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What’s up Down Under?

February 8, 2012

It seems that much ado is being done about a “report” issued by retired Queensland Supreme Court Judge William J. Carter to the effect that Bp. William Morris, formerly of Toowoomba, suffered major violations of his rights under Roman Catholic canon law when he was “removed” from office by Pope Benedict XVI in May 2011. I’ll come back to this word “removed” shortly. But, first, I have to wonder about Judge Carter’s qualifications to pronounce upon canon law at all.

Judge Carter’s credentials as a canonist are not apparent. Did the secular press simply fail to mention them? I dunno, but, if anyone thinks that Carter’s credentials as an expert in Australian common law afford him any expertise over Catholic canon law—not to mention the degree of expertise needed to declare that Morris’ treatment was “offensive” in light of both [Australian] and canon (church) law—they need to think again.

Judge Carter’s expertise in Australian common law no more qualifies him to parse canons than my doctorate in canon law (or for that matter, my degree in American common law) qualifies me to practice before Australian courts. Oddly, however, this kind of casually-assumed expertise over canon law persists among some common lawyers. I’ve dealt with it before,* but every time I encounter it, it strikes me as inexplicably presumptuous for professionals in one legal tradition to so easily assume that they can master a radically different legal system with a few read-throughs and maybe a dictionary.  If that’s what happened here, and, as I take pains to point out, I only know what I see reported in the press; but the press here suggests no reason to think that Carter has any training in canon law. By the way, although it seems that Carter brings no canonical expertise to this discussion, my claim is not that whatever he writes about canon law must be wrong, rather, it is that there’s no reason to accord his opinions on canon law any special weight.

That said, I understand that Fr. Ian Waters, a well-qualified canonist in East Melbourne, apparently agrees with Judge Carter. Now, Waters’ views on canon law would be worth considering and I will do so as soon as I can locate a copy of his remarks (I’ve not yet been able to do so yet—update: just got it, comments here).

In the meantime, about this alleged “removal” of Bp. Morris from office: I, for one, still do not know what actually happened in this case.

Yes, the departure of Morris from office is widely described in the press as a “removal” and yes, the Vatican Information Service apparently used that word at the time, and yes, there have arguably been a “removal” or two of bishops from office under Benedict XVI (indeed, even one under John Paul II). But Morris himself describes his departure as being one of “early retirement” and the Apostolic Nuncio to Australia said the pope had “accepted the retirement” of Morris. So exactly what happened in this case is not clear from the sources available to me.

Now, maybe, “early retirement” is a new canonical institute that none of us extra Urbem has ever heard of, but I doubt it. My guess is that “early retirement” is some kind of  ‘avoidance-talk’ from an office-holder who winces at the word “resignation”—even though resignation is exactly what this seems to be—and Rome, prudently or otherwise, let him have his way. Personally, I don’t like it when ecclesiastical officials countenance new words being used to describe what seem to be well-defined types of actions, but, whatever, the situation seems resolved.

Or is it?

More than semantics, I suggest, are at issue here. Consider: If a bishop resigns his office (c. 401 § 2), under Roman pressure or otherwise, it is fundamentally his decision, not the pope’s; if a bishop is deprived of office (c. 416), it’s fundamentally the pope’s decision (c. 1405 § 1, 3º), to be reached in accord with seldom-consulted, but nevertheless identifiable, canons; and if a bishop is removed from office (cc. 192? 331? 333?), well, that’s a whole new set of questions for modern ecclesiology and canonistics. Thus, labeling this departure from episcopal office as an “early retirement” only masks whatever is going on, delays qualified analysis of the case, and encourages destructive chatter and dark insinuations. None of which I find helpful.

Anyway, it looks to me like, whatever word he wants to use, the fifth bishop of Toowoomba, in the end, resigned his office. Which would make it End of Story. + + +

* See, e.g., Edward Peters, “Lest amateurs argue canon law: a reply to Patrick Gordon’s brief against Bp. Thomas Daily“, Angelicum 83 (2006) 121-142. (Pontifical University of St. Thomas Aquinas, Rome)

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