Folia Theologica et Canonica 11. 33/25 (2022)

Ius canonicum

158

SZABOLCS ANZELM SZUROMI, O.Praem.

ing justice, correcting the offender and preventing a similar act. In the process, the general principle is that care must be taken to preserve the proportionality and fairness of the punishment, and that the more lenient interpretation should always be followed when imposing a particular penalty. Nevertheless, the enforcement of mercy (misericordia) in this way must not compromise its consistency with justice (iustitia). This balanced approach to the sanctioning of the punishable act (delictum) within the ecclesiastical penal law system has been - and is - properly emphasized in canon law sources.

This can be clearly seen, for example, in Decretum Gratiani C. 11 q. 3 c. 8, which, in the context of the bishop’s consideration of the punishable act, calls attention to the specific situation, the circumstances, the personal characteristics of the offender and the motives which existed at the time of the commitment of the crime, emphasizing the use of more severe punishments (i.e. excommunicatio) only in particularly justified cases.77 Similar to this is the short principle in C. 11 q. 3 c. 42 that in minor criminal cases the ecclesiastical authority should abstain from depriving the person who has committed the criminal offence from the ecclesiastical communion.78 79 A much more detailed consideration is given in the homily XXVII of Pope Gregory the Great to the proportionality of the act of the person who commits the crime, taking into account the age, knowledge, education, dignity {dignitas), the purpose of the act, the consciousness of the offender, his spiritual or material intention to repent. This section of the homily was included in the Decretum Gratiani.19 The Liber Extra specifically draws attention to the fact that, in cases where the offender has already been sufficiently punished for a serious criminal offence, it is not fair to impose an additional penalty.80 The most detailed description of the issue is given in X 5.1.21, which analyzes extensively the material, subject-related and legal elements of the punishable act, as well as the cases and circumstances that make it impossible, excuse, mitigate or even aggravate the judgement of the act in the course of the proceedings.81 It should be noted that the first 36 titles of Book V of the Liber Extra are essentially dedicated to the principles of ecclesiastical penal law, to the general prescriptions concerning the offender, moreover to the particular punishments.82 It is clear from the text that, despite the retributive, curative and reparative nature of the punishments, the legislator, in parallel with the enforcement of justice, refers to the

77 C. 11 q. 3 c. 8: Friedberg I. 645.

78 C. 11 q. 3 c. 42: Friedberg I. 655.

79 C. 11 q. 3 c. 88: Friedberg I. 667-668.

80 X 2. 24. 12: Friedberg II. 363.

81 X 5. 1. 21: Friedberg II. 741-742.

82 X. 5. 1-36: Friedberg II. 733-880.