September 2012 Print

Fr. Peter Scott, SSPX

Are there such things as purely penal laws?

The question of the existence of purely penal laws is one that is debated. A distinction is made between a law which binds in conscience, a moral law, and a law to the infraction of which a penalty is attached, a penal law. All agree that the vast majority of laws are mixed, both moral and penal. The question here is whether there exist laws that are purely penal, that we must observe because there is a penalty attached to breaking them, which means that we ought prudently to keep them if there is any chance of getting caught, but which we are not obliged in conscience to observe. This possibility of purely penal laws is spoken of concerning such civil laws as speeding laws, seat belt laws, parking rules, customs and gaming laws and the like. There is a frequent and common estimation among many people that such laws do not really bind in conscience and that, consequently, it is quite permissible to break them and not sin, but that simply if we are caught we must pay the penalty, whatever it is. If this were the case, it certainly would easily calm our conscience in such cases

St. Thomas Aquinas did not consider purely penal laws as a possibility. As far as he is concerned, a law which is a law is by definition just, and consequently obliges in conscience. If it does not oblige in conscience, it is because it is not just, and consequently it is not a law. This is his teaching in the Summa, Ia IIae, Q. 96, Art. 4, answering the question as to whether or not human law binds a man in conscience: “Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived.” Note that the power of binding in conscience does not come from the intention of the legislator, but from God`s eternal law. Consequently, even if the legislator does not intend to impose a moral obligation, and even if the majority of the people do not perceive a moral obligation, it does not at all follow that there is no such obligation. He then considers the two things necessary for a law to be just, namely that it is ordained to the common good, and secondly that the burdens of the law are laid on the subjects “according to an equality of proportion and with a view to the common good.” Hence his conclusion: “Such laws as these, which impose proportionate burdens, are just and binding in conscience, and are legal laws.”

However, the more recent (but traditional) moral theologians all speak at least of the possibility of purely penal laws. Their argument is that when the state makes such laws as customs, gambling laws, speed limits, hunting laws, laws to protect the environment, copyright laws and the like, it is not pretending to impose any moral obligation, but simply to impose a punishment if one gets caught. However, the argument is not convincing. Common sense indicates that if they are just laws, truly for the common good, then there is at least some kind of moral obligation to them, and if they are not truly for the common good, then they are not laws at all. Moreover, official government propaganda in every state certainly intends to present such laws as if they impose a moral obligation, with the implication that one would be considered a bad citizen for refusing to abide by them. Further, as Merkelbach points out (Summa Th. Mor., I, 258), even if it be maintained that there is a purely penal law, there will in general be accidentally or consequentially some fault on account of the scandal given, or danger of harm to other individuals and their rights. In practice, it really always comes down to the same thing as saying that there are no purely penal laws.

However, even if it be admitted that there are no purely penal laws, it must nevertheless be affirmed that the matter involved in such civil laws, even those that are just, is often very light, and insignificantly so. For example, speeding but doing it in a safe way is of miniscule importance. Frequently also such laws are unjust, since they are excessive. This would apply to some speed limits, parking limitations, customs duties for personal items, etc., in which case there would be no fault in breaking them. The argument given in favor of purely penal laws is that this is the common estimation of the people. This I dispute. It is the common estimation of the people that unjust laws need not be observed (e.g. prohibition of reasonable cutting of trees on one’s own property), and that laws that are about very light matters or inconsequential matters are of no great moral importance. Moreover an equitable civil authority will allow a certain amount of tolerance for many such laws, such as speeding laws. Within the realms of civil tolerance there is manifestly no fault. However, laws prohibiting, for example, drunk driving are manifestly necessary for the common good, and it is certainly the common estimation of the people that they bind in conscience.

In conclusion, the concept of purely penal laws is one which empties out the fundamental relationship of all human laws to the natural law and to the Eternal law in God’s plan. A man of delicate conscience will not readily accept such a concept, as if it were possible to separate morality from civic duty, nor will he easily be influenced by the lax conscience of the common estimation of the people, which has lost all sense of the common good and considers as moral what can be done with impunity. Rather, striving for integrity in his life as a Catholic, he will unite his civil and moral life into one, and strive to accomplish what is most perfect for the common good, refusing to give scandal to those who rightly respect just civil laws.

May one attend the funeral of a person whose will it was to be cremated?

Cremation is a practice that was well known in Roman and Greek pagan antiquity. However, the Jews always buried their dead, and did not allow cremation. The early Church firmly maintained this refusal of cremation, so much so that by the fifth century the practice of cremation had entirely ceased within the Roman Empire: “The Christians never burned their dead, but followed from earliest days the practice of the Semitic race and the personal example of their Divine Founder. It is recorded that in time of persecution many risked their lives to recover the bodies of the martyrs for the holy rites of Christian burial.” (Cath. Encyclopedia, IV, p. 481). Two reasons are given. Firstly out of faith in the doctrine of the resurrection of the body, which will take place at the end of the world—not because God cannot raise the body from the ashes, but as an expression of faith in this mystery. Secondly, out of respect for the body as the temple of the Holy Ghost: “Know you not that your members are the temple of the Holy Ghost, who is in you? …Glorify and bear God in your body” (I Cor. 6:19-20). Reverent burial has consequently always been regarded as an act of religion, which honors the deceased. “The Church…holds it unseemly that the human body, once the living temple of God, the instrument of heavenly virtue, sanctified so often by the sacraments, should finally be subjected to a treatment that filial piety, conjugal and fraternal love, or even mere friendship seems to revolt against as inhuman” (Cath. Encyclopedia, s.v. “Cremation”).

This being said, cremation is not intrinsically evil, and has always been permitted in cases of necessity, such as pestilence, in which a quick disposal of the bodies to prevent the spread of infection is required. The Church’s laws on burial date from the early Middle Ages, at which time they concerned the place of burial rather than the fact of burial, which was not then disputed. The present legislation against cremation dates from the nineteenth century, during the second half of which Freemasons obtained official recognition of cremation from various governments as a part of their materialism and denial of the resurrection of the body (Bouscaren & Ellis, Canon Law, p. 608). Consequently we read in the Catholic Encyclopedia of 1908: “Cremation in the majority of cases today is knit up with circumstances that make it a public profession of irreligion and materialism.”

The traditional law of the Church is summarized in Canon 1203 of the 1917 Code: “The bodies of the faithful deceased must be buried; and their cremation is reprobated.” This is a clear statement of the obligation to bury, and the forbidding of cremation. The Canon continues: “If a person has in any way ordered that his body be cremated, it is illicit to obey such instructions; and if such a provision occur in a contract, last testament, or in any document whatsoever, it is to be disregarded.” It is consequently strictly forbidden for a relative or an executor of a Last Will to allow the cremation to be done. He must use all his influence to bring about a rapid burial, regardless of the order given by the deceased, or the cost involved, or the opinions of other family members. One must refuse to act as the executor of a Will of someone who has ordered his body to be cremated if one does not believe it possible to overrule this order after his death.

Alas, in 1963 Pope Paul VI permitted cremation, and the new practice is summarized in the 1983 Code of Canon Law, Canon 1176, §3: “The Church strongly recommends that the pious practice of burying the bodies of the deceased be maintained. It does not, however, forbid cremation, unless it be chosen for reasons contrary to Christian doctrine.” This is typical of the ambiguity of the post-conciliar church. It forgets that it was only for reasons contrary to Catholic doctrine that cremation was introduced in the first place, in particular as a consequence of the denial of the resurrection of the body. The often alleged reason of saving money is but a manifestation of the lack of reverence for the body, temple of the Holy Ghost, in comparison to which the little extra money required for a burial is insignificant. When people and society were much poorer than we are now, they always managed to bury the faithful departed. The allegation of cost as a reason for cremation is consequently but a sophism for saying that we do not care that much about the bodies of the faithful departed. How different this is from the attitude of faith that characterized the time of the martyrs of the first centuries. This new Canon cannot, therefore, be followed in conscience, outside of cases of necessity.

The will of the Church in making a law obligatory is measured by the gravity of the punishment imposed for the breaking of the law. In Canon 1240 of the 1917 Code the punishment prescribed is to be deprived of ecclesiastical burial. “Those who gave orders that their body be cremated” are to be counted amongst those who are to be refused Church burial services, including the funeral Mass and graveside ceremonies, along with public sinners, excommunicated persons, apostates from the Faith, and those who have committed suicide. Clearly, this is a very grave punishment, suitable for a person who has committed a grievous and scandalous crime against the Church’s discipline. Note, however, that there is an exception in the Canon, namely “unless before death they gave some sign of repentance.” This sign of repentance could be any sign that might implicitly contain repentance, such as asking for a priest, kissing a crucifix, requesting the sacraments. If any such sign be given, the person can then be given ecclesiastical burial, even though he may have previously ordered his body to be cremated (provided that the cremation does not actually take place).

The 1983 Code modifies the punishment for ordering the cremation of one`s body, listing likewise under those to be deprived of ecclesiastical burial (unless before death they gave some signs of repentance) “those who have chosen cremation of their own body on account of reasons opposed to the Christian faith” (Can­on 1184, §1, 2). The same ambiguity exists here. Few, if any, will request cremation because they deny the resurrection, and many choose it simply because it is permitted and cheaper and has become a custom in our pagan society. In such a case, the ceremonies of church burial are permissible according to the new law, and this despite the fact that ultimately the reasons for the cremation, although not clearly understood by the person, are truly reasons opposed to the Faith.

How is a traditional Catholic to navigate amongst all the confusion caused by the carte blanche for cremations given by the post-conciliar church? Can he follow the traditional law in all things? It goes without saying that he ought not to assist at the Novus Ordo ceremonies since they greatly undermine the reality of judgment, the gravity of sin, the sufferings of Purgatory, and the duty to pray for the repose of the poor souls who are punished and purified there. Moreover, with respect to the cremation, he ought not to assist at any funeral at which there is a cremation, whether it be in the presence of the body before the cremation or in the presence of the ashes after the cremation. The only exceptions to these will be when it is a very close relative, and he is forced to be present by family necessity, in which case he must not actively participate in the ceremonies in any way.

According to the traditional law (Canon 1240), if a person ordered his body to be cremated, he was not to receive ecclesiastical burial at all, even if the cremation was not done. However, at the present time, this would be an excessive reaction. For many persons in ignorance have ordered their bodies to be cremated because they have been told that it is now permitted, believing in good faith that they still have a right to the ceremonies of ecclesiastical burial. To refuse a traditional Catholic funeral Mass and burial to such persons would fail to take into account the confusion of the present crisis. Consequently, any traditional Catholic who is the executor of the Last Will of a Catholic who has ordered his body to be cremated, must use his authority to overrule this order and procure both a burial and the traditional ceremonies of ecclesiastical burial, including a Requiem Mass.

The contrary can also happen, namely that a person is cremated without having given specific orders for this. Can a Requiem Mass be celebrated for the repose of his soul, and the ashes buried in a cemetery? The Holy Office answered this question in 1926: “In all these cases in which it is forbidden to hold the ecclesiastical funeral rites for the deceased, it is not even permitted to honor his ashes with ecclesiastical burial, nor in any way to preserve them in a blessed cemetery” (Bouscaren & Ellis, Canon Law, p. 608). It would certainly be a scandal to allow a public funeral Mass for such a person in a traditional church, or the burial in a cemetery run by a traditional order. However, given that it has now become common place for ashes from cremations to be buried in consecrated ground, it would seem no longer inappropriate to allow the burial of the ashes in a post-conciliar run Catholic cemetery. Moreover, private Requiem Masses for the repose of the souls of such persons would seem now possible, since they could no longer be considered as equivalent to public sinners.

Finally, the reasons against cremation are of such a grave nature, and the traditional practice of burial so sacred, that it is incumbent on every one of us to insure that we receive the ecclesiastical burial. It is not enough for this to be stated in our Last Will, but we must inform our close relatives in writing in an explicit way that we refuse cremation, just as we refuse the post-conciliar burial service. The best way to be sure is to make the funeral arrangements ahead of time. We ought likewise to encourage our parents and relatives to take care of this in a clear way, without ambiguity.