Tag Archives: Canon Law

Mayer, “The Roman Inquisition”

In January, the University of Pennsylvania Press published The Roman Inquisition: A Papal Bureaucracy and Its Laws in the Age of Galileo, by Augustana College history professor Thomas F. Mayer. The publisher’s description follows:

While the Spanish Inquisition has laid the greatest claim to both scholarly attention and the popular imagination, the Roman Inquisition, established in 1542 and a key instrument of papal authority, was more powerful, important, and long-lived. Founded by Paul III and originally aimed to eradicate Protestant heresy, it followed medieval antecedents but went beyond them by becoming a highly articulated centralized organ directly dependent on the pope. By the late sixteenth century the Roman Inquisition had developed its own distinctive procedures, legal process, and personnel, the congregation of cardinals and a professional staff. Its legal process grew out of the technique of inquisitio formulated by Innocent III in the early thirteenth century, it became the most precocious papal bureaucracy on the road to the first “absolutist” state.

As Thomas F. Mayer demonstrates, the Inquisition underwent constant modification as it expanded. The new institution modeled its case management and other procedures on those of another medieval ancestor, the Roman supreme court, the Rota. With unparalleled attention to archival sources and detail, Mayer portrays a highly articulated corporate bureaucracy with the pope at its head. He profiles the Cardinal Inquisitors, including those who would play a major role in Galileo’s trials, and details their social and geographical origins, their education, economic status, earlier careers in the Church, and networks of patronage. At the point this study ends, circa 1640, Pope Urban VIII had made the Roman Inquisition his personal instrument and dominated it to a degree none of his predecessors had approached.

The Voice of Two-Thirds is the Voice of God

This week, the papal conclave begins in Rome. Many expect it will end this week as well, with the election of Pope Benedict’s successor. But CLR Forum reader John McGinnis, a law professor at Northwestern and a leading expert on supermajority rules, alerts us to a recent change that may cause the meeting to last longer than expected.

The rules for the conclave are contained in a 1996 decree by Pope John Paul II. As originally written, the decree retained the traditional requirement that a new pope be elected by a vote of two thirds of the conclave–but with a slight alteration. The two-thirds requirement would hold only for the first 33 ballots, or roughly eight days. After that, the vote would be by simple majority. The purpose, obviously, was to break deadlocks and prevent conclaves from dragging on too long.

In 2007, however, Pope Benedict amended the 1996 decree to reinstate the original rule: a two-thirds requirement on all ballots. As a result, the conclave that begins this week will continue until a candidate receives a supermajority. This could result in a longer conclave, but will ensure that a consensus candidate acceptable to all “sides”–traditionalist and non-traditionalist, European and non-European, curial and non-curial–prevails. And, anyway, recent conclaves have avoided deadlocks, notwithstanding the two-thirds requirement.

In Catholic understanding, of course, the Holy Spirit ultimately guides the conclave and achieves the result the church needs. So one might think this tinkering with voting requirements is rather unnecessary. The Coptic Orthodox Church, following biblical practice, names its pope by lot. But the supermajority requirement has its value, even if it might occasionally result in a longer conclave, and the Holy Spirit can work through a supermajority as well as a bare majority. As Pope Pius II (above) declared on his election in 1458, “We would judge ourselves entirely unworthy, did we not know that the voice of two-thirds of the Sacred College is the voice of God, which we may not disobey.”

Betting on the Conclave: Canon Law

Almost the moment Pope Benedict–now Pope Emeritus Benedict–announced his decision to retire, betting sites and prediction markets started to appear on the internet, offering people a chance to place money on the identity of his successor. There’s Paddy Power in Ireland and, for people of a more academic bent, the Intrade prediction market, which has been pretty accurate with respect to American politics.

Some readers may be wondering what Catholic canon law has to say about placing money on the outcome of a papal election. Apparently, nothing. According to this canon law blog, an earlier prohibition was abrogated in 1918, when the Catholic Church adopted the Pio-Benedictine Code. At the moment, therefore, there is no canon law on the question. So, I guess, nihil obstat. Nonetheless, as the author points out, the Catholic catechism does have advice about gambling, which Catholics should consider. Non-Catholics too, probably. And there’s the Second Commandment.

Papal Resignation: The Canon Law

It just shows you. Even an institution as ancient and traditional as the papacy still retains the ability to shock. Pope Benedict’s announcement today that he will resign for health reasons, effective February 28, seems to have taken everyone, including Vatican insiders, by surprise. It is the first papal resignation since the year 1415.

Canon law on papal resignation is surprisingly – or, come to think of it, unsurprisingly – brief. Canon 332(2) of the current Code of Canon Law provides simply that ” If it happens that the Roman Pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone.” A leading commentary notes that Canon 332(2) does not specify the person or persons to whom a pope must manifest his resignation. Some scholars argue that the college of cardinals, as the body that elects the pope, is the proper recipient. But that’s not entirely clear; anyway, in Catholic understanding, the pope has authority to determine such matters for himself. Most likely, today’s announcement at a consistory, in which the Pope stressed that he was taking this step voluntarily and in full recognition of its gravity, will suffice. Anyway, the college of cardinals will no doubt have a chance to receive the resignation, if that action is required, before it elects Pope Benedict’s successor, most likely next month.

McGuckin, “The Ascent of Christian Law”

We’re a little late getting to it, but earlier this year Byzantinist John McGuckin (Columbia/Union Theological Seminary) wrote a new monograph as part of Emory’s Christian Jurisprudence series, The Ascent of Christian Law: Patristic and Byzantine Reformulations of Greco-Roman Attitudes in the Making of a Christian Civilization (St. Vladimir’s Seminary Press 2012). The volume looks to be an important contribution to an unfortunately underwritten field: law in the Eastern Christian tradition.  Here’s the publisher’s description:

This volume aims to fill a large gap in the historical materials available to students of early Christian and Byzantine Christian studies. To that extent, it will be designed as a wide-ranging historical survey that covers the varying attitudes among the major early Christian theorists of law and governance issues as the church moved in its condition from a minority of resistance to the imperial church. The field of early studies of Christian law is dominated by scholars of Western canon law (though often microscopically treated). Eastern canon law remains massively neglected, relegated to studies by Orthodox canonists who have been concerned largely with issues of ecclesiastical precedence and protocol, rather than with large questions of the role of law in culture-making.

This book intends to consider questions such as: “What difference did Christianity make as a builder of civilization?” To what extent did the church, in presenting to late Roman society a vision of a Continue reading

O’Malley, “Trent: What Happened at the Council”

The Counter-Reformation Council of Trent (1545-1563) had a major impact on the canons of the Catholic Church, including regulations concerning marriage and papal authority. This week, Harvard University Press is releasing a new study of the council by Georgetown University Professor John W. O’Malley, Trent: What Happened at the Council (2013). The publisher’s description follows:

The Council of Trent (1545–1563), the Catholic Church’s attempt to put its house in order in response to the Protestant Reformation, has long been praised and blamed for things it never did. Now, in this first full one-volume history in modern times, John W. O’Malley brings to life the volatile issues that pushed several Holy Roman emperors, kings and queens of France, and five popes—and all of Europe with them—repeatedly to the brink of disaster.

During the council’s eighteen years, war and threat of war among the key players, as well as the Ottoman Turks’ onslaught against Christendom, turned the council into a perilous enterprise. Its leaders declined to make a pronouncement on war against infidels, but Trent’s most glaring and ironic silence was on the authority of the papacy itself. The popes, who reigned as Italian monarchs while serving as pastors, did everything in their power to keep papal reform out of the council’s hands—and their power was considerable. O’Malley shows how the council pursued its contentious parallel agenda of reforming the Church while simultaneously asserting Catholic doctrine.

Like What Happened at Vatican II, O’Malley’s Trent: What Happened at the Council strips mythology from historical truth while providing a clear, concise, and fascinating account of a pivotal episode in Church history. In celebration of the 450th anniversary of the council’s closing, it sets the record straight about the much misunderstood failures and achievements of this critical moment in European history.

Bell on The Status of the Roman Catholic Church and Canon Law in Singapore

Gary F. Bell  (Nat’l U. of Singapore Faculty of Law) has posted Religious Legal Pluralism Revisited – The Status of the Roman Catholic Church and Her Canon Law in Singapore. The abstract follows.

By religious legal pluralism we usually mean state-recognised legal pluralism, such as the kind of legal pluralism implemented in Singapore through the Administration of Muslim Law Act. But there is also religious legal pluralism outside State recognition and enforcement. Many religions have very long legal traditions which have survived, often without much support or official recognition by States (Jewish law, for example). In this paper we shall look at one such tradition, the canon law of the Latin Church of the Roman Catholic Church and its implementation by the Church in Singapore, including the establishment of very busy ecclesiastical tribunals in Singapore to administer disputes relating to the possible nullity of religious marriages, for example. The hope is that this example of Canon Law in Singapore will show that there can be very detailed and formal religious laws implemented by formal institutions such as tribunals outside the ambit of the State.

Church, State, and Law: Something from La Stanza della Segnatura

One last pictorial law and religion post from my recent trip to Rome.  If you enter the Stanza della Segnatura, one of the Raphael Rooms, in the Vatican Museums, your attention is likely to be absorbed by “The School of Athens.”  But on the wall just to the right of it, you would see two frescoed panels placed on opposite sides. 

The first is of the Emperor Justinian receiving the Corpus Juris Civilis (the “body of civil law”) from his great jurist, Tribonian.  Compiled in the early 6th century AD, the Corpus Juris Civilis represented the first great collection of civil law (and it influenced the development and content of many civil law systems), much of which was drawn from ancient Roman law.

The second panel is of Pope Gregory IX receiving the Decretals from the Dominican St. Raymond de Penafort in the early 13th century.  The Decretals were an early organization of the canon law of the Catholic Church which were intended by the Pope to be definitive.

The work of Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (recommended and discussed on this site before), is an important place to learn about the relationship and mutual influence of the civil and canon law.  Berman’s emphasis is primarily on the latter’s influence on the development of the former, rather than on the revival of Roman law.

McGinnis on Berman

Over at the Liberty Law Blog, John McGinnis (Northwestern) is doing a very interesting series on Harold Berman’s seminal two-volume history of Western law, Law and Revolution. In Law and Revolution, Berman argued that the existence of competing jurisdictions, each with a valid claim on people’s loyalties, has played an essential role in Western law, going all the way back to the 11th-century investiture crisis, which dealt in part with the competing jurisdictions of canon and royal courts. In this post, McGinnis argues that legal polycentrism of the sort Berman describes can promote liberty by preventing governmental monopolies. Classical American federalism, for example, promotes liberty by dividing power between state and federal sovereigns. McGinnis wonders, though, whether federalism can do the job today, now that states claim relatively little loyalty from their citizens. Check out the whole series.

Catholic Bishop Warns of Interdict in Parish Dispute

You don’t see this everyday. Bishop Robert Morlino of the Catholic Diocese of Madison, Wisconsin has warned parishioners that they may be subject to the penalty of interdict if they continue protesting the behavior of two parish priests. An interdict is a rare canonical punishment that would exclude the parishioners from sacraments like marriage and communion.

The priests, from a Spanish order, have been serving at a parish in Platteville, a farming community. They are, in Catholic terms, “traditionalist.” According to the Wall Street Journal, they have, among other things,  banned female altar servers, forbidden shorts and other casual clothing at Mass, and stressed “doctrinal orthodoxy in their sermons.” These activities did not go over well with more liberal parishioners, hundreds of whom signed a petition to Bishop Morlino demanding the priests’ removal. The parishioners complained that the priests were acting inconsistently with Church teaching, particularly the reforms of Vatican II.

In a letter to the parish, Bishop Morlino admitted that some of the priests’ actions had been hurtful; he encouraged parishioners to forgive the priests and the priests to be more sensitive in future. But there was no evidence that the priests had contravened Church doctrine, including the teachings of Vatican II, he wrote. In the end, the complaints reflected mere “personal likes and dislikes, along with inflated rumors and gossip, some of which may even rise to the level of calumnious inciting of hatred of your priests, the faith, and myself.” These complaints could not be the basis for “firing” the priests — indeed, under canon law, a parish has no authority to “fire” its pastors.

Canon law does, however, give a bishop authority to discipline refractory parishioners, and Bishop Morlino suggested he might do so if the complaints don’t stop. He attached to his letter a list of relevant texts on which he asked parishioners “to reflect prayerfully.” Among these were canons providing for “penal sanctions, ” including Canon 1373, which provides that a person who “publicly incites . . . animosities or hatred against the Apostolic See or an ordinary [e.g., a bishop] because of some act of power or ecclesiastical ministry or provokes subjects to disobey them is to be punished by an interdict or other just penalties.” The parishioners would still be Catholics; an interdict would not change that. Of course, some parishioners may decide to leave the Church on their own. As it is, donations since the priests began serving the parish have dried up, so much so that the parish school has had to close.