Presumption of Law, Fiction of Law and Ecumenism

Abstract

Antiphon 18.2 (2014) 144–164 Presumption of Law, Fiction of Law and Ecumenism Ansgar Santogrossi, O.S.B. One of the areas of canon law strikingly affected by the Second Vatican Council (1962-1965) was communicatio in sacris and the administration of sacraments to baptized non-Catholics. A recent work, Eucharistie et œcuménisme, required over 800 pages to study the 1983 code and the evolving universal and local directives governing the administration of the sacraments to non-Catholic Christians under certain conditions.1 Lack of space alone may have prevented the book from comparing the new directives with the traditional discipline still in force at the time of the Council, but since then, a conference given by the current president of the Pontifical Council for Promoting Christian Unity has implied the desirability of such a comparison: the “new ecumenical turn” is linked in “fundamental continuity with the tradition,” despite a widespread hermeneutic which sees in ecumenism (as in other developments) a reversal of previous Catholic teaching.2 Consequently, despite the changes in canonical discipline since Vatican II, knowledge of the ancient discipline on communicatio in sacris, encapsulated in the 1917 Code of Canon Law in force during the Council, would be beneficial to the Church today , for ecclesiastical discipline is in harmony with the unchanging faith of the Church. In an effort to demonstrate this harmony and continuity, the present article will expound the theological basis and intention of the traditional discipline as crystallized in the 1917 Code. Next, it will argue that only a de facto application of canonical fiction of law and presumption of law allowed Vatican II to revise sacramental 1 Georges-Henri Ruyssen, Eucharistie et oecuménisme: évolution de la normativité universelle et comparaison avec certaines normes particulières: Canons 844-CIC et 671-CCEO (Paris: Cerf, 2008). 2 Cardinal Kurt Koch, cited in “Priest Reflects on Old Liturgy in Church’s Future,” Zenit (May 16, 2011), at http://www.zenit.org/article32593 ?l=english. 145 Presumption of Law, Fiction of Law and Ecumenism discipline in the context of ecumenism. My conclusion will be that despite the basic legitimacy of the current regulations understood as a kind of fiction and presumption of law, the older discipline was, in general, a more adequate witness to the unity of charity and the public profession of faith in Christ’s Church. Finally, when de facto “presumption of law” and “fiction of law” are used to characterize underlying attitudes of the Church over time with regard to the separated brethren, no claim is being made that the Council in particular had these terms in mind, but only that its manner of viewing and treating non-Catholic Christians flowed from a basic possibility of lived social experience and practice which must precede the explicitation of those terms in law. Put differently, it is because human beings sometimes judge on the basis of a limited aspect of reality in a given social context that legislators are able to establish “presumptions of law” for the public forum; and it is because human beings sometimes decline to take account of certain aspects of a reality in a given social context that legislators can establish “fictions of law” for the public forum. The presumption and fiction of law that we will attribute to Vatican II regarding communicatio in sacris were, it will be claimed, lived rather than enacted, but no less real for that. I It is in the sacramental section of the 1917 Code, and in the immediate context of the diligentia et reverentia required for the administration of the sacraments, that canon 731 formulates the following prohibition: “It is prohibited to administer the sacraments of the Church to heretics and schismatics, even to those erring in good faith and requesting them, unless, errors having been rejected, they are reconciled to the Church.”3 Other canons, the Rituale Romanum, common teaching and traditional practice explained the need for the reconciliation with the Church mentioned by canon 731.4 That need can be summarized as follows: 3 Code of Canon Law/1917, can. 731, § 2: “Vetitum est Sacramenta Ecclesiae ministrare haereticis aut schismaticis, etiam bona fide errantibus eaque petentibus, nisi prius, erroribus reiectis...