The distinguished theologian Fr. Aidan Nichols, OP, recently gave a talk to a group of Anglican and Orthodox (both of whom are not yet in union with the Pope of Rome) about what might be done in view of the crisis aroused in the Church because of the objectively ambiguous elements of Pope Francis’ Amoris laetitia. I posted about the talk with comments HERE.
Nichols’ talk was important. He has opened up, respectfully, another “path” as it were in the matter of the Five Dubia of the Four Cardinals.
Inter alia, Nichols suggests that the Church’s law might be changed to allow for a procedure to correct a Pope who might stray towards teaching something sub-optimal.
Here is distinguished canonist Ed Peters observations on Nichols’ proposal for canon law. Let’s have a look. Be sure to visit, often, Peters’ wonderful site, In The Light Of The Law.
On Fr. Nichols’ recent remarks
Dominican theologian Fr. Aidan Nichols needs no introduction to readers of this blog and it suffices to say that, when a priest of Nichols’ credentials urges development of a canonical procedure to correct popes who—how exactly to put this?—leave confusion in their wake, people are going to take notice. I have seen only news reports of Nichols’ address (not the speech itself), [me too] but a few comments occur to me that won’t come as a surprise to Nichols but that might help inform others’ reactions to them. [I haven’t yet seen any lib reaction to Nichols’ offering. Over at the National Sodomitic Reporter, for example, they are still pushing for a change to the Church’s teachings about sexuality under the guise of a request for “dialogue”.]
First, while most provisions in the Code of Canon Law are of human (albeit, ecclesiastical, usually pontifical) origin, implying the possibility of changes in them in accord with circumstances, some canons rest on divine law foundations and are not, therefore, so easily amended—however appealing such changes might seem to be. Such is the case, I suggest, with Canon 331 on the full and supreme authority of the Roman Pontiff and Canon 1404 on the immunity of the Holy See from judgment (canonical or civil). These canons (and others besides, say, Canon 1372) serve the decision of Our Lord to leave Peter and his successors basically free to act as they see fit in guiding the Church, meaning that such canons, operating in support of a divinely-sanctioned freedom, are not liable to repeal if popes misuse that freedom. All of this Nichols takes for granted, of course.
Nichols also knows, however, that Petrine freedom has limits, that it is not something bestowed in order to make possible, say, papal plundering of Church property or dalliances with dangerous theological theories (both of which have happened in the past), [indeed] but rather, it serves the Church’s need for, and the faithful’s right to, certainty and continuity in Catholicism’s witness to the teachings of Jesus. [Enter close allies of the Holy Father, Card. Kasper – who thinks that Sacred Scripture can mean different things in different periods – and the SG of the Jesuits – who thinks we can’t know what the Lord said.] Canon law read as a whole (and not cherry-picked to get the results one hopes for) operates in service to all of doctrine (and not just the parts that sound convenient to this generation or that).
Canonical evidence of one such limitation on papal power is found in, for example, Canon 336 which recognizes the college of bishops (properly understood) as also a subject of full and supreme power in the Church—a mystery, to be sure, how one Church can have two subjects of full and supreme power, but nevertheless an ecclesiological given to be reckoned with, not ignored. Nichols might, for all I know, have referenced Canon 336 in his original speech; if he did not, he certainly could have done so. [I think we should try to get Fr Nichols’ text. Indeed, I suspect that he will be back with this same topic in the not too distant future.]
But another check against this papal freedom turning into license, albeit a check harder to pin down than are neatly drafted canons, is “Tradition”.
Tradition, not canon law, holds the Church to accept a host of truths, for example, that Jesus rose from the dead, that canonized saints are in heaven, and that contraception between married couples is objectively gravely wrong, such that [for those of you in Columbia Heights, “in such a way that”] a pope who suddenly challenged the reality of the Resurrection, the status of one duly canonized, or the gravity of conjugal contraception—or who winked at others doing such things—would stand in urgent need of prayers and would be a proper object for some kind of correction, perhaps such correction as is apparently envisioned by Cdl. Burke and others. [Which would be a real act of charity, and one with far ranging implications.]
But beyond even this—and moving back to what Nichols’ point seemed to be—Tradition has some even more startling things to say about popes who might fall into heresy. To summarize a long story already shortened here, the Church is not defenseless against heresy from popes. Under certain rare circumstances, one is talking, according to several weighty authors, about the loss of pontifical office itself. [In a nutshell, some authors think that were a Successor of Peter to depart from Peter’s teaching, then we would in effect have departed from Peter’s chair… his “See”. Not all agree. Moreover, it is an unlikely scenario, given the work of the Holy Spirit, who intervenes to avoid disaster. That said, let us not fall into gnostic papalotry.]
There are, of course, several practical problems with Nichols’ proposal for changes to canon law (some of which problems he noted in the reported version of his remarks) and to which I would add a simple one: popes are the Legislator of canon law, and the chances of any legislator writing a law that could be used against him are slim. [There is that.] But, if the commentators cited in my earlier blog are really saying what they seem to be saying, we might not need new canon laws to deal with the problem.
Tradition might already have a solution.
I wonder what the “Tradition Solution” might look like. I suspect that it would involve important theologians and many bishops walking a tightrope of deep and thorough criticism of some papal position while not avoiding hard conclusions.
About the notion of modifying canon law for a “procedure” to address defects in a Pope’s teaching, AFTER he has left the Petrine Office, I would point out: no reigning pope needs a canonical procedure to “officially” handle the defective, ambiguous, and possibly even heretical comments of a prior pope. Merely by being in office, he has the authority to declare officially the defects in whatever format he thinks most advantageous.
At most, then, the procedure would be one in which someone lower down in the pecking order instituted a process of correcting the prior pope’s defects. But this too seems to be unlikely to be necessary: anyone can petition the CDF or other Congregation for redress of the defects and damaging comments of the prior pope. And it is rather inconceivable that the CDF would issue a resolution on such a matter without the express approval of the reigning pope. Which puts us right back in the previous paragraph.
So it seems to me implausible that such a canonical procedure is going to be a solution here.
I am far from understanding Canon Law, but citing Canon 336 as identifying an inherent limitation on Petrine power is problematic. The canon specifically hinges the sovereignty that the college of bishops exercise as being in connection with the Pope:
whose members are bishops by virtue of sacramental consecration and hierarchical communion with the head and members of the college and in which the apostolic body continues, together with its head and never without this head, is also the subject of supreme and full power offer the universal Church.
The phrase “and never without this head” as a qualifier of their sovereign power indicates severe if not absolute impediments to the project of the college of bishops acting concretely and officially to correct a current pope.
This too would seem to present a real conceptual problem with any new canonical procedure in which some Vatican office were to run through a process to “correct” the pope: as would seem necessary from things like Canon 1404, a lower office which exerts a limited and delegated portion of the Petrine power cannot possibly judge and officially correct (i.e. through the power of its office) the holder of the one who holds the absolute and complete Petrine power.
Also, the Church is not a democracy or republic. The office of teacher and judge is not held in the bishops and cardinals in virtue of the people delegating their own power to their choices. They get their power from God, but always such that they are subordinate to the Petrine teacher and judge. So, while the pope’s powers are limited by the constitution of the Church and by Tradition, to me it seems that it would be not in virtue of carrying out a canonical rule created by the Petrine power to institute positive law, but by the constitutional and Traditional powers of bishops (and the faithful) to act when a pope is in the wrong. Maybe a new canon would make that capability clear, it would not be in the nature of an authorizing canon but a clarifying one.
That’s just an opinion, of course. And again, I am no expert in Canon Law.
“the Orthodox….not yet in union with the Pope of Rome”)
A hoot, Fr. Z. The bishop of Rome used to be in communion with the rest of the Church but, as they say, opted out. For our perspective, you might try Fr. John Meyendorff, et al, The Primacy of Peter: Essays in Ecclesiology and the Early Church. Not that it will do any good.
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