Canonical Observations on the New Regulations of the Congregation for the Doctrine of the Faith

CANONICAL OBSERVATIONS ON THE NEW REGULATIONS OF THE CONREGATION FOR THE DOCTRINE OF THE FAITH

Fr Velasio De Paolis, C.S.
Consultor to the Congregation for the Doctrine of the Faith

The public has recently been informed of the Regulations for Doctrinal Examination published, with the prior approval of the Holy Father, by the Congregation for the Doctrine of the Faith. They can be properly understood in the context of the evolution this Congregation has undergone, particularly in the last 30 years, and of the experience it has had. They should also be read in conjunction with the 1983 Code of Canon Law, the 1990 Code of Canons of the Eastern Churches, the Apostolic Constitution on the Roman Curia Pastor Bonus and the particular law of the Congregation itself.

I. The document's precedents

The responsibilities of the Congregation for the Doctrine of the Faith were set down in the Apostolic Constitution Pastor Bonus. Art. 48 states the basic norm: "The proper function of the Congregation for the Doctrine of the Faith is to promote and safeguard the doctrine on faith and morals throughout the Catholic world; so it has competence in things that concern this matter in any way". In this function it does not replace the Bishops, but is meant, at the service of the Holy Father, to help them (cf. art. 50), In particular, it "takes care lest faith or morals be harmed by errors however disseminated"; its responsibilities include vigilance over books and publications "lest errors or dangerous doctrines, which may have been spread among the Christian people, go without suitable rebuttal" (art. 51). To this end, "it examines writings and opinions that seem contrary to correct faith or dangerous, and, if it is established that they are opposed to the teaching of the Church, it reproves them in due time having given the author full opportunity to explain his mind, and having forewarned the Ordinary concerned; it applies suitable remedies, if this is appropriate" (art. 51, 20). It is especially in the procedure for examining these writings and opinions that the dicastery is required to exercise particular care.

The responsibilities of the Congregation for the Doctrine of the Faith were set down in the Apostolic Constitution Pastor Bonus. Art. 48 states the basic norm: "The proper function of the Congregation for the Doctrine of the Faith is to promote and safeguard the doctrine on faith and morals throughout the Catholic world; so it has competence in things that concern this matter in any way". In this function it does not replace the Bishops, but is meant, at the service of the Holy Father, to help them (cf. art. 50), In particular, it "takes care lest faith or morals be harmed by errors however disseminated"; its responsibilities include vigilance over books and publications "lest errors or dangerous doctrines, which may have been spread among the Christian people, go without suitable rebuttal" (art. 51). To this end, "it examines writings and opinions that seem contrary to correct faith or dangerous, and, if it is established that they are opposed to the teaching of the Church, it reproves them in due time having given the author full opportunity to explain his mind, and having forewarned the Ordinary concerned; it applies suitable remedies, if this is appropriate" (art. 51, 20). It is especially in the procedure for examining these writings and opinions that the dicastery is required to exercise particular care.

In fact, responsibility for faith and morals pertains to the original constitution of this dicastery and has character required to exercise particular care, that in the past the Supreme Pontiff reserved to himself the task of presiding over it. For this reason in particular the Congregation was considered "supreme" among the other dicasteries. It had broad powers and its own, often confidential, procedures. The new spirit of the Council prompted Paul VI to reorganize the Congregation with the Motu Proprio Integrae servandae of 7 December 1965. It was not only a question of changing the name from Congregation of the Holy Office to Congregation for the Doctrine of the Faith, but especially of better defining its responsibilities and procedures. A further development took place with the reform of the Roman Curia, desired by Paul VI, with the Constitution Regimini Ecclesiae universae of 15 August 1967. The principal change was that the Pope would no longer preside over it. Even the Congregation for the Doctrine of the Faith was given a Cardinal Prefect. (The Constitution Pastor Bonus would clearly determine that "the dicasteries are juridically equal among themselves" [art. 2, §2].) It is expressly said that among its responsibilities, "it examines new doctrines and new opinions, in whatever way they are disseminated; it promotes studies in this field and encourages scholarly congresses; it condemns those doctrines which prove contrary to the principles of the faith, after having heard, however, the opinion of the Bishops of those regions concerned" (Constitution Regimini Ecclesiae universae, art. 32); in addition, "it carefully examines the books reported to it, and, if necessary, it will condemn them, after having heard the author, however, and having given him the opportunity to defend himself" (ibid., art. 33). In fact, these two articles are merely a repetition of art. 4-5 of the Motu Proprio Integrae servandae.

It was actually the task of examining doctrines, for which the Supreme Pontiff had already indicated the essential points to be kept in mind, that had to be spelled out in further detail. Thus we can understand why the Congregation for the Doctrine of the Faith wished to make timely provisions by publishing on 15 January 1971 the Nova agendi ratio in doctrinarum examine. It certainly contains the points set down by the papal document restructuring the Congregation. However, the Congregation's experience over the last 25 or so years suggested that some changes be made, particularly in a desire to engage to a greater extent the responsibility of Ordinaries in the task of safeguarding doctrine, especially the author's Ordinary, and to ensure with greater breadth and effectiveness both the defence of the patrimony of the faith and the possibility for the author to defend himself.

Lastly, it should also be recalled that, while respecting the principle established by the Constitution Pastor Bonus that the dicasteries "are juridically equal among themselves", the Congregation's particular responsibility for faith and morals gives it a unique status within the Roman Curia. Precisely because it has the function of promoting and safeguarding the doctrine of faith and morals it does not only exercise the power of jurisdiction, like the other Congregations, but also shares in the magisterial authority of the Pope. The Instruction on the Ecclesial Vocation of the Theologian in fact says: "The Roman Pontiff fulfils his universal mission with the help of the various bodies of the Roman Curia and in particular with that of the Congregation for the Doctrine of the Faith in what regards the doctrine of faith and morals. Consequently, the documents issued by this Congregation expressly approved by the Pope participate in the ordinary Magisterium of the successor of Peter (n. 18). The international Theological Commission regards the doctrinal pronouncements of the Congregation for the Doctrine of the Faith as belonging to the authentic Magisterium: "Other pronouncements of the Magisterium, which are not definitive definitions and come from the Pope, the Congregation for the Doctrine of Faith or from Bishops, are to be accepted in religiously grounded obedience (religiosum obsequium) in varying degrees. Such pronouncements belong to the authentic Magisterium if the intention of teaching is expressed in them. This can be determined especially from the type of document, the frequency of presentation of one and the same doctrine, and the way in which the teaching is presented" (International Theological Commission, The Interpretation of Dogmas, 1989, B, 11, 3).

The reason is that, if it is true that "in exercising his supreme, full and immediate authority over the universal Church, the Roman Pontiff employs the various dicasteries of the Roman Curia", and therefore they "act in his name and by his authority for the good of the Churches and in service to the sacred Pastors" (Apostolic Constitution Pastor Bonus, n. 7), it must be granted that this also applies to the exercise of his magisterial authority through the Congregation for the Doctrine of the Faith. Therefore, the doctrinal pronouncements or judgements of this dicastery in fulfilling its task are made "in the name and by the authority of the Roman Pontiff" and are thus the expression of a participation in his ordinary Magisterium, although to varying degrees, particularly when they are expressly approved by the Supreme Pontiff.

This particular feature, unique among the dicasteries of the Roman Curia, puts the Congregation for the Doctrine of the Faith in a particular relationship with all dicasteries in so far as the latter touch on questions of faith. Competence in these matters belongs properly and exclusively to the Congregation for the Doctrine of the Faith. The other dicasteries refer to it and abide by its judgement whenever these matters are at issue (cf. Apostolic Constitution Pastor Bonus, art. 48, 54, 58, §2, 62, 120, 73, 94, 161, 137).

As a result of this particular feature, the Congregation for the Doctrine of the Faith acts through both magisterial and jurisdictional interventions. The distinction between the two types of intervention is important since they are subject to the same regulations. In fact, doctrinal and disciplinary interventions are often easy to distinguish and separate; sometimes it is difficult to do so, other times it can be unhelpful. As a result, it is necessary or at least opportune for the Congregation to have its own regulations. It is a rather delicate problem, which requires a balanced solution and is the focus of particular attention in the Regulations the Congregation has been given for doctrinal examination.

II. Basic structure of the Regulations

The document comprises 29 articles. After recalling the Congregation's proper competence in two preliminary articles, it consists of five parts, which have the following titles respectively: preliminary examination (I), office study (II), ordinary procedure of examination (III), examination in cases of urgency (IV), disciplinary measures (V). As is obvious from the structure, an initial phase is envisaged which may or may not result in the need for a study. This study can lead to the need for an examination through an ordinary or urgent procedure. At the conclusion of it all, it may or may not be necessary to take disciplinary or penal measures.

1. Office examination

This is a preliminary examination by the Congregation's Congresso through an office study and with the collaboration of consultors and experts. It is said that the study should be done with original and authentic texts. The Congresso is responsible for deciding about this preliminary study. The criteria for its decision are: "potential errors which have been noted taking into consideration their prominence, seriousness, dissemination, influence and the danger of harm to the faithful" (n. 6). Should there be reasons for proceeding further, there are two possible options: 1) to entrust the whole matter to the local Ordinary so that he can clear up any problem with the author concerned and then report to the Congregation; 2) to continue the examination by the Congregation. In the latter case, the Regulations envisage two avenues: the ordinary procedure of examination and the examination in cases of urgency.

2. Ordinary Procedure of Examination

The norms for the ordinary procedure of examination are particularly detailed, since they provide for grave doctrinal errors that are difficult to discern and evaluate, including the danger they may pose to the faithful.

This procedure entails two phases: an internal phase of preliminary investigation undertaken within the Congregation and an external phase involving the presentation of objections to the author and subsequent dialogue. The Regulations seem to be principally concerned with guaranteeing the author's rights and involving his Ordinary.

A. Internal phase

It begins with the appointment of two or more experts who are responsible for giving an opinion and evaluating whether the text "is in conformity with the doctrine of the Church". The Congregation also appoints "a relator pro auctore, who has the task of illustrating, in a spirit of the truth, the positive aspects of the teaching and the merits of the author, of co-operating in the authentic interpretation of his thought within the overall theological context and of expressing a judgement regarding the author's opinion" (n. 10). The relator pro auctore is appointed by the dicastery, since we are still at the exploratory phase of the procedure; the Congregation is only trying to form a more precise idea of the author's thought, without having decided, for the moment, whether to take further action.

The case is then discussed in the Consulta, which evaluates the whole matter: "The experts who had submitted opinions on the text can also be invited to participate in the Consulta, in addition to the Consultors themselves, the relator pro auctore and the author's Ordinary (who cannot be substituted by another and is bound to secrecy)". Following the discussion the Consulta votes on the basis of the Professio fidei. It is then up to the Sessione Ordinaria of the Congregation to decide "whether to present objections to the author and if so, on which points". The whole matter is finally submitted for the evaluation and approval of the Holy Father.

The external phase begins if the internal phase decided on a presentation of the errors at issue to the author.

B. External phase

The external phase begins with the process of informing the individuals and bodies concerned, i.e., the Ordinary or Ordinaries concerned and the competent dicasteries of the Roman Curia. The competency of the Congregation for the Doctrine of the Faith does not eliminate the responsibilities of the other dicasteries. In many cases it will be a question of requesting the co-operation of several dicasteries. The author is sent the list of "erroneous or dangerous propositions", together with all the documentation necessary for the defence. The author has the right to name an adviser to assist him; he must respond within three months to the objections raised against him. The Ordinary must also forward his opinion. The possibility is also foreseen of a personal meeting between the author, together with his adviser, and "delegates of the Congregation". If the author's reaction is silence, i.e., no response, the Congregation will have to evaluate this behaviour and take the appropriate measures. In the case of a written response, however, an evaluation of the argumentation presented is called for and, if new elements appear, the possibility is also foreseen of submitting everything once again to the Consulta, in which the author's adviser may participate, in addition to the experts. Eventual decisions regarding the - author will have to be submitted for the approval of the Supreme Pontiff, before being communicated to the author's Ordinary, the Episcopal Conference and the dicasteries concerned.

3. Examination in cases of urgency

This procedure is employed "when the writing is clearly and certainly erroneous and, at the same time, its dissemination could cause or already has caused grave harm to the faithful". It seems faster and more hurried, not so much because it is a question of less serious cases, but precisely because the seriousness of the case is sufficient seems faster and more hurried, not so much because it is a question of less serious cases, but precisely because the seriousness of the case is sufficiently clear already, there is no need for lengthy investigations and, at the same time, there is the threat of grave harm to the faithful. In any case, this procedure too includes various stages that always provide for the author's defence.

The Ordinaries and dicasteries concerned are immediately informed of the procedure under way. A commission is set up "which is especially entrusted with promptly determining the erroneous or dangerous propositions". The matter is then examined by the Sessione Ordinaria of the Congregation; if. the propositions are judged to be in fact, erroneous and dangerous, after the Holy Father's approval they are transmitted to the author.

4. Disciplinary measures

It should be pointed out that disciplinary interventions are envisaged only "if the author has not corrected the indicated errors in a satisfactory way and with adequate publicity". In this case

two possibilities are envisaged: 1) it is evident that the author has committed the offence of heresy, apostasy or schism, for which the CIC already provides the penalty of latae sententiae excommunication (cf. can. 1364; CCEO, can. 1436, §1 and 1437), or 2) it is a question of doctrinal errors which do not involve such offences and so no latae sententiae penalties result. In the first case, the Congregation proceeds to declare the latae sententiae penalties incurred. Against such a declaration there is no possibility of recourse. In the second case, the Congregation it proceeds according to the norm of law, whether universal or proper to the Congregation".

III. Distinctive elements of the new procedure

In this presentation, however brief, we see the Congregation's concern, on the one hand, to ensure the necessary safeguarding of the doctrine of the faith and, on the other, to guarantee the author's right to his own defence through suitable ways and means. Specifically, there are clearly three elements in particular that characterize the new Regulations for doctrinal examination:

1. Involvement of the Bishops and the author's Ordinary

The new Regulations must be viewed not only in the context of the Congregation's responsibilities, but also in the perspective of a duty it feels towards the "right of the People of God to receive the Gospel message in its purity and entirety" (n. 1), as well as towards the "fundamental pastoral responsibility" of all the Pastors of the Church "who have the duty and the right to exercise vigilance... in order that the faith and morals of the members of the faithful entrusted to their care not suffer harm". The Holy See, and precisely the Congregation for the Doctrine of the Faith, is put at the level of its responsibility: on the one hand, it asserts the right to be able to "always intervene", and on the other, it states clearly that as a rule, [it] does so when the influence of a publication exceeds the boundaries of an individual Episcopal Conference, or when the danger to the faith is particularly grave". The reason for the Regulations is precisely to spell out its way of intervening.

With a view to involving the author's immediate Pastors, the Regulations provide for the proper Ordinary, the Ordinaries concerned and the Episcopal Conferences themselves to be informed in a timely, ongoing way, in addition to the other dicasteries of the Holy See. Provision is made for the question to be referred to the author's Ordinary for the further study needed and eventual clarifications, should the Congregation "judge that the study undertaken was sufficient" (n. 7). In all the Regulations, relations between the Congregation and the author concerned are handled through the latter's Ordinary. In the ordinary procedure, in addition to being informed, he is invited to the Consulta with personal, responsibility, to the point that he "cannot be substituted by another" (n. 12). The same Ordinary is called on to express his own opinion to the Congregation together with the author's written response (n. 17). The Ordinary also has an important role in the urgent procedure. In particular, he is not only informed but remains the intermediary between the Holy See and the author (nn. 26-27).

2. Guarantees for the author's defence

These guarantees were of course sufficient in the procedure previously in force. But in order to respond to a heightened sensitivity to this concern in the contemporary mentality, they have been significantly broadened. On the Congregation's part, the mechanism set in motion has so many important steps requiring long periods of time (the case is closed only years later!) and the involvement of so many people that it is impossible to accuse it of hastiness or superficiality. Provision is made for interventions, even repeated interventions, by scholars, experts, the Consulta, the Ordinaries, the Sessione Ordinaria of the Congregation and the Holy Father himself, which appear to express a truly consummate prudence, as befits so important a question as the defence of the faith and of the author's personal rights. His defence is also guaranteed by the appointment of a relator pro auctore, important a question as the defence of the faith and of the author's personal rights. His defence is also guaranteed by the appointment of a relator pro auctore, as well as by the presence of his own trusted adviser. Moreover, he enjoys the presence and assistance of his Ordinary at every stage of the procedure envisaged. If it is judged opportune, the author, accompanied by his adviser, can also meet to discuss his case with delegates of the Congregation.

3. The procedure's respect for universal and proper law

The Regulations are not at all presented as a swifter, prompter way for ecclesiastical authority to take disciplinary or penal measures to the detriment of the substantive and procedural norms provided for by the Codes. It is rather a question of the norms proper to the Congregation that regulate the conditions under which one can, if necessary, proceed to take disciplinary or penal measures: these norms are actually concerned with doctrinal examination, not with the disciplinary or penal measures to be taken or the procedures to be used to reach that point. In a general way it can be said that they are not procedures contrary to the Codes, but in addition to the Codes, provided precisely because of the delicacy of questions regarding the faith and to protect the author whose writings are being examined.

Art. 52 of the Constitution Pastor Bonus determines that the Congregation for the Doctrine of the Faith "examines offences against the faith and more serious offences committed against morals or in the celebration of the sacraments... and, if need be, proceeds to the declaration or imposition of canonical sanctions in accordance with the norm of common or proper law". It seems obvious that the Regulations for doctrinal examination involve the trial of offences (cf, can. 1400, §1, 20 and CCEO, can. 1055, §1). For some offences in fact (e.g., against religion and the Church's unity) it is a question of a trial; furthermore, the trial may conclude with the declaration or imposition of canonical penalties, which must be done in accordance with the norm of common or proper law. Actually, the Congregation for the Doctrine of the Faith is also a tribunal and acts as such. To this end it has its own law with its own procedures.

In this regard, a clarification is needed regarding art. 28 of the Regulations under examination. It is said of the provisions that, whenever it is a question of the offences of heresy, apostasy or schism, the Congregation. can proceed, to declare the latae sententiae penalty incurred, and there is no possibility of recourse against this declaration. Certainly, the declaration of a penalty is a jurisdictional act, not, properly speaking, a magisterial one. But it cannot be denied that in this case we are dealing with the declaration of a penalty already incurred. which follows a careful doctrinal examination in accordance with the procedure provided for by the same Regulations. Moreover, the procedure provides for the direct involvement of the Holy Father, with his approval, in the various stages of the process. The Regulations provide for the conclusions of the doctrinal examination to be submitted to the Holy Father himself. In this context, to separate the Congregation's conclusions about the author's teaching, which are certain that the author is a heretic, apostate or schismatic, and moreover refuses to submit to the Church's judgement, from the declaration of excommunication by initiating a penal process would be true legalism without any justification. Above all, it would entail the risk of indefinitely prolonging the resolution of an urgent and serious problem. In this respect we can easily understand the norm of art. 28, the one exception to universal law foreseen by the Regulations. Moreover, if the Congregation intends to proceed to disciplinary or penal measures, it follows both universal law and its proper law. In this context we find the explanation for the specific approval given by the Holy Father to art. 28-29 of the Regulations, i.e., for the derogation they contain from the procedure to be followed in declaring latae sententiae penalties and for the exclusion of any recourse against this declaration.

In conclusion, it can be said that the Regulations are a genuine, noteworthy effort to harmonize the necessary demands of safeguarding and promoting the faith with respect for the rights of the faithful: the former cannot be promoted at the expense of the latter. Both correspond to the truth; objectively they are not in conflict and so they must be safeguarded as much as possible.

Taken from:
L'Osservatore Romano
Weekly Edition in English
22 October 1997

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