The Validity of Confessions and Marriages
in the chapels of the Society of St. Pius X

A CANONICAL STUDY

by Rev. Ramón Anglés

9. COROLLARIES

9.1. EPIKEIA

The term EPIKEIA does not appear in the Code. Nevertheless, it is a capital concept which deserves to be mentioned here, even though my study is not directly concerned with it.

We have proven beyond doubt (and, in case of doubt, back to Canon 209) that the extraordinary situation in which we traditional priests exercise our ministry finds a friend in the Code of Canon Law. The Church has provided us with a legislation for exceptional cases, which justifies juridically our actions.

However, it may happen and it has already happened that in some situations we must act directly against the letter of the law. The Episcopal Consecrations of 1988, without Apostolic Mandate and against the explicit interdiction of Pope John Paul II, are the best example of such extraordinary instances. It is by the exercise of epikeia that we act according to the spirit of the law, in those special cases in which to follow strictly the law would have results contrary to the spirit of the law and the original intention of the legislator.

EPIKEIA is simply defined as the prudential and subjective judgment which estimates that the law does not apply in a particular case because of exceptional circumstances.

The intention of the legislator is reasonable and human, and certain situations may appear in which it would be unreasonable and inhuman to apply strictly the law, against the general intention of the legislator who has not precisely foreseen such particular case.

We have encountered in these pages some striking cases in which the rigid application of the general law would result in grave spiritual damage, or it would impede the exercise of a better action, even a supererogatory one.

Saint Thomas Aquinas (Summa Theologica, Ia IIae, q. XCVI, art. 6), following Aristotle, considers epikeia as a correction of the law, when the law is defective because of its universal character. The use of epikeia requires the existence of a superior right. A positive law loses its coercive power when its fulfilment is in conflict with the common good, or with natural or divine law. Epikeia’s use is limited to those cases in which there is a danger for the common good, or the natural or divine law are violated.

One can easily see the importance of studying and developing this issue.

9.2. THE POPE’S ORDINARY VICARIOUS POWER

This is another momentous and extremely delicate question, and I just want to outline it.

The power of jurisdiction is either ordinary or delegated. Ordinary power is either personal or vicarious. Ordinary vicarious power is the one exercised ON BEHALF of another person who has ordinary personal jurisdiction. Ordinary vicarious jurisdiction is exercised by a Vicar General on behalf of his Ordinary, by the Roman Tribunals and Congregations on behalf of the Pope.

When a Pope dies, the Sacred Apostolic Penitentiary continues to exercise vicarious papal ordinary jurisdiction for all questions concerning the internal forum. Meanwhile, the other offices of the Roman Curia are paralyzed until a new Pope is elected. But, as it happened in the past, if the conclave takes a long time and it appears that the vacancy will continue for an extended period of time, all the essential mechanisms of the Roman Curia will slowly start moving, although restricting to emergencies the use of their ordinary vicarious jurisdiction.

The reason for this extraordinary exercise of power is THE COMMON GOOD OF THE CATHOLIC FAITHFUL.

Another scenario in which the exercise of the Supreme Pontiff’s ordinary vicarious jurisdiction is to be contemplated would be the one in which the Pope is unable to fulfil his office. There are many hypothetical cases: a long illness incapacitating the Pope, a coma, imprisonment, persecution, etc.

Still another situation: if the Pope cannot be attained at all, the highest ecclesiastical authority available would legitimately exercise ordinary vicarious papal jurisdiction for the good of the faithful, as long as the situation lasts. In this hypothesis, which in Communist Russia or in China was a tragic reality for decades, a bishop (and even a priest, if he is the only cleric available) would use these extraordinary powers, without having received a mandate but with the interpretative consent of the Pope.

In the present crisis of the Church, when we see the Pope himself, with his decisive support of the "spirit of the Council," contributing to confuse and mislead the faithful, couldn’t we consider that we find ourselves in a situation deserving at least the study of this question? I simply place a premise and leave the rest to better and more daring minds.