The Dispatch: More from CWR...

On Fr. Nichols’ recent remarks on the papacy and canon law

A key check against papal freedom turning into license, albeit a check harder to pin down than are neatly drafted canons, is “Tradition”.

Dominican theologian Fr. Aidan Nichols needs no introduction to readers of this blog and it suffices to say that, when a priest of Nichols’ credentials urges development of a canonical procedure to correct popes who—how exactly to put this?—leave confusion in their wake, people are going to take notice. I have seen only news reports of Nichols’ address (not the speech itself), but a few comments occur to me that won’t come as a surprise to Nichols but that might help inform others’ reactions to them.

First, while most provisions in the Code of Canon Law are of human (albeit, ecclesiastical, usually pontifical) origin, implying the possibility of changes in them in accord with circumstances, some canons rest on divine law foundations and are not, therefore, so easily amended—however appealing such changes might seem to be. Such is the case, I suggest, with Canon 331 on the full and supreme authority of the Roman Pontiff and Canon 1404 on the immunity of the Holy See from judgment (canonical or civil). These canons (and others besides, say, Canon 1372) serve the decision of Our Lord to leave Peter and his successors basically free to act as they see fit in guiding the Church, meaning that such canons, operating in support of a divinely-sanctioned freedom, are not liable to repeal if popes misuse that freedom. All of this Nichols takes for granted, of course.

Nichols also knows, however, that Petrine freedom has limits, that it is not something bestowed in order to make possible, say, papal plundering of Church property or dalliances with dangerous theological theories (both of which have happened in the past), but rather, it serves the Church’s need for, and the faithful’s right to, certainty and continuity in Catholicism’s witness to the teachings of Jesus. Canon law read as a whole (and not cherry-picked to get the results one hopes for) operates in service to all of doctrine (and not just the parts that sound convenient to this generation or that).

Canonical evidence of one such limitation on papal power is found in, for example, Canon 336 which recognizes the college of bishops (properly understood) as also a subject of full and supreme power in the Church—a mystery, to be sure, how one Church can have two subjects of full and supreme power, but nevertheless an ecclesiological given to be reckoned with, not ignored. Nichols might, for all I know, have referenced Canon 336 in his original speech; if he did not, he certainly could have done so.

But another check against this papal freedom turning into license, albeit a check harder to pin down than are neatly drafted canons, is “Tradition”.

Tradition, not canon law, holds the Church to accept a host of truths, for example, that Jesus rose from the dead, that canonized saints are in heaven, and that contraception between married couples is objectively gravely wrong, such that a pope who suddenly challenged the reality of the Resurrection, the status of one duly canonized, or the gravity of conjugal contraception—or who winked at others doing such things—would stand in urgent need of prayers and would be a proper object for some kind of correction, perhaps such correction as is apparently envisioned by Cdl. Burke and others.

But beyond even this—and moving back to what Nichols’ point seemed to be—Tradition has some even more startling things to say about popes who might fall into heresy. To summarize a long story already shortened here, the Church is not defenseless against heresy from popes. Under certain rare circumstances, one is talking, according to several weighty authors, about the loss of pontifical office itself.

There are, of course, several practical problems with Nichols’ proposal for changes to canon law (some of which problems he noted in the reported version of his remarks) and to which I would add a simple one: popes are the Legislator of canon law, and the chances of any legislator writing a law that could be used against him are slim. But, if the commentators cited in my earlier blog are really saying what they seem to be saying, we might not need new canon laws to deal with the problem.

Tradition might already have a solution.

(This post originally appeared on the “In the Light of the Law” blog and is reprinted here by kind permission of Dr. Peters.)

About Edward N. Peters 75 Articles
Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the "In the Light of the Law" site.

14 Comments

  1. It’s difficult to see how any changes could be made without violating the principle that the Pope answers to no one. If the Pope were to come out and say something obviously heretical, such as Jesus was not divine, that is one thing. If the Pope were to come out and maintain that his new development is merely a development of doctrine, and that he had not changed Catholic doctrine at all, that would be something entirely different.

    It would be difficult to remove a Pope in the first example. It would be near impossible to remove a Pope in the second, simply because there were be differences of opinion among all the cardinals and bishops.

    I think we are left with the conclusion that an upsetting, confusing and heresy approaching Pope is untouchable. Better to leave him in place, suffer his presence, ignore him as much as possible, and then undo him in the next Papacy.

    • Perhaps a solution for this problem can be found if we assume that the legal order of the Church (i.e. Canon Law) is not the ultimate line of defense against the possible danger of a heretical Pope. The Church is more than a legal reality because at its deepest level she is the Body of Christ. So I suppose that if the Church has to deal with the actions of an heritical Pope, she will do so in accordance with this deepest reality. Since the Pope cannot be judged, this reaction must be beyond and above the Law, in a similar manner as the reaction to a constitutional crisis in a state goes beyond the Law and must be improvised. Sometimes, in a crisis, brave men have simply to act, in particular brave men in high positions, and act courageously and defiantly by taking recourse to unusual means, and organize a rebellion.

      • Absolutely correct Ronald. Men of faith must act in favor of Christ and the truth and not be disarmed and fearful of abrogating canons. Meant to safeguard the truth not suppress it. The canons are limited. They are not the Gospels some make them out to be.

    • That will not help the young – nor the older faithful who depend more on faithful popes, bishops and clergy – all of whom are vulnerable to the manipulative actions of Team Francis and his Mafiosi electioneers.

  2. Although discussed previously the issue of deposing a pope remains unresolved. Unless as Samton states the Pontiff makes a clear consistent denial of the faith such as repudiating Christ’s divinity. That is highly unlikely. The second option regarding new doctrine posed in Amoris Laetitia that repudiates settled doctrine, which is likely Cardinal Burke’s approach is as Samton suggests near impossible to prove. The reason for the ambiguities and the Pontiff’s non committal. If a team of NY lawyers can probably convince a jury that an Attila the Hun sitting in the docket is really St Francis of Assisi the Pontiff will survive. Unless it seems Cardinal Burke is certain that refusal to respond to argument claiming error is sufficient. That refusal is tacit admission. That applies in civil law. Even there we have the right to remain silent. Take the Fifth. Can such an argument in lieu of a canonical right to remain silent be made by Cardinal Burke, or Fr Aidan Nichols in context of canon law? Insofar as 336 the college of bishops are subject to supreme power “together with its head”. What if the head refuses to participate [if he participates he must comply] in a legal action by the college? Maybe that where Burke and or Nichols are going.

    • A correction to my comment. Cardinal Burke is seeking to issue a letter of correction, not an action to depose the Pontiff. As I believe is the intent of Fr Nichols as presented in this article. There remains the question where this will lead, and the question raised in the article whether canon law can be revised. Would exceptional circumstances warrant a revision based on justice?

  3. Where does that leave the Holy Spirit? Guarantor of the Deposit of Faith….where has the Gates of Hell prevailed against His Church?

  4. If a Paul was inspired by the Spirit to oppose Peter to his face, and if the same Spirit inspired “get thee behind me, Satan!”, why not?

    ‘…canons operating in support of a divinely-sanctioned freedom are not liable to repeal if popes misuse that freedom.’

    A repeal as such is not what’s being ‘trail-ballooned’ but additions to existing canon law which ‘respect’ the ‘integrity’ of those canons. And it appears that nothing in canons 331, 336, 1372 and 1404 present a problem in exploring what Fr. Aidan Nichols has suggested, viz., a formal procedure in canon law for calling out error by one who occupIED the Chair of Peter. (The above canons apply to every *reigning* Pontiff and not to a previous one.)

    For instance, Can 331: ‘…By virtue of his office (the Roman Pontiff) possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.’

    The reigning Pontiff can certainly ask the College of Bishops to call out ‘doctrinal waywardness or simple negligence’ by a *previous* occupant of the Chair (and thus serve as a check which can hopefully dissuade any tendencies in that direction).
    If the Pope couldn’t do that, what’s the point of saying he “possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely”?
    This power is of course to be prayerfully, judiciously and prudently exercised lest it turn out to be an instance of ‘sawing off the branch on which you are sitting’.

    ‘…the Church is not defenseless against heresy from popes. Under certain rare circumstances, one is talking, according to several weighty authors, about the loss of pontifical office itself….’

    Yes, but in that case, a declaration of the office having been lost would have to be made, and that can only be made by a subsequent Pope / College of Bishops headed by a subsequent Pope.

    ‘…we might not need new canon laws to deal with the problem. Tradition might already have a solution.’

    But the solution from Tradition – by Dr. Peters’ own admission – is “a check harder to pin down.”

    Ergo, why not attempt to ‘codify that Tradition’ through ‘neatly drafted canons’ which would take care of:
    (1) harder-to-pin-down areas and also
    (2) put some ‘teeth’ to things like Ch. IV, # 6 of Pastor aeternus > https://www.ewtn.com/faith/teachings/papae1.htm (i.e. that bit about ‘For the Holy Spirit was promised to the successors of Peter not so that they might, by his revelation, make known some new doctrine, but that, by his assistance, they might religiously guard and faithfully expound the revelation or deposit of faith transmitted by the apostles’)?

    The bonus would indeed, as Fr. Nichols speculates, ‘answer some “ecumenical anxieties” of Anglicans, Orthodox and others who fear that the pope has carte blanche to impose any teaching.’

    Many birds with one stone!

    Hence, if canon lawyers get to work and come up with ‘neat drafts’ which, after being mulled over by the Church, receive approbation by the current / future Pontiff, perhaps (~Acts 5:38b) that may be just what the Divine Physician ordered?!

    ‘…popes are the Legislator of canon law, and the chances of any legislator writing a law that could be used against him are slim.’

    Pessimistic. If a Benedict XVI can, while occupying the Chair, humbly affirm the following, one can certainly look forward in hope to a Cardinal Burke or Sarah – were either to be elected to the Papacy – making those chances anything but slim! (https://w2.vatican.va/content/benedict-xvi/en/homilies/2005/documents/hf_ben-xvi_hom_20050507_san-giovanni-laterano.html ) :
    ‘…The Pope is not an absolute monarch whose thoughts and desires are law. On the contrary: the Pope’s ministry is a guarantee of obedience to Christ and to his Word. He must not proclaim his own ideas, but rather constantly bind himself and the Church to obedience to God’s Word, in the face of every attempt to adapt it or water it down, and every form of opportunism…The Pope knows that in his important decisions, he is bound to the great community of faith of all times, to the binding interpretations that have developed throughout the Church’s pilgrimage. Thus, his power is not being above, but at the service of, the Word of God. It is incumbent upon him to ensure that this Word continues to be present in its greatness and to resound in its purity, so that it is not torn to pieces by continuous changes in usage.’

    • The problem is that if Canon law contains a method or procedure by which future Popes can overturn the acts of previous popes you are somewhat undercutting the authority of all Popes. You are virtually inviting a constant back and forth in Catholic teaching, where each new Pope undoes things his predecessor did. The mere presence of such provisions would be seized on by some to ridicule the whole idea of the Catholic papacy. Remember that Pope Francis has not really said anything that needs to be undone. It just needs to be clarified, and any future Pope can issue clarification on AL that makes clear it is to be interpreted consistent with the long tradition of Catholic teaching. Pope Francis has not stepped over the line, so all that is needed to correct is an exercise of already granted Papal Power. no new canon law sections are needed.

      • “Pope Francis has not really said anything that needs to be undone. It just needs to be clarified”. Samton you’re correct since the Pontiff has not presented a definitive doctrine. Therefore a formal correction [for example intended by Cardinal Burke] would need to prove a definitive doctrine in AL. Furthermore as you state in your first comment the “Pope answers to no one”. Canon 1404 The First See is judged by no one. That is the gist of Peters’ Article. Unless a new canon were added which seems nebulous for reasons given. However Cardinal Burke apparently believes a case can be made based on AL for a formal correction. Again with canon 1404 we have a vicious circle. I also agree the matter [ambiguity] may require interpretation in accord with Apostolic Tradition by a pontifical successor. The issue of great concern is can the Church wait while Apostasy continues. Will it be too late as practice becomes entrenched. Consequently if Cardinal Burke were to present a formal correction containing evidence of error, partly based on unwillingness by the Pontiff to correct it would have real value for the faithful. Despite it being devoid of formal authority. Others have argued that Cardinal Gerhard Mueller had the opportunity to do similar while still Prefect of the CDF. Although it would have had no formal authority it presumably would have had great impact. What you hold may in the end prove the better route. However it does not appear so due to the rapid jettisoning of settled moral doctrine within the Church.

      • While it may be true that the Pope has not “steeped over the line”, I think that it is true that he has brought us right up to the line in a very ambiguous way. This has allowed those under him to draw their own conclusions. We know that several bishops are drawing conclusions that go directly against Catholic doctrine. With no formal correction coming from the Pope it would be only logical to assume that that he is in agreement with the different interpretations of his writings. I, for one, have to believe that he knows what he is doing. He knows he can’t change doctrine directly so he is doing it by stealth.

      • ‘The problem is that if Canon law contains a method or procedure by which future Popes can overturn the acts of previous popes you are somewhat undercutting the authority of all Popes.’
        Not necessarily. By Dr. Peters’ admission, Tradition itself already contains a check against papal freedom and ‘might already have a solution’ to deal with the problem. If so, what is wrong in codifying that part of Tradition and ‘tightening loose ends’ to address ‘harder-to-pin-down areas’? If it is held that a formal canon law process can undercut the authority of all Popes, does it imply that Tradition’s existing check against papal freedom also does the same?

        ‘You are virtually inviting a constant back and forth in Catholic teaching, where each new Pope undoes things his predecessor did.’
        Again, not necessarily. As noted before, Tradition already ‘contains a check against papal freedom’ > but has that actually resulted in a ‘constant back and forth’? It is only in the rare instance that things get out of hand and a correction is needed that the process need be resorted to.

        ‘The mere presence of such provisions would be seized on by some to ridicule the whole idea of the Catholic papacy.’
        Catechesis and apologetics can counter that.

        As noted earlier, any power codified from Tradition and formally recognized in canon law is to be prayerfully, judiciously and prudently exercised *lest it turn out to be an instance of ‘sawing off the branch on which you are sitting’.*

        Perhaps an additional check can be for the process to be triggered by a reigning Pontiff (in respect of a predecessor) but the decision of correction is to be handed out not by the Pontiff alone but by the Pontiff together with the College of Bishops (in a nod to canon 336).

        ‘Remember that Pope Francis has not really said anything that needs to be undone. It just needs to be clarified, and any future Pope can issue clarification…’
        Sure. This is not about the nitty gritty of what Pope Francis has said. It is about whether new canon laws are needed in principle to call out ‘doctrinal waywardness or simple negligence’ and if there is any problem in codifying them from existing Tradition.

  5. While it may be true that the Pope has not “stepped over the line”, I think that it is true that he has brought us right up to the line in a very ambiguous way. This has allowed those under him to draw their own conclusions. We know that several bishops are drawing conclusions that go directly against Catholic doctrine. With no formal correction coming from the Pope it would be only logical to assume that that he is in agreement with the different interpretations of his writings. I, for one, have to believe that he knows what he is doing. He knows he can’t change doctrine directly so he is doing it by stealth.

2 Trackbacks / Pingbacks

  1. On Fr. Nichols’ recent remarks on the papacy and canon law - Catholic Daily
  2. MONDAY CATHOLICA EDITION | Big Pulpit

Leave a Reply

Your email address will not be published.

All comments posted at Catholic World Report are moderated. While vigorous debate is welcome and encouraged, please note that in the interest of maintaining a civilized and helpful level of discussion, comments containing obscene language or personal attacks—or those that are deemed by the editors to be needlessly combative or inflammatory—will not be published. Thank you.


*