To work for the proper implementation of canon law is to play an extraordinarily

constructive role in continuing the redemptive mission of Christ. Pope John Paul II

Open to Suggestion

Whatever the merits of such criticisms, in its Regulations for Doctrinal Examinations (approved May 30, 1997, released Aug. 29, 1997), the Congregation seems to have taken seriously many such observations. Despite some suggestions on its part that nothing was really wrong to begin with, it has produced a new procedure for the examination of theological works. Furthermore, the procedure fairly balances the faithful's fundamental right to sound Catholic teaching with the individual's qualified right to communicate theological ideas and positions.

To better appreciate the CDF's accomplishments here, one needs to have a sense of the older rule that preceded these new ones.

In January 1971, Pope Paul V I and the CDF released norms (Canon Law Digest VII: 181184) by which theological writings would be evaluated for their possible negative impact on the faith. Parts of that document now come across as quite insular. For example, the 1971 norms speak, as if everyone who needs to know already knows, of "the staff that meets on Saturdays." And the document felt it necessary to reiterate that "member bishops living outside the city [Rome] can take part with full rights" in the process, suggesting a typical bureaucratic tendency to overlook officials who aren't in the office every day. And instead of directing the prompt delivery of investigative reports to the Holy Father, the 1971 norms were content to allow officials of the congregation to pass along their insults "when one of them next has an audience" with the Pope. These were small points to be sure, but under the media magnifying glass they helped convey an air of casualness that was not representative of how the CDF actually went about its difficult work.

Lawyers and Ordinaries

Of course, and as the Congregation’s official “Explanatory Note” to the 1997 Regulations asserts, the rights of authors were respected under the 1971 norms. But there was little in that earlier document to foster the public's awareness of that respect. Under the 1971 norms, for example, there was no provision to allow the theologian under investigation the advice of a canon lawyer. Likewise, during the investigation, next to no use was made of the subject's ordinary. The author was accorded only 30 days to defend or retract statements, regardless of the amount of time that went into building the case against him or her. And perhaps most significantly, the 1971 document never specified exactly what type of action could be taken by the CDF in the event that one's writings were proven to be dangerous to the faith.

All of that has changed now.

First, the insularity and casualness are gone. The 1997 Regulations make no references to groups that meet on Saturdays. It is presumed that necessary officials will attend deliberative sessions, and the results of the investigations are to be communicated regularly to the Roman Pontiff. So much for the tone of the new document. Its substantive previsions are even more striking.

The New Rules

Henceforth, authors being investigated have an "author's presenter" appointed for them by the Congregation (Article 10). This is an official who, under both the 1971 and 1997 norms, presents the author's word to the Congregation in the best possible light. But now authors also enjoy the right to a personal advisor, presumably a canon lawyer, of their own choosing (Article 17). Indeed, the revised Regulations recognize that this advisor may attend the sessions with his or her client and may take an active part in all discussions (Article I8). This is a welcome recognition that the right to canonical advice means little without the right to make actual use of canonical advisors.

In most cases that will be treated under the new Regulations, authors will be allowed at least three months instead of only one to reply to the objections presented against them (Article 17). The possibility of productive face-to-face meetings between authors and dicastery officials is carried over from the 1971 norms into the 1997 norms (Article 18). And, at several points in the new Regulations, the ordinary of the theologian being investigated is to be involved and consulted in the process (Articles 12, 16-17, 26-27). CDF's "Explanatory Notes" refer, in fact, to this increased role for ordinaries as one of the “principal characteristics" of the new norms. In many cases such involvement will yield considerable fruit.

Fascination with Excommunication

Predictably, however, some parts of the 1997 Regulations have garnered negative media attention. Most controversy over the new Regulations focuses on Article 28 that, unlike the 1971 norms, specifies exactly what can happen if the writings under investigation are proven to be heretical: the author can be formally declared to have incurred automatic excommunication, and against this declaration no recourse is allowed. Excommunication without benefit of appeal; this is the stuff of which media frenzies are made. But it is precisely here that CDF seems to have read universal Church law most carefully.

First, although the 1997 Regulations can and probably will be used in a wide variety of settings, only those cases in which specific heresy, apostasy, or schism are proven will lead to an author's excommunication. In so restricting itself, the Congregation has stayed clearly within the bounds of Canon 1364 of the 1983 Code of Canon Law. These canons limit excommunication in such matters to those three offenses. Under Canon 1371, other offenses against Church teachings that are condemned, but are not technically heretical, do not necessarily result in excommunication. Consequently, these offenses, which might surface during a CDF process, are not punished under the 1997 Regulations and instead will be dealt with according to regular canon law (Article 29).

Second, jurisdictional objections could be raised against the CDF's administrative authority to issue certain penal decrees (see, for example, Canon 1425). However, such objections are answered by the fact that CDF sought and obtained approval of the parts of the Regulations from Pope John Paul II, in forma specfica. This means that the Pope was quite aware that questions regarding CDF's competence to issue canonical penalties could be raised and that he, as supreme legislator, nevertheless determined that his legal system shall be read as upholding the dicastery's authority to so act in these cases.

The Pope Will Know

Finally, the apparently chilling phrase prohibiting recourse against excommunication needs to be understood in accord with canonical good sense. Nothing in the 1997 Regulations infringes on the right of all the faithful to bring any cases whatsoever before the Holy Father (Canon 1417). Moreover, the Regulations themselves state that the Roman Pontiff is to be apprised of events during the process itself (Article 15) and that he retains the final authority to pronounce his approval of the results (Article 22). So much for the idea that any of these cases could be conducted without the Pope's knowledge and supervision.

In reality, what is precluded by the "no recourse" clause is the general canonical recourse that could be lodged against the CDF in certain cases—for example, before the Apostolic Signatura. Such recourse has a place, certainly. But in doctrinal cases dealt with by the CDF under the 1997 Regulations, it could hardly amount to more than a bureaucratic run-around. Finally, keeping in mind that the penalty imposed is that of excommunication, Canon 1358 (quite intact after the Regulations) protects the right of the condemned to have the penalty lifted promptly upon his or her withdrawal of contumacy. In other words, when the censure achieves its desired effect of personal reform, the offender merits, and will receive, a speedy reconciliation with the Church.

Possible Objections

Does any of this imply that no objections can be raised in opposition to the new Regulations? No. It simply means that such objections will center on prudential issues that are properly the domain of the CDF, and not on canonical issues.

One might question, for example, in what sense an accused author "benefits from the presence and assistance of his ordinary" if the ordinary is already convinced (rightly or wrongly) of the harm in the author's works. And even "friendly" ordinaries might face serious difficulties when they try to attend important meetings in distant Rome. To take another point, one wonders how and when it is to be determined that a given work is "clearly and certainly erroneous." Furthermore, when such a determination is made, setting the stage for an expedited process under Article 23, there is still a provision for a regular session later to determine whether such works "are in fact erroneous and dangerous" (Article 26).

Such questions are significant, but they concern the types of issues that are best answered by the experience of just officials reaching fair results in real cases. What is clear is that the CDF's Regulations for the investigation of doctrinal questions deserve, and will be given, a decent chance to work. This time, charges of secretiveness, arbitrariness, or inconsistency with canon law—charges that in the past have hovered around certain controversial cases—should gain little credence.

To the contrary, it will now be very difficult for critics of the CDF to avoid the fact that their real objections lay not so much with the procedures followed by Vatican officials, but with the Truth which Rome is graced to protect.