Fr. Oswald Gracias

The ‘doctrinal conflicts’ that could and do sometime arise take place when it is felt by the Magisterium that the teaching of a particular theologian is not in keeping with the official teaching of the Church.

This study will comprise of four parts:

I describe briefly procedures in the Church as per the regulations of Canon Law. This is with the purpose of indication the principles that guide Church’s procedure and are important to it. Then I will describe the church’s procedure in dealing with doctrinal problems. This latter procedure will then be evaluated in the context of the basic principles which are to be safeguarded in any procedure. Finally, I would like to raise some questions about possible alternative procedure for these doctrinal conflicts.

The importance of this subject lies in the principle that the Magisterium and the theologians play a unique role in the responsibility for the “handing on of the faith” Paul VI said that one of the urgent issues in the Church is to clarify the relationship between “the mandate given to the ecclesiastical Magisterium to protect divine revelation and the task given to theologians to investigate and explain the doctrine of the faith”.

It is when these two are not in harmony that we have a conflict situation. This is something that should not be. Both groups have their own specific role and function in the Church. The international theological commission has stated that the dialogue between the Magisterium and the theologians “is limited only by the truth of faith which must be served and explained”.

As John Paul II has said “In their service to the truth, theologians and the Magisterium are constrained by common bonds: the word of God; the “sense of the faith” that flourished in the Church of the past and still flourishes; the documents of tradition in which the common faith of the people was proposed; and finally, pastoral and missionary care, which both (theologians and Magisterium) must attend”. In other words between the theologians and the Magisterium there is to be cooperation and collaboration.

I. To begin our study of doctrinal conflict procedures let us have a look at other Canonical procedures. The procedures do not deal directly with doctrinal conflict situations, but can be used for them. Thus when there is question of inflicting a penalty because of heresy, a penal process may be used. To remove a parish priest because of doctrinal problems, the process for removal of parish priest is to be used. If one has felt aggrieved by a decision and moves a Church tribunal, the contentious process would have to be used. Hence a study of these procedures could be useful.

1. The procedure for the declaration of nullity of a marriage is the procedure most commonly known. Church Tribunals deal almost exclusively with matrimonial cases. This is a “contentious case” procedure.

The procedure in a marriage case is this: The case may be introduced only be the parties whose marriage is being impugned. In some circumstances, where public good is involved, the promoter of justice may introduce the case. There are specific rules about the competence of the Tribunal. This Tribunal contacts the Respondent and a session is held to formulate the issue in question. A defender of the Bond is appointed. The investigative process then begins, with the Petitioner and his/her witnesses and the Respondent and his/her witnesses being heard.

Normally there is no confrontation between the two. All the sessions are held “in camera”. Once the investigative process is over, both parties have a right to inspect all the evidence so that they know on what basis the judge’s decision is taken. The parties can adduce fresh evidence in the case even at this stage, but the other party has a right to inspect the new evidence adduced. After this, the Defender of the Bond gives his observations and the Judge gives his judgement. An affirmative sentence granting nullity has to be confirmed by a higher Tribunal. This is peculiar to marriage cases. Other contentious cases need not go on automatic appeal to a higher tribunal. A negative sentence in a marriage case can be appealed against to a higher tribunal.

The process in a marriage case is in order to search for an objective truth: does the marriage exist or was it null and void form the very beginning?

Several principles of canonical procedure can be noticed here: The right to know the charges, the right to a full defense, i.e. to respond to the charges in writing and in person, the right to call witnesses, the right to have access to all pertinent documentation, the right to appeal. There are specific time limits set for the case and, even if many of our Tribunals are not always able to fulfil this requirement, this is indicative of the Church’s mind about the right to a speedy resolution of the case. There is provision for advocates for either side – but this is rarely followed in our Tribunals due to lack of a sufficient number of adequately trained personnel. It will be interesting to see if these principles mentioned above are safeguarded in the procedures involved in doctrinal conflict situation.

2. The procedure for the removal of a Parish Priest. The Code of Canon Law gives precise regulations for the procedure for the removal of a Parish Priest. We are talking of course of a conflict situation where the Bishop considers that the Parish priest is not suitable for the office and the Parish Priest thinks otherwise. After a preliminary investigation has shown that there could be reason for the removal of the Parish Priest, the Bishop is to discuss this matter with two Parish Priests chosen from a group stably established for this purpose by ‘the Priests’ Council, at the proposal of the Bishop. If he then concludes that he has to remove the Parish Priest, the Bishop is to indicate to him the reasons and the arguments for this and invite the concerned Parish Priest to resign within fifteen days. if the Parish Priest gibes argument against this and the Bishop is not satisfied with them, he is to invite the Parish Priest to inspect the acts of the case and put together his objection in a written answer. The Bishop then completes the investigation and weighs the matter with the two Parish Priests he had consulted before and finally decides what is to be done.
Once again here we see the right to know the charges, the right to a defense; the right to appeal is always preserved. No mention is made about the right to counsel. However, this is not forbidden and the Parish Priest concerned can surely consult others before answering in writing. Protection from an arbitrary decision is ensured by the fact that the Bishop has to discuss the matter with two assessors in whose appointment the Priest’s Council has as it were the power of veto.

3. Penal Procedures

Once the Bishop decides after a preliminary investigation that a judicial process is to be initiated, he is to pass on the documentation to the promoter of justice, who is to preset to the Judge a petition of accusation. Then the case proceeds with the Judge summoning the accused, informing him of the charges, and inviting him to engage an advocate. If he does not do so, the judge himself is to appoint an advocate before the formulation of the issues. The case then proceeds as a contentious case with the same procedure as outlined for marriage cases. In the argumentation of the case, the accused person or the advocate or prosecutor of the accused has always the right to write or speak last. The accused can appeal against the decision of the Judge, and so can the promoter of justice.

Even if the Bishop in an extraordinary situation decides that a judicial process is not necessary, and that the matter should proceed by way of an extra judicial decree, he is to notify the accused of the allegation, and the evidence, and give him an opportunity for defense. He is then to accurately weigh the evidence and the arguments with two assessors, and then decide, issuing a decree which outlines the reasons in Law and in fact. Appeal is possible to the Holy See.

Here once again we notice the importance given to the right to know the charges, the right to defend oneself, and the right to appeal. The right to counsel is safeguarded and if the accused does not bring his own advocate own advocate, the Judge is to appoint one.

II. Having seen the principles that have been considered sacred by the Church in other procedures we can proceed to a study of procedures involving doctrinal conflicts.

A. Past Procedures

Authors who are considered dangerous had their books put on the Index. The history of Index goes back to the sixteenth century. Paul III by his Apostolic Constitution “Licet ab initio” (12.7.1542) created a commission of six Cardinals to suppress heresies. Sixtus V by his “Immensae” of 22.1.1588 reformed it and called it a Congregation. Loe XIII by his Apostolic Constitution “Officiorum ac munerum” (25.1.1897) reorganized the Holy Office and its competencies. All previous dispositions were abrogated. Doctrinal problems came within the purview of the Holy Office. The same Roman Pontiff on 17.9.1990 approved and confirmed a new Index of prohibited books by his Apostolic Constitution “Romani Pontificio”. Pope Pius X with his “Sapinenti Consilio” (28.6.1908) reorganized the Curia and created the Congregation of the Holy Office and of the Index.

Benedict XV on 25.3.1917 suppressed the Congregation of the Index and these matters now remained within the competence of the Holy Office. Pope Paul VI on 7.12.65 by Integrae Servandae changed the name of the Congregation of the Congregation for the Doctrine of the Faith. On 14.6.1966 the same Congregation specified that the Index had no longer any legal force, but evidently it retained its moral force.

B. Present Procedures

1) The new Code of Canon Law contains the prescriptions for prior censorship of books. Books of Scripture, their translations, Liturgical books, their translations, books containing prayers for private devotions, catechism and catechetical material as well as books on Scripture, Theology, Canon Law, Church history and religious or moral discipline, if they are to be used as text books in schools or colleges, are to be sent to the Bishop for prior approval. If permission for publication is denied, the Ordinary is to inform the author the reasons for the denial. The Code makes no mention of the possibility of appeal.

2) Ecclesiastical Universities and Faculties

John Paul II on 15.4.79 issued the Apostolic Constitution “Sapientia Christiana” and the Congregation for Catholic Education gave norms of application on 29.4.1979. Article 10 of the norms states that if the local Ordinary finds something contrary to the doctrine, morels or ecclesiastical discipline in the University or Faculty, he is to take the matter to the Chancellor, so that the latter may take action. If no action is taken by the Chancellor, the Ordinary can appeal to the Holy See.

Article 22 of the same norms states that the Statutes of the University are to set out carefully the procedure in regard to the suspension or dismissal of a teacher specially in matters concerning doctrine. Care is to be taken that these matters be settled between the Rector or President or Dean and the faculty member himself. If they are not settled there, these matters should be dealt with by an appropriate local committee, so that the first examination of facts be carried out within the University of Faculty itself. If this is not sufficient, the matters are to be referred to the Chancellor, who, with the help of experts either of the University of Faculty, or from other places, will study the matter and resolve the issue. The possibility of recourse to the Holy See always remains, allowing the author to explain and defend himself.

The document might not be relevant to everybody on account of our few recognized Catholic Faculties.

However, the principle of subsidiary is to be noted here. It is sought to resolve the issue by means of a dialogue between the teacher and the Dean or President. If this fails, a committee is appointed next it goes to the Chancellor and his advisors. In order to protect the autonomy of the Faculty/University, and the faculty member’s right to due process, academic procedures are to be exhausted before recourse is made to any ecclesiastical process. Details of the procedure are left to the individual statutes.

3) Congregation for the Doctrine of Faith

“Procedure in Doctrinal Examination. On 15 Jan. 1971, the Congregation for the Doctrine of the Faith issued norms which give the current operating procedure of the Congregation for resolving doctrinal disputes. It has been used several times. Two cases studies under this procedure which acquired wide publicity were the cases of Hans Kung and E. Schillebeeck. Since there was an impression that all the investigation of the Congregation were cloaked in secrecy, Integrae Servandae had explicitly stated that the internal regulations of the Congregation would be made public in a special document. This document of 15.1.1971 is meant to fulfill that assurance given by the Pope.

Two types of procedures are indicated in the document: extraordinary and ordinary.

a) Extraordinary Procedure:

If the opinion subjected to examination clearly and certainly contains an error in faith and if at the same time, as a result of its diffusion, proximate harm is threatened for the faithful, or already exists, the staff can stipulate that the matter proceed in an extraordinary manner i.e. the Ordinary concerned is informed at once about the matter and the author is invited to correct the error. After the response of the Ordinary is received, appropriate steps are taken.

b) The Ordinary Procedure:

If the situation is not so pressing of the error is not evident, and the matter needs further investigation, the Congregation decides to proceed with the Ordinary procedure. The Staff first decides whether the Ordinary of the author should be informed immediately or only after the investigation is complete. Two experts are selected who are to prepare “opinion studies”. For this purpose the experts enquire into the authentic work of the author to see if it squares with divine revelation and the Church’s Magisterium. They thus form a judgement on the doctrine therein presented and if the case warrants it recommend what must be done.

These opinion studies are printed together with the office report in which are recounted all the details useful for evaluating the proposed matter as well as prior acts which may be pertinent to the issue. All this matter is given to the “relater for the author” who has been appointed by the Congregation. The task of the relater for the author is to point out, in the spirit of truth, the positive aspects of the doctrine of the author and its merits; to cooperate for the correct interpretation of the genuine meaning of the opinions of the said author in their general and theological context; to respond to the observations of the other experts and Consulters; to express a judgement of the influence of the author’s opinions.

All this matter is then sent to the Consulters of the Congregation at least a week before their meeting. At this meeting, the relater for the author first gives his exposition of the case. Then each Consulter speaks. Finally, the relater for the author responds and then leaves the Consulters to discuss the matter among themselves.

The whole report is then distributed to the regular session of the Cardinals of the Congregation for the Doctrine of the Faith, fiving them at least a week to study the matter before it is discussed. At the meeting the Cardinals express their opinions, there is a discussion, and a vote is taken. This is then submitted personally by the Cardinal prefect or the Secretary to the Holy Father for this approval.

If no erroneous or dangerous opinion is found, this is informed, to the Ordinary, if he was previously informed of the examination. On the other hand, if some false or dangerous opinion is found, this is conveyed to the Ordinary of the Ordinaries concerned. This is made known to the author himself and he is invited to submit a written answer within a month. If a personal meeting is considered necessary, the author is invited to meet personally with delegates of the Congregation. The written answer of the author and the summary of the discussion, if one is had, is then presented to the regular sessions of the Congregation. If new doctrinal problems have arisen, the matter is sent to the Consulters. If the author has not responded or, having been invited to a meeting, does not come the Congregation decides about “appropriate steps”. It also decides whether the outcome of the investigation should be published and in what manner. The decisions are submitted to the Holy Father for approval and then communicated to the Ordinary of the author.

These norms of the Congregation have been widely commented on, specially in the context of the investigation into the writing of Hans Kung.

III. Evaluation of the Procedures

We have seen briefly the different canonical procedures in the Church. What we could focus on in this study is first the procedure followed by the Congregation for the Doctrine of the Faith, because this is specifically meant for doctrinal conflict situations. This procedure could be normative and serve as a guideline for similar procedure at the diocesan or inter-diocesan level.

The elements we can examine in the procedure are:

1. Initiation of the procedure.

2. Right to know the changes.

3. Right to counsel.

4. Right of access to documentation.

5. Right to defend oneself in person.

6. Right to appeal.

1. Initiation of the procedure: Whereas in a marriage case it is one of the parties which initiates the procedure, and for the censorship books the author himself, it is not clear who initiates the procedure in the doctrinal conflict problems. True the Bishop has the responsibility for safeguarding the faith and he could initiate the procedure. However, there could be many situations when the Bishop is not even aware that the process has been initiated. The first step in the ordinary procedure is the decision by the Congregation whether the Bishop should be informed or not. Every member of Christ’s faithful has the right to appeal to the Holy See, but there is the danger that frivolous complaints may be made. Would it be advisable that every complaint be routed through the Bishop?

2. In other procedures outlined above, it is clear that the “Respondent” is immediately informed about the changes. Not so in the “Ratio Agendi” detailed above. The Congress decides whether the Ordinary of the author should be immediately informed or not. There is no mention of information to the author, though one would expect that if the Bishop were informed he would inform the author; or would he be bound by secrecy? It is not clear. It could be questioned whether the author’s right to defense is affected by this or not. Advocates for this process would argue that is serves to protect the good name of the author, so that none is the wiser about the investigation in case the study reveals that the author had no doctrinal error in his writings.

It is possible that the author never comes to know that he had been investigated.

3. Right to Counsel: In all the Church judicial procedures, there is specific provision for this. In the procedure of the “Ratio Agendi” as well, there is the “relator” for the author who is expected to give a fair explanation of the author’s own opinions. However, the question may be asked whether this “relator” is really giving an adequate defense to the author or not. Each person belongs to a certain school of thought and that would definitely affect the author’s assessment of the case. It could be asked whether it would not be preferable that the author himself chooses his “relator”? Or, at least should he not know who the relator is who is appointed for him, so that there can be mutual discussions and clarifications between the author and the relator already at this stage? It would appear that the present procedure precludes this. Also, should not the author have a right of veto over the choice of his “relator”? this evidently he cannot have unless he knows who the relator is who is appointed for him.

4. Right of access to documentation: Both the Periti and relator have access to the information available in the Congregation. But without the active involvement of the author the investigative process would seem to be deficient.

One of the important points to be discussed is whether the author should not have access to all the documentation that has been prepared in his case. Presuming that the author is really sincere and wanting t explain his position in an honest search for the truth, this access to the documentation prepared would be a big help in enabling him to do so. Would this denial of access to documentation be so serious a lecuna as to be a denial of an adequate right of defense? This could be examined specially since the result of the procedure could be canonical penalties and perhaps withdrawal from a teaching position. In a contentious case the acta are “published” and both parties have full access to all the documentation. The exception to this is that only in cases concerning the public good ad in order to avoid very serious charges, the Judge can withhold some part of the acta.

5. Right to defend oneself in person: Part of the investigative procedure is the discussion phase. This is only held if found necessary, and almost after the process is complete and the Congretation has concluded to doctrinal errors I the writings of the author. Once again it could be asked whether this discussion phase which is an integral part of every other canonical process should not be also an integral part of every process where doctrinal conflicts are involved. Should the process not begin with this rather than end with this? This would seem to be a help in the search for honest evaluation of the author’s position.

There is also no provision for a right to counsel during this discussion. Some might question whether this would not be helpful. Further, in practice, the author is not told the name of the periti who will question him. Should he not have the right to object to certain people on the Board if he has reason to believe that they are prejudiced against him?

6. Right to appeal: There is no mention of the right to appeal in the “Ratio Agendi”. One can of course always appeal directly to the Pope. However, since the Holy Father has already been involved twice in the process (the decisions at the end of each phase are submitted to the Pope for this approval) it does not seem realistic to do so now. It can be questioned whether there is necessity to refer this matter to the Holy Father already now. There is normally possibility of appeal from a Congregation to the Signatura. If the matter had not already been referred to the Holy Father, this appeal would be possible.

This brings up also the whole question of subsidiarity which could also be considered. Should there not be a structure at the local or national level to deal with such problems rather than have them go straight to the Holy See? It has to be borne in mind that theologians attempting for example, the expression of concepts in “Indian terms” might be grossly misunderstood by European theologians who would have no idea whatsoever of the Indian context or even the meaning of the terms used. Apart from this, it could be examined whether there is sufficient reason to have the matter studied at the level of universal Church already in the first instance.

IV. Some alternative procedures

I have not commented on the other two “sources” of Procedure in doctrinal conflicts because the procedure of the “Ratio Agendi” of the congregation for the Doctrine of the Faith is what concerns us most as a procedure, and will be most helpful as a starting point for developing more local structures. The decision to refuse permission to publish a work is an administrative decision; Sapientia Christiana and the Ordinatio leave it to the statutes of the faculty to establish detailed procedures for doctrinal conflict situations.

1. As regards the procedure outlined in the “Ratio Agendi”, I have raised several questions. However, it must be clarified that no facile solution is possible. There is a conflict between several rights here and to strike a balance may not be easy: the right of the Magisterium to oversee the teaching of catholic theologians; the right of the theologians to enjoy lawful freedom of enquiry and the right to express their minds prudently I matters in which they enjoy expertise; the right of the faithful not to be exposed to unnecessary dangers of the faith and yet to be given opportunities to grow in the maturity of faith.

The best procedure could be ineffective if not used with charity and a sense of justice. It would be unfair to say that those applying the “Ratio Agendi” are not imbued with these principles. Nevertheless, since there has been criticism of Congregation procedures, it would be a service to evaluate them objectively, without reference to the good intentions of those who use them. Thus, the procedures would not only by just and fair, but also appear to be just and fair.

It is in this context that the several questions raised in the evaluation of the “Ratio Agendi” could be studies. Would it not be better that every complaint regarding doctrinal matters be routed through the Bishop? Integrae Servandae had stated that the Ordinary would be notified in case of a problem in this field and his opinion sought.

Would it not be fair to the author to know the changes from the very beginning? I have not here raised the delicate issue of knowing the identity of one’s accusers. The 1971 Synod of Bishops had declared “The form of judicial procedure should give the accused the right to know his accuser, and also the right to a proper defense”. It might of course be said that this is not technically speaking a judicial trial and there is no accused as such. The Congregation has always insisted that it is only an investigation. However, the end result of the investigation could come very close to the result of a judicial trial. The right of access to all documentation would remove the cloak of secrecy that sometimes veils proceedings. As long as no greater harm for the community will result and as long as all are in search of a clearer expression of the same truth, this would seem recommended. The right to counsel again is something to be studies. This right was explicitly mentioned in the 1977 schema of the Code but has not been explicitly mentioned in the new Code. Canon 1487 on the section on process however, declares that “a party can freely choose an advocate and procurator for him or herself”. Should not this be followed in these investigations also? Integrae Servandae had made sacred the principle that the author should be given a hearing. Should not this be from the very beginning of the process? The possibility of appeal should also be considered.

The above are a few reflections that might help in making the procedure of the “Ratio Agendi” appear more fair. The basic question is the “right of defense”. Is the author given an adequate opportunity of defense? If he is not, or at least it appears that he is not, then the procedure ought to be modified in such a manner as to preclude any possibility of the Church being accused of being unfair. The principle of justice and fairness are sacred to the Church of Christ and this should be seen clearly in her practice.

2. I now raise the question of the application of the principle of subsidiarity. There is a private letter from the Congregation for the Doctrine of Faith to the Presidents of Episcopal Conferences dated July 10, 1968. It reminds the Bishops that in determining what matters should be sent to the Congregation, they should keep in mind the principle of subsidiarity of Vatican II. Ordinarily, Episcopal Conferences should deal with matters within their own territory, unless there is a special reason to require the intervention of the Holy See. Earlier, by a notification from the same Congregation dated June 14, 1966, it was stated that although local Ordinaries and Regional Conferences of Bishops have the right and duty to examine and forestall harmful books in proper cases to censure and disapprove them, the Congregation for the Doctrine of the Faith will assist the Bishops by continuing to give moral appraisals of published works. Hence, the primary right of local Bishops has been recognized. The Congregation’s role has been described as “assisting”. In keeping with the same line of thought, the Congregation on February 23, 1967, sent an Instructor to all Bishops advising that “it will be very advisable that in the Conference of Bishops… a doctrinal Commission to be set up to keep an eye on published writing, encourage religious knowledge worth of the name, and render assistance to the Bishops in the evaluation of books.” The Conferences which do not yet have a Committee on doctrine are encouraged to have one.

The International Theological Commission, a consultative body whose function is to assist the Pope and the Congregation for the Doctrine of the Faith by the study of doctrinal questions, took up a study of the relationship between the Magisterium and theologians and offered suggestions on the promotion of fruitful interaction. On June 6,1967, the Commission issued 12 theses on this relationship between theologians and the Magisterium. These 12 briefly summarize what steps are to be taken in resolving a doctrinal dispute. It is recommended that before beginning an official examination of a theologian’s writings the competent authority should exhaust all the ordinary possibilities of reaching agreement through dialogue on doubtful opinion (e.g. personal conversation or inquiries and replies in correspondence). If by these forms of dialogue no real consensus can be reached, the Magisterium should employ a full and flexible stock of response, beginning with various forms of warning, “verbal sanctions”, etc. In a very serious case the Magisterium – after consulting theologians of various schools and having exhausted the means of dialogue – for its part must clarify the compromised truth and safeguard the faith of the believers.

3. Finally, to suggest some alternative procedures:

Could there not be a gradated response to doctrinal problems in keeping the above recommendation in mind? A doctrinal problem arises, and an author’s writings are thought to be suspect. The first step could be a dialogue between him and the Bishop or his delegate. The purpose of this dialogue is to reach greater clarity on the nature of the issue of dispute, its gravity and consequence for the life of the Church, and possible avenues of agreement. Such a dialogue should be marked by candor, clarity and a readiness for compromise where possible. Only if no satisfactory solution is achieved through this, could a Diocesan Commission be appointed to deal with the matter. If a commission can be appointed from within the faculty itself, if the author happens to be a Professor, so much the better. The process could be on the basis of the “Ratio Agendi”, but modified after taking into consideration the lacunae that have been pointed out. It should be clear to all that the author has been given a fair chance. One must caution here against a too facile application of what an administrator or Judge may consider the binding portion of the Church.

If there is no satisfactory solution yet, the matter could then be tackled at the national (or regional?) level. The National Committee for doctrine could exercise a useful function here. It could function as an Appeal Tribunal. Since the initial investigation has already been completed, the process here could begin when the other has left off; a dialogue, an examination of the responses and a decision, after the author has been given a fair hearing with the aid of counsel and with access to documentation.

Only if all this does not yield satisfactory results, should appeal be made to the Congregation. Other direct appeals to the congregation should only be if the author’s writings, clearly and certainly containing doctrinal errors, are so widespread as to cause harm to the faithful at a supra-national level.

It is appropriate that there be an instance of doctrinal review at the level of the Universal Church. But there should be structuring for review also at the Diocesan and Episcopal Conference level. Bishops and theologians alike, in their distinct but complementary service to the Gospel, would benefit significantly from the structural support provided by carefully stated norms to be followed in seeking to resolve doctrinal disputes.

To conclude then, justice and charity so central to all Church procedures would be more evident if the “Ratio Agendi” were modified, and provisions made for solving doctrinal conflicts, if possible, at a local level. This, I believe, would be an aid to the theologians so that they may more effectively fulfil their role in the Church: to study, research and make the truth of our faith available to the people of God in a language that they understand.