Tuesday, January 18, 2011

Diaconal Continence and Canon 277 - An Inconsequential Response -- Updated 1/26

Whether or not this response to Dr. Peters's argument is of consequence, I hope I avoid the mistake of letting it be consequence-driven. I have hesitated to comment in public on Dr. Peters's article, because my expertise is elsewhere. I offer this response in the spirit of collegial dialogue, not as the last word, and, as I have previously stated, as an act of fraternal service to those most disturbed by the current fracas.

Canon 277 reads thus: "§1. Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity. §2. Clerics are to behave with due prudence towards persons whose company can endanger their obligation to observe continence or give rise to scandal among the faithful. §3. The diocesan bishop is competent to establish more specific norms concerning this matter and to pass judgment in particular cases concerning the observance of this obligation."

Dr. Peters's argument about Canon 277 hinges on whether "continence" and "celibacy" are two separate obligations on the clergy, or two aspects of one single obligation. If they are two separate obligations, then I can't refute his conclusion that only the obligation of celibacy is removed for married clergy. (Someone else more versed in canonical argumentation that I might still do so, but to my knowledge, no one has.) But if they are together one single obligation, then permitting a married man to receive Holy Orders as priest or deacon removes together both parts of the one obligation.

Here are some reasons one could argue that the latter option is the correct one:

(1) Since this article appeared in 2005, Pope Benedict XVI has written the Apostolic Constitution Anglicanorum Coetibus. One of the canonical provisions of this document reads thus: "VI. § 1. Those who ministered as Anglican deacons, priests, or bishops, and who fulfil the requisites established by canon law[13] and are not impeded by irregularities or other impediments[14] may be accepted by the Ordinary as candidates for Holy Orders in the Catholic Church. In the case of married ministers, the norms established in the Encyclical Letter of Pope Paul VI Sacerdotalis coelibatus, n. 42[15] and in the Statement In June[16] are to be observed. Unmarried ministers must submit to the norm of clerical celibacy of CIC can. 277, §1 [see above]. § 2. The Ordinary, in full observance of the discipline of celibate clergy in the Latin Church, as a rule (pro regula) will admit only celibate men to the order of presbyter. He may also petition the Roman Pontiff, as a derogation from can. 277, §1, for the admission of married men to the order of presbyter on a case by case basis, according to objective criteria approved by the Holy See."

Notice here two things. First, Pope Benedict identifies the core of Canon 277.1 in the "norm of clerical celibacy," not the norm of perfect clerical continence, to which celibacy is ordered as a secondary good, as Dr. Peters argued. Second, the permission for married former Anglican clerics to be ordained as married Catholic priests or deacons includes a formal "derogation from" Canon 277.1 -- that is, one single derogation, as from one single obligation.

(2) The encyclical of Pope Paul VI referenced above, Sacerdotalis Coelibatus, consistently uses the term "celibacy" for both the concepts of celibacy and clerical continence. Only in #34 does the term "continence" show up, where it is taken from another source (namely, Perfectae Caritatis #12, wherein it is used interchangeably with "chastity"), and in the context of this section of the document seems equivalent to "celibacy."

So one might conclude that Pope Paul VI also thought "celibacy" and "continence" to be aspects of one single obligation or commitment of clergy.

(3) If that's true, then in permitting married men to be ordained to the diaconate, Pope Paul VI did in fact exempt them from both celibacy and continence together, in his motu proprio Sacrum Diaconatus Ordinem: "Therefore, in the first place, all that is decreed in the Code of Canon Law about the rights and obligations of deacons, whether these rights and obligations be common to all clerics, or proper to deacons--all these, unless some other disposition has been made-- we confirm and declare to be in force also for those who will remain permanently in the diaconate. In regard to these we moreover decree the following...." Rather than finding celibacy in what followed (#2, 11), and continence in what remained, both together are exempted for married men in what followed.

(4) Pope John Paul II also used "continence," "celibacy," and "virginity" interchangeably in his Theology of the Body audiences. (See especially Audiences #74-77, on interpreting Mt 19:10.) Granted this is not any kind of canonical or quasi-canonical source, but it's consistent with his predecessor and successor, and I would not be surprised, if one went looking, to find it in suitable canonical sources also.

I note, finally, that this argument makes rather more sense of the past four decades of Latin practice than the "two obligations" argument. Dr. Peters's conclusion implies a very serious discrepancy between law and recent practice. But this conclusion implies that recent practice is consistent with the law as written.

Therefore, I am lead to conclude (at least tentatively), Popes Paul VI, John Paul II, and Benedict XVI have all understood Canon 277.1 to involve one obligation, that of continence-and-celibacy, and not two separate obligations. In permitting married men to be ordained, both aspects of the one obligation are removed together.

UPDATE - Dr. Peters on the Anglicanorum Coetibus reference to Can. 277. Unfortunately his first point merely begs the question: is it one obligation or two? If one, of course AC is silent on continence as distinct from celibacy, while if two, why is it silent? His second point is technically correct, but I don't see that it actually answers the challenge. Yes, AC only applies to former Anglican clergy, but could it really be the case that there is one interpretation of Can 277 for one group of married clergy, and another for another group? It seems that such a difference would have to be explicitly stated in some canonical document, in order to overcome the presumption that this provision is being established for this group of clergy precisely because the normal interpretation of Can. 277 is "one obligation."


The Flying Dutchman said...

This is the best and most convincing answer to Edward Peters' article that I have read so far. I hope he will respond.

Dr. Edward Peters said...

Hi Deacon. You’ll understand that I cannot comment on every challenge to my thesis. Most of even the plausible ones still contain far too many implicit assumptions that need to be traced out before I can get the poster up to point to appreciate the reply. I simply don’t have time for that. Here, among several others, I’d have to walk people through what is the canonical relationship, if any (which you assume there is), between an encyclical and a motu proprio, that is, when a pope is writing as teacher, and when he is writing as legislator. That goes even more obviously for JP2’s Theology of the Body talks, which are irrelevant to our question. Explaining why, however, is time-consuming, but to say it without explaining it seems, well, arrogant of me. So, on most sites, I just say nothing.

Let’s stay in touch, I applaud the care with which you are trying to think things through.

Deacon David said...

Flying Dutchman, glad you may have found my thoughts helpful.

Dr. Peters, thanks for your kind words. I agree that what I have posted above is only the barest sketch of a possible line of argument. I do think there's enough of a hint here to be worth pursuing.

The four sources I list above are only those I know off the top of my head, and aren't sufficiently systematic by themselves. I would be most interested, when I have time or if someone could do the legwork for us all, to read carefully through all the appropriate canonical sources from these three popes, to see how much "one obligation" and "two obligations" are each supported. (I don't suppose you have a grad student who's looking for a project...)

daniel said...

I have posted this elsewhere, but it might help some reader here:

I consider that the strongest argument against Peters' misreading of the present code is the commitment to perfect continence that canon law has always required of the the wife IN ADDITION to her consent to the ordination. In Western Tradition, a married man could only be ordained to the diaconate if his wife had taken a “vow of chastity” sanctioned by the ordaining bishop, or its equivalent. Peters ignores this aspect of the Western tradition. The fact that this requirement has been discontinued in current canon law gives a strong indication that the wife is not required to live “clerical continence”. Her consent to the ordination is required because there is more to married life than sex, and more to Holy Orders than its absence.

The promotion of married men to the diaconate without requiring wives to take the equivalent of a “vow of chastity” indicates that this is a development in the modern Church… better still, a return to the tradition as it was 1000 years ago. The bishop could choose to ordain a married man to the diaconate without a commitment to perfect continence, even though it was preferred that the couple would accept perfect continence.

The meaning of 277 is obvious to anyone with a proper estimation for the sanctity of marital relations and the importance of the obligations of a husband towards his wife. These obligations commute (and I am using the word technically) the clerical obligation of perfect and permanent continence, (which does apply to all clerics who do not have a conflicting obligation) to “a certain continence” for married deacons.

Western Tradition has always considered it necessary that the wife's consent to perfect continence be explicit if it was to be binding. The old law required that an ordinand’s “wife consented AND the bishop sanctioned the vow of chastity to be pronounced by the wife”. In his article, Peters writes that “the wife’s consent had to be formally pronounced because, unlike her husband’s obligations in this regard, hers are not already set forth in the text of the law.” Peters confuses the effect of the consent with the effect of the vow of chastity here. Clearly it was not her consent to the ordination, but the vow that set forth her obligations. Understanding the role of this vow undermines Peters’ argument that the consent of the wife to the ordination includes consent a life of perfect continence.

On another blog it is noted that Aquinas states: "The bond of orders dissolves the bond of marriage as regards the payment of the debt, in respect of which it is incompatible with marriage, on the part of the person ordained, since he cannot demand the debt, nor is the wife bound to pay it. But it does not dissolve the bond in respect of the other party, since the husband is bound to pay the debt to the wife if he cannot persuade her to observe continence."

Aquinas continues: "If the husband receive sacred orders with the knowledge and consent of his wife, she is bound to vow perpetual continence, but she is not bound to enter religion, if she has no fear of her chastity being endangered through her husband having taken a solemn vow: it would have been different, however, if he had taken a simple vow. On the other hand, if he be ordained without her consent, she is not bound in this way, because the result is not prejudicial to her in any way."

Note that in the second paragraph Aquinas says that the wife is bound TO VOW if she consents to the ordination - the consent is separate to the vow that flows from the consent. Obviously canon law has moved on from this logic and the situation seems to be as it is described in the first paragraph of Aquinas.

Therefore, a married man awaiting ordination who was aware of the law could ask: am I foregoing my right to request marital relations (c.277), while still being obliged to render them for my wife(c.1135) – is that what the law presently indicates, and is what is meant by “a certain continence”?

Dr. Edward Peters said...

Hi Deacon.

Looking over some of last month’s exchanges, I’ve come across several postings by one ‘daniel’, largely like that above. While my own discussions of this topic are now taking place in a different arena, I pause to offer you (and your readers) a couple of observations, in part because you have from the beginning attempted to deal with this question professionally, and in part because, it seems, the wider internet debate on clerical continence has underscored some serious requirements regarding how complex topics always need to be addressed, even in a context that does not normally lend itself to complexity. Briefly put, the standards for talking about this kind of matter, even in the blogosphere, are higher than some apparently assume.

‘daniel’, for instance, makes a number of errors/omissions in the post above, but two will suffice to make my point.

'daniel' writes: "Western Tradition has always considered it necessary that the wife's consent to perfect continence be explicit if it was to be binding."

It’s easy, I admit, to deny such a sweeping assertion, but I do deny it, and according to the rules of intelligent discourse, the burden is now on ‘daniel’ to support, amend, or (if he cannot) to abandon his claim. I would love to save him the time, but it’s his claim and his responsibility to back it up, not mine to disprove it.

'daniel' writes: "The old law required that an ordinand’s 'wife consented AND the bishop sanctioned the vow of chastity to be pronounced by the wife'".

I question whether ‘daniel’ knows what the phrase “old law” means in this context (and I assure readers, it means something very specific), and I deny that the “old law” (in the sense more relevant to our present discussion) ever “required that an ordinand’s ‘wife consented AND the bishop sanctioned the vow of chastity to be pronounced by the wife’” as ‘daniel’ directly asserts. But again, it’s ‘daniel’s’ burden to demonstrate his claims before facing rebuttal, not vice versa.

My points above are not merely the niceties of debating etiquette; there are serious and complex questions at issue here, and their discussion requires careful examination of sources and studies, and adoption of a coherent procedure for exchange. I have handled dozens of questions on this topic over the last month, some publicly, some privately, and in most cases I have been happy to do so. My replies to challenges, however, per force, must take a different tact. I apologize if my impatience with amateurism (sometimes approaching dilettantism) shows.

Cordially, edp.

daniel said...

I am glad that Peters is calling for a high standard in this debate – although it seems that what he means by a high standard are argument ad hominem assertions about amateurs and dilettantes. I am also glad that he is moving away from glib statements that "either c. 277 says what I say it means or it doesn't" to a more professional recognition of the complexity of the issue.

I am glad to abandon, as the outlandishly sweeping statement of a dilettante, my assertion that "Western Tradition has always considered it necessary that the wife's consent to perfect continence be explicit if it was to be binding". This statement was merely leading in to Peters’ much better wording of the crux of the matter... “the wife’s consent HAD TO BE formally pronounced because, unlike her husband’s obligations in this regard, hers are not already set forth in the text of the law.”

Peters is correct that the wife’s obligations are not “set forth in the text of the law”, and that therefore she was required to make a formal pronouncement of her consent to her new obligation of perfect continence. This is basically what Aquinas asserts, noting that, in the absence of such a vow, the ordination does not dissolve her right to the marital act.

Peters denies that “the old law required that an ordinand’s ‘wife consented AND the bishop sanctioned the vow of chastity to be pronounced by the wife’”. The professional place for Peters to have denied this was in his scholarly article where he quotes the canonist Dom Augustine who makes the assertion:
"Commentators on the 1917 Code also shed light on the notion of uxorial consent to a husband's ordination, ... Dom Augustine may be quoted on this point: “A married man, in order to receive higher orders licitly, now needs an Apostolic dispensation.... Here the [1917] Code is somewhat stricter than the old law, which permitted a married man to receive higher orders if his wife consented AND the bishop sanctioned the vow of chastity to be pronounced by the wife (emphasis added)”

Cholij also emphasises that the wife consents to “absolute continence” as an additional matter to her mere consent to the ordination, mentioning it as the general situation in the early Church: “A married man, once he received orders, was bound by the law of celibacy in this wide sense of absolute or perpetual continence, to abstain totally from relations with his wife, his wife having previously consented TO THIS before the ordination” (p2 of Clerical celibacy in East and West)

I therefore add Cholij to Dom Augustine as among the canon law dilettantes who consider, along with Aquinas, that the consent of the wife to live perfect continence is not implicit in her consent to ordination. I agree with Peters that perfect continence is an obligation for all clergy in the West, c.277 is clear. However I am not alone in affirming, along with Aquinas, that this does not dissolve the married deacon's debt to his wife. Under present canon law she is not required to renounce her right to the marital act so that ordination can go ahead.

It would be interesting for Peters to confirm (or deny) that the process of dispensation to ordain a married man during the time of the Pio-Benedictine code included a requirement for the wife to explicitly accept perfect continence in addition to her mere consent to the ordination.

Dr. Edward Peters said...

Hello “daniel”.

You’ll understand, I trust, my reluctance to open anew the too-many-to-count debates that my article provoke in the blogosphere. This site (SCDF) was one of the more responsible and, had I been more aware of it, I would have posted a couple more things here, back then, that I simply can’t now. Everything I wrote on this topic is available at http://www.canonlaw.info/a_deacons.htm including some items since the blogosphere debate wound down. I invite you to look at my original reply to you above, and a couple of concessions you made in your answer (and some points you did not respond to), and ask yourself what the implications are therein. Or at least, ask what I might find significant about them. If you are so inclined. (On at least one point, you write as if we disagree on something, when we actually agree. Which suggests you're not reading me carefully.)

One last thing, tho, re my comment that ‘the law either means what I say it means or it doesn’t’, that comment was not glib, nor have I retreated from it.

Best, edp.

daniel said...

Dr Peters, thanks for the reply.

In my opinion, your responses are avoiding the crux of the issue.
I agree that all clerics have an obligation to perfect chastity. However (passing over the issue of the absence of an explicit commitment from the ordinand), married deacons who were ordained by a bishop without requiring an explicit commitment to perfect continence from the wife also have an obligation to render the debt.

As an illustration, all Catholics have an obligation in canon law to assist at Sunday Eucharist. Sometimes however other grave obligations make this impossible and the Church exhorts us instead to carry out our obligation (or better privilege) to worship in some other way, such as spending time in prayer c.1247,1248.

The married deacon has an obligation that married love flourishes in his marriage, and the Church has prudently exhorted him to live a certain continence that will allow him to fulfil this marital obligation in a manner as in keeping with the nature of the clerical state as possible. The pastoral and juridical prudence of the Church in this is exquisite. I agree with you that at times diaconal formation could improve in this in some dioceses.

In order to benefit from the graces of a renewed permanent diaconate, the Church has removed the need for a dispensation for the ordination of a married man to the diaconate. At the same time, she has chosen not to insist that the wife (or the ordinand)make an explicit commitment to perfect continence.

It is my amateur impression that requiring this explicit commitment from the wife has overwhelmingly been the practice until the present code. Ask yourself why I might find the dropping of this requirement "significant".

I have asked for you to use your scholarly skills to confirm that the process for granting the dispensation during the time of the Pio-Benedictine code included a requirement that the wife explicitly undertake perfect continence.

If you are going to spend time responding to me, please respond to this point where your research expertise can help, or don't waste your time.

daniel said...

For those interested in the research by McLaughlin on this issue I have found a link that works:

McLaughlin in his doctorate also agrees that in the old law the wife had to vow to live perfect continence:
"Legislation in the Corpus Iuris Canonici dealt with this question.
The wife had to consent to her husband taking a vow of perpetual continence, and she
had to either take a vow of perpetual continence or enter religious life."

McLaughlin comes to the same conclusion as Peters: "Furthermore, if a change in discipline was intended, then this needs to be more clearly enunciated."
In other words, Peters and McLaughlin hold that if a change in discipline was intended then the law is deficiently written, (needing to be more clearly enunciated).

There is another alternative: JPII did intend a change and the law is clear as a bell as it is: Clergy have an obligation to perfect continence, although this obligation is impossible for a married deacon until his wife decides to consent to perfect continence, (a possibility that a married deacon should consider with his wife from time to time).