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Dr. Edward Peters 

To work for the proper implementation of canon law is to play an extraordinarily

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18 jan 2013

Canonical Responsibilities for Public Aid to Private Education

Edward Peters, "Canonical Responsibilities for Public Aid to Private Education", Faith & Reason 16 (1990) 13-22.

It is axiomatic in sound Catholic social thought that Catholics qua citizens should make appropriate use of the social and political means by which the rights of the Church and its faithful can be better secured. In the American political context, furthermore, it is widely recognized that one of the most contested Church-state matters deals with governmental aid to religiously-sponsored education. It is not surprising, of course, that educational matters, particularly parental rights to educational assistance, should be so widely debated. The many issues surrounding the education of youth touch upon the very core of family identity and social well-being.[1] But it is not the purpose of this study to examine the civil arguments that Catholics qua citizens can offer on behalf of governmental aid to private education,[2] nor event to examine the nature and degree of their obligation as citizens to make such arguments. Rather, this inquiry seeks to investigate whether Catholics qua Catholics have an ecclesial, specifically, a canonical, obligation to engage in legitimate secular efforts to secure governmental assistance for religiously affiliated education.

We begin by observing that a canonical directive to engage in secular civil activities would be highly unusual for a Code that is primarily concerned with the internal regulation of ecclesiastical affairs. Although there are a few key declarations of ecclesiastical rights over and against the contrary claims of certain political systems,[3] as well as some other canons which freely defer certain matters to the legitimate regulation of civil authorities,[4] the 1983 Code generally avoids canonical directives which are to be exercised in the civil arena. Thus, all the more brightly will those few canons stand out which, as we shall see, positively direct the faithful to exercise their civil rights in the secular domain.

Although several canons from the 1983 Code of Canon Law[5] will bear upon our topic, Canon 797 is certainly the most important.[6] That canon states: "It is necessary that parents enjoy true freedom in the selection of schools; therefore the Christian faithful must be solicitous that civil society acknowledges this freedom of parents and, in compliance with distributive justice, even protects it with subsidies."[7]

Canon 797 is taken from the 1983 Code's Book III The Teaching Office of the Church, Title III Catholic Education, Chapter I Schools, and opens with a declarative preamble on the necessity of parental freedom in education.[8] The normative section of the canon follows: the Christian faithful[9] are to be attentive that government actively protects this parental freedom in education. Two observations are in order.

First, we note that Canon 797 presumes that the state itself is to support actively the rights of parents in the education of their children. For this presumption, the canon rests securely on a statement by the Second Vatican Council in its Declaration on Christian Education: "Parents, who have a primary and inalienable duty and right in regard to the education of their children, should enjoy the fullest liberty in their choice of school. The public authority, therefore, whose duty it is to protect and defend the liberty of the citizens, is bound according to the principles of distributive justice to ensure that public subsidies to schools are so allocated that parents are truly free to select schools for their children in accordance with their conscience."[10]

But the 1983 Code takes a marked step beyond the Council's admonition to the state that it recognize the educational rights of parents, and through Canon 797 explicitly directs the faithful themselves to engage the government in its duty to respect parental rights. In so doing, the Code departs from its usual practice of refraining from directives that carry civil implications and at the same time widens the ecclesiastical responsibility for civil educational policies from just parents, teachers, and Church leaders, and places it in the entire Christian community. For the time being we shall describe this canonical obligation as positive though unspecified.[11] Now, as Dr. James Coriden observes, "In a complex, pluralistic society this governmental duty is both hotly disputed and difficult to fulfill ..."[12] Nevertheless, a canonical obligation is presented. As Coriden concludes, "Believers are here urged to press their case for a just distribution of educational subsidies."[13]

The second canon which imposes a positive though unspecified obligation on the faithful in regard to education is Canon 799, which is drawn from the same section of the 1983 Code as is Canon 797. Canon 799 states "The Christian faithful are to strive so that the laws which regulate the formation of youth in society provide a religious and moral education in the schools themselves, in accord with the conscience of the parents. "[14] In much the same manner as Canon 797, Canon 799 presumes that public schools should and do impart religious and moral education. The ecclesial obligation that the canon imposes on the Christian faithful, however, is that they work so that the education so provided is in accord with the conscience of the parents. In brief, the faithful are again directed to engage in legitimate secular activities aimed at assuring that the state recognizes its duties in regard to parental rights in education. As was the case with Canon 797, the specific content of this obligation, which also applies to all the faithful, remains indeterminate. But this is no way mitigates the fact that some participation in the social processes which determine educational policy is a canonical obligation of the faithful.[15]

The third canon of importance for our discussion is actually the canon that opens the 1983 Code's treatment of Catholic education, namely Canon 793.2, which declares that "It is also the right of parents to make use of those aids in civil society which they need to procure the Catholic education of their children. "[16] As was the case with the two previous canons, "There is no attempt to specify exactly what the responsibilities of civil government are in this regard," notes Coriden, "but it is an assertion that the civil society has responsibilities even in the matter of religiously oriented education."[17] Canon 793.2 does not, of course, impose an obligation on the part of parents or schools to make actual use of any particular assistance,[18] nor, strictly speaking, does it present an actual obligation on the part of the faithful to work that such aids be made available. Rather, when considered in light of Canons 797 and 799 (canons which do impose obligations to work for the provision of such aid), Canon 793.2 and its affirmation of parental rights to use such aid may fairly be read as lending important juridic support for the canonical obligations asserted in Canons 797 and 799.

Canons 793.2, 797, and 799, taken, as we have seen, from the Code's treatment of education, declare the rights of parents to receive assistance from the state as they educate their children, and impose a positive though unspecified obligation on all the Christian faithful to see to it that their government recognizes its duty in this matter. The 1983 Code, however, provides yet one more expression of the faithful's obligation to engage in these secular efforts when it discusses the broader rights and obligations of the laity in Canon 225.2.

Canon 225.2 is taken from Book 11, The People of God, Title 11, The Obligations and Rights of the Lay Christian Faithful, and states that "Each lay person in accord with his or her condition is bound by a special duty to imbue and perfect the order of temporal affairs with the spirit of the [G]ospel; thus they give witness to Christ in a special way in carrying out those affairs and in exercising secular duties."[19] For most practical purposes, this is the only canon that indicates canonical responsibilities on the part of the faithful to engage in temporal affairs. Of course, in such a canon it is obvious that a vast range of secular activities (educational affairs being just one of them) falls within its scope; indeed, the duties expressed herein go to the very heart of the lay vocation and apostolate.[20] As before, there is no attempt by Canon 225.2 to specify how any particular person is to work for the perfection of the temporal order. For our purposes, though, we note that this statement on the general obligation of the laity to engage in temporal and secular affairs, a statement which is located in a "quasi-constitutional" section of the Code ,[21] is consistent with and supportive of their more specific obligations to foster governmental aid to education outlined in Canons 797 and 799.[22]

Before concluding these remarks, a few words should be offered on the degree of the canonical obligations outlined above. We have used the expression "positive though unspecified" to describe the ecclesial obligations contained in Canons 225.2, 793.2, 797, and 799. But we have also noted that at least one commentator used the term "exhortation" instead of "obligation" or some similar jussive term, to describe Canons 797 and 799.[23] Of course, an exhortation - however wise the source or beneficial the act - to perform some task would impose considerably less in the way of moral and legal obligation to perform that task than, for our purposes, a canonical directive.[24] Thus the question of whether these canons, particularly Canons 797 and 799, are simple exhortations or actual obligations is of some consequence for our study.

It is widely recognized that the 1983 Code uses a variety of "literary forms" to express its provisions, and that not all of these forms, and the canons they convey, are of equal weight.[25] There are indeed numerous exhortations, as opposed to obligations, contained in the 1983 Code. Canon 904, for example, "strongly recommends" that priests celebrate the Eucharistic Sacrifice once a day,[26] Canon 1186 "recommends the Blessed Mary ever Virgin ... to the particular and filial devotion of the faithful"[27] and Canon 280 states that "some community of life for clerics is highly recommended."[28] Although the appropriateness of these canonical exhortations is patent, it is also clear that none of these canons establish a juridic obligation the violation of which would be canonically cognizable.

It is suggested, therefore, that true exhortatory canons should stand in some distinction from provisions such as Canon 797 which states that the faithful "must be solicitous" (solliciti esse debent) that civil society come to the aid of parents, or Canon 799 which directs that the faithful "strive" (enitantur) that civil society takes appropriate steps in the formation of children. As such, neither of these canons makes a mere recommendation; both direct an active albeit unspecified secular effort on the part of the faithful. Even such basic norms as Canon 255.2 declare that the (lay) faithful "are bound by a special duty" (peculiari adstringuntur officio) to perfect the world in accord with the Gospel. Special duties are not the simple equivalent of praiseworthy options.

Having concluded that there are indeed canonical obligations on the part of the faithful to see to it that civil society recognizes the rights of parents in education, we hasten to add, as indicated earlier, that these obligations are not specified and hence open to considerable flexibility in interpretation and implementation. That is why we have chosen to describe these canonical obligations as "positive though unspecified." The Legislator chose not to attempt detailed prescriptions for actions that, because the Code of Canon Law would have force in scores of nations, would have to be implemented in a wide variety of social and political climates. The 1983 Code respects the dictates of prudence at the local level and gives individuals wide discretion in the determination of specific activities. Certainly, in the absence of more specific or particular legislation, no member of the faithful can be considered delinquent for failure to perform any specific acts aimed at accomplishing the goals outlined above. But that each member of the faithful is required to make some positive effort that government recognize its duties toward parents in the education of their children is, I suggest, an accurate interpretation of the canons outlined above.

Salvo sapientiorum iudicio.

Footnotes