Some folks have been taking issue with my analysis of the current state of U.S. law regarding Friday penance. Believe me, I understand the impulse. I don’t like seeing Friday penance gutted, either, and would be quite happy if Rome stepped in to change matters. I further understand the impulse of folks to stick to their guns who have been told (and told others) for years that some kind of penance is obligatory on Friday. However, a careful examination of the relevant legal documents and legislative history indicates that this is not the case.

I’d like to call attention to a few aspects of the legal foundation of the present situation. First, some folks have noted that canon 1253 of the 1983 Code of Canon Law does not appear to them to authorize bishops to do more than substitute one (or several) forms of penance in place of abstinence. Let’s look at the canon itself:

Can. 1253 The conference of bishops can determine more precisely the observance of fast and abstinence as well as substitute other forms of penance, especially works of charity and exercises of piety, in whole or in part, for abstinence and fast.

One notes that there are two things that this canon says the conference ofbishops can do: (1) “determine more precisely the observance of fast and abstinence” and (2) “substitute other forms of penance . . . for abstinence and fast.” The distinction between these two is indicated by the use of the conjunction “as well as.”

As a careful reading of the 1966 bishops document shows, it did not substitute other forms of penance for Friday abstinence. What it did was “determine more precisely the observance of . . . abstinence” by determining that the observance of abstinence is legally obligatory only on certain Fridays of the year.

This, at least, is the clause that most naturally would be appealed to if the 1966 document came out after the 1983 Code, but it didn’t. To understand the legal basis for the conference’s action, one must look to the documents that were in force at the time.

The document that a person would first turn to is the 1917 Code of Canon Law. However, when one does so one discovers that canon 1253 has no parallel in the 1917 Code.

The controlling legal document, therefore, was Paul VI’s apostolic constitution Paenitemini, which had just been released earlier in the same year. The bishops’ 1966 doc was an attempt to determine the way Paenitemini would be implemented in the U.S.

Now here comes the part where things get confusing. The relevant norm from Paenitemini reads as follows:

VI. 1. In accordance with the conciliar decree “Christus Dominus” regarding the pastoral office of bishops, number 38,4, it is the task of episcopal conferences to:

A. Transfer for just cause the days of penitence, always taking into account the Lenten season;

B. Substitute abstinence and fast wholly or in part with other forms of penitence and especially works of charity and the exercises of piety.

2. By way of information, episcopal conferences should communicate to the Apostolic See what they have decided on the matter

Norm VI.1 grants the authority to conferences to transfer days of penitence or to substitute other forms of penitence for fast and abstinence. It does not grant them the authority to restrict the mandatory observance of abstinence to certain days of the year. This does not mean that they don’t have that authority, but it does mean that norm VI.1 doesn’t give it to them.

How can we tell if they have this authority? Well, we have to look to Rome.

Unfortunately, Italians don’t write law the way we Americans do. They are much less strict about the reading and writing of law than Anglo-Saxon legal tradition is. In general, they write laws as broad gestures regarding what they want to happen, but they allow for the existence of all kinds of unspoken, unwritten exceptions within those laws. These exceptions, it is understood, will come to light over the course of time as people try to apply the law. If they apply it in ways Rome doesn’t like, Rome will clarify and say “No, you can’t do that. We don’t want the law to be understood in that way.” If Rome has been made aware of the way the law is being applied and Rome doesn’t bark, though, its consent to the application of the law–even by acquiescence–is presumed. (At least until they change their minds and say otherwise.)

This is where norm VI.2 becomes important. It says that the U.S. bishops would have to communicate to Rome what they decided on the matter, and this they certainly did. After the 1966 document was written, it was sent over to Rome.

One will note that norm VI.2 only says that the conference is to notify Rome “by way of information”–i.e., so that it can keep track of what the bishops’ conferences are doing. It does not say that Rome must approve of the bishops’ complimentary norms on this matter before those norms take effect (a process normally referred to as obtaining Rome’s recognitio). The reveals a fairly permissive attitude on Rome’s part regarding what bishops’ conferences can do regarding penance in their countries. If Rome wanted to keep a tight reign on things, it would have required the conferences to obtain recognitio before letting their decisions go into effect. The fact that they only required the bishops to notify them “by way of information” is a signal that they’re pretty flexible on what they’ll let the bishops do.

This created a de facto situation where the bishops of a given country could write whatever norms they wanted on penance and these would have force of law in their territory unless they sent over the norms to Rome and Rome contradicted them.

So what happened when the U.S. bishops sent over their 1966 document?

Rome didn’t bark.

They may have even formally granted it recognitio (though this wasn’t required), but they certainly didn’t bark, as the complimentary norms currently on the bishops’ web site reveal (see below).

Given the way Paenitimini is written–and the absence of other law expressly granting the conference the authority to do what it did–Rome would have been entirely justified in saying, “Hey, wait a minute, guys! Y’all have exceeded your authority!” But they didn’t do that. They thus, at least by acquiescence, confirmed the U.S. bishops’ decision and allowed it to become law.

That it become law did is certainly the understanding of the bishops’ conference today. If you check the section of their web site giving the complimentary norms for canons 1252 and 1253, it expressly notes that:

The November 18, 1966 norms of the National Conference of Catholic Bishops on penitential observance for the Liturgical Year continue in force since they are law and are not contrary to the [1983] code (canon 6).

That these norms are understood to involve only voluntary penance on most Fridays of the year is something the conference is also on record as indicating. In their 1983 document The Challenge of Peace, they wrote:

298. As a tangible sign of our need and desire to do penance we [the bishops], for the cause of peace, commit ourselves to fast and abstinence on each Friday of the year. We call upon our people voluntarily to do penance on Friday by eating less food and by abstaining from meat. This return to a traditional practice of penance, once well observed in the U.S. Church, should be accompanied by works of charity and service toward our neighbors. Every Friday should be a day significantly devoted to prayer, penance, and almsgiving for peace.

I haven’t vetted the authority of the 1983 document on peace. I suspect that under current law it has no authority at all, since pastoral letters now are subject to a very high standard to attain authority, and this letter probably didn’t meet that standard. However, even in the absence of this document having authority, it indicates the mindset of the bishops regarding the matter of doing penance on Fridays and indicates that this penance is voluntary.

This is something that a careful reading of the 1966 document also shows, but the 1983 document adds additional evidence for this understanding.

What are the alternatives to saying this?

1) Well, Rome could step in and clarify the situation. This would be the ideal solution, though thus far Rome hasn’t done so, which leaves us to figure things out for ourselves.

2) In that regard, one could disagreewith my analysis and say that the 1966 document is sufficiently ambiguous that it is doubtful whether the faithful are obligated to do anything on most Fridays of the year. However, in that case, canon 14 of the 1983 Code kicks in and tells us:

Laws, even invalidating and disqualifying ones, do not oblige when there is a doubt about the law.

Therefore, we’d be facing a doubt of law situation and so–until such time as Rome chooses to clarify–we still would not be obliged to do penance on most Fridays of the year.

3) One could say that the U.S. bishops exceded their authority in 1966 and Rome let them get away with it. Fine. But that’s Rome’s call to make and–this is the key point for practical purposes–Rome is still letting them get away with it.

4) One could say that I am flat wrong in my reading of the 1966 document and furthermore–so that canon 14 isn’t triggered–that the 1966 document is clear that the faithful are legally obligated to do some form of penance of their own choice on all Fridays of the year.

I think the last is by far the least promising alternative. Whatever one may think of the 1966 document, it’s clear that it’s muddled. I think that a careful reading of that will sort out the muddle and reveal that the bishops were restricting obligatory penance to only certain Fridays of the year. If you disagree and think that the document is irresolvably muddled, I understand that. But I don’t see how anyone giving the document a careful reading can conclude that the document clearly mandates that the faithful are legally obligated to do a penance of their own choosing each Friday of the year (on pain of sin, no less!).

Then there is the 1983 document, which further muddies the waters for one advocating a pro-obligation position.

Thus I don’t see how–however strong one’s desire may be to find an obligation in the law–one can responsibly conclude that on the matter of obligatory Friday penance the law is not at least doubtful, in which case the doubt of law canon kicks in and tells us that the faithful are not obliged.