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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?

I am a lawyer, not a mind-reader

Cardinal Vincent Nichols’ echoing of claims that Amoris laetitia changed no doctrines occasioned a question for me: Am I the only (or among the few) Amoris critics who agrees with Amoris defenders that Pope Francis made no doctrinal changes in Amoris?

I do not think that Francis changed any doctrines in Amoris (or even purported to change any doctrines—assuming a pope could have changed doctrines this way, which I would dispute) and thus I regard the kind of correctives routinely offered by Nichols, et al., as superfluous. But I’ll go a step further: I do not think that Francis changed any disciplines in Amoris (or even purported to change any disciplines—assuming a pope could have changed disciplines this way, which I would also dispute, though less vigorously than above). In short, I hold that the few who claim Francis changed doctrine via Amoris, and the many who claim that he changed disciplines therein, are wrong.

That said, though, I still regard Amoris (or at least its eighth chapter) as seriously flawed, not because of doctrinal changes it never attempted and not because of disciplinary changes it never effected, but because of the ambiguity and incompleteness with which it discusses certain key, doctrinal and/or disciplinary factors that go into making real world, concrete, Yes-you-can or No-you-can’t decisions regarding Penance and holy Communion. All of this I have discussed many, many times.

As for why the pope (assuming my characterization of his document is correct) chose to write ambiguously and/or incompletely about these factors, I do not know. I am a lawyer reading texts, not a mind-reader divining motives, and the lawyer in me has concluded that: (1) no doctrines are changed in Amoris; (2) no disciplinary norms are changed in Amoris; but (3) several factors vital to considering requests for and administration of sacraments are ambiguously and/or incompletely presented in Amoris.

Even this much, though, prompts some additional conclusions, including:

(1) all of the canons governing sacramental administration, notably Canon 915, remain in full force;

(2) the Maltese, the Germans, and Cdl. Coccopalmerio (but, I say again, not the Argentinians, not quite) go well beyond what the pope actually wrote in Amoris, though some of his phrasings in Amoris frustrates one’s appealing to it as a corrective; and,

(3) bishops such as Chaput and the Western Canadians can also invoke Amoris to justify their sacramental polices even though their policies are the polar opposite of those being pushed by the Maltese et al.

That is why I say that Amoris, a papal document so framed that it really can be plausibly invoked by diametrically opposed schools of sacramental practice, is itself what’s flawed and is itself what must be addressed.

Canon 377 § 5 and the Chinese negotiations

Canon 377 § 5 of the 1983 Code states “In the future, no rights and privileges of election, nomination, presentation, or designation of bishops are granted to civil authorities.” Frankly, the canonical theorist in me has always been uncomfortable with Canon 377 § 5 (it has no parallel in Eastern law) in that the provision seems to be at odds with the important legal maxim “Par in parem non habet imperium”, that is, an equal (the pope who legislated Canon 377) cannot bind an equal (a later pope who might wish to disregard this kind of canon). But the law clearly says what it says.

Now, to judge from usually reliable news sources, the granting of certain rights of what look like, at least, “nomination” (in the English sense of the word, which differs somewhat from the Latin) or “presentation” (beyond the narrow sense of that phrase in religious law where it is usually encountered) of episcopal candidates seems to be what Pope Francis has in mind for China. At any rate, Joseph Cardinal Zen (emer. Hong Kong) seems to think so and his views always need to be considered very seriously in such matters.

Setting aside, though, the possibility that such a plan might not be, in the end, what Francis actually has in mind, and prescinding for the moment from the possibility that Canon 377 § 5 might have been written too broadly to begin with, it is important to realize that the norm itself rests on some very strong Conciliar roots.

The Second Vatican Council’s decree on bishops, Christus Dominus (1965) 20, stated: Since the apostolic office of bishops was instituted by Christ the Lord and pursues a spiritual and supernatural purpose, this sacred ecumenical synod declares that the right of nominating and appointing bishops belongs properly, peculiarly, and per se exclusively to the competent ecclesiastical authority. Therefore, for the purpose of duly protecting the freedom of the Church and of promoting more conveniently and efficiently the welfare of the faithful, this holy council desires that in future no more rights or privileges of election, nomination, presentation, or designation for the office of bishop be granted to civil authorities. The civil authorities, on the other hand, whose favorable attitude toward the Church the sacred synod gratefully acknowledges and highly appreciates, are most kindly requested voluntarily to renounce the above-mentioned rights and privileges which they presently enjoy by reason of a treaty or custom, after discussing the matter with the Apostolic See.

The kind of language suggests that more than temporary expediencies are at work behind Canon 377 and that, therefore, more than temporary expediencies should be considered before disregarding it.

A number of countries still enjoy a concordat-based right to prior notice of pending episcopal appointments in their lands, this, to allow time for exchanges of views concerning same (Exegetical Comm II/1:759), but a few others have, in whole or in part, surrendered their rights in these matters (GB&I Comm 216). The trend may be small, but it is welcome.

The Holy See / China negotiations are not, it seems, limited to episcopal appointment matters, and prudence will, as always, have to temper the application of principles. Still, let’s hope that Church-State negotiations in one very tense corner of the world don’t result in unintended Church-State consequences for others.

Addendum: (1) A few months ago George Weigel made points worth recalling here. (2) Cdl. Zen has more to say here.

‘Sexual relations’ and ‘conjugal relations’ differ categorically

Among the fault lines revealed by the ecclesiastical earthquakes erupting after Pope Francis’ Amoris laetitia, we can see, I suggest, how some high-ranking ecclesiastics seem inadequately to understand the differences between “sexual relations” and “conjugal relations”.

Most any man and any woman can have sexual relations, of course, but only spouses can have conjugal relations. While physically the actions are the same, the differences between a non-married couple engaging in sexual relations and a married couple engaging in conjugal relations are numerous in the natural order (emotionally, psychologically, even legally); if engaged in between Christians, those differences become categorical (sacramentally, spiritually, and even canonically).

I flagged this confusing of “sexual relations” with “conjugal relations” in my comments on the Maltese Disaster noting that Bps. Scicluna & Grech had carelessly spoken of non-married couples exercising a conjugal virtue (Criteria, # 9). But they were not the first, nor are they the only, prelates to disregard the crucial distinctions applicable here.

Amoris itself confuses “sexual relations” and “conjugal relations” by invoking, in its controversial footnote 329, the Second Vatican Council’s reminder to married persons not to “separate” for too long a time (see Gaudium et spes 51, which speaks exclusively in terms of spouses and conjugal relations) as if it were a warning against non-married couples discontinuing their sexual relations!  From a purely scholarly point of view, Amoris’ invocation of advice to married couples about safeguarding their rights as if it were a disincentive to non-married couples to cease usurping rights that are not theirs, is inexcusable, but—and this is crucial—footnote 329 is, as far I have seen, the only time that Amoris makes this fundamental error in categories. As such, and notwithstanding that footnote 329 should be repudiated, it could be excused as a one-time misstatement in an otherwise very lengthy document.

That is, until others, the Maltese in a document published in L’Ossevatore Romano as above, and now Cdl. Coccopalmerio in a book published by Libreria Editrice Vaticana consciously repeat that confusion by saying about Amoris fn 329 that it presents “a suggestion given by the Council for matrimonial situations, in other words for legitimate unions, but was applied by [Amoris] to the case of unions that are, at least objectively, not legitimate. I believe, however, that such a difference is not relevant for the correctness of the aforesaid application” (Coccopalmerio, p. 24, my trans.).

Dare I say “obviously”—the categorical confusion between mere “sexual relations” and spousal “conjugal relations”  made in Amoris fn 329 when it misapplied Conciliar advice for married persons to non-married persons, by taking advantage of a wider disinterest in and/or ineptitude for theo-canonical precision among many ecclesiastical figures, is now spreading from the debate over admitting divorced-and-remarried Catholics to holy Communion, as important as that is, to questions of the moral liceity of sexual acts between married vs. non-married persons, the basic ability of all the faithful to resist sinful temptations, and one’s eligibility for valid reception of Penance, among various other things.

Dare I say “obviously”—this confusion must cease.

A blow upon a bruise

Evelyn Waugh’s character Charles Ryder described his friend Sebastian’s protracted acts of self-destruction as “a blow, expected, repeated, falling upon a bruise, with no smart or shock of surprise, only a dull and sickening pain and the doubt whether another like it could be borne” (Brideshead Revisited, 1945) . I thought of Waugh’s words as I read, in the wake of the Maltese Disaster and the German bishops’ slightly more nuanced program to the same effect, some excerpts translated from Francesco Cdl. Coccopalmerio’s new, short book on Pope Francis’ Amoris laetitia.

If the excerpts I read are accurate, the President of the Pontifical Council of Legislative Texts (the body charged with issuing binding interpretations of ecclesiastical legal texts, notably the Code of Canon Law), comes down squarely on the side of the Maltese and Germans in holding that Catholics living in open contradiction to Church teaching on the permanence of marriage and in disregard of Church teaching that marriage is the only proper setting for sexual intercourse, may and should, after “an appropriate period of discernment”, be admitted to the sacraments of Reconciliation and holy Communion.

Per Rorate Caeli, Coccopalmerio holds: “The divorced and remarried, de facto couples, those cohabiting, are certainly not models of unions in sync with Catholic Doctrine, but the Church cannot look the other way. Therefore, the sacraments of Reconciliation and of Communion must be given even to those so-called wounded families and to however many who, despite living in situations not in line with traditional matrimonial canons, express the sincere desire to approach the sacraments after an appropriate period of discernment . . .Yes, therefore, to admission to the sacraments for those who, despite living in irregular situations, sincerely ask for admission into the fullness of ecclesial life, it is a gesture of openness and profound mercy on the part of Mother Church, who does not leave behind any of her children, aware that absolute perfection is a precious gift, but one which cannot be reached by everyone.” Fr. Z’s red-line translation reads similarly.

These words, assuming they accurately reflect the cardinal’s position, are more blows upon a swollen bruise.

It is important to recall that, despite being published by the Vatican’s publishing house and to be rolled out in a Vatican press conference {which it seems the cardinal suddenly backed-out of attending this morning}, Coccopalmerio’s book does not suffice as a vehicle for “authentic interpretation” of canon law itself, let alone is it a response by the Holy See to the Four Cardinals’ dubia—important, I say, because Coccoplamerio apparently stakes out, along with the Maltese and the Germans, an extreme position on reception of sacraments by divorced-and-remarried Catholics—a position not actually taken, whatever might be his personal predelictions, by Pope Francis in Amoris—one that effectively endorses the absolution of those who do not, at the time of their Confession, intend to amend their conduct (contrary to the canonical and ecclesial values behind Canons 959 and 980) and which places confessors in proximate danger of committing the crime of solicitation in Confession. Further, by urging ministers of holy Communion to distribute the sacrament to those who “obstinately persevere in manifest grave sin” (contrary to the canonical and ecclesial values behind Canon 915), Coccopalmerio’s advice not only facilitates the irreverent reception of holy Communion, it tends toward giving what the Church has always recognized as classical scandal. Of course, those undeterred by my arguments offered on these points elsewhere are unlikely to be persuaded by my repeating them here, so I simply note them and move on, except to make one observation.

A few weeks ago, Cdl Muller of the Congregation for the Doctrine of the Faith gave an interview that upheld the traditional practice of withholding holy Communion from divorced-and-remarried Catholics. Now, Cdl Coccopalmerio has published a booklet in which he apparently says that, subject only to the toothless requirement of ‘discerning their situation’, such Catholics may and should be admitted to holy Communion. In other words, the Church’s arguably two highest-ranking cardinals in the areas of canonical interpretation and the protection of doctrine and morals are in public, plain, and diametric opposition with each other concerning a crucial canonico-sacramental practice.

This division cannot stand.

Restrictions on absolution are not so easily placed

Clergy, lawyers, and physicians have long been exempt from the duty to report certain crimes known by them to have been committed by certain persons. I do not know what use the Australian Royal Commission charged with investigating child abuse might wish to make of the information being provided to it regarding Catholic canon law and sacramental doctrine on Confession in regard to clerical civil duties under criminal reporting statutes, but the commissioners will certainly need, before anything else, an accurate understanding of that Catholic law and doctrine.

Apparently (I say “apparently” because I have read only a few pages of the copious testimonies presented to the Royal Commission), some ecclesiastical witnesses are telling the commission things like, absolution from the grave sin of child abuse can, as matter of Church law and doctrine, be withheld or made conditional based upon penitents reporting themselves to civil authorities, this, either because the refusal to ‘turn oneself in’ is supposedly a sign of “impenitence” (and impenitence renders the sacrament null) or because it represents a failure to perform sacramental “satisfaction” (and this failure supposedly renders the sacrament null).

Such claims, if they were in fact made, would, I suggest, significantly distort Catholic law and doctrine concerning the sacrament of Confession-Penance.  I shall try to clarify these points for concerned parties.

POINT ONE. Confessors may withhold absolution from penitents who are not sorry for their sins (1983 CIC 980, olim 1917 CIC 886), but the refusal of a penitent to manifest his or her sins publicly does not suffice as proof of a lack of sorrow for them. Perhaps those who claim that absolution may be withheld from penitents who decline to disclose their sins publicly could point us to an official or a credible scholarly source supporting that claim so we could consider it.

While we wait for that show of proof, let me offer a couple observations:

(1) Penitents confessing sins enjoy the presumption of being sincerely sorry for their sins. McAreavey, Great Britain & Ireland Comm (1985) 538: “The very fact of approaching this sacrament implies sorrow for sin and so a penitent should always be presumed to be in good faith”; McManus, CLSA New Comm (2000) 1161: “[c]anon 980 affirms the presumption that the penitent has confessed his or her sins in good faith and has the requisite disposition”; and Dom Augustine, Commentary (1920) IV: 295: “No one who gives signs of repentance should be refused absolution.”

This presumption of being sorry for one’s sins and, in that respect, of being eligible for absolution, yields only in the face of “positive and serious doubt regarding the required dispositions”—(those requisite dispositions being: sorrow for sin with a firm purpose of amendment, self-accusation before a confessor, and acceptance of a lawful penance, per CCC 1451, 1459-1460)—all the while bearing in mind that “the refusal of absolution is an extreme and odious measure…” per Loza, Exegetical Comm (2004) III/1: 807, emphasis added. Again, “Though the priest may think that a delay of absolution would be of greater benefit to the penitent, he may not for that reason delay absolution without the free consent of the penitent.” Woywod, Practical Comm (1948) I: 495.

(2) Further, the few commentators who discuss the possibility of absolution being conditioned upon a future event (such as a later self-reporting of one’s crimes) reject that theory. Davis, Moral & Pastoral Theo (1945) III: 256: “The Sacrament of Penance cannot be given conditionally on some future event for the absolution cannot be suspended in its effect.” Cappello, De Sacramentis (1953) II, n. 77: “The sacrament [attempted] on a future condition is certainly rendered invalid, especially under the tradition and practice of the Church which has never administered this sacrament with this condition.” (my trans.)

In short, I see no canonical or sacramental support for the claim that a public self-disclosure of a penitent’s sins, at the time of or following confession, can be required for absolution.

POINT TWO: While the refusal to accept a lawful penance can be grounds for refusing absolution, the failure to perform a penance lawfully imposed does not render the prior confession and/or absolution null. As above, perhaps those who think that the failure to perform even a lawfully imposed penance renders a prior confession/absolution invalid could point us to an official or a credible scholarly source supporting that claim so we could consider it.

While we wait for that show of proof, let me offer a couple observations:

(1) Confessors are required to impose “salutary and suitable penances”, penitents are “obliged to perform these personally” (1983 CIC 981), and the refusal of a penitent to accept a suitable penance could be grounds for refusing absolution. See, e.g., McManus, op.cit., 1162; Loza, op.cit., 810; Davis, op.cit., 261-262. But,

(2) The refusal to perform (or to seek the commutation of) a lawful penance/satisfaction, while it is generally regarded as objectively sinful (Davis, op.cit. 267; Cappello, op.cit., n. 246), does not retroactively render null or invalid an absolution previously granted. Davis, op.cit. 262; Cappello, op.cit., n. 236; Palazzini, s.v. ‘Satisfactio’ in DMC (1968) IV: 205.

In short, I see no canonical or sacramental support for the claim that the failure to perform even a rightly imposed penance renders a penitent’s previous confession invalid or a confessor’s prior absolution null.

POINT THREE: Unusual public activities may generally not be imposed as penances for sins, and certainly not, I suggest, if those sins are not already known to have been committed by the penitent.

Sins come in many degrees of gravity and are committed under a wide variety of circumstances, but traditionally, the post-absolution penances to be assigned for sins are prayer, fasting, and almsgiving. McManus, op.cit., 1162; Palazzini, op.cit. 205. Others rightly suggest performing works of mercy, restitution of stolen goods, retraction of slanders, and so on. CCC 1459-1460; McAreavey, op.cit., 535.

Public acts, however, which might be taken by others as works of sacramental satisfaction, must generally be avoided lest the revelation of the confession follow. Cappello, op.cit., n. 244, Palazzini, op.cit., 207.

Only, it seems, if a penitent’s sins are already known by the community to have been committed by the penitent (such as could occur if, say, one is known to have gone around falsely accusing an innocent neighbor of theft or adultery), could that penitent be directed, as a penance/satisfaction for sin repented of and absolved, to publicly retract the slander. Note, however, that such an obligation of ‘restitution’ already exists as matter of natural law, regardless of whether it was ordered as a penance, per e.g., Abbo-Hannan, Sacred Canons (1960) II: 16, citing Coronata, De Sacramentis (1943) I, n. 371, who seems worth quoting at length here:

“As for whether a public penance as sacramental satisfaction can be imposed on a penitent, under current law, it seems that such should be entirely rejected, for that would be to oblige a penitent to manifest his sin, something too burdensome and unreasonable. One could except the case where it is necessary for the public repair of scandal properly so-called, in which case the penitent is bound to repair this scandal publicly even if the confessor did not impose it as a sacramental penance.” (my trans.)

In sum, any assertions that: (1) absolution from sin may be withheld from a penitent who declines to report his or her acts to civil authorities; (2) absolution may be made contingent upon a penitent’s later reporting his or her acts to civil authorities; (3) a penitent’s failure to perform a penance/satisfaction renders the prior confession and/or absolution null; or (4) public acts of penance/satisfaction may be imposed on a penitent for sins not known by the community to have been committed by the penitent, are either simply wrong or, at best, are subject to serious interpretive restrictions.