kind since the presence of malice is questionable, but he definitely could prescribe a normal penalty, including a censure.

Salzburg excommunication

Professor Peters' blog yesterday analyzed the recent questionable Salzburg excommunication of a landlord who leased space to an abortion clinic. He pointed out very thoroughly why the action of Bishop Laun is illegal, and I agree with his analysis. I'm not going to repeat it here, but a couple more things need to be said for completeness sake.

First, a penal law could come from other sources besides the Latin Rite code and Papal general decrees. In the case in Salzburg, there are at least four other legislators: an Austrian plenary council, a Salzburg provincial council, the Archbishop of Salzburg, or, with the approval of the Holy See, the Austrian episcopal conference. However, it is highly unlikely that any of these legislators has instituted a penalty for this act, and even if one of them did, Bishop Laun did not use any of them in imposing/declaring the excommunication, instead citing a canon that dealt with ordination irregularities and had nothing to do with penalties.

Second, while allowing auxiliary bishops to initiate the penal process may not be the best of ideas, is certainly not in and of itself illegal. Diocesan bishops are supposed to appoint auxiliaries either vicars general or episcopal vicars. Canon L. Socy. Gr. Brit. & Ir., The Canon Law Letter & Spirit: A Practical Guide to the Code of Canon Law can. 406 § 2 (Gerard Sheehy et. al. eds, Liturgical Press 1995). Vicars general and episcopal vicars are included in the definition of ordinaries, id. at can. 134 § 1, and ordinaries can initiate a penal process in the Latin Rite code, id. at can. 1341.

Assuming that a diocesan bishop has fulfilled his obligation under canon 406, his auxiliary would then be a vicar general or an episcopal vicar, which would additionally make him an ordinary for canonical purposes, including initiating a judicial or administrative procedure for the imposition/declaration of penalties via canon 1341. Note: I unfortunately do not understand the ambiguity that exists in this canon. Perhaps Professor Peters is relying on drafting history in seeing the ambiguity. I could imagine that an older draft of this canon used ordinary and his vicars instead of just ordinary for handling a penal process. If that were the case, the removal of vicar in the final draft could indicate that vicars, despite their general classification as ordinaries in the code, may be excluded from the term ordinary in the specific context of the penal process. Since I do not have access to those materials, I'm going to assume for now though that no such history exists to suggest that ordinary in can. 1341 means anything but the definition in can. 134.

Third, even if an auxiliary is a vicar general/episcopal vicar, he may not be able to initiate the penal process for other reasons. For instance, if he was an episcopal vicar, he might only have jurisdiction over a particular area of the diocese or over certain subject matter (like a vicar for religious, who only has authority in matters concerning members of religious orders). Id. at can. 479 § 2. In addition, even if the auxiliary is a vicar general, the diocesan bishop can decide to reserve certain matters to himself, like initiating or deciding penal cases (which I think is a very good idea, especially for excommunications). Id. at can. 479 §§ 1–2. Both of these provisions, if in place, could restrict the ability for diocesan officials other than the diocesan bishop to apply penalties.

So, to determine whether this decree of Bishop Laun, an auxiliary bishop, actually has any real canonical effect, we need to ask three questions:

1. Is Bishop Laun a vicar general of Salzburg?
2. If not, is he an episcopal vicar with jurisdiction over this particular area of the archdiocese or over this subject matter?
3. If yes to 1 or 2, has the Archishop of Salzburg reserved administrative imposition/declaration of excommunications to himself?

If the answer to 1 and 2 are no or if the answer to 3 is yes, then this excommunication is completely absurd and has absolutely no effect simply because Bishop Laun would have no executive power in the matter and his declaration would have no canonical effect. If the answer either 1 or 2 is yes and the answer to 3 is no, then the imposition is both an absurdity and an injustice, because despite the illegal exercise of executive power, the excommunication would still oblige. Unfortunately, this latter situation is probably the case.

As much as the action of the landlord might be unacceptable for the Catholic community, not all immoral actions deserve the most severe penalty the Church can impose. Besides, those who judge whether certain actions deserve a penalty (legislators) have decided that this act does not get one. This presents a delicate situation where it seems a Church administrator is exercising completely arbitrary power, on which the media has already capitalized. Bishop Laun should modify his decree as soon as possible, not just for the interests of individual justice but also for the sake of the reputation of his fellow administrators of the Church.