Friday Penance III: The Search For Spock

A reader wrote a couple of lengthy but thoughtful posts on the Friday penance topic, and I thought I’d respond to them. Rather than clog the main blog space with my equally lengthy reply, I’ve put it in a continuation of this post so readers won’t have to scroll through it if they don’t want to read it.

If you don’t know about the Friday penance discussion we’ve been having, here’s a link to part I and here’s a link to part II.

My comments in the extension are in bold.

FIRST POST:

READER: Pious wishes aside, it’s clear the practical effect of this change has been to indeed abolish Friday as a day of penance, most especially under Mr. Akin’s reading.

JIMMY: No, it abolished most Fridays of the year as being days of obligatory penance. Most Fridays are now days of voluntary penance in the U.S. There is a difference between a day being characterized by a particular form of activity and a day entailing a legal obligation to engage in that activity.

“1. Friday itself remains a special day of penitential observance throughout the year, a time when those who seek perfection will be mindful of their personal sins and the sins of mankind which they are called upon to help expiate in union with Christ Crucified; “

This clause seems to imply that Friday remains a day that brings special obligations upon us.

I would agree if the bishops had said “Friday itself remains a special day of penitential observance throughout the year (PERIOD).” In that case one would assume that it is a normal day of penance and, since days of penance normally entail an obligation on the part of the faithful, one would assume that some obligation was entailed.

But the bishops didn’t stop there. They went on to clarify what they meant by saying that Friday is a day of penitential observance. Specifically, they clarified this as meaning that Friday is “a time when those who seek perfection” will engage in penance. Grammatically, this is an epexegetical clause that restricts the meaning that would otherwise be ascribed to the statement about Friday. It means that Friday is a day characterized by a certain kind of activity on the part of a certain class of people (not all of the faithful, but “those who seek perfection”) and thus a day of voluntary rather than obligatory penance.

Mr.Akins has difficulty enunciating the import of the clause “as the sole prescribed means of observing Friday.” Prima facie, the clause could mean that there is no long one sole means of observing Friday; but that Friday must still be observed.

It could also be read in Mr. Akin’s direction, that previously Friday could be observed solely an obligation binding under pain of sin, namely abstinence, but now Friday can be observed by actings not done under obligation. This reading seems a bit strange though, inasmuch as the talk of “observing Friday” strongly implies an obligation to observe.

This is not the case. Days can have observances without those observances being obligatory. Optional memorials in the Church’s liturgical calendar are particular examples. If one celebrates a particular saint’s memorial on such a day, it is an observance of the day, but by definition optional memorials are optional (voluntary).

This shows that the language of the text is ambiguous, and I fail to see how we can cut from that to Mr. Akin’s ultimate conclusion,

We can do so because a doubtful law does not oblige, and to propose that there is an unstated Friday obligation is to postulate a doubtful law.

especially given the clear language of canon law, which does not seem to imply a right to dispense entirely from the weekly Friday obligation of abstinence. At the least, this issue needs to be more thoroughly discussed.

As the reader noted in a follow-up post, the language used in canon law does not clearly preclude the conference from doing what it did. (I’d also note that it is not correctly called a dispensation, which is an administrative act relaxing in a particular case a law that is otherwise in force. What the bishops were doing was a legislative act that resulted in a new law going into force.) As I pointed out in a follow-up entry, the 1983 Code was not in force in 1966 and thus did not restrict the bishops’ actions at that time.

The lack of a “crushing rejoinder” is hardly an argument in Mr. Akin’s favor, if it be assumed that the objection has already been answered by a clear reading of canon law and the text.

And that is precisely what I deny: a clear reading of canon law and the text indicating that the pentiential observance of most Fridays is obligatory.

Further, the presence of ambiguity and lack of cohesiveness testifies to compilatory and committee-based composition of the text,

True.

nothing more.

False. It also testifies (per canon 14) to the non-obliging character of the proposed obligatory observance of Friday penance.

Mr Akin’s claims that legal obligations do not exist that are not legislated. This ignores the clear legislation of canon law, and the prima facie reading of the bishop’s document which can plausibly be read to do justice to canon law, and preserve the Friday obligation.

In the follow-up post, the reader acknowledged that canon law is not clear, and I’ve already noted that it wasn’t out at the time, so I won’t rehash those points again. However, the mere existence of a plausible reading (if such is even to be granted in this case) does not remove doubt, and as long as a doubt is present regarding the law, it does not oblige.

Further, the law of charity, and fidelity and loyalty to successors of the apostles, may compel a more harmonious reading than that suggested.

If Rome says that they do, then they do. In the absence of such a clarification, we at minimum have a doubt of law situation.

Of course, all this could be settled by the bishop’s conference issuing a document settling this question, so that the blogosphere wouldn’t be forced to adjudicate it.

Agreed.

As for this still being a disputed fact; I have heard priests say the obligation for Friday penance still exists; I have even heard it rumored that Pope has spoken to this topic, though I have no cite available. Given this, to claim that this question is irrefutably closed seems quite premature.

I don’t doubt that the reader may have heard priests say that the obligation exists. Most priests–and, indeed, most canonists–have not gone over the legal documents on this point in the level of detail that I have. Those who say that the obligation still exists generally have heard it said by others and are repeating what they have heard in good conscience, perhaps backed up by a quick glance at the documents, but not a meticulous reading of them.

Whatever the pope has said on the subject (and one can’t examine such things unless a citation is given, inaccurate rumors about what the pope has said being far too numerous) likely pertained to the universal law of the Church and not to the particular law of the United States, which is what is in question.

I didn’t say that the situation is “irrefutably closed.” Rome can step in an refute at any time it likes. But in the absence of such an intervention, I do think that those who would maintain the existence of an obligatory observance of most Fridays have at best a dubious case, leading to the faithful not being bound.

SECOND POST:

Reading over the canons again, my view may have moderated somewhat. If Canon 1253 can be read as altering the obligatory force of 1251, the argument about no Friday obligation becomes more plausible.

Yet if that obligation were abrogated by the bishops conference, then shouldn’t it have been done explicitly,

Yes, it should have, but that is what happens when you get committee documents on what were at the time highly controversial issues.

rather than in a form that can certainly be read as retaining the plain-sense meaning of canon law, that there exists some basic canonical obligation for penance on Friday?

This statement appears rather jumbled, so it is hard to respond to. I would grant that the 1966 document hypothetically can be read in a way that would result in the obligation continuing to do some form of penance on most Fridays of the year, but as we have noted, a possible reading of the text is not sufficient to oblige the faithful. Canon 14 specifically neutralizes this strategy.

On the other side, plenty of sources say there’s no obligation. However some more “conservative” sources, like EWTN, lean towards the obligation of some penance.

I can’t speak to what others may or may not have said. However, as noted, most individuals have not gone over the relevant texts in the level of detail that I have, and I can cite conservative canonists (not just canonists “on the other side”) who agree with me.

Mr. Akins seems to be arguing that since the Friday abstinence was abolished, and the bishops did explictly and clearly put anything in its place binding under pain of sin; that therefore there is no obligation for any Friday penance.

But this argument assumes that bishop’s conference is the source for the obligation of Friday penance, rather than canon law.

I think this argument has been superceded by what has subsequently been posted, though I would note that my argument does not assume that the bishops’ conference is the source of the obligation. My argument recognizes Rome as the source of the Friday obligation, with Rome extending to the bishops’ conferences the capacity to adjust this obligation. If Rome lets a particular bishops’ conference adjust it such that the obligation only exists on certain Fridays of the year then that is Rome’s call.

Could it not be argued that, in absence of expressly setting aside canon law, the obligation imposed by canon law would still be operative?

It could.

Since Canon Law presupposes that Friday abstinence from meat will be replaced by some other form of binding abstinence or sacrifice; what are our grounds for assuming an exceptional circumstance here?

This argument is problematic. What the canon law in force in 1966 said was that Friday was a day of abstinence, period. It did not say that Fridays are “days of penance” (or “penitence,” to use the 1966 document’s terms). Indeed, the concept of a “day of penance” did not become part of canon law until the 1983 Code was released. If you read the relevant canons in the 1917 Code (1243-1246 and 1250-1254), you will see that they speak exclusively in terms of “days of fast” and “days of abstinence.” The codification of the “day of penance” concept (the term the 1983 Code uses) represents a reordering of the law to make clear the particular good (penance) that was being secured by particular practices (fast and abstinence).

Then along came Paenitemini, which created lattitude for the bishops to write their own national penitential norms, and Rome allowed the U.S. bishops to enact the norms we’re discussing.

In that environment, one cannot appeal to the concept of a day of penance as something that canon law wants handled in a particular way, because the concept did not exist in canon law. Further, Paenitemini norm 1 section 2 expressly states that prior law on this area is hereby completely reordered, meaning that prior laws on the penitence are abrogated. Thus Paenitemini itself thus became the foundation for all legal obligations regarding penitence.

Paenitemini does recognize the concept of a “day of penance/penitence,” so it does call to our attention the good being secured through fast and abstience. However, merely because the document calls the goal of a particular law to our attention does not remotely mean that one can infer the existence of a legal obligation to secure this goal on a particular day through alternative means when particular law only mandates the use of traditional means on certain days.

By way of comparison, suppose that the universal law said that Wednesdays are “days of niceness” and that on such days we are to greet our neighbors with a smile and a handshake. Then local law–with the consent of the universal legislator–modifies this so that in our area we only have to greet our neighbors with smiles and handshakes on Wednesdays during the Easter season, though we are encouraged to smile and shake people’s hands on all Wednesdays.

Merely because “niceness” the goal of the universal law and Wednesdays are still in some sense “days of niceness” does not require the conclusion that each one of us in our territory is legally obligated to deliberately choose and perform some alternative act of niceness each and every Wednesday.

One equally could–and, in fact, more reasonably would–conclude that the legislator of the particular law felt that the goal of niceness was sufficiently secured (or even better secured) among his subjects with a more restricted obligation that only required smiles and handshakes on the Wednesdays of Easter. One might agree or disagree with the particular legislator on this point, but it would be what one would naturally conclude regarding his intent.

In any event, the fact that one is not forced to a reading requiring the existence of a continuing obligation means that the existence of a continuing obligation is doubtful, which means that the faithful are not obliged to do so according to canon 14.

To look at ambiguous language in the bishop’s document is a tenuous argument at best.

Not with canon 14 in the Code (or its equivalent, canon 15 of the 1917 Code, which was in effect in 1966.)

If it’s unclear that the bishops explicitly altered the obligations of canon law, why should we presume this?

There is no doubt that the bishops established a particular law modifying the universal law (though the universal law they were altering was found in Paenitemini rather than the 1917 Code, since the former expressly and completely reordered the laws regarding fast and abstinence found in the Code).

The question is: After abolishing the mandate of abstinence on most Fridays of the year, did the bishops create a new obligation on these days? If the text doesn’t clearly identify one, then it won’t obtain force of law per canon 14.

Could it not be equally plausible that, in accordance with canon law, the bishops replaced Friday abstincen with an obligation to just do some kind of penance, of our own chosing?

No, for the reasons indicated.

That itself, allowing us to chose any penance to satisfy our obligation, would come under 1253, would it not?

If the bishops had said “Friday is pick-your-own-penance day” then 1253 might allow them to do this (though it might not, too, since 1253 might be interpreted as requiring a specific alternative penance be picked rather than a generalized obligation to do penance), though as we’ve noted, it wasn’t in effect in 1966 when the current law was written.

It’s more general than specifying a substitute food or particular activity, for instance.

True.

With this reading, 1253 and 1251 could agree with each other, rather than be seen as clashing.

They should not be seen as clashing under any reading of the law.

With regard to the law of charity remark, that wasn’t intended as a swipe, and was somewhat sarcastic.

No hard feelings. I can handle a little sarcasm. 🙂

Still, if we can read this document in a way that does justice to text and intent of the canons, and in a way that justify’s the document’s claim that they’re not doing away with Friday, why shouldn’t we do so?

I think this has already been gone over, so rather than repeat it again and further test the reader’s patience, I’ll let it slide. 🙂

Hope his helps, and God bless!