Neither the procedure followed nor the nature of the decision taken against the Bishop of Évreux are known exactly. Different hypotheses are possible : resignation, transfer, removal from Office, privation of Office. The most probable is removal from Office ; not as was reported in the Press, removal ipso iure (Can. 194) but removal by decree (Can. 192-193). As regards transfer to Partenia, there is not question of transfer from one Office to another (the Diocese of Partenia no longer exists), but of a simple transfer of title. A Canonist is perplexed by the lack of transparency in the whole affair. The reason given, lack of Communion, is somewhat vague, since the Bishop of Évreux never took an unorthodox stance in relation to Catholic dogma.
Even in democratic societies freedom is not absolute ; it is subject to variatious restrictions (national security, public order, etc.). It is even more restricted in the Church which recognises the existence of only one truth, whereas democratic societies admit of a « pluralistic truth ». The Code of 1983, while recognising freedom of speech (can. 212 § 3), does not indicate what that means in the concrete. In Belgium the manner in which the « Devillé File » was handled serves as an example : a distinction was made between Rik Devillé as author of a controversial book and Rik Devillé, curé of a parish. Would it not be possible likewise to make a distinction between Jacques Gaillot as a member of the faithful enjoying freedom of speech and Jacques Gaillot the bishop bound by the obligations of his office ? A correct juridic approach to the Gaillot Affair requires the maintaining of a delicate balance between the office of bishop and freedom of speech. It is necessary to interprete those two positions in a manner such as would reconcile them. That balanced approach is, unfortunately, absent from the document of the Congregation of bishops which makes reference only to the duties of a bishop.
Some bishops are appointed by the Holy See without the intervention of another party. Others are appointed after consultation with the civil power ; that is the situation in France. Others are elected, usually by the Cathedral Chapters. These three categories of bishops may freely removed from office by the Holy See and neither the civil power nor the Electoral College has any power of intervention. The bishops of Strasbourg and Metz, in virtue of the Concordat of 1801, are appointed by the President of the Republic and receive canonical institution from Rome. The two authorities which contribute to their nomination ought also to cooperate in their removal from Office. In effect the Head of the French State should give his consent to the dismissal of a bishop who is whithin the sphere of the Concordat.
The Gaillot Affair, as seen in the context of media coverage, raises a question concerning the method of government employed in the Roman Catholic Church (authoritarism versus the prophetic, distinction between orders and jurisdiction, etc.). There arises also the question of the method of communication used by the Church (use of the media, a barrage of communiques). Canon Law is directly involved ; how does one apply, for example, its provisions concerning books and publishing activity to a bishop who published a great amount and who himself provokes an abundant literature ? Finally, the media have cited extensively canonists and the law itself ; but the question arises as to how that Canon Law was perceived in fact.
The declared priorities of the Pontificate of John Paul II are ecumenism and fresh evangelisation. From these two points of view the Gaillot Affair can be seen as a tragedy. The ancient traditions of the Church show that procedures concerning bishops came within the juridiction of local synods, that dialogue between the parties was privileged, that direct communication was preferable to public disclosure. Public disclosure took precedence over person to person communication. It is necessary nowadays to adapt Catholic institutions to the present post-christian situation.
Communion is a theological topic which has not merely hierarchical or functional or political implications. Communion is not a simple consensus, the adoption of a centre position. It traverses our differences and yet transcends them. Lack of respect for Communion is, therefore, difficult to appreciate. It is dangerous in any case to confuse an appeal to communion with a simple recall to order.
The letter of the Congregation for the Doctrine of the Faith of May 28th, 1992 « on certain aspects of the Church conceived as Communion », throws light on the reasons for the punitive action taken against Mons. Gaillot. That letter presents the universal Church as having priority in relation to particular Churches. Papal Primacy and the college of Bishops are « interior to every particular Church ». The rôle of each bishop in his diocese is thus minimised. There remains the question of the distinction between the primatial and patriarchal functions of the Pope and the question of respect for diversity in the Church. At what point is Communion broken? Certainly it is broken by apostacy, heresy or schism but, according to the letter and according to the Code, it is broken also when there is « a refusal to submit to te Head of the Church ».
The Protestant Federation of France has reacted by drawing attention to the existence of a non-Roman christianity, emphasing the fact that the faith is not a monolith but is accepting of divergences. For le Pasteur Steward the decision taken against Monseigneur Gaillot « is not compatible with the spirit of the Gospel ». Commentators find it difficult to understand how Monseigneur Gaillot can remain a bishop, a member of the Magisterium, if he has been at fault in relation to communion or if he has given erroneous teaching.
There were widespread reverberations in Germany concerning the Gaillot Affair. Mgr Gaillot himself spoke on Bavarian television. Many theologians reacted by being scandalised. From the Canonical point of view a question was raised concerning the possibilities for a bishop to defend himself (less than those of parish priests for whom a procedure exists). A question was raised also regarding the jurisprudence in the matter and regarding the present status of Mgr Gaillot.
The personal status of foreigners is governed in France by their own national law which may be of religious inspiration (Muslim laws, Jewish, Christian, etc.). However, French law, or the judge, may decline to apply a particular religious regulation regarding the status of a foreigner in the name of fundamental principles enshrined in French law, such as the principle of freedom of conscience. French legal construction is based on a philosophy of liberty. It is possible to find a solution for problems which are very current and which arise as a result of the encounter between the French juridic system and, for example, the Islamic systems to which the great majority of foreign Muslims in France relate. Thus, foreigners who are normally bound by their national religious law may, nevertheless, contract a civil marriage in France and that, even though the religious law applying to them may have provided for impediments. On the other hand, foreigners whose religious law does not recognise divorce can not obtain a divorce from French courts : « a right to divorce » which is internationally or nationally recognised does not exist. A divorce which is merely a religious one (Jewish divorce, Muslem repudiation) is not recognised in French law, if it takes place on French territory. The principal problems which arise at the present time concern foreign Muslims in France (polygamy, repudiation, education of children, adoption, filiation, right of access). However, international conventions such as the International Convention on the Rights of the Child, which Convention was adopted by the General Assembly of the United Nations on November 20th, 1989 and recognises for the child the right of freedom of thought, of conscience and of religion, cannot fail to have an impact on, for example, the solution of conflicts of laws concerning parental authority.
Three sets of legislative texts govern religions : in Alsace-Moselle the legislation enacted in the 19th Century (Concordat, organic articles) ; in the remaining parts of France the law of Separation of Churches and State of Decembre 9th, 1905 ; in the Over-Seas Territories, the Mandel-Decrees of August 26th, 1939. Some places of worship belong to the State, some to the Departments, some to the Communes, some to public institutions of worship (public ownership), while others belong to private associations. In principle the State guarantees equality before the law to all religions. Places of worship enjoy certain advantages (tax remissions, financial assistance towards buildings and maintenance). However, the religions which were formerly recognised (Catholic, Lutheran, Reformed, Jewish) enjoy, in fact, a certain preferential treatment : they are better provided for in regard to places of worship and they get permission more easily to construct new places of worship. The religions wich have more recently established themselves in France (Islam, for example) are often short of places of worship and find themselves faced with difficulties when they wish to construct new ones.
The Reunification of Germany (October 3rd, 1990) has consequences for German Law relating to religions and especially for the two principal denominations, the Protestant Church and the Catholic Church. Political reunification took place through the integration (Beitritt) of the Eastern territories into the Federal Republic. The law of the Federal Republic relating to religions, and that includes the « Reichskonkordat » of 1933, applies therefore automatically in the States of the East and especially the System of Cooperation and Complementarity between Church and State which is charasteristic of Germany. The Eastern States have drawn up Constitutions which take account of those relationships. The Churches likewise have been reunited by a process similar to Beitritt. The Protestant Churches have achieved this by means of the EKD (The German Evangelical Church) and the dissolution of the Protestant Federation of East Germany. In the case of Catholics, the Episcopal Conference of the German Democratic Republic has been dissolved and its members have been integrated into the German Episcopal Conference. New Ecclesiastical Territories have been carved out and numerous agreements and Church-State Concordats are in the course of preparation. Some problems remain, in particular the problem of Protestant Military Chaplaincy and the problem of religious education in Schools.
The Swedish Church, which has been recently reorganised, is structured in a relatively autonomous fashion by means of a fundamental law dating from 1993. A Synod consisting of 251 members democratically elected (bishops included) runs the Church, even though this Synod has not true legislative power. That power is still the preserve of the national parliament which may delegate its power to the Synod for matters internal to the Church. Certain problems remain to be settled, among them the problem of membership of the Church (at present every Swedish citizen whether baptised or not is automatically a member of the Church). Denmark has preserved structures which are much more traditional. There is no Synod nor are there national or regional organs which could assure a certain amount of autonomy in the face of the State. The Danish Constitution of 1849 provided for a fundamental law which would bring about the organisation of the Church on the basis of religious freedom, but that law was never enacted. Thus, still at the head of the Church are the Queen, the Parliament and the Minister of Religion. The Church has no representative body except at parochial level. The Norwegian Constitution guarantees religious freedom but the Evangelical Lutheran Religion remains the State religion ; the King and at least half of the Government must profess it. However, there is a tendency towards granting a greater autonomy to the Church, in particular through the setting up in 1984 of a Central Synod and of a Church Council. The State, eager for decentralisation and privatisation, has granted new powers to those bodies.
Since the promulgation of the New Code of Canon Law for the Eastern Churches, 1990, many works have appeared : a history of the Canons of the New Code, Italian and English translations, an Index, Concordances with the former Oriental Code and with the Latin Code, Commentaries on the Oriental Code and on the institutions of Oriental Law, the Conference of Bari (1991), the new Collection « Kanonika ».
France is the European country with the most highly developed legislation at present concerning bioethics. The laws 94-653 and 94-654 of July 29th, 1994 deal with respect for the human body and with donation and use of parts and products of the human body. They deal also with medically assisted procreation and pre-natal diagnosis. Most of the debates and polemics have centred around medically assisted procreation. The human embryo has not received legal definition. It is neither a person nor a thing. The rules governing the donation of gamets and of embryos fall within the general philosophy regarding the donation of parts of the human body : they are donations which means that they are the object of an agreement involving neither monetary consideration nor compensation but involving anonymity. The legislator set about defining as exactly as possible the possible forms of medically assisted procreation and also the type of couple who might avail of it (only cases of therapeutic sterility are accepted to the exclusion of cases of natural sterility which results, for example, from age). The legislator was concerned also with the medical or moral conditions in which the principle of the anonymity of the donor, while putting in place the legal machinery which would safeguard the rights of the child and define as comprehensively as possible the legal bond linking parents and child.
An understanding of the significance of procreation in biblical texts is dependent on an analysis of key-terms. From the blessing " be fruitful and multiply " developed the history which was fulfilled in the genealogies. Those successive generations are the fulfilment of the initial blessing. They are also the realisation of human history turned toward the future. Thus the child is wilcomed as a gift from God ; for man he is a remedy against death ; hence the nature of a curse which may be associated with sterility. However, sterility is a test of faith rather than a definitive curse. In the context of an anthropological study of the Bible, a comparison of animal fertility and human fertility is instructive on, among other things, the mission to be exercised by man and woman on earth and their reponsibility for the expansion of the human race. Although they are not the source of life, they are nevertheless the origin of life. Besides, the different anthropoligical facts contained in the biblical narrative had important implications for Israelite culture.
For Augustine the purpose of marriage was the having of children, a necessary condition for the perpetuation of the human race. Procreation is the first final cause of marriage but it is not a necessary element of marriage. Augustine condemns abortion from the moment the foetus is " formatum et animatum " and he condemns infanticide. The heritage left by Augustine virtually predominates mediaeval doctrine. Procreation is willed by God but the pleasure involved is culpable. That conflict between pleasure which is sinful and the begetting of children which is a duty gave rise to an abundance of casuistry which constitutes the main contribution of the middle ages. Huguccio denounced pleasure even in marriage. However, this extreme rigour was generally rejected by canonists, especially in the gloss on the Decretum. It was rejected also by theologians, first among them being Peter Lombard. In this matter Abelard was particularly liberal. The Code of 1917 takes up the Augustinian doctrine when it distinguishes the primary end from the secondary end. But the Council broke with a long tradition when it did not mention the " tria bona " of marriage and declined to set up a hierarchy of ends. One finds this new doctrine again in the Codes of 1983 and 1990.
New techniques in medically assisted procreation made their appearance in the nineteen seventies. The debates which ensued in France during the past twenty years are recounted. Special mention is made of the setting up in 1982 of the National Ethical Consultated Committee (which considers the embryo as a potential human being). There is a mention also of the adoption in july, 1994 of the so-called " bioethical " laws (which do not accord to the embryo a precise juridic status). The MAP (Medically Assisted Procreation) belongs to the moral category of the " human act ". Procreation is brought about by decisive acts, the taking and bringing together of the reproductive cells, the preservation and transfer of embryos. The moralist reflects on the significance of those news acts. A question arises in particular in regard to paternity and maternity when third parties are involded (donor, doctor etc.). A question arises also concerning the status of the reproductive cells and in vitro embryos (including their status in Canon Law : Canonical silence appears to be the most respectfull response to the origine of their condition). There is also question of the status of the genome (ADN banks, genetic enginering, etc.)
The act of begetting or of procreating is not confined to the merely
biological process. There enters a dimension proper to the human species :
language. It is in this sense that procreation differs from animal reproduction.
Canonical tradition wishes that marriage should be a means with a view to an end
: procreation. But this link between means and end is not necessary : from all
eternity God begets the Word without marriage, and Joseph, Mary's spouse, did
not procreate Jesus biologically and yet he is his father. Human procreation
does not come within either of those categories. It is neither the eternal
begetting of the Word nor simple biological reproduction. One must consider the
notion of Incarnation. Human begetting can be understood as the improbable
encounter of the " logos " and the flesh. Joseph can not lay
claim to a procreative act nor to his becoming father through naming Jesus. It
is the same for every human father. Every subject born of the union of word and
flesh, who begets a being of the same nature as himself but also different from
himself, is in the same situation as Joseph : " between "
origin and end, " between " logos and flesh... In so far as
procreation is not identified with biological reality or related to the
imperative of a timeless logos, but combines both, an area remains open which
permits the writing of the law.
The canonical debates on the banum prolis are worth taking up again, especially since the publication of " Donum vitae " in 1987. In the first section the autor attemps to point out the relevance of Canon Law in questions of biomedical ethics : Canon Laws of penalties could permit the intervention of Canon Law in those debates. For example, the excommunication attached to abortion allows the person in question to repent and make amends. At a time when we are emerging from the " sexual revolution " with an awareness of the dangers arising from AIDS, the time may be ripe to give real efficacy to penal Canon Law. The second part of the work examines in depth certain questions from the perspective of Canon Law : artificial insemination either with husband's sperm or donnor's sperm, post mortem insemination, artificial procreation and filiation whether legitimate or illegitimate (together with the question of entry in baptismal registers).
The Protestant attitude to procreation is markedly different from the Catholic one. A number of writings in French point to a conception of human life which is not to simply biological ; thus, one can not state without qualification that all live is sacred. The result is that the manner in which a child in conceived may be viewed as merely a technical incident. The essential fact is that every child must be adopted. Contraception and in vitro fertilisation pose no problem for protestants. Abortion is acceptable in situations of hardship etc. The priority is to cater for the rights of the child, not the right to have a child.
In law it is possible to make a distinction between procreation and filiation. It is possible for one to procreate and yet not become legally the father or mother (for exemple, having a child by X, refusing to recognise paternity, there is also the situation in which it is impossible to establish filiation.) On the other hand, adoption provides parents for a child who has not a biological family, or it may add legal parents to the biological parents ; a man may give recognition to a child who is not his ; in the case of medically assisted procreation the woman who gives birth is deemed to be the child's mother, even thought she may not be the one who conceived ; one may even institute paternity proceedings against a man who is not the natural father. The biological link is not, therefore, of prime significance.
In Germany legislation on new forms of procreation is not yet very highly developed. But the Code of medical ethics imposes norms which ar quite strict. From the canonical point of view, a solution must be found for the problems raised by the PMA in the new definition of marriage according to Vatican II : marriage as a covenant of love and fidelity by which a man and a woman establish a " consortium totius vitae ". For example, one may give a new definition of sterility and the impediment of impotence which conforms to that definition of marriage. However, one should regulate juridically only those situations where real conflict exists : the manipulation of embryos is not a problem which falls within the realm of the canon law of marriage.
The " bonum coniugum " includes of necessity openness to procreation. One may exclude the " bonum coniugum " without excluding the " bonum prolis " but not the reverse. In theory to-day the " bonum coniugum " and the " bonum prolis " are equivalent. In reality, the " bonum coniugum " appears to be the ultimate end of marriage and includes all the other " bona matrimonii ".
Medical intervention in procreation seems generally to be a purely technical procedure like an artisan's instrument repairing a wounded or faulty nature. But the art of medicine is also an ingenious device the function of which is to supplement nature. The techniques employed in human fertilisation and procreation fall into this second category. The position adopted by the Magisterium of the Catholic Church urges medicine to confine its technique to the role of repairing. Is this simply a refusal to enter into the modern debate ? It is also a reminder of the fact that man's mastery over his own productions does not raise him above them like a demiure or an apprentice sorcerer.
Gregory the Great was insistent on the need to adapt ecclesiastical teaching to different classes of hearers, persons and communities. The places which are appropriate for ecclesiastical communication are still the diocese and the parish. Teaching on ethics should all the more follow the same path.
Rotal sentences concerning the bonum prolis are few. A recent sentence coram de Lanversin delivered on June 15th., 1994 concerns a case of voluntary sterilisation accompanied by the deposit of sperm in a sperm bank. That led the Judges to consider whether new methods of artificial fertilisation could in some way affect the object of matrimonial consent so as to lead by a positive act of will to the exclusion of one of the essential elements of marriage, thus rendering the marriage contract invalid. In fact, the marriage was declared null on the ground of the exclusion of the bonum prolis by the man.
This article is in the form of a reply to two articles published in 1994 in the RDC (G. Candelier, " Exclusion of the bonum fidei : a study of Rotal sentences " ; K. Walf, " Conjugal fidelity : Canon law and tradition "). The author, like K. Walf, criticises distinction between ius et usus iuris i. e. the distinction between a right and the use of a right, which should not be resorted to except when the spouses mutually agree to renounce the use of the right. He disagrees with De Jorio who considers the ius in corpus to be the object of matrimonial content : the bonum fidei implies more than simply copula carnalis. He denies being anti-personalist and indeed wishes to integrate personalism and Christian anthropology into matrimonial jurisprudence, " while adhering to the limitations imposed by strict juridic thinking in justifying the utility of such integration ". Thus, the bonum coniugum should be seen not merely from a personalist point of view but also from the point of view of the institution. Regarding communio vitae et amoris it is difficult to give a precise juridic content to the word " love " in its affective meaning. That is the reason why the Code prefers the expression consortium totius vitae. In short, one should advance but " on the basis of solid ideas ".
After centuries of state religion, since 1905 France has experienced a regime of Separation of Church and State. This regime developed in reality into a system of mutual understanding between the lay State and Religion. Is this system still suited to the situation in wich the problem of religious fundamentalism arises and especially Islamic fundamentalism ? André Damien is an adviser of the Minister of the Interior who is responsible for religious bodies. He sets out his wiews regarding the policy put into practice in France in the matter, regarding the difficulties and the opposition encountered, and he expresses the hope that fresh agreements will be entered into between the State and the principal religions, Islam being one of them.
A family which follows the philosophy of Rudolf Steiner requested the removal of the Crucifix from all classrooms in public schools frequented by children. The Administrative Tribunal of Bavaria and Court of Appeal rejected their plea. The Federal Constitutional Court decided on May 16th., 1995 that putting a cross or a crucifix in the classrooms of a non-confessional school is contrary to fundamental law. Neutrality thus understood does not signify, however, religious indifference on the part of the State or an anticlerical separation of Church and State.
A record of liturgical legislation between 1990 and 1995 which sets out the
principal innovations in regard to the Eucharist, Sunday Celebration, Baptism,
Liturgy of the Hours Ministries, Penance, Funerals, Liturgical Books etc. It
points out certain new practices which may pose problems in the realm of Canon
Law. The recent Code of the Oriental Churches (CCEO) opens the way for renewed
understanding of the notion of Sacrement.