Thoughts and Excerpts: Receiving the Council by Ladislas Orsy, Post 7, Justice in the Church
Orsy sets secular legal wisdom side by side with how justice is administered in the church.
He takes as an example The 1997 Regulations for the Examination of Doctrines from the Roman Congregation for the Doctrine of the Faith. It’s 1500 words, 29 articles, and describes the process by which a doctrine in circulation may be judged “erroneous or dangerous to the faith” by the Congregation for the Doctrine of the Faith (e.g., the smackdown of a theologian).
These regulations say that the bishop has the right and duty to “exercise pastoral solicitude” but that the Holy See “has the power to intervene, and intends to intervene, whenever a publication constitutes a grave danger for the faith and the impact reaches beyond the boundaries of a local episcopal conference.” (p. 92) Today, this could be any publication on the planet.
Secular legal wisdom says:
“Justice demands a precise definition of an offense”
“The Regulations name two offenses, namely the spreading of ‘erroneous doctrine’ and ‘dangerous doctrine.’ Both are two broad for comfort.
“Erroneous” or “dangerous” doctrine is much too vague a definition of an offence. “Totalitarian states like to have crimes broadly defined …” (p. 97)
“’Erroneous doctrine’ can have different meanings in the realm of religious beliefs and opinions. Catholic theology has always carefully distinguished revealed doctrine (‘articles of faith’) from theological opinions held by scholars or some church officials. They are not of the same category. If a proposition is judged erroneous, to understand the gravity of the error one must know the authority of the ‘truth’ that it denies. Vatican Council II insisted on a ‘hierarchy of truths,’ with each truth demanding assent to a specific degree, yet the Regulations use one broad category that opens the door for a uniform prosecution of errors, whether major or minor. There is a difference between obstinate rejection of an article of faith and thoughtful opposition to an opinion held by an office of the Holy See.
“The expression ‘dangerous doctrine’ gives an even larger scope to the investigators: with it they can reach far and wide as it has no firm and objective limits. … the perception of a danger can be subjective and deceptive: much depends on the mind of the observer.” (p. 97)
“Justice is best served when the respective roles of the judge, the prosecutor, and the defendant’s advocate are kept separate”
“If the office of the investigator appoints all of them, the balance of the trial is disturbed and the objectivity of the decision is questioned. … In the Regulations, this well-established separation of the roles is not honored. The same organs of the Congregation are involved in, or can influence on the initial investigation, the articulation of the charges, the defense of the writings and of the author, and eventually the final decision.” (p. 97)
“Equity, the perfection of justice, demands that each of the opposing parties has a similar opportunity to plead before the judge.”
“The Regulations grant different measures, far from any equal amount of time, to the accuser and the defender. During the first part of the ordinary process when the crucial decision is taken about the conformity of the author’s writings to the demands of orthodoxy, he is absent. He is not even informed that a process has been initiated.
“Another glaring lack of equity (to say the least) emerges when the outcome of the examination is negative, and the Congregation finds the author’s propositions ‘erroneous or dangerous.’” The bishop or superior is informed, reputations can be ruined, and the author may still not know he has been accused.
“Our church has nothing to lose and much to gain by offering the elementary courtesy to Christian thinkers to explain their mind right from the moment when suspicion arises against their writings. (p. 98-9)
The presumption of innocence
“The ‘principle of the presumption of innocence’ is an inviolable part of the criminal proceedings in modern legal systems. Such a presumption, however, is not mentioned in the Regulations. (p. 99)
Justice demands openness
“The virtue of justice, as integrated with faith, hope, and love among Christians, is a powerful factor in forging unity in the community. For this reason, it is never enough to do justice, it must be done publicly. The people should see that justice is done. … “The Regulations fall short of the standards of an open trial. In particular, the first part of the ordinary proceedings is shrouded in complete secrecy.” (p. 100)
An extreme penalty
“Excommunication is an extreme penalty in a Christian community. But “The Regulations ignore a crucial problem: the crime of heresy is an ‘obstinate denial’ of an article of faith (Canon 751); it is a surrender to falsehood while one sees the light. … it is not an ordinary event. Even if it has been established that the writings of a person contain heretical propositions, it does not follow necessarily that he is guided by a perverse intention. To rush into the imposition of an extreme sentence (perhaps without ever having listened to the author) can hardly be the sign and symbol of justice–let alone Christian mercy.” (p. 101-2)
The opportunity for appeal is an integral part of any good judicial system
“The Regulations are clear: once the Congregation has declared that the author is guilty of heresy, apostasy, or schism, the author must be held excommunicated, and ‘against such a declaration no recourse is admitted.’ The Explanatory Notes provide the following reason: throughout the process the pope himself is involved: hence, there cannot be any room for appeal. The underlying assumption seems to be that throughout, papal infallibility somehow plays a part in the process and, at the end, seals the sentence. But Catholic theology allows no such assumption. To exclude, therefore, any possibility of a miscarriage of justice would be presumptuous.
“At this point the Regulations reveal a substantial structural weakness: they create a first instance tribunal that, in the course of the same trial, becomes a supreme court.” (p. 101)
Conclusion
“In the Catholic world, the best way to promote and safeguard the doctrine of faith is to create a climate of trust where the process described by St. Anselm of Canterbury as fides quaerens intellectum, ‘faith seeking understanding,’ can flourish. Such a search for understanding is carried out mostly (but not exclusively) by professional theologians. To attract young and talented persons to choose theological research and reflection as their vocation, to strengthen those who are already dedicated to that work, and to lift the spirit of those who are struggling with the hard issues of our days, an environment of freedom and confidence is indispensable, a condicio sine qua non. Such an environment cannot exist if investigations, accusations, and even condemnations are allowed to take place in secrecy.
“Creative thinkers who scrutinize the divine mysteries and give us a language to speak about them must be constantly aware that the church trusts them and protects them. If norms are needed to prevent deviations, norms are even more necessary to secure freedom for creative thinking.” (p. 103)
“In truth, creative thinkers are one of the greatest assets of the church: they let the internal riches of the evangelical message unfold. … This was the ministry of Friar Thomas Aquinas and of Cardinal John Henry Newman.” (p. 103)
“The judicial procedures of the Regulations are of human origin. They are not rooted in any divine precept. They are the product of another age, not suited for our ecumenical times. To reform such procedures would be to obey Vatican Council II: Christ summons the church, as she goes her pilgrim way, to that continual reformation of which she always has need, insofar as she is a human institution here on earth (UR 6).” (p. 103-4)
This situation is untenable. A church that proports to fight against injustice in the world cannot tolerate injustice inside of itself. As Garry Wills says, it is “self-condemned.”
Tags: canon law, Orsy, structures of governance
