Papal governance by sleight-of-hand strains my grasp of culpability and Canon Law.

By Dr. Jeff Mirus ( bio - articles - email ) | Sep 16, 2016

The quarrel over the position I took in “Not heretical: Pope Francis’ approval of the Argentine bishops’ policy on invalid marriages” has prompted both serious rebuttals and catcalls around the web. All of this swirls around the Pope’s pastoral approach to divorce and remarriage. I think most of my critics do agree with my main point, that it is overkill for those who find this policy abominable to conclude that Pope Francis is a heretic. But parts of my argument have raised very legitimate questions.

Frankly, it is just not fair of the Pope to put me in such an awkward position!

I suspect it is impossible, at present, to answer all the relevant questions in a definitive way. That’s one reason the charge of “heresy” against Pope Francis won’t stick. But this does not mean they are not good questions, important questions, necessary questions. In fact, they are questions any responsible pastor should settle before implementing his pastoral policy.

Interestingly (as Canonist Ed Peters generously explained to me), the main disputed questions are neatly framed by the two most fundamental rules in Canon Law which bear on the reception of Communion:

• Canon 915 deals with the Church’s authority over admission to Communion. It reads: Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion.
• Canon 916 deals with the decision by the individual person to present himself for Communion. It reads: A person who is conscious of grave sin is not to celebrate Mass or receive the body of the Lord without previous sacramental confession unless there is a grave reason and there is no opportunity to confess; in this case the person is to remember the obligation to make an act of perfect contrition which includes the resolution of confessing as soon as possible.

Now my own argument, without mentioning Canon Law, asserted two things: First, that among those who are divorced and remarried without an annulment, we can identify possible cases in which the ongoing sins are only venial. This directly addresses Canon 916. Some thought I must therefore mean that such persons should feel free to present themselves for Communion. That is not so; apparently my conclusion was not stated strongly enough. Second, since I did in fact know that the Church traditionally refused to admit to Communion the whole class of persons who are divorced and remarried without annulment, I wrote: “What all this [concluding that only venial sins are present in some cases] means…is that the decision to admit someone in this situation to Communion is purely prudential.” In other words, Canon 915 could be reinterpreted or rewritten because (as I had said from the start), Canon Law is disciplinary, not doctrinal.

My conclusion has been disputed on three grounds: First that Canon Law is not merely disciplinary; second, that the sins involved could never be only venial; and third, that the doctrinal roots of Canon 915 are so strong that it would be impossible to understand (or rewrite) that canon in any way that would not exclude from Communion, as a class, all those who are divorced and remarried without an annulment. I admit that these three objections are difficult to resolve. Although I do not agree with my most vehement critics, I also believe that all three should be properly addressed and settled in a forthright manner before Pope Francis pursues a policy which, in effect, encourages priests and bishops to violate laws that are still on the books.

Therefore, in what I expect to be my last word on an unfortunately complex topic, I will offer a few observations on each problem:

Is Canon Law merely disciplinary?

The dispute on this question is essentially a confusion over how we are using the same words. Considered in itself, each canon in the law addresses behavior, that is, it is disciplinary. Canon Law is not a primary source for learning the truths of the Faith. By this I mean we do not determine what the Faith is by studying Canon Law; we determine what Canon Law should be—what rules should be enacted to control the Church’s ministry and other Catholic behavior—by framing the laws to guide behavior in accordance with doctrines of the Faith we already know from other sources.

This does not mean that Canon Law has no doctrinal roots. To the contrary, it means that Canon Law, if it is any good, ought to have doctrinal roots. But we are dealing with distinct categories. We do not look at Catholic doctrine and ask ourselves if it should be changed based on Canon Law. Rather, we look at each canon in the body of Canon Law, and ask whether it adequately reflects the teachings of the Church to which it is related. The truths of the Faith cannot change, but any law can be either changed or dropped altogether. Good reasons to do this may be either doctrinal (does this law adequately reflect the doctrines it is supposed to serve) or prudential (under current circumstances, is this law the best way to achieve the desired purpose, is it counter-productive, is it no longer relevant, is it unnecessary).

Clearly, some canons are so closely based on doctrine (Canon 916 is an excellent example) that it is difficult to see ways in which they could be substantially reworded or reasons for dropping them. In such instances, we say that the doctrinal roots of a law are very strong, perhaps even strong enough that we see no way a given canon can be revised for the better. It is not my intention to deny this. When I said that Canon Law was disciplinary, I did not mean to claim that it could not have doctrinal roots. I meant that it was designed to control behavior, and so could be prudentially changed within the limits of any doctrines that bear upon it.

As to Canon 916, can the sin of adultery ever be venial?

My critics assert either that adultery can never be a venial sin or that it cannot be considered venial as passions cool and give way to a more serene reflection over an extended period of time. On this point, I can only say that I have not been convinced by those who have argued, not without evidence of their own, that my understanding of “full consent of the will” is faulty in the assessment of culpability. There is a tendency among my critics to suggest that, if the matter is grave and the person recognizes that it is grave, then culpability cannot be lessened unless the person is physically compelled to take the sinful action (as when a gun is forced into his hand, his finger forcibly wrapped around the trigger, and his finger forced back to fire the gun); or the person has lost control of himself involuntarily (he is insane, panicked, drugged, etc.).

But in these cases, culpability would not be reduced, it would be non-existent. I do not believe the Church understands full consent of the will in this way, even in situations which persist over time. Certainly, one of the major points in Amoris Laetitia was that there are many issues and circumstances in difficult situations which reduce culpability. Exactly how this is to be understood and what its consequences should be in law are not fully clear. It could be argued that Pope Francis has not yet stated his own case precisely enough. But he has suggested that—in rare cases, by no means the norm—reduced culpability may be present, and that pastors need to be able discern this if it is the case.

Finally, an intriguing perspective: It has often been said that one aspect of God’s mercy is that as people’s intellects are darkened by sin, they perceive their evil less clearly, or may be less capable of doing anything about it. In consequence, they become less culpable, and not as many of their sins may be mortal as we might think. Those who are least likely to work things out in the face of disadvantages, of course, are most firmly placed by God in the Catholic Church. This is not flattering, and it proves nothing in the present discussion, but it’s not a bad spiritual point to consider in assessing ongoing culpability.

As to Canon 915, must the Church refuse Communion to this class of persons?

My critics say that the doctrinal roots of Canon 915 are so strong that it cannot be revised to admit to Communion those who are divorced and remarried, without an annulment. I admit that I have never addressed this, and (more to the point) neither has Pope Francis. As Ed Peters has pointed out, the proponents of the Kasper Proposal have always based their case on Canon 916, which speaks to the person’s perception of his own sins, whether mortal or venial. But Canon 915—which is the canon the Pope’s new pastoral policy requires bishops and priests to ignore—must also be addressed.

Once again, on this point I have not been convinced by those who have tried to make the case that Canon 915 cannot be either rewritten or understood differently from the way in which it has usually been understood in the past. The clause which has been said to include the divorced and remarried is a clause that appears to be designed to prevent the kind of scandal which ensues when the Church appears to approve those who stubbornly persist in serious sin. But we must remember that the divorced and remarried are not explicitly specified in this canon, but included only by a rather common understanding. We must also remember that there are significant modifiers in the canon which are subject to interpretation: “obstinately”, “manifest”, and “grave”.

“Grave” appears to apply to the objective character of the sin, not subjective culpability, but the canon does not say. In the same way, “manifest” presumably means publicly obvious to the community of reference, rather than obvious to those intimately acquainted with the couple, or obvious in the assessment of a theologian when presented with the moral case. In our highly-populated, highly-mobile society, how “manifest” are the sins we have been discussing, even to the priests who distribute Communion? In addition, consider the hypothetical case I presented in my contested article, the case of a person who repents of an irregular union but finds that the other party to that union threatens to break up the family (taking, leaving or dividing the children) if forced to live as brother and sister. In continuing to have sexual relations under this duress, is the repentant partner “obstinately” persevering in sin?

It is commonly said that Canon 915 has strong Scriptural and doctrinal roots, and I don’t doubt it. Including this class of persons within the scope of the canon is also a long-standing practice of the Church, as John Paul II himself said. But, again, it may prove to be quite difficult to find anything in Scripture or Catholic doctrine which compels the exact wording of this canon or compels the Church to assume that those who are divorced and remarried must in all cases fall under its restrictions.

A problem we should not have

In all this I do not say that my critics are wrong. I simply say that, on serious consideration, I remain unconvinced that they are right. But here is my final point: This is a problem I should not have to face, and neither should you.

I began today’s discussion with a title that complained of the strain placed on my understanding of culpability and Canon Law. I intended that to be somewhat humorous, as there are doubtless many matters about which I am comparatively ignorant. It is not wrong to ask me to expend the time and energy to know and live my Faith more perfectly. But as a matter of cold fact, this whole problem would go away if Pope Francis would stop governing through what I call indirection and sleight of hand (see Phil Lawler’s excellent description in “Is Pope Francis deliberately subverting papal teaching authority?”).

My own prudential opinion of the Pope’s new pastoral approach is that, whatever its doctrinal and pastoral merits, it will lead inexorably to widespread and catastrophic abuses which are far worse than those we already experience as a result of our culture’s miserable handling of marriage. But beyond that prudential question, surely it is self-evident that the Holy Father should squarely address the canons which bear on this issue. Surely he should particularly address Canon 915’s applicability to the divorced and remarried. And surely the Pope has a major responsibility to revise or officially clarify the interpretation of Canon 915, if he believes this to be possible, before encouraging priests and bishops to follow a pastoral policy which contradicts exactly what the Church’s law is currently understood to demand.

I have absolutely no doubt that it is an ill wind that blows nobody any good. But a prudent captain still does his absolute best to avoid taking his ship through a storm.