Citations regarding Church Remedies

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Promoter of Justice Supreme Tribunal of the Apostolic Signatura

Page 248-249

[I]n the absence of a clear framing of illegal actions within the well-defined figure of a delict provided for in canon law, it will often be prudent for the competent authority first to give a pertinent penal precept with a threat of a penalty in case of disobedience (c. 1319)([note]7) It seems that in the latter event the Ordinary could then proceed fairly easily with an adminsitrative penal process, at least when he does not intend to impose a perpetual penalty or another penalty that cannot be imposed by decree (c. 1342. §2).

Footnote 7. Cf. also c. 1371, 2: "A person is to be punished with a just penalty... who otherwise does not obey a legitimat precept or prohibition of the Apostolic SEe, Ordinary or Superior, and persists in disobedience after a warning."

Bibliography
Daneels, Frans, O. Praem (Promoter of Justice Supreme Tribunal of the Apostolic Signatura, Rome Italy). "The Adminsitrative Imposition of Penalties and the Judicial Review of Their Legitimacy." Dugan 245-255
Dugan, Patricia M.The Penal Process and the Protection of Rights in Canon Law, Proceedings, Gratianus Series. Montreal: Wilson & Lafleur Ltee, 2005. ISBN 2-89127-664-7

Secretary of the Supreme Tribunal of the Apostolic Signatura

Page 153-154

II The Notion of Offense
In the 1917 Code we find the following definitions of an offense, provided by the legislator himself in canon 2195, § 1: "Nomine delicti iure eccclesiastico, intelligitur externa et moraliter imputabilis legis violatio cui addita sit sanctio cananica saltem indeterminata."[5] This is clearly a valid notion in canonical penal law. It is one that come from positive law, as various element make clear. First of all, there has to be an external violation, because other kinds of violation (such as those that take place entirely within the "interior" world or that do not have any significant impact on the physical world and therefore on human relationships) are not taken into consideration by the penal law of the Church. Furthermore, there has to be a pre-existing penal provision in the form of the specification of a penal sanction saltem indeterminata ("at least indeterminate"). But the most fundamental elements go beyond law and legislation. In fact, these are necessarily related to element that lead us into the realm of moral doctrine. There has to be a violation that is "morally imputable." Moral theology calls a grave violation of the law a "sin," appealing to the conscience of the person in his or her deepest relationship with God Himself. In fact the legislator requires, for there to be an offense, that there should be a gravely imputable violation of a law. In theological terminology this means that there has to be a mortal sin. From this it follows that there is a distinction - although there cannot be a separation - between an offense and a sin. There is a distinction, because the concepts of sin and offense do not exactly coincide with one another; but not a separation, because underlying the notion of offense there is always a grave moral fact. The new Code does not offer an definition of offense , but for practical purposes it presupposes the same doctrine as previously, albeit with a certain nuance, which it is worth drawing attention to.

Even though the notions of offenses and penalty found in the 1917 Code are not defined in that 1983, this is not because of any desire for innovation in this area, but simply because, as a matter of methodology, the legislator has followed the principle that it is no for the legislator to give definition (that is the role of doctrine), and a principle of Roman law: periculosum est in iure definire. [6] As a matter of fact, commentators commonly accept that the notions of offense and penalty are the same as in the previous Code. However a certain novelty is worth mentioning, even though it does not have an innovative effect on the legal system overall. While the notion of offense remains the same, it is also true that ignorance of penal sanction is merely a reason for mitigating the penalty. In fact the general principle that states that an offender is liable to be punished does not actually refer to any penal sanction, but simply says that in the Church no on can be punished, "nisi externa legis vel praicepti violatio, ab eo commissa, sit graviter imputabilis ex dolo vel es culpa."[7] Nor shuld it be forgetten that canon 1330 further provides that "delictum quod in declaratione consisitat vel in alia voluntatis vel doctirneae vel scientia manifestatione, tamquam non consummatum censendum est, si nemo eam declarationem vel manifestationem percipiat."[8] Thus the fact that there is an external physical aspect is no longer sufficient in itself; that has to be accompanied by a lest a minimum of public awareness of the offense having been committed.

5. "An offense in ecclesiastical law means an external and morally imputable violation of a law to which a canonical sanction, at least indeterminate, is added."

6. "In law it is dangerous to define."

7. "Unless the commission of an external violation of a law or precept... is gravely imputable by reason of malice or culpability": cf. c. 1312.

8. "An offense which consists in a declaration or in some other manifestation of will or of doctrine or of knowledge, is not to be regarded as effected if no one actually perceives that declaration or manifestation."

Bibliography
DePaolis C.S., Velasio (Secretary of the Supreme Tribunal of the Apostolic Signatura). "Penal Sactions, Penal Remedies and Penances in Canon Law" Dugan 145-182
Dugan, Patricia M.The Penal Process and the Protection of Rights in Canon Law, Proceedings, Gratianus Series. Montreal: Wilson & Lafleur Ltee, 2005. ISBN 2-89127-664-7