Yes, cuм Ex is "off the books." So is every law that predates the 1917 CIC is no longer in effect, except to the degree that the current law incorporates them (C. 6 §6).
But that isn't the same thing as saying "heretics can be popes now." Keep in mind what ecclesiastical legislation is. It's the Church's attempt to order the lives of her members according to divine law. She does this in a great many ways. Think of just one example: laws of fasting and abstinence. These change, to be sure. However, it is a non-sequitur to observe a change in fasting and abstinence laws and to conclude from such a change that the Church no longer regards fasting or abstinence as efficacious forms of penance or mortificaiton. It is not within the power of the Church to change divine or natural law. The non-eligibility of non-members to hold office in the Church is not a mere ecclesiastical law; in fact, cuм ex itself was always redundant in a certain sense, since the divine law (as Bellarmine tells us) has always been regarded by the fathers as precluding heretics from having jurisdiction. cuм ex didn't "change" anything; it merely used positive law to re-iterate divine law. By way of analogy, the Church could make a law that says in order for Protestants to begin receiving Holy Communion, they must first make a general confession and, unless there is danger of death, a public abjuration of error. Does this mean that if this law was abrogated, Protestants could now, without being reincorporated into the Church, receive Holy Communion? Of course not.
Remember that the Church's laws (considered in their positive aspect) are tied to time and space. They legislate problems in the here and now. That's why we see laws going "off the books." They don't go off the books because the Church changes her teachings or beliefs, they go off the books because it is in the interest of governmental expedience to have as organized and easy to communicate and enforce law as possible. That's why we have canon law in the first place! The previous corpus was unorganized, confusing, and even the best canonists were not sure which laws were and were not in force, or which laws superseded other laws. So we might see the Church in the twelfth century erect a law controlling how many horses a bishop can travel with, so to help avoid against scandals of avarice. Such a law is simply not needed when horse travel is no longer en vogue. Ditto all positive laws. A law may be abrogated simply because it is no longer (regarded) as being expedient to the governance of the Church.
But to the degree that any law simply repeats the divine law, even if the law is abrogated the divine law prescripts remain. Since it is of divine law that heretics cannot hold office, since it is of divine law that those outside the Church cannot receive Holy Communion, since it is of divine law that fasting and abstinence are efficacious, these all remain true whether or not they are incorporated into the Church's positive ecclesiastical legislation.
And even if we look at the current ecclesiastical law, we find canon 188 §4, which teaches that any many who defects from the Church resigns his office. This is not a penal canon, it is in the section of the code about offices. And the canon footnotes cuм Ex. This doesn't mean cuм ex is "on the books," what it means is that the Church still, even with her positive law, incorporates divine law's incompatibility between heretics and offices. But even if she didn't, it wouldn't mean that heretics can now hold office. Nothing can make that happen.
Topic: Does 1917 canon law abolish Papal Bull Pope Paul 4 (Read 4457 times)