More than this

Just in time for Christmas, the Vatican has released the Relatio finalis of the Fourteenth Ordinary General Assembly of the Synod of Bishops, dated October 24, 2015. As with the Relatio Synodi from the 2014 extraordinary general assembly, the vote totals are omitted from the English translation. Someone unfamiliar with the Synod politics and the course of events may not know, for example, that the controversial paragraphs achieved the barest two-thirds majorities, and likely would have failed to achieve those majorities without the personal appointments of the Holy Father.

Here, then, are the relevant paragraphs for the Kasperite proposal, as moderated (slightly? at all?) by the forum internum compromise brokered, allegedly, by Cardinal Marx between Cardinal Müller and Cardinal Kasper, in the Germanicus group. We have previously reported on various translations of these paragraphs, and, for the sake of completeness, we present the Vatican’s translation, two months in the making:

84. The baptized who are divorced and civilly remarried need to be more integrated into Christian communities in a variety of possible ways, while avoiding any chance of scandal. The logic of integration is the key to their pastoral care, a care which might allow them not only to realize that they belong to the Church as the Body of Christ, but also to know that they can have a joyful and fruitful experience in it. They are baptized; they are brothers and sisters; the Holy Spirit pours into their hearts gifts and talents for the good of all. Their participation can be expressed in different ecclesial services which necessarily requires discerning which of the various forms of exclusion, currently practiced in the liturgical, pastoral, educational and institutional framework, can be surpassed. Such persons need to feel not as excommunicated members of the Church, but instead as living members, able to live and grow in the Church and experience her as a mother, who welcomes them always, who takes care of them with affection and encourages them along the path of life and the Gospel. This integration is also needed in the care and Christian upbringing of their children, who ought to be considered most important. That the Christian community cares for these people is not a weakening of her faith and witness in the indissolubility of marriage: to the contrary, in this very way, the Church expresses her charity.

85. Pope Saint John Paul II offered a comprehensive policy, which remains the basis for the evaluation of these situations: “Pastors must know that, for the sake of truth, they are obliged to exercise careful discernment of situations. There is in fact a difference between those who have sincerely tried to save their first marriage and have been unjustly abandoned, and those who through their own grave fault have destroyed a canonically valid marriage” (FC, 84). It is therefore the duty of priests to accompany such people in helping them understand their situation according to the teaching of the Church and the guidelines of the Bishop. Useful in the process is an examination of conscience through moments of reflection and penance. The divorced and remarried should ask themselves: how they have acted towards their children, when the conjugal union entered into crisis; if they made attempts at reconciliation; what is the situation of the abandoned party; what effect does the new relationship have on the rest of the family and the community of the faithful; and what example is being set for young people, who are preparing for marriage. A sincere reflection can strengthen trust in the mercy of God which is not denied anyone.

Moreover, one cannot deny that in some circumstances “imputability and responsibility for an action can be diminished or even nullified” (CCC, 1735) due to several constraints. Accordingly, the judgment of an objective situation should not lead to a judgment on “subjective imputability” (Pontifical Council for Legislative Texts, Declaration of 24 June 2000, 2a). Under certain circumstances people find it very difficult to act differently. Therefore, while supporting a general rule, it is necessary to recognize that responsibility with respect to certain actions or decisions is not the same in all cases. Pastoral discernment, while taking into account a person’s properly formed conscience, must take responsibility for these situations. Even the consequences of actions taken are not necessarily the same in all cases.

86. The path of accompaniment and discernment guides the faithful to an awareness of their situation before God. Conversation with the priest, in the internal forum, contributes to the formation of a correct judgment on what hinders the possibility of a fuller participation in the life of Church and Church practice which can foster it and make it grow. Given that gradualness is not in the law itself (cf. FC 34), this discernment can never prescind from the Gospel demands of truth and charity as proposed by the Church. This occurs when the following conditions are present: humility, discretion and love for the Church and her teaching, in a sincere search for God’s will and a desire to make a more perfect response to it.

(Emphasis supplied.)

Neoplatonism and the rose/pink question

Pater Edmund Waldstein, O.Cist., takes on the rose/pink distinction that pops up in the Catholic blogosphere, especially the priestly blogosphere, oh, about twice a year. Some bloggers insist that the rose vestments worn on Gaudete Sunday and Laetare Sunday are not pink. But Pater Waldstein ventures through etymology— Antonio Telesio’s short treatise De coloribus, in fact—and historical examples to counter this notion that rose is not now and never has been pink. That’s simply not the case. And he comes to the point: some folks may prefer rose because pink has, well, effeminate connotations that rose doesn’t have. Don’t ask us why, though. If we’re judging things by American notions of masculinity, neither rose nor pink are especially masculine.

We write simply to note a (James) Burkean connection here. Pater Waldstein says this,

Indeed, as soon as one begins to think about the naming of colors, one’s native Platonism begins to give way, and one begins to suspect that there is something to the structuralist argument for the division of reality by naming as being a bit arbitrary. One doesn’t have to swallow de Saussure’s theories whole to see that the imposition of color names involves a certain amount of arbitrary choice. To Homer, after all, the sea was the color of wine.

However, Pater Waldstein strikes an apparent blow for “one’s native Platonism.” As we noted above, he cites the Renaissance poet Antonio Telesio’s De coloribus in support of the argument that rose is simply the mixture of red and white, just like pink. One may note, furthermore, that Telesio’s De coloribus cites, on the cover page no less, Marsilio Ficino’s commentary on Plato’s Timaeus, which, of course, includes a theory of colors. Now, Ficino was a Florentine priest and a driving force behind the resurgence of Neoplatonism during the Renaissance. Ficino prepared, in addition to his enormous Platonic Theology and commentaries on Platonic dialogues, an interesting translation and commentary (in elegant Latin) on Dionysius the Areopagite’s Mystical Theology and Divine Names. (The I Tatti Renaissance Library, an imprint of Harvard University Press, has, one suspects out of a spirit of altruism that ignores one’s bottom line, brought out a bunch of Ficino works, in handsome bilingual editions. They’re available on Amazon.) Thus, while the shock of the rose/pink debate may shake one’s Platonism, Pater Waldstein’s road back passes through some very heavy hitters, so to speak, in Neoplatonic circles.

Just one of those connections.

He won the war after losing every battle

Yesterday, we published Ottaviani, Döpfner, and Article 33 § 1 of the Ordo Concilii, a note on the selective quotation of the Second Vatican Council’s rules of procedure by progressives during the debate over the schema De Fontibus Revelationis. In short, Cardinal Döpfner, archbishop of Munich, used a selective quotation of one of the rules governing debate to argue that no presumption existed in favor of the official schemata. What happened next is that the debate over De Fontibus Revelationis became so acrimonious that the schema was withdrawn and a commission formed to draft a new schema, which eventually became Dei Verbum. Today, Thomas L. McDonald has a piece at the National Catholic Register celebrating fifty years of Dei Verbum, including Fr. Joseph Ratzinger’s role in the withdrawal of De Fontibus Revelationis. McDonald sees the disastrous debate over De Fontibus Revelationis as a shining moment in the history of the Council, apparently. McDonald notes,

When you look at the history of the Second Vatican Council, the debate about divine revelation pops out as the central conflict of the entire process. It spanned all four years of the Council, and the arguments about its content and meaning threw the divisions between the Curial conservatives and the central European progressives into stark relief.

The Curia submitted a schema (working document) called “On the Sources of Revelation.” It dealt with the central issue of revelation and was greeted with intense disapproval from many of the bishops and their periti (advisers). One 35-year-old periti named Father Joseph Ratzinger was brought into the debate by Cardinal Josef Frings of Cologne, and he disapproved of the schema.

[…]

Father Ratzinger would later write, “The text was written in a spirit of condemnation and negation which, in contrast with the great positive initiative of the liturgy schema, had a frigid and even offensive tone to many of the Fathers.” Its approach to revelation merely repeated the standard theological manuals many bishops had used in seminary, and the former professors of some of these Council Fathers had written it! This very problem was what the Council had been called to correct, and here they were being asked to rubber-stamp the dry old formulas of the past 50 years.

This vocal rejection of the prepared text led to one of the most dramatic moments of the first session of the Council. In order to set aside the schema on revelation, its opponents needed two-thirds of the vote. The result was 1,368 voting to withdraw the text and 813 voting to keep it: 100 short of the two-thirds needed. It was clear, however, that the will of the Council Fathers was to reject the schema and begin again. Thus, Pope John XXIII set it aside on the following day, creating a commission composed of progressives and conservatives and led by Cardinals Alfredo Ottovani and Augustin Bea. It was a decisive moment in the Council, and the document that emerged from this conflict would come to be considered one of the most important of the entire Council.

(Emphasis supplied.) This is, of course, the progressive narrative. Beginning with the description of the pitched battle between reactionaries in the Curia and the progressive European bishops. Cardinal Ottaviani rammed through neo-Scholastic schemata through his Commissio de Doctrina Fidei et Morum. Only when everything was laid out at the Council was it clear how unsatisfactory Ottaviani’s schemata were, and eventually the Council produced something really, really good.

But McDonald is not quite correct on the particulars. The vote was not exactly “to set aside the schema on revelation,” as he suggests. It was more confusing than that. And these events show clearly that the progressives derailed discussion on De Fontibus Revelationis in order to achieve their broader goals. Dei Verbum might be, as McDonald suggests, a crowning achievement of the Council, but it is only so because the progressives wrecked the Council’s procedures because they did not like De Fontibus Revelationis.

On November 20, 1962, after the disastrous debate in general terms, Archbishop Pericle Felici, the general secretary of the Council, made a stunning announcement,

Post exhaustam disceptationem in universum, circa schema de fontibus revelationis, progrediendum esset ad disceptationem de singulis schematis capitibus. Sed, quia adsunt Patres qui id existimant opportunum non esse, consilio praesidentiae visum est omnium Patrum conciliarium suffragium exquirere. Proinde Patrum conciliarium suffragationi subiicitur dubium quod sequitur: «An disceptatio de schemate constitutionis dogmaticae de fontibus revelationis interrumpenda sit». Qui stat pro interruptione signet in schedula Placet. Qui, e contra, vult continuationem, signet Non placet.

Repeto dubium quod est maximi ponderis. Audiant bene omnes. Dubium hoc est: «An disceptatio de schemate constitutionis dogmaticae de fontibus revelationis interrumpenda sit». Qui stat pro interruptione signet in schedula Placet, qui, e contra, vult continuationem, signet Non placet.

(Acta Synodalia I.3.220.) (Emphasis supplied.) The English version read by Archbishop John Krol, a Council sub-secretary for English speakers, shortly after Felici’s statement was as follows:

Having completed the discussion in general on the schema of the fonts of Revelation, it is in order to proceed to the discussion of the individual chapters of the schema. However, since some of the Fathers consider it inopportune to proceed with the discussion of the present schema, the Council of Presidency has decided to seek an expression of the desire of the Council Fathers in this matter. Wherefore, the following question is being submitted to your vote. The question is: “Should the discussion on the schema, on the dogmatic Constitution de fontibus revelationis be discontinued, terminated?” Those favoring discontinuance, should so signify by marking their ballot in the Placet square. Those opposed to the discontinuance, should so indicate by marking the ballot in the Non placet square.

I repeat. The question is: “Should the discussion of the present schema be discontinued?” Those favoring discontinuance, mark their ballots in the Placet square. Those opposed to the discontinuance, mark their ballots in the Non placet square.

(Acta Synodalia I.3.221–22.) (Emphasis supplied.) Cardinal Döpfner got his way! The Council would hold some kind of vote to express its desire whether or not to continue discussing De Fontibus Revelationis. Not whether to set aside De Fontibus Revelationis. And it was not clear that the Council’s vote would be binding in any way. But Ottaviani’s argument—that the Council was supposed to debate the official schema—was plainly rejected by this action.

In a particularly confusing (or shrewd, we suppose) move, the question was phrased in terms of discontinuation, so, in order to vote to continue discussing De Fontibus Revelationis, a Council father had to vote Non placet. To support the official schema, a Council father had to vote “nay.” Confusing enough. But under article 39 § 1, a two-thirds majority was required. So, if a third of the Council fathers voted Non placet—i.e., to continue discussion on De Fontibus Revelationis—the discussion would continue. In other words, while the formulation of the question favored discontinuation, the rules of the Council permitted a minority of Council fathers to force continuation of the debate. And that’s just what happened. But Pope John personally settled the question, establishing an ad hoc commission to rewrite De Fontibus Revelationis. (Acta Synodalia I.3.259.)

Far from being, as McDonald would have it, a moment when the Council fathers rejected musty neo-Scholasticism in favor of openness or whatever, the battle over De Fontibus Revelationis shows that a committed group of progressives can derail any debate that doesn’t suit them. Henri de Lubac’s Vatican Council Notebooks show that the German bishops were opposed to the deeply Catholic schemata prepared under Ottaviani’s leadership. Karl Rahner, assisted by others, including Joseph Ratzinger, had prepared new drafts upon arriving in Rome. Döpfner’s suggestion of an up-or-down vote on schemata as a whole—unprecedented and based upon a selective quotation of the Ordo Concilii—was taken up by the Council leadership. And when it was put to the Council, the question was phrased in a confusing manner that favored termination of the debate: Council fathers had to vote Non placet continue discussion of De Fontibus Revelationis. Under the Ordo Concilii, two-thirds of the Council fathers had to vote to terminate the debate, and when they failed to achieve the necessary majority, the Pope personally intervened to give them what they wanted.

Maybe it is as McDonald suggests: Dei Verbum returned to an earlier, purer understanding of divine revelation and scripture. And maybe it is true that the neo-Scholastic tendency was a reactionary response to the problems presented by Modernist exegesis. (Though it was a poor response, if so, since the history of the Church shows that the Modernists were not routed in the wake of Vatican I and Pascendi; if anything, they learned how to go along to get along until they could seize power.) But all of that is sort of beside the point: the battle over De Fontibus Revelationis was not an instance where the Council realized how rigid Cardinal Ottaviani and his gang of fanatics were; it is an instance where the progressives complained and obstructed until they got their way.

And, again, this is a lesson that every Catholic—indeed, every person in an organization with traditions—needs to commit to memory.

Sunrise doesn’t last all morning

On December 10, the Vatican’s Commission for Religious Relations with the Jews issued “The Gifts and the Calling of God Are Irrevocable,” an explicitly non-magisterial, non-doctrinal “reflection” on the theological questions that have cropped up after Nostra aetate.

Paragraphs 41 through 44 of the reflection have gotten a lot of attention in the press. Essentially, “The Gifts and the Calling” is an institutional expression of the so-called Two Covenant Theory, which holds that the covenant between God and the Jewish people remains in force, notwithstanding the New Law. This idea—which draws upon Paul’s Letter to the Romans—is an awfully complicated question, and a relatively recent development. On the other side of the question, Pius XII in Mystici Corporis, for example, held that the Old Law was abolished in favor of the New Law by Christ’s death on the Cross. (It is unfortunate that the Commission did not address Mystici Corporis and other magisterial documents that preceded Nostra aetate, which would no doubt have been on the Council fathers’ minds as they debated the question.) But all of this is hugely complicated—to say nothing of how sensitive the whole matter is in the wake of the horrors of the Holocaust—and well beyond our limited theological knowledge.

However, Father John Hunwicke has been posting and reposting a series of reflections on the Commission’s document and Nostra aetate. One of these reflections makes the very interesting point that Christ’s actions were pointed toward Temple-based Judaism and its strongly sacrificial aspects, and Christianity, as found in Christ’s Church, supersedes that form of Judaism. Fr. Hunwicke quotes Rabbi Jacob Neusner, an eminent scholar who has spent a lot of time thinking about Christian-Jewish relations, who argues the institution of the Eucharist was intended to replace the sin-offerings at the Temple. And, of course, Christ referred to himself as the Temple in John’s Gospel when challenged by leaders of the Jewish community. Thus, when one discusses supersessionism, one must, as Fr. Hunwicke says, be precise about what supersedes what.

All of this is a hugely interesting question, and while the Commission’s document has been criticized harshly for the points made in paragraphs 41 through 44, we think that the document, to the extent that it prompts reflection and discussion—particularly interfaith discussion among scholars who know from what on these matters—on these issues is a valuable contribution to dialogue. Even if it is explicitly non-magisterial and non-doctrinal.

Ottaviani, Döpfner, and Article 33 § 1 of the Ordo Concilii

The history of the Second Vatican Council—which is to say, the nitty-gritty, technical stuff—has largely receded into inaccessibility. While the faithful are told—and told and told and told—how important the Council was to the life of the Church. It was a second Pentecost, a rebirth of the Church, and any number of other things. But the how and why of the Council are so poorly understood that this seminal event in the life of the Church might as well have happened on the dark side of the Moon. For our part, given our deficient formation in Church history, we have endeavored to find out more about what actually happened during the Council, including, when possible, the technical aspects of the events. While these technical aspects are, of course, interesting from an antiquarian standpoint, we think that there are lessons that can be drawn from them that may well be applicable today.

For reasons perhaps obvious to you, dear reader, we have followed the arguments of Alfredo Cardinal Ottaviani, then the secretary of the Holy Office (popes were their own prefects in those days). The first session of the Second Vatican Council did not go well for Cardinal Ottaviani. Not only did he find himself outmaneuvered by the Modernists and progressives but he also found himself humiliated openly during sessions of the Council. Perhaps the most notable incident occurred on October 30, 1962, during the debate over the draft constitution De Sacra Liturgia, which, after amendment, was issued as Sacrosanctum Concilium. Ottaviani rightly apprehended that the progressives were aiming at a complete revision of the Mass, widespread use of the vernacular, and communion under both species, among other things. (Acta Synodalia I.2.18–20.) And he said so. And in saying so, he ran over the allotted time for interventions. (The allotted time wasn’t exactly a hard-and-fast rule, either: the Ordo Concilii, art. 33 § 3, provided, merely: “Quilibet Pater de una eademque re, ex regula, semel tantum loqui potest, idemque rogatur decem momenta ne excedat.”) But Bernardus Cardinal Alfrink, a confirmed progressive, was presiding on October 30, and he ordered Ottaviani’s microphone cut—to applause in the hall, which was noted, perhaps cruelly, in the Acta Synodalia.

But the indignity suffered during the debate over De Sacra Liturgia would not be Cardinal Ottaviani’s last battle during the first session of the Council. The progressives, recognizing that some of the approved schemata prepared by the preparatory commissions would not achieve the sweeping changes they demanded, began to prepare and circulate their own draft schemata. The progressive Jesuit Henri de Lubac, in his Vatican Council Notebooks, reports that the Germans, including Jesuit Karl Rahner, prepared an alternate draft of the doctrinal schema almost as soon as they hit the ground in Rome. (Among the bright young priests helping Fr. Rahner draft an alternate schema was a young priest of Munich and Freising and rising theologian, Fr. Joseph Ratzinger. What a life the cloistered monk of Mater Ecclesiae has led!) The alternate schemata were, of course, circulated among sympathetic Council fathers. It goes without saying that Ottaviani objected to this practice.

The issue really began to come to a head on November 14, 1962, in the context of the hugely contentious discussion of Cardinal Ottaviani’s schema De Fontibus Revelationis. (One could write a book on the disastrous course of events surrounding De Fontibus Revelationis and its eventual replacement, Dei Verbum.) Ottaviani did not read the relatio personally—Msgr. Salvatore Garofalo, a professor at the Urbaniana and a member of the theological commission read the relatio, as a matter of fact—but he did make some prefatory remarks, including a very pointed comment about the alternate schemata then circulating:

Circumferuntur quaedam schemata quae essent substituenda schemati officialiter proposito. Hoc mihi non videtur congruere cum dispositione can. 222, par. 2, quae unice Summo Pontifici reservat materiam disponendam, et non esset reverens et obsequiosum erga Summum Pontificem, qui dedit discutiendum propositum schema officialiter, et igitur mens eius est ut hoc schema discutiatur, non alia quae privatim proponuntur. Si sunt correctiones faciendae, huic schemati fiant. Est liberum omnibus proponere correctiones, emendationes. Sed super hoc schema debet fieri discussio, non super alia.

(Acta Synodalia I.3.27.) In fact, Ottaviani’s spoken remarks on this issue were more pointed than his prepared text (cf. Acta Synodalia I.3.28). The theological commission had prepared—not without controversy—schemata for the Council to consider. The Council was supposed to consider the official schemata!

In support of his argument on this point, Ottaviani cited canon 222 § 2, which provided:

Eiusdem Romani Pontificis est Oecumenico Concilio per se vel per alios praeesse, res in eo tractandas ordinemque servandum constituere ac designare, Concilium ipsum transferre, suspendere, dissolvere, eiusque decreta confirmare.

(Emphasis supplied.) In Ed Peters’s indispensable translation of the 1917 Code, this is rendered:

It is for this same Roman Pontiff to preside himself or through another over the Ecumenical Council, to establish and designate the matters that are to be treated and the order to be observed, and to transfer, suspend, dissolve, and confirm the Council and its decrees.

(Emphasis supplied.) That is to say, the pope sets the agenda for ecumenical councils and determines what they will consider.This remains, essentially, the law of the Church today (can. 338 § 2). Cardinal Ottaviani could well have also cited chapter 8 of the Ordo Concilii Oecumenici Vaticani II Celebrandi, which plainly anticipates that the official schemata would be discussed and amended through debate in the public sessions. Regardless of the legal authority, Ottaviani had a point: when John XXIII distributed the commissions’ draft schemata, he “establish[ed] and designate[d] the matter . . . to be treated.”  In Cardinal Ottaviani’s opinion, the Council fathers were therefore obligated to consider the “official” schemata, not agitate for the alternatives, such as the one prepared by Karl Rahner and his collaborators.

The debate over De Fontibus Revelationis went badly. As soon as the relatio was over, Cardinals Liénart and Frings, two leaders of the progressive faction, rose to attack the schema on various issues. (One can read the Acta Synodalia to see exactly why the progressives hated Ottaviani’s De Fontibus Revelationis, needless to say the effects of such a clear, precise statement of Catholic doctrine on ecumenism were deplored.) The battle continued on November 17. Julius Cardinal Döpfner, the young archbishop of Munich and another confirmed progressive, rose to criticize Cardinal Ottaviani’s points. In fact, he argued for a major revision to the procedure of the Council that would open the door to the alternate schemata:

Hanc disceptationem minime timeamus—ceteroquin in quaerenda veritate spectaculum unionis et caritatis in Spiritu Domini praestantes—neque ut irreverentia erga Summum Pontificem censenda est talis discussion. Nam in Ordine ab ipso Summo Pontifice dato legimus (art. 33 § 1), quemvis Patrem de unoquoque schemate admittendo vel emendando vel etiam reiciendo verba facere posse. Ex quo constat: ex laboribus praeparatoriis nullum oritur praeiudicium, et omnino intactum remanet nobis munus diiudicandi quid fiat de unoquoque et etiam de hoc schemate… Post disceptationem in genere autem fiat suffragium, utrum schema ut totum accipiatur an non. Quo suffragio peracto, videbimus quomodo ulterius procedendum sit. Si revera praesens forma schematis maioritati competenti Patrum placuerit, uti subiectum ulterioris laboris adhibeatur; si non, novum schema elaboretur. Et hoc, secundum meum humile iudicium, praeferendum esse videtur, quia a punctis diversis tendentiis et curis magis approprinquante exordium sumeretur.

(Acta Synodalia I.3.125) (Some original formatting omitted.) In other words, according to Cardinal Döpfner, because the Council fathers could, under article 33 § 1 of the Ordo Concilii, urge the rejection of a schema, there was no presumption in favor of the official schemata. And, based upon this lack of presumption, Döpfner took took the argument a step farther: after the general discussion of an official schema, there should be a vote whether the schema should be taken up or not. Obviously, as a German Council father, Döpfner knew that there were alternate schemata circulating, especially Rahner’s draft of a doctrinal schema. And given the course of the debate over De Fontibus Revelationis, one wonders whether Döpfner knew something the rest of the Council fathers didn’t.

Cardinal Ottaviani intervened shortly after Cardinal Döpfner’s speech and responded to the German’s points, suggesting that Döpfner simply did not understand how the preparatory commissions worked. (Acta Synodalia I.3.131.) Ottaviani also responded to Döpfner’s extraordinary suggestion that the schemata receive a general up-or-down vote after the initial debate:

Quod attinet ad novam propositionem factam quando iam labores sunt in fine istius constitutionis, quando iam maioritas…, fortassis cuidam non placet quod iam maioritas se expendit pro approbatione in forma generali cum emendationibus utique istius constitutionis; nunc fit propositio, ut respuatur. Hoc mihi videtur contrarium canoni 222, § 2. Videtur contrarium etiam ipsi dignitati istius consessus.

(Id.at I.3.132.) Once again, Ottaviani raised canon 222 § 2 as an objection to the notion that the Council could reject an official schema. The pope sets the agenda of an ecumenical council and the pope proposed the official schemata.

But Döpfner’s position got an unexpected boost against Ottaviani’s canon 222 § 2 argument. Norman Cardinal Gilroy, an Australian, was in the chair on November 17, and he read a note, responding to Ottaviani’s remarks:

Aliquis Pater conciliares mihi tamquam praesidi scripsit: «Enixe rogo em.mum praesidem congregationis ut attentionem Patrum dirigat ad canonem 33, sectionem primam. Est quod sequitur: “Quivis pater verba facere potest de unoquoque proposito schemate vel admittendo vel reiciendo”. Attentio dirigatur ad verbum reiciendo».

(Id.) (Emphasis supplied.) It is apparent, then, article 33 § 1 is therefore a significant procedural rule for this moment in the history of the Council: Cardinal Döpfner cited it as in support of his argument that no presumption existed in favor of the official schema, and it was the basis of the note passed to Cardinal Gilroy to shut Ottaviani down. And, given that the debate over De Fontibus Revelationis turned out to be a tremendously significant moment in the first session of the Council—indeed, the whole Council—one might say that article 33 §1 is a significant procedural rule for the history of the Council as a whole. But what does it say?

One must look for a copy of the the Ordo Concilii Oecumenici Vaticani II Celebrandi, as it was during the first session of the Council. (The Council’s procedures were later revised during the Council itself on a sort of ad hoc basis, including during the debate over De Fontibus Revelationis.) However, the 1962 Ordo Concilii can be found in Latin as an appendix to John XXIII’s motu proprio Appropinquante Concilio, helpfully available in Latin and Spanish on the Vatican’s website. There, you find article 33 § 1:

Quivis Pater verba facere potest de unoquoque proposito schemate vel admittendo, vel reiciendo, vel emendando, suae orationis summa Secretario generali saltem tres ante dies scripto exhibita.

It’s a procedural provision. The Council fathers could make an intervention urging the adoption, rejection, or amendment of an official schema so long as they provided a copy of their written text to the Council general secretariat. That’s all. It is certainly not a mandate for an anything-goes discussion. And the progressives at the Council probably knew that, since they assiduously avoided quoting the final clause of the provision: suae orationis summa Secretario generali saltem tres ante dies scripto exhibita.

If the procedural aspect of article 33 § 1 weren’t clear enough from its words, the remaining provisions of article 33, make it clear:

§ 2. Oratio ita ordinanda est ut prius de principiis generalibus, postea vero de particularibus dispositionibus agatur, schematis ipsius. semper ordine servato.

§ 3. Quilibet Pater de una eademque re, ex regula, semel tantum loqui potest, idemque rogatur decem momenta ne excedat.

§ 4. Si orator obiecti vel temporis assignatos limites praetergrediatur, potest a Praeside ad eosdem revocari.

§ 5. Qui emendationes proposuit, absoluto sermone, scriptam relationem eandemque a se subscriptam Secretario generali tradere debet.

§ 6. Qui singula verba vel paragraphos schematis emendanda censuerit, scriptam formulam proponere tenetur, prioribus substituendam.

In other words, article 33 simply sets forth the procedure of debate in the Council aula. One doubts very much that it was intended to have the substantive significance that Cardinal Döpfner attached to it during his intervention. Certainly, the text, when it isn’t silent, seems to assume that the Council will be debating the official schemata, not preparing and circulating alternate schemata. However, when Döpfner made his intervention and when Gilroy read out the note essentially restating Döpfner’s position, the implication that article 33 § 1 abolished any presumption in favor of the official schemata went almost unchallenged. Almost: on November 20, Bishop Luigi Carli—later to become the subject of some controversy during the debate over Nostra aetate—intervened at length regarding the interpretation of article 33, and he argued against the broad interpretation articulated by Döpfner. (Acta Synodalia I.3.231–33.) Too late, though.

All of this is, of course, interesting in its way. Certainly, the inside baseball of the Council is fascinating, not least since it adds context to the documents the Council ultimately handed down. It also fosters enormous sympathy for Cardinal Ottaviani, who was, it seems, outgunned by the organized progressives at every turn. But there is, it seems to us, another reason for interest in this episode: the progressives’ approach to the law.

Consider what happened in outline form. Ottaviani cited canon 222 § 2 against the practice of preparing alternate schemata. Döpfner quoted part, but not all, article 33 § 1 of the Ordo Concilii in support of the argument that the official schemata enjoyed no presumption and that the Council should take an up-or-down vote on each official schema after the general debate. Ottaviani returned to canon 222 § 2 during the debate, and someone passed a note to Gilroy also quoting part, but not all, of article 33 § 1, and implying that it authorized that sort of practice. In other words, Döpfner’s selective quotation of the rule was used to justify a revolution in procedure plainly not foreseen by anyone but the progressives.

Laws, which ought to be construed harmoniously, were turned against each other. And it largely worked. It seems to us that one can find examples of this sort of activity in various circles today. This, then, is a reason why it behooves traditionally minded Catholics to familiarize themselves with the events at the Council.

On we sweep with threshing oar

Previously, we mentioned Pius XII’s 1941 address, La solennità della Pentecoste, commemorating the fiftieth anniversary of Rerum novarum, as a source for developing a consistent, Catholic understanding of the immigration issues so much in the news lately. We, however, did not mention Pius’s 1952 apostolic constitution (!) on the spiritual care of migrants, Exsul Familia Nazarethana. (Unlike La solennità, an English translation of Exsul Familia is readily available.)

In Exsul Familia, Pius outlines his previous discussions of the right to migrate. In addition to La solennità, he addressed the issue in his 1945 Christmas Eve discourse, Negli ultimi anni, his February 1946 allocution to the newly elevated cardinals, and a 1948 letter to Cincinnati Archbishop John McNicholas. Obviously Exsul Familia is a much longer and much more sustained treatment of the issue of migration. (Though the 1946 allocution certainly addressed the issue at some length, too.)

We admit that we have not memorized all of Pius’s various statements about migrants—though many are collected, helpfully, in Exsul Familia—but it seems to us that he was a pope deeply concerned with the question of migration. Understandably so! His pontificate saw enormous numbers of people displaced by destruction, to say nothing of those who fled when they saw the trajectory of Europe from continent to charnel house. It is entirely reasonable that Pius devoted much thought to migration. It is less reasonable, however, that we seem to have forgotten his teaching on the matter.

Perhaps it’s time to reclaim it.

Important PCLT clarifications on “Mitis iudex”

On the better-than-average website for the Pontifical Council for Legislative Texts, there are six letters concerning the implementation of Mitis iudex Dominus Iesus, the Holy Father’s recent motu proprio reforming the procedure for matrimonial cases. Two letters—Prot. No. 15138/2015 and Prot. No. 15139/2015, both dated October 1, 2015—are especially interesting, as they deal with the admission of a case to the processus brevior. We have written about them before, especially when, as we recall, canonist Ed Condon reported on them initially. However, the PCLT website makes these letters—and four others—available for all who want to read them.

In case you don’t want to visit the PCLT website: the letter in Prot. No. 15138/2015 states,

The new canon 1683 and Art. 15 of the procedural norms make clear that the consent of the petitioner and the respondent (whether given by a joint signature of the parties or by other means) is a preliminary condition to initiate the brief process. The consent of both parties required to initiate this procedure is a condition sine qua non. This explicit consent is foremost necessary because the brief process is an exception to the general norm.

If the whereabouts of a respondent are unknown, the case cannot be accepted for the processus brevior. While the legislator formulated a presumption regarding the disposition of the respondent in art. 11 §2 of the procedural norms, this presumption applies only to the ordinary process and not to the brief process. Though the consent of the respondent can be given by several means, those means must however guarantee publicly and unequivocally his or her will, also for the protection of the judge and the parties. Otherwise, the brief process cannot be introduced.

(Emphasis supplied.) In the same vein, the letter in Prot. No. 15139/2015 states, unequivocally, “The brief process cannot be used, if the respondent remains silent, does not sign the petition or declare his consent.” (Emphasis supplied.) In short, both parties have to appear and explicitly consent to the processus brevior before it can be used. If one party fails to appear or appears and does not consent (note the distinction between objecting and not consenting) to the processus brevior being used, then the case proceeds in the ordinary manner.

This is, of course, an important clarification, since some folks have worried that the processus brevior could be forced upon absent or unwilling parties. In a non-trivial number of matrimonial cases, we are given to understand, one spouse often refuses to participate. Thus, the concern was that the spouse who does want to participate would get the case put on an express train to Constat City. Apparently not. And more than that, if the other spouse does participate but refuses to give his explicit consent to the processus brevior, no processus brevior. (However, as with anything like this procedure, it is still possible to overcome the resistance of a respondent, especially if tribunal staff sell it as a fast-track process in everyone’s best interest.)

Of course, we still wonder how tribunals would be able to weed out colluding couples, who seem to get a leg up in the processus brevior.