Canon Law

Frederick, Aquinas, and sacrilege

Frederick II’s Constitutions of Melfi present an extremely expansive view of royal power. Among the most famous—or infamous—provisions is the law that no one was permitted to dispute the judgments, laws, deeds, and counsels of the king (I.4). Indeed, to do so was, under the law, similar to sacrilege (ibid.). It has been argued that Aquinas’s approach to the law represents a rejection of Frederick’s centralizing, totalizing approach. One would assume, therefore, that Aquinas would reject Frederick’s decree that questioning his official acts was similar to sacrilege. But this is not quite what happens. In his treatment on sacrilege, Aquinas adopts a position very similar to Frederick’s (especially as it was interpreted)—and, we shall see, other sources in the classical legal tradition.

It is worth noting, of course, that Frederick did not invent this law. It was initially a constitution of King Roger II, dating to the middle of the twelfth century, which Frederick then took up into his great code for Sicily in 1231. But a closer examination of the law reveals even more interesting dimensions. Kenneth Pennington has observed that this provision of Roger’s was drawn from an even older source: Justinian’s Codex (9.29.2). But Roger edited it in interesting ways. Justinian stated that it was only forbidden to dispute the judgments (Disputari de principali iudicio non oportet) of the emperor. This was the likeness (instar) of sacrilege for Justinian. Roger expanded to prohibition to all the official acts of the king, not merely his judgments, but declared that it was only similar (par, from pars) to sacrilege (Est enim par sacrilegio disputare). Pennington notes that Andreas de Isernia, the commentator on Frederick’s Constitutions, picked up on the change from instar to par by Roger and Frederick and suggested that the change meant that it was permissible to petition the king to amend something he had done if it was against the common good.

In other words, while Justinian’s provision in the Codex was narrower than Roger’s, covering only the judgments of the emperor, it was understood as an absolute prohibition: it was the likeness of sacrilege to question the emperor’s judgments. Roger expanded it to cover all the official transactions of the king, but commentators like Andreas de Isernia understood another slight variation in the language of Roger’s law (later Frederick’s) to relax (slightly) the rigor of Justinian’s law. If the king’s decision was contrary to the common good, a subject did not commit sacrilege by questioning it and petitioning the king to amend it.

Just a brief look, therefore, changes the complexion of Frederick’s expansive provision. For one thing, it was not an innovation by a centralizing, totalizing dictator. Frederick was merely restating a century-old law of Roger II. Ernst Kantorowicz, in his wonderful Frederick the Second, describes the conditions of lawlessness that preceded Frederick’s accession to the throne. Restating Roger’s laws, therefore, was a necessary part of restoring order in Sicily. More than that, Roger was simply adapting the much older law of Justinian for Norman Sicily. And far from signifying the expansion of royal power, a subtle—but, Pennington argues, obvious—linguistic change was understood to moderate the force of the law. But whether questioning the acts of the king is the likeness of sacrilege or merely similar to sacrilege, and whether there is an exception to the prohibition, it is still strange to modern sensibilities to describe it in those terms.

One point, raised by Alasdair MacIntyre and others, is that Thomas Aquinas implicitly rejected the expansive legislation of Frederick II and Louis IX in favor a decentralized, natural law approach. I have previously questioned this claim: I think MacIntyre is wrong about some of the historical contingencies, including Frederick’s imperial legislation (as opposed to his Sicilian legislation), and wrong about Aquinas. In fact, one finds some support for the seemingly very expansive statute of Frederick (and Roger and Justinian) in Aquinas’s treatment on sacrilege (ST II-II q.99).

The first objection in Aquinas’s treatment of sacrilege is that sacrilege seems not to be the violation of a sacred thing, since Gratian (C.17 q.4 d.p.c. 29, added in the second recension) notes that sacrilege includes questioning the ruler’s decisions and appointments (ST II-II q.99 a.1 obj. 1). The claim is that the ruler’s decisions and appointments seem to have nothing to do with sacred things. Thus, if questioning the ruler’s decisions and appointments is sacrilege, sacrilege has nothing to do with sacred things. Obviously, for Aquinas, sacrilege is irreverence for sacred things (ST II-II q.99 a.1 co.). How, then, to answer the objection?

It would be easy, perhaps, to say simply that there is nothing sacred about the ruler’s decisions and appointments and therefore questioning them is not sacrilege. But this is not what Aquinas does (cf. ST II-II q.99 a.1 ad 1). He observes that Aristotle holds that the common good of the nation is a sacred thing (Ethic. I.2, 1094b10). Aquinas explains this elsewhere, noting that care for the common good has a likeness to God’s rule over the universe (In I Ethic. L.2). Therefore, irreverence for the sovereign and his decisions is called sacrilege by a kind of likeness (ST II-II q.99 a.1 ad 1). In other words, Aquinas answers the objection not by holding that the ruler and the ruler’s acts are not sacred, but by holding they are—through their connection to the common good.

Now, obviously, one may say that the common good exception is a significant exception, but that itself requires some examination. To escalate all questions to questions of the common good is itself opposed to the virtue of prudence. For one thing, the ruler and the subject do not have the virtue of prudence in precisely the same way in all cases (cf. ST II-II q.47 a.12). Indeed, Aquinas notes that we ought to defer to the undemonstrated conclusions of prudent men to the same extent as the demonstrated conclusions (ST I-II q.95 a.2 ad 4). But the natural law does not require the same law for all: the conclusions of practical reason are not the same for everyone (ST I-II q.94 a.4 co.). In other words, a question of the natural law is more serious and more obvious than a mere case of disagreement with the conclusions of the ruler. The exception does not seem then so large.

In this regard, Aquinas follows his contemporary Andreas de Isernia’s commentary on Frederick’s statute (I.4). While Aquinas avoids the question of instar and par, preferring the formulation secundum quandam similitudinem sacrilegium dicitur, set up by Roger’s variation on Justinian’s Codex, he ultimately lands in the same place: questioning the decisions of the ruler is called sacrilege by a kind of similitude, except (implicitly for Aquinas) where they do not serve the common good. Indeed, it is because the ruler’s acts are connected the common good that they assume a sacred character for Aquinas—following Aristotle.

And Aquinas’s argument shows how widespread the claim was, really. We have seen that Frederick merely restates Roger’s law, which was an adaptation of Justinian’s Codex. Aquinas notes that Gratian’s dictum following the canon Si quis suadente (C.17 q.4 c.29) sets forth the same rule, but more absolutely: it is sacrilege to dispute with the judgments or appointments of the ruler. This is an interesting observation, since Si quis suadente, a famous decree of Innocent II at the Second Lateran Council, establishes the privilegium canonis—the personal inviolability of clerics and religious, violations of which were reserved specially to the Apostolic See, except in cases of penitents in articulo mortis. Gratian’s dictum notes that there are more components to sacrilege than merely laying violent hands on a clerk or monk (C.17 q.4 d.p.c. 29).

In other words, the entire legal tradition from Justinian to Roger to Frederick, passing through Gratian, Aquinas, and Andreas de Isernia, holds that it is akin to sacrilege—and sometimes sacrilege simpliciter—to question the official acts of the ruler. This goes back to Aristotle and is founded upon the ruler’s responsibility to pursue the common good in his official acts.

Another debate over integralist law

A thousand years ago, which is to say in February, shortly before the coronavirus pandemic, I wrote a piece for The Josias about integralist penal law. I characterized the piece as fragmentary, intending to point out topics for further discussion and research rather than to outline a coherent “Penal Statutes of the Empire of Guadalupe” (or whatever else one might have in mind). Fundamentally, there are still questions that have to be answered. Indeed, the ground upon which those questions have to be asked remains, for the most part, uncleared. There must be a project of recovery and clarification. The work at Ius & Iustitium that I am pleased to be able to contribute to is, I think, a necessary first step in such a project. But much remains to be done.

Recently I saw on Twitter a thread inquiring about what an integralist would say to a non-Christian about the juridical status of non-Christians under integralism. Such a thread seems to implicate necessarily some of the points I raised in my Josias “fragments.” Certainly in matters of religion, non-Christians may not be coerced into accepting the Faith (ST IIaIIae q.10 a.8 co.). And in general their rites ought to be tolerated, except insofar as they are contrary to the common good (ST IIaIIae q.10 a.11 co.). The question of political office is a little more complicated in Thomas’s thought (cf. ST IIaIIae q.10 a.10). And, of course, the Church herself has more recently than the 13th century taught on these topics in documents such as Dignitatis humanae, though precisely what the Church has taught in Dignitatis humanae is occasionally disputed.

By the same token, however, the Second Vatican Council teaches, in Gaudium et spes, that “political authority, both in the community as such and in the representative bodies of the state, must always be exercised within the limits of the moral order and directed toward the common good—with a dynamic concept of that good—according to the juridical order legitimately established or due to be established” (#74). More than this, it ought to be remembered also that “the political community and public authority are founded on human nature and hence belong to the order designed by God, even though the choice of a political regime and the appointment of rulers are left to the free will of citizens” (ibid.). Jean Cardinal Danielou emphasized that religion is part of the temporal common good (cf. Gaudium et spes #75). This has unavoidable consequences, especially when the Council teaches that it is for the leadership of the state to order the state to the common good, thereby preventing it from tearing itself apart (Gaudium et spes #74).

None of this is especially obscure information. But, ever since the Mortara affair, over two years ago, despite the fact that Aquinas and the writings of the popes are freely available on the internet, it has been clear that few of integralism’s interlocutors intend on doing the reading. One must therefore return always to the same couple of sources to set forth a few very simple principles. Now, of course, these discussions are not really debates about technical juridical questions or indeed broader questions of jurisprudence. They are, at best, requests to be reassured that integralism and liberalism have no meaningful differences and, at worst, attempts to prove that integralism and liberalism have meaningful differences.

Of course, it ought to be frankly and cheerfully conceded that integralism and liberalism have meaningful differences. As a political theology, liberalism is radically and absolutely opposed to the Church and her teachings, to say nothing of an authentically Catholic politics. There will be unavoidable conflicts. How this cashes out in terms of a specific juridical question is, however, not obvious in every case. Nor can it be. The demand for universal, a priori juridical structures is fundamentally opposed to prudence as Thomas, for example, understands it (cf. ST IIaIIae q.47 a.8 co.; IIaIIae q.50 a.1 co.). Framing laws, after all, requires concrete considerations relating to a given state (ST IaIIae q.96 a.1 co.). One might say, perhaps provocatively, that the compulsive demand for universal, a priori juridical structures is connected in a fundamental way to the political theology of liberalism.

We do not always discuss how serious a problem this is. In De civitate Dei, as I cannot help mentioning, Augustine takes up Cicero’s definition of a commonwealth (De civitate Dei 2.21, 19.21). For Cicero, the commonwealth requires a consensus of right and common utility—“res publica res populi, populus autem non omnis hominum coetus quoquo modo congregatus, sed coetus multitudinis iuris consensu et utilitatis communione sociatus” (De re publica 1.39). Even Augustine’s alternative definition in De civitate Dei 19.24 requires fundamentally some kind of agreement; the citizens of that commonwealth make a commonwealth by agreeing—indeed, agreeing harmoniously—upon the objects of their love. The dissensions that liberalism necessarily engenders cannot be neutralized indefinitely through means of liberalism’s political theology, as we see over and over again.

This is why the project of recovering the classical legal tradition is so important. The perennial jurisprudence of the Church—and of Christendom—avoids the traps posed by liberal concepts and the rotten political theology underpinning those concepts. To put it another way, keeping in mind the Church’s teachings as explained by St. Thomas and the Second Vatican Council, the integralist state, which also follows the classical legal tradition, avoids the totalizing impulses of liberalism to craft a one-size-fits-all approach that may well not serve the common good of a particular state. Prudence forbids that sort of approach, even if it might be rhetorically helpful in the context of a Twitter debate.

There are, for example, in addition to things like the Summa and the teachings of the Second Vatican Council, magisterial pronouncements like Innocent III’s decretal Novit ille and Boniface VIII’s bull Unam sanctam, both of which set forth the power and authority of the Roman pontiffs in temporal matters and the circumstances in which the popes have indicated that they may exercise that authority. More than that, we have the strongly suggestive statement of Thomas in his commentary on the Sentences of Peter Lombard that the pope stands at the summit of both spiritual and temporal powers (In II Sent. d.44 q.2 a.3 exp. text.). To be sure, any question of integralist law is bound up extremely closely with the question of the pope’s temporal authority and how the state interacts with that authority.

This is to say that a serious response would be that, while the liberal may demand an immediate juridical concept that would be applied mechanically and universally, the integralist ought to consider the extend to which offering such a concept would be to give the game away to liberalism. Even setting to one side the question of bad faith rhetoric, the classical legal tradition simply does not trade in jurisprudence unmoored from concrete considerations—that is to say, unmoored from the virtue of prudence.

Due process, manifest crimes, and electronic order

Due process as a peculiarly English concept dates to the statute 28 Edw. III c.3, though the jurists of the ius commune debated consistently the concept. It was held, generally, that justice required a defendant be accused, summoned before a tribunal, and given an opportunity to present a defense. However, beginning with Gratian and continuing for a couple of hundred years, jurists struggled with exceptions to the requirement of summons and trial. Two exceptions that were consistently recognized were for infamous crimes and crimes committed in the judge’s presence. While historically there have been geographic limitations on what is infamous and indeed what happens in the judge’s presence, these limitations have dissolved in a significant way as a result of telecommunications technology. This presents anew the problem of these exceptions to due process.

In general, a judge, as the personification of justice, requires two parties: an accuser and the accused (ST II-II q.67 a.3 co.). Justice, after all, is something between two men (ST II-II q.58 a.2 co.). In the medieval period, there was, however, a constant debate over notorious crimes. St. Thomas appears to permit punishment in the case of some notorious crimes (ST II-II q.67 a.3 ad 2). First, publica infamia habet locum accusatoris—public infamy takes the accuser’s place (ibid.). Second, when the Church denounces an excommunicate, since his rebellion against the Church is manifest. Third, according to the order of judicial procedure when the judge is an eyewitness. On this last point, Cardinal Cajetan cites cases of murder or blasphemy before the judge. In such cases, Cajetan notes, the judge may proceed to inflict punishment without further infamy, denunciation, or accusation.

The question of when a judge may dispense with a trial was a live issue throughout the medieval period. Gratian himself, in Causa II, explored the problem of when a judge may pass sentence without a trial, acknowledging by patristic authority—St. Ambrose—that a manifest crime does not require an accusation (C.2 q.1 c.15; d.a.c. 21). Aquinas’s position in the Summa, therefore, reflects the consensus of the canonists following Gratian. Generally, a judge must wait for an accusation and have a trial, but in cases of infamous crimes, he need not follow such procedural norms. The infamous crime itself is the accusation.

The canonist Kenneth Pennington, in his The Prince and the Law, notes that the problem of dispensing with due process remained vexing for canonists. The hugely influential commentator Panormitanus, writing more than 100 years after St. Thomas, wrestled with the problem of notorious crimes, developing his thought on them considerably. Commenting upon Susceptis and Que in ecclesiarum, Panormitanus held that pope and prince alike could dispense with procedural requirements. Pennington notes that Panormitanus apparently took another look on the important procedural decretal Pastoralis and held that a summons and an opportunity for defense were required for secular rulers to inflict punishments.

But, Pennington observes, glossing Ea quae and Cum olim, Panormitanus held that the prince could act beyond procedure—if he acted from the fullness of his power and with certain knowledge—though not beyond the natural law. Ultimately, Panormitanus’s struggles with manifest crimes are understandable: one naturally asks what the procedural requirements are when the accused’s crime is known, either generally or with certainty by the judge. Pennington notes that, in the classical legal tradition, due process was being developed into a check on the unrestrained will of the prince. Panormitanus’s examinations were, Pennington observes, complicated by the tradition that the prince’s acts are presumed to be correct.

Here one may cast a jaundiced eye at the developments following St. Thomas and Gratian. What appears in the thirteenth century as altogether settled becomes unsettled thereafter at the same time as the jurists were attempting to find grounds to restrain the will of the prince. Nevertheless, even in these attempts, the problem of the manifest crime remained vexing, at least to Panormitanus, as Pennington demonstrates. One may well wish to restrain the prince’s will, though that is a different case than public infamy.

At minimum, we may say that the supreme judge of the commonwealth, who has care for the common good, and who can dispense from the law as necessary, can proceed to punish infamous crimes or crimes that happen in his presence. Even those judges who are subordinate and cannot dispense from the laws of the commonwealth as easily may proceed in an inquisitorial or summary manner in such cases. This is not inconsistent with the demands of due process, rightly conceived, because the ius commune acknowledged this exception to the concept of due process from the beginning. The commonwealth always has an interest in seeing wrongdoers punished (ST II-II q.67 a.4 co.). Indeed, punishing wrongdoers is a necessary part of justice, inextricably bound up with the common good (cf. ibid.).

One has to consider the problem of manifest crimes in an era of spatial orders that include the magnetic waves encircling the earth. There is only geographically distance between, for example, Portland and Washington, D.C.: the instantaneous communication between those two cities, at two extremes of the Republic, renders that geographical distance much less significant. Indeed, in a moral sense, we may say that there is no distance between them. In the medieval context, where even relatively small distances proved daunting in terms of travel and communication, the limits of public infamy and crimes committed in the presence of the judge were fairly restrictive. Even a few miles may serve to mitigate notoriety or to ensure that the judge could not see a crime.

Today, however, telecommunications technology ensures that notoriety in one part of the world—not merely within the state—is notoriety in all parts of the world. More than that, notoriety online becomes notoriety in real life: cancel culture inflicts concrete punishments, extrajudicially, on citizens for offenses against morals and order (after a fashion). Likewise, the judge himself can see with his own eyes all manner of crimes, documented in high definition and streamed on Twitter, YouTube, or the nightly news. In this regard, the order of the state includes wholly virtual spaces, with serious consequences for notoriety and crimes committed in the presence of the judge. The exceptions to due process in the classical legal tradition, exceptions explored by St. Thomas and medieval jurists like Panormitanus, swallow up more and more.

When the great distances of the United States presented similar problems to medieval Europe, the question of exceptions to due process did not present itself in a very serious way. Judicial districts were geographically large and notoriety in one part of a county (or a state or a territory) might not equate to notoriety in another part. However, the old problems present themselves anew in an age of telecommunications—when notoriety is universal and instantaneous, when everyone can see everything. This necessarily implicates the leadership of the state: the commonwealth always has an interest in seeing wrongdoers punished (ST II-II q.67 a.4 co.).

The hour of the lawyers

Today a new blog, Ius & Iustitium, has launched. It is an outgrowth of The Josias devoted to jurisprudence and legal theory. No doubt the development will please the enthusiasts of “Big Integralism.” I am happy to say that I have contributed a piece to the blog about Fr. Thomas Crean and Prof. Alan Fimister’s book, Integralism, and their treatment of the Lex Regia and its medieval reception. Certainly, despite my criticism about this issue (and others), I think Integralism is a fine way to start a more serious phase of the discussion.

Despite my high opinion of my work, I suspect everyone is going to be very interested in Adrian Vermeule’s piece, which builds upon his common-good conservatism argument. It sparked a huge debate when he first set it out in The Atlantic. Certainly any argument that a substantive vision of the good has a place in law is going to be hugely interesting to Catholics, and rightly so. While I certainly hope for the success of any project I am involved with, I think that Ius & Iustitium is going to be an interesting, exciting project—especially with the state of the discourse, as it were.

A less serious phase of the discussion was my satire on Anglo-American originalism at The Josias. The technical aspect of the argument, I think, is actually correct: the English law on punishing heretics comes pretty directly from Frederick II’s imperial legislation by the way of Boniface VIII’s decretals. The English common law remains an important background source (and, in fact, a default) for American law. It is fun, I think, to give the originalists a dose of their own medicine with precisely the sort of antiquarian research that passes for jurisprudence in those circles, though aimed at a very different conclusion than the one most of them would like.

But all this jurisprudence—if it can be called such—has been in service of a goal, of sorts. In following the recent debates over integralism, especially the debates on Twitter, the popular microblogging website favored by so many of the cultural and political leaders of the age, it is increasingly clear that an important fault line is juridical thought. Some of the leading critics of integralism, including Michael Hanby and various graduate students, seem to be unaware of the Church’s juridical tradition, stretching back through Gratian to the early canonists, and the substantive content of that tradition.

The ignorance leads to strange mistakes. For example, when discussing coercion, some critics of integralism seem blissfully unaware that the Church to this very hour claims the right to coerce the faithful, even in temporalities—and no less an authority than John Paul II declared this was entirely consistent with Vatican II’s ecclesiology. They also love to spool out elaborate “Augustinian” political theologies. However, they seem unaware that Gratian, who established the foundations of the Church’s jurisprudence for 700 years or so, happily took what he wanted from Augustine in his Causae hereticorum (and elsewhere) to justify all sorts of things they’d get queasy about.

I think certain trends in the discourse are attempts to solve fundamentally juridical problems with reference to some other discipline, such as theology, political theory, or political economy. In some instances, this may be required by preexisting commitments. However, some questions simply are not amenable to solution by proxy. Ultimately integralism is a question in the juridical dimension: the theoretical component is relatively modest. Implementing the theoretical component, however, requires juridical solutions. By the same token, an objection to integralism is primarily a juridical argument and ought not to be disguised with St. Augustine or Karl Marx or some other figure.

Additionally, it is clear that Christians generally find themselves in a space where the law matters. Justice Neil Gorsuch’s recent decision regarding the sex discrimination provision of Title VII of the Civil Rights Act of 1964 will undoubtedly have an impact on the Church and other Christian groups. What that impact is remains to be seen. The Court, for example, has two ministerial exception cases that have yet to be decided this Term. There are other important cases, including a replay of the Hellerstedt case set in Louisiana. Meanwhile, in the context of a challenge to Illinois’s coronavirus restrictions, Judge Frank Easterbrook of the Seventh Circuit declared that churches could find workarounds for in-person services, since, after all, feeding the spirit is less serious than feeding the body (like a shelter or soup kitchen).

The juridical dimension matters. Ius & Iustitium, for my part, is a welcome development if all it does is emphasize the importance of juridical thought for Catholics.

Integralism, authority, and inequality

Notre Dame theology student Timothy Troutner has written a Brobdingnagian critique of integralism at Notre Dame’s Church Life Journal. Pater Edmund Waldstein, O.Cist., has responded, correctly identifying a desire to baptize anarchism at the heart of Troutner’s critique. Such a plan, however, is contrary to the consistent teaching of the Church from St. Augustine to St. Pius X. Drawing from St. Augustine, we will see that anarchism of any kind is contrary to good order. Indeed, good order in the home and in the state requires inequality, which at a minimum requires rulers and ruled. Additionally, Troutner’s critique ignores important juridical texts, which maintain the Church’s right to coerce the faithful, even with respect to temporal goods. In this dimension, his critique represents the danger of departing completely from the magisterial and juridical statements of the Church in favor of the speculations of modern theologians.

I.

Before turning to the issues, it is interesting to see Troutner’s piece framed in terms of integralism. He could make his argument about Christian anarchism purely in terms of liberalism. Such an argument proceeds trivially: liberalism promises liberation and individualism but, despite its promises, it leaves the way open for various factors to dominate in just the same way they did before liberalism. (One could even, for a little bit of that socialist je ne sais quoi repeat Karl Marx’s arguments from On the Jewish Question, where he distinguishes between political emancipation and human emancipation.) He could get most of his talk about “cruciform power” and the libido dominandi in with reference only to liberalism. Instead, he sets out to show that integralism and liberalism are two sides of the same coin.

He does this because integralism has increasingly come to represent the default anti-liberal position among Catholics. So much is this the case that Troutner’s purpose is to claim that integralism is not as anti-liberal as people think, opening up some space for his preferred Catholic Worker model, which apparently represents true anti-liberalism. In this regard, despite Troutner’s tart critiques of integralist rhetoric, it must be recognized that integralist rhetoric has been hugely successful. Integralists might be insufficiently grieved by the supposed sins of Christendom, whatever on earth that could mean, but they have been effective in advancing integralism as a live idea.

There is, of course, a prehistory of the extremely online integralism that plays out on Twitter, WordPress blogs like this one (recognized by Catholic author Sohrab Ahmari among others), and websites like Church Life Journal and Public Discourse. It is easy to forget that Archbishop Marcel Lefebvre was at least as concerned about Dignitatis humanae and the apparent incompatibilities between that document and the social teachings of Pius IX, Leo XIII, St. Pius X, and Pius XI. His Open Letter to Concerned Catholics addresses these issues at length. The Society of St. Pius X kept the flame alive after Lefebvre’s death. To some extent, therefore, concerns particular to French traditionalists have found their way into the discourse regarding integralism. That is to say, there is a throne-and-altar element to integralism that may or may not be applicable automatically to the political situation in the United States.

The upshot of all of this is that, after decades of patient work by Catholics like Archbishop Lefebvre, integralism has come into its own once more as the primary Catholic answer to liberalism. Troutner’s piece implicitly accepts the prominence of integralism even as it critiques it and attempts to identify another anti-liberal path for Catholics. We shall see, of course, that Troutner’s alternative path is strewn with serious problems.

II.

As noted above, Pater Waldstein correctly identifies the upshot of Troutner’s piece: Christian anarchism. Troutner’s reference to Dorothy Day’s Christian Worker movement gives away the game, and Pater Waldstein knows it. It is not that liberalism and integralism present, to Troutner, bad concepts of authority. One gets the sense that all concepts of authority are bad as far as Troutner is concerned. Pater Waldstein correctly notes that Dorothy Day was inspired by the Sillon, which was condemned by St. Pius X in Notre charge apostolique in large part because of its rejection of authority. He also recounts a couple of anecdotes from Day’s memoir about the problems the Catholic Worker movement encountered as a result of its anarchic philosophy.

Of greater value is Pater Waldstein’s careful analysis of the Rule of St. Benedict and the way it creates a kind of equality through hierarchy. We suspect that Pater Waldstein, a Cistercian monk of Heiligenkreuz in Austria, has had more time to learn and meditate upon Benedict’s rule than most people will ever have in their lifetimes. And his explanation of the Rule is well worth considering. It is also well worth considering Augustine, which both Troutner and Pater Waldstein discuss at some length.

Despite Troutner’s repeated claims about Augustine and the libido dominandi, we find no reference to De civitate Dei XIX:13, where Augustine sets forth the relation between peace, order, and inequality. It might be helpful to consider this argument at some length, as it develops some points made by Pater Waldstein. We will quote it in Latin and English (the freely available English translation is a little inadequate):

Pax itaque corporis est ordinata temperatura partium, pax animae inrationalis ordinata requies appetitionum, pax animae rationalis ordinata cognitionis actionisque consensio, pax corporis et animae ordinata uita et salus animantis, pax hominis mortalis et Dei ordinata in fide sub aeterna lege oboedientia, pax hominum ordinata concordia, pax domus ordinata imperandi atque oboediendi concordia cohabitantium, pax ciuitatis ordinata imperandi atque oboediendi concordia ciuium, pax caelestis ciuitatis ordinatissima et concordissima societas fruendi Deo et inuicem in Deo, pax omnium rerum tranquillitas ordinis. Ordo est parium dispariumque rerum sua cuique loca tribuens dispositio.

And in English:

The peace of the body then consists in the duly proportioned arrangement of its parts. The peace of the irrational soul is the harmonious repose of the appetites, and that of the rational soul the harmony of knowledge and action. The peace of body and soul is the well-ordered and harmonious life and health of the living creature. Peace between man and God is the well-ordered obedience of faith to eternal law. Peace between man and man is well-ordered concord. Domestic peace is the well-ordered concord between those of the family who rule and those who obey. Civil peace is a similar concord among the citizens. The peace of the celestial city is the perfectly ordered and harmonious enjoyment of God, and of one another in God. The peace of all things is the tranquillity of order. Order is the distribution which allots things equal and unequal, each to its own place.

Watch carefully the analogy Augustine draws between the family and civil society (or the state): peace in the household is the concord of those who command and those who obey among the inhabitants; likewise, peace in the city is the concord of those who command and those who obey. Pax omnium rerum tranquillitas ordinis: the peace of all things is the tranquility of order, and order requires inequality.

In Pater Waldstein’s consideration of the Rule of St. Benedict we have a clear example of the tranquility of order. There is a rigid order—one could even say inequality—in monastic life, even to those who arrived in the monastery at different hours of the same day. But, just as Augustine sees the peace of the city in the careful arrangement of things and persons in their places, St. Benedict sees the peace of the monastery in the careful arrangement of monks in their places. The anarchism that Troutner points toward does not accept this careful arrangement, and it is hard to see how it will result in peace instead of a society of thwarted tyrants governed by force by the strongest and cleverest among the tyrants.

Moreover, one might go so far as to say that, without those who command and those who obey, peace within the state is impossible to find. The sort of anarchic equality that Troutner obviously yearns for is not a plan for order. Instead it is a plan for its exact opposite. In the De regno, Aquinas observes,

Nam provinciae vel civitates quae non reguntur ab uno, dissensionibus laborant et absque pace fluctuant, ut videatur adimpleri quod dominus per prophetam conqueritur, dicens: pastores multi demoliti sunt vineam meam. E contrario vero provinciae et civitates quae sub uno rege reguntur, pace gaudent, iustitia florent, et affluentia rerum laetantur. Unde dominus pro magno munere per prophetas populo suo promittit, quod poneret sibi caput unum, et quod princeps unus erit in medio eorum.

In English:

For provinces or cities which are not ruled by one person are torn with dissensions and tossed about without peace, so that the complaint seems to be fulfilled which the Lord uttered through the Prophet [Jer 12:10]: “Many pastors have destroyed my vineyard.” On the other hand, provinces and cities which are ruled under one king enjoy peace, flourish in justice, and delight in prosperity. Hence, the Lord by His prophets promises to His people as a great reward that He will give them one head and that “one Prince will be in the midst of them” [Ez 34:24, Jer 30:21].

One could, if one wanted to, draw some interesting arguments from the citations to Ezekiel and Jeremiah, and their applicability to Christ. (And from Christ, one could, following Ernst Kantorowicz, draw interesting arguments to medieval political theology and the medieval concept of the ruler. More on that in a minute.)

It is enough for our purposes here, however, to observe that, for Augustine, peace depends on order and order depends on inequality. At the very least, for peace in the household and peace in the state, there must be a basic form of inequality: those who command and those who obey. Without those who command, there cannot be the concord that is peace. Leveling—and the implicit rejection of authority contained within leveling—destroys order. This leaves open, of course, important questions. For example, and most relevant to Troutner’s point, it leaves open the question of what rule looks like. Troutner might argue—indeed, a charitable reading of his piece probably is—that he doesn’t reject authority so much as a secular, coercive authority.

However, Augustine, as we will see, got there first in De civitate Dei XIX:16. Troutner argues at some length (as with everything else in his piece) that it is secular, coercive authority that is the most serious issue. Augustine, a little bit past what we just discussed, talks about the rule of a good father in the household. From this passage, we will see that Troutner’s horror of coercion is simply not supported by Augustine’s vision of authority. First in Latin:

Qui autem ueri patres familias sunt, omnibus in familia sua tamquam filiis ad colendum et promerendum Deum consulunt, desiderantes atque optantes uenire ad caelestem domum, ubi necessarium non sit officium imperandi mortalibus, quia necessarium non erit officium consulendi iam in illa inmortalitate felicibus; quo donec ueniatur, magis debent patres quod dominantur, quam serui tolerare quod seruiunt. Si quis autem in domo per inoboedientiam domesticae paci aduersatur, corripitur seu uerbo seu uerbere seu quolibet alio genere poenae iusto atque licito quantum societas humana concedit, pro eius qui corripit utilitate, ut paci unde dissiluerat coaptetur. Sicut enim non est beneficentiae adiuuando efficere, ut bonum quod maius est amittatur: ita non est innocentiae parcendo sinere, ut in malum grauius incidatur. Pertinet ergo ad innocentis officium, non solum nemini malum inferre, uerum etiam cohibere a peccato uel punire peccatum, ut aut ipse qui plectitur corrigatur experimento, aut alii terreantur exemplo.

In English:

But those who are true fathers of their households desire and endeavor that all the members of their household, equally with their own children, should worship and win God, and should come to that heavenly home in which the duty of ruling men is no longer necessary, because the duty of caring for their everlasting happiness has also ceased; but, until they reach that home, masters ought to feel their position of authority a greater burden than servants their service. And if any member of the family interrupts the domestic peace by disobedience, he is corrected either by word or blow, or some kind of just and legitimate punishment, such as society permits, that he may himself be the better for it, and be readjusted to the family harmony from which he had dislocated himself. For as it is not benevolent to give a man help at the expense of some greater benefit he might receive, so it is not innocent to spare a man at the risk of his falling into graver sin. To be innocent, we must not only do harm to no man, but also restrain him from sin or punish his sin, so that either the man himself who is punished may profit by his experience, or others be warned by his example.

In other words, for Augustine (but not for Troutner) there is no contradiction between coercion, seu verbo seu verbere, and radical humility. Indeed, for Augustine, coercion is part of the obligation of the good father: erring members of the family must be brought back into the order of the family. The radical suggestion is that a good father must punish sin in his family, either for the benefit of the sinner or as an example for others to benefit from.

Recalling Augustine’s connection between order in the family and order in the state, the consequences of this argument are startling. Just as a father must punish a disobedient member of his household, so too must the leaders of the state punish disobedient citizens. Augustine makes this point manifest when he says:

Quia igitur hominis domus initium siue particula debet esse ciuitatis, omne autem initium ad aliquem sui generis finem et omnis pars ad uniuersi, cuius pars est, integritatem refertur, satis apparet esse consequens, ut ad pacem ciuicam pax domestica referatur, id est, ut ordinata imperandi oboediendique concordia cohabitantium referatur ad ordinatam imperandi obediendique concordiam ciuium. Ita fit, ut ex lege ciuitatis praecepta sumere patrem familias oporteat, quibus domum suam sic regat, ut sit paci adcommoda ciuitatis.

In English:

Since, then, the house ought to be the beginning or element of the city, and every beginning bears reference to some end of its own kind, and every element to the integrity of the whole of which it is an element, it follows plainly enough that domestic peace has a relation to civic peace — in other words, that the well-ordered concord of domestic obedience and domestic rule has a relation to the well-ordered concord of civic obedience and civic rule. And therefore it follows, further, that the father of the family ought to frame his domestic rule in accordance with the law of the city, so that the household may be in harmony with the civic order.

Nowhere in Augustine’s vision does one find the suspicion of authority and coercion that one finds in Troutner’s essay. Indeed, we can say that Augustine’s vision rejects the sort of anarchism that Troutner ultimately finds so appealing.

As for Troutner’s repeated points about service and humility, we have seen that Augustine has an answer for that, too. As it is the desire and work of fathers that the members of their households achieve the bliss of heaven—participation in the life of the Trinity, as Troutner might say—their burden of rule in the household is greater than the burden of service. The coercive or exemplary punishments they administer, aimed at sin, are an integral part of the burden of rule in the household. It is, Augustine reminds us, not innocent to spare punishing a sinner at the risk of the sinner falling into greater sin. And recalling Augustine’s analogy between domestic rule and civil authority, we might say that punishing sin in the state is part of the burden of civil leaders, which they are not at liberty to ignore.

Pater Waldstein makes the point that St. Benedict has a vision of power similar to St. Augustine’s:

The abbot is to be obeyed in everything, and to be called Dominus (Lord) and Abbas (Father), because “he is regarded as the vicar of Christ in the monastery.” The abbot is to rule his monastery with wisdom and gentleness. He is to apply punishments both corporal (beatings) and spiritual (exclusion from common prayer and meals). In administering these punishments the abbot has to be mindful of different dispositions . . . But he must also be mindful not to punish too severely “lest, seeking too vigorously to cleanse off the rust, he may break the vessel” (RB 64).

This is not incompatible with radical service and humility. Indeed, St. Benedict sees the abbot as the vicar of Christ in the monastery, and consequently we may say that Benedict’s vision of the abbot’s power is necessarily Christological. Yet, Benedict sees no contradiction between this and coercive punishments, both corporal and spiritual. Now, there must be justice and mercy in these punishments, but St. Benedict, like St. Augustine, sees no contradiction between Christological power and coercive punishment.

Pater Waldstein goes on to make the point that we cannot help making ourselves:

Is the “form” of the abbot’s power as described by St. Benedict too worldly? Is he a victim of what Troutner calls “cognitive dissonance” in using punishments to help his monks to conform themselves to a crucified Lord? Surely not. The form of abbatial authority is truly Christological. The use of punishment in the Rule is a reaction to violation of the peace, meant to lead monks back to Christ, and the witness of monastic saints throughout the centuries testifies to its wisdom. The goal is to lead sinners to true freedom[.]

Just as the father uses coercion to restore domestic peace, disrupted by disobedience, so too does the abbot use coercion to restore peace in his monastery. Likewise, when the civil authority uses coercion, it is to restore peace in the state. There is no incompatibility between this sort of coercion and Christological authority, despite Troutner’s argument to the contrary.

Indeed, at the height of Christendom, so distasteful to Troutner, the civil authority and all its unpleasant coercion was seen as explicitly Christological. Pater Waldstein cites Ernst Kantorowicz’s monumental volume, The King’s Two Bodies, to make this point. The medieval understanding of kingship was explicitly Christological. One suspects that Troutner’s essay would have been altogether more coherent if, instead of reeling off the usual list of putative crimes of Christendom, he had engaged thoroughly with the medieval understanding of kingship. It is pretty clear that no one from St. Peter and St. Paul to St. Augustine to St. Benedict to St. Thomas Aquinas saw any contradiction between coercive power and Christological authority. Indeed, the best evidence is that they saw exactly the opposite.

It is possible, we admit, that St. Augustine and St. Benedict failed to understand the Christological redefinition of power that Troutner, following his modern doctors of the Church, sees all too clearly. It is possible, if only barely, that St. Peter and St. Paul failed to understand the Christological redefinition of power. And it is possible that the medieval theologians and rulers who saw no contradiction between a Christ-like king and coercion missed the point, too. But such an argument requires infinitely more proof than the proof Troutner brings. Merely sniffing “Formerly all men were mad” from the safety of the faculty lounge won’t cut it. Part of Troutner’s problem is that his vision of Christianity has a “Scene Missing” card from about five minutes before Christ was brought before Pilate until about five minutes before St. John XXIII let Karl Rahner come to the Second Vatican Council. Troutner does not grapple with Christ’s statement in Matthew 28:18 that “All power is given to me in heaven and in earth.” He does not grapple with important texts like Romans 13 or 1 Peter 2 and the extensive commentaries on those texts that developed in the last couple thousand years. In the light of the odd lacunae in Troutner’s discourse on power, it is possible that Augustine simply failed to understand the Christological redefinition of power, but it is more likely that Troutner simply failed to understand the tradition in his haste to baptize anarchism.

It is also possible that Troutner will respond—if he responds at all—that we are merely prooftexting Augustine. (We will see in a minute that Troutner thinks integralists prooftext Pius IX and Leo XIII. Prooftexting holds some unique horror for him.) But that would be disingenuous. Augustine sets forth two related arguments. One deals with the necessity of inequality, the other just rule. Both arguments, quoted largely verbatim, seem to undercut fatally Troutner’s arguments about authority and coercion. The upshot is that either Augustine has it wrong or Troutner does. But we do not think that there’s a way that both of them can be right, given Troutner’s disgust with coercion.

III.

One other point about coercion, which ought not be overlooked, because it is no less devastating to Troutner’s point than the arguments from Augustine and Thomas Aquinas. While a theologian such as Troutner may resent the present prominence of jurists and political theorists, it would have been wise to consult some jurists before holding forth on the Church and coercion. To this very hour, the Church holds that it “has the innate and proper right [nativum et proprium ius] to coerce offending members of the Christian faithful with penal sanctions” (1983 CIC can. 1311). When John Paul II promulgated the 1983 Code of Canon Law, he remarked at some length about how the 1983 Code implements the ecclesiology of Vatican II. In his apostolic constitution Sacrae disciplinae leges, John Paul wrote, “[t]he instrument, which the Code is, fully corresponds to the nature of the Church, especially as it is proposed by the teaching of the Second Vatican Council in general, and in a particular way by its ecclesiological teaching.” “Indeed,” John Paul goes on to say, “in a certain sense, this new Code could be understood as a great effort to translate this same doctrine, that is, the conciliar ecclesiology, into canonical language.” It is not correct to imply, as Troutner does, that the Church awoke from the bad dream that began with Constantine and ended with Leo XIII, and—once more awake as in the days of Augustine—it rejected worldly coercion.

It is not correct, either, to respond that the coercion the Church claims as its “innate and proper right” is somehow purely spiritual. The Code holds that “[t]he law can establish other expiatory penalties which deprive a member of the Christian faithful of some spiritual or temporal good [christifidelem aliquo bono spirituali vel temporali privent] and which are consistent with the supernatural purpose of the Church” (1983 CIC can. 1312 § 2). In other words, not only does the Church claim coercion as its “innate and proper right,” it claims as part of that right the ability to deprive a member of the faithful even of temporal goods. And all of this was promulgated by a pope who stated, as he promulgated such laws, “it is to be hoped that the new canonical legislation will prove to be an efficacious means in order that the Church may progress in conformity with the spirit of the Second Vatican Council, and may every day be ever more suited to carry out its office of salvation in this world.”

It would be difficult to claim that the Church is unaware of the Christological definition of power, with its emphasis on humility and service. Indeed, John Paul II notes,

Among the elements which characterize the true and genuine image of the Church, we should emphasize especially the following: the doctrine in which the Church is presented as the People of God (cf. Lumen gentium, no. 2), and authority as a service (cf. ibid., no. 3); the doctrine in which the Church is seen as a “communion,” and which, therefore, determines the relations which should exist between the particular Churches and the universal Church, and between collegiality and the primacy; the doctrine, moreover, according to which all the members of the People of God, in the way suited to each of them, participate in the threefold office of Christ: priestly, prophetic and kingly. With this teaching there is also linked that which concerns the duties and rights of the faithful, and particularly of the laity; and finally, the Church’s commitment to ecumenism.

Indeed, John Paul finds in Lumen gentium a renewed emphasis on precisely the dimensions that Troutner finds all important for his argument. And John Paul, as we have noted, finds the 1983 Code to be an implementation of precisely these dimensions. Thus, just as St. Augustine and St. Benedict find no contradiction between the Christological definition of power and coercion, neither does John Paul find a contradiction between such a definition and coercion.

Troutner’s appalling, galling assertions that “[i]ntegralists ‘do not notice that they are tempting the Church, just as Satan tempted Christ in the desert'” and “[i]ntegralists demean, even betray, the spiritual realities under consideration with these unbaptized notions of power and subordination,” which are no doubt what passes for clever talk in the seminar rooms and graduate student lounges in South Bend, Indiana, might sit a little better if it appeared that Troutner had the faintest idea what rights the Church claims for herself. But if he does, as we say elsewhere in Indiana, he hides it pretty well. It might—might—be a reasonable critique of integralist discourse that it is too concerned with the juridical and the technical. But Troutner’s screed demonstrates the danger of divorcing oneself wholly from the juridical and the technical. When you skip the details to rhapsodize about “cruciform power,” you miss important points. Like the fact that the Church claims the right to coerce the faithful even with respect to temporal goods, and does so apparently consistently with the Second Vatican Council.

IV.

One could spend hours dissecting Troutner’s other conceptual and theological errors. (From the length and detail of his rebuttal, Pater Waldstein did.) It is enough to say that Troutner, like every other critic of integralism except, bizarrely, Robert Miller, fails utterly to engage with the magisterial status of integralism. Troutner sneers about integralists “prooftexting” from Pius IX and Leo XIII. (No doubt this is a devastating point among young theologians.) However, Troutner never seems to stop and ask whether Pius IX and Leo XIII have spoken the last words on the integralism question. This is not a trivial error, though a theologian may wish to dispense with considering what the popes have taught to get to the really important authors like Francesca Murphy, David Schindler, and Hans Urs von Balthasar. But, if the teaching on integralism is infallible, the discussion looks very different. (Troutner might even have to consider more critically his doctors of the modern Church like Murphy, Von Balthasar, and Schindler!)

It is not as though the argument in support of infallibility is weak. Dr. John Joy has expounded it at great length. Robert Miller and Lawrence King have responded to Joy at Public Discourse, currently the headquarters of anti-integralist liberal Catholic thought. Miller and King argue (based largely on King’s Ph.D. research) that Pius IX’s Quanta cura is not infallible. You can read their argument there. Of course, Miller and King treat Quanta cura (and, implicitly, Leo XIII’s magisterium) as though it happened in a vacuum; that is, they simply apply their own private judgment to it and come up with the conclusion that it is not infallible. There is no meaningful effort to grapple with contemporary commentators, many of whom would be summarized and cited in any number of the standard manuals of the day. However, the point is that the infallibility argument is well developed and the response to it is close enough to well developed for polemical purposes.

V.

For the foregoing reasons, it is safe to say that Troutner’s critique of integralism simply doesn’t cut it. He has problems in just about every dimension, and most of those problems are fatal to his argument. This is not to say that there is not a critique of integralism—or, more precisely, integralist rhetoric—to be made. However, it seems to us that the best critique of integralism is not a critique of integralism at all, but an exploration of different modes of integralist authority. That is, there is a range of integralist models on display today, ranging from the centralized medieval state of St. Louis IX (and, if we are being fair, Frederick II) to states more closely aligned with the modern model. Leo XIII himself observed that the Church did not mandate any particular form of government. Consequently there is some room for creativity in terms of articulating proposals for an integralist state.  Building on St. Augustine and St. Thomas Aquinas, it seems to us that it is entirely possible to imagine different models of the state that are less centralized. It is also possible to harmonize integralist thought with the doctrinal pronouncements of the Second Vatican Council. Dr. Thomas Pink has done that at some length. Surely there are other ways of considering the interrelation and interaction of the teachings of the Council with the integralist model of the state.

Furthermore, Harvard law professor Adrian Vermeule has articulated a strategy—the “long march through the institutions”—that doesn’t really require, for the moment, the resolution of questions about coercion and state power. Such a pragmatic approach acknowledges that, while debates on Church Life Journal and WordPress blogs are edifying and stimulating, they are a long way from moving the levers of power. Meanwhile liberalism’s domination is unchecked. It must be admitted, even by integralists, that integralists are not in a position to implement their views, even if their views are gaining wider acceptance. The important task, Prof. Vermeule might argue, is getting serious Catholics closer to the levers power by following the cursus honorum of liberalism. Only when Catholics are in a position to move the civil authority closer to the Church’s teachings will the debates over coercion be relevant. Other strategic postures might also mean that there is time to resolve the questions of state power.

All of this is to say that there is no real need to critique integralism per se in order to make various arguments about integralist rhetoric. There are other options that address Troutner’s complaints about rhetoric without touching upon the serious theological and doctrinal issues that Troutner raises. Given the problems with his argument, these other approaches may be much stronger “critiques” than the critique Troutner makes.

A little more on the new catechism

John Joy has done it again! Just a few days ago, we cited Joy’s brilliant defense of the infallibility of Quanta cura against the anti-integralists of the Witherspoon Institute’s house organ, Public Discourse. Now, after Francis’s baffling declaration of the inadmissibility, Joy lays out at The Josias an unanswerable case against assent to the new text of the Catechism. Joy digs in to the language of the new Catechism text and Cardinal Ladaria’s letter to argue that the Catechism text is an act of the authentic papal magisterium and as such presumptively entitled to religious submission of will and intellect. He then rebuts the presumption, showing how ambiguous and contradictory it is. More than this, the morality of the death penalty is, Joy shows, a dogmatic teaching of the Church. For these reasons, Joy concludes, the faithful are well advised to withhold assent from the new teaching until the Church sorts things out.

For us, Joy’s piece shows how weird the change and the arguments adduced in support of the change really are. In particular, given the language in the new text and Cardinal Ladaria’s letter about the once-upon-a-time morality of the death penalty, it is hard to see how “inadmissible” can mean intrinsece malum. Fr. John Hunwicke, as always full of Latin erudition, has picked up on this point. Of course, the Pope knows how to say something is immoral—though he seems to spend more time saying things aren’t immoral, no matter how they might seem—and his Latinists know how to say something is intrinsece malum. Thus, the fact that they chose the baffling non posse admitti over intrinsece malum suggests that they did not intend to say that it was intrinsece malum. Perhaps they meant to imply it though. Francis is a master of implication, as we have seen time and time again, and perhaps, acknowledging the doctrinal difficulties in saying the death penalty is intrinsece malum, he merely wished to imply it. We think not.

In Veritatis splendor (no. 80), John Paul cites Gaudium et spes 27 for a long list of acts “always and per se” seriously wrong, regardless of their circumstances. The text of the new Catechism could have compared the death penalty to those acts, taking the Council’s condemnation and dragging it into this context, instead of relying on the march of progress to make it “inadmissible.” Moreover, John Paul went on to teach, “If acts are intrinsically evil, a good intention or particular circumstances can diminish their evil, but they cannot remove it. They remain ‘irremediably’ evil acts; per se and in themselves they are not capable of being ordered to God and to the good of the person” (no. 81). Yet the text of the new Catechism acknowledges that, “Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.” (Emphasis supplied.) The text goes on to speak about “Today” and “a new understanding” and “more effective systems,” implying that the moral liceity of the death penalty hinges on this narrative of progress. If Francis or Cardinal Ladaria or whoever wanted to imply that the death penalty was intrinsece malum, they sure picked a funny way to do it. Indeed, given what John Paul says in Veritatis splendor, they have picked the exact backwards way to do it. Consequently, we do not believe that they even imply that the death penalty is intrinsece malum. Given the fact that they neither say nor imply that it is intrinsece malum, we must conclude that they do not think it is intrinsece malum. Good! Francis may just have saved his tiara after all!

Moreover, the question has occurred to us whether the change to the Catechism may rightly be called a papal act. If a dicasterial text is to be considered a papal act as opposed to an act of the responsible dicastery, in the practice of the Church (see, e.g., art. 126 of the 1999 Regolamente Generale della Curia Romana), then it must be approved in forma specifica. In fact, it must contain the magic words approbavit in forma specifica (with reference to the Roman Pontiff). In the Latin rescript accompanying the new Catechism text, we find only approbavit. Does this mean that the change to the Catechism is merely an act of the Congregation for the Doctrine of the Faith? (Remember that Francis knows how to promote someone else’s text to his authentic magisterium.) Some clever canonist or theologian will have to explain it to us! Perhaps it doesn’t matter: Francis has made on a couple of occasions statements basically the same as the new Catechism text. But given his manner of speaking, it might be argued that those statements have basically no magisterial value.

But these speculations are ultimately unnecessary. Francis’s partisans, official and otherwise, will insist simultaneously that this is a major change and that it is simply a development in existing doctrine. Only a few members of Team Bergoglio, like Massimo Faggioli, will have the intellectual honesty to assert that this is a major rupture with the Church’s prior teaching. However, they will in the same breath assert that such ruptures are simply part of the Church’s life. In this respect, Faggioli (and those like him) are the mirror image of the traditionalists who likewise assert that there have been numerous ruptures in teaching, especially since the Second Vatican Council. That said, there is no sense meeting Francis’s partisans with narrow technical arguments about whether or not the rescript approving the new text had the three magic words to make it a papal act.

However, there is a lot of sense, for those inclined to do so, to meet Francis’s partisans with John Joy’s argument. But we stand on the point we made a couple of days ago. The merits of the Catechism change itself are what they are. Joy’s argument against assent is, we think, quite unanswerable. However, the Catechism text is not ultimately about the death penalty. It is about returning to the dialectic that prevailed in the Church prior to Paul VI’s death forty years ago tomorrow. Seen in that dimension, Francis has succeeded.

The Maltese farce

The saga of the Order of Malta gets stranger and stranger. Today, Edward Pentin reports that Archbishop Giovanni Becciu, the Holy Father’s special delegate to the Sovereign Military Order of Malta and substitute for general affairs in the Secretariat of State, has written to Fra’ Matthew Festing, erstwhile grand master, “asking” him not to come to Rome for the upcoming Council Complete of State, convened to elect Festing’s successor. Pentin provides a scan of the letter from Becciu to Festing. The request comes as a bit of a surprise, since it has been widely reported that the Holy Father has expressed no objection to Festing’s reelection, if the Order returns him to office. According to Becciu, “many have expressed their desire that [Festing] not come to Rome and participate in the voting sessions.” (It is not difficult to imagine who “many” is.)

Archbishop Becciu makes this request as an “act of obedience.” All of this underscores completely the fact that the Sovereign Military Order of Malta is under the direct administration of the Holy See, which has definite ideas about how it is to be run going forward. This, of course, would not be so extraordinary but for two facts. First, the Order was once presumed sovereign under international law. Second, the Holy See appears to favor one clique definitively in the internal governance dispute, taking extraordinary step after extraordinary step after extraordinary step to ensure that the interests of Boeselager and the German Knights are advanced. One wonders whether these actions—probably unprecedented—will have effects beyond the question of the Order of Malta. For example, will high officials in the Curia start banning other allegedly divisive figures from coming to Rome? Will the Italian state object to the Holy See setting, even on a very limited basis, its immigration policy? 

One thing is clear: it pays—and pays and pays—to have friends in the Secretariat of State.

New faculties for the SSPX

Today, the Vatican has released a letter from Gerhard Ludwig Cardinal Müller, prefect of the Congregation for the Doctrine of the Faith and president of the Pontifical Commission Ecclesia Dei, to the heads of the several episcopal conferences regarding marriages contracted by faithful who adhere to the Society of St. Pius X. (It is worth noting that the SSPX is a priestly society, and Bishop Bernard Fellay views priestly formation as the mission of the Society.) The letter outlines a procedure by which diocesan bishops may confer faculties to witnesses marriages upon priests of the SSPX. Under canon law, only those marriages are valid that are witnessed by the ordinary, a pastor, or a priest delegated by either of them, along with two witnesses (can. 1108 § 1). This is the so-called canonical form, which is, as Ed Peters points out, a fairly recent (i.e., Council of Trent) requirement and fairly controversial. Despite the Society’s arguments about the state of necessity and the doctrine of Ecclesia supplet (cf. cann. 144 § 2, 1111 § 1), there has been some question about marriages witnessed by SSPX priests.

It appears that the question has been resolved:

Insofar as possible, the Local Ordinary is to grant the delegation to assist at the marriage to a priest of the Diocese (or in any event, to a fully regular priest), such that the priest may receive the consent of the parties during the marriage rite, followed, in keeping with the liturgy of the Vetus ordo, by the celebration of Mass, which may be celebrated by a priest of the Society.

Where the above is not possible, or if there are no priests in the Diocese able to receive the consent of the parties, the Ordinary may grant the necessary faculties to the priest of the Society who is also to celebrate the Holy Mass, reminding him of the duty to forward the relevant documents to the Diocesan Curia as soon as possible.

In other words, ordinarily, the diocesan bishop should delegate a non-Society priest to witness the parties’ marriage. The SSPX priest may then celebrate Mass. However, where this is not possible, the bishop may simply grant the SSPX priest faculties to witness the marriage. One imagines that many bishops will find it easier to grant the priests of the Society the faculty to witness the marriage rather than delegate a priest to run over to the SSPX chapel for the sole purpose of receiving the parties’ consent. Given the strong orientation of traditionalist Catholics toward marriage and family, he’d undoubtedly be running over there all the time—a problem he likely won’t have at his aging Novus Ordo parish.

As Cardinal Müller reminds us in his letter, the Holy Father granted priests of the Society the faculty to validly hear confessions by his Apostolic Letter Misericordia et misera. In other words, SSPX priests now have, essentially by decree of the Holy Father, valid and licit faculties for confessions and marriages. (We have not forgotten the Society’s arguments about necessity and supplied jurisdiction, but we will set them to one side for the moment.) One may say that the Society is canonically irregular and that its priests do not have a clear status in the Church—it is clear that one may not say, however, that they are “schismatic”—but it is less and less clear what that means. To the laity, there is now little difference between a Society priest and their territorial pastor. This is, therefore, excellent news, though we imagine that there will be much grumbling about it among the prelates hostile to tradition.

We are reminded (on Twitter, of all places) of a February 9 piece by Damian Thompson at the Catholic Herald on the strange relationship between the Holy Father and the Society of St. Pius X. People who have followed the developments in this situation will not find much new, but it is a good summary of the situation. It is apparent that Francis is determined to resolve the SSPX situation in a way that John Paul and Benedict were not. And today’s news will be seen in the context of the rumors, reported by Thompson and many others, of an imminent deal between the SSPX and the Holy See, which is supposed to result in a personal prelature for the Society. (Both Archbishop Pozzo, secretary of the Pontifical Commission Ecclesia Dei and the Holy See’s point man on the SSPX negotiations, and Bishop Fellay report that this is the offer, by the way.) However, neither Pozzo nor Fellay report a done deal. Both prelates have been very transparent in this process, and until Pozzo and Fellay say that the deal is done, we see no sense in speculating about a potential personal prelature.

The wedding of Charles Stuart

Gerardus Maiella, of the wonderful blog Lumen Scholasticum, presents a translation of an excerpt of Lambertini’s De synodo diocesano on communicatio in sacris. Lambertini, better known as Benedict XIV, was, among other things, one of the great lawyers and canonists in the history of the Church. Of course, since 1965, the doctrine on communicatio in sacris has gotten very muddy indeed. It is, then, an excellent tonic to see the traditional doctrine—particularly the historical condemnations of communicatio, going back all the way to the Apostles themselves—presented by one of its finest exponents. And we encourage you to read the whole thing. However, we wanted to call your attention to Lambertini’s account of the wedding of Charles Stuart, the protestant king of England, to Henrietta Maria of France, daughter of Henry IV and a devout, unapologetic Catholic.

In the Ecclesiastic Collations of Paris, De matrimonio, tom. 3, lib. I, coll. 2, coll. 2, §5, there is found a rite, with which nuptials were celebrated between Henrietta, Princess of the Royal blood of the French, and Charles I, King of Great Britain, to whom Pope Urban VIII had for that end granted an Apostolic dispensation: which nuptials are described also in the History, or Commentary, whose title is Mercurius Gallicus, tom. 2, p. 359. And so they relate that the matrimony between the aforementioned Catholic Princess, and the Proxy of the heretic King, was contracted outside of a Church, at the threshold of the Metropolitan Church of Paris, before the grand Almoner Cardinal La Rochefoucauld, from whom there was yet no nuptial blessing given: from there, the Proxy of the British King led the new wife up to the entrance to the Choir: but there Mass was celebrated by the aforesaid Cardinal in solemn rite, the King and Queen of France present, and the new Queen of Great Britain, and the whole Royal Family: but the aforementioned Proxy of the English King, although he was himself a Catholic, yet since he stood in place of a Prince devoted to the Anglican sect, went for the meantime to the Palace of the Archbishop nearby, until the Mass was finished—which finally having been completed, he acceded to lead the Queen from the Church.

Imagine today such care being taken to avoid even the appearance of communicatio in sacris in the context of a mixed marriage. Indeed, imagine today such care being taken on any mixed marriage.

“I believed myself to be doing good”

Yesterday, Edward Pentin ran a lengthy interview with Francesco Cardinal Coccopalmerio, president of the Pontifical Council for Legislative Texts, about his new book about chapter 8 of Amoris laetitia. It is a stunning interview, especially given Cardinal Coccopalmerio’s role as one of the Church’s top lawyers. In fact, as we read it, we had the sense that it was going disastrously and, what’s more, the participants knew how badly it was going. An excerpt:

Isn’t it better to try to stop the situation of sin completely?

How can you stop the whole thing if that will harm people? It is important that this person doesn’t want to be in this union, wants to leave this union, wants to leave, but cannot do it. There are two things to put together: I want to, but I cannot. And I cannot — not for my own sake, but for the sake of other people. I cannot for the sake of other people.

If the two can live together as brother and sister, that’s great. But if they cannot because this would break up the union, which ought to be conserved for the good of these people, then they manage as best they can. Do you see? That’s it. And it seems this whole complicated thing has a logical explanation, motivation. If others depart from other points of view, they can also arrive at other conclusions. But I would say there would be something missing of the human person. I can’t damage a person to avoid a sin in a situation that I haven’t put myself into; I already find myself in it, one in which I, if I am this woman, have put myself into without a bad intention. On the contrary, I’m trying to do good, and, at that moment, I believed myself to be doing good, and certainly I did do good. But maybe if, already at the beginning I had known, if I knew with moral certitude that this is a sin, maybe I would not have put myself in that condition. But now I already find myself there: How can I go back? It is one thing to begin, another to interrupt. These are also different things, no?

(Emphasis supplied.)

In keeping with our Lenten suggestion, here is a passage from St. John Paul’s encyclical Veritatis splendor (no. 81), which seems to be relevant to this idea:

In teaching the existence of intrinsically evil acts, the Church accepts the teaching of Sacred Scripture. The Apostle Paul emphatically states: “Do not be deceived: neither the immoral, nor idolaters, nor adulterers, nor sexual perverts, nor thieves, nor the greedy, nor drunkards, nor revilers, nor robbers will inherit the Kingdom of God” (1 Cor 6:9-10).

If acts are intrinsically evil, a good intention or particular circumstances can diminish their evil, but they cannot remove it. They remain “irremediably” evil acts; per se and in themselves they are not capable of being ordered to God and to the good of the person. “As for acts which are themselves sins (cum iam opera ipsa peccata sunt), Saint Augustine writes, like theft, fornication, blasphemy, who would dare affirm that, by doing them for good motives (causis bonis), they would no longer be sins, or, what is even more absurd, that they would be sins that are justified?”.

Consequently, circumstances or intentions can never transform an act intrinsically evil by virtue of its object into an act “subjectively” good or defensible as a choice.

(Emphasis supplied and footnote omitted.) John Paul went on to teach (no. 82):

Furthermore, an intention is good when it has as its aim the true good of the person in view of his ultimate end. But acts whose object is “not capable of being ordered” to God and “unworthy of the human person” are always and in every case in conflict with that good. Consequently, respect for norms which prohibit such acts and oblige semper et pro semper, that is, without any exception, not only does not inhibit a good intention, but actually represents its basic expression.

(Emphasis supplied.) Consider the full effect of what John Paul taught. First, one cannot, by means of “trying to do good” and believing oneself to be doing good, transform an objectively evil act—like adultery—into a good act. The most they can do is make it less evil. Moreover, an intention to do an objectively evil act, even, one suspects, if it is a convenient or congenial intention, cannot be a “good intention.” In other words, the intention to do an objectively evil act does not lessen the evil of the act.

In any event, it is an open question for us whether one could reasonably believe that one acted with a “good intention,” though we know that that belief would be objectively mistaken, if one intended to do something objectively evil. Again John Paul, discussing conscience (no. 58):

 The importance of this interior dialogue of man with himself can never be adequately appreciated. But it is also a dialogue of man with God, the author of the law, the primordial image and final end of man. Saint Bonaventure teaches that “conscience is like God’s herald and messenger; it does not command things on its own authority, but commands them as coming from God’s authority, like a herald when he proclaims the edict of the king. This is why conscience has binding force”. Thus it can be said that conscience bears witness to man’s own rectitude or iniquity to man himself but, together with this and indeed even beforehand, conscience is the witness of God himself, whose voice and judgment penetrate the depths of man’s soul, calling him fortiter et suaviter to obedience. “Moral conscience does not close man within an insurmountable and impenetrable solitude, but opens him to the call, to the voice of God. In this, and not in anything else, lies the entire mystery and the dignity of the moral conscience: in being the place, the sacred place where God speaks to man”.

(Emphasis supplied and footnote omitted.)