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Comments on Prof. Robert De Mattei’s response about AL, canon law, and heresy

I am immensely glad that canon 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.

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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 (cAmoris 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 thecanonical 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 inAmoris, 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.

About Edward N. Peters 103 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.

12 Comments

  1. Very clear and accurate assessment of Prof de Mattei’s interpretation of the inclusion of the letters in Acta Apostolica as a valid Magisterial doctrinal statement, that the letters and their inclusion are not. They don’t comply with Prop Two of the Doctrinal Commentary to Ad Tuendam Fidem for matter directly related to the Deposit of Faith requiring such teaching be sententia definitive intenda, which they are not. Also I agree with the different popular interpretations of Amoris some permitting abrogation of binding Church teaching on communion for D&R and contrary to canon 915. Edward Peters presents a clear defense of the sustainable integrity of 915 which neither the letters or Amoris affect. Finally his unwillingness to offer judgment on the intent of Amoris is understandable from the legal perspective of a canon lawyer. All in all an important guide to understanding the issue.

  2. I agree entirely that the fact that Canon 915 is still part of the current Code of Canon Law is a tremendous good. And it clearly shows that there is no legal case for interpreting the infamous footnote the way that some Argentinian, Germany or Maltese bishops have done. Dr Peters will go this far with me, I think from what he’s written.

    But what now? Should those who have claimed “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” be brought before some ecclesiastical court and tried for that “spurning”?

    Does “spurning” of this kind amount to a canonical crime? Does it amount to heresy? Or is it merely something to be winked at between bishops, canonists, and Vaticanistas?

    Put another way, does Canon 915 really have teeth or is it just filler text between 914 and 916? Who enforces it? Pope Francis?

    And if it’s up to Bergoglio to enforce this Canon, isn’t deMattei’s larger point correct?

    • Just to be clear, the dilemma is that

      1) Bergoglio has just published his letter approving the manner that the Argentinian Bishops are implementing Chapter 8 of Amoris Laetitia, indeed saying it is the only right way to do it. The Argentinian Bishops propose giving the Eucharist to adulterous couples thereby breaking the Lord’s explicit commandment.

      2) Bergoglio is supposed to enforce Canon 915 which forbids giving the Eucharist to adulterous couples thereby upholding the Lord’s explicit commandment.

      Which will our Holy Father do? Can you guess?

      And this is why Prof de Mattei’s larger point about the current state of the Papacy is correct.

  3. Amen.

    I can only imagine Edward Peters getting weary on the continuous explanation on this matter….but thank the Good Lord He does.

  4. Excellent. I am a fan of Dr Peters and I have been eagerly waiting for this. I find lots to agree with here, but one statement rises above the other statements that are worthy of repeating. This one is worthy of dispute.

    Dr Peters says: “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.”

    While I might be able to agree with him in some historical sense, just exactly WHERE does Dr Peters see an”unbroken enunciation of Church teaching and discipline in this area” today? Is the discipline of Canon 915 enforced anywhere? He does himself a disservice in making such a statement.

    The entire problem with this pontificate is NOT that it is such an anomaly in the representation of the Catholic faith, but rather, that it, in its studied ambiguity and its demonstration of continued abandonment of the enforcing of Canon 915, simply reflects what “Catholicism” has become and has been for many, many years. Possibly Dr Peters is a frog who is unaware of the temperature of the bathwater, but I can assure you that many that have just been dropped in the pot are screaming at the scalding.

  5. Those interested in this topic should refer to yesterday’s thoughtful critique by Christopher Ferrara: http://www.fatimaperspectives.com/fe/perspective1126.asp

    I find Peters’s canonical perspective myopic in several respects. First, canon law proceeds and derives from and is dependent upon Catholic theology of faith and morals, not vice versa. Canon law does not have some sort of independent or co-equal authority, contrary to Peters’s implication that “ancient and unanimous Church teachings and practices” can be overturned by “a law or the canonical equivalent of a law”. Second, Peters seems to consider that a pope is somehow bound to use traditionally sanctioned ecclesiastical forms and procedures to abrogate, obrogate, or modify canon law and that Pope Bergoglio has therefore not modified Canon 915 because he has omitted or failed to use such “legislative” forms and procedures. Third, Peters’s assertion that “they [the ambiguities in Amoris Laetitiae] 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” is factually and legally wrong since it ignores Pope Bergoglio’s explicit declaration in his self-designated Apostolic Epistle published in the Acta Apostolicae Sedis that the Buenos Aires “local policy” that directly conflicts with Canon 915 is the only correct interpretation of Amoris Laetitiae (“there are no other interpretations”) and that this declaration of his is to be considered “authentic Magisterium” as specifically stated in the accompanying rescript issued by his Cardinal Secretary of State.

    • Interesting assessment. I’d be interested in what Peters would say in response.

      In the meantime, my takeaway from Peters is that EVEN CONSIDERING MODERN CANON LAW and in spite of the infantile flailings-about the Pope is pretty obviously engaged in to break with the past, no such LEGAL thing has yet occurred. I do not think that is an unimportant point to be addressed and I thank him for making it.

      That’s about as far as he goes. I would love to know in detail what he thinks about the issues you bring up here, but alas, he normally sticks to a technical legal opinion.

      In specific, I don’t care what he thinks about theoretically heretical Popes, as we have lots who have commented on that. I’d like to know what he thinks should be done with this particular Pope, that is, first if he thinks anything can be done, and secondly if so, just exactly what should be done. does he even see a serious problem with this particular Pope that is beckoning for action by the prelates? I have no idea.

      See, it seems to me people in a position such as Peters’ may be placed there for reasons that go beyond their obvious surface vocation, that is, to defend the faith in times of crisis, not just to comment on the technical details of what is going on. Possibly he sees no reason to stand up and take action or attempt to do so. Or maybe he is doing so in some unseen capacity behind the scenes, so my comment is not a criticism, but a question. Some have gone quite public and have paid a price for it.
      Where exactly Peters stands in this crisis is a mystery to me and I suspect it is a mystery to others as well.

    • I think Ferrara misreads Peters when Peters says “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.”

      Ferrara appears to be believe that Peters believes that canon law precedes teachings. Peters makes no such claim. Ferrara is mistaken here.

      Ferrara is correct that “Canon law cannot touch these teachings for they are revealed by God or proceed immediately from revelation.” I’m confident Peters would agree. Canon law (among other things) exists to help guide the church and each of us in living in accord with those teachings.

      Perhaps Ferrara would do better to focus on the arguments of those who argue against crucial Church teachings and not on those who point out that canon law still is in accord with Church teachings.

  6. What bothers me about Dr. Peters’s seemingly cool canonical approach, which thus far has allowed him to remain a neutral and expert commentator, is what strikes me as his double standard. Although his public defense of Canon 915 is laudable, in other important contexts he has been quite willing to argue that universally applicable norms may be “interpreted” in a way that renders them inapplicable.

    I refer namely to the so-called separation canons (cs. 1151-1155). Indeed, on several occasions that I know of, Dr. Peters has offered his public opinion that these canons, so vitally important for the preservation of the domestic churches, and founded in part on the intrinsic indissolubility of marriage (i.e., the natural law), do not apply in the United States. Last time I checked, our divorce laws do not agree with the natural law. But apparently that doesn’t bother Dr. Peters. “I speak to your shame. Is it so that there is not among you any one wise man, that is able to judge between his brethren? (1 Cor 6:5)”

    Dr. Peters thus fails to grant these canons the same degree of respect and universal applicability as those he laudably defends, preferring instead to “interpret” them out of existence as the defenders of Amoris do, and have done, with respect to Canon 915.

    When it comes to defending the truth about marriage, we Catholics must be coherent. So let us heed Saint Paul’s inspired warning to the Corinthians: “Dare any of you, having a matter against another, go to be judged before the unjust, and not before the saints? (1 Cor 6:5)”

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