DOES A VASECTOMY CONSTITUTE AN IRREGULARITY TO THE SACRAMENT OF ORDERS? A RESPONSE TO JAMES A. CORIDEN'S CRITIQUE

• Published in: Studia canonica Vol. 43; no. 1; p. 89
• Main Author: Dunn, Brian J
• Format: Journal Article
• Language: English
• Published: Ottawa Studia Canonica 01.01.2009
• Subjects: Canon law; Catholicism; Morality; Papal documents; Vasectomy
• ISSN: 0039-310X

RESUME - Dans un article publié dans Studia canonica en 2004, G?. avait conclu qu'une vasectomie est incluse dans le sens du terme "mutilation" de canon 1041, 5 ° du code 1983. Cependant, [James A. Coriden] a critiqué cette conclusion et ce présent article est une réponse à l'évaluation de Coriden. Par une analyse de canon 17, l'A. démontre que, lorsqu'un terme a un "sens douteux et obscur", l'interprète doit recourir à des lieux parallèles, aux fins et aux circonstances de la loi, et à l'esprit du législateur. L'A. conclut que la vasectomie est vraiment comprise dans le sens canonique de mutilation et, lorsqu' exécutée avec une connaissance complète et un consentement délibéré, peut constituer l'irrégularité du canon 1041, 5 °. The second recourse in cases of doubtful and obscure meaning is "to the purpose and circumstances of the law." During the process of the revision of this particular norm involving mutilation, the coetus made several changes that point to the purpose of the law. First, mutilation was no longer viewed as an irregularity arising from delict, thus no longer envisioning "the applicability of the conditions necessary to commit a delict or those factors which mitigate the imputability of such an act."8 The result of this change is to lower the standards which are necessary to incur an irregularity since the conditions for committing a delict are quite strict. This also makes a clearer distinction between delict and impediment. "Whereas previously irregularities and impediments aimed at protecting the dignity of the clerical state itself, now they aim at protecting the sacrament from reception by unworthy ministers and at ensuring that the people of God are served by suitable individuals."9 In the end, this change attempts to protect further the sacrament of orders from being received by an unworthy candidate, even if he did not commit a crime. At the same time, the focus on the delict of mutilation continues to have some importance in canon 1044, § 1, 3° on irregularities connected with the exercise of orders, which mentions a delict associated with mutilation. Moreover, the coetus added the words "gravely" (graviter) and "maliciously" (dolose) to describe the mutilation involved in order to have terminology similar to that in penal law. 10 These words require that the mutilation be seriously sinful for the person to incur the irregularity. These changes connected with the irregularity of mutilation provide an insight into the purpose and circumstances of the law. Finally, canon 1 7 calls for recourse to the "mind of the legislator" in cases of doubtful and obscure meaning. [Phillip J. Brown] distinguishes between the §intention of the legislator" and the "mind of the legislator." He notes that the "intention of the legislator" means "the specific intention of the legislator for the meaning of a specific law", while the "mind of the legislator" is "the sum total of legal dispositions by a legislator which, taken together, evidence the legislator's attitude toward specific laws, towards specific subjects as they are treated in laws, toward specific and more general areas of the law, and toward the law as a whole."11 I believe that the teaching of [John Paul II] in 1984 as outlined in my article makes a significant contribution to illuminate *the "mind of the legislator" on the topic of a vasectomy. Furthermore, in an earlier article, Coriden himself states that the "mens legis latoris is a manifestation of the sensus ecclesiae. Instead of the personal intention of the author of the law, it is a living and evolving interpretation based on what the mind of the Church is."12 While the notion of the "evolutive theory of interpretation" has received a certain amount of critique,13 Coriden must acknowledge that the papal teaching on mutilation comprises some of the senses ecclesiae that provides an understanding of the theological or moral meaning of mutilation, which in turn reveals the mind of the legislator regarding the canonical meaning of mutilation.