The Code of Canon Law and Children

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Chapter 2 The Code of Canon Law and Children

This chapter looks at how the 1983 Code of Canon Law addresses children’s rights and obligations and related matters. The focus is on what canon law provides and why. The cic does not deal with the subject systematically but there is nonetheless a substantial body of law which either directly or indirectly impacts on the rights and obligations of child members of the Latin Church. Interrogation of that body of law requires a preliminary review of some of the basic terminology, concepts, language and definitions which are encountered in establishing the rights and obligations of children or the rights and obligations of others which affect children.

1 Terminology

Since the official text of the cic is in Latin it is to that text and language we must look for authenticity and clarity. McIntyre explains that Baptism «con- stitutes the juridic basis for making one a person in the Catholic Church».1 Clearly in a colloquial sense every human being and not just someone baptized is a «person» but what McIntyre is explaining is the canonical status of the baptized as set out in can. 96 which says «Baptismo homo ecclesiae Christi incorporator et in eadem constituitur cum officiis et iuribus quae christianis […] sunt propria» (By Baptism one is incorporated into the Church of Christ and constituted a person in it, with the duties and rights which […] are proper to Christians. The Latin word persona is used here in a legally specialised sense to indicate that the baptized person enters into membership of the Church of Christ and so has a «persona» in that Church with the duties and rights proper to a Christian (rather like a form of citizenship of the Church of Christ). McIntyre specifically references membership of the Catholic Church and while it is true to say that all those validly baptized whether Catholic or not are by their Baptism incorporated into the Church of Christ, it is important to remember that the canons of the cic concern only the Latin Church (cf. can. 1) and the Church’s merely ecclesiastical laws apply only to those baptized into or received into the Catholic Church (cf. can. 11). Lombardía observes that can. 11 «establishes those persons to whom canon law is applicable, that is, those

1 J.P. McIntyre, «The canonical condition of physical persons», 141.

110 Chapter 2 persons which the Church considers to be subject to its power of governance and has the will to obligate them to abide by its laws».2 This is important in the context of understanding in particular the obligations and rights of a persona in can. 96. As Lombardía explains «Apart from the validity of the natural and positive divine law which the authority of the Church cannot restrict or condition»3 the Church’s imperative precepts of human law are intended to apply only to those baptised into or received into the Catholic Church. Those baptised or received into the Catholic Church (cf. can. 869 §1–§2) change as a consesquence of Baptism from being non-members to members of the Catholic Church, subject to its power of governance and to the rules and regulations, rights and obligations which canon law specifies apply to Church members.

1.1 The Canonical «person» Hart describes this canonical notion of persona (person) (cf. can. 96) as ef- fectively creating a «juridic personality»4 for each of those who are baptized into the Latin Church. Since it is precisely this area of so-called «juridic personality» which is explored here, it needs to be said that calling it a «juridic personality» or describing a Church member canonically as a «juridic person» is unhelpful and potentially confusing. This is because the cic itself uses the term «juridic persons» to mean something quite different from a physical baptized person. Can. 113 §2 provides that in the Church besides personas physicas (physical persons) there are also personae iuridicae (juridic persons). Can. 114 §1 describes personae iuridicae (juridic persons) as universitates personarum (aggregates of persons) or universitates rerum (aggregates of things). In other words a «juridic person» in canon law is not an individual human being but is as Kennedy describes «an artificial person, distinct from all natural persons […]. Like a civil law corporation it is a legal construct which can and must be conceived of apart from the natural persons who constitute it, administer it or for whose benefit it exists».5 Therefore to describe a Church member as having a «juridic personality» is at best misleading and at worst incorrect canonically speaking. Yet a Church member, according to can. 96 becomes this legal entity called a persona (person) in the Church of Christ, a term which is intended to convey considerably more than the colloquial word «person». The persona

2 P. Lombardía, «Ecclesiastical laws», 38. 3 P. Lombardía, «Ecclesiastical laws», 38–39. 4 R.T. Kennedy, «Juridic persons», 154. 5 R.T. Kennedy, «Juridic persons», 154.