Michele Riondino

Professor of Canon Law and International Children’s Rights,

Thomas More Law School, Australian Catholic University

Function and application of the penalty

in the Code of Canon Law*

Titolo in italiano: Funzione e applicazione della pena nel Codice di Diritto Canonico

DOI: 10.26350/004084_000069

Summary: 1. Introduction. 2. Key concepts regarding the function of penalties. 3. Hermeneutical framework for understanding the function of penalties. 4. The 1967 Synod and the revision of the Code of Canon Law. 5. Application of penalties. 6. Understanding the legal structure. 6.1 Substantive matters. 6.2. Procedural matters 7. Restoration of justice as the fundamental goal. 8. Conclusion.

1.   Introduction

The imposition or declaration of a penalty under the 1983 Code of Canon Law (hereinafter CIC or Latin Code) is one of the most significant expressions of the Church’s power, and is therefore to be exercised with great care and pastoral attention. Legislators must, therefore, possess a sound understanding of both the function and application of the penalty, and how the two may be reconciled. However, the task of ensuring that the ultimate purposes of sanctions are reflected in their application requires both technical rigour and meta-legal knowledge. The purpose of this article is to decode the function and application of the penalty primarily through analysis of the principle of restorative justice, considering namely: the grounding of restorative justice in Book VI of the CIC, this principle’s role in the function of the penalty, and the challenges and synchronicities encountered in upholding this principle in the application of penalties. The following reflections are enlightened by the notion of Justice which emerges in Holy Scripture and coincides with the idea of ​​saving the relationship, as is explicitly evident from the use of the term tsedāqāh in the Old Testament[1].

First, we will consider the most relevant normative text of the law for this analysis: canon 1341. This canon directly addresses not only the function but also the application of punishment in the Code of Canon Law. Its provisions must be read in light of the normal criteria for interpretation found in canon 17: “the proper meaning of the words”, considered in “their text and context”, referring to “parallel places”, “the purpose and circumstances of the law” and the “mind of the legislator.” The expressions used in canon 1341 are explicit in their attribution of the triple function of sanctions, which is that: “the scandal be sufficiently repaired, justice restored and the offender reformed.” The most generic composition of the same canon presents two methods of application for these functions, be it in the case of the infliction or declaration of sanctions: “a judicial or an administrative procedure.”

In our case, recourse to the hermeneutical criteria not only represents the principal mission of the jurist and the canonist^[2], but also aligns with the two motives derived from canon 1341. The first motive inherent to the function of penalties is to ensure that the restoration of justice is of primary consideration in the course of punishment[3].  The restoration of justice must not be separated from the two functions: the defence of the social order (repair of scandal) and the re-education of the faithful (reformation of the offender)—the former of which should also demonstrate the latter. The second motive, which is pertinent to the application of punishment, is to deepen the basis upon which to justify the choice of either the judicial or extrajudicial procedures. There is a further condition put in place by law stipulating that the application of sanctions may occur only after it is ascertained that it is insufficient to punish delicts “by fraternal correction or reproof, nor by any methods of pastoral care.” This is relevant not only to the application of a sanction but also to its function.

Momentarily we will put aside the criteria to consider parallel places, which we will be revisiting with great utility after having first analysed the norms of the Code of Canons of Eastern Churches (hereinafter CCEO or Eastern Code), promulgated in 1990. This is the most evident parallel place[4] (though not the only one) to refer to when interpreting the norms of the CIC, particularly because the peculiarity of the Eastern Churches, in their dealing with posterior law, provides a subsidiary interpretative criteria potentially capable of addressing the imperfections raised after the promulgation of the CIC[5].

We will turn our attention to the context, to which other interpretative devices are connected. The triple function of punishment, just like the dual manner of the application, cannot be fully comprehended without having in mind other norms of the same Book VI of the CIC, which is the immediate legislative context. The Vatican II Council—an event which, as we know, transformed the entire way to think and to act within the Church[6]—produced a particular doctrine on sanctions, which is clearly referred to in the apostolic constitution Sacrae Disciplina Leges, by which John Paul II promulgated the Code in 1983. This doctrine is contextually relevant to our purposes, containing crucial guidance which must be taken into consideration in the hermeneutical task before us[7]. The principles of the revision of the Latin Code, which some refer to as the penal law, emerged from the Conciliar renewal and render more concrete the objectives and the circumstances of the law[8]. From the entire works of the revision, it is apparent that the consideration of the mens legislatoris (i.e. “mind of the legislator”) is the foundation of the legislative choices, without any type of prejudice to the value of the perennial intention of the canonical legislator in subjects relating to sanctions[9].

2.Key concepts regarding the function of penalties

In order to avoid excessively fragmenting the exposition of interpretative problems, we will distinguish only between the hermeneutical criteria of the legislative context and that which the significance of canon 1341 presents regarding the function of the sanction.

With this in mind, we now turn our attention to some principles regarding establishing and understanding the legislative context. With respect to the function of punishment, the interpretation of the objective to restore justice is rendered more complex by recourse to other dispositions towards Book VI of the CIC which throw shadow on the eventual prevalence of the socio-communitarian purpose of reforming a person. The norms that our analysis will retain as more significant, by order of importance, are the following canons: 1399; 1312; 1331, §1, n. 2; and 1332.

Canon 1399 is the most prominent of the aforementioned canons because it is the last of the canons on the norms on sanctions and, in a certain sense, a potential interpretative criterium and determinant of all other dispositions. On the intention of punishment, the above-mentioned norm unites the sanction not only to the repair of scandal (already included in canon 1341) but also to the prevention of scandal, and to the special gravity of the violation of a divine or canonical law. It seems important to place the primary purpose of sanctions as: safeguarding the common good of the community with a punitive intervention before the materialisation of scandal. The prioritisation of such an objective over the reform of the offender must be met with caution and an emphasis on the recall to the objective gravity of the violation, and the serious but subjective determination of imputability. Such an arbitrary determination—taking into consideration the norm under examination, which pertains to the infliction of punishment for the violation of a divine or canonical law, not after the commission of a delict (in light of canon 1321, as a violation of a penal law or penal precept)—poses a serious threat to the validity of the principle of legality in the canonical penal law[10].

Canon 1312 establishes kinds of penalties as derived from the relative criterium of their principal objective, distinguishing between medicinal or censures and expiatory penalties. By so doing, it seems that the three-fold purpose of penalties (according to canon 1341) have been elevated to be understood as a constitutive and unique objective, to which it is integral that every sanction corresponds, relative to the application and remission of penalties. The purpose of medicinal penalties is, effectively, to reform the offender. Ultimately, the goal of these penalties is to cause the offender to desist from the contumacy—not only as a condition to allow the remission of medicinal penalties, but also as a condition which impedes the denial of such a remission, as established in canon 1358 §1—particularly so as to abrogate the risk that the contumacy poses to others, and thus pursue the objective of safeguarding the common good. Conversely, expiatory penalties aim to repair the scandal, and can be perpetual, with the risk that they can be inflicted on the offender even if he/she has repented of the delict[11]. The difficulty of uniting these two aims poses the question: must the objective to restore justice, from which is derived a specific typology of sanction, be considered the unifying element between the reparation of the scandal and the reformation of the offender[12]?

In effect, canons 1331, §1-2 and 1332 both establish that those Christian faithful whom have been inflicted with excommunication or interdict cannot receive the sacraments, among which is the sacrament of reconciliation, the maximum expression of forgiveness after a sincere repentance[13]. Being delicts which are attached to latae sententiae censures, the prohibition of receipt of the sacraments applies also in cases in which the censures have not been declared and the purpose of the conversion or reform appears to be compromised, if the sacrament of reconciliation is included among the spiritual goods denied to the offender. The norms being examined are subject to criticism for the possible confusion which they create between internal and the external forum[14]. 

3.Hermeneutical framework for understanding the function of penalties

Having demonstrated the recourse to the norms, which must primarily elicit references to the purpose of penalties according to canon 1341, while facilitating an interpretation which renders it more complex than a simple reading of this canon, we now turn to further elements of the hermeneutical framework in order to shed more light on the problems evidenced thus far. These problems pertain to: the content of the function of the restoration of justice; the nature of the reconciliation of such a function with every type of penalty; the prevalence of the communitarian objective; the preventive function of sanctions; and the significance of the conversion of the offender[15].

The remaining aspects of the hermeneutical framework appear to be linked in great measure to the context of the Vatican Council II[16]. In light of the principal contributions of successive doctrines to those of the Council, we will first identify the fundamental essence of the reforms, particularly those reforms which pertain to the function of canonical sanctions, and then refer to the subsequent legislative decisions, without omitting the contributions of classical doctrine[17]. Our objective is to outline the extent to which the recourse to compulsory interpretative criteria resolves the difficulties emerging from the analysis of canon 1341.

As we know, the fundamental purpose of the reforms derived from the Vatican II is the elimination of any doubt about the prevalently medicinal character of canonical penalties. Indeed, such an interpretative key is widely accepted, though not without ambiguity (which will be seen). In the triple function of canon 1341, the reform of the offender is affirmed as the principal function of sanctions. In further support of this notion is the Vatican II Council’s recall of three primary needs: to promote the fact that the salvific finality of every Christian faithful is the ultimate goal of the legal system (canon 1752); to ensure that the pastoral nature of the juridical system of the Church is considered as the ultimate purpose in every sector; and finally, to organise in such a way that sanctions be considered only as extrema ratio (i.e. a last resort).

The promotion of salus animarum (i.e. the salvation of souls) of every Christian faithful indicates the centrality of the person in the canonical legal system. The ultimate goal of the Church and her legal system is that all the christifideles, and in general, all people of goodwill, may reach the destiny to which God has called them. For this reason, Canon Law (and the procedural measures put in place), though concerning the safeguarding of the social order, must be particularly sensible to the value of the human person and also cautious of the specific exigencies of every single offender[18]. This personal perspective, strictly understood, does not pose any threat to the identity of the Church, to whose defence it contributes as well as the defence of the penal system. The theoretical harmony between both instances does not hinder the renewed conscience on personalism, on the so called “conciliar spirit,” which seemed to be a source of dispute regarding the penal canonical law[19]. The principal result of this dispute was the employment of three guiding aspirations with respect to the function of the penalty in the development of the CIC[20], which attracted significantly varied degrees of support and acceptance: the elimination of vindictive punishments[21]; an increase in depenalisation of some crimes[22]; the limitation of the function of the penalty to a kind deviance from the values of the community, attributed to the person as his/her utmost end[23].

The desire to ensure that the juridical dispositions are of a pastoral nature has been a source of innumerable misunderstandings in the years following the Council, which demonstrated the necessity to undertake soberly the continuity, and at the same time the discontinuity, between the main tenets of law and the positive law[24]. It is also critical to deepen education about lawfulness through a perspective of Justice which is permeated by Charity[25], particularly a spirit of Charity which is congruent with the suppression of every kind of injustice[26]. The Magisterium has often recalled the need to have a balance between the law and the pastoral means[27]. In the penal sector, the affirmation of this pastoral nature, aside from the frequency of the repetition of this principle, was often devoid of appreciable contents[28] with respect to the function of the penalty. Emphasis was placed on two kinds of objectives: to subdue the technique to practical functionality[29], and; trusting the instruments of flexibility proper to canon law[30], especially aequitas[31].

The urgency to establish suitable measures which ensure that recourse to penal sanctions is the last resort, can be expressed well by the commitment of the entire canonical legal system to the prevention of delicts or the avoidance of the infliction of penalties. This is evident in the provision of suitable alternatives to sanctions pertaining to the privation of goods[32]. It cannot be said that such a principle is a sign of weakness in the face of harm or damage caused to others or to the community. On the contrary, that penalties are considered as a last resort reflects the equilibrium of faith in the person (in the capacity to rethink his/her actions) and the intrinsic authority of the values of the canonical legal system (the offenders’ free assent to the legal system cannot be reduced or taken lightly). Though rich in effect, with respect to the previous measures of the application of penalties, the principle of their extrema ratio nature did not give rise to useful theoretical contributions about the function of penalties in itself[33].

4.The 1967 Synod and the revision of the Code of Canon Law

A more authoritative interpretative framework may be elicited from the principles of the revision of the Code of Canon Law—approved by the Synod of 1967—which are drawn from the conciliar context and render adequate witness to the goal and circumstances of the law. The ninth principle pertains to the exigency to completely renew the penal law. Pertaining to the renewal of the entire legal system are these principles: with regard to penal law, the necessity to avoid conflict between internal and external forum (second principle[34]); the guarantee in the defence of rights consonant to the actual cultural sensibility (sixth and seventh principles); and the pastoral principles which must animate the laws (third principle); and with great concretion, the need to have in mind the virtues of justice, charity, temperance, humaneness and moderation with which aequitas is applied, not only in the application of the laws on the part of pastors, but also in the same legislation[35]. For this reason, the need arises to minimise elaboration on rigid norms, but rather to have recourse to exhortations and suggestions where there is no necessity to rigorously maintain the law for the common good and ecclesiastical discipline in general[36].

The Conciliar context and the principles demonstrated by the Council led to the revision of the Latin Code—the direction of which, with regard to penal matters, is evident in the Praenotanda, drafted by the group of experts in charge of the revision of the new Book VI. The topic which we are occupied with, and its direction, must affirm the need that punishment must never cause harm. Such a general orientation perhaps was not able to provide the essential elements required to fully comprehend the “mens legislatoris”, the hermeneutical criterium in which it is possible to penetrate sufficiently, by individuating the legislative choices achieved thus far, without entering into the details of the discussions. It is worthwhile to refer to the objectives of the revision: to reduce norms; clarify the effect of the application of subsidiarity (fifth principle of the revision of the Code) in the penal sector; to limit penalties, particularly the excommunication latae sententiae[37]; to suppress canons which are not in consonance to the exigency of moderation in the use of sanctions; and the effort to translate in adequate norms the pastoral spirit of mercy[38], aequitas and charity[39].

The new circumstances of the Church, with respect to those in which the former Code was promulgated, leads us to conduct a comparison between the two Codes. Regarding the function of penalties, the more relevant choices in the CIC, in relation to the former Code, are represented by three significant eliminations and the maintenance of a norm questionable in compliance to the principles advocated for in the Vatican II renewal.

The first choice, worthy of note, is the option to reduce the number of canons which fall principally on the norms of general character. Although such an endeavour may appear to facilitate pastoral activity, this leads also to an undeniable technical impoverishment[40]. The technical notions must have been useful to combat greater foresight of the challenges elicited previously, in relation to the function of penalties[41].

Even if it is included in the elimination of the general nature, particular consideration must be given to the suppression of canon 2214, §2 of the 1917 Code, which was a reproduction of a Tridentine canon. This Tridentine canon clearly emphasised the objective of reconciliation inherent in penalties—an objective which must be maintained owing to its alignment with the interpretation of the function of sanctions in the Church, and the overcoming of conflicting purposes of various sanctions[42].

The choice to eliminate the primary definition of a penalty—in canon 2215 of the 1917 Code—as well as definitions of each typology, is a clear indication of the desire to consider seriously the retributive element (punishment of delict) and negative aspect (privation of goods) of sanctions[43]. The commission in charge of the reform of Book VI removed many definitions from the former Code, in accordance with the core principle of the revision which affirmed that the provision of definitions is the role of expert interpretation and a function of subsequent recognised doctrine[44]. To limit the treatment of penalties only to the effects of each penalty does not allow for a full reflection of their significance, nor of the consequences of the limits of each sanction. There is a proof that derives from the question of the elimination of vindictive penalties, reduced almost totally to a nominal problem. This problem has little or naught to do with the possibility of assigning canonical penalties, also considered extrema ratio, which have a retributive function and an afflictive nature[45]. The majority of the authors agreed without significant objections, and clarified the various motives which should drive the application of sanctions: the specific coercive force of the canonical legal system[46]; the need to coordinate retribution and affliction with the salvific purpose of the entire Code[47]; the more decisive assertion of the prevalence of the corrective aims[48], and; the capacity of the sanctions to arouse internalisation of the values of the legal system[49].

To conclude, notwithstanding the opposition to canon 2222, §1 of the 1917 Code[50], in contrast with the principle of legality, the Latin codifiers decided to maintain the above-mentioned norm, considering it a necessary instrument of government to reach the ultimate goal of the ecclesiastical legal system. In reality the current canon 1399, with respect to the principle of legality, represents a certain depletion of the formula used in the equivalent norm in the 1917 Code, since it does not foresee the prior admonition of the offender, in an expressed manner; besides, the effect of the scandal is now not limited to the repair, but also to prevention. On the other hand, is the urgency of the intervention, which, absent in the prevision of the 1917 Code, is now established as the proper condition[51]. The maintenance of this prevision, though only an exception, has not earned the favour of the greater part of doctrine[52], and in any case, risks the attribution of the support of the action of government as a function of penalties.

Notwithstanding the choices made during the development of the CIC, consideration was given in certain cases to questionable interpretations with regard to translations in technical and adequate choices. This was despite the fact that the Conciliar doctrine did not sufficiently resolve the hermeneutical problems of canon 1341 regarding the function of the sanction in the canonical juridical system. It must be recognised that these choices are in line with tradition and the perennial principle in the penal sector. Concerning this principle, the elaboration of useful concepts per the reflections of the science of Canon Law cannot be overlooked, as if it were licit to be content of the mere current positive formulae, or to start afresh the drafting of concepts which have a long and consolidated tradition. There is a recognised difficulty in this tradition concerning the coordination of various profound dimensions of the response of the legal system in the face of evil[53], because strong recourse is made to New Testament[54], Patristics[55], Classical doctrine[56] and the teaching of the different Pontiffs[57]. All these instances, even if they do not agree to the absolute improvisation of the juridical theoretical study about the function of the sanction, they do not reject the possibility of subsequent developments, hiding behind the limit of the law, which is not insurmountable, even in case of Canon Law[58].

5.  Application of penalties

Having already outlined the points which raise major concerns about the function of penalties, now we can point out certain critical questions about their application. Such a task reveals a point of contention in every penal system, because it entails a concrete confrontation of the various subjects involved in the delict: the offender and the victim, who are protagonists, but also the authority liable for imposing sanctions. According to Canon Law, the inescapable exigencies inherent to the various personal dimensions of the offender must always be considered in determining the sanctioning measure[59]. The offender’s exigencies prioritised above those of the victim and the ecclesial community, whose security can be found in canon 1341, which provides the foundational criterium for the ecclesiastical authority’s initial decision-making process to determine whether to declare or inflict the sanction[60].

What has just been said above can be considered a certain peculiarity of the penal canonical system, generally a point in opposition to Civil State systems, and in some ways exclusive to the Latin Church. The principal peculiarities of the Latin system include the lack of exactitude of the cases of offense because of the margin provided for the application of the principle of legality[61],  provided in canon 1399, and the automatic nature of certain sanctions – the penalty latae sententiae – which one incurs for the mere fact of the commission of the delict, according to canon 1314. Peculiarities within the penal canonical system include the non-obligatory nature of the penal action and the certainty of the sanction, be it in the substantial prevision or the outcome of the procedure, notwithstanding the fact that for some delicts the law establishes a mandatory penalty, determinate or indeterminate. It can be seen with clarity that the extrema ratio concept applied to penalties in the canonical legal system is given particular weight in decision-making processes, which is a concept present in many State legal systems, even if it is rarely attributed with the same level of gravity[62].

In circumstances where there is a lack of certainty of the offense, we draw from the previsions of canon 1399. The equilibrium between the various exigencies in play seem to disappear to the detriment of the rights of the offender, emphasising the needs of the community, inferred from the assessment of the “gravity” and the need for prevention and repair of the scandal. It is worth noting that a more acute analysis of this prevision in fact compromises communal exigencies, with respect to the certainty of the legal system and the function of the safeguard provided by the same. The implementation of this safeguard function is paradoxical in that the time taken to ensure the proper establishment of an offence may result in the failure to provide a timely intervention, whereas the invocation of canon 1399 presents the possibility of excessive risk of the arbitrary imposition of sanctions[63].

In the immediate imposition of sanctions, there is the insistence of the latae sententiae penalties, but only theoretically can it be said that the equilibrium between the exigencies of the offender and the community is compromised. This is not directly involved up to the declaration of the penalty, unless it is intended to affirm that the prevision in itself of the latae sententiae penalties, for the severity of the mechanism concerning sanctions connected to it, be it the indirect safeguard of the community[64]. Before the declaration of the referred penalties which are principally aimed at the conversion of the offender[65], an objective which can never be considered foreign to proper personal exigencies. The possibility to remit in the internal forum, before the declaration, is obedient besides, the eventual severity which can represent for the faithful who remains hit by the penalty (canon 1357).

The non-compulsory nature of the penal intervention reduces the community’s options for pursuing answers in merit to: the culpability of the offender[66]; the latest motivations which led the offender to commit a crime; to the modality put in place to repair scandal, and; to the methods used to restore the social order infringed[67]. Such exigencies of the community can be considered safeguarded, though weakened, in the duty of the Ordinary to initiate the preliminary investigation, without perhaps the referred expectations of conveying information to the community, and, in case of not initiating the resulting process, guaranteeing the employment of different provisions from those which lead to the decision in itself. Thus, it demands a rigorous evaluation by the Ordinary in the meeting of apparently opposing expectations: the pursuit of the good of the christifideles and the protection of the entire community from scandal.

The lack of certainty of the penalty, due to its substantial prevision, derives from the indeterminateness of the same in the great number of delicts. In respect to the effectiveness of its application, and even when the Code of Canon Law provides some obligatory determinate sanctions, the canonical norm attributes to the judge the faculty of a kind application, be it the transfer of the penalty to a more opportune time, or the suspense of the penalty’s obligatoriness. Such measures, clearly beneficial to the faithful, are not in conflict with the needs of the community, being the safe fulfilment of the latest condition put in place so that the judge or the authority responsible can make use of the measure referred to. The judge and the authority perhaps will have the same role, before referred to the Ordinary, to act with equipose.

In the stage of application of the penalty, recall is made to the condition put in place in the canonical system for the constitutive stage of penalties in the eyes of particular legislators. Such conditions are the foundation for the interpretation of the penalty as the last resort, so that in an analogy with the provisions of canon 1317, the authors maintained that the penalties must be applied only if “really necessary for the better maintenance of ecclesiastical discipline”[68].

In this sense, penal sanctions in the canonical legal system are never an end in themselves, but are rather a means to resort to only after the Ordinary has ascertained the failure or insufficiency of other means, referred to as “pastoral solicitude”. To attain the medicinal purpose (reform of the offender) and the expiatory purpose (repair of scandal and restoration of justice), the Ordinary is called upon to use other means, without the necessity of the penal means as extrema ratio, demands an elaborate, just and balanced judgment which attests to the insufficiency of the employment of other means mentioned in the law[69]. This affirms that the legal system of the Church places excessive trust in the ability of the Ordinary to choose which of the means to follow. However, such a trust is a reflection of the pastoral munus (duty) which is proper to Ordinaries in the mission of the Church[70]. The pastoral character of the penal canonical law can be confused with a sort of impunity of the delinquent and, in consequence, with a weak recognition of the legitimate interest of the community.

An Ordinary’s excessively gentle attitude can occur as a result of their lack of awareness regarding the available and appropriate procedures and assessments, or because of an underestimation of the gravity of the consequences of a delict. This has incurred the intervention of the Holy See, in an endeavour to make up for the fault and neglect incurred by the Ordinaries[71].

It is also important, at this stage, to mention the m.p. As a loving mother, in which Pope Francis, on 4 June 2016, reaffirmed juridical and moral principles proper to the Magisterium and to canonical system. The Pontiff, after having recalled the love that the Church nurtures towards everyone, especially those who are smaller and vulnerable, crystallises some concepts which now assume a more precise legal meaning. As it is well known, the protection and care of children and vulnerable persons is the responsibility of every Christian faithful[72]; this commitment, however, is particularly fundamental for those who hold greater responsibilities within an ecclesial community. Indeed, in article no. 1 of the aforementioned m.p., As a loving mother, it is envisaged that a diocesan bishop can be legitimately removed when he has negligently committed serious injuries, be they to the detriment of a natural person or of the entire community[73]. For this to occur, however, it must be shown that the Ordinary has very seriously lacked the due diligence demanded by his pastoral office, although it is not required that this occurred following a serious moral fault on his part. The body delegated to undertake this procedure is the department of the Roman Curia that has competence in this matter. The motu proprio of Pope Bergoglio therefore intends to strengthen the criteria for the procedure to be followed in the event that there is a serious negligence committed by a Bishop; gravity may force him to be removed from office, a hypothesis that is also consistent with what is contemplated in canon 193 of the CIC[74].

The onus is on the Ordinaries to decide if to proceed or not, according to the presence of the required elements outlined in canon 1718, §1, as well as to determine whether to follow either a judicial or administrative process[75]. Since the application of latae sententiae penalties is automatic and coincides with the moment of the commission of the delict, the decision to initiate the process on the part of the Ordinary can fall within the judicial or extrajudicial process. The Bishop must act without any kind of prejudice to the fact that the sentence or the decree which concludes both processes[76] hypotheses of opposed signs unconvincingly advocated by some authors[77].

The penal process does not have the primary goal to impose or declare a penalty; but rather to achieve the triple goal of the penalty itself. The restoration of justice, which encapsulates also the repair and the compensation for damage, is our ultimate objective and begs the question of which modalities are more congruous for arriving at this goal, which favours the good of the individual as well as the good of the community harmed by the delinquent behaviour of the offender.

Canon 1342, in leaving to the Ordinary the choice to impose or declare a penalty by extrajudicial decree[78], demands that there be the existence of just cause, which is opposed to the use of the judicial process. This allows the entire canonical system to sustain an implicit preference for the judicial process, on the part of the legislator, without perhaps giving a rise to a compulsory manner nor clear preference; the meaning of the just cause engenders in effect diverse interpretations, whose discriminating point is if it is to be understood only as a cause which hinder the judicial process, as the tone of the law seem to demand, or causes which favours the extrajudicial process[79]. Besides, the inexistence of just causes, paragraph two of canon 1342 establishes other exceptions when the extrajudicial process is used: firstly, the impossibility to inflict perpetual penalties by decree (whose gravity require great caution in the applicative stage), for example, the dismissal for the clerical state which can only be established by universal law, according to canon 1317, and; secondly, when the law or precept forbids the application of the penalty through a decree.

There is the need to note that, though regulated with the aforementioned exceptional limitations, recourse to the extrajudicial penal decree can be possible, overcoming such limits, put in place that is to say besides, the extraordinary measures typical of the canonical system, which is to be applied generally case by case. In this manner, obtaining a special faculty, it would not be impossible to impose by the extrajudicial decree perpetual penalties of the dismissal from the clerical state.

On the other hand, the measures taken into consideration when a decree is to be emitted are regulated by canon 50, where it provides for the only procedure the necessity to listen to those whose right can be harmed, but also “as far as possible”, that is to say with a real guarantee that the prior listening of the recipient of the penal decree be materialised.

The imperfections of the Code on the mechanism to apply penalties are relatable to the guarantees of the offender and the adequateness of the procedure modalities. In view of this, it may be favoured that the imposition of the penalty may help they who commit an offence to internalise the values of the legal system and be reconciled with the victim. Such imperfections can respond to the need of the Church to act with efficiency and not remain indifferent or inert in the face of delicts which are committed within; it would be a betrayal of her mission and on the part of the pastors, coincide with the failure of their responsibility. For this reason, canon 1341 is not translated as indifference when it pertains to delict, or simply as inertia in the attempt to restore justice in helping a christifideles who has committed a delict to conversion. The problem, on which we will be focusing, is to determine the best option to eliminate the ill consequences (on the individual and on the community) of offensive acts. The choice to undertake the procedural way, as seen, is possible even if it does not always prove to be the more suitable to embank that which is created by the commission of the delict. If the penal canonical purpose is sufficiently achieved, the Ordinary must renounce to initiate the entire process[80].

6.Understanding the legal structure

Now that we have analysed the legislative structure of the Latin Code on the aspects of the function and application of the penalty, we turn our focus to the problems which emerged according to the double objective. Firstly, we consider the difficulty in reconciling the ultimate goals of the legal system with the imperfections apparent in the legislative purposes—the negative effects of which can be aggravated at the point of interpretation and in practice, with respect to the necessary agreement of penalties with such goals. Secondly, there is the matter of ensuring the necessary technical support for the penal material, which cannot be compromised in the eventual imposition of a sanction[81].

Considering the penal canonical system in its entirety, as a single normative body, we will indicate, first of all, the problems which are still unresolved in the substantial aspect, which relate back to the question of the attribution of a unitary function to the penalty. We will then deal with the procedural problems, which are dependent on the surety of the efficient participation of the various subjects involved, in order that the imposition of the penalty is coherent with the said function. Finally, we will deal with the theme of restorative justice, to consider it a central element for the unification of both substantial and procedural aspects.

6.1        Substantive matters

The difficulty in attributing a unitary function to the penalty with sufficient clarity is owing to the intentional omission of a definition of the sanction. The point of contention is whether the deprivation of some good is essential in the classification of a sanction as a penalty. The rationale for the affirmative is based on the strength of the definition contained in the former Code[82]. However, the same Code established effects of certain penalties and penance from the positive content, insisting thus in the imposition of behaviour—which does not necessarily imply that the recipient be deprived of a right or some good. A similar position is maintained in the current Code[83]. The most compelling reasons to consider the penalty as a scheme to achieve good include, for example, the qualification found in the CCEO where penance is clearly classified as a penalty according to the express prevision in canon 1413 of the Eastern Code[84].

In this sense, it appears necessary to yield to a technical formula which does not compromise the canonical tradition nor the penal nature of any ecclesiastical interventions, which are oriented towards the good of all the subjects and elements involved. This approach reduces confusion between the penalty and other interventions which are not of a penal nature[85]. Regarding this point, there have been useful hypotheses advanced in the extra-canonical field. A more distinguished doctrine cautions that a sanction which must be meted out upon the commission of a delict, must be consistent with the offender’s actions; not in the sense to reproduce the delict’s negativity, but to express in the sanction’s contents the value of the goods infringed, within the limits of the guarantee of the law. Where such an expressive force of the sanction can be reached, it employs restorative practices and conciliative procedures. These practices and procedures, put in place in certain situations, promote the active and reformative behaviour of the offender above the notion of retributive suffering[86].

The attribution of a unitary objective to the penalty is made equally difficult by its residual nature: a formula not used in both Codes but established in the reports by the commissions in charge of the revisions of the Church’s legal system. This was a clear reflection of the Church’s tradition of engagement and response in front of negative actions committed by the Christian faithful. The problem is in relation to the substance and application of a sanction. In determining that which renders inevitable the penalty, the doctrine seems to infer that the justification of the penalty must include the exhaustion of all prior means to its imposition[87]. Thus, this would reduce the functional incidence of the penalty’s last resort nature, granting greater freedom to the offender to reform themselves, while, according to the law, the inevitability of the sanction remains inextricably tied to the impossibility of achieving the function of the defence of the social order in other ways. This more meaningful condition for the constitution of a penalty, put in place by particular legislators, is necessary to safeguard ecclesiastical discipline. It also allows us to consider that the function of the penalty could be understood in reference to the same objective as the preventative function of sanctions.

Further points of contention in interpreting a unitary function of the penalty emanate from the source of the repair of scandal and damages, as attributed by the Codes of Canon Law. It can be argued that the two concepts coincide in the exigency to satisfy the victim. Firstly, a physical person may be identified as the victim of a delict. Secondly, the community may be either an additional victim or the sole victim, particularly in the case of a scandal—a concept primarily relating to delicts put in place for the faithful who hold an office of responsibility[88]. Since both Codes agree that the question of damages to the physical person is resolved without imposition of sanctions,  a risk remains that the repair of damages to the community may be a motive for the attribution of the penalty functions of exemplarity, dependent on the objective gravity of the delict[89]. The extracanonical doctrine cautions that the duty to express the gravity of the offence committed cannot be ascribed to the penalty, as this is the task of the penal trial[90]. Emerging in canon 1399 is the augmentation of such risk and promotion of the passivity of the ecclesial authority in the sphere of prevention, with the inevitable perception of the penalty as a tardy instrument of government, and the clarification that this same authority is not complicit in any subsequent delict.

Finally, regarding the role assigned to the instruments employed to initiate the decision procedure, especially admonition, the function of the penalty cannot be separated from the safeguard of the values of the legal system, whose authority may not always be coherent to make it depend solely on the severity of the penal reactions. On the contrary, the mandatory instruments of persuasion of the offender—at least, pertaining to delicts which include habitual behaviour—require the consideration of the consent of the recipients of the norms. This reflects the principal source of authority according to the values protected by the penal point of view, and the free adherence to the same on the part of the person who is found in the occasion to have committed a crime. Such a consensual arrangement, besides aiding in the prevention of delicts, also influences this authority’s effects in the period of the application of the penalty.

6.2 Procedural matters

The previous distinction between the function of the penalty and the function of the penal process, be it in relation to the damages which follow on the commission of the delict, or be it in respect to the objectives of the re-education of the offender towards the values of the legal system, permits us to delve into the procedural aspects where the essential problem becomes most apparent. In particular we must consider the efficacy of the guarantees offered by the norms concerning the participation of all the subjects involved, and also carefully evaluate all the elements and objects used to determine the imposition of the sanction.

With respect to the participation of the subjects involved, the analysis conducted has demonstrated a great defence of intervention for the offender in the CCEO, be it for the subjection of the offender to the extrajudicial process, to the general condition of the prior certainty about the proofs of the offence, or above all for the assurance of the obligation to listen before issuing the extrajudicial penal decree. The object of the listening must be on the sphere of imputability, though placed among the objects of the prior investigation[91]. The active participation of the offender in the preliminary investigation is not regulated in detail. As such, for which it is reasonable to consider that the obliged certainty of the proofs, which consent to the extrajudicial process, though established about the delict in itself, may reach with certainty only to the external event.

The Code does not specify particular details regarding the active participation of the victim of the delict, which may be a physical person. The victim’s participation is limited to the matter of compensation for damages suffered, be it relating to a contentious case in the penal judicial process, or through the availability of a solution according to equity. In either case, this participation by the victim is not only a type of extrajudicial trial, but must be properly considered as entirely extraprocedural, in as much as it is not dictated by administrative nor judicial penal processes in the Code. The committal of the penal action to the promotor of justice—who represents the community, which may be either the primary victim of the delict or additional to an individual victim—entails that the participation of the victim (whether a physical person or not) is not regulated in direct relation to the penalty’s principal objective: the reform of the offender.

The medicinal scope of the penal canonical system, integrally understood, is not exhausted, but not even set aside the horizon of the reform of the offender. This notwithstanding, it can be maintained that reform is the principal duty of the penalty, and to a lesser extent this can also be said of the penal process[92]. The extracanonical penal doctrine values the conciliative nature of the procedural direction, which orients to not separate, upon the commission of an offence, the proper exigencies of the State or the law in itself, and the exigencies of the victims of the criminal activity. In the canonical field, the more authoritative doctrine emphasises the dialogical nature of both the means of reconciliation alternative to the process, and the procedural[93] instrument in itself. In the penal sphere, the dialogical character of the process is oriented suitably to ensure that the law aptly functions as a motivation for future observance, by conviction, of the violated norms, to strengthen their authoritativeness. Furthermore, to integrate the objectives of the recovery of the dialogue between the agent of the offence, the legal system and the victims[94].

7.    Restoration of justice as the fundamental goal

We now turn to the central hermeneutical problem, from which we can ascertain the source of the difficulties concerning the function and application of the penalty and from which can be derived a profitable key of interpretation. In particular, we hope to confront the various tensions emerging at the point of the application of the penal laws. The restoration of justice may be such a key, as either a function of canonical sanctions or as a guiding principle at the point of application.

The primary foundation of this proposal is derived from the norms and doctrine of some authors, as we have sought to demonstrate in the analysis thus far, even if they are not compelling[95]. The basis of a positive sign, though foreign to the legal formulae, is revivified in some pronouncements of the Magisterium over the last fifty years. Of this doctrine, focus will be placed now on four sources: an official address by Paul VI during the period of the revision of the Code; various interventions of John Paul II before and after the promulgation of the CIC; the Lenten message of Benedict XVI in the year 2010, which has the specific objective of justice as its theme; and finally, the very recent address delivered by Pope Francis to the Plenary of the Pontifical Council of Legislative Texts, 21 February 2020.

In his address in 1970 to the members and workers of the Roman Rota, Paul VI recalled that the exercise of the coercive power of the Church is for the unique purpose of service to the moral and spiritual integrity of the entire Church, and of the same good of the person who commits a delict. To support this assertion, we refer to the testimony of the experience of the primitive Church by St. Paul in the letter to the Corinthians, where severe actions and processes are employed[96]. There is therefore no purview to separate the good of the person from that of the community. If the offender continues to be part of the entire Church, there is no risk to maintaining the unitary function of the penalty as the restoration of justice, which is founded on the identity of the Church.

Such a formulation is equivalent to the understanding of the penalty as an instrument of communion, as conveyed by John Paul II[97]. To consider the penalty as an instrument to restore justice, which is based on the identity of the Church, appears to be a more incisive approach, as it expresses not only the objectives of the sanction but also the contents and criteria for the application of the sanction.

The abovementioned deduction strengthens that which was affirmed by the commission for the revision in their presentation of the scheme of the Latin penal law. On that occasion, the commission made an explicit reference to the address of Paul VI, who maintained that the Church seeks the integral good of the Christian faithful, not only communicating to them the typical goods but also preserving them in the journey of salvation. Paul VI also emphasised the Church’s role in using helpful means to prevent the Christian faithful from abandoning it, or to aid their reintegration if they become distant from the Church. The usefulness of the means to such objectives of salvation must illuminate on the fact that the Justice which must be restored with the penalty is Salvific Justice, based on the mystery of the cross. This Justice is essential to the identity of the Church, as well as constitutive of the ultimate good which it bestows on every member and announces to the whole world, with its proper witness.

There are perhaps, other interpretations of justice whose definition of restoration competes with the penal sanction. Among these, if we draw theoretical support strictly among canonists, we must give attention to the retributive interpretation of justice and its reduction to the sphere of legal justice, one of which would be licit for the law to invest in. The two orientations are rooted in the imperfections of the legislative formulations already indicated[98], which can lead to a retributive vision, and relate to the generic objective to repair of scandal and to the norms of canon 1399 in the Latin Code, and canon 1406 in the Eastern Code, where there is an equalisation between admonition and the penal precept. The two aforementioned orientations are not congruous with the doctrine of the Magisterium and do not give sufficient enlightenment of the ultimate goals of the legal system. However, they do legitimise the more radical connotations of the existing analogous orientations outside of the science of canon law[99].

Thus, with respect to the restoration of a solely retributive justice, it is sufficient to refer to the Lenten letter of Benedict XVI, in which he recalls that justice is understood as “dare cuique suum.”This leaves unresolved what may be assured to each person and gives weight to the idea that evil and injustice are realities external to the heart of every human being. Confronting these realities is sufficient to remove the exterior motives in order to respond to the others[100]. As such, efforts to resolve the tension on the basis of the distinction between delict and offender, for which the penalty is annexed to the delict, must be typified as the efficient reaffirmation of the that which the delict negates. This idea can be enriched by the doctrine of the Magisterium. Therefore, the restoration of justice and the expression of the penal response of the juridical system of the Church—in accordance with its objectives, contents and methods—cannot be neglected from the exigency to structure itself by a logic which trusts in love[101], by a piety which gives relief to misery, and by a gratuitousness of expiation modelled on that already accomplished by Christ, not produced by human sacrifices. This cannot be actualised by means which are derived from the objective of the infliction of suffering, nor by means employed according to their capacity to arouse indigence towards others and elicit forgiveness and friendship in the form of positive gestures of love.

According to the assertion that it is impossible to attribute to penalties the objective of restoring a justice greater than legal justice, the constant direction of the Magisterium is derived from numerous interventions, following the promulgation of the CIC. All of these interventions solicit every effort to facilitate the convergence of real and legal justices, yet within the inevitable limits of the instruments of human justice[102]. The doctrinal constructions which are founded exclusively in the consideration of the delict as legal injustice are therefore limited. They neglect other dimensions of injustice and induce us to consider that the imposition of the penalty only needs to repair the just social order. Consequentially, this neglects the imposition of those penalties which only stimulate a change in conduct by the offender, which may lead to a restoration of a more perfect idea of justice, but perhaps without adding to the restoration of social order. Therefore we understand that in one case, reform is not realised; in the other case, justice may be considered incomplete in a different way[103].

In a recent address to the plenary session of the Pontifical Council for Legislative Texts, 21 February 2020, Pope Francis stressed the pastoral nature of any sanctioning intervention within the Church, after also recalling the main pillars of any kind of canonical penal intervention. A sanction cannot be separated from “salus animarum” as the ultimate goal and principle. The Pope, focusing his attention particularly on canon 1341, recalled how the reparation of the evil resulting from a crime, together with the good of the same offender, are fundamental purposes for any penal intervention, and must be read and implemented in a unitary way. Lastly, the Pontiff points out that the role of every Bishop, who is judge and pastor of their Christian faithful, must be aimed at promoting the real and full communion of all the faithful within the Church, even if there have been breaches in a community resulting from a delict[104].

8.   Conclusion

To conclude this analysis on the function and application of penalties within the Church, I would like to emphasise some key points regarding perspectives on restorative justice from extracanonical fields. Our analysis thus far has aligned with the widely-held view that every penal system must be constructed on the basis of Justice, and not revenge[105]. To this end, we must consider that the two orientations to penal justice indicated above (retributive justice and legal justice) are not gratuitous manifestations of the closed positions impressed by the Magisterium. On the contrary, they are a reflection of a genuine difficulty, which emerges as a particular burden of the penal canonical system. As such, there is the exigency to ensure that the system is provided with the necessary technical support, which is a surety of the obligatory legality of both the law and the canonical system. The solidity of the latter would be at risk if the informative principles of the legal system of the Church were transformed to the demolition of the typical cardinals of every coercive system. In an effort to resolve this conflict, the more common approach is to create a clear distinction between the absolute technical rigour of the penal law of the Church, according to more secure and tested models, and its effective application. It is cautioned however that the inviolable nature of the juridical rigour of the penal law does not grant license for this distinction.

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