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.

Thursday, December 17, 2015

Archbishop Fisichella, Justice Kennedy, and the Hermeneutic of Desire

Pope Opens Holy Doors

Last Tuesday, December 8th, the Holy Father began the Jubilee Year of Mercy by opening the Holy Doors at St. Peter’s Basilica.  In his homily opening the Year of Mercy (here) the Pope commented on the significance of this tradition in the Church: “To pass through the Holy Door means to rediscover the infinite mercy of the Father who welcomes everyone and goes out personally to encounter each of them.  It is he who seeks us!  It is he who comes to encounter us!  This will be a year in which we grow ever more convinced of God’s mercy.”

In announcing the Year of Mercy in the Bull of Indiction, Misericordiae Vultus, the Pope also announced that a group of priests, Missionaries of Mercy, would be designated and granted “the authority to pardon even those sins reserved to the Holy See” (¶ 18).  These sins include certain sins that also incur a legal penalty under the Code of Canon Law, including a violation or profanation of the Holy Eucharist (Canon 1367); absolution of an accomplice in the sin of adultery (Canon 1378); unauthorized ordination of a bishop (Canon 1382); direct violation by a confessor of the seal of confession (Canon 1388); and physical violence against the Roman Pontiff (Canon 1370).

Arch. Salvatore Fisichella

Commenting on the last of these sins — what constitutes “physical violence” toward the Pope — Archbishop Rino Fisichella, President of the Pontifical Council for the Promotion of the New Evangelization, told a group of journalists (here):

I would say that we need to understand well “physical violence,” because sometimes words, too, are rocks and stones, and therefore I believe some of these sins, too, are far more widespread than we might think.

It is true that, since shortly after his election in 2013, Pope Francis has been subject to substantial criticism.  Some of this criticism has been unfair, even scandalous.  But much of it is understandable, due to the lack of clarity and precision that is both the strength and the weakness of Papa Bergoglio’s extemporaneous, pastoral style.

But is it also true that the provision in question, Canon 1370, cannot reasonably be interpreted to apply to verbal criticism of the Roman Pontiff.  This is not to say that hateful speech and unfounded criticism are not sinful.  As canonist Edward Peters explains (here), “hateful speech directed against any one is objectively sinful, and if directed against a man of God, let alone a pope, it is especially wrong.”

At the same time, as Peters also explains, Fisichella’s interpretation of Canon 1370 goes against the basic norms of interpretation set forth in the Code of Canon Law.  These norms are similar to the rules of statutory construction familiar to American civil lawyers.  For example, Canon 17 provides that the canons are to “be understood in accord with the proper meaning of their words considered in their text and context,” and “[i]f the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator.”  Likewise, Canon 18 demands that those canons “which establish a penalty” be “subject to strict interpretation.”  Similarly, Canon 221 § 3 protects the faithful by providing that they have “the right not to be punished with canonical penalties except according to the norm of law.”

Taken together, these background norms cast grave doubt on Fisichella’s interpretation of Canon 1370.  On top of this, however, examining the text of Canon 1370 itself, Peters adds the following:

Canon 1370 criminalizes “vim physicam” against the pope, not “verba aspera” or variants thereon, and I know of no canonical commentary that includes “words” as a species of “physical force” in this context. Indeed, the CLSA New Commentary, the Exegetical Commentary, the Ancora Commentary, and the Urbaniana Commentary—at which point I stopped looking—expressly exclude “verbal violence” from the range of actions penalized under Canon 1370.

There are, I think, two things at work in Fisichella’s tortured reading of Canon 1370 that are instructive for those of us who are students of American law and who have an interest in the project of Catholic legal theory.

First, just because we regard a given state of affairs as desirable does not mean that the law, as written, advances that state of affairs.  This is what might be described as the “hermeneutic of desire”: we want the words to mean something, and so they do.  This is a fallacy to which well-meaning people may fall prey, but intellectual honesty demands a different course.

Here, Fisichella seems smitten with the idea that a text can mean what he wants it to mean when that meaning is of sufficient importance.  This idea is not unknown to students of American constitutional law since it is the same idea that finds expression in the theory of “substantive due process.”  Because the freedom to use contraception, to terminate the life of a developing child in the womb, to engage in same-sex relations, and, now, to marry a person of the same sex are deemed to be of such overwhelming importance, it is now thought that the Constitution must prohibit the state from restricting freedom of action with respect to these matters.  Archbishop Fisichella, like certain members of the Supreme Court, is guilty of trying to make a legal text mean something that the operative words simply cannot bear.  “Physical” simply does not mean “verbal” anymore than “process” means “substance.”

Indeed, Archbishop Fisichella has employed a hermeneutic so liberal that it would make even Justice Blackmun blush! . . . Well, maybe not Justice Blackmun – he who “tinker[ed] in the machinery of death”  by virtually inventing the wheel (abortion) even as he claimed to loathe it (capital punishment). (I honestly can’t see the pale torpor of his moribund face blushing at anything).  But perhaps Justice Kennedy, who has recently employed the same hermeneutic to dramatic effect in Obergefell v. Hodges.  Kennedy is nothing is not convinced of the historical significance and righteousness of his conclusion as to what the Constitution must provide.

Second, Fisichella’s “interpretation” of Canon 1370 evidences a kind of sloppiness and intellectual sloth that all who seek to engage in a meaningful conversation involving civil law and the Catholic intellectual tradition should seek to avoid.  Unfortunately, Archbishop Fisichella is not the only prelate who has recently manifested this kind of imprecision – a willingness to say something worthy of a sound-bite but unworthy of one who hopes to represent the best of Catholic thinking.

For example, this same kind of intellectual sloth and imprecision was on display this summer when Chicago’s Archbishop Blase Cupich quite rightly condemned the violence inflicted on unborn children through abortion laid bare in the undercover videos of Planned Parenthood officials, but then said (here) that we should be “no less appalled” by the lack of health care in our society, a broken immigration system, racism, joblessness, and gun violence.

Now I will readily and whole-heartedly admit that each of these presents a serious social problem, both for the Christian community and secular society, problems about which Catholic social teaching has something to say.  But these social problems, serious as they are, are not the moral equivalent of the state-sanctioned murder of innocent human life – a point thoughtfully addressed by Phil Lawler (here and here) and Archbishop Charles Chaput (here).

Sadly, Archbishop Cupich evidenced this same lack of rigor again in comments he made at the Synod on the Family in October.  With respect to couples in irregular second unions without the benefit of an annulment who approach the altar to receive the Eucharist, Cupich said (here):

If people come to a decision in good conscience, then our job is to help them move forward and to respect that.  The conscience is inviolable and we have to respect that when they make decisions, and I’ve always done that.

With respect to people in same-sex relationships he said (here) that:

[G]ay people are human beings too and they have a conscience.  And my role as a pastor is to help them to discern what the will of God is by looking at the objective moral teaching of the Church and yet, at the same time, helping them through a period of discernment to understand what God is calling them to at that point.

Back in Chicago, Archbishop Cupich made a similar comment with respect to people in same-sex relationships (here):

When people who are in good conscience working with a spiritual director come to a decision, then they need to follow that conscience.  That’s the teaching of the Church.  So in the case of people receiving Communion in situations that are irregular that also applies.  The question then was: Does that apply to gay people?  My answer was: they’re human beings too.  They have a conscience.  They have to follow their conscience. . . . They have to be able to have a formed conscience, understand the teaching of the Church, and work with a spiritual director and come to those decisions.  And we have to respect that.

As Ed Peters notes (here), some unkind and untrue things have regrettably been said about Archbishop Cupich in the wake of these comments.  Peters also observes, however, that although Cupich alludes to Church teaching, he fails to make clear “that conscience is used largely to assess whether one’s concrete action in a given situation accords with Church teaching—not to determine whether one agrees with or accepts Church teaching in the first place.”  The faithful have an obligation to reach a well-formed conscience – one in conformity with sacred scripture and the Church’s magisterium.  If an individual reaches a specific moral judgment that is contrary to the teaching of the Church, she must respect that decision on a certain level.  The dignity of the human person demands as much.  But respect does not require acquiescence or facilitation.  The Church is under no obligation to aid such an erroneous decision, to be complicit in it.

The Church’s “job” is not to help people “move forward” in persisting in sin.  It is to “speak the truth in love” (Eph. 4:15) and call them to conversion.  Doubtless there are several ways to go about this while remaining faithful to what the Church professes, but to pile sin on top of sin is not one of them.  Good intentions and a desire to be pastoral are laudable qualities, but there is nothing genuinely pastoral in an approach that ignores the truth out of a desire to be "inclusive."  There is, however, something slovenly and intellectually lazy in failing to engage the Church’s teaching with the rigor that it demands.


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