“Rule by law” means, in essence, the accomplishment of political ends by means of legislation. On one view of the matter, it is what laws do. There is a difference, however, between general rules for the general order, and legislative acts designed to solve more-or-less specific problems, or kinds of problem.
While one may urge that rule of law was never a practical characteristic of life under any clerical regime, the fact remains that Pope Francis has used legislation to deal with particular political problems. That kind of use has been characteristic of his rulership – programmatic, even – during his reign.
One points, for example, to the much-ballyhooed Come una madre amorevole, which on paper gave the pope the wherewithal to remove negligent bishops without the bother and expense of criminal trial but in fact has been used with vanishing infrequency.
Years ago, word about town was that CUMA – as it’s known in Vatican-speak – was really designed to deal with a very specific issue, and that the matter was in facti specie a particular personnel problem. Said simply, the pope needed someone to go, and needed a way to get him out, and got it.
Still, the Vatican comms people introduced CUMA with significant fanfare, in part because that’s the way the outfit pitched and billed the story and in part because, well, what are you going to do?
The Mad Men of Madison Avenue will tell you to sell the sizzle, and they’re not wrong. Thing is, though, the steak has to come at some point.
There are plenty of other ready examples.
Consider Francis’s four – count them: One, Two, Three, Four – rescripts during the London investigation, and his decision to take away the Secretariat of State’s purse in the wake of the London real estate debacle. Take his cumbersome and unwieldy “reform” of marital nullity procedure. Recall his extra-judicial dismissal of Chile’s most notorious abuser-priest from the clerical state and his egregious extra-judicial punishment of two Chilean bishops (not that they didn’t deserve it) in lieu of real efforts to clean up that country’s troubled episcopate. Think of his tweaks to the rules governing how congregations of diocesan right get approved. Mark his recent controverted broadside against traditional worship; his pontificate is rife with examples of ad hoc and otherwise considered legislation.
The effect of each of these measures, and all of them together, has been to concentrate power in the legislator – in the pope, and more precisely, in this pope – rather than to decentralize or otherwise distribute power in the Church.
Even if such addiction to lawmaking were not problematic in and of itself, it would be odd to find it in anyone who – like Francis – decries legal rigorism every chance he gets. By the time he’d been in office four years, Francis had made more laws than Benedict XVI had made in eight. For a man who doesn’t like legalism, Francis sure does make a lot of laws.
“Rule of law” is the idea that all members of a society are somehow governed by the laws of the society itself. The expression is of fairly recent coinage, but the idea is very old. Schoolchildren learn that it was present and operative in Hammurabi’s code of laws for Babylon in the 18th century BC.
For the people of Israel, the idea was literally foundational: “You shall not add to the word that I speak to you,” tells the Book of Deuteronomy, “neither shall you take away from it: keep the commandments of the Lord your God which I command you.” The people and their rulers, in other words, were all and singly servants of the one law that made them a people under God.
Plato and Aristotle also had their own versions of the idea. One might even trace its remote origins in Greek philosophizing all the way to Heraclitus, who urged his hearers to “hearken not to [him] but to [his] logos.”
The maxim, “No one is above the law,” is a close corollary to the idea of the rule of law, but says a slightly different thing – and a more problematic thing for an absolute monarchy in which the pope is the sole font of power and right. Apostolica sedes a nemine iudicatur is the ancient maxim: “The Apostolic See is judged by no man.” Whatever else that means, it means the pope is not answerable to any human power.
That’s not quite the same as saying – sic et simpliciter – that the pope is above the law, but it also isn’t exactly not saying that, either.
Thankfully, Catholics have been mulling what that means – and doesn’t – for a good long while, now. Leave dogma and doctrine aside for the moment – those things tend to work themselves out – and focus on the munus regendi. It doesn’t mean there are no moral limits on papal authority, for example. It doesn’t mean that there are no rights of individuals or Churches the pope is bound to respect. It doesn’t mean that he can rightfully do whatever he wants. Practically, however, he can.
When popes are content to reign, and to leave the rule of the ecclesiastical house to professionals, things can work tolerably well. Even an energetic pontiff with an agenda to prosecute will not make too much trouble, if he pursues his agenda through his bureaucrats. When, however, a forceful and energetic personality takes the reins and governs without the bureaucracy, things can get awfully messy awfully quick.
The problem is constitutional: How do we preserve the principle of papal supremacy and also keep the pope – whoever he is – on a leash?
Writing for the Catholic Herald a while back, Charles Collins floated the idea of developing something like a “reserve powers” doctrine for the papacy. “There is no reason for such a principle not to be established at the Vatican,” he wrote, “no reason for legislation not to pass without loopholes, no reason for the pontiff’s fingers not to be kept off the levers of justice.”
“The papal prerogative,” Collins went on to say, “like the royal prerogative, would be held in reserve, as opposed to flaunted to detrimental effect.” The problem with any such scheme, however, is in implementing it.
Power is tempting and flesh is weak. A nickel for every churchman who has said to himself, “When I rise, things will be different!” and has risen to power, and then governed pretty much like his predecessors, would make me and several others very wealthy.
Then, there is the indisputable fact that the Church’s central governing bureaucracy is in dire need of real reform. Neither the structure of the bureaucracy itself nor the culture of the bureaucrats is apt to support a reserve regime. Even if one fellow could be found willing not to exercise his powers of office, there’s a better than even chance the bureaucrats would make a pig’s breakfast of the government and each other, in short order.
People watching with an eye to Church reform may do well, therefore, to consider two things.
The first is that no reform worthy of the name will purport to fix all or even most of the problems, certainly not once and for all, but only at best to trade one set of problems for another. The second is that history is always a mess in the making, and history is always happening right now.
Pope Francis has taken his own advice to heart, and made a mess. Things may be so bad now, that postponement of real reform is impossible. Then again, it is always a mistake to underestimate the willingness of churchmen to kick the can. For his part, Francis certainly appears to be doing his level best to force the issue.
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