OBJECTION- The 1917 Code of Canon Law gives Christian Burial to unbaptized catechumens and teaches baptism of desire.
ANSWER- As we’ve pointed out before, the 1917 Code of Canon Law is not infallible. The 1917 Code was definitely not an ex cathedra (from the Chair of Peter) pronouncement because it does not bind the whole Church, but only the Latin Church (not the Eastern Rites), as stipulated in Canon 1 of the 1917 Code.
Canon 1, 1917 Code of Canon Law: “Although in the Code of canon law the discipline of the Oriental Church is frequently referenced, nevertheless, this [Code] applies only to the Latin Church and does not bind the Oriental, unless it treats of things that, by their nature, apply to the Oriental.”
A pope speaks infallibly from the Chair of Peter when his teaching on faith or morals binds the entire Church, which the 1917 Code doesn’t:
Pope Pius IX, Vatican Council I, 1870, Session 4, Chap. 4:
“…the Roman Pontiff, when he speaks ex cathedra [from the Chair of Peter], that is, when carrying out the duty of the pastor and teacher of all Christians in accord with his supreme apostolic authority he explains a doctrine of faith or morals to be held by the universal Church... operates with that infallibility…”
Thus, the 1917 Code’s proposition in canon 737 that Baptism is necessary “at least in desire” for salvation is not binding on the universal Church or protected by infallibility. Regarding its law in canon 1239, that unbaptized catechumens can be given Christian burial, this contradicts the entire Tradition of the Catholic Church for 1900 years on whether unbaptized persons can be given Christian burial.
Canon 1239, 1917 Code: “1. Those who die without baptism are not to be accorded ecclesiastical burial. 2. Catechumens who through no fault of their own die without baptism are to be reckoned as baptized.”
Since the time of Jesus Christ and throughout all of history, the Catholic Church universally refused ecclesiastical burial to catechumens who died without the Sacrament of Baptism, as The Catholic Encyclopedia admits:
The Catholic Encyclopedia, “Baptism,” Volume 2, 1907: “A certain statement in the funeral oration of St. Ambrose over the Emperor Valentinian II has been brought forward as a proof that the Church offered sacrifices and prayers for catechumens who died before baptism. There is not a vestige of such a custom to be found anywhere… The practice of the Church is more correctly shown in the canon (xvii) of the Second Council of Braga (572 AD): ‘Neither the commemoration of Sacrifice [oblationis] nor the service of chanting [psallendi] is to be employed for catechumens who have died without baptism.’”
This is the law of the Catholic Church since the beginning and throughout all of history. So, since this issue is tied to the Faith and not merely disciplinary, either the Catholic Church was wrong since the time of Christ for refusing ecclesiastical burial for catechumens who died without baptism or the 1917 Code is wrong for granting it to them. It is either one or the other, because the 1917 Code directly contradicts the Traditional and constant law of the Catholic Church for nineteen centuries on this point which is tied to the Faith. The answer is, obviously, that the 1917 Code is wrong and not infallible, and the Catholic Church’s law for all of history refusing ecclesiastical burial to catechumens is right. In fact, it is interesting to note that the Latin version of the 1917 Code contains many footnotes to traditional popes, councils, etc. to show from where certain canons were derived. Canon 1239.2 on giving ecclesiastical burial to unbaptized catechumens has no footnote, not to any pope, previous law or council, simply because there is nothing in Tradition which supports it!
The Catholic Encyclopedia (1907) quotes an interesting decree from Pope Innocent III wherein he commented on the traditional, universal and constant law of the Catholic Church from the beginning which refused ecclesiastical burial to all who died without the Sacrament of Baptism.
The Catholic Encyclopedia, “Baptism,” Volume 2, 1907: “The reason of this regulation [forbidding ecclesiastical burial to all unbaptized persons] is given by Pope Innocent III (Decr., III, XXVIII, xii): ‘It has been decreed by the sacred canons that we are to have no communion with those who are dead, if we have not communicated with them while alive.’”
The 1917 Code is not infallible Church discipline either, as proven by the fact that it contains a law which directly contradicts the infallible discipline of the Church since the beginning on a point tied to the Faith. The actual Bull promulgating the 1917 Code, Providentissima Mater Ecclesia, was not signed by Benedict XV, but by Cardinal Gasparri and Cardinal De Azevedo. Cardinal Gasparri, the Secretary of State, was the main author and compiler of the canons. Some theologians would argue that only disciplines which bind the whole Church – unlike the 1917 Code – are protected by the infallibility of the governing authority of the Church, an argument which seems to be supported in the following teaching of Pope Pius XII.
Pope Pius XII, Mystici Corporis Christi (# 66), June 29, 1943:
“Certainly the loving Mother is spotless in the Sacraments, by which she gives birth to and nourishes her children; in the faith which she has always preserved inviolate; in her sacred laws imposed upon all; in the evangelical counsels which she recommends; in those heavenly gifts and extraordinary graces through which, with inexhaustible fecundity, she generates hosts of martyrs, virgins, and confessors.”
This would mean that a disciplinary law is not a law of the “Catholic” (i.e. universal) Church unless it binds the universal Church. Regardless, the 1917 Code doesn’t enjoy infallibility. This is further proven by the following canons.
1) The 1917 Code teaches that heretics can be in good faith.
Canon 731.2, 1917 Code: “It is forbidden that the Sacraments of the Church be ministered to heretics and schismatics, even if they ask for them and are in good faith, unless beforehand, rejecting their errors, they are reconciled with the Church.”
A heretic, by infallible definition, is of bad faith and brings down upon his head eternal punishment.
Pope St. Celestine I, Council of Ephesus, 431:
"... all heretics corrupt the true expressions of the Holy Spirit with their own evil minds and they draw down on their own heads an inextinguishable flame."
Pope Eugene IV, Council of Florence, “Cantate Domino,” 1441, ex cathedra: “The Holy Roman Church firmly believes, professes and preaches that all those who are outside the Catholic Church, not only pagans but also Jews or heretics and schismatics, cannot share in eternal life and will go into the everlasting fire which was prepared for the devil and his angels, unless they are joined to the Church before the end of their lives…”
Pope Gregory XVI, Summo Iugiter Studio (# 2), May 27, 1832: “Finally some of these misguided people attempt to persuade themselves and others that men are not saved only in the Catholic religion, but that even heretics may attain eternal life.” 
A person in good faith who is erring innocently about a dogma (loosely and improperly called a “material heretic” in theological discussions) is not a heretic, but a Catholic erring in good faith. So the statement in the 1917 Code about heretics and schismatics in good faith is definitely theologically erroneous and it proves that it was not protected by infallibility.
2) The 1917 Code teaches that Catholics may be present at non-Catholic forms of worship, including non-Catholic weddings and non-Catholic funerals!
Canon 1258, 1917 Code: “1. It is not licit for the faithful by any manner to assist actively or to have a part in the sacred [rites] of non-Catholics. 2. Passive or merely material presence can be tolerated for the sake of honor or civil office, for grave reason approved by the Bishop in case of doubt, at the funerals, weddings, and similar solemnities of non-Catholics, provided danger of scandal is absent.”
Note: this canon is not talking about Catholic Masses or Catholic worship presided over by a heretic, but non-Catholic or non-Christian (false) worship and rites. This is outrageous! This canon allows one to travel to and attend a Jewish Synagogue or a Buddhist Temple or a Lutheran Service, etc., etc., etc. for the wedding or funeral of infidels or heretics – just as long as one doesn’t actively participate! This is ridiculous, for to go out of his way to be present at such non-Catholic services where false worship is conducted (for the sake of honoring or pleasing the person involved in it) is a scandal in itself. It is to honor a person who is sinning against the First Commandment. To go to the funeral of a non-Catholic is to imply that there was some hope for him for salvation outside the Church; and to attend the wedding of a non-Catholic is to imply that God condones his or her marriage outside the Church. A Catholic can neither take part actively in false worship nor go out of one’s way to travel to the false worship or the non-Catholic ceremony to honor it with his “passive” presence. Hence, this canon also proves that this code is not infallible.
The 1917 Code contradicts the immemorial Tradition of the Church on ecclesiastical burial and it holds no weight for a moment against the infallible declaration of the Chair of St. Peter (binding the entire Church) that no one can enter heaven without the Sacrament of Baptism.
Pope Paul III, The Council of Trent, Can. 5 on the Sacrament of Baptism, ex cathedra: “If anyone says that baptism [the sacrament] is optional, that is, not necessary for salvation (cf. Jn. 3:5): let him be anathema.”
 The 1917 Pio-Benedictine Code of Canon Law, translated by Dr. Edward Von Peters, Ignatius Press, 2001, Canon 1, p. 29.
 Denzinger 1839.
 The 1917 Pio-Benedictine Code of Canon Law, p. 451.
 The Catholic Encyclopedia, “Baptism,” Volume 2, 1907, p. 265.
 The Catholic Encyclopedia, “Baptism,” Volume 2, 1907, p. 267.
 The Papal Encyclicals, Vol. 4 (1939-1958), p. 50.
 Decrees of the Ecumenical Councils, Vol. 1, p. 74.
 Denzinger 714.
 The Papal Encyclicals, Vol. 1 (1740-1878), p. 229.
 Denzinger 861; Decrees of the Ecumenical Councils, Vol. 2, p. 685.
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