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Concerning the Diocese of Ahiara

I know nothing about the ethno-ecclesial dispute in the Nigerian Diocese of Ahiara beyond what can be found in news reports and so offer no comment on it. Regarding the remarkable demands made by Pope Francis against the clergy of that diocese, the following points might facilitate informed discussion thereof.

1. Popes have “supreme, full, immediate, and universal ordinary power in the Church” which they are “always able to exercise freely”. Canon 331. The authority of the pope to issue demands such as those linked above is not in question.

2. Phrasing in papal documents must be understood in light of how such phrases are typically understood in the Church. Thus, Francis’ demand for “total obedience” must not be read literally (the implications of such literality being too bizarre to contemplate) but rather, requires of clergy only, but completely, that obedience which is already required of them in light of, say, Canon 273. Accepting a papally-appointed bishop (Canon 377) unquestionably falls within this obligation, even if the pope did not require that acceptance to be included in a cleric’s letter.

3. Francis’ demand that every cleric incardinated in Ahiara send a submission letter asking “for forgiveness” might grate on those who have not opposed the appointment of the new bishop and, in my view, they should feel free to offer that observation in their letter. But the obligation on all clergy to send a submission letter seems clear.

4. The 30-day period in which to send the letter is not unreasonable but would still need to be assessed according to the usual norms on time (Canons 200-203).

5. The pope’s threat that a cleric’s failure to comply with his specific demand for a submission letter (as opposed to, say, a cleric’s simply accepting the designated bishop) will result in two consequences, suspension a divinis and loss of office, is problematic. Making these two canonical consequences latae sententiae (automatic) further complicates them. As usual.

Assuming that the pope’s June 8 statement amounts to a penal precept (Canons 49, 1314, 1319)—to which, of course, the ‘affirmative defenses’ against incurring sanctions listed in Canons 1323 and 1324 would apply—let’s assume that a cleric is liable to some sanction under it: What then?

Arguably, such a cleric would be suspended, but, suspension (as its name implies), while it prohibits acting in one’s office, does not deprive one of the office itself. Canon 1333. Moreover, most acts as might be performed by a cleric who is automatically suspended, though illicit (reason enough to avoid performing them), are nevertheless valid absent a subsequent declaratory sentence (which is not mentioned in the pope’s statement). Finally, suspended clerics remain eligible for diocesan and religious institutional support, etc. In short, canonical suspension, which might be likened to administrative leave with pay, sounds more grievous than, strictly speaking, it practically is for a cleric (setting aside the inconvenience that the faithful suffer when their clergy are prohibited from pastoral ministry—another consequence of suspension).

Perhaps these factors led the pope to add the threat of loss of office itself to the threat of mere suspension from office.

Canon law treats actual loss of ecclesiastical office (such as pastor, episcopal vicar, tribunal judge, and so on) for crime as an “expiatory” penalty and, as an expiatory (not a “medicinal”) penalty, loss of office cannot be incurred automatically. Canon 1336. I take, therefore, Francis’ threat of loss of office to be a blunt warning about what he is prepared to do in the future, should Ahiara clergy not send the letter demanded by the pope, rather than—pace Canons 18, 194, 221, 1321, 1341, and so on—reading it as some sort of implicit derogation from several canons.

From here this crisis could go in a couple of different directions canonically and speculation on those directions is premature, but the above should suffice to inform discussion of the matter as it now stands.

Do Catholics need to seek Church permission for divorce?

Simmering in Catholic circles for some time has been the assertion that Catholics need permission from their bishop to divorce. Proponents of this alleged requirement (one that, if observed in any meaningful way, would pose an enormous practical burden on bishops or, worse, might occasion a massive and deliberate rejection of ecclesiastical authority by lay faithful) usually invoke Canons 1151-1155 and/or Canons 1692-1696 to support their claim.

Their assertion recently took on a more formal canonical aspect when an author, who had been refused an ‘imprimatur’ for a text because it claimed that ecclesiastical permission for civil divorce is required by canon law, took recourse to Rome against that refusal; moreover, part of the disagreement between the author and the diocese turns on the weight to be accorded a 2015 letter from Cdl. Coccopalmerio, president of the Pontifical Council for Legislative Texts, wherein he opines against the assertion that Catholics must obtain episcopal permission prior to filing for divorce. On the dispute between the author and the diocese, and on what weight, if any, should be given Coccopalmerio’s letter, I express no opinion.

But on the wider discussion about how to read the above-mentioned canons I have ventured some thoughts as follows: Edward Peters, “Do Catholics need ecclesiastical permission to divorce?”, Fellowship of Catholic Scholars Quarterly 40/1-2 (Spring-Summer, 2017) 61-64. The current FCSQ is hitting mailboxes now and it will eventually appear on-line, but till then this PDF will serve. Readers will decide for themselves what they think about my analysis.

Here I say only this: I am not shy about criticizing Cdl. Coccopalmerio (see, e.g., here, here, and here), so, if I thought he were wrong in holding that Catholics are not obligated to seek episcopal permission prior to filing for divorce, I would have said that. But my analysis of this issue leads me to the same conclusion he reached: episcopal permission for civil divorce might sometimes be required of Catholics in ‘concordat nations’ but not in ‘non-concordat nations’ such as the USA.

Update (21 May): “Mary’s Advocates” has posted a “Rebuttal to Ed Peters” taking issue with the arguments I set out in the FCSQ, or at least, with how they understand my arguments. I don’t see much use in replying, I’ve made my case and they’ve made theirs. Readers can form their own conclusions about which presentation is more likely correct and, more importantly, Roman authorities will certainly reach theirs in due course.

Questions in the wake of Cdl. Coccopalmerio’s comments on Anglican orders

A rock dropped into quiet waters produces a visible splash and observable ripples. The same rock thrown into a storm-tossed sea, however, passes unnoticed, for its effects are overwhelmed by larger and wider waves.

Before the splash of Cdl. Coccopalmerio’s startling comments toward recognizing Anglican orders disappears in the theological chop that is the new normal for Catholics, let’s record some questions deserving of consideration.

Note, the only source I have for Coccopalmerio’s comments is The Tablet and, as that site sets the stage for its report by recalling “Leo XIII’s remarks [on] Anglican orders”—as if Leo’s letter Apostolicae curae (1896), which declared Anglican orders “absolutely null and utterly void”, simply conveyed, you know, some “remarks”—one is not reassured that The Tablet fully grasps what is at issue here. In any case, no Tablet quotes attributed to Coccopalmerio directly attack Leo’s ruling (we are not even told what language the cardinal was speaking or writing in, and I think that is an important point) so there is some room for clarification.

But, if Coccopalmerio said what The Tablet reports him as saying, the following questions would warrant airing.

1. Was Leo’s Apostolicae curae an exercise of the extraordinary papal magisterium, itself making infallibly certain the invalidity of Anglican orders and thus requiring Catholics to hold them “absolutely null and utterly void”? I think it was, and I think we must, but I am open to counter arguments.

2. Or, was Apostolicae curae a prominent exercise of the ordinary papal magisterium which coalesced with several centuries of other ordinary exercises of papal-episcopal magisterium in rejecting the validity of Anglican orders to the point that Catholics must hold them invalid? I think they surely came together thus and so hold that Catholics must regard Anglican orders as null. I can scarcely see any counter argument, let alone a plausible one, here, but if someone wants to offer it, I would listen.

3. Or, finally, does Apostolicae curae, and the effectively unanimous rejection of Anglican orders by Catholic authorities over the centuries, and the express inclusion of the invalidity of Anglican orders by then-Cdl. Ratzinger in his doctrinal commentary on Ad Tuendam Fidem (1998) as something known with infallible certainty, and therefore as something to be held definitively by Catholics, leave any room whatsoever for speculating on, let alone defending, the possible validity of Anglican orders? Surely the question is rhetorical.

Next, if the answer to any of the above scenarios is Yes, do we not then face the situation anticipated by Canon 750 § 2 whereby one who rejects an assertion “proposed definitively by the magisterium of the Church” is in that regard “opposed to the doctrine of the Catholic Church”? And, if the answer to that question is Yes, would not ‘obstinacy’ (which, I hasten to add, can scarcely be proven by a few comments) in rejecting a “doctrine mentioned in can. 750 § 2” leave one, following fruitless admonition by the competent ecclesiastical authority, liable to a “just penalty” under Canon 1371, 1º?

Now, besides the possibility that Coccopalmerio did not say what The Tablet thinks he said, or that he said it but, on further consideration, he wishes to revise his remarks, the only other accounting I can come up with for his remarks is that, while Anglican orders are themselves invalid, some Anglicans are nevertheless validly ordained—not in virtue of their Anglican orders, to be sure, but in virtue of a post-Edwardian reintroduction of valid orders (conferred by break-away Catholic bishops or Orthodox prelates), such that a given Anglican minister might, by doing an ‘ordination pedigree’ search, be able to trace his orders back to a prelate possessed of valid orders. Such a query can be tedious, of course, and it might impact only a small number of Anglican ministers, but I think it only fair to acknowledge the possibility. (For what it’s worth, I think the Roman decision to ordain “absolutely” all Anglican ministers coming into full communion who wish to serve as priests—if applied without regard for the possibility that some could trace their orders to a bishop with valid orders—is problematic). Maybe this unusual source of sacramental validity is what the prelate had in mind.

If, by the way, our speaker above were not a credential canonist, I would pause to make it clear that the canonical-doctrinal conclusion of the invalidity in Anglican orders does not, repeat not, mean that “nothing happened” at, or as the result of, the rites undergone by Anglican ministers. Such rites can of course be occasions of great grace for their recipients and ministry conducted in their wake can, and doubtless has, helped many to grow closer to Christ. But canonists need no reminding that the power of a devotional rite to dispose one toward a closer cooperation with grace is not to be confused with whether a specific sacrament was (i.e., validly), conferred thereby, and so I mention this point only for the sake of others following this discussion.

In the end, though, perhaps the prelate said exactly what The Tablet claims he said, and perhaps he meant it just the way it sounds. If so, I grant, he would not be alone, at least not in, how to put this?, ruminating around the possible validity of Anglican orders.

That said, and as important as the above questions might be, the cardinal’s further statement, one directly attributed to him, also deserves a closer look: namely, that the Church has “a very rigid understanding of validity and invalidity: this is valid, and that is not valid. One should be able to say: ‘this is valid in a certain context, and that is valid another context.'”

That, folks, is huge.

But, one issue at a time, shall we?

Update (11 May): (1) See Fr. Dwight Longenecker, here. (2) See Phil Lawler, here.

Fake canon law goes on goin’ on

Fr. James Keenan writing in Crux this week makes his own a question raised (last July, it seems) by Rocco Buttiglione in L’Osservatore Romano: “Is there any contradiction between the popes who excommunicated divorced and remarried persons and Saint John Paul II who lifted that excommunication?”

That’s fake canon law. John Paul II never lifted any excommunication against divorced and remarried Catholics because, quite simply, there was no excommunication against divorced and remarried Catholics for him to lift. Shall we talk about it?

Buttiglione writes in the L’OR piece upon which Keenan draws: “Once upon a time, divorced and remarried persons were excommunicated and excluded from the life of the Church. That kind of excommunication disappears from the new Code of Canon Law and Familiaris Consortio, and divorced and remarried persons are now encouraged to participate in the life of the Church and to give their children a Christian upbringing. This was an extraordinarily courageous decision that broke from an age-old tradition. But Familiaris Consortio tells us that the divorced and remarried cannot receive the sacraments.

Gracious! however far back in Church history Buttiglione needs to search for an excommunication of divorced-and-remarried Catholics, he apparently thinks that the 1917 Code itself excommunicated divorced and remarried Catholics and that, only by making a “courageous decision that broke from an age-old tradition”, could John Paul II ‘disappear’ that “excommunication” from the new (1983) Code of Canon Law.

There is just one problem with Buttiglione’s and Keenan’s canonical narrative of a pope kicking down a penal door locked against divorced-and-remarried Catholics—and thus with their broader ‘if-John-Paul-could-then-Francis-can’ claim, namely: the 1917 Code did not excommunicate divorced and remarried Catholics.

Oops.

Neither Buttiglione nor Keenan provide a citation for their claim about what canon law allegedly did up to the time of John Paul II (nor, come to think of it, did Abp. Scicluna who was, it now seems, uncritically repeating Buttiglione’s claim and extending it to embrace adulterers!), so one is left to guess at what they had in mind. But a couple of ideas occur to me, some of which I have addressed before.

Maybe Keenan and Buttiglione had in mind the Pio-Benedictine excommunication levied against Catholics who attempted marriage in violation of canonical form; problem is, this sanction was applicable to all Roman Catholics (not just to divorced-and-civilly-remarried ones) and, more importantly, it had already been abrogated by Paul VI in 1970, a dozen years before the 1983 Code went into force!

Or maybe Keenan the American (if not Buttiglione, an Italian) recalled when American Catholics who divorced and civilly remarried were indeed excommunicated for that offense; problem is, that rule was peculiar to American (not universal) canon law, it dated back only to 1884 (hardly ‘age-old’), and, most importantly, it too had already been abrogated in 1977—again by Paul VI, not John Paul II—several years before the 1983 Code was promulgated.

Or maybe by “new” Code of Canon Law, Buttiglione and Keenan meant the 1917 Code which, in its day, was certainly new; problem is, I can’t find an excommunication for divorced and civilly remarried Catholics in the main, pre-Code, penal document of the 19th century, Pius IX’s Apostolicae Sedis moderatione (1869). Do Buttiglione and Keenan know of one? Of course, even if one were found lurking somewhere, it had obviously ‘disappeared’ from codified canon law some 65 years before John Paul II arrived on the scene.

Or maybe Buttiglione and Keenan understand by the term “excommunication” a much older usage that sometimes blurred the distinctions between “excommunication” (as a canonical penalty, c. 1331) and “denial of holy Communion” (as a sacramental disciplinary norm, c. 915); problem is, their claim about what John Paul II supposedly did demands that they use canonical terms as he and the Church understand them today—and as Buttiglione himself recognizes when he notes above that, despite the (alleged) lifting of a (non-existent) excommunication, divorced-and-remarried Catholics are still prohibited the sacraments (a statement wrong in some respects, but right enough in this regard).

So much contextualizing and back-storying, just to address one more fake canon law claim. But at least such research allows one to argue better not ‘if-John-Paul-could-then-Francis-can’, but rather ‘John-Paul-didn’t-and-Francis-shouldn’t’.

Sever ‘canon law’ from ‘pastoral practice’ and lots of things make sense

I am tempted to address at length Austen Ivereigh’s commentary on Fr. Raymond de Souza’s observations on Cdl. Wuerl’s statement on Francis’ document Amoris laetitia, but at a certain point the law of diminishing returns sets in leaving such an exercise tedious.

So let me just say: Ivereigh is free to argue that Amoris does not undermine Church teaching on sin, but he needs to respond to those who disagree with his claim with something more than paternalistic tsk-tsk’ing and, before anything else, he needs to face the simple fact that Wuerl can’t be right (as I think he is, if narrowly read) and the bishops of Malta also be right (as I think they certainly are not)—which is de Souza’s main point.

The reason Ivereigh misses de Souza’s point is, I suspect, that, deep down, Ivereigh thinks that “canon law” and ‘approved pastoral practice’ are two fundamentally different things. Thus Ivereigh could logically hold that canon law (including the barring of divorced-and-remarried Catholics from holy Communion) has remained the same, while at the same time holding that pastors may admit such persons to holy Communion under conditions other than those already recognized by the Church (namely, separation of abodes, or a commitment to live as brother-sister where the irregular marriage is not known). Ivereigh would be right, if canon law has little or nothing to do with what pastors should really do.

At some point I hope that Ivereigh et al will sit down, look at the text of Canon 915 and the numerous ecclesial values behind it, and recognize, among other things, that degrees of personal culpability (which Ivereigh and others go on and on and on about, as if that were the central insight his adversaries lack) have nothing to do with the operation of the objectively oriented Canon 915, the main law that controls pastoral practice in this area—whereupon they will do one of two things: accept that tradition and promote it, or acknowledge that tradition and honestly call for changing it. At which point all sides would be talking about the same, and the dispositive, issue.

What I fear is that, instead, Ivereigh et al, ignoring the connection that must, and usually does, exist between law and practice, will simply keep on repeating that canon law has not changed but good pastoral practice has. Which is a huge waste of time.

And, Happy Holy Thursday, all!

Could a pope BE in schism?

Concerns that Pope Francis could cause a schism in the Church have been percolating in Catholic circles for some time now: US Catholic, Crux, Inside the Vatican, The Spectator. More recently, though, a narrower and more technical question has begun to surface, namely, whether a pope himself could be in schism. Following are some initial thoughts on that question.

Canon 751 of the 1983 Code defines schism as “the refusal [detractatio] of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.” The first thing to notice here is that schism is defined as a rupture between two persons (a schismatic and the pope qua pope) or as between a person and an institution (a schismatic and a Church enjoying communion with the pope). The Code does not recognize, say, ‘schism from Tradition’ or ‘schism from doctrine’ as schism, even if one’s discord with Tradition or doctrine prompts one’s act of schism.

Schism is, of course, a grave crime under Canon 1364 but, for a variety of reasons (incl. 1983 CIC 331 and 1404) the prosecution of an allegedly criminous pope is not possible and, even if a trial were possible, it is difficult to see how a pope could steadfastly and consistently refuse submission to himself or how one could steadfastly and consistently refuse communion with Churches in communion with himself—at least in any externally observable way as is necessary per Canon 1330. Pio-Benedictine law on schism (1917 CIC 1325 § 2) read virtually identically to the current law, but I’ve seen nothing yet that suggests its commentators had found a way for popes themselves to commit the crime of schism. Note that in the Catholic World Report interview linked above, Cdl. Burke answered  a question about the possibility of a pope being “in schism or heresy” affirmatively only in terms of heresy, not in terms of schismWhich brings us to the next point.

Canonical commentators new and especially old are wont to observe that schism, while conceivable in a ‘pure’ form, is in practice almost always bound up with a heresy, chiefly, it seems, with some variant on the notion that the Church never was, or at any rate no longer is, the Church that Christ founded; in other words, a bad ecclesiology could fester into a heresy strictly speaking (again, 1983 CIC 751 olim 1917 CIC 1325 § 2) and said heresy could in turn manifest itself in a state of schism. Canonical literature, as I and others have noted, finds the possibly of a pope falling into personal (or worse, public) heresy possible if not very plausible—meaning that such a scenario is one among others that centuries of daily Catholic prayers for the pope are offered to prevent.

Bottom-line: as to the specific possibility of a pope himself committing (as opposed to, Deus vetet, causing or occasioning in others) the crime of schism—I’m not seeing it.

A small but important point is at risk

{NB: This post has some unusual formatting.}

The debates over admission of divorced-and-remarried Catholics to holy Communion in the wake of Amoris have focused almost exclusively on what is just one canonical problem: the public reception of holy Communion by public sinners. But there are other, canonically distinct, manners of receiving Communion and other, canonically distinct, types of would-be, if problematic, communicants. These lesser known scenarios are, however, at risk of being forgotten in the debates concerning public reception of Communion by public sinners, even though these lesser known rules might shed some light on some issues raised by Amoris.

At its most basic, the canonical tradition recognizes two types of sinners (private and public) and two types of Communion distribution (private and public). Based on what canon law means by terms such as “public”, “private”, “sinner”, and so on, the rules here are: 

SINNER         REQUEST                MINISTER

Private            Private                     Refuses per Canon 843

Private            Public                       Admits per Canon 915

Public             Private                      Refuses per Canon 843

Public             Public                        Refuses per Canon 915

What might impede understanding of this simple construct is:

(1) ‘private Communion’ (not “spiritual Communion”!) has all but disappeared from devotional life and so, today, the vast majority of receptions of holy Communion are ‘public’, meaning that most faithful have no idea that the rules for ‘private Communion’ even exist, let alone that they might differ from the rules for public administration of the sacrament; and,

(2) canon law does not regard most would-be communicants as ‘sinners’ in the first place (whether public or private), so most faithful have little or no experience of actually seeing someone not being admitted to holy Communion.

In any case, we must be clear: public sinners (as the Church has always regarded divorced-and-remarried Catholics) requesting private holy Communion are always to be turned away. Consider, even: “Occult sinners who approach the Sacrament privately and are known, by the minister, to be unrepentant must be excluded from this Sacrament…” Davis, Moral and Pastoral III: 206; “Secret sinners who privately request Communion are to be refused if the priest knows that they have not repented….” Halligan, Administration 110. See also, e.g., Abbo & Hannan, Sacred Canons I: 854, and Dom Augustine, Commentary IV: 229.

Note a key point about private and public sinners insofar as admission to ‘private Communion’ is concerned: a minister’s personal conclusion that an individual has unrepented grave matter on his/her conscience suffices for withholding the sacrament requested privately! That point alone helps us understand why Canon 915, which operates in the face of public sin actually increases the number of faithful eligible for holy Communion within the norms governing any reception of holy Communion.

The above being understood, now, one may ask, especially of those offering the most extreme interpretations of Amoris (e.g., the Maltese), do they, in line with (as far as I can tell, an exceptionless) canonical interpretation, support the withholding of holy Communion from public sinners who might, however rarely, ask for that sacrament privately? If not, why not?

Or is this small but important line of thought, too, simply being abandoned in the wake of Amoris?