Edward N. Peters, 17 kwietnia 2006
1. It is possible (c. 124), but highly unusual, to impose, for validity, on “rank-and-file” members of the Church, the specific obligation of writing when they wish to achieve and effect in the Church. Indeed, outside of a few cases involving higher-level ecclesiastical administration, it appears that a writing requirement for the validity of an action is virtually unheard of.
2. Entry into the Church is not conditioned upon one writing (personally, or through another) anything. The validity of a sacrament, including those that confer a character (baptism, confirmation, and orders) or that change one’s status in the Church (e.g., marriage and orders) does not depend upon one’s writing. Acts of apostasy, heresy, or schism (cited by the Notification as actions sharing the animus of formal defection) need not be committed in writing to be recognized under canon law.
3. A wide range of very significant ecclesiastical actions are effective without being placed in writing (c. 10), including change of rites (c. 112), resignation from office (c. 187 and even c. 332 on papal resignation), religious profession, professions of faith (c. 833), all canonical crimes (even those such as abuse of the means social communications), virtually all administrative acts (c. 37), and exercises in consultation and consent (c. 127). The writings that are sometimes “required” in association with some of these actions (e.g., cc. 1050 et seq.) are required for liceity (say, to impress upon individual the importance of the step they are taking and to assure that preparation has been completed) and often serve useful evidentiary purposes, but they are not required for the validity of the action itself (c. 10).
4. There are only a few indisputable cases wherein, for validity, an action must be placed in writing. These include notification of loss of office due to expiry of term (c. 186), certain acts of alienation of property (cc. 638), some marriages entered by proxy (c. 1105), and the acceptance of a “pious foundation” by a juridic person (c. 1304). The relative rarity of such events is self-evident.
5. Most chancery canon lawyers have seen occasional letters from people asking to be “dropped from the rolls of the Church” or words to that effect. Some of these letters are hateful and ignorant, and some are respectful and thoughtful. None of the ones I’ve seen evidence any mental instability, coercion, etc. No one doubts but that such letters represent a very small fraction of the number of people who, in an externally visible way, have deliberately cut themselves off from communion with the Catholic Church.
6. No canon lawyer I know of confuses long-term absence from the practice of the faith with defection (formal or otherwise) from the Church.
7. Canon 1117 was intended to exempt from the requirement of canonical marriage form those Catholics who, in short, have become Protestants. Consistent with the Church’s recognition of Protestant marriages, Canon 1117 reduces the number of marriages that are automatically null for lack of form (incidentally reducing the number of annulments). Canon 1117 means that fewer (former) Catholics coming back to Church after marrying outside of it can abandon spouses and children on the pretext of having married invalidly. The Notification, however, guts the practical effectiveness of Canon 1117, meaning that most Catholic defectors (not having placed their defection in writing before an ecclesiastical official) can claim nullity for their marriages.
8. People who, in fact, are leaving the Church, comprise the least likely group to bother placing such a decision in writing and sending it to a Church official—assuming they even know who that would be. It is of dubious juridic value to place an unusual obligation on a group of people disinclined to observe the obligation especially when there is no realistic mechanism to enforce the obligation.
9. The Notification admittedly greatly reduces the possibility that adherents to the Traditionalist Schism(s) will be canonically considered to have „formally” adhered to the movement. It is difficult to see, however, how this interpretation can be reconciled with numerous cases in Church history.
10. In brief, while putting something in writing is a good way to prove that it happened, writing itself is not intrinsically necessary to the canonical effectiveness of the action (pace a few administrative actions undertaken by ecclesiastical officials), nor is a written document the only way to prove that an action happened. To say that “formal defection” can only be achieved if it is put in writing runs counter to every other similarly-situated case I can think of.
11. Questions: (A) When does a formal act of defection achieve its effect? I would say, at the moment the act occurs, and not necessarily at the moment when competent authority is notified of the act, let alone the time when authority decides the act should be taken seriously. For example, a soldier sneaks over the army base fence at 1 AM, but his disappearance is not discovered and reported to the commander until 9 PM that night. At what time did the soldier go AWOL? Obviously, at 1 AM. (B) Consider a canonical example, c. 533. Suppose a pastor, without informing his ordinary (which notification need not be made in writing!), simply leaves his parish on a Tuesday, but is not noticed as being gone until the following Sunday, whereupon the bishop is informed. Does anyone doubt but that the pastor’s absence began on Tuesday? Or does the clerical version of an AWOL clock not start running until ecclesiastical authority is notified of the pastor’s absence on Sunday? I say the pastor’s act of leaving the parish was juridically complete on Tuesday, regardless of who knew or didn’t know about it at the time, and than come Wednesday morning (not the next Sunday) he’s in trouble. (C) What must the competent authority do with the notice of defection? The document is unclear. It speaks of “receiving” the act of defection, but also of ascertaining whether the will was sufficiently engaged for the act to achieve its purpose. No criterion is offered for the ascertainment. Are bishop really motivated to look for and find defection in such letters? Are they really required to treat it a penal matter (as the Notification seems to imply) despite what c. 1340, 1341 direct?
12. Sample case: Mike, age 27, normal guy, baptized and raised Catholic, attends several worship sessions at The Church of Jesus, which he finds inspiring and moving. He eventually stands up at such a session, attended by 100 people that night, and with another convert, raises his hand and says, “I thank you Jesus for showing me where the true Bible faith is, and I renounce the years I spent in the error and conceit of Romanism, and ask you to accept me a Bible Christian in your blessed fellowship.” The crowd applauds, and he is welcomed as convert. Has Mike formally defected from the Catholic Church (a) morally, (b) in the world’s eyes, and (c) according to this Notification? If the answer to (a) and even (b) is YES, while (c) is NO, how can we justify that conclusion? Contra factum non valet argumentum. Over time, Mike sends no notice of any sort to any Catholic official. He later marries a free-to-marry girl in C of J. Is his marriage presumptively valid? If Mike later comes back to the Catholic Church, may he simply divorce his wife and leave his children with the assurance of getting a documentary declaration of nullity, and go on to marry another?