In this article Ladislas Orsy, the most distinguished living Canon Lawyer in the Church, does a critique of Church procedures. They fail on all the basic aspects of justice.
Are Church Investigation Procedures Really just?
LADISLAS ORSY, SJ
Ladislas Orsy SJ, visiting professor of philosophy of law and canon law at Georgetown University Law Centre, Washington DC, is a graduate in law of Oxford and holds a doctorate in canon law from the Gregorian University, Rome.]
[This article was first published, in German, inStimmen der Zeit, in June 1998. This version appeared in Ireland’s Doctrine and Life in October 1998.]
All over the face of the earth, there is a compelling hunger for justice and a persistent cry demanding respect for human rights. The Church hears the cry, responds with solemn pronouncements, and is a forceful advocate of human dignity. The Church, however, speaks not only with words but also with actions: it is called to proclaim the Good News with signs and symbols as well. Judicial proceedings within the Church are part of such signs and symbols ‑ so much so that it is important to look at how the Church deals with doctrinal disputes and then at the ideal of justice that modern jurisprudence has created. In doing so, we follow a venerable tradition: throughout its long history the Church has turned for legal wisdom to secular sources and it made ancient Roman law the very foundation of canon law.
On June 29,1997, the Congregation for the Doctrine of Faith promulgated new procedural rules entitled ‘Regulations for the Examination of Doctrines.’ They have superseded the norms published in1971. The Explanatory Note issued by the Holy See stated: ‘After twenty‑five years of experience … it was decided to prepare new Regulations that might respond even better to the demands of the present day.’
By referring to ‘the demands of the present day’‑demands of justice, obviously ‑ the document itself invites us to consider whether it meets them. The first part of this article will present the Regulations; the second part will compare them with the best principles of modern jurisprudence. Paul the Apostle wrote to the Philippians: ‘whatever is true, whatever is honourable, whatever is just … you must consider’ (Phil4:8).
THE REGULATIONS
We are dealing with a short text, in the original Latin about fifteen hundred words, divided into twenty‑nine’ articles.’ Its authority is that of a decree by a congregation (less than a papal document) except in two articles (28, 29) which were ‘specially’ approved by the Pope and raised to the level of pontifical law.
The title of the document is “Procedure in Examining Doctrines”. The wording of the title is the first clue for the understanding of the content of the Regulations: the declared focus of the examination is a doctrine, not a person; the real dynamics of the process, however, lead to, and terminate with, a judgment over a person.
The introductory remarks identify the principal agent, the Congregation for the Doctrine of Faith. Its prime duty is ‘to promote and to safeguard the doctrine of faith and morals throughout the Catholic world’ and to see that the People of God receive the Gospel in its authenticity and integrity.
The Regulations recall that in matters of doctrine the bishops of the particular Churches have also the right and duty to exercise a ‘pastoral solicitude’ both individually and collectively. The Holy See, however, has the power to intervene, and as a rule it does intervene, whenever a publication constitutes a grave danger for the faith and its impact reaches beyond the boundaries of a local Episcopal conference.
To understand the role of various organs and persons in the process of such an intervention, some basic information is necessary about the operational structures of the congregation.
When the term ‘congregation’ is used generally and colloquially, it designates a department (called also dicastery) with all its personnel and offices within the administrative structure of the Holy See. When the same term is used canonically, it means a group of cardinals and bishops (exceptionally also clerics of lesser dignity) who together, as a collective body, are in charge of a department: they are the congregation. They meet either in plenary session (about once a year) to which the members from the world over are invited, or in ordinary session (it could be held weekly or less frequently) where the members resident in Rome are expected to be present. Each congregation is presided over by a Cardinal‑Prefect who is assisted by an Archbishop‑Secretary.
The daily work of the congregation is done by a permanent staff called the office. The major administrators of the congregation (Prefect, Secretary, heads of sections, etc.) form a council named the congress: its principal task is to examine and prepare cases and issues to be submitted to the ordinary session of the members of the congregation itself.
As a rule, every Roman congregation relies heavily on the work of external consultors, appointed by the Pope for their expertise.
We can now turn to the presentation of the procedure; each of the above groups plays a part in it.
- Preliminary examination (art. 3). To be decided: is there a reason to initiate a thorough investigation?
The office is called on to initiate the proceedings whenever the suspicion arises that some erroneous or dangerous doctrine may have been put into circulation. Its task is to identify the writings, collect any available evidence, and submit its findings to the congress.
The congress then decides if there should be a study in depth by the office.
- In depth study by the office (4‑7). To be decided: should there be a formal process?
The office is commissioned to study the writings under suspicion with the help of external consultors and ad hoc experts (as necessary) and then to report again to the congress.
The congress has several options: it can dismiss the case; it can send it for appropriate action to a local superior (bishop or religious superior); it can order a formal process either in ‘ordinary’ or in ‘urgent’ form.
- Examination in ordinary form (8‑22). To be decided: are there erroneous and/or dangerous propositions in the writings?.
The process consists of two sequences: the first is internal and takes place in complete secrecy, the second is external and allows limited publicity.
First sequence in secrecy. The congress commissions a council of consultors to examine the writings in question and to ascertain if the author’s doctrine does, or does not, conform to the Church’s teaching.
To help these experts, the congress appoints a ‘relator for the author’ whose task is to represent and uphold the author’s interest. He should see that the author’s opinions are correctly understood and that the examiners are informed of the ‘positive aspects’ of the author’s writings.
The consultors conclude their investigation with a formal session. Taking into account the earlier study prepared by the office, they discuss the case. The relator for the author must be present and has voice; the Ordinary of the author may be invited to participate in the debate(if so, he is bound to secrecy). Once the discussion is over, the consultors alone decide if the author’s writings contain erroneous propositions and/or dangerous opinions. The criteria for the identification of an offence are much broader than the denial of an article of faith. They include not only the Nicene Creed, subsequent solemn definitions, and determinations by the ordinary magisterium, but also ‘definitive teachings’ by the popes and the Episcopal college and official pronouncements not intended to be definitive.’
The council’s judgment with all the acts and minutes is brought before the ordinary session of the congregation. The members may decide either not to pursue the case any further or to continue it by confronting the author with his erroneous propositions and/or dangerous opinions.
At any rate, the congregation’s decision must be submitted to the Pope.
If the Pope agrees to the confrontation, the case moves on. For all practical purposes the author under investigation is charged with spreading erroneous or dangerous opinions. His Ordinary, all other Ordinaries who may have interest in the case, and the competent departments of the Holy See are informed.
Second sequence with limited publicity. The focus of the proceedings changes: it turns from the examination of the writings to the trial of the person.
The author is informed of the findings through his Ordinary and he is given a list of the erroneous or dangerous propositions found in his writings with due explanations for the negative judgments. The Regulations do not say who is competent to provide the explanations; at any rate the identity of the ‘explainer’ cannot be revealed.
With the consent of his Ordinary, the author is entitled to appoint an ‘adviser’ for himself. (This adviser is not an ‘advocate’ with the legal right of defending the author; he is closer to a private counsellor who has the right to be present at his side.)
The author has three months to respond to the congregation concerning the contested propositions. His Ordinary is encouraged to express an opinion.
The author has no right to appear before his judges, but the congregation (presumably the Prefect) may grant permission for a dialogue between the author (with his adviser present) and the delegates of the congregation. At the meeting minutes must be taken and signed by all.
If the author responds, the congress is competent to receive his answer. Should it contain new grounds for reconsideration, the congress may choose to remit the case again to the council of consultors. Finally, the response of the author with the result of the renewed consultations (if any) must be submitted to the ordinary session of the congregation.
If the author does not respond, the same ordinary session is competent to take ‘an appropriate decision.’
- Examination in urgent form (art. 23‑27)
This is a shortened version of the ordinary process described so far, to be used in an emergency.’
A ‘process in urgency’ is authorized whenever it is clear and certain that the writings of an author contain errors that are either directly threatening the faith of the people or effectively causing damage among the faithful.
The congress is competent to determine the existence of an emergency and the need for immediate action. Once this is done, it sends information to all Ordinaries who may have an interest in the case and to the competent departments of the Holy See. Then it appoints a commission to identify precisely the erroneous and dangerous opinions.
The harmful propositions are submitted to the ordinary session of the congregation which must give precedence to the case. If its judgment is condemnatory, the decision must go to the Pope for his approval.
If the Pope ratifies the sentence, the author is notified and is given three months for correcting his opinions. He may request, however, permission to offer a written explanation. The ordinary session is competent to receive it and to judge it.
- Sanctions (art. 28‑29). To be decided: the punishment.
If the author has not corrected his errors ‘in a satisfactory way and with adequate publicity,’ and the ordinary session found him guilty of ‘the offence of heresy, apostasy, or schism, the congregation proceeds to declare the latae sententiae [that is, automatic, already operative] penalties incurred.’ The reference to a canon of the Code of Canon law makes clear that the penalty is excommunication. ‘Against such a declaration no recourse is admitted.’ If the author has been found guilty of a lesser offence, the congregation is entitled to impose a lesser sanction according to the general norms of the law.
The two articles on appropriate sanctions have been specially approved by the Pope, that is, they have the binding force of a pontifical law.
THE LEGAL WlSDOM OF OUR AGE
As I reflect on the legal wisdom of our age, I am really speaking of expectations because we do not have anywhere in the world a perfect judicial system. We have convergent expectations that express the best that can be distilled from the experience and prudence of many nations. The more a judicial process fulfils such expectations, the better the cause of justice is served.
On purpose I avoid speaking about ‘due process’ because the expression can generate misunderstandings in two ways. First, the literal meaning of ‘due process’ is a process’ according to the requirements of the law’ ‑ hence not arbitrary. By dry logic, it could be argued (and has been) that even judicial systems which are of poor standard are observant of ‘due process’ since they conform to the local laws. Second, since the expression is known as referring to the procedural rules of the Common Law of English origin, it can (as experience shows) provoke in persons unfamiliar with Common Law fear and suspicion that to invoke due process is to introduce alien conceptions into canon law.
The expectations I speak of go beyond the boundaries of any one legal system; they exist the world over among citizens of many nations. They focus on a ‘fair process’ which include also much of what is best in the ‘due process’ tradition.
In each of the following paragraphs, I shall state first a general principle held in honour by modern jurisprudence and meant to protect human rights; then I shall see how the procedures set out in the Regulations correspond to such an expectation.
Justice demands the precise definition of an offence.
The principle speaks for itself. The less precise the definition of a crime or delict is, the greater the danger of injustice in court proceedings because a great multitude of actions can be brought under the definition. A vague term opens the way to broad accusations and restricts the scope of the defence. (Totalitarian states like to have crimes broadly defined, such as ‘crime against the state’ or ‘subversive speech’.)
The Regulations name two offences (without giving any precise definition) that warrant investigation: ‘erroneous doctrine’ and/or ‘dangerous doctrine’ found in published writings.
‘Erroneous doctrine’ can have different meanings here. Catholic theology has always carefully distinguished between revealed articles of faith, beliefs connected with revelation (in various degrees),’opinions commonly held by theologians, and so forth. If a position is judged erroneous, to understand the gravity of error, one must know the authority of truth that it seems to deny. The Regulations do not take into account such a hierarchy of truth, insisted on by Vatican Council II. They allow proceedings (and condemnation) against the author even when he fully assents to the doctrine of faith but dissents from an official ‘definitive’ or ‘non‑definitive’ proclamation.
The expression ‘dangerous doctrine’ gives abroad scope to the examiners: with its help they can reach far and wide. The concept has no firm and objective limit. Dangers can be detected in many places; persons and communities can be seen as exposed to dangers in many ways. The perception of a danger can be subjective and deceptive: much depends on the mind of the observer. I recall that many times at Vatican Council II, before the doctrine of episcopal collegiality was finally approved, its opponents demanded that the doctrine should be discarded since it was dangerous. It would undermine the primacy, they warned. Today we all hold that collegiality belongs to the core of Catholic beliefs. Down through Christian history, many more instances could be found when true insights emerged but many cried ‘danger’. Is this not what happened in the case of Galileo? To make ‘danger’ (ill defined or not defined) a juridical ground for condemnation is to endanger the operation of justice itself.
Justice is best served when in the process the respective roles of the judge, the prosecutor, and the defendant are kept apart.
The aim of any judicial process is to help the judge (or jury) to arrive at an impartial and detached judgment. The accumulated experience of courts and tribunals (an experience that has its origin in ancient civilizations) has shown that when the roles are fused, justice is imperilled. The reason is in the limitations of our human nature: the dynamics of the investigation and of the trial carry the prosecutor (or the examiner) in one direction, the defensor into another. If either assumes the role of the judge as well, the objective outcome of the trial is put in jeopardy.
In the Regulations this classical distinction is not honoured. The same organs of the congregation initiate the investigation, establish the charges, and then pronounce judgment over both the writings and the writer. In practice, the same persons are investigators, prosecutors, and judges.
Equity (which is the perfection of justice) postulates that each of the opposing parties has a similar opportunity to plead their case before the judge.
A trial is nothing else than a dialectical argumentation to bring the judge (and all others concerned) as close to the truth as possible. Justice postulates a ‘fair play,’ that is, a similar measure for both sides. If one of the parties is not heard as well and as fully as the other, that party is exposed to the risk of not being heard at all.
The Regulations grant different measures (far from any equal time) respectively to the accusers and the defender. During the first part of the ordinary process where a crucial decision is taken about the meaning of the author’s writings, he is absent; he does not even know that there is a process. A relator appointed by the investigators is called to defend him and to clarify the sense of his contested publications. (Is there not a conflict of interest?) If the outcome of the examination is negative, and the congregation finds the author’s propositions erroneous or dangerous, his Ordinary and the competent offices of the Holy See are informed. In other words, the notice of the condemnation is spread and the author’s reputation is affected without him ever having been notified of any problem, let alone having had a possibility to say a word in his own defence.
Many scholars, researchers, and writers live and work in a culture and use a language different from those of the Roman examiners. The risk, therefore, of a serious misunderstanding is high. To prove that, all we have to do is to recall how theological misunderstandings between the Greeks and the Latins arose and led to mutual accusations and condemnations, and finally to the tragic separation of the Churches. Today we know that in spite of seemingly conflicting expressions the doctrine of faith has never been endangered.
The Church has nothing to lose and much to gain by taking all precautions against mistaken perceptions and letting a writer explain in person his position right at the moment when a serious problem first emerges.
The duty of the judge is to presume the accused innocent (and protect him) until the evidence proves beyond reasonable doubt that he is guilty.
To speak of the duty of the judge may be an unusual way of presenting the ‘principle of the presumption of innocence’ which in a developed system of justice is an inviolable part of criminal proceedings, but it is a good way of stating it. It names the person who is principally responsible for upholding the principle.
The presumption is not mentioned in the Regulations. The first part of ‘ordinary proceedings’ is concerned with the writings; in theory the person is not touched. That far, perhaps one can say that no presumption exists in the examiners in one way or another.
If, however, their conclusion concerning the writings is negative, they must confront the author with the propositions that they have already judged erroneous and/or dangerous. How could they then presume the author to be innocent? There would be no problem if the examiners were merely accusers and an independent judge (or judges) watched over the confrontation. But that is not the case: the examiners (who are now accusers) will have a part in the final decision.
Incidentally, there is no reason why even within the congregation a system could not be setup where the judges remain distinct in every way from the accusers. After all the Code of Canon Law prescribes that in every ecclesiastical tribunal there should be judges and a ‘promoter of justice’ (whose task is analogous to that of the examiners). It is unthinkable that the same person should assume both tasks; if it ever happened, the sentence would be irreparably null and void.
All that affects a public sentence ought to be done openly. (Justice not only ought to be done but also ought to be seen done.)
The virtue of justice (as integrated with faith, hope, and love among Christians) is a powerful factor in forging unity in the community. For this reason, it is never enough to make sure that justice is done, it is necessary also that the people should see that justice is done. In other words, the whole judicial system should be a visible witness to evangelical justice for all who care to look. This is not to deny that prudence and discretion may require some confidentiality; it is to affirm that all that effects the public sentence should be done in openness. A trial is never about one single individual: the accused is a member of a community of believers. Whether he is guilty or not, the community nurtured him and suffers with him. It should be informed. Such openness should not become unbridled publicity; there are many ways of communicating with responsible people.
Overall, the Regulations fall short of the standards of an open trial: in particular the first part of the ordinary proceedings is shrouded in complete secrecy.
The opportunity for appeal is an integral part of any good judicial system.
To leave room for appeal is to acknowledge our human condition: we are fallible human beings ‑judges not excepted. A process with no possibility of appeal is a scary system for any lawyer to contemplate: it leaves no room for the correction of mistakes.
The Regulations state that once the congregation has declared that the author has occurred automatic excommunication ‘against such a declaration no recourse is admitted.’ In the explanatory notes the reason is given that throughout the process the Pope himself is involved, hence, there cannot be any room for appeal.
It is hardly conceivable that the Pope would invoke his full apostolic authority to pronounce an infallible judgment in an ordinary process. Further, his infallibility cannot be delegated to the congregation. It would, therefore, be temerarious to exclude the possibility of a miscarriage of justice.
We are touching a substantial structural weakness in the Regulations: it directs a trial immediately to the highest level, involving the Pope himself. Sound jurisprudence would postulate a court or tribunal of first instance at a lower level from there would be an appeal to a higher court. In marriage cases the Roman Rota admits an appeal even against its own decisions: how much more prudent it would be to admit an appeal in doctrinal cases!
As it is now, the Pope must be involved in every single ‘doctrinal examination.’ Should ever a miscarriage of justice occur, it would immediately reflect on the papal office itself. Not a good prospect for the faithful to contemplate.
The penalty of automatic excommunication.
Excommunication is an extreme penalty in a Christian community: it is the wrenching of a member from the body of the believers. As with all extreme penalties, it punishes both the individual and the community. The individual is spiritually incapacitated: he cannot receive the sacraments. The community suffers the trauma of an amputation; it receives no support from an organ.
Automatic excommunication is an anachronism that hurts modern sensitivities: it operates in secrecy with no control. The offender is mandated to be his own accuser and judge. He must cut himself off the body.
It would be difficult to decide if excommunications have done more good than harm to the Church throughout history. What we know for certain is that some excommunications have done enormous harm. We can recall the hasty and tragic gesture of Humbert, the papal legate in Constantinople, who in 1054 excommunicated the Patriarch and thus contributed to the enduring severance of the two sister Churches, East and West. Or we may ponder the impact of the excommunication in 1570 of Elizabeth I by Pius V; a sentence that effectively destroyed any hope of reconciliation between the English monarchy and the See of Rome.
The Regulations warn that if an accused does not correct his position within the time allotted to him, the congregation can proceed to the declaration of excommunication. This may happen even if the author has never had the opportunity to explain his mind to his judges.
The Regulations ignore a crucial problem: the crime of heresy is an ‘obstinate denial’ of an article of faith (canon 751); it is a surrender to falsehood while one sees the light. Such a self destructing act is certainly possible no less than suicide is possible, but it is not an ordinary event. Even if it has been established that the writings of a person contain heretical propositions, it does not follow necessarily that he is guided by a perverse intention. To rush into the imposition of an extreme sentence (perhaps without ever having listened to the author) can hardly be the sign and symbol of justice ‑ let alone Christian mercy. Most of the time, for the good of the community, it should be enough to state with authority what our Catholic doctrine is, what our tradition is not ‑ and then let time, fraternal correction, and divine grace have their gentle impact on the author.
Many thoughtful theologians and canonists suggested before the last revision of the Code of Canon Law that automatic excommunications (their name was Legion) should be abolished altogether. The revision cancelled out many but retained a few. To delete them all from canon law would be no loss to the faithful ‑ or to the reputation of the Church.
Finally, a story unfolding in our days should give us a pause: there is an increasing consensus among theologians and historians that on several counts, the Council of Trent misunderstood the teachings of the Reformers and consequently several of its anathemata were misplaced. Ecumenical scholars are putting immense effort into the disentangling of such mistakes; and as truth reveals itself the expressions of regrets are becoming more numerous. If such misunderstandings could occur at an ecumenical council, they could surely occur within the Church’s ordinary administration.
CREATING A CLIMATE OF TRUST
An immediate conclusion emerges in stark simplicity: for anyone educated in the sensitivities of modern jurisprudence, the Regulations do not respond ‘to the demands of the present day.’ Overall, they are not signs or symbols of justice. They have their roots in past ages which did not have the same vision of the dignity of human person and the same respect for honest conscience that is demanded the world over today.
On reflection, the conclusion expands: the Regulations do not really fulfil the mandate of the Congregation for the Doctrine of Faith, as this mandate is stated in its own documents. The integral mission of the Congregation goes well beyond investigating, prosecuting, and punishing offences against the faith. It embraces the ‘promoting and safeguarding [of the] doctrine of faith and morals throughout the Catholic world.’
In the Catholic world, the best way of promoting and safeguarding the doctrine of faith is to create a climate of trust where the process described by Saint Anselm of Canterbury as ‘faith where the Process of faith seeking understanding’ (fides quaerens intellectum) can flourish. Such a search for understanding is carried out mostly (not exclusively) by professional theologians. To attract young and talented persons to choose theological research and reflection as their vocation, to strengthen those who are already dedicated to that work, and to lift the spirit of those who are struggling with the hard issues of our days, an environment of freedom and confidence is absolutely necessary. Such an environment cannot exist if investigations, accusations, and even condemnations are allowed to take place in secrecy.
Creative thinkers who scrutinize the divine mysteries and give us a language to speak about them must be constantly aware that the Church trusts them and protects them. If norms are needed to prevent deviations, norms are even more needed to secure legitimate freedom for creative thinking.
In truth, creative thinkers are one of the greatest assets of the Church today‑ and ever. As our world evolves, new questions are continually addressed to the Church about how to understand revelation, about the role of religion in the political society, justice in the distribution of the resources of the earth, issues of morality, and so forth ‑Who can tell them all? Learned persons who are capable of reaching new insights into our old tradition can be of valuable (even indispensable) assistance to the hierarchy who has the final judgment in doctrinal matters and to all the faithful who are seeking insight into the mysteries with a sincere heart. This was the ministry of Friar Themes of Aquinas or of Cardinal John Henry Newman.
The judicial procedures of the Regulations are entirely of human composition. They are not rooted in any venerable tradition: they are the product of post‑Tridentine defensive policies. To work for their reform is not to hurt any divine institution; quite the contrary. It is to accept, honour, and obey the forceful admonition of Vatican Council II:
Christ summons the Church, as she goes her pilgrim way, to that continual reformation of which she always has need, insofar as she is a human institution here on earth (Decree on Ecumenism, 6).
Ultimately, we should trust the internal strength of the Word of God. Cardinal Newman’s insight in his Essay on the Development of Christian Doctrine, Chapter Eight, remains as valid today as ever:
The stronger and more living is an idea, that is, the more powerful hold it exercises on the minds of men, the more able is it to dispense with safeguards, and trust to itself against the danger of corruption.
There is no stronger ‘idea’ given to the human race than the idea of Christianity. The source of its ‘internal vigour’ (Newman’s words) is the ever living Spirit of God.
LADISLAS ORSY, SJ
[Ladislas Orsy SJ, visiting professor of philosophy of law and canon law at Georgetown University Law Centre, Washington DC, is a graduate in law of Oxford and holds a doctorate in canon law from the Gregorian University, Rome.]
[This article was first published, in German, inStimmen der Zeit, in June 1998. This version appeared in Ireland’s Doctrine and Life in October 1998.]
