There are a few canonical ambiguities in the Holy Father’s letter that need clarifications so that his desires can be implemented appropriately.
The Holy Father’s Sept. 1 letter to Archbishop Rino Fisichella, the president of the Pontifical Council for the Promotion of the New
Evangelization, calls the faithful, once again, to contemplate God’s divine mercy made manifest through his Church, particularly in the upcoming Extraordinary Jubilee Year of Mercy.
There is much beauty and magnanimity in the letter showing that Pope Francis, like his predecessors, is serious about helping to actualize the mercy of God to all, especially those on the peripheries.
All would do well to read carefully and work assiduously to make known and available the indulgences that are being granted to the faithful in dioceses, those visiting shrines, and those who are ill or incarcerated. Not to be missed are also the grants allotted to those who practice the Spiritual and Corporal Works of Mercy. Indeed, it is a call for all to participate in these works of mercy and to help to extend the mercy of our Lord to as many as possible.
Because of the importance of the Holy Father’s desire to make mercy known generously in this coming Jubilee Year, and with complete filial respect and affection to our Holy Father, it is necessary to identify a few canonical ambiguities in the letter that will seriously need clarifications so that the Pope’s desires can be implemented appropriately.
First, what is the canonical weight of this letter? It is not a law (Canon 8ff). It is not a general decree (Canon 29). It is not a general executory decree (Canon 31). It is not a canonical “instruction” (Canon 34). It is not indicated to be a motu proprio (of his own initiative).
It clearly is just a letter written to the president of the Pontifical Council for the Promotion of the New Evangelization, yet one that appears to be making some pretty bold grants regarding indulgences, faculty, etc. for the Year of Mercy. For a Holy Year, these type of things are usually in the form of a papal bull, such as the Pope’s document declaring the Year of Mercy, or at least a decree or motu proprio so that there is no confusion as to its official canonical weight. The form or lack thereof and the ambiguities in the letter seem to be creating some canonical doubts of law, which I am afraid may possibly nullify or suspend some of its application (Canon 14).
Second, in the letter, the Pope seems to be granting the ability to all priests to forgive the sin of abortion. While in the Eastern Churches the forgiveness of the sin of abortion is reserved to the bishop (Code of Canons of the Eastern Churches, 728), in the Latin Rite, all priests who have the faculty to absolve sins in confession are already seemingly able to do this.
It is important to keep in mind that there is a distinction between the sin of abortion and the excommunication that could also result from it (Canon 1398). These two are not the same thing. Sin is a moral condition; excommunication is a juridical one that deprives a Catholic of certain rights and benefits of being in full-communion with the Catholic Church (Canon 1331).
There seems to be much confusion regarding the difference between the sin of abortion and the penalty of excommunication. It is important to remember that the so-called “automatic” (latae sententiae) excommunication is not necessarily always “automatic” since there may be a number of exempting or mitigating circumstances, as listed in canons 1323 and 1324.
In the Latin Rite, regarding abortion, presuming that someone has indeed incurred not only the sin of abortion but also the juridical penalty of excommunication resulting from it, the ability to lift the penalty of excommunication is reserved to the bishop. In many dioceses in the U.S., the bishop has delegated this ability to lift the excommunication to priests who have the faculty to hear confession validly.
So herein lies the problem: The Pope’s letter does not mention anything of granting the ability to priests to lift the penalty of excommunication that may result from the sin of abortion but rather only seems to grant the ability to priests to forgive the sin of abortion.
For Latin Rite priests who have the faculty to hear confessions validly, this is not granting them anything new and they are still not able to lift the penalty of excommunication if they are not able to do so by grant of their own bishop.
An additional ambiguity arises in that the letter seems to extend the grant to all priests. It does not specify that this is only to priests who have the faculty to hear confessions validly. In other words, does this ability to forgive the sin of abortion extend also to excommunicated priests, priests under interdict, priests dismissed from the clerical state, priests in schismatic or irregular groups or situations, priests who their bishops have limited or taken away their ability to hear confessions?
And if so, are these priests only able to forgive this sin and not the other sins confessed?
Third, regarding the priests of the Society of St. Pius X (SSPX) being able to grant absolution validly and licitly, there is no doubt that this is truly a generous gesture on the part of Pope Francis, one that shows his fatherly pastor’s heart. He clearly indicates that it is his hope that in the near future, restoration to full communion of the priests and superiors of the SSPX can be achieved.
However, in the meantime, this does seem to imply a couple of things. First, that the priests of the SSPX are not in full communion with the Church, and second, that the priests of the SSPX in fact have not had and currently do not have the faculty to absolve sins validly and licitly in confession and will not have it until the beginning of the Year of Mercy on Dec. 8, 2015.
Fourth, a question also arises as to why there was not a direct communication to the SSPX. The communique from the SSPX indicates that they only learned about it via the press. Generally, grants of faculty are communicated directly to the cleric to whom the faculty is being granted or to the cleric’s superior where appropriate.
Fifth, it is puzzling that the letter does not explicitly use the word “faculty” at all when speaking of this grant to the SSPX priests of the ability to absolve validly and licitly. While it seems that the mens (intention) is indeed to grant a faculty to the priests of the SSPX, it unusual that the language does not simply issue a grant of faculty to them to do so. Rather, the letter seems to place the emphasis on the good of the faithful and their ability to approach of the SSPX priests.
While there may be some similarities to a situation of a person in danger of death being able to approach any priest for absolution regardless of his status (cf. can. 976), this situation is not analogous. The danger of death situation does not involve a general grant of faculty but a grant for that specific circumstance. The language of the current letter seems to be envisioning a more general situation.
However, while seeming to intend a general grant faculty to the priests of the SSPX to hear confessions validly and licitly, it never actually says so clearly. So the question remains as to whether this is a grant of a general faculty to hear confessions — i.e. for all situations where someone approaches a priest of the SSPX — or is there any sort of limitation that the Holy Father envisions by placing the emphasis not on the SSPX priests but rather on the faithful who approach them. If this is a general grant of faculty, why was the language of “faculty” never used, but if there are limitations, why are they not listed?
Finally, regarding all these grants during the Year of Mercy, it needs to be clarified as to whether these supersede the jurisdiction of the diocesan bishop or religious superior to limit a priest’s ability to do these things. In other words, can any priest still validly and licitly absolve regardless of whether his competent bishop or superior limits him via a revocation of faculty or a penalty?
It is my hope that there will be some clarifications to these canonical questions, which are respectfully offered. It is also my hope that these can help to strengthen our understanding of the Holy Father’s intentions and to actualize their valid and licit application.
In this way, may we stand with our Holy Father in helping to apply God’s mercy ever more generously to as many as possible in this coming Jubilee Year.
Benedict Nguyen is a canon lawyer and civil lawyer. He serves as the canonical counsel and theological a lawyer for the Diocese of Corpus Christi, Texas. He is also an adjunct professor for the Avila Institute for Spiritual Formation.