Editor’s note: The following essay is the first of two pieces by Father Twomey about the continued controversy over Amoris Laetitia.
The controversy surrounding Amoris Laetitia continues unabated. Throughout the world, bishops are issuing at times radically contradictory guidelines to their flocks on the implementation of this apostolic exhortation, the end-product of two Synods of Bishops. The dubia submitted by the four cardinals to the Pope and the prefect of the CDF remain unanswered.
What has gone wrong?
Ever since the publication of Humanae Vitae, the Church has been, it seems to me, in a quasi-material schism (if one can use such a term), divided between those relatively few theologians who accepted HV and the majority (at least in the northern hemisphere) who rejected it—and who claimed to be “mainstream.” The teaching of HV was about two interrelated levels of discourse: sexual morality (quite obviously) and fundamental moral theology (the preserve of the expert, as it were, though it profoundly affects all). In turn, both discourses resonate massively with those powerful cultural currents—such as the 1960s’ sexual revolution and moral relativism—which characterize our times. It is those cultural currents that give a certain plausibility to those who rejected HV .
With regard to the first level, that of sexual ethics, it seems to me that with AL the Pope has in effect brought the two sides of the existential “schism” together in his rich elaboration of the nature of conjugal love in Chapters Four and Five, which Francis himself considers to be the most important chapters of his apostolic exhortation. He quotes or reiterates the essential teaching of HV five times and uses many of the insights of St. John Paul II’s theology of the body. His synthesis here, I think, does indeed amount to a genuine evolution of doctrine with its emphasis on the subjective level and, especially, the recovery of the significance of love as a passion inspired by St. Thomas Aquinas (# 142-162). Both dissenting and non-dissenting theologians can benefit from these central texts.
What is not so impressive is the total silence on the virtue of chastity, apart from one innocuous mention in #206, without which the specific teaching of HV cannot be fully appreciated. Indeed to speak of love as a passion, as AL does so eloquently, implies at the very least the need to moderate and channel passion, which is the role of the virtue of chastity. The virtue of chastity, in turn, is measured by the virtue of justice: what is owed to the other (including third parties) involved in a sexual relationship.
Where does AL stand in relation to the second level, that of fundamental moral theology? One bishop, who does not claim to be a moral theologian, perceptively observed that, by swinging the pendulum back to the subject pole, the Pope is taking an approach which in our milieu has been in vogue since 1968. Indeed, this approach is redolent of what became known in moral theology as proportionalism, at the core of which is the rejection of intrinsically wrong actions or, in other words, non-negotiable, absolute moral norms. The possibility of admitting the divorced and remarried to the sacraments in certain, severely restricted circumstances does, at first glance, appear to echo proportionalism. And this, it would seem, it the primary concern of the four cardinals as well as lay theologians such as John Finnis, Germain Grisez, and Robert Spaemann, to mention but a few.
Another echo of proportionalism is the description of the Church’s teaching on marriage as an ideal. When I first encountered this more than 30 years ago in my students in Maynooth, I fought many a battle to convince them that in morals we speak not about ideals but norms. Ideals are by implication assumed to be practically unattainable. Norms determine what is normative or even normal; they are the standards by which to judge the moral quality of our actions. It could be argued that the author of Amoris Laetitia is aware of this distinction, since, although the text often speaks of the “ideal” we should have in mind, on one occasion “excessive idealization” (#36) is expressly denounced. Perhaps it is more correct to say that “ideal” in this context is to be understood in terms of a spiritual goal, and not some (non-existent) “ideal marriage” per se.
It is long accepted that the pre-Vatican II moral theology of the manualist tradition was characterized by a legalistic mindset. What is not always recognized is that both those who initially rejected the fundamental moral theological teaching of HV (#14) and those who defended it shared in fact the same fundamentally legalistic mindset. Veritatis Splendor attempted (authoritatively and convincingly) to resolve that debate, but the debate itself was based on a legalistic approach to morality. With the publication of the Catechism, thanks primarily to the influence of the Dominican moral theologian Father Servais Pinckaers, the Church recovered a radically different approach, that of St. Thomas and the whole classical tradition. Virtue now is—or should be—the overarching context for moral discourse (intrinsic to which are also moral norms and rules but now understood in the context of the process of becoming virtuous). But this paradigm shift, it seems, has not yet, on the whole, seeped into the consciousness of many theologians and bishops. Has the adoption of this new approach to morality (the language of virtue) influenced Amoris Laetitia?
The matter of casuistry
Casuistry is one of the most salient traits of a legalistic approach to moral theology—and it marked the controversy surrounding the two Synods on the Family from the very start. Cardinal Kasper’s address to the consistory in February 2014 set the (legalistic) parameters for the debate. That address culminated in two difficult moral casus affecting the divorced and remarried. In other words, the cardinal was engaging in casuistry. It is surely significant that there is no mention of such specific cases in the apostolic exhortation, though there are echoes of them in the footnotes. Indeed, Pope Francis states that “it is understandable that neither the Synod nor this Exhortation could be expected to provide a new set of general rules [Spanish: una nueva normative general; Italian: nuova normativa generale] canonical in nature and applicable to all cases” (#300).
Nonetheless, the term “case” or “cases” occurs on a number of occasions, above all in Chapter 8 (# 79, 241, 294, 298,300, 302, 305), admittedly without mentioning any specific casus in detail.  Moreover, by speaking about “particular situations” (#304) or “exceptional situations” (#307) the text would appear to be simply using other terms (preferred by situation ethicists) for the traditional term of casus. And yet, casuistry is rejected as “intolerable” in the first reference (#304), while relativism is explicitly rejected in the second (#307). 
Of note is the fact that three times in Chapter 8 (#300 and 302) the term “consequences” is used, a term that is peculiar to the school of proportionalism, which is a type of consequentialism. Characteristic of this moral theology is the denial of moral absolutes, intrinsically wrong acts; instead it is claimed that moral actions receive their moral quality from the foreseen consequences of an action (the calculus of which is thought to define the moral weight to be given to an action). Proportionalists claim that, “in exceptional circumstances,” one may, for sufficient reasons unique to the acting subject, do something that would otherwise be termed immoral or wrong and so, generally speaking, should be avoided.
Pope Francis has left us in no doubt as to his attitude to casuistry, which he castigated in no uncertain terms in one of his daily meditations at Mass (May 20, 2016). But he seems to be blissfully unaware of the fundamentally casuistic approach of those, who like Cardinal Kasper, campaign to admit remarried divorcees to Communion. One key text for a proper interpretation of compassion in AL is, it seems to me, the following: “The answers given to the pre-synodal consultation showed that most people in difficult or critical situations do not seek pastoral assistance, since they do not find it sympathetic, realistic or concerned for individual cases. This should spur us to try to approach marriage crises with greater sensitivity to their burden of hurt and anxiety” (#234).
That Our Lord’s approach to sinners should be our model today as pastors, is, I believe, the main message of what is truly an exhortation—and it is to be welcomed. But it should also be noted that the emotive drawing power of proportionalist proponents was the claim that their theology was the compassionate option, when compassion amounted to little more than indulgence to human weakness. Perhaps the most encouraging result of the controversies surrounding the Synods and AL is that those in “irregular” situations who seek help can now expect to find a more sympathetic ear when they approach a confessor.
The trouble is that some interpreters of Chapter 8, including prominent bishops, encourage them to expect more.
The avoidance of any explicit mention of Kasper’s two case studies could be understood as an attempt to move away from legalism. That would seem to be the main thrust of the text’s explicit rejection of casuistry (reiterated by the Pope in his address to the General Congregation of the Jesuits on October 24, 2016). More significant is the stress on the fact that we are viatores journeying on the way to perfection, to what AL calls the ideal (used here, I think, in the sense of the goal of our spiritual lives). All of these are associated with the discourse of virtue. Even more important is the Pope’s stress on the working of God’s grace in the hearts of all. (The term grace occurs some 54 times.) In other words, there is recognition of the need for continuing conversion. The recovery of virtue as the language of ethical discourse does introduce a more dynamic understanding of morality.
What is often ignored is that the recovery of virtue should also help to recover the centrality of the New Law of Christ for moral reflection and for living, as we know from St. Thomas’ treatment of virtue. By the New Law is meant our participation in the divine life, theōsis. We are all, without exception, called to holiness—and, it could be added, heroic virtue—and, thanks to the sacraments and the life of grace which makes us sharers in the divine life, are capable of attaining it.  Al refers four times in passing to sanctification (#301, 305, 316) but does not develop the theme.
The real question is: do the recommendations of Chapter 8 aid or do they undermine the universal call to holiness?
Communion and conscience
With regard to what one commentator called the “objective” storm-center of the debate, i.e., the admission of remarried divorcees to Communion in rare situations, Church tradition is unambiguous that there is something non-negotiable on the need for (unannulled) divorced and remarried couples to live in continence or at least to strive to live thus, if they are to receive the sacraments. That nuance (the decision to strive to live in continence) is of great pastoral significance. It will involve a difficult struggle, one aided by grace; and there is no holiness without a share in the Cross. Continence in such situations is non-negotiable because of the human/sacral significance of the conjugal act. But it is also because of the demands of the virtue of chastity, chastity being a conditio sine qua non for human flourishing and achieving the goal of holiness.
What Chapter 8 clearly addresses are those “situations” concerning remarried divorcees, where the first marriage is assumed to be valid and so cannot be annulled. Paragraph 300 describes possible ways of approaching on examination of conscience in the internal forum (the sacrament of reconciliation). Paragraphs 301-312, which cover the Church’s teaching on mitigating circumstances, provides the key to understanding Chapter 8. And here the accent is not on objective morality but on subjective culpability, which calls for “practical discernment in particular circumstances” (#304), whereby the penitent seeks to discern what God is saying to him. On the part of the confessor, “understanding in the face of exceptional circumstances” (#307) is called for. Which brings us into the realm of conscience.
The notion of conscience as found in AL has come in for considerable criticism. The term as used in the text is indeed lacking in clarity, and so is potentially misleading. Sometimes the term is used to mean prudential judgement (#37, 42, 265), and once to mean the virtue of prudence (#265). Three times it refers in general terms to the formation of conscience (#37, 222, 302). In one crucial paragraph (#298) it is used twice to mean “being conscious of the moral significance,” though the second usage could be understood to mean a clear conscience in the strict sense of the term. There is no mention of our proneness to self-deception (cf. Ps 18:12-13). The spiritual practice known as the examination of conscience (as in preparation for confession) is mentioned twice (#300, 302). What has caused most controversy is the use of the term “conscience” in #303.
Firstly, the text calls for a better incorporation of conscience (with regard to mitigating factors affecting subjective guilt about past actions) “into the Church’s praxis in certain situations which do not objectively embody our understanding of marriage.” That is fine, but what is meant by “conscience” here? We are told that “every effort should be made to encourage the development of an enlightened conscience, formed and guided by the responsible and serious discernment of one’s pastor, and to encourage an ever greater trust in God’s grace.” What is an enlightened conscience? Is it one enlightened by the Church’s moral teaching? The context seems to suggest otherwise, since we read:
Yet conscience can do more than recognize that a given situation does not correspond objectively to the overall demands of the Gospel. It can also recognize with sincerity and honesty what for now is the most generous response which can be given to God, and come to see with a certain moral security that it is what God himself is asking amid the concrete complexity of one’s limits, while yet not fully the objective ideal.
This is a description of prudential judgement arrived at through the process of “discernment.” It is not what the classical tradition calls synderesis, or primordial conscience. This is conscience in the strict sense of the term (our sensorium of transcendence, according to Eric Voegelin) which is awakened by our encounter with the truth, with goodness and with beauty. As recent scholarship (correcting Josef Pieper) has demonstrated, primordial conscience cannot be identified with the virtue of prudence since it measures every aspect of the exercise of the virtue (cf. Stuart P. Chalmers, Conscience in Context: Historical and Existential Perspectives, 2013, pp 303-317). And when we speak of primordial conscience, we are no longer speaking about “rules” or guidelines extrinsic to the person, but rather the moral demands arising from our common humanity. Conscience in the original sense of the term (rooted in our instinct to do good and avoid evil), as Newman understood and Joseph Ratzinger has clarified in our own day, is what defines us as human; it is the measure of every motivation, action, and circumstance (including consequences). Enlightened by Revelation, Church teaching confirms and clarifies what we all know in our heart of hearts about the moral order written into our being by the Creator (cf. Rom 2:14-15).
A deficient understanding of conscience (reducing it to, or conflating it with, a prudential judgement) enabled the West German Bishops’ Conferences in the Königsteiner Erklärung to give verbal assent to the teaching of Paul VI while in effect undermining it by having recourse to the proportionalist notion of conscience, i.e. reducing it to a prudential judgement. Since that can be ruled out here, the use of the term “conscience” in Amoris Laetita #303 can only mean making a prudent decision as to where a spouse in an irregular situation stands with regard to their striving to live in harmony with the Church’s full teaching on marriage and what steps can be taken to reach that goal.
In his address to the Jesuit General Congregation, Pope Francis claimed that modern moral theology (with explicit reference to Bernard Häring as an example) is no longer a “casuistry” and that AL is part of the recovery of the moral theology of St. Thomas. Let us leave aside the question as to whether or not we can do moral theology, including virtue ethics, without recourse to some form of casuistry. The crucial question we must pose here is the following: is it possible that, while using terms taken from the post-Vatican II school of proportionalism, AL is now putting them to new use, namely in terms of virtue ethics?
The traditional list of factors that impede subjective culpability (#302), which were developed in the legalistic, manualist tradition of moral theology (intended for training confessors to use in the internal forum) refer to individual human actions (in the past). They retain their validity. It is right to be reminded that the guilt or personal responsibility for past actions that have placed people in their present irregular situation could have been mitigated by various factors, so that “ it is can no longer simply be said that all those in any ‘irregular’ situation are living in a state of mortal sin and are deprived of sanctifying grace” (#301; cf. #305). AL seems to be speaking about helping people to find a way out of their present, objectively wrongful situation so that they can live more in accord with the fullness of Church teaching. In other words, it is to be presumed, that they are people whose primordial conscience has been touched anew by God and who now must show signs of being willing to move towards abstinence in their irregular marital situation—or, at least, who are sincerely resolved to strive to do so.
This willingness is, it seems to me, what the apostolic exhortation calls the law of gradualness (cf. # 295), following St. John Paul II. The assumption here is that the penitent honestly recognizes that his or her present situation is objectively wrong as taught by Church teaching (and known inchoately to all in their heart of hearts). Further, it is assumed that he or she shows some genuine willingness to strive to live in harmony with Church teaching (i.e., chastely, though the term is not used), while honestly recognizing that such would be very difficult in the present circumstances for various reasons, such as those suggested in #298. In traditional parlance, the penitent must give some indication of a genuine purpose of amendment. In footnote 364, the Pope notes: “Perhaps out of a certain scrupulosity, concealed beneath a zeal for fidelity to the truth, some priests demand of penitents a purpose of amendment so lacking in nuance that it causes mercy to be obscured by the pursuit of a supposedly pure justice…” (cf. also footnote 351).
What AL offers pastors are a number of practical guidelines to help confessors better to understand the plight of faithful caught in such situations, for which they may not be entirely responsible, and to discern the authenticity of such a purpose of amendment, however fragile. Here access to the sacraments may be possible, or even recommended, so that the one seeking guidance from the priest receives the grace to progress step by step, presumably towards the goal of complete abstinence from sexual intercourse—despite frequently failing (cf. especially footnotes 336, 351). In another footnote, Pope Francis recalls that “a small step, in the midst of great human limitations, can be more pleasing to God than a life which appears outwardly in order, but moves through the day without confronting great difficulties” (#305, quoting Evangelii Gaudium #44; see also #60, 164, 271). The frequent mention of the reality of grace in the document reminds us that it is God who is at work in the souls of all those in irregular situations, and that to him nothing is impossible, something we pastors don’t always, perhaps, take sufficiently seriously. This does not take away from the fact that, failing in their resolve, they need to return to confession for absolution and receive the grace to continue to struggle.
Positives and negatives
To return to the broader question as to the implications of the apostolic exhortation for fundamental moral theology, it seems to me that AL, though echoing many of the assumptions, and even using some of the language, of proportionalism, avoids its pitfalls, namely the denial of intrinsically wrong acts (objective morality) or the notion of a fundamental option (only mentioned in footnote #344, with reference to St. John Paul II’s critique of same). It could be said that those theologians who initially defended the fundamental moral teaching of HV were so focused on upholding the notion of intrinsic moral evil actions (I prefer the term “intrinsic wrongdoing”) that they tended to downplay the other two sets of conditions which determine the moral quality of a human act, namely motivation and circumstances. The latter were developed by the proportionalists who denied absolute moral norms. Likewise, the classical distinction between objective sinfulness and subjective guilt, so important in the confessional, tended to be downplayed or even forgotten, especially by lay moral theologians who wouldn’t have the experience of hearing confessions. What was, perhaps, the seed of truth in the notion of fundamental option was the understanding that morality involves more than isolated, individual actions. The recovery of virtue, it seems to me, has resulted in a more dynamic and personal understanding of morality: now the significance of each moral act for the acting subject is recognized but also the fact that each particular human action conditions, as it were, the following one, positively or negatively, leading to a habitus of virtue or of vice.
Evidently, there is more to be said on this, but this must suffice for the present. To reiterate, AL simply mentions the possibility of admittance to the sacraments (in a footnote!). What is not recommended is a general procedure. The text calls for understanding and discernment amidst the ambiguity that characterizes the human condition. In moral matters, as Aristotle recognized, we don’t have the clarity of mathematical exactness.
But it must also be admitted that the silence on absolute moral norms, negative in nature, precisely where one would have expected a mention in the text, is open to misunderstanding, despite an explicit rejection of priests “quickly granting ‘exceptions’ (#300)”. And that, it seems to me, is the reason why the four cardinals, in the spirit of the Pope’s appeal for frankness (parrhesia), wrote for clarification on the dubia. The inadequate understanding of virtue ethics is most evident in AL #302, in its interpretation of St. Thomas (STh I-II, q 94, art. 4): “Although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects.” As has been pointed out by others, this applies to the general principles of natural law, not to its negative prohibitions, which are always to be avoided.
The four cardinals’ call for clarification on the negative prohibitions is both understandable and urgent. The CDF needs only reply in the traditional mode of a simply denial or affirmation to dubia to clear the air. Theologians and pastors can then begin to work towards a new synthesis. For what is at stake is the question of the existence of certain actions, which by their very nature contradict our human nature created in the image of God and so profoundly affect our relationship to God and neighbor. They are the non-negotiable limits set by primordial conscience, within which every prudential judgement is made. Doubt as to their existence is existentially unsettling. It also undermines the Church’s mission to liberate humanity by speaking the truth in love.
In conclusion, I am convinced that Amoris Laetita can help to bridge the chasm that, since 1968, has divided moral theologians in matters of sexual morality. My hope is that, in time, the apostolic exhortation might also lead to the bridging of the even deeper chasm which still divides fundamental moral theologians. It is part of a work in progress.
 AL seems to come closest to casuistry in ## 302 and 305, and in the footnotes 336 and 351, where the text appears to be very ambiguous indeed.
 The fact that the Italian and Spanish term norma is rendered in English as “rule” furthers the impression for the English speaker that the mindset of the writer(s) of Chapter 8 is a legalist one.
 One misses in the public discussion of AL – and in the statements of various bishops and episcopal conferences – sufficient attention to the call to holiness.