On Invalid and Unjust Excommunications

A Brief Study

Recently, I came across an interesting text from the canonist Fr. Sebastian Cattaneo, O.P. (d. 1609) that briefly goes over the distinction between unjust and invalid excommunications that is quite relevant to the recent discussions concerning the SSPX. There is also quite a bit from St. Alphonsus.

It is quite obvious that unjust censures are to be feared and that those who suffer them, in pride, can easily fall into mortal sin. Such is the teaching of Pope St. Gregory and St. Thomas, which expresses the common opinion. Pope St. Gregory wrote, “the pastor’s sentence is nevertheless to be feared by the flock, lest he who is subject to him—even if, perhaps, he is bound unjustly—should merit the very sentence of his binding from some other fault.” (PL 76:1200B) St. Thomas wrote, “if he should scorn the ruling [i.e., an unjust excommunication], he would sin mortally by that very fact…” (Sent.IV.D18.Q2.A1.Q4)

Yet, what if the ruling is invalid? Hence, due to some substantial defect, the censure doesn’t actually take its effect? Canonists distinguish between a ruling that is certainly invalid and a ruling that is dubiously invalid. In the former case, reasonable doubt has been removed by manifest signs and arguments. In the latter case, while there are grounds to doubt the ruling, there are also grounds that support its validity.

When it is certain that a censure is invalid, canonists are quite careful. While they admit that the censured may continue as if they are not censured, they should be careful to continue to act publicly as if censured insofar as this is necessary to avoid scandal (cf., St. Alphonsus, Homo Apostolicus, lib. xix, cap. i, punct. i, n. 10 near the end) until the censure is removed. To give an example, if a priest’s faculty to hear confession is removed by his bishop and he is certain that such is invalid, then he can continue hear confessions, even publicly, as long as scandal is avoided.

It is for this reason that canonists commonly say that an invalid censure is “not to be feared,” i.e., not to be carried out, while an unjust censure “is to be feared,” i.e., is to be carried out.

When it is dubious whether a censure is invalid, canonists are clear; in this case, even if there is a probable opinion for the invalidity of the censure, then they are morally obligated to, likewise, have the same observance (since, in this case, the judge is “in possession”):

It must be observed however, (a) that these two decrees apply only where the censure or sentence is invalid and not merely unjust; (b) and where its nullity is certain and undoubted. For if it is doubtful whether the censure is invalid or not, the person visited with censure must, as we shall presently see, appeal his case to the judge ad quem, in order to have the nullity declared officially. (Smith, Elements of Ecclesiastical Law, n. 3062; cf. St. Alphonsus, Theologia Moralis, lib. vii, cap. i, n. 68)

So, what is it that makes an ecclesiastical censure invalid?

First, when the one imposing the censure has no power. This can occur either because the individual excommunicating is not the superior, or is putatively the superior, yet has some defect in himself. This defect can be some censure on the superior or if he is a heretic or schismatic. The common opinion (followed by St. Alphonsus, Homo Apostolicus, lib. xix, cap. i, punct. i, n. 3) is that the censure must be by name and the heresy/schism cannot be merely occult. It is for this reason that the Church in councils frequently declares all the ecclesiastical acts of condemned heretics to be null.

Second, when the person upon whom the censure is imposed is not apt to receive the punishment. For example, if one is exempt by some privilege granted by a higher judge (e.g., kings could only be excommunicated by the Pope), below the age of censure, insane, etc.

Third, when it is imposed after a legitimate appeal of the case. In this instance, the judge of the matter is now the higher, not the lower judge.

Fourth, when the excommunication contains an intolerable error.

α) If something illicit is commanded. Hence, if the Pope demanded that a man fornicate or else be excommunicated, then the excommunication would be null.

β) If something good in itself is forbidden. Hence, if the Pope demanded that you not worship God, then the excommunication would be null.

γ) If the censure is grave, yet imposed for a light sin or no sin at all. It is to be noted, with St. Alphonsus (Theologia Moralis, lib. vii, cap. i, n. 31), that the gravity or lightness of the act is not taken purely from the act materially considered, but the act with its end and circumstances. Hence, valid censures can (and have) be wrought against individuals for morally indifferent acts, such as cutting their hair in a certain way or eating certain types of food.

NOTE: St. Alphonsus notes two important points: a) when in doubt over the gravity of the act, the judge is in possession (ibid., n. 32; Homo Apostolicus, lib. xix, cap. i, punct. i, n. 7), and b) when the law threatens with excommunication latae sententiae, there is a grave obligation (Theologia Moralis, lib. vii, cap. i, n. 33; Homo Apostolicus, ibid.).

δ) If something impossible is commanded.

ε) If there was some defect of form in the law.