The proposed reform would be hard to implement. Here's another way to change canon law

Like many faithful Catholics, Fr Aidan Nichols is concerned about the festering doctrinal and pastoral crisis resulting from Pope Francis’s Apostolic Exhortation Amoris Laetitia. This magisterial document is unprecedented in that it appears to conflict with a number of traditional Church teachings: those, for instance, prohibiting Communion for divorced and invalidly remarried Catholics and asserting the existence of intrinsically evil acts that can never be justified under any circumstances. Some of these teachings certainly meet the conditions for infallibility laid down by Vatican Council II in Lumen Gentium, 25.

However, I have some reservations about Fr Nichols’ proposed solution: a new canonical procedure “for calling to order a pope who teaches error”.

As Fr Nichols recognises, the ancient canon affirming that “The First See is judged by no one” (c. 1404 in the current Code) does not preclude correction of an erring pope. It appears in the section under “Trials” and simply means that the Church recognises no tribunal, secular or religious, that would be competent to summon and pass judgment on the Roman Pontiff. The authoritative New Commentary on the Code of Canon Law, in expounding this canon, clarifies that it “is not a statement about the personal impeccability or inerrancy of the Holy Father. Should, indeed, the pope fall into heresy, it is understood that he would lose his office. To fall from Peter’s faith is to fall from his chair.” Most great canonists, as well as classical theologians such as Suárez, Cajetan, Bellarmine and John of St. Thomas, have endorsed this view, understanding “heresy” here to mean formal heresy, which includes the element of pertinacity (obstinacy). That’s when you refuse to accept correction even after being shown that your opinion contradicts a doctrine the Church has proposed as revealed truth, to be believed “with divine and Catholic faith” (cf. Catechism of the Catholic Church, 2089).

But the Commentary immediately adds an important reservation: “The question, however, of who or what body . . . would determine whether, in fact, the pope had fallen into heresy is unclear historically and is obviously not settled by this canon” (p. 1618). Most of the canonists and great theologians mentioned above maintained that only an “imperfect general council” (consisting of the whole episcopal college except the pope) would be competent to determine this question of fact. This body would declare, if necessary, not that it was removing the pope from office – something beyond the competence of any earthly authority – but that since it was clear the pope had, as an observable matter of fact, become a formal heretic, he had ipso facto fallen from office. The cardinals would then gather in conclave to elect a new pope.

However, a fatal weakness in the above procedure would immediately become apparent if we tried to implement it in the 21st century. And I am afraid this weakness would probably apply also to the milder kind of canonical procedure suggested by Fr Nichols – one which would seek not to replace the reigning pontiff, but just to formally correct him. Those great scholars of former centuries took for granted an ecclesial culture in which the great body of the episcopate retained a deep and healthy abhorrence of heresy. They therefore assumed that if a pope should lapse into heresy (which heaven forbid!), he would find himself up against a rock-solid wall of resistance from the remaining bishops and the College of Cardinals, so that any man elected as the new pope would enjoy the morally unanimous acceptance of the faithful. Problem solved. 

But today any attempt to declare a pope a heretic would simply result in schism, with a bitterly divided episcopate leading two factions of the faithful under two rival popes. And Fr Nichols’ proposal, though less drastic, would also fail to achieve the desired effect. The root problem is that in the post-Vatican II secularised, ecumenised, dialogical, media-wary Church culture, the strict safeguarding of Christ’s revealed truth is no longer a gut-level priority for most Catholics. And that goes for many bishops and cardinals (as the two recent Roman Synods made painfully clear). The hierarchy no longer makes a determined effort to root out heresy. Indeed, the tables have been turned – and increasingly so under Pope Francis – so that it is precisely those who detest and oppose heterodoxy who find themselves hunted down, marginalised and scolded for their “pharisaism”, “rigidity”, “intolerance”, “legalism” and “lack of mercy”.

Within this culture, even supposing the pope could be persuaded to approve an amendment to canon law by which he himself could be formally corrected for teaching error, how would it be worded? And how would it work? Who would be given canonical authority to decide whether the Holy Father needed such correction, and then to administer it? A consensus of the cardinals and/or bishops? Sorry, but there won’t be any such consensus. A simple or two-thirds majority thereof? Still very unlikely to be reached, and in any case popes can disregard majorities. The Prefect of the Congregation for the Doctrine of the Faith? The pope could dismiss and replace him with a snap of the fingers – as we saw happen recently with the worthy and brave Cardinal Müller.

However, following Fr Nichols’ lead, I do have one suggestion for a canonical amendment. Canon 212, §3 already recognises for all the faithful, “according to the knowledge, competence and rank which they possess . . . the right and sometimes even the duty to manifest to the sacred pastors”, even publicly, their opinion on matters affecting the good of the Church. They must do this, however, “without prejudice to the integrity of faith and morals, with reverence to their pastors, and attentive to the common advantage and the dignity of persons”. I would suggest adding the following concluding sentence to c. 212 §3: “This right and duty may extend even to public remonstrances directed to the Roman Pontiff, if, in interventions that do not make use of his prerogative of infallibility, he should appear to teach a doctrine incompatible with that of his predecessors in the See of Peter”.

This would be a very modest amendment, obviously non-binding and with few if any juridical consequences. But it would give some healthy emphasis to the sad reality of papal fallibility; and, as they say, every little helps.