The death of law in the Church

Can things get any worse under this Pope? It seems that they can. Dr Joseph Shaw (LMS Chairman) has written a frank and incisive article explaining how lawlessness within the Church may be reaching a type of crescendo under Francis, but it has in fact been around with us for some five decades. 

A general of the Vendee uprising against the French Revolution

A general of the Vendee uprising against the French Revolution

On October 9, 1965, 450 conservative participants in the Second Vatican Council submitted written interventions for discussion, demanding the condemnation of Communism. Under the rules governing the Council, the interventions should have been debated, but they were not. At first, the excuse was made that they had not been submitted within the deadline. Then, when this proved to be untrue, Archbishop Garrone of Toulouse explained, on behalf of the Council’s secretariat, that the interventions ‘were not examined when they should have been, because unintentionally they had not been transmitted to the Commission members.’ By then it was too late to do anything about it. So that’s all right, then. (I take this summary of events from Michael Davies, Pope John’s Council pp150-1.)

The recent events surrounding the Order of Malta have raised the question of the role of law in the Church, as, on the face of it, the admittedly unique and peculiar legal rights of the Order would seem to have been trampled underfoot. The problem of respect for law and legal procedure goes back further, however, as this anecdote from 1965 illustrates. Accounts of the Second Vatican Council are replete with stories of procedural shenanigans; this one was perhaps the most shameless. In the 1980s and 1990s some degree of stability was restored to the life of the Curia, perhaps, but around the world the Church’s law had for many purposes simply died. Liturgical law, laws governing the training of seminarians, laws governing clerical discipline and the procedures for dealing with breaches of those laws, were only referred to, in many parts of the Church, in a purely opportunistic way to punish priests, nearly always the more conservative ones, who had annoyed their bishops or religious superiors.

Anyone during this period pointing out to priests and bishops the many laws of the Church — whether of the General Instruction of the Roman Missal, or of the Code of Canon Law — which they routinely broke or ignored, was met with, at best, derision, and, at worst, anger and retribution. Inevitably this attitude to law carried over to issues of serious clerical wrongdoing, and also infected clerical attitudes to the law of the land, and lies behind the Church’s response to clerical sex abuse cases.

The situation of lawlessness has been such that it is actually impossible for a conscientious priest or Catholic layman to keep the law even for himself. Priests who went through the liturgical rules laid out in the 2004 Instruction Redemptionis Sacramentum and actually applied them in their parishes would be, in most dioceses, in deep trouble. Take the rule that Holy Communion should not be given in the hand if there was ‘a risk of profanation’ (section 92). Is there a priest in the developed world who would dare to apply this in the Ordinary Form?

I don’t want to minimise the gravity of what is happening now, but to point out the well-laid foundations of it. Just as Traditional Catholics need to resist the temptation to think that everything before Vatican II was just fine, so conservative Catholics need to resist the temptation to think that everything before Amoris laetitia was other than catastrophically bad. Only from a catastrophically bad situation could the present hideous problems have arisen. Only after fifty years of the derision of law, and of the opportunistic, manipulative and oppressive use of law, could we have found ourselves reading about the de facto annexation of a sovereign entity by the Holy See, about priests found guilty of sexual crimes being let off if they have have friends in high places, and about a priest being suspended a divinis, by a formal decree of his bishop no less, for failing to get with the programme of Amoris laetitia: whatever that programme might be.

This last is perhaps worse than anything we have heard about in modern times: as appears from the bishop’s own decree, this priest is quite literally being suspended for his adherence to central tenets of the Catholic Faith. But it is not entirely without precedent. Remember this case? Most things like that happen more quietly.

It is no secret, of course, that theological liberalism does not have a high regard for law. Conservatives are at a disadvantage, then, in allowing themselves to be limited by the law, in dealing with liberals who do not. Liberals feel exactly the same sort of justification in breaking laws for what they see as the greater good, that Fascists and Communists did in the revolutions and conflicts of the 20th century. Their actions have the same effect, creating a situation in which only brute force can get things done, and where disciplined gangs of thugs are best positioned to wield that brute force. What conservatives want is freedom under the law: a situation in which a stable and just (if imperfect) framework of rules prevents the systematic abuse of power. That isn’t the situation in the Church today, and it hasn’t been for a long time.

At a certain point the remaining moral authority of deference, procedure, precedent, and rule will disappear for conservatives as it has long since disappeared for liberals. This is the moment of counter revolution: perhaps this is the moment that President Trump represents in American politics. It is dangerous because counter-revolutionaries do not always distinguish between the human laws which no longer command authority, and the Natural and Divine Laws which can never lose it. It is a phase of history for which we may need to be prepared in the Church.

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