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Is the ‘Petrine Privilege’ an exception to Church teaching on the indissolubility of marriage?

The Church herself has not yet fully articulated what happens when a marriage is dissolved by the ‘Petrine privilege’ or ‘papal dissolution’ so we cannot fully address here all of the canonical and theological issues raised thereby, but we can show that the Petrine Privilege does not, in any way, provide a basis for moving against Church doctrine and discipline on the indissolubility of consummated Christian marriage.

Orientation to the issue.

Regarding the possibility of remarriage during the lifetime of a previous spouse we saw earlier four kinds of marriage, namely, those: (I) between two non-baptized parties; (II) between a baptized party and a non-baptized party; (III) between two baptized parties that has not been consummated; and (IV) between two baptized parties that has been consummated. All four kinds of marriage, we noted, enjoy the presumption of validity. Marriages in Groups I and II are not sacraments while those in Groups III and IV are.

Marriages between two non-baptized parties (Group I) are generally dealt with by the Pauline Privilege to allow, under strictly defined conditions, remarriage during the lifetime of a former spouse. Marriages between Christians that have been consummated (Group IV) are completely indissoluble by anything other than death. Here, we consider marriages between two baptized parties that have not been consummated (Group III) and those between a baptized party and a non-baptized party (Group II).

For several hundred years the power of the Roman Pontiff to dissolve non-consummated Christian marriages (our Group III) has been unobtrusively exercised, but about 100 years ago popes began to dissolve marriages between baptized and non-baptized persons (our Group II). It is especially this latter development, in these times of widespread confusion about even the most fundamental Church doctrine and discipline on marriage, that some think (or fear) implies a way around our Lord’s words on the permanence of marriage.

Practical obstacles to understanding the operation of Petrine cases.

Comprising a very small portion of all the marital cases dealt with by the Church world-wide, recent Petrine cases follow complex procedures that evolved in the crucible of pastoral-chancery practice and not in the calm of the classroom. These cases seem not quite to have settled into doctrinal-canonical place yet. Consider: “[Modern Petrine] dissolutions could not be explained by the traditional principles governing the application of the Pauline privilege or even by the extensions of this privilege [Canons 1148 and 1149]. These dissolutions were soon recognized as exercises of a heretofore unknown papal prerogative to dissolve non-sacramental marriages”. CLSA New Comm (2000) 1372. Again: “Theological and juridical doctrine has not provided an explanation that treats all the points questioned in this specific supposition of dissolution of marriage and others regulated in this article of the Code [Canons 1142-1150].” Exegetical Comm (2004) III/2: 1545.

Cases of matrimonial dissolution by popes are not adequately addressed in the 1983 Code (proposals to include a few more provisions on them were rejected late in the post-conciliar canonical reform) and thus bishops, pastors, and canonists must rely on extra-codical instructions for processing such petitions (the most recent version of these coming out in 2001). There is not even consistency in the terminology used for these cases and, though I prefer to distinguish between papal dissolutions of non-sacramental marriages (‘Petrines’) and papal dissolutions of non-consummated sacramental marriages (‘papal dissolutions’)—in part to acknowledge that a pope’s dissolving a natural marriage and his dissolving a sacramental marriage are different things—canonists follow various naming conventions. Everyone agrees, however, that, under the current law, popes, and only popes, are dissolving herein presumptively valid marriages at least some of which are sacraments.

But I pause to be clear: In neither Petrines, nor Paulines, nor any other dissolutions (such as the now-dormant dissolution of certain marriages by certain religious vows) do the parties themselves dissolve their own marriage. Rather, something “extrinsic” to these marriages dissolves them, be it the pope in Petrine cases, the second marriage in Pauline cases, or the law itself upon the ecclesiastical acceptance of certain vows. Indeed, to hold that the parties themselves can, by any act performed by themselves, dissolve their own marriages, is to contradict flatly well-settled Church teaching on the “intrinsic indissolubility” of all marriage.

Short explanation of how Petrine cases do not threaten Church teaching on marriage.

While Christians, let alone Catholics, make up only a minority of the world’s population and hence a minority of the world’s marriages, the vast majority of the marriages to which the Church actually ministers are presumptively valid (c. 1060), ratified, i.e., sacramental (cc. 1055, 1061), and consummated (c. 1061), that is, our Group IV, and as such are completely indissoluble during the lifetime of the spouses (c. 1141).

But marriages between a baptized person and a non-baptized person (Group II) are not sacraments and in that respect more resemble Pauline-type situations, whose dissolubility can be traced to Scripture without threatening Church teaching on that indissolubility recognized in Christian marriage. Group III marriages, though sacramental, have not been, literally, consummated, that is, the sign value of conjugal intercourse has not yet expressed, as deeply as human beings can express it, the mystical union between Christ and his Church and so, again, allowing Group III marriages to be dissolved under certain narrow conditions does not impugn Church teaching on the complete indissolubility of consummated Christian marriage (Group IV), that is, those marriages maximally symbolic of the Great Mystery (Ephesians V: 32).

In short, only “ratified and consummated” marriages (Group IV) are, per Our Lord’s words, completely indissoluble, but Group II marriages are not “ratified” and Group III marriages are not “consummated”. Petrines do nothing to disturb this teaching.

Longer explanation of how Petrine cases do not threaten Church teaching on marriage.

All the power that the Church was ever going to have was present at her inception. That is not to say that the Church has always exercised all of her powers or even that she has always been fully aware of and/or able to explain adequately all of her powers. An illustration of this point is that the Church always possessed and celebrated all of the sacraments, even though that was centuries before the word “sacrament” came to identify them and even longer before the magisterium finally numbered them at seven. Now, among the powers entrusted to the Church by Christ are certain ones over marriage, authority that she has, in greater or lesser degrees and with fewer or more detailed explanations, faithfully exercised over the centuries.

The basic authority of the Church over the Pauline Privilege can be traced to Scripture though many centuries were required for the exercise of this authority to take its present form; the power of the Church over non-consummated Christian marriages (say, in the context of spouses seeking to enter religious life) emerged clearly only in the Middle Ages; and not quite a hundred years ago the power of the Church over the marriages of Christians with non-baptized persons began to be exercised to the point that, in recent decades, it now encompasses virtually every fact pattern imaginable under that heading and even includes some marriages between two non-baptized persons that do not meet the traditional Pauline requirements.

But throughout her long history, even in the last one hundred years of rapid expansion in the scope wherein Church authority over marriage is exercised, the refusal, nay inability (CCC 1640) of the Church to attempt to dissolve a consummated Christian marriage has been steadily and unambiguously proclaimed. As typical of dozens and dozens of papal, conciliar, dicasterial, episcopal, and scholarly assertions of the divinely-grounded, complete indissolubility enjoyed by consummated Christian marriage that have been issued over the centuries, let one statement from Pope Pius XII made to the Roman Rota in 1941 serve:

It is superfluous before a judicial body such as yours, but does not distract from Our remarks, to repeat that a ratified and consummated marriage is by divine law indissoluble, in that it cannot be dissolved by any human power; meanwhile other marriages, though they are intrinsically indissoluble, do not have an absolute extrinsic indissolubility, and, given certain necessary presuppositions, can (and it does occur, as is known, in relatively rare cases) be dissolved, whether by virtue of the Pauline privilege or by the Roman Pontiff by virtue of his ministerial power.*

So instead of starting with the Petrine Privilege and asking, Could these principles be extended so far as to impugn the indissolubility of consummated Christian marriage?, try starting with the divinely-demanded, complete indissolubility of consummated Christian marriage on earth and ask, Can any institute, theory, or argument—short of one obviously betraying the teachings of Jesus—detract from that truth?

I say, No.

*È superfluo avanti a un Collegio giuridico qual è il vostro, ma non disdice al Nostro discorso il ripetere che il matrimonio rato e consumato è per diritto divino indissolubile, in quanto che non può essere sciolto da nessuna potestà umana ([1917 CIC] can. 1118); mentre gli altri matrimoni, sebbene intrinsecamente siano indissolubili, non hanno però una indissolubilità estrinseca assoluta, ma, dati certi necessari presupposti, possono (si tratta, come è noto, di casi relativamente ben rari) essere sciolti, oltre che in forza del privilegio Paolino, dal Romano Pontefice in virtù della sua potestà ministeriale. (From, here, my trans. and emphasis above.)


Is the ‘Pauline Privilege’ an exception to Church teaching on the indissolubility of marriage?

Is the “Pauline Privilege” (I Corinthians VII: 12-15, Canons 1143-1147) an exception to Church teaching on the indissolubility of marriage (Matthew XIX: 3-9, Mark X: 2-12, Canon 1141), indeed, an exception that suggests the possibility of the Church’s somehow countenancing the post-divorce civil marriages of Catholics even though such unions constitute “public and permanent adultery” (CCC 2384)? Answering that question requires clarity on some basic marriage concepts and terms.

Canonically, there are four kinds of marriage, namely, marriage:

(I) between two non-baptized parties (e.g., Jews, Muslims, Hindus, Mormons);

(II) between a baptized party and a non-baptized party (e.g., a Catholic-Jewish marriage);

(III) between two baptized parties (e.g., Catholics, Protestants) that has not been consummated; and,

(IV) between two baptized parties that has been consummated.

The Church (here, through her canon law) sees profound commonalities and profound differences among these kinds of marriage regarding, among other things, indissolubility, validity, and sacramentality, all of which impact the operation of the Pauline Privilege.

As to indissolubility

The Church regards all four kinds of marriage as being, by natural law (and not by Catholic theology), “intrinsically indissoluble”, that is, she holds that no spouse or couple (say, by invoking civil laws of divorce, and regardless of religious affiliation) can, by their own will or action, break or dissolve their marriage.

The Church regards three of those kinds of marriage (those between two non-baptized parties, a baptized party and a non-baptized party, and two baptized parties if it has not been consummated) as being, under certain strictly defined conditions, “extrinsically dissoluble”, that is, as a matter of Catholic belief (and not natural law), the Church sees the possibility that, notwithstanding the “intrinsic indissolubility” of all marriage, something other than the will or act of the parties (specifically, the operation of the Pauline Privilege, the sometimes-called Petrine Privilege, or papal dissolution, respectively) can dissolve a marriage. In the great pool of divorce cases that the Church deals with, Paulines, Petrines, or papal dissolutions comprise the proverbial drop in the bucket (at least in the First World), but exist they do and sometimes they are perceived, or are proposed, as being disquieting exceptions to Church teaching on the indissolubility of marriage—why they are not can be deduced from the above, but let’s keep going.

The Church regards one kind of marriage, namely marriage between two baptized parties that has been consummated, as being not just “intrinsically indissoluble” (like all marriages) but also as “extrinsically indissoluble”, that is, she holds that no power on earth (not the parties, certainly not the State, not even the Church herself) can dissolve them. Only death ends such marriages. Of course, consummated marriages between baptized persons are the kind of marriages most often dealt with by Church pastors and personnel, but it is important to recall that these marriages are just one of the four kinds of marriage out there.

Now, because the Church holds that all marriages on earth are (intrinsically) indissoluble and because she holds that all consummated Christian marriages are (intrinsically and extrinsically) indissoluble it is easy to show why some people wrongly think that the Church holds all marriages to be (looking for a new adjective here) ‘completely’ or ‘totally’ indissoluble and stumble from that mistaken conclusion into seeing anything departing from that (false) norm as the Church quietly making exceptions for her friends, exceptions that border on hypocrisy or that at least open the door to other ‘exceptions’ to her teaching on indissolubility. Not so, some will already see, but let’s keep getting clear on terms.

About validity

All four kinds of marriage listed above enjoy what canonists call ‘the presumption of validity’, that is, world-wide, pretty much anything that looks like a marriage is presumed by the Church to be a marriage if only because marriage is, before anything else, a natural institution that human beings are naturally suited to enter. When a Church tribunal declares a marriage “null”, it does nothing to the marriage, but rather, says something about the marriage, specifically, that what appeared to be marriage has, upon closer and expert investigation, been shown not to have satisfied one or more requirements for marriage after all. Argue, if one will, about whether there are too many or too few such findings of in-validity; but understand that a declaration of nullity is not the breaking or dissolving of a marriage for the Church has judged that there is, after all, no marriage there to break.

Re sacramentality

Of the four kinds of marriages outlined above, all, but only, those marriages between two baptized (whether Catholic or not) parties are considered sacramental.

Here, two points are important: First, the canonical term for a marriage between two baptized parties is “ratum” (ratified) even though in common parlance “ratified” would seem to apply to all four kinds of marriage once consent has been expressed. The Church uses, I suggest, a special word for matrimonial consent between two baptized persons because such consent brings about not only a marriage but also one of her seven sacraments, Matrimony. Notice, too, a marriage between two baptized parties is “ratum”, hence sacramental, even before it is “consummatum” (consummated), and it is wrong for anyone to say that a Church tribunal investigates whether a given marriage is “sacramental”, for sacramentality is a consequence of a marriage being between two baptized persons whereas tribunals investigate only whether a given marriage is valid, and not whether it happens to be sacramental (based on the baptismal status of the parties).

Second, the only time “consummation” is canonically significant is in a marriage between two Christians. The sexual use of the marriage-sacrament (already “intrinsically indissoluble” because it is a marriage) by two Christians is canonical proof against the rare but real “extrinsic dissolubility” to which non-sacramental and even sacramental-but-non-consummated marriages are liable.

We’re now ready to talk about the Pauline Privilege.

This won’t take long.

Canon 1141 (reflecting, I think, infallible Church teaching, but that is a case I need not make now) states “A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death.” Those who know what these terms mean will understand better what this canon is, and is not, saying: all, but only, those marriages between two baptized persons that have been consummated (i.e., the fourth kind of marriage above) are (again, using a new adjective here) ‘completely’ or ‘totally’ indissoluble short of death. By implication, however, any other kind of marriage, notwithstanding its validity and natural goodness, is liable, under unusual and strictly interpreted conditions, to the possibility of being dissolved by something other than death.

Thus, because the Pauline Privilege operates only in regard to marriages between two non-baptized persons (i.e., the first kind of marriage outlined above) while Canon 1141 applies only to the consummated sacramental marriages between two Christians (i.e., fourth kind of marriage above), Paulines are obviously not exceptions to the rule proclaimed in Canon 1141 because the two very different canonical institutes deal with two very different kinds of marriage and because neither norm violates settled Church teaching, resting on natural law, upholding the intrinsic indissolubility of all marriage on earth.

Nooo, Canon 17 does not let us undercut Canon 915 and what it protects

A professional knows the limits of his knowledge. An amateur does not know the limits of his knowledge. A dilettante does not know that there are any limits to his knowledge.

Based on the biographical interview he granted to the Catholic Herald, it seems that Stephen Walford is a professional pianist and an amateur theologian (one’s dearth of formal education in a complex discipline being an obstacle, but not a complete bar, to one’s achieving some knowledge of at least some topics within that discipline), rather as I am a professional canonist and an amateur, I dunno, Latinist or woodwind player. Nothing wrong with being a professional, of course, or an amateur; but dilettantes are something else. If, having watched “Searching for Bobby Fisher” and knowing how the horsey moves, I started opining publicly on the Sicilian opening, what would I be? A dilettante. And chess, mind, is a little thing.

Now, in regard to canon law, which Walford repeatedly invokes in the course of trashing as “dissenters” anyone who questions the text and certain applications of Amoris laetitia and its progeny, Walford is simply a dilettante unaware that most of his purported explanations of canon law have little or no connection to what the law really means—and sometimes, not even to what it says. And canon law, mind, not to mention the doctrine it works to protect, is a big thing.

It is difficult to discuss law, of all things, with people who not know what it actually says. For an example of Walford’s misstating what the law (here, Canon 915) says, see his claim that “canon 915 refers to ‘obstinate’ and ‘persevering’ manifest grave sinners.” Of course, John Paul II’s Canon 915—aware that the Church cannot and does not judge souls or determine who is personally culpable for sin or if so by how much—does no such thing. Rather, this papal norm responds to objectively reckoned and publicly observable situations of sin and, in an unbroken line of practice going back to Scripture, directs ministers of holy Communion to withhold that most august Sacrament from persons who, by their public conduct, have placed themselves within the purview of the canon.

Confusing “sinner” and “sin” is, I grant, quite common in this debate and even several ranking prelates seem to think that externally-made assessments of personal culpability (however that oxymoronic task is to be accomplished) are relevant to the operation of Canon 915. But what can I say that has not been said before? Treating “sinner” and “sin” as equivalents is something a professional would avoid, while an amateur, intrigued by the distinction once he saw it, would, hopefully, stop treating the terms as synonyms.

It is not, however, Walford’s mistaking the plain text of Canon 915 that attracts my attention, but rather his attempt to explain what Canon 17—a norm little noticed in this debate, for good reason—means and allegedly how, by reading Pope Francis’ words in Amoris through in its light, “a path maybe opened to reception of Holy Communion” for divorced-and-remarried Catholics.

As we are talking about canon law, I suggest we start with the canon. The whole canon.

Canon 17. Ecclesiastical laws must be understood in accord with the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator.

A canonist would recognize immediately why Canon 17 has almost nothing to do with Amoris laeitia for Amoris is not, in either form or substance, a legislative document at all, so there is no “ecclesiastical law” to interpret therein, let alone one capable of upending Canon 915.

Even an amateur might read Canon 17 and conclude that, whatever disciplinary weight a passage or two in Amoris might (I say might) carry, assessing that weight requires a process that starts with careful study of the actual terms used in “text and context” (as those two words are understood in canon law), that further inquiry into “parallel places” (as that notion is understood in canon law) might be required, perhaps going on to the “purpose and circumstances of the law” (as that phrasing is understood in canon law), and that inquiry about the “mind of the legislator” (as that term is understood in canon law) could be helpful. Of course, a theory floated on a website does not satisfy this textual and contextual study requirement.

And a dilettante? Well, he might just skip most of the actual text of Canon 17, seize upon the final phrase about the “mind of the legislator”, claim that Canon 17 bids us to unlock the “far more nuanced” thought of Francis in regard to Canon 915, disparage “those whose rigidity betrays a pharisaical intransigence”, and soar off into surmises about “what the Holy Spirit is saying to the Churches at this time.”

Heady stuff, this Canon 17.

Except, it’s not. Let me offer some comments on what the term-of-art, “mind of the legislator”, means in canon law, why it has little to do with the Amoris debate, and why it has almost nothing to do with Walford’s imaginings about what Francis might be imagining. I’ll get right to it.

The CLSA New Commentary on the Code of Canon Law (2000) at 75, addressing Canon 17, states (with my emphasis):

The mind the legislator (mens legislatoris) does not mean the subjective mind of the legislator or his successor—what he inwardly thinks or wills—because that is largely unknowable and even irrelevant. It is the objective text of the law that must be considered, not what anyone presumes the legislator might have been thinking when he made the law. The “mind the legislator” does not refer to a human person’s mind at all. [!] Instead it is a construct, an “institutional figure” signifying the whole institution of the law itself—the canonical system—especially the basic rules, values, and principles that underlie and support it. Knowing the “mind the legislator” takes considerable study and experience in the field of canon law, and it also requires knowledge of related disciplines such as ecclesiology and moral theology.

This explanation of what the “mind of the legislator” really means in canon law pretty much demolishes, I think, any theory that, by passing Amoris under the special lamp of Canon 17, one can make out Francis’ mind as abrogating or even derogating from the plain, hitherto uncontested, divinely-rooted Canon 915. Whatever Francis might have been thinking when his signed Amoris, and however much might be his or others’ implicit sympathy for policies that do contravene Canon 915 (think Maltese bishops), neither the text of Amoris nor appeal to Francis’ supposed “mind” suffices to relieve ministers of holy Communion from their duty under law, Canon 915.

Shall we see another? The CLSA Commentary (1985) at 36 reads (again, my emphasis): “The presumption [behind Canon 17] is that the legislator said what was meant; hence the meaning of law should not be changed on the bases of factors which are not expressed in the law itself. The interpretation of law is a subtle art; it cannot be done well without proper training in law, its history, and in a number of relevant sciences.” I appreciate the line that interpretation of law cannot be done well except by persons with certain talents and training. Obviously interpretation of law per se can “be done”, these days, by anyone with access to the internet. (Indeed, that is one of the reasons why I blog, to correct, as best I can, just some of the multitudinous misrepresentations about canon law floating around out there. But I digress.)

I could cite additional professionals as to the proper meaning of Canon 17 (it is the stuff of which dissertations are made) and which I think parallel the position taken by the Americans. Indeed I might even point to the Great Britain & Ireland Commentary (Letter & Spirit, 1985) at 17-18, which I am sure Walford could find easily, which seems open to considering, among many other things, the legislator’s “whole manner of exercising authority”, but even here, the GB&I immediately warns that such considerations can only be invoked when the law in question (here, Canon 915) is itself in doubt (and Canon 915 has never been in canonical doubt, though it is has often been ignored by ministers thinking they are being “pastoral), that even then such guesses would yield only a “subjective assessment” as to legal meaning, and that in no case does such gleaning of the “mind of the legislator” result in an “authentic interpretation” (c. 16) of the law—which is the event I have long said would be necessary (assuming it could even be issued along the lines that Walford and some others seem to think is correct) to restrict or remove Canon 915.

There are other problems with Walford’s essay but let these remarks suffice for now.


Three notes on Kazakhstan ‘Profession of the immutable truths about sacramental marriage’

The presentation of Catholic teachings on marriage and morality set forth in the brief statement from Kazakhstan Bps. Peta, Lenga, and Schneider is quite sound. Indeed, in contrast to, for example, the ambiguous statement from the Argentines the Kazakhstan profession is a model of clarity; set against the disastrous statements by, among others, the Bishops of Malta and German episcopal conference the Kazakhstans are withering. I offer three notes for those reading on the Kazakhstan profession.

First, while the Kazakhstans address only sacramental marriage (that is, marriage between two baptized persons) much of their message applies to any marriage, for all marriage is, as canonists say, intrinsically indissoluble.

Second, when the Church talks about “marriage”, she always means marriage valid in her eyes and not necessarily marriage in the state’s eyes or marriage as many people use the term in common speech. It is, of course, far too cumbersome to include every qualifier that the Church assumes in regard to marriage every time the word “marriage” is used, but these qualifiers must be recalled when one composes and analyzes technical texts closely.

Thus, third, with regard to the Kazakhstans’ assertion that “Unequivocally and without admitting any exception Our Lord and Redeemer Jesus Christ solemnly reaffirmed God’s will regarding the absolute prohibition of divorce”, two important qualifiers (briefly indicated later, but easy to miss in this first assertion) are necessary for this statement to stand, namely, we must be talking about sacramental marriage (else, the Pauline and Petrine Privileges fall), and second, we must be talking about consummated Christian marriage (else, papal dissolution of ratum-non-consummatum marriages falls). These three exceptions to the permanence of marriage comprise, to be sure, a minuscule percentage of the divorce-and-remarried cases actually faced by pastors, but sweeping language must account for legitimate exceptions to its terms, however rare such exceptions are in real life.

My comments on De Mattei’s response

A few days ago Prof. Roberto De Mattei opined on the significance of the appearance of the so-called Buenos Aires directives in the Acta Apostolicae Sedis. I replied to his observations here. Now, De Mattei has graciously responded to my remarks. There is, of course, much good in De Mattei’s latest comments, but there are also new and problematic assertions even beyond what I can respond to here. In the interest of efficiency I will respond to some of De Mattei’s points in terms of the incipits of his paragraphs.

“Professor Edward Peters …”

I think that Amoris laetitia has occasioned, and that some of the policies announced by certain bishops in the wake of Amoris have caused, real pastoral damage, but I seek neither to “contain” that damage nor to “minimize” it; rather, insofar as Amoris makes or occasions others making canonical assertions, I seek to identify those assertions and to frame them accurately for others. I take no position on whether there is ‘more behind’ the pope’s words than meets the eye. I focus on the legal significance (or lack thereof) of the pope’s materials as he published them, and leave mind-reading to others.

“With regard to canon law …”

My hands are full responding to many errors in this area published by people signing their names; I cannot also take on those who, for whatever reason, hide their identity and thereby venture nothing of themselves in making their claims. If I were, however, to respond to some points made along these lines, I would probably note that (a) I have long warned that any attack on the discipline set out Canon 915 in the cases of divorced-and-remarried Catholics is an attack on the divinely-rooted discipline of the canon as a whole; (b) I am well aware of the operation of Canon 20 and precisely so I insist, I think correctly, that no legislative assault on Canon 915 has been made by the pope against that law, for laws are made of words promulgated by legislators, not of motives surmised by observers, such that people who insist that Amoris and its papal progeny have made law are, in my view, simply wrong; and (c) Amoris falls utterly short of achieving an “ex integro” reorganization of the canon law on holy Communion if only because neither it nor the pope’s retroactive designation of his letter to the Argentines as “magisterial” counts as legislative at all.

By the way, a confused understanding of what constitutes law in the Church seems at work in De Mattei’s invocation of Familiaris consortio (which I join him in applauding, of course) as if it, too, were a “legislative” document. It is no such thing. It is an apostolic exhortation that in one place “reaffirms [Church] practice [read: law], which is based upon Sacred Scripture, of not admitting to Eucharistic Communion divorced persons who have remarried.” The pope’s statement is completely correct, but that not qualify it as a “legislative” act, rather, it is by its own terms a reiteration of something already reflected in a legislative act (Canon 915).

“As for the theological aspect …”

I am not sure what De Mattei’s point is here. I have long argued that the ordinary Magisterium of the Church is reflected in exactly the kinds of documents that he points out. But I have also cautioned against the exaggerated impressions engendered by the word “magisterium”, connoting, as it does, in some people’s minds, major statements made with prelatial profundity approaching infallibility. But that is not the way the ordinary magisterium ordinarily works. Thus, while granting that some aspects of Amoris have, in a small-to-moderate way, contributed to Pope Francis’ ordinary magisterium, his assertions to date are, in my view, magisterially insignificant in the face of the millennia-old ordinary magisterium of the Church, reflected in centuries of canonical law and practice, against the appropriateness of holy Communion for (among others) divorced-and-remarried Catholics for several sacramental, moral, and ecclesiological reasons.

Some, I know, seek to avoid the serious problems occasioned by the abuse-prone language used by the pope in parts of Amoris et al. by claiming that the pope’s problematic assertions therein are not “magisterial”; I think at least some of them are, unfortunately, “magisterial”. Others seek to rally opposition to those assertions by invoking the label “magisterium” in a way that seems to exaggerate the significance of the weight of the pope’s assertions. I do not think they should be exaggerated. I describe those assertions for what I think they are: flawed, easily exploitable, expressions by a pope, which assertions nevertheless pale in the face of the Church’s unbroken enunciation of Church teaching and discipline in this area.

“Few of these acts are infallible…”

Perhaps De Mattei is writing for others here. I know all of this and agree with his description of the documents, as far as those descriptions go.

(Sidenote: I welcome De Mattei to the small but persistent school asserting the infallible character of Ordinatio sacerdotalis—against, I might add, such luminaries as then Cdl Ratzinger—but we base our conclusion for infallibility not on “the fact that the teaching of the Pope confirmed the perennial teaching of the Church” (for many papal statements do that) but rather, because OS itself meets, we think, all of the requirements for an infallible assertion set out in Canon 750, Lumen gentium 25, and Pastor Aeternus IV.)

“According to Peters …”

I can’t research the text and context of an uncountable number of Church documents that might be magisterial, disciplinary, or both. I concede that after 2,000 years we can find plenty of examples of pretty much everything in ecclesiastical documentation. The question is, how do we read documents like Amoris, Canon 915, and so on, today. Here’s how.

Canon 915 is, indisputably, a papal, legislative, disciplinary law made in support of several, divinely-grounded, doctrinal assertions (esp. on sacraments, morals, and ecclesiology). The meaning of what now appears as Canon 915 has been established by the Church over many, many centuries and—again, canonically unquestionably—prohibits ministers of holy Communion from distributing that most august Sacrament to, among others, divorced-and-remarried Catholics (pace the internal forum solution known commonly as the ‘brother-sister’ / remoto scandalo situation).

Against Canon 915 there is, according to some, arrayed a practically incomplete and theologically ambiguous assertion made by one pope in one footnote of a 50,000 word, non-legislative, document. Are ancient and unanimous Church teachings and practices so inconsequential as to be overturned so easily? Only a law or the canonical equivalent of a law can overturn a law. And Amoris, let alone a footnote in Amoris, is not a law or the canonical equivalent of a law.

There are several other observations I could offer on De Mattei’s column (e.g., Cdl. Coccopalmerio’s and Abp. Arrieta’s recent comments on this matter are themselves quite troubling, but they cannot be addressed here), so let me make a two of my own points.

1. Canon law is not the first defense of good order in the Church it is the last. As St. John Paul II put it, faith, grace, charisms, and especially charity are what allows the Church to pursue her mission in stability and efficiency. But where obfuscation (about the Lord’s clear teachings), or sin (helping others to avoid the Lord’s teachings), or amateurish novelties (instead of genuine pastoral skill), or self-centeredness (instead of love for others and what is ultimately best for them) infiltrate the Church, then, yes, canon law must be invoked as the final barrier to pastoral disarray approaching ecclesial catastrophe. Let me be clear: I am immensely glad that the law is here, but the fact that we are lately having to rely on law almost exclusively to defend crucial Church teachings is a sign of serious, deeper problems.

2. I do not know or care whether the ambiguities in Amoris regarding expectation for those seeking holy Communion were put there purposely by the pope or appeared there because of the incompetence of his drafters. I only know those ambiguities are there and that (a) they are not per se heretical, but (b) they have allowed others to claim papal cover for local policies that do spurn the force of Canon 915 and that do betray the sacramental, moral, and ecclesiological values behind the law. 

Meanwhile people who, while responding to real problems in Amoris, also pronounce the evisceration of Canon 915 at the pope’s hands (as opposed to what that law has suffered from others), are abandoning the one thing that, in this Valley of Tears, still clearly stands against the practical abandonment of several very important doctrinal values.


Some remarks on the de Mattei interview

Italian historian Professor Roberto de Mattei was interviewed over at OnePeterFive. The professor musters some evidence for his interpretation of recent ecclesiastical events but some alternatives to his interpretations seem reasonable, too. I’ll mention a few here.

De Mattei: “The present crisis in the Church did not originate with Pope Francis, and it is not focused in one single person; rather, it dates back to the Second Vatican Council, and, going back even further, to the Modernist Crisis [of the early twentieth century]”.

Perhaps that came out wrongly, but it is disconcerting to see the Second Vatican Council, an ecumenical council of the Catholic Church, listed alongside Modernism, a pernicious heresy, as if both could have been contributors to our present woes. Ignorance, even betrayal, of conciliar teachings by many of those responsible for its implementation is not the fault of a council, and an ecumenical council should not be listed alongside a heresy as a possible source of disaster.

De Mattei: “The fact that the guidelines of the Argentine bishops and the approval of the Pope have been published in AAS has made it official that ‘no other interpretations are possible’ of Amoris Laetitia other than that of the Argentine bishops, which authorizes communion to be given to those divorced and remarried people who are in an objective state of mortal sin. The letter was private, but the publication in AAS transforms the position of Pope Francis into an act of the Magisterium.”

This is simply wrong, and at several levels.

First, content and authorship of ecclesiastical assertions are crucial—crucial—in assessing what counts, and what does not count, as “magisterial”.

At the risk of over-simplifying, the great majority of “magisterial” assertions convey doctrine not discipline (however much disciplinary provisions might serve doctrinal values, they themselves are rarely doctrinal—thus ‘magisterial’—in nature). Now, the Buenos Aires directives do offer some doctrinal assertions (mostly aspirational, vague, and excessively wordy) that in my view are either sound or at least cannot be proven as heterodox, and they offer some disciplinary points that, again, are either sound or do not directly contradict Canon 915 (see below).

Second, the publication in the Acta Apostolicae Sedis of a dicastery official’s memo about what a pope apparently told him about one of that pope’s letters to a group of bishops concerning a document that the bishops had written does not transform said memo or pope’s letter or bishops’ statement into “magisterial acts” no matter what labels might later be attached to them. In the interest of time, let’s just focus on the weight to be accorded the Argentine’s document itself.

Episcopal conferences cannot issue doctrinal statements unless such statements are “unanimously approved by the bishops who are members [of the national episcopal conference], or receive the recognitio of the Apostolic See if approved in plenary assembly by at least two thirds of the Bishops belonging to the Conference and having a deliberative vote.” John Paul II, ap. con. Apostolos Suos (1998) Comp. Norm 1, emph. added. The “Bishops of the Buenos Aires Pastoral Region”, authors of the Buenos Aires directives, are not the Argentine episcopal conference.

Moreover, sub-groupings of episcopal conferences cannot, under any circumstances, carry out acts of “authentic magisterium”, as John Paul II made clear in Apostolos, Comp. Norm 2: “No body of the Episcopal Conference, outside of the plenary assembly, has the power to carry out acts of authentic magisterium. The Episcopal Conference cannot grant such power to its Commissions or other bodies set up by it.”

I see, in other words, no “magisterial act” from an episcopal conference that could be ‘re-magisterialized’ in the first place or ‘magisterialized’ by the several-steps-removed publication process outlined above.

(By the way, this whole notion that publication in the Acta Apostolicae Sedis means something is “magisterial” and/or that basically nothing is ecclesiastically important unless it appears in the AAS will not survive two minutes’ reflection. Great swaths of material in the AAS have nothing whatsoever to do with magisterium, and boatloads of, say, John Paul II’s magisterium never appeared in the AAS (e.g., most of his Wednesday addresses on Theology of the Body); moreover, some important Church documents took effect in virtue of their publication in, say, L’Osservatore Romano (e.g., CDF penal decree of 2008 against attempting the ordination of women) or even in Roman academic journals (the tribunal instruction Dignitas connubii of 2005). So, yes, the AAS is important (Canon 8), but it is not the only show in Rome.)

Third, no matter what theory might find some kind of ‘magisterium’ operative in the Argentine’s document or in the pope’s endorsement of it, the simple fact remains that neither the Argentines nor the pope has ever directly said that civilly-divorced-and-remarried Catholics may (outside of the narrow application of the internal forum option known as “brother-sister”) be administered holy Communion in disregard of the divinely-rooted and pontifically legislated prohibition against such administration set forth in, among many other places, 1983 CIC 915 and CCEO 712. As far as I can see, the Buenos Aires directives never quite confirm what Amoris laetitia never quite says. It is a situation ripe, of course, for exploitation by those bent on avoiding, among other things, the implications of Our Lord’s teaching on the permanence of marriage, which brings me to my next point.

De Mattei: “The line of thinking of those cardinals, bishops, and theologians, [and canon lawyers] who maintain that it is possible to interpret Amoris Laetitia in continuity with Familiaris Consortio 84 and other documents of the Magisterium has been reduced to dust.”

I strongly disagree with de Mattei’s bleak assessment of the state of this debate and I say that as one who has steadily opposed the implementations of Amoris being wrought by, say the bishops of Malta and German episcopal conference committee. The point, as I see it, is not whether these bishops are implementing Francis’s “desires” (I have no window into the pope’s intentions, so how would I know?), the question is whether they are applying his words, and I say, they are not applying his actual words.

De Mattei: “Amoris Laetitia is a document which serves as a litmus test: it must be either accepted or rejected in toto.”

How can anyone make such a stark, all-or-nothing claim about a +50,000 word document so replete with pastoral insights, tiresome platitudes, scholarly applications and embarrassing misappropriations, and clever insights, as is Amoris?

Reasonable minds should “examine everything, and keep what is good.”

I agree, most Catholic theologians need more training in canon law (at least before they propound on it)

I applaud Massimo Faggioli’s recognition that “canon law is clearly an important part of the Catholic tradition” and join him in urging that “the curricula of Catholic theologians should include more” canon law. His own Commonweal essay on what he thinks are the canonical implications of the appearance of Pope Francis’ letter to the Argentine bishops in the Acta Apostolicae Sedis illustrates several of the ways that non-canonists can stumble over canonical issues while setting those faulty views before the public. Let me just comment on some of Faggioli’s assertions.

1. Faggioli: “Changes in canon law don’t come quickly, as the ongoing reception of Amoris Laetitia since its promulgation in April 2016 is currently reminding us.” Well, sure, especially when papal documents do not change, or even mention, the canonical norms at issue. It is not easy to change a canon by not talking about it.

2. Faggioli: “The news this week that Pope Francis has officially recognized the interpretation of Chapter VIII of the exhortation put forth by Argentine bishops indicates that change does nevertheless occur.” But this is old news; Francis “recognized” the Argentine document when he signed his name to a letter endorsing their document last year. The appearance of Francis’ letter in the Acta Apostolicae Sedis adds nothing to his act of last year.

3. The Argentine document “includes guidelines noting that there is no such thing as ‘unrestricted access to the sacraments,’ but that in some situations a process of discernment ‘opens the possibility’ to receipt of communion for divorced and remarried Catholics.” No one, I mean no one, ever seriously thought that a right to “unrestricted access to the sacraments” existed, and the constantly repeated, reassuring claims that such a danger has been firmly ruled out are vacuous.

4. Notwithstanding Faggioli’s exaggerated read of its significance, Francis’ placing the label “magisterial” on his letter to the Argentines (rather as he dubbed his recent remarks on the liturgical renewal movement as “magisterial”) is indeed unusual. I can think of several unquestionably magisterial statements being made by, say, Benedict XVI or St. John Paul II, but off hand, I do not recall either of them ever labeling their statements as “magisterial”. Papal statements, assessed in the light of criteria that Church law and tradition apply in such cases, either qualify as magisterial (a term whose import, by the way, is routinely exaggerated in common parlance) or they don’t so qualify. Labels attached do not, in my opinion, modify the nature of the assertion, but they do contribute to the mistaken view that papal “magisterium” is something that can be lightly turned on and off.

5. Of course, much of Faggioli’s (and others’) excited thinking about Amoris, the Argentine’s document, and the pope’s endorsement of it, assumes that Francis et al. have repudiated—to make a long story short—Canon 915 and the unbroken, divinely rooted, tradition behind it. To be sure, one could read Amoris and its progeny as doing exactly that, for the words in Amoris support that interpretation. But they also support exactly the opposite interpretation, namely, they can be read so that divorced-and-remarried Catholics are, as they have unquestionably always been, included among those regarded by Canon 915 as obstinately persevering in manifest grave sin (as each of those terms has been understood over the centuries, understandings that might not coincide exactly with how non-canonists might understand them) and thus are (outside of one well-defined situation) ineligible to present themselves for holy Communion thereby occasioning in ministers of that most august Sacrament the duty to withhold the Eucharist if such persons do present themselves. The plausibility of diametrically opposed interpretations of the text of Amoris is precisely why, in my view, the Dubia posed by four cardinals warrant a direct, clear, and authoritative response.

6. Faggioli’s invocation of the famous 1875 letter of Bl Pius IX to the German bishops endorsing their view of papal primacy against extra-ecclesial attacks, as if it were remotely comparable to Francis’ endorsement of the Argentine document, beggars belief.

I invite interested persons to examine an English translation of the German bishops’ statement, Pius’ response letter, and his later consistorial remarks on it, as found in Donald Logan, “The 1875 statement of the German bishops on episcopal powers”, The Jurist 21 (1961) 285-295, and ask themselves whether the detail, clarity, and precision used by the German bishops in describing the matters before them are in any way comparable to the “endlessly malleable considerations phrased in verbiage redolent of the 1970s” employed, as I have said, by the Argentines in addressing their topic. I note that Pius’ endorsement of the German document, undoubtedly sufficient to make their language his, was not, to my knowledge, ever labeled “magisterial” by that pope. It didn’t need to be so labeled, for magisterial statements speak magisterially according to their own nature.

7. Faggioli’s comments on “desuetude” (a canonical mechanism for letting obsolete laws fall from force) are far too superficial for him to be able to appeal to desuetude as a pretext to disregard the undoubted meaning of Canon 915. But to his comment that, from his “personal experience, the focus on canon 915 in the U.S. Catholic Church is an exception”, I would say two things: first, God bless the USA for still having enough well formed and committed Catholics to be aware that Canon 915 exists and that it is being disregarded by many to their spiritual detriment; second, my personal experience indicates that Canon 915 is not being discussed in some regions of the world because Catholics in those places have no doubt but that Canon 915 applies to, among others, divorced-and-remarried Catholics. No one debates what everyone acknowledges.

8. Faggioli writes: “The real issue is that there is and will be probably a situation in which the issue of allowing, in some circumstances, remarried divorcees to receive communion will receive different treatments in different parts of the world—even perhaps depending on the particular country, or diocese, or area of the diocese.”  Seriously? And this is a good thing, that, say, divorced-and-remarried Catholics in, I dunno, the Downriver Vicariate of the AOD are prohibited holy Communion while those in the Monroe Vicariate are permitted to receive? Does this make even the slightest pastoral or doctrinal sense?

Even to suggest such a situation—one wherein, as George Weigel put it, what is “a grave sin in Poland is a source of grace two kilometers across the border in Germany”—as being in any way acceptable suggests a lack of understanding of many things besides just canon law. Still, a better understanding of canon law might help forestall such bizarre scenarios before they gain traction.

And so end as I began, by recommending with Faggioli that theologians receive more education in canon law, at least before venturing too many opinions on it.