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Notes on new norms for episcopal resignations

November 5, 2014

The Holy See’s new norms on episcopal resignations {Italian original here} are presented as a papal “rescript” (the term does not come first to mind per Canons 59 ff.) and not as a papal motu proprio (which these norms seem much more like). But whatever their canonical genre the new norms don’t seem to change much law regarding episcopal resignations.

Article 1 reiterates the import of Canons 401 and 411 whereby bishops are requested to resign at age 75. The vast majority of bishops submit their resignations at age 75, but the legislative history of Canon 401 (Peters, Incrementa, 364) leaves no doubt that such resignations are voluntary and, being voluntary, cannot be lawfully compelled.

Article 2 states that episcopal resignations are effective only upon acceptance, but one already knew that from Canon 189 etc. Oddly, the anomaly caused under Canon 189 § 3 (which goes to validity!) when episcopal resignations are submitted at age 75 but are not accepted by the Holy See until many months, sometimes years, later, is not addressed.

Article 3 asserts the concomitant loss of any national offices open only to sitting bishops upon their resignation from primary pastoral office. This resolves a mild ambiguity under Canon 450 in regard to membership in episcopal conferences, although the same result was apparent, I felt, from applying the plain meaning of Canons 134 and 376.

Article 4 on caring for retired bishops seems to say nothing that Canon 402 and Christian charity do not already make clear.

Article 5 should cause some pause, not because it lays down any new rules (it does not, and instead simply states what ecclesiastical leadership has always been free to do, namely, to ask for episcopal resignations), but because it implicitly acknowledges that Roman requests (demands?) for episcopal resignations are occurring much more often these days. Such actions, however, taken by several recent popes but without advertence to any process recognizable under canon law (e.g., Canons 192-196) raise serious canonical and indeed ecclesiological questions.* While those concerns remain I must recall an observation made by Cdl Burke in another context: “The too rapid growth of practice without a clear and solid theoretical foundation has its most serious consequences in the confusion regarding the very foundations of law”. Burke, Lack of discretion of judgment (1986) at 85.

Article 6, requiring (quite licitly, to be sure), among others, cardinal heads of Roman dicasteries to submit their resignation at age 75 is already required under ap. con. Pastor Bonus (1988) art 5 § 2. [Correction: resignation was not required under PS, it is only requested (rogantur). So, this is a change to making these curial resignations required (tenuti). I missed that. Thank you to an alert reader!] Again I remind those concerned to note the import of Canon 189 § 3! In any case, perhaps this article is intended to reach a few cardinals holding curial offices not covered by Pastor bonus, though I do not know what those offices might be. The duties of cardinals in the election of the Roman Pontiff are undisturbed by Article 6. [Addition: Finally, Article 7 on the cessation from office of other non-cardinal curial officers seems to make no innovations over Pastor Bonus.]

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* From my Canon Law Facebook page, 2014 SEP 29: John Paul II did it once that I recall (Gaillot), Benedict XVI did it at least four times (Makaya Loembe, Morris, Micciché, and Bezák), and now Francis has done it (Livieres Plano), namely, effecting the removal of a bishop from office without observing a publically cognizable procedure. All six prelates indisputably held ecclesiastical offices “conferred for an indefinite period” (c. 193) and so all had a canonical right to a removal process “defined by law”. Alternatively, if their “privation” was carried out in response to canonical crime (c. 196) a penal process was required for its effect. While no norm expressly requires these procedures to be public, canon law does require that objective and fair processes be followed. Moreover, the Church’s traditional duty to be the “Speculum Iustitiae” (Mirror of Justice) for the world suggests that such procedures be understood by the wider faith community…

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