The news that Pope Francis is establishing a new tribunal within the Congregation for the Doctrine of the Faith to discipline bishops over their handling of sexual offenses is very welcome news indeed. This, I happily confess, is one of several reforms to ecclesial structures I did not expect to see under this pope. I mistakenly pegged Francis early on as having little or no interest in ecclesiology.
Like many academics, I assumed that those who have not written some learned treatise about a particular topic are unlikely to take action on it. Francis has—as far as I know—never written anything about ecclesiology. Rather, it was Pope Benedict XVI who had been writing extensively on changes to Catholic ecclesial structures for forty years at the time of his election, and I fully expected to see many of those changes implemented by him as pope. But apart from the abortive decision in 2006 to abandon the title “Patriarch of the West,” very little happened. When he retired in 2013, I despaired that we had lost our best chance for this and other important reforms.
But it is another common academic and bureaucratic mistake to assume that writing about something is always the precursor to taking action on it. Francis, in fact, has repeatedly shown that one can act decisively and well without having written much if anything beforehand about matters. There are, so far, several actions he has taken in this short pontificate dealing with reform of ecclesial structures, but the most recent one is, to date, the most significant.
The creation of disciplinary mechanisms for bishops who failed in their duty to deal with sexual abuse is something I have written and lectured about in several places for nearly a decade now. In earlier works I attempted to show both that the synodal structures of the Orthodox Churches may have something to teach Catholics in this regard and, further, that extra-papal processes of election, discipline, and deposition of bad bishops are in fact anchored in centuries of Catholic history—as various historians such as Brian Daley, I.S. Robinson, Eamon Duffy, and Kathleen Cushing have shown.
It is important to stress the history lest some Catholics think this tribunal is one more new-fangled idea Francis has ginned up. On the contrary, he perfectly illustrates what the outstanding Dominican theologian Yves Congar (in his 1950 book Vrai et Fausse Réforme dans l’Eglise) called “the great law of Catholic reform” which consists of re-immersing oneself in Tradition and re-discovering there forgotten treasures.
Disciplinary measures to root out sexual sins and crimes (even those committed by clerics with willing and consensual adults) are a part of universal Church tradition both East and West, with canons governing these offenses being very clear, very strict, and very ancient. Mechanisms for enacting such discipline have varied across time and place—as they do today. It is important to stress the diversity of mechanisms to allay the anxieties of certain Eastern Orthodox Christians who may see this new tribunal in the CDF as one more interference of an omnivorous papal curia desperate to micromanage bishops. On the contrary, I would appeal to my fellow Eastern Christians to see this as one more recent attempt by the Latin Church, however haltingly, to recover parts of practices from the past still operative, in various forms, in Eastern Churches today.
This tribunal, to be sure, will not look exactly like comparable Orthodox ones, but then the Orthodox themselves are not all carbon copies of each other. As my book Orthodoxy and the Roman Papacy shows in detail, Orthodox practices and procedures for the election, discipline, and deposition of bishops vary greatly even today.
Before considering the particulars of this proposed new tribunal, a few other points need stressing.
First, no system is perfect. Each system is only as good as the people running it. At least one Orthodox Church I admire has detailed, deeply theologically informed statutes and synodal structures (obviously the product of first-rate academic minds!), but this did not prevent them from being hamstrung by primates and bishops engaged in sexual shenanigans and financial misconduct. Only with great difficulty and after many years of scandal—including the loss of significant money and members—did the bishops finally muster the courage to take action against their brothers. Such action against one’s brothers in the episcopate is difficult if the bishops themselves are known to be compromised by their own faults. In this regard, Pope Francis will have to be especially scrupulous in vetting anybody on the tribunal to make sure that such bishops have impeccable histories that nobody can use against them.
Even when the bishops are not so compromised it is also difficult for the very human reason that members of select and elite groups often have overly generous sympathy for each other because only they know the full costs and struggles involved in that particular office. To counteract this “empathy ex officio” as it were, there is no serious reason why at least a minority of the members on the tribunal could not be, say, consecrated female religious or lay people, or at the very least priests and deacons.
It has not been customary, of course, to appoint female religious or laity to membership in most Roman congregations, especially those exercising “jurisdiction.” The usual argument is that to exercise an office, especially one of jurisdiction in the Church, requires one to be in holy orders. But there is no serious or compelling theological reason for that requirement. After all, in common law trials, we do not require members of a jury to be judges or lawyers. And professional disciplinary and review bodies I have served on always include outsiders precisely to guard against an overly clubby atmosphere protecting undeserving people.
Nothing in the provisions for this new tribunal would seem to require that it be composed exclusively of those in holy orders. But it must be said that the five-fold provisions for this tribunal are very broad and vague, and that is no doubt deliberate. Apart from saying such a tribunal will be charged with judging “crimes of the abuse of office when connected to the abuse of minors” and that such a tribunal will be within the purview of the CDF, with new personnel (including a secretary) and new monies to fund it, there is only one other thing of note. The fifth point suggests that “the Holy Father establish a five-year period for further development of these proposals and for completing a formal evaluation of their effectiveness.” That is a very sound idea, and shows commendable wisdom and flexibility. Ecclesial structures are not cast in stone, and especially when dealing with such sensitive matters, a willingness to enact provisional procedures and then to evaluate them, making changes where necessary, must surely be hailed by everyone as sound and sensible—what management gurus everywhere today call “best practices.”
Predictably, the media has already found certain critics to say this new tribunal will do nothing. That, as I noted above, is always a risk: tribunals are only as good as those who compose them and are willing to implement their verdicts. But it is too soon, and too unfair, to write off the tribunal as “the same old thing.”
The Church has not survived two millennia by refusing to change what can be changed. In a famously purple passage (from his lengthy review of the massive Teutonic tome History of the Popes by Leopold von Ranke), the English Whig historian T.B. Macaulay said of the papacy that “the proudest royal houses are but of yesterday, when compared with the line of the Supreme Pontiffs….The Papacy remains, not in decay, not a mere antique, but full of life and youthful vigour…. She saw the commencement of all the governments and of all the ecclesiastical establishments that now exist in the world; and we feel no assurance that she is not destined to see the end of them all.”
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