Canon Law

More on the Holy Father’s speech to the Rota

At the Catholic Herald, Ed Condon has a very good appreciation of the Holy Father’s address to the Rota, which he  described as “remarkable for its continuity with the previous addresses of St John Paul II and Benedict XVI. If we were to insist on using political terms for a theological and legal address, it would be easy to characterise it as strikingly conservative.” Read the whole thing there.

For our part, we were very surprised by the Holy Father’s speech—we don’t know if that came through in our initial comments on it—largely because it seemed like another papal address to the Rota. Francis has tried, perhaps consciously, to provide a different tone to his public pronouncements. He seems to avoid the philosophical style of John Paul and the careful theological lectures of Benedict in favor of a broader, perhaps impressionistic, tone. And, of course, the context for any discussion of Mitis iudex and marriage questions needn’t be restated, except to say that Francis had to know that observers of the Church would be looking very closely at this address to see if it contains any clues for the Big Decision. With all that going on, we wonder if it is significant that he has delivered an address so in line with John Paul and Benedict’s thinking.

We also note that the handful of citations in the speech are also apparently sort of conservative: Pius XI’s Casti connubii, Pius XII’s 1940 speech to the Rota, some stuff by Paul VI (including a pastoral letter written when he was archbishop of Milan), some John Paul II, and St. Augustine on the bona matrimonii. If someone other than the Holy Father gave a speech sprinkled with Pius XI, Pius XII, Paul VI, and John Paul II, they’d be called a conservative (or worse).

The Holy Father limits lack of faith as a ground for nullity

Yesterday, the Holy Father gave his annual address to the Roman Rota. These speeches tend to be combinations of pep talks for the Rota as it begins its new term and careful discussions of points of law by the pope. Accordingly, these speeches are very important sources for the interpretation of canon law. The speeches, for example, of St. John Paul II are hugely important sources on matrimonial law, given that John Paul addressed, over the course of years, quite a few thorny questions on the subject. We had hoped that the Holy Father would address Mitis iudex Dominus Iesus, the Holy Father’s motu proprio reforming matrimonial cases, which, for now, is his most important contribution to the Church’s law. We were not disappointed.

One question arising from Mitis iudex has been to what extent is lack of faith a ground for nullity. Recall that article 14 § 1 of the Ratio Procedendi annexed to Mitis iudex states:

Inter rerum et personarum adiuncta quae sinunt causam nullitatis matrimonii ad tramitem processus brevioris iuxta cann. 1683-1687 pertractari, recensentur exempli gratia: is fidei defectus qui gignere potest simulationem consensus vel errorem voluntatem determinantem, brevitas convictus coniugalis, abortus procuratus ad vitandam procreationem, permanentia pervicax in relatione extraconiugali tempore nuptiarum vel immediate subsequenti, celatio dolosa sterilitatis vel gravis infirmitatis contagiosae vel filiorum ex relatione praecedenti vel detrusionis in carcerem, causa contrahendi vitae coniugali omnino extranea vel haud praevisa praegnantia mulieris, violentia physica ad extorquendum consensum illata, defectus usus rationis documentis medicis comprobatus, etc.

(Emphasis supplied.) In the Vatican’s official translation, this is rendered,

Among the circumstances of things and persons that can allow a case for nullity of marriage to be handled by means of the briefer process according to cann. 1683-1687, are included, for example: the defect of faith which can generate simulation of consent or error that determines the will; a brief conjugal cohabitation; an abortion procured to avoid procreation; an obstinate persistence in an extraconjugal relationship at the time of the wedding or immediately following it; the deceitful concealment of sterility, or grave contagious illness, or children from a previous relationship, or incarcerations; a cause of marriage completely extraneous to married life, or consisting of the unexpected pregnancy of the woman, physical violence inflicted to extort consent, the defect of the use of reason which is proved by medical documents, etc.

(Emphasis supplied.) Now, obviously, article 14 § 1 refers to situations that “can allow a case for nullity to be handled” according to the processus brevior. But there has been some concern that article 14 § 1 also sets forth grounds for nullity. (To put it another way, article 14 § 1 sets forth some “red flags” for cases to be transferred to the processus brevior, and thus those “red flags” have been seen by some as grounds of manifest nullity (cf. can. 1683, 2º.) And these new grounds would include, of course, lack of faith. In fact, the criterion of lack of faith has been offered as a justification for the argument that half of all marriages are null, a sentiment that has been attributed to the Holy Father.

In his speech to the Rota, the Holy Father offers a refreshing correction to that idea,

È bene ribadire con chiarezza che la qualità della fede non è condizione essenziale del consenso matrimoniale, che, secondo la dottrina di sempre, può essere minato solo a livello naturale (cfr CIC, can. 1055 § 1 e 2). Infatti, l’habitus fidei è infuso nel momento del Battesimo e continua ad avere influsso misterioso nell’anima, anche quando la fede non è stata sviluppata e psicologicamente sembra essere assente. Non è raro che i nubendi, spinti al vero matrimonio dall’instinctus naturae, nel momento della celebrazione abbiano una coscienza limitata della pienezza del progetto di Dio, e solamente dopo, nella vita di famiglia, scoprano tutto ciò che Dio Creatore e Redentore ha stabilito per loro. Le mancanze della formazione nella fede e anche l’errore circa l’unità, l’indissolubilità e la dignità sacramentale del matrimonio viziano il consenso matrimoniale soltanto se determinano la volontà (cfr CIC, can. 1099). Proprio per questo gli errori che riguardano la sacramentalità del matrimonio devono essere valutati molto attentamente.

(Emphasis supplied.) In the translation available from Rorate Caeli, in the context of an article by Antonio Socci, this is rendered,

It is a good thing to reiterate that quality of faith is not an essential condition for matrimonial consent, which, according to perennial doctrine, may be undermined only on the natural level (cfr CIC, can. 1055 § 1 e 2). Indeed, the habitus fidei is infused at the moment of Baptism and continues to have a mysterious influx in the soul, even when faith has not been developed and seems psychologically to be absent. It is not rare that those preparing for marriage, induced into a true marriage by instinctus naturae, at the time of the celebration have a limited awareness of the fullness of God’s plan, and only afterwards, in family life, discover all that God [Our] Creator and Redeemer has established for them. The lack of formation in the faith and also the error about unity, the indissolubility and the sacramental dignity of marriage vitiate marriage consent only if it is determined by the will (cfr CIC, can. 1099). For this reason the errors regarding the sacramentality of marriage must be evaluated very carefully.

(Emphases and italics added.) (We think that there’s an error in translation, both with our limited Italian skills and from looking at the English portion of Mitis iudex, in the second emphasized passage. Check out the linked translation at Rorate.) It seems to us that the Holy Father moves here to explicitly reject the broad interpretation of Mitis iudex that lack of faith or lack of formation in the faith constitutes ipso facto a ground for nullity.

Women now included (lawfully) in the Washing of the Feet

Today, the Vatican has released a letter from the Holy Father to Cardinal Sarah, prefect of the Congregation for Divine Worship, and a decree of the Congregation, In Missa in Cena Domini, both to the same effect: women may now be lawfully included in the ceremony of the washing of feet on Maundy Thursday. The Holy Father had previously included women in the rites he personally celebrated, but the liturgical law of the Church had still referred to viri selecti. And so, for the past couple of years, as Maundy Thursday came around, there would be a little debate about whether it was proper for rank-and-file priests to follow the Holy Father’s lead, notwithstanding the rubrics in the Missale Romanum. (One’s answer depended largely on one’s ideological orientation.) New Liturgical Movement has translated the relevant portions of the Holy Father’s letter and Cardinal Sarah’s decree implementing the Holy Father’s wishes.

As you might imagine, traditionally minded Catholics have noticed.

The current rites for the washing of feet, as Cardinal Sarah’s decree notes, really go back to 1955, when the Sacred Congregation for Rites handed down Maxima redemptionis, the decree reforming the entire Holy Week liturgy. And, as even casual observers of the liturgy know, the 1955 Holy Week reforms were a sign of things to come. First, the 1962 Missale Romanum of St. John XXIII, then the various post-Conciliar revisions to the liturgy, culminating, of course, in the 1970 Missale Romanum of Bl. Paul VI. So, really, in a sense, today’s decree is simply another milestone along the road that began all the way back in 1955. However, given the connection between the washing of feet by Christ and the priesthood, it is not an insignificant milestone. The argument is already making the rounds that this weakens one of the symbolic justifications for the all-male priesthood. While Ordinatio sacerdotalis remains an essentially infallible pronouncement, given the haste and glee with which other aspects of John Paul’s magisterium have been dismantled, we are not altogether sure that Ordinatio sacerdotalis is an impregnable fortress against the innovators. So, while we are not as given to alarmism as some are, we do not wholly discount their warnings.

We do not see any indication of whether this decree is to have effect for the Forma Extraordinaria. The Holy Father did not mention it specifically in his letter and the decree did not mention it, either. Recall that the Instruction Universae Ecclesiae, which implemented more particularly Summorum Pontificum, and which remains in full force and effect, provides (no. 24) that “[t]he liturgical books of the forma extraordinaria are to be used as they are. All those who wish to celebrate according to the forma extraordinaria of the Roman Rite must know the pertinent rubrics and are obliged to follow them correctly.” (Italics in original.) Thus, it seems to us that, in the Forma Extraordinaria, the washing of feet is limited to men, but in the Forma Ordinaria, the washing of feet may include both men and women. (Father Hunwicke notes that, in both forms, the rite is limited to Christians even under today’s decree, though the Holy Father’s personal practice usually includes Muslims.) One imagines that Archbishop Pozzo will have to release some statement from Ecclesia Dei before Maundy Thursday this year, lest real confusion take hold.

Of course, we note the usual consternation from traditionally minded Catholics—though, if our instincts are right, and this change does not affect the Forma Extraordinaria, it is unlikely that traditionally minded Catholics will be affected by the change—and we anticipate that there will be more consternation over the subject. However, this practice, illicit though it was, has existed for some time in Novus Ordo parishes. The Holy Father has made it lawful, but he certainly hasn’t made it up for the first time. The real issue, as New Catholic notes at Rorate Caeli, is that this appears to be essentially an irreformable act. The Holy Father’s reform on this point is “so great and symbolic no successor of his could ever overturn [it].” (Practically speaking. Legally speaking, his successor could abrogate the decree as soon as he walks back inside from the Urbi et Orbi.)

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.

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.

Fr. Lombardi defends the Vatican courts

Amid the Vatileaks 2 trial at the Vatican, Father Lombardi has issued a lengthy defense of the Vatican City State courts. It begins,

In recent weeks, since the opening of the trial for the dissemination of reserved documents commonly known as “Vatileaks 2”, many observations and evaluations have been written regarding the judicial system of Vatican City State and in particular on the Tribunal where this trial and its related procedures are taking place. Since many of these observations are inappropriate, or at times entirely unjustified, it would appear opportune to offer some considerations enabling a clearer view and a more just evaluation of this fundamental aspect of the situation.

Read the whole thing there.

We note merely that it is extraordinary—to our mind, anyway—that a press office would issue such a lengthy defense of a sovereign state’s courts. For example, if foreign defendants were haled into United States District Court for similar offenses under the Espionage Act of 1917, it would surprise us very much if the court’s public information officer issued a defense of the procedures employed by the court, including the rights of the accused and the qualifications of advocates.

Cardinal Burke on Antonio Spadaro’s Synod wrap-up

We have noticed, lately, that we have not heard much from Raymond Cardinal Burke regarding the ongoing debate over the possibility of admitting bigamists to communion. We have heard, of course, from Robert Cardinal Sarah and Bishop Athanasius Schneider, both of whom have been prominent commentators on the developments in the Church. Today, Cardinal Burke has a brief essay in the Register, responding to Father Antonio Spadaro’s triumphant essay in the Jesuit periodical La Civiltà Cattolica, whose proofs, we are unfailingly reminded, are corrected in the Secretariat of State (or Santa Marta, as the case may be), which pretty well declared the path to communion for bigamists wide open after the Synod’s conclusion. Cardinal Burke’s essay concludes,

The way of discernment upon which the priest accompanies the penitent who is living in an irregular union assists the penitent to conform his conscience once again to the truth of the Holy Eucharist and to the truth of the marriage to which he is bound. As the Church has consistently taught and practiced, the penitent is led in the “internal forum” to live chastely in fidelity to the existing marriage bond, even if seeming to be living with another in a marital way, and thus to be able to have access to the sacraments in a way which does not give scandal. Pope St. John Paul II described the Church’s practice in the “internal forum” in No. 84 of Familiaris Consortio. The Declaration of the Pontifical Council for Legislative Texts of June 24, 2000, illustrates the teaching in No. 84 of Familiaris Consortio. Both of these documents are referenced in the final report of the synod, but sadly in a misleading way.

To give the impression that there is another practice in the “internal forum,” which would permit an individual in an irregular union to have access to the sacraments, is to suggest that the conscience can be in conflict with the truth of the faith. Such a suggestion clearly places priests in an impossible situation, the expectation that they can “open a door” for the penitent which, in fact, does not exist and cannot exist.

(Emphasis supplied and hyperlink omitted.) Read the whole thing there.

Those that read the tea leaves might be inclined to note that Fr. Spadaro is a close collaborator of the Holy Father, and there are those who have suggested that his comments might be seen as a preview of the Holy Father’s eventual disposition of the matter. And, of course, there was that get-together at the Villa Malta, to say nothing of the get-togethers at Santa Marta during the Synod. At any rate, Cardinal Burke’s piece is a solid counterweight to Fr. Spadaro’s breakthrough view of the Synod.

Does the Church really need a new “Pastor Bonus”?

Edward Condon, who, if you’ll remember, broke the news about Cardinal Coccopalmerio’s letter about the question of consent to the processus brevior, has a piece at the Catholic Herald about Francis’s ongoing project of Curia reform:

Rereading Pastor Bonus, it is hard to see where that document could be meaningfully changed to prevent the kind of financial chicanery we are reading about, other than by the creation of a Secretariat for the Economy, which has already been done. Pastor Bonus outlines what the various Vatican departments are and what matters they deal with, it is not the curial equivalent of a civil service code; that does exist and is called the General Regulations of the Roman Curia, and about the reform of this we have heard next to nothing.

While the reordering of the curial departments might be useful in some respects, like the creation of one department to handle everything pertaining to the laity, it cannot prevent or address ongoing abuses by those who work in those departments.

Pope Francis has spoken strongly and often of his disapproval of careerism in the Curia, yet we have seen sadly little, if anything, done to discourage it. While the C9 group of cardinals was drawn from around the world and could at least have represented an outside perspective for reform, this has not carried over into actual curial appointments. The most high profile appointments under Francis have continued to go to career Vatican civil servants, including Cardinal Parolin, as Secretary of State, and Cardinal Mamberti as head of the Apostolic Signatura, the Vatican Supreme Court, to say nothing of the highly controversial appointment of Mgr Ricca to the IOR, or Vatican Bank. All of these appointments were made by Francis under advice from the very Curia he is trying to reform, with the ridiculous consequence that he has had to write to his own Secretary of State reminding him to run the Church according to the rules.

(Emphasis supplied.) If you’re especially interested in the Church’s administrative regulations, the General Regulations of the Roman Curia are available in Italian here. We have remarked a couple of times that the project of sweeping reform of the Curia, so much on the cardinals’ minds as they prepared for the conclave, seems to have fallen into second or third prominence on the Holy Father’s agenda. Certainly, the promised rewrite of Pastor Bonus has not appeared. And on this issue, Condon’s point is pretty sound: where could Pastor Bonus be improved? We’re not so sure.

Certainly, codifying, for want of a better word, the competence of the Fidelis Dispensator entities would be nice, as would long-term clarity on the role of the Council of Cardinals. And, if the Holy Father does erect a super-congregation for family, laity, and life, as he promised at the Synod, it would be nice to have its competence codified. But, in the main, as Condon notes, Pastor Bonus only sets out the competence and jurisdiction of the various dicasteries, and even then only in very broad terms. The implementation of that competence and jurisdiction comes in other sources of law. For example, one has to consult sources other than Pastor Bonus to figure out what the penal jurisdiction of the Congregation for the Doctrine of the Faith is—an important issue if one is worried about allegations of heresy, for example—especially the so-called Substantive Norms.

A brief digression: we have long complained that the Church’s sources of law are remarkably opaque, and that real transparency will not be possible until all the faithful can access, in a language they can understand, all of the relevant law. In the United States, most states make not only statutes and regulations but also judicial decisions available for free via the internet. (The federal government is very good about statutes and regulations, but less good about many judicial decisions.) In addition to the states’ publications, private services like Westlaw and Lexis provide access to statutes, regulations, and judicial decisions at all levels. Compare that to the Church of Rome, which makes some things available, but not all, and not always in widely spoken languages. (Italian is not widely spoken outside Italy, as some Synod fathers noted.) One big gap is the relative unavailability of Rotal jurisprudence, which provides hugely important glosses on the relevant canons, especially in matrimonial cases. The Vatican’s website is also a mess, which is a problem when it comes time to access important legal documents.

Put it like this: while “apostolic constitution” is a term of art, it is helpful to think of Pastor Bonus as a constitution for the Curia. And, as with any constitution, it deals in broad strokes. The detail work comes later and elsewhere. So, the question is, really, whether the broad strokes of Pastor Bonus need to be replaced with the broad strokes of another document. And that is not so clear. But even if Pastor Bonus needs to be replaced by a new document, it is not clear that that fixes the problem of the Curia. Condon again:

While a new version of Pastor Bonus will be an interesting, and probably helpful, development in the governance of the Church, it is not going to be the panacea of reform many are hoping for. If we ever hope to see real transparency in the governance of the Church, there needs to be reform, not of the Vatican departments, but of those working in them.

(Emphasis supplied.) On this point, given the Holy Father’s stringent Christmas speech to the Curia, it seems that Holy Father agrees.

Forests, trees, and bombshells

It seems like an age ago that Mitis iudex Dominus Iesus, the Holy Father’s motu proprio modifying matrimonial cases in the Latin Church, was the subject of debates about “Catholic divorce.” For our part, we think that in many respects, Mitis iudex is very traditional and seeks to restore aspects of the 1917 Code jettisoned in the 1983 Code. In particular, the 1917 Code emphasized the role of the bishop as ordinary judge of the first instance in his diocese (1917 CIC 1572 § 1), including his right to preside over the tribunal personally (1917 CIC 1578). Furthermore, the restoration of the metropolitan tribunal as default appellate tribunal also reinstates a practice under the 1917 Code (1917 CIC 1594 § 1). But no one has so far been especially interested in the ways in which the Holy Father has restored prior practice. Everyone has been especially interested, however, in the processus brevior—the shorter process conducted by the diocesan bishop personally.

One concern has been that the processus brevior will become the default procedure for matrimonial cases. Francesco Cardinal Coccopalmerio, president of the Pontifical Council for Legislative Texts, the dicastery responsible for providing authentic interpretations of legislation, has apparently sent a letter to a priest advising that the processus brevior may be harder to get into than one first thought. The Catholic Herald reports:

A top Vatican official has clarified the use of fast-track annulments amid disagreement among canon lawyers.

Cardinal Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts, said that annulments could only be fast-tracked with the explicit consent of both parties.

His clarification, in a letter to a priest in the United States, surfaced as the subject was being contested at a conference of the Canon Law Society of America.

Canon lawyers say the intervention makes clear that the fast-tracking of annulments – introduced in the Pope’s landmark apostolic letter Mitis Iudex – will be rare.

(Emphasis supplied.) In other words, when spouse does not participate in the nullity proceeding the processus brevior is immediately off the table. This is not an insubstantial thing, either, since apparently about half of the nullity cases in the United States and England have an absent spouse.

Canonist Edward Condon, who noted that Cardinal Coccopalmerio’s letter emerged during a meeting of the Canon Law Society of America, adds,

In a letter responding to questions about the correct implementation of the reforms of Mitis Iudex, Cardinal Coccopalmerio, who was a full and formal member of the committee which drafted Mitis Iudex and is the head of the Vatican department charged with issuing authoritative legal interpretations, said the “explicit consent” of the respondent was a “condition sine qua non” for the short form process to be used. He also reaffirmed that the full process is properly termed the “ordinary process”.

(Emphasis supplied.) Condon also gives a little more context: Fr. Francis Morrisey, a Canadian canonist who was not part of the Mitis iudex drafting team but who apparently had been consulted by the team, argued that non-participation by one spouse could give rise to a presumption that he or she consented to the processus brevior. Fr. Morrisey also (it appears from Condon’s report) suggested that the processus brevior could be used as the default process in tribunals. Cardinal Coccopalmerio’s letter apparently knocked the wind out of both proposals.

To our mind, Cardinal Coccopalmerio’s interpretation is a very straightforward interpretation of Mitis iudex canon 1683, 1º, which reads, in Latin,

Ipsi Episcopo dioecesano competit iudicare causas de matrimonii nullitate processu breviore quoties:

1° petitio ab utroque coniuge vel ab alterutro, altero consentiente, proponatur;

2° recurrant rerum personarumque adiuncta, testimoniis vel instrumentis suffulta, quae accuratiorem disquisitionem aut investigationem non exigant, et nullitatem manifestam reddant.

(Emphasis supplied.) Neither Mitis iudex or the Ratio procedendi that accompanied it gives any indication that consent could be presumed to the processus brevior. Condon notes that, in canon law, consent generally requires an affirmative act of the will. (In American civil law, about which we know a little, we note, not showing up to court generally results in default judgments. That is not possible in nullity cases.) And now it appears that Cardinal Coccopalmerio has confirmed the literal text.

But presumably when both spouses are present and consent to the processus brevior, the case will proceed on the processus brevior. (But we wonder to what extent a bishop could cite MI canon 1683, 2º to refuse to admit a case to the processus brevior.) And, when we first read Mitis iudex, our first thought was not that the processus brevior would be leveraged to create “Catholic divorce,” but that it would it even easier for spouses to collude to obtain a constat de nullitate. (Collusion seems possible when a Catholic couple splits up, both spouses meet new folks, and both spouses want to get remarried in the Church.) Obviously, if parties are working together for the same end—civil lawyers might call such a thing a “friendly suit”—it is hard for a tribunal to thwart their ambitions. In the ordinary process, however, an instructing judge has more time to get to the bottom of things and the tribunal, often made up of a diocese’s serious canonists, can consider the evidence much more thoroughly. But given the time pressures and the fact that many bishops are not canonists, we wonder whether colluding spouses might be able to obtain a constat much more easily.

We note, too, that the Synod has taken up most of everyone’s attention lately. We hope that folks will not forget that our bishops need their subjects’ help in implementing Mitis iudex. Canon 212 § 3 applies to all sorts of things, not merely to Synod-related things.