The ignore-ance of the Kurgan

In part 1, I proved that canon 188.4 is not a "stand-alone" sentence, and that loss ecclesiastical office does not mean loss of clerical state.

Vey quickly, part 4 of canon 188 must be viewed on the context of canon 188 as a whole, which must be viewed in the context of canons 183-195 which is the section on loss of ecclesiastical offices. The sections that deal with loss of clerical state are canons 211 - 214. I will be covering these in more detail in future posts. Please read part 1 first if you haven't already.

Not only does Kurgan ignore the other 7 parts of canon 188, but he ignores all the sections and canons that don’t agree with his position that are prior to canon 188. Part 1 proved that kurgan is wrong, and in part 2 I show that even if he might be correct (he's not), he has no authority to use, interpret, of judge anyone using the Code. it says so right in it!

There are over 40 pages of introduction that is never even mentioned by kurgan, and guess what? It all disagrees with his views.

So, what exactly is kurgan ignoring in the introductory sections up to and including canon 19? Here are at least 9 things he leaves out:

1 - Kurgan ignores the inside of the cover.

Inside cover

“Available for the first time in a comprehensive English translation, this thoroughly annotated but easy-to-use presentation of the classic 1917 Code of Canon Law by canon and civil lawyer Dr. Edward Peters is destined to become the standard reference work (this is a work for scholarly reference) on this milestone of Church law. More than just of historical interest, the 1917 Code is an indispensable tool for understanding and interpreting the current 1983 Code under which the Roman Catholic Church governs itself (it’s also a tool for understanding the 1983 code, which is in use today) . Dr. Peters’ faithful translation of the original Latin text of 1917, along with his detailed references to such key canonical works as Canon Law Digest and hundreds of English language doctoral dissertations on canon law produced at the world’s great Catholic universities, now allows researchers to access directly this great fountain of ecclesiastical legal science (It is also for research). No student of canon law, and indeed, no one with a need to understand modern Church administration, can afford to be without this important volume (It is also for students.)

So, we see from the inside cover that the whole purpose for translating it into English was for students and researchers to better understand the recent 1983 code.

2 - Kurgan ignores the forward.

Forward

Page xxi - The law was drawn together in various collections, perhaps the greatest being the multi-volume Corpus Iuris Canonici upon which people relied well into the twentieth century. Cardinal Gasparri, acting under the mandate of Pope St. Pius X and then Pope Benedict XV, worked to codify the canon law following a pattern the extended from Justinian through Napoleon to modern European states.

     Cardinal Gasparri and his collaborators succeeded brilliantly, as can be ascertained from the study of the Pio-Benedictine Code which served the life of the Church for over sixty years. Codification in this form was a new feature for the Church. It brought order and also focused Church discipline for the realities of the twentieth century.

    Page xxii -  Some claim that the Second Vatican Council introduced discontinuity even in matters of faith. An associated strain of thought seems to hold that canon law began with the 1983 Code. As a result, they often take a shortsighted and even positivist view of the canons. They consider words and phrases and “tease” their meaning in an attempt to change the life and teaching of the Church inappropriately. Such should never be the case (This is exactly what kurgan believes. Notice it is wrong to think that either the 1917 code or the 1983 code is the only valid one. You can not properly understand the 1983 code without referencing and studying the 1917 code. .

     Dr. Edward Peters has rendered scholars and students of the law a major service in this volume. Acknowledging that facility with Latin may be in short supply among canonists and pastoral personnel today, he provides a fine translation of the 1917 Code. He facilitates a much broader and deeper acquaintance with canon law by references to doctoral dissertations, official interpretations, and associated documents. Those who wish to teach and work within the long and living canonical tradition of our Church will find Dr. Peters work very helpful indeed. He is to be congratulated for perceiving this need and meeting it with diligence and expertise.

3 - Kurgan ignores the curators introduction.

Curator’s Introduction

Page XXiii - …..the monumental significance of the Pio-Benedictine Code of Canon law (promulgated in 1917 and in force until 1983)

Page XXIV - During its sixty-five year enforcement period, the 2,414 canons of the 1917 Code were never translated from the original Latin and published in English as an entire work. Indeed, translations of the 1917 code were forbidden, at least in part to assure that disputes about the application of what was, for the Church, a revolutionary legal structure would be resolved within the language of the Legislator, and not according to the scores of languages amid which the 1917 Code operated. So, an English version was forbidden to prevent disputes about the application. This is precisely what kurgan is doing with the English version. He is taking the version that was never allowed, and applying it in a way that the Church has always forbidden. So much for obedience. One may think that if we use the text in Latin that the kurgan could be correct. I will show that he is wrong in the approved language also.

Page XXV - Today, the Pio-Benedictine Code is no longer the law of the Roman Catholic Church, having been replaced by the 1983 Code of Canon Law promulgated by Pope John Paul II.

Page XXV - …..the yellowing pages of the 1917 Code seem more than ever to envelope some mysterious religious discipline; at present, the 1917 Code exists only in the shrouded domain of clerical academe.

Page XXV - Consider: the 1983 Code of Canon Law, governing the ecclesiastical life of nearly one billion Roman Catholics, did not drop whole and entire as if some gift from heaven; it did not emerge fully formed, or even merely so, from the final sessions of the Second Vatican Council. Rather, it was the fruit of sixteen years of painstaking drafting, during which time those charged with producing the new law had the documents of Vatican II (conveniently translated) on one hand and the 1917 Code of Canon Law on the other. It is impossible to understand and appreciate the accomplishments and the failings of the 1983 Code without a thorough grasp of the accomplishments and failings of the 1917 Code. One might as well try to assess the 1983 Code without reference to the Ecumenical Council that inspired it. It simply cannot be done. We see here that the 1983 Code, like the documents of Vatican 2, that nothing is to be viewed as an isolated document, and the 1917 code must be studied to understand the 1983 code. There were people upset with the 1917 code also, based on the changes that occurred from the documents that inspired it. Nothing is perfect. Kurgan’s approach of “1917 code all good, 1983 code all bad” is childlike, and below his intellect.

Page XXV - The Legislator, while abrogating the 1917 Code in favor of the 1983 Code (see 1983 CIC 6)., nevertheless expressly calls upon the former law for help in understanding the newer.

Page XXVi - Ironically, the very Council which spelled the end of the 1917 code also launched a veritable  tidal wave of active lay people with a serious need - although they often do not appreciate this fact - to understand the legal history made by, and summarized within the 1917 Code (Kurgan views the 1917 code and the 1983 code as stand-alone documents, with the 1917 code being “all good” and the 1983 code being “all bad”. This is not only wrong, but it is not how any catholic document is viewed (even the documents of Vatican 2, which is for a later post).

Page XXVi - XXVii - This translation seeks, therefore, to serve two ends: first, obviously, to present in one place a reliable English translation of the entire text of the Pio-Benedictine Code, including its famous preface, its enabling legislation, and the most important of the supplemental documents originally incorporated therein. Second, insofar as the 1917 Code was a living document subjected to official interpretations, emendations, and scholarly reflections, to identify where such pronouncements on and major studies of the text can be found in English, allowing researchers to determine the extent to which such additional information might be relevant to their own studies.

The reason Dr. Peters curated the translation was to have a reliable English translation in one place, and for research and study. To take this copy, in English no less, and say that is still governs the Church makes no sense, and goes against all of this information that is in the introduction parts of the 1917 code..

4 - Kurgan ignores the section entitled “Researching the 1917 Code in English”

RESEARCHING THE 1917 CODE IN ENGLISH It’s interesting how much time, effort, and research went into the 1917 English version.

Page xxxi - All canonical research into the Pio-Benedictine Code begins, of course, with the text of the law itself. This English translation of the 1917 Code now makes accessing the law by those without a ready grasp of Latin an easy matter. As directed by Canon 18 of the first code, however, researchers must consider not only the text of the law, but it’s context as well, along with other places in the Code which treat of the same or similar topics. The answer to a canonical question, or at least the complete answer, seldom lies within a single canon (so, one must take canon law as a whole, and look at all cross-references, and other related sections to get the big picture of the truth that lies therein.). This is why the internal correlations of the 1917 Code are useful.

     Having examined the text of the law, a researcher must then study any official pronouncements on or applications of the canons. Simply finding these pronouncements in any language other than English is, to put it bluntly, a most tedious task. But thanks to the works of Jesuit scholars Lincoln Bouscaren (a theologian and civil lawyer), and James O’Connor (theologian and canon lawyer) this research has been greatly simplified for readers of English. Beginning in 1934 and concluding in the last days of the Pio-Benedictine law (1983), these men collected and, where necessary, translated thousands of official interpretations of, pronouncements on, and applications of the 1917 code and then assigned each resulting document to at least one specific canon in the old code. Their work, known as the Canon Law Digest, spanned ten volumes during the life of the 1917 Code. The only deficiency in this Herculean project, namely the lack of a comprehensive index, has been remedied  by this translation of the 1917 Code, which obviates the need for an index by listing, after each translation, exactly where, if at all, each canon was subjected to digest by Bouscaren and O’Connor.

     At this point, one’s canonical research shifts from the examination of original sources (albeit in translation) to the study of private, scholarly works on the law. For sheer erudition and depth of commentary, one must recognize canonical doctoral dissertations (sometimes called theses) as having pride of place. Most such dissertations or theses not only present coherently the various opinions of the commentators on various canons (discussed in more detail below) but they usually offer a historical background for the debate over various canons and some suggestions for resolution of such disputes in the practical order. At a minimum, no scholarly contribution to the understanding of a canon of the 1917 Code is possible without taking into consideration the dissertation(s) that might have been produced on it. 

     The Catholic University of America in Washington D.C., produced nearly five hundred doctoral dissertations on canon law in English during the period of the 1917 Code, more than the combined English-language output of all other canonical faculties in the world. Lists of CUA dissertations are accessible to researchers, and nearly all of the works themselves can be obtained, in one form or another, with relatively little effort. Note, however, that many dissertations treated of matters separated by some distance in the 1917 Code, and to keep the footnotes from becoming unwieldy, each dissertation is listed only once, generally under the canon which most closely, or which first, corresponded to the general topic of the dissertation.

     After taking into account the words of the law in text and context, and how the law was evaluated by leading scholars, one will turn next to standard commentaries on the law There are several multi-volume, pantextual commentaries on the 1917 Code of Canon Law in English, In order of author, the major ones are as follows: (There are six commentaries listed. I will be using two of them in my discussion, as those were the only ones I could find available online: 1 - Dom Augustine, A Commentary on the New Code of Canon Law, published in 1918;  2 - Stanislaus Woywod, Practical Commentary on the Code of Canon Law, published 1925.

     Finally, one should not hesitate to consult general theological dictionaries and encyclopedias, as they frequently contain entries on canon law by respected authors.

COMMENTARIES REVIEWED  -

1 - Dom Augustine, A Commentary on the New Code of Canon Law - 1918

Why I decided to use this commentary

• ïIt’s from 1918, the year the 1917 Code of Canon Law was promulgated
• ï It’s 8 volumes, and over 4,000 pages of insight and practical examples.
• ïIt’s available for free online
• ï Chapter 5, page 60, gives a great description of how the old law and the new law (of 1917) fit together. You can see not a breaking with the old law, but a continuity. It explains how the new law must be interpreted in light of the old law.
• ïThere is TONS of information and knowledge about the meaning and how to interpret the canons, with plenty of footnotes siting the historical sources. You can’t get any closer to the 1917 Canon.

2 - The New Canon law - A Commentary and Summary of the New Code of Canon Law - by Rev. Stanislaus Woywod, O.F. M. - 1925

• ïThis is a short commentary (approx 500 pages), but has some practical insights.

5 - Kurgan ignores the Moto Proprio of Benedict XV.

MOTO PROPRIO OF BENEDICT XV

Cum Iuris Canonici

15 September 1917

As We, a short time ago, fulfilled the expectations of the whole Catholic world by promulgating the Code of Canon Law which had been drawn up by order of our Predecessor, Pius X, of happy memory, the welfare of the Church and the very nature of the matter certainly require that We should take precautions as far as we can to insure that the stability of so great a work  be not at any time endangered either by the uncertain opinions and conjectures of private persons regarding the true meaning of the canons, or by the frequent enactment of various new laws. We have therefore determined to guard against both of these dangers; and in order to do so We now, upon Our own motion, from certain knowledge and after mature deliberation, do ordain and decree as follows:

I - Following the example of our Predecessors, who entrusted the interpretation of the decrees of the Council of Trent to a special Commission of Cardinals, We hereby establish a Committee or Commission which shall have the exclusive right of authentically interpreting the canons of the Code, upon consultation, however, in matters of greater moment, with that Sacred Congregation within whose peculiar province the matter which is proposed for decision to the Commission lies. This Commission We desire to consist of a number of Cardinals of the Holy Roman Church, of whom one shall be designated President, all to be chosen by Our authority and that of our successors; to these shall be added some distinguished man to act as Secretary, and also a number of canonists from both branches of the clergy at act a Consultors; the Commission may also ask the opinions of the Consultors of the various Sacred Congregations on matters within their competency.

As you can see, interpreting the canons of the Code are left to the upper hierarchy of the church. Kurgan is not allowed to interpret the Canons. The kurgan will say that he is not interpreting the code, he is merely going by what the words “literally” mean. We will see that this is also considered an interpretation that is not allowed (Canon 17 below)

6 - Kurgan ignores Canon 17.

Canon 17

1 - Laws are authentically interpreted by the legislator or his successor and by those to whom the power in interpretation has been committed by [the legislator or his successors].

2 - An authentic interpretation, given out of the manner of law, has the same force as does the law itself; and if it merely declares what is certain from the words of the law, it does not require promulgation and is effectively retroactive; but if it narrows of extends the law or resolves a doubt, it is not retroactive and must be promulgated.

3 - That [interpretation] given by means of a judicial sentence or by a rescript in a specific matter does not have the force of law and binds only those persons and affects only those matters for which it was given.

We read in this Canon that an authentic interpretation has a choice of declaring what is certain by the words, or can narrow or extend the meaning of the words, or resolve any doubt that may be present. Only the church can interpret that the words are or are not to be taken literally. Kurgan cannot say that just because the words are clear, that he has not made his own interpretation, because that in itself is an interpretation that only the church can make.

Dom Augustine, A Commentray on the New Code of Canon Law - 1918

As an authentic interpretation can be given only by the lawgiver or his successor and by those to whom the power of interpretation is committed by the lawgivers, the Pope and the Roman Curia (congregations, tribunals offices), are the authentic interpreters of all those laws which proceed from the Sovereign Pontiff, whilst the Bishops or their successors are the interpreters of their own laws.

     The interpreter may be in a position where he has either to extend the law or restrict it. He extends by interpretation if he applies the wording or text to cases or persons not mentioned in the law or not included in the original intention of the lawgiver, although the extension is not against the lawgiver’s will; for instance, exemption or papal enclosure to religious without solemn vows.

     A restrictive interpretation takes place when the law is limited to fewer persons or cases than the wording and the mind of the legislator would seem to indicate, e. g., if the people are interdicted but the clergy are not included. Besides doubts may arise, e. g., in rubrics, which must be solved. And, lastly there may be required a merely comprehensive (declaratory) explanation, vi., one which explains the law literally, but in more obvious terms, by substituting other words.

     The Code (can 17 par. 2) says that an authentic interpretation of a law is of equal force with the law itself and has the same binding power; and if it be a merely declaratory interpretation, it needs no promulgation and its obligatory force goes back to the date of the promulgation of the law itself. An interpretation that is extensive or corrective (restrictive), on the other hand, must be promulgated and is not retroactive. 

     There is, however, another authentic interpretation possible, vis., one demanded by parties directly interested. It may happen, for instance, that a matrimonial case, or a case of precedence, must be decided by way of interpretation. This is done by a so-called judiciary interpretation, rendered by a legitimate judge (can. 17, par. 3). Evidently such an interpretation binds only the parties concerned and in the matter decided, and outsiders are not affected thereby.

     Private interpretation, viz., one given by jurisconsults not commissioned by the lawgiver, or by expert canonists (doctors), must be made in conformity with certain rules which are necessary for the right understanding of ecclesiastical---in fact of all---law. These rules are, of course, generally obeyed also by the authentic interpreters, but they are of importance especially in private interpretation and for those who wish to read and study Canon Law rightly. These rules are briefly the following (which directs us to Canon 18 below):

7 - Kurgan ignores Canon 18 (that taking the words literally is, in fact, a private interpretation)

Canon 18

Ecclesiastical laws are to be understood according to the meaning of their own words considered in their text and context; as for those things that remain unclear or in doubt, reference should be made to parallel provisions in the Code, if there are any, to the purposes and circumstances of the law and to the mind of the legislator.

Kurgan has no doubt that the word “office” in canon 188.4 is synonymous with the term “clerical state”. Kurgan truly believes that a loss of office makes someone no longer clergy. I will prove that this is not the case, using the parallel provisions of the Code. 

Commentary - Dom Augustine

Ecclesiastical laws must be interpreted in the light of their wording, as borne out by the context. Hither belong various rules culled from the Roman and the Canon Law: “Ubi verba non sunt ambigua, non est locus interpretation;” “Verba sunt intelligenda secundum propriam significationem,” i. e., in their usual and common signification; “Verba generalia generaliter sunt sumenda,” and “Ubi lex non distinguit, neque nos distinguere debemus.”

     The context, too, must be considered, for it may be useful to compare words or sentences in the order and connection which they have with one another. 

     When the terms are doubtful and obscure, the interpreter must have recourse to parallel texts of the Code, and study the purpose and circumstances of the law and the mind of the legislator. Parallel texts are such as have an affinity with the subject or are expressly related to the same. Here the rule holds good: “De similibus idem est judicium.” Note, however, that the similarity must bear on the point at issue.

     The purpose or end of the law must be regarded in such a way that the interpretation really effects the scope, hence the rule: “Certum est, quod is committit in legem, qui legis verba complectens, contra legis nititur voluntatem.” The scope is sometimes, especially in long decrees, premised in the preamble, which may then serve as a guide to the interpreter.

     The circumstances surrounding a law are either historical, i. e., facts which prompted the law, e. g., the removal of the parish priest, or real, i. e., actual needs and reasons of time and person.

The mind of the legislator must, of course, first and above all be deduced from the words of the law. Circumstances, context, subject, etc., also help to disclose the mind of the legislator, as well as the ratio legis, which is called the soul of the law. Hence the rule, “ Non debet intentio verbis deservire, sed verba intentioni.” 

     But we must guard against the assumption that the intention of the interpreter may be carried into the text. (I am offering proof that kurgan’s assumption that canon 188.4 has made clergy lose their clerical state, has been carried into the text by him, and is not actually present there). Hence if all the means so far enumerated fail in discovering the true mind of the legislator, nothing is left but to make direct inquiry by petitioning the competent authority. Therefore we sometimes read: “Iuxta mentem,” and the “mens” is set forth explicitly; but sometimes it must be guessed at, as said before. 

8 - Kurgan ignores the “strict interpretation” requirement of Canon 19.

Kurgan ignores the “strict interpretation” requirement of Canon 19.

Canon 19

Laws that establish a penalty, or that restrict the free exercise of a right, or that contain an exception to the law, are subject to strict interpretation. (This means that when there is any doubt about whether a Catholic should be punished under a particular canon, he is NOT to be punished---period. This is a fundamental legal principle that the Church has held for generations, and it admits of no exceptions. We can see how carefully the Catholic Church guards against unjust application of its laws--it prefers, if necessary, to permit a perpetrator to go unpunished, rather than to unfairly penalize someone who is not guilty of a crime.

Commentary - Dom Augustine

     The first clause of this canon is contained in the well know rule XV in Sexto: “Odia restringi, favores convenit ampliari,” and rule 49, I. C.: “In poenis benignior interpretation est facienda.” Such an interpretation is neither extensive nor restrictive, but merely comprehensive; but an explanantion which simply negatives the penalty is no interpretation. Strict interpretation clings to the text, and pays due regard to the mind of the legislator, but mitigates the rigor of the law as far as the ratio legis will permit. What is meant by restricting the free exercise of rights is best understood by the example of the Ordinary exercising his rights as diocesan in appointments, etc.

     Exceptions from law may be either privileges or favors of a personal nature, or particular or special laws, which latter are called exorbitantes, i. e., running beyond the sphere of general or common law. For instance, a private oratory is a favor, exemption is a special law, and all these are subject to strict interpretation.

As we will see in future posts, this clinging to the text”, and the mind of the legislator is are very important concepts, especially when it comes to labeling anyone a heretic, apostate, or schismatic. Kurgan’s accusations, detraction, and slander are not allowed in the application of canon law.

9 - Kurgan ignores the words of Dr. Edward Peters himself.

When Kurgan and I first "discussed" this topic a year and a half ago. I actually wrote Dr. Edward Peters, the curator of the 1917 Code of Canon Law, to ask him about Canon 188.4. Here is what he wrote back

So, before you even reach canon 188.4, there are a lot of things you have to ignore in order to take the wrong path that kurgan is on. He wants you to read one sentence and draw immediate conclusions. Read, research, and don't fall for it.

END OF PART 2