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Prof. Bainbridge’s call for Cdl. Mahony’s resignation

March 23, 2007

I know nothing about UCLA law professor Stephen Bainbridge beyond what I saw on a very impressive (for a civil lawyer) resume posted on his website, but his recent post on the chronic problems in the Archdiocese of Los Angeles in which he specifically calls for Cdl. Mahony’s resignation is getting attention. Knowing, moreover, nothing about the underlying facts of the case except what has appeared in some secular media (a circumlocution for “I know virtually nothing about the underlying facts of this case”), I note that Prof. Bainbridge attempts to use canon law in his resignation argument, and canon law is something I do know a bit about.

1. In my opinion, Prof. Bainbridge’s post falls within the bounds of 1983 CIC 212, 3. Perhaps I read Canon 212 too broadly, but I’m an American lawyer, and American lawyers don’t mind a good dust-up.

2. Contrary to Prof. Bainbridge’s language, it is not “curious” that there is no express provision in canon law for removal of a diocesan bishop for, as several commentators have already noted on his site, there are ecclesiologically sound ways to address that situation. I won’t repeat their observations here.

3. I am uncomfortable, though, when non-canonists like Prof. Bainbridge, grappling with complex canonical issues, make unguarded statements such as “despite the absence of a clear answer in canon law”, when what they should say is something like, “despite my not being able to find a clear answer in canon law” etc., etc. Prof. Bainbridge thinks that he can only muster the authority of “most observers” for his contention that surely the pope must be able to remove a bishop for the alleged grave violation of canon law. Here, though, he not only underestimates his position but, more importantly, the Church’s ability to enforce her own discipline.

There is, in fact, no canonical doubt that Pope Benedict XVI has the authority to remove for malfeasance, if he so determines, a cardinal from pastoral office. One need only look to 1983 CIC 1401, n. 2 (reserving to the Church the proper right to adjudicate alleged violations of ecclesiastical law), and 1983 CIC 1405, 1, n. 2 (reserving solely to the Roman Pontiff the right to judge all c. 1401 cases involving cardinals). Additional canons support this conclusion, but given the weight of these two, there is little need to invoke them.

More than this, Pope John Paul II’s 1995 removal of Msgr. Jacques Gaillot as bishop of Evreux (France) proves that the Holy See can take this kind of action against a sitting bishop if it beleives it to be necessary.

For the rest, my prayers go out to all those who, sooner or later, might find themselves having to weigh this grave question on behalf of our Church.

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