On the Spirit of the Law versus the Letter

“...necessity knows no law.” – St. Thomas Aquinas.

In our present time there is a danger of Catholics forgetting the spirit of the law, and with an overly strict adherence to its letter being in danger of betraying not only a solution to the current crisis, but a foundational principle upon which the Church is based.

That the spirit of the law can and ought to take precedent over the letter is neither a new nor an exceptional idea, but a defining principle of our faith and inherent to the very nature of the law itself. If Catholics forget this, we are in danger of becoming confused and disarmed in the face of crisis. Indeed, we maintain that a large part of the current crisis, and the difficulties therein, are due to this misunderstanding of the differences between the spirit and the letter.

To give full treatment of this argument we will separate this piece into two parts. In the first, we will see how the spirit of the law and the moral principle of equity has been emphasised by the Church throughout the ages, from Our Lord to Canon Law. In the second, we will apply these considerations to our current crisis. In sum, strict adherence to the letter of the law leaves us in either paralysis or absurdity, whilst fidelity to the spirit gives us a clear and simple path forward.

Part 1: The Teaching of the Church

“And when he had passed from thence, he came into their synagogues. And behold there was a man who had a withered hand, and they asked him, saying: Is it lawful to heal on the sabbath days? that they might accuse him. But he said to them: What man shall there be among you, that hath one sheep: and if the same fall into a pit on the sabbath day, will he not take hold on it and lift it up? How much better is a man than a sheep? Therefore it is lawful to do a good deed on the sabbath days. Then he saith to the man: Stretch forth thy hand; and he stretched it forth, and it was restored to health even as the other.” — Matthew 12:9-13

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“Woe to you scribes and Pharisees, hypocrites; because you tithe mint, and anise, and cummin, and have left the weightier things of the law; judgment, and mercy, and faith. These things you ought to have done, and not to leave those undone. Blind guides, who strain out a gnat, and swallow a camel.” — Matthew 23:23-24

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No group was denounced more decisively by Our Lord than the Scribes and Pharisees, and we see Him denouncing them especially for one particular, grave error: overly strict adherence to the details of the law; to the letter of the law, without knowing its spirit. Our Lord clearly saw it as a dividing point between their religion and God’s, and given that He thus insisted upon knowing the spirit of the law and adhering to it over and above the letter, and that this set His teaching apart from the Jewish teachers of His time, we must therefore conclude that fidelity to the spirit of the law is a defining, foundational characteristic of our faith.

Since the time of Our Lord, the Church has had two thousand years to develop a deep and complex legal system. Whilst no one would deny that this system serves an important purpose (namely, the maintenance of order), the development of this increasingly complex system brings with it the danger of legalism. However, in Her wisdom the Church has always warned against this legalistic habit and provided both moral and legal teachings to guard the spirit of the law.

We can begin with St. Augustine. In his work On the Spirit and the Letter, he quotes the words of St. Paul: “The letter kills, but the spirit gives life,” (2 Corinthians 3:6) and St. Augustine gives an extended treatise on how an overly-strict reading of the Bible (including the Decalogue) can warp and distort our morals. For example:

“If, for instance, a man were to take in a literal and carnal sense much that is written in the Song of Solomon, he would minister not to the fruit of a luminous charity, but to the feeling of a libidinous desire.” [1]

St. Augustine says much more on this. Thus, from the early history of the Church we see a lengthy admonition of the legalistic tendency; of the letter of the law. And this is not yet applied to what we might describe as strictly “legal” matters (such as the ecclesiastical laws of administration), but to moral law and Holy Scripture. Indeed, if this danger applies to the moral law which is by its nature absolute, how much more is strict adherence to the letter of the law a danger in administrative and ecclesiastical laws which are, by their nature, subject to change…

We can now turn to St. Aquinas who wrote much on Church law, its nature, and the principles for virtuous adherence to it, namely the principle and virtue of Epikeia (equity).

“It belongs to ‘epikeia’ to moderate something, namely, the observance of the letter of the law.” [2]

It is interesting to note that Epikeia could be regarded as a meta-law. Whilst the purpose of the law is to convey justice, Epikeia is a principle of justice applied to the law itself. It moderates the law, putting it in its proper place, but is not reducible to the body of written laws. As St. Aquinas writes:

“Epikeia corresponds properly to legal justice, and in one way is contained under it, and in another way exceeds it. For if legal justice denotes that which complies with the law, whether as regards the letter of the law, or as regards the intention of the lawgiver, which is of more account, then ‘epikeia’ is the more important part of legal justice.” [3]

Therefore, when St. Aquinas speaks of this virtue, he is calling upon Catholics to recognise that there is a moral spirit which is not confined to the written law, and that we should practice this virtue when faced with potential deficiencies in the law:

“...if the written law contains anything contrary to the natural right, it is unjust and has no binding force. For positive right has no place except where ‘it matters not,’ according to the natural right, ‘whether a thing be done in one way or in another’; as stated above (II-II:57:2 ad 2). Wherefore such documents are to be called, not laws, but rather corruptions of law…

“Even as unjust laws by their very nature are, either always or for the most part, contrary to the natural right, so too laws that are rightly established, fail in some cases, when if they were observed they would be contrary to the natural right.” [4]

And thus, we see that a law is deficient when it goes against natural right; the common good (and, more broadly, the common mission of the Church). As we read further:

“...every law is directed to the common weal of men, and derives the force and nature of law accordingly… Now it happens often that the observance of some point of law conduces to the common weal in the majority of instances, and yet, in some cases, is very hurtful. Since then the lawgiver cannot have in view every single case, he shapes the law according to what happens most frequently, by directing his attention to the common good.” [5]

The teaching of St. Aquinas is clear: the law must serve its purpose. Even the most righteous of human lawmakers cannot foresee or detail every possible contingency. And so, we have a moral right, if not a moral duty, to move beyond the letter of the law should we reach an impasse. This is not in defiance to the law nor the lawgiver, but in fidelity to it, for with the moral virtue of equity it is clear that the law would say otherwise if it were animated by the living moral spirit.

The teachings of St. Aquinas were not confined to his works or his moral theology. They have since been echoed in the principles of Canon Law, further cementing the fact that these principles are endemic to Church teaching and thought.

As professor Bernard Roland-Gosselin wrote:

“Legal or conventional law can never prevail over natural law, or unwritten law, or common law, or primary law… It is through this law that we discern what we should and should not do, that we complete or correct legality by introducing equity. It is the universal principle that brings unity to the diversity of human actions. While written laws change, it remains, for it is according to nature. Nothing can pervert it, neither fraud nor violence.” [6]

“But there may be cases where the literal application of a just law would be an injustice. Summum jus, summa injuria. In such instances, one must not judge according to the letter but according to equity, which does not allow the rules established in the interest of men to be interpreted harshly and contrary to their advantage.” [7]

At this point we can see that the principle of equity (epikeia) is the very thing that maintains the spirit of the law over the letter.

In direct relation to Canon Law, former professor of Canon Law Archbishop Cicognani wrote:

“We have enumerated certain cases in which this ars boni et aequi (equity) is to be applied. Frequently, however, we speak of equity only in reference to positive laws. A human lawgiver is never able to foresee all the individual cases to which law will be applied. Consequently, a law, though just in general, may, taken literally, lead in some unforeseen cases to results which agree neither with the intent of the lawgiver nor with natural justice, but rather contravene them. In such cases the law must be expounded not according to its wording but according to the intent of the lawgiver and the general principles of natural justice…” [8]

Thus we see that the principles of Canon Law match the teachings of St. Aquinas exactly: the virtue of principles of law (equity) go beyond the written letter of the law, but by applying equity we might properly adhere to justice and be more lawful, not less. We are of course referring to situations in which strict adherence to the letter of the law would be harmful, in which case Catholics must find a course of action in order to avoid harm. Canon Law speaks directly to such situations and as we will see, the principles and applications align with everything we have reviewed thus far:

Can. 20:

“If on a given matter there is lacking an express prescription of law, whether general or particular, the rule is to be surmised, unless it concerns the application of a penalty, from laws laid down in similar cases; [then] from the general principles of law observed with canonical equity; [then] from the style and practice of the Roman Curia; and [finally] from the common and constant opinions of the doctors.” [9]

Can. 18:

“Ecclesiastical laws are to be understood according to the meaning of their own words considered in their text and context; as for those things that remain unclear or in doubt, reference should be made to parallel provisions in the Code, if there are any, to the purposes and circumstances of the law and to the mind of the legislator.” [10]

In his commentary on the Code of Canon Law, Rev. Augustine writes:

Can. 18:

“The purpose or end of the law must be regarded in such a way that the interpretation really effects the scope, hence the rule: Certum est, quod is committit in legem, qui legis verba complectens, contra legis nititur voluntatem [It is certain that he acts against the law who, while embracing the words of the law, strives against the will of the law].” [11]

Can. 20:

“...It is evident that a lawgiver cannot foresee or anticipate all the cases that may arise in practice in connection with his law. Hence something is always left to private judgment. Now there are four sources from which private judgment may draw aid in solving exceptional cases…

[...]

“The second means of deciding cases is recourse to general legal principles based on the equity of Canon Law. That equity is a means of practical interpretation and application is evident, for reason dictates that, if a law is deficient in a particular case, it should be applied according to the principles of law, indeed, but with a human feeling.” [12]

It might seem amazing to some that a professor of Canon Law could invite us to approach it with “a human feeling”, but we see here the re-statement of the spiritual side of the question. Of course, we would not take this to mean a merely blind, purely emotional feeling; but a human (as opposed to mechanical) discernment of the situation based on right reason. After all, if the letter of itself is dead (as machines are dead), it is for the human spirit, by the grace of God, to restore life.

We will now demonstrate how these considerations are paramount to our present situation because we maintain that a significant number of Catholics today adhere too strictly to the letter of the law,  which ultimately runs contrary to the common good and mission of the Church.

Part 2: The Current Crisis

At present, there are multiple ways in which adherence to the letter of the law impedes the mission of the Church. For now, we will only discuss the two most important ones.

a) Recognizing a false Church for what it is:

The first pertains to recognising the nature of the crisis itself. Following the Second Vatican Council, an organisation (which calls itself Catholic) has professed a non-Catholic faith. Its members are united in their public profession of these non-Catholic doctrines and, despite criticism, have adhered to them for decades and visibly acted upon them. On the one hand, the Church allows us to conclude that this therefore constitutes a sect; a new, non-Catholic church:

“According to Catholic teaching [a sect is] any [group of] Christians who, banded together refuse to accept the entire doctrine.” [13]

Yet, on the other hand, when some read the body of Catholic Law they claim that we cannot say whether this is a new, non-Catholic sect because it has not been legally declared so. Firstly, there is no such law which explicitly states that a declaration is required. Secondly, the Novus Ordo fits the definition of a sect. Thirdly, even if such a law existed, we have no authorities to appeal to in order to establish this supposed legal necessity. Hence, it is an insistence on a legalistic impasse; as if the law must be followed for the law’s own sake, even if a particular law does not exist.

In response, we answer that according to the spirit of the law, we can conclude definitively that the Vatican II/“Novus Ordo” church is plain and simply a non-Catholic sect and not the Catholic Church. We simply have the visible facts and conclude this according to the basic precepts of divine law: that the Catholic Church is inseparable from the Catholic religion; that to be Catholic is to hold the Catholic faith; that to be a visible member of the Church is to publicly profess that Catholic faith, as in the words of Pope Leo XIII:

“The practice of the Church has always been the same, as is shown by the unanimous teaching of the Fathers, who were wont to hold as outside Catholic communion, and alien to the Church, whoever would recede in the least degree from any point of doctrine proposed by her authoritative Magisterium.” [14]

This conclusion is sufficient to see the current crisis for what it is. The key reason why many traditionalists hold views that are ultimately untenable is because they try to reject these non-Catholic doctrines, whilst maintaining that they are taught by the Catholic Church (or, at least, publicly promulgated by visible members of the Catholic Church). This creates a chimera: a Church that at once does and does not teach the Catholic faith, whose visible members are both Catholic and non-Catholic, whose authorities have lost all right to govern on any moral or doctrinal matters, but nonetheless retain the authority to provide the Church with her head. Even before we examine the legal arguments for this in detail (which we nonetheless hold to be false), we can see that this leads to an absurdity and defies the very identity of the Church according to her marks.

However, the conclusion of such traditionalists that this must be the Catholic Church is not a doctrinal one, but a legal one. Doctrinally, they already have everything they need to conclude that the Novus Ordo is a new religion and a new church. The only reason why they withhold this conclusion is because they believe there is legal precedent (or we might rather say, a lack of legal precedent). If the living spirit could break through the dead letter, we might all at least reach a clear diagnosis of the problem and recognise that we are dealing with a non-Catholic church and therefore properly say “Sede-Vacante”; there is no Pope occupying the Holy See (in any sense).

Yet, “Sede-Vacante” is only a diagnosis, not a solution. Our approach to a solution is the second place in which we see the letter of the law defying the spirit.

b) Finding the proper solution:

A “solution” to the current crises might not entail a complete restoration of the Church’s presence and power prior to 1950, but at the very least the first step in addressing the crisis would be to solve the Sede-Vacante – to re-establish a legitimate, Catholic Pope. However, in light of this need some insist on the law in such a way that we reach an impasse: either the church is paralysed, or an election is simply impossible.

The first problem results from the argument that the solution must come from the Novus Ordo hierarchy. Some may argue that we either have a legitimate pope who must nonetheless be resisted, which denies the spirit of Church authority and unity. Others may argue that the power of electing a new pope resides solely in the “clergy” or “cardinals” of this organisation, despite the fact that they collectively and publicly profess a non-Catholic faith (and have dubious sacraments, including ordinations). As a result, we would have to conclude that the Church is in a state of paralysis. The remaining visible members who continue to profess the Catholic faith cannot positively affect anything to provide the Church with a head. Instead, they must simply wait for public heretics and apostates to convert to the Catholic faith and then to provide the solution. Until such a time, the Church (being the collection of those who publicly profess the Catholic faith) is powerless. Yet, in the words of Pope Leo XIII:

“[The Church is] a society chartered as of right divine, perfect in its nature and in its title, to possess in itself and by itself, through the will and loving kindness of its Founder, all needful provision for its maintenance and action.” [15]

The Church exists to serve her mission; the law exists only to help her in this, not to impede. According to our faith, if the Church is to pursue her mission unto the end of time there must be nothing that paralyses her, renders her powerless, or blocks her indefinitely.

Some argue that she is not paralysed indefinitely because the power to pursue Her mission might still be held with those who profess a non-Catholic faith. Here we reach another absurdity: that the hope of Catholics is to be found amongst non-Catholics, and that the power of the Church is found amongst heretics (even her greatest enemies); that those who are visibly outside of the Church maintain some of the most important powers within it. We would need to deny, at least implicitly, what the Church has always taught: that those who publicly deny her doctrines are to be regarded as distinct from her in every sense, morally and legally. Whilst the internal relationship between each soul and the Church is between them and God, the Church has always been clear and categorical about the visible relationship between Her members. Thus, to insist on this conclusion according to the letter of the law denies the spirit of the law by leaving the Church powerless, and not only this, but denies the very spirit of the Church’s identity by placing the solution of the crisis in the hands of those who are outside her visible unity.

The second way in which the letter creates an impasse is by leading to the conclusion that no solution is possible. Once again, some will invoke extended and detailed legal arguments about jurisdiction and authority to conclude that now no authority and no jurisdiction can exist and that the Church must now be definitively without either a head or the means to provide her until the Second Coming of Christ. We regard these arguments as false, but even before they are addressed we see that here the letter of the law attempts to stand before the spirit as according to faith we know that the Church will have the papacy and at least the means to provide for its head unto the Second Coming. To argue otherwise is to lose the forest for the trees and to create a further state of paralysis and even despair.

If the most complex mathematical equation leads to the conclusion that 2+2=5, we know the equation to be wrong before we investigate every reason and operation. Likewise, if the most refined and complex arguments lead to impasse; paralysis, or simple impossibility, we know them to be false.

Therefore, our brief and simple answer to the challenge at present is that, whatever the solution may be, we must know by faith that one exists, and it must be in the hands of the remaining faithful. This is all the grounds we need for calling the Church to discuss a solution.

We will conclude with the words of St. Aquinas:

“Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed. For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, if it were to happen that the enemy are in pursuit of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view.

Nevertheless it must be noted, that if the observance of the law according to the letter does not involve any sudden risk needing instant remedy, it is not competent for everyone to expound what is useful and what is not useful to the state: those alone can do this who are in authority, and who, on account of such like cases, have the power to dispense from the laws. If, however, the peril be so sudden as not to allow of the delay involved by referring the matter to authority, the mere necessity brings with it a dispensation, since necessity knows no law.” [16]

We leave it to the Protestants and Pharisees to get entrapped within their own networks of words and legalistic thinking. Ours is a rational faith, and ours is a living faith, guided by the Spirit of Truth Himself, with Our Lord Jesus Christ as our Eternal Spiritual head who will be with us until the end of time. Thus, ours is not a dead spirit but a living and fighting spirit. Catholics can, and indeed, ought to take action in times such as these to fight for the Church, and to help restore her head, so that we might serve Our Lord for the salvation of souls.

[1] St. Augustine, On the Spirit and the Letter, Chapter 6

[2] St. Thomas Aquinas, Summa Theologica, IIa IIæ, Q.120, A.2

[3] Ibid.

[4] St. Thomas Aquinas, Summa Theologica, IIa IIæ, Q.60, A.5

[5] St. Thomas Aquinas, Summa Theologica, Ia, IIæ, Q.96, A.6

[6] Bernard Roland-Gosselin (Professor at the Catholic Institute of Paris), La Doctrine Politique de Saint Thomas D’Aquin. 1928, p.12

[7] Ibid. p.112

[8] Ibid. p.17

[9] The Code of Canon Law, 1917 Edition.

[10] Ibid.

[11] Rev. Chas Augustine, A Commentary on the New Code of Canon Law (Volume 1), 1931, pp.96-97 (emphasis added)

[12] Ibid. pp.100-101

[13] The Catholic Encyclopedia, under “Sect and Sects”, 1913 Edition.

[14] Pope Leo XIII, Satis Cognitum, 1896

[15] Pope Leo XIII, Immortale Dei, 1885

[16] St. Thomas Aquinas, Summa Theologica, Ia IIæ, Q.96, A.6 (emphasis added)