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Do Material Heretics Incur Excommunication? by Count Papafava

A Certain Question About Heresy In Relation to Canon 2314

by N. Papafava dei Carraresi

An article from the prestigious Canon Law review IUS PONTIFICIUM, 1931

According to Canon 2314§1 is it only formal heretics who are subjected to excommunication, or also material heretics? This question, as is evident, also applies to apostates and schismatics. Under Canon 1325§2, all those are held to be heretics who “while continuing to call themselves Christians, pertinaciously deny or doubt any of the truths which are to be believed with divine and Catholic faith”. So then, considering the meaning of the word “pertinacious” included in this paragraph, at first sight it seems that only those are included in the name of heretics who knowingly and willingly have denied any dogmatic truth – that is to say that it seems that good faith, accompanying the error, excludes heresy just as it excludes pertinacity.

However, this opinion is not easily reconciled with Canon 731§2 in which the legislator very clearly speaks of “heretics who err in good faith”. From which words it may justly be inferred that there is no contradiction in the existence of “heretics in good faith” (i.e. those who err in “good faith”) and their being considered “heretics”. Or, in other words, it can be inferred that Canon 1325§2 refers to all those who, putting aside the question of good or bad faith, have denied or doubted any truth which should be held with Catholic faith. For there are two kinds of heretics: some are called “formal”, namely those to whom, according to Cardinal Billot,(1) “the authority of the Church is sufficiently known”; others go by the name of “material” heretics, namely those who according to the same author, “being in invincible ignorance concerning the Church have chosen in good faith, some other guiding principle”.

Turning now to the penalties established against heretics, according to Canon 2314§1, (i), “each and every” heretic incurs, ipso facto [automatically, or by that very fact], the penalty of excommunication. So who are these heretics? Is this referring to all heretics without distinction or just to formal heretics? Undoubtedly according to the letter of the Canon which expressly warns that “each and every” one incurs the penalty of excommunication, especially if one bears in mind at the same time Canon 731§2 which speaks of “heretics in good faith” it would be concluded with certainty that all heretics even “material” ones are struck by the very same excommunication. But certain legal principles appear to stand in the way of this conclusion.

To be specific, excommunication, since it is a penalty (Canon 2241§1), presupposes a delict (Canon 2215) — and that must be a certain delict (Canon 2233§1) and one which is perfect according to its kind, according to the proper meaning of the words of the penal law (Canon 228). But the imputability of any delict depends upon the malice of the delinquent, or upon his guilt in being ignorant of the law violated or in omitting due diligence: wherefore all causes which increase, decrease or take away the malice or guilt, eo ipso [automatically] increase, decrease or take away the imputability of the delict (Canon 2199).

Now since the malice of the delinquent consists in his deliberate intention to violate the law, and since, moreover, malice is excluded on the part of the intellect by defect of knowledge (Canon 2200§1), this violation of an unknown law (and the same can be said of error and of inadvertence) is in no way imputed, if the ignorance were inculpable; but if the ignorance were culpable, the imputability is to a greater or lesser extent diminished. And this is also the case even if the penalty only, and not the law, is unknown (Canon 2202). It is not only that which excuses from any imputability, but also that which excuses merely from grave sin, which excuses from any penalty (Canon 2218§2).

In consideration of these things therefore, heretics who err in good faith (i.e. baptised persons who through inculpable ignorance or error violate the law contained in Canon 1323 which obliges belief with divine and Catholic faith in all those things which are contained in the word of God, whether written or handed down, and are proposed by the Church as having been divinely revealed) on account of their very good faith, in accordance with Canons 2202, 2218§2 and 2228, must escape any canonical penalty and therefore the excommunication mentioned in Canon 2314§1 (1): and thus this Canon applies only to formal heretics and not to material heretics.

But not withstanding these considerations, the opposite opinion seems more correct, i.e. that Canon 2314§1 (1) embraces both kinds of heretic. This opposite opinion recommends itself to us especially on the grounds that the public good of the Church, which is at stake in the most grave matter of heresy, cannot be jeopardized on account of the internal attitudes of the soul, such as the good or bad faith of the individuals concerned, since it is only with the greatest difficulty that such things can be either proved or disproved. And therefore, if, as we opine, Canon 2314§1 does not in fact apply to a person (in whom there can be a determinate act of greater or lesser culpability) but rather applies to the quality of the person (namely the state of holding a heresy) in so far as it is externally apparent and directly affects the public good, good faith or bad faith is not in the slightest relevant for causing or removing this quality, or – if it is preferred – this appearance.

The following arguments seem to support this thesis. First, seeing that, according to Canon 18, ecclesiastical laws must be understood according to the proper meaning of the words considered in text and context, the solemn and most comprehensive words of Canon 2314§1, “each and every heretic” (especially, as already mentioned, if these be compared with Canon 731§2) can mean nothing except all those without any exception who are legally termed heretics, whether formal or material.

Moreover, since it is known from Canon 19 that there are also ecclesiastical laws which “contain an exception to the law” it is crystal clear that Canon 2314§1 can contain an exception to the laws expressed by Canons 2202 and 2218§2, according to which inculpable ignorance or error, that is to say that which is supported by good faith, excuses from the law and therefore from the penalty attached to that law. For example, does not Canon 16§1 contain an exception from the law expressed by paragraph 2 of the same Canon according to which, in an ecclesiastical court, proof of ignorance or of error concerning a law or penalty is always admitted, although this ignorance or error is not to be presumed?

While we are on the subject of Canon 16§1, it seems that an argument of some merit can be drawn from it in support of our thesis. For, according to this paragraph, no ignorance of incapacitating laws excuses from them. Therefore on account of the public good, because of which incapacitating and invalidating laws are introduced, someone might fall under an incapacitating law, despite his good faith and although he was entirely ignorant of the law concerned which deprived him of certain common rights. But if, according to the prescription of Canon 11, those laws only are to be reckoned as incapacitating by which a person is expressly or equivalently determined to be incapable, it does not seem that the status of incapacitating law must be denied to those laws by which a man is ejected from his previous status and thenceforth rendered incapable not merely of accomplishing this or that juridical act, but simultaneously incapable of many. For this reason Canons 1323§1, 1325§2 and 2314§1, all of which have been mentioned several times before, seem to have the status of incapacitating laws and thus continue to bind even when good faith or inculpable ignorance can be adduced in favour of the individual concerned.

However, it is equally apparent that those who, although in good faith, have (to use once more the words of Cardinal Billot) chosen a different guiding principle from the Catholic one, are held to be incapable in respect of Catholic communion: which is the very effect of excommunication, as a result of which, according to Canon 2257§1 a person is excluded from the communion of the faithful (although, as Cardinal Gasparri in his Catholic Catechism p. 153 and p. 5 in his appendix concerning disputed questions, points out, such a one is not strictly excluded from the body of the Church unless he is a “vitandus” as well as the effects legally consequent upon this).

All of these things, as we indicated above, appear to receive no slight confirmation from Canon 731§2, according to which heretics who err in good faith (or material heretics) as far as concerns the administration of the sacraments are considered equivalent to formal heretics. For although such heretics in good faith spontaneously seek them, the sacraments may not be administered to them unless, says the Canon, “having first rejected their errors they have been reconciled to the Church”. Now one who, before he may be admitted to the reception of the sacraments, must first reject his errors and be reconciled to the Church is clearly in the condition of being separated from the communion of the faithful, as a heretic in the terms of Canon 2314§1 (1). This seems to indicate therefore that Canon 731§2 was inserted in the Code of Canon Law lest anyone might suppose that material heretics on account of their good faith or the fact that they spontaneously sought the sacraments were relieved of the effects of the excommunication which they contracted in accordance with Canon 2314, among which effects Canon 2260§1 lists privation of the sacraments.

And if a cause can be known by its effects, it is possible to gather from the privation of the sacraments which is a very grave consequence of excommunication, the existence of the excommunication itself. As a result of the foregoing examination, it must be concluded that Canon 2314§1 (i) embraces all heretics, whether formal or material: and it follows from the acceptance of this conclusion that the extreme difficulty which arises in dividing the former from the latter (2) immediately loses all practical importance, and those who have erred from the Faith, are very appropriately separated from the communion of the faithful as necessary discipline requires.

N. Papafava dei Carraresi

Author’s Notes

(1) De Ecclesia Christi, question VII, p. 292

(2) Cf. Pope Pius IX’s allocution Singulari Quadam of 9th December 1854, “… now who indeed would presume to be able to assign limits to ignorance of this kind?”.

Translator’s Note

Count Papafava’s use of the term “material heretic” is of course to be understood in accordance with the explanation given by Cardinal Billot of this term as referenced by the author, i.e. as denoting non-Catholics in good faith (who lack the habitual intention to believe all that the Church teaches), not Catholics in doctrinal error (who do not lack the habitual intention to believe all that the Church teaches).