Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, April 16, 2008

A response to “Reforming the Vatican”

I would like to thank Michael P. for his kindly making us aware of Fr. Thomas Reese’s essay in Commonweal Magazine entitled “What the Church Can Learn from Other Institutions.” I’ll be addressing Fr. Reese’s six points for reform in a moment, but there is some need to consider his introductory passage that “throughout its history the Vatican has often imitated the organization of secular political institutions.” Fr. Reese does not offer any particular illustrations, so I am not sure what imitations and adoptions he has in mind. But from the perspective of who adopts from whom, I think those of us interested in Catholic Legal Theory need to be mindful that it was the Church’s legal institutions that often contributed to the foundation of western legal and juridical institutions. Harold Berman’s great work Law and Revolution is but one examination of this argument. Ample evidence exists demonstrating that the secular authority often drew from the Church’s legal and juridical institutions. I think we all need to be mindful that contemporary technologies have enabled the transmission of information in fractions of seconds, and this has had a tendency to reinforce the centralization of authority of academic institutions, corporations, national governments, and other organizations. I would caution against the “Vatican’s” (does Fr. Reese really mean the Holy See?) adopting “practices of the secular political world.” The Church and the Holy See are not political institutions even though some of their governance responsibilities have congruence in the legal and political works of the state, and this is a point that Fr. Reese concedes when he states, “All of these [activities] had parallels in secular society.” But substantive distinctions remain. The Church is the Body of Christ, the People of God. It is an institution in this world but not of it. I don’t think the same can be said of secular political institutions.

Before he begins his presentation of the six topics for reform, Fr. Reese engages in a discussion about Church-State relations particularly in the context of the selection of bishops. While he seems to wish that the selection could be conducted at the more local level rather than by the Holy Father and the Congregation for Bishops, Fr. Reese acknowledges the shortcomings of his desire. First of all, he acknowledges that the faithful do not always speak with one voice. Moreover, is it not possible that certain factions within the Church could stifle the voice of other factions? A lot would depend on who is present and who is not to cheer or jeer the candidate. I question the soundness of a selection process that is subject to the heckler’s veto. In addition, Fr. Reese admits the difficulties presented by the participation of the secular temporal authorities. This is of real and great concern. In the early twentieth century, for example, Cardinal Rampolla’s election to the papacy was frustrated in 1903 by the veto authority reserved and exercised by the Austrian emperor. Today, the People’s Republic of China, officially an atheistic (and totalitarian) government, has forced its views on the appointment of bishops who will serve within its sovereign territory. I think that Fr. Reese is mistaken in relegating to times past the temporal interference in Church matters. As I have stated here, today the Chinese state is not adverse to such interference; moreover, I have discussed in previous postings on Mirror of Justice the efforts by American politicians to saddle the Church with questionable regulation including financially accountability to secular authorities. These acts of temporal authorities, be they in China or the U.S., pose grave challenges to libertas ecclesiae.

Fr. Reese continues his historical study by noting that with the decline of the authority and presence of Catholic monarchs in Europe, the papacy consolidated and centralized the episcopal appointment mechanism. But should there not be a strong bond between Peter and the other apostles? This question was amply addressed at the Second Vatican Council in the Dogmatic Constitution on the Church, Lumen Gentium, and the Decree on the Bishops’ Pastoral Office in the Church. In these texts, the Second Vatican Council underscored the vital principle that the bishops serve in communion with and under the authority of the Supreme Pontiff. I don’t think this was so much a mere “consolidation of power” as Fr. Reese suggests but an amplification of the principle taught by Jesus found in Saint John’s Gospel regarding the essential relationship between the vine, the branches, and the fruit that is borne. While it has many members, the Body of Christ is one.

And now, on to Fr. Reese’s six “possible reforms.”

At the outset, I suggest that what constitutes “best practices” for secular institutions of limited government (i.e., the “servant state”) must be carefully evaluated before being applied to a divine institution, viz. the Church.

His first recommendation is to make the Vatican a bureaucracy rather than a court. Having dealt with officials of the Holy See curial offices as well as Federal and state administrators, legislatures and their committees, my experience allows me to question what appears to be Fr. Reese’s assumption that Vatican offices are more difficult to approach or to make appeal to than are those of secular temporal authorities. This is not always or often the case. In addition, I don’t think cardinals and bishops particularly think of themselves as “princes” or “nobles” but as persons charged with the responsibility of executing as sons of the Church the duties of their office with fidelity to their commissions. If deference is given to them, it is because of the authority of their office. But we citizens also defer to the authority of our administrative, legislative, and judicial officials. I am certain that the experience of the American republic has revealed that some temporal office holders in the U.S. have exercised their authority in ways that would remind us of the methods not of a servant official but of a tyrant. On his first recommendation, Fr. Reese concludes that elements of the Vatican bureaucracy need to be reminded that as servants of the pope they are not “part of the Magisterium.” What Fr. Reese forgets is that the Vatican bureaucracy serves the pope and produces work which he or someone to whom he has delegated the authority subsequently approves and appropriates thereby making its work his and therefore a part of the Magisterium.

His second point calls for the institution of democratic legislative structures. I do not think his proposal acknowledges several important facts that would blunt the force of this suggestion. First of all, the Roman dicasteries, some of which were established by the work of the Second Vatican Council and some of which precede it by many years (in some cases centuries), today have members and consultors (clerical and lay; men and women) who provide the Holy Father with recommendations that he typically and frequently adopts. When we think about law making in the United States, the system of the Holy See has a parallel with the executive signing into law the work of the legislature before it becomes law. In both cases, there is the mechanism for an “executive veto.” In the case of the Holy See, there is no mechanism for a legislative override, but that is not needed when the dicasteries return to their work leading to new recommendations or other work product submitted to the Holy Father. The fact that the Holy See relies today on all modern means of communication would put into perspective Fr. Reese’s clarion that there be an “ecumenical council at least once every generation.” When modern means of rapid communication did not exist, his suggestion would be more attractive. But one must ask is it necessary to have a meeting when the same work can be accomplished through almost instantaneous global communication.

His third recommendation calls for the conversion of the current dicasteries into “synodal committees.” As I have already mentioned, the Roman curia today (which includes Congregations, Councils, Tribunals, Academies, and other offices) is comprised of members, staff, and consultors from around the world. His conversion recommendation offers little in the way of substantive change but appears to be largely cosmetic.

The fourth suggestion concentrates on legislative oversight of the bureaucracy. I find this recommendation fails to take account of the fact that here in the United States, there is little ability of Congress or state legislatures to exercise oversight over a professional bureaucracy that is protected by the civil service system. Indeed, the highest offices of the bureaucracy are typically filled with political appointments, many of whom are subject to legislative scrutiny, confirmation, and oversight. But the vast majority of the civil temporal bureaucracy is protected from the oversight authority that Fr. Reese considers essential for the Church’s bureaucracy. Fr. Reese correctly notes that in some countries such as the United States there is an independent judiciary. But I wonder what makes him think that the Holy Father does not defer to the judgments and expertise of the several tribunals in Rome and those of the local churches that exercise the juridical duties of the Church? To the best of my knowledge, no pope in modern times ever considered a court packing plan or legislative or executive overrides of judicial decisions. I disagree with Fr. Reese’s contention that the protection of due process is not afforded to theologians who are investigated by the Congregation for the Doctrine of the Faith. The scandal he imagines may exist in legend but not in reality.

While I have already addressed some of his concerns about episcopal appointments, his fifth suggestion, fails to acknowledge that the papal nuncios (or in countries where there is no nuncio, the apostolic delegate), who are one of the Church’s principal bodies involved in the appointment of bishops, rely on recommendations and information supplied by clerical and lay members of the local churches regarding potential episcopal nominations. The dossiers compiled on those priests being considered for nominations reflect the abundant sources of information and opinions collected by the nuncios or apostolic delegates who then submit short lists to the Congregation for Bishops and, subsequently, to the Holy Father. The conclusion that the participation of the local churches is excluded in the episcopal appointments process is mistaken. 

His final suggestion is a call to strengthen episcopal conferences by making them councils that would make the decisions otherwise made “by a centralized government.” While Fr. Reese relies on church teachings pertaining to subsidiarity, he fails to acknowledge that local churches already do this in many areas. But they do so in communion with Peter, the Vicar of Christ. In this context, we cannot forget the principles to which I have already referred that are from Lumen Gentium and the Decree on the Bishops’ Pastoral Office. Subsidiarity in the Church as well as its practice in the civil government of the United States is a good thing, but it exists in a reality where certain universal questions must ultimately be addressed by the highest authority, ecclesial or temporal. Subsidiarity that fails to complement solidarity leads to unnecessary friction and, then, fraction, and this is counterproductive to the flourishing of the vine and the branches—the one Body of Christ.

I look forward to reading the more detailed discussion which will appear in Fr. Reese’s chapters in the forthcoming book. For the time being, I have attempted to respond to the substance of what he has thoughtfully put forward in his article that Michael has kindly brought to our attention. Like Fr. Reese and so many others, including the Holy Father Benedict XVI, I remain a person of hope—hope in the one who came to save us all and who is represented by the Vicar of Christ and those whom he has called to assist him in his divinely mandated commission from our Savior.    RJA sj


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