The following excerpts from Fr. Georg May's book, Notwehr, Widerstand, Notsand (Legitimate Defense, Resistance, Necessity) were published in the book, Is Tradition Excommunicated? Fr. May is a German priest and professor of canon law and the history of ecclesiastical law at the University of Mainz. He is also the author of the book, The Ecumenism Trap.
The disposition of law in case of necessity within the Church
State of necessity
The Code of 1917 spoke of necessity in Canon 2205, §2 and §3; the Code of 1983 [N.C.] deals with it in cc.1324, §4 and 1324, §1, 5. The law does not say what is meant by this item; it leaves to jurisprudence and doctors the task of giving it a precise meaning. But it is clear from the context that necessity is a state wherein goods necessary for life are put in danger in such a way that to come out of this state the violation of certain laws is inevitable.
Law of necessity
The Code recognizes necessity as a circumstance which exempts from all penalties in case of violation of the law (N.C. 1324, §4), provided that the action is not intrinsically bad or harmful to souls; in this latter case necessity would only mitigate the penalty. But no latae sententiae penalty can be incurred by anyone who has acted in this circumstance (N.C. 1324, §3).
State of necessity in the Church
In the Church, as in civil society, it is conceivable that there arrive a state of necessity or urgency which cannot be surmounted by the observance of positive law. Such a situation exists in the Church when the endurance, order or activity of the Church are threatened or harmed in a considerable manner. This threat can bear principally on ecclesiastical teaching, the liturgy and discipline.
Law of necessity in the Church
A state of necessity justifies the law of necessity. The law of necessity in the Church is the sum total of juridical rules which apply in case of a menace to the perpetuity or activity of the Church.
This law of necessity can be resorted to only when one has exhausted all possibilities of re-establishing a normal situation, relying on positive law. The law of necessity uniquely justifies the measures which are necessary for a restoration of functions in the Church. The principle of proportionality is to be observed.
The Church, and in the first place its organs, has the right but also the duty of taking all the measures necessary for the removal of dangers. In a situation of necessity the pastors of the Church can take extraordinary measures to protect or re-establish the activity of the Church. If an organ does not carry out its necessary or indispensable functions, the other organs have the duty and the right to use the power they have in the Church so that the life of the Church is guaranteed and its end attained. If the authorities of the Church refuse this, the responsibility of other members of the Church increases, but also their juridical competence.
- . Published in 1984 by Begriffliche Klarungen, Wien, Austria.