The Return of the Church's Repressed Boundary Problem

What is needed today is a political analysis of the “boundaries” of the Church as an institution, and how those boundaries are being contested anew. To describe that boundary requires several detours into theological, historical, and legal matters that are, precisely, “matter” for this political analysis; I simply wish to note the character of the analysis, to explain in advance why certain partial detours into theological or legal matters are not taken to their complete conclusion. First, however, we must step back before the modern settlement, in order to grasp its contours by understanding the situation it replaced. Then we shall see why that modern settlement is becoming decisively unsettled.

In his Defensor pacis of 1324, Marsilius of Padua identified the papal claim of plenitude of power as “the singular cause that . . . is productive of intranquillity or discord in a city or realm” (1.19.12, trans. Brett). Against this papal claim, Marsilius asserted instead that “the office of coercive principate over any individual person, of whatever rank, or any community or collective body, does not belong to the Roman or to any other bishop, priest or spiritual minister in his capacity as such” (1.19.12). Marsilius’s effort was to identify the claim of plenitude of power as the unique source of discord in the states of Italy.

Because the papacy is a spiritual authority making temporal claims, the papal claim has a tendency “little by little [to] creep up” within secular jurisdictions unaware, by way of “stealthy deception” that is difficult to detect. The political boundary of the Church is not like that of a city: rather, by virtue of its universality, the Church claims to embrace all the faithful everywhere in the world, and to exercise some form of jurisdiction over them. Ecclesiastical jurisdiction thus has the uncanny ability to appear within a city or a country at the moment that the faithful are there, and particularly with the presence of bishops.

Hence, for example, the contest around the restoration of the diocesan hierarchy in England in 1850, which had been absent since the reign of Elizabeth I. From the standpoint of a purely secular view of the civil power, ecclesiastical power is an irritant—not only when the Church exaggerates its ecclesiastical power into a civil claim, but even in the purely spiritual functions of the Church, namely its claim to govern souls.

Let us posit, then, two points that at first appear to distinguish the modern settlement of ecclesiastical power from the unsettled, indeed inherently volatile situation identified by Marsilius (and by many others, not least Hobbes and Rousseau). By the “modern settlement,” I mean the period begun with the Capture of Rome on September 20, 1870, but especially following the Lateran Treaty of February 11, 1929, when the Roman Question was resolved and a new situation emerged for ecclesiastical jurisdiction.

First, the modern settlement is characterized by the neutralization—not the elimination, but the neutralization—of the pope as a civil prince, as he ceases to be ruler of the expansive Papal States and instead becomes prince of the Vatican City-State. This resolution of the Roman Question allowed the pope to retain a vestige, albeit a real one, of civil sovereignty, without any possibility of taking the civil actions that stirred outrage in centuries past.

Second, the modern settlement is characterized by an emphasis on the Church’s moral voice or its teaching capacity. Rather than being drawn into wars and diplomatic squabbles, the Church would be free to address all men directly, in its capacity as a teacher and a mother. According to this argument, the loss of the Church’s civil jurisdiction was in fact a gift. The Church was liberated from its previous entanglement with the civil power.

For both of these points, the year 1870 was pivotal. The First Vatican Council declared the dogma of papal infallibility on July 18, 1870, and the Capture of Rome took place barely two months later. The combination of these two events appeared to mark the victory and the frustration of the ultramontane party. The infallibility declaration was just what they had sought, but it was not about to lead to the restoration of spiritual supremacy over the temporal realm.

As Émile Perreau-Saussine put it Catholicisme et démocratie, “The council was to mark not the return of the temporal power of the papacy, but its recentering on its spiritual competency.”[1] “The doctrinal teaching of the popes,” he added, “which had only a limited place in the Catholic life of the Ancien Regime, has come to play a not negligible role, notably through the intermediary of encyclicals.”

The Church as Perfect Society and as Sacrament

Saddled alongside these aspects of the modern situation of the Church are two different or related aspects of the Church’s self-understanding: first, the Church as a perfect society or societas perfecta; second, the Church as a sacrament.

First, on societas perfecta. As is well known, the First Vatican Council was suspended before it could complete the work of a declaration on the Church. In 1964 the Second Vatican Council finished this work in Lumen gentium, the Dogmatic Constitution on the Church. The First Vatican Council did, however, leave behind the schema Supremi pastoris, in which it had proposed to define the Church with, among others, the following formulation: “We must believe that the Church of Christ is a perfect society.”[2]

This description of the Church emphasized above all the Church’s integrity with respect to its ends, as opposed to the societas aequalis, which depends like other equal societies on some external source (namely, the state) for its constitution, the societas perfecta provides for itself everything that it needs to achieve its ends. In the case of the Church, the societas perfecta indicates that the Church is not founded by a civil sovereign or dependent on the civil power for legitimacy. In the end, the Capture of Rome frustrated the council’s attempts to resolve itself on the matter of the Church.

The subsequent Code of Canon Law in 1917, the Church’s first codification of its law, did not invoke the language of societas perfecta, but Pope Benedict XV described the Church as a societas perfecta in his document promulgating the new code.[3] Arguably, the language of societas perfecta was needed in order to assert the characteristics of the Church with regard to the new civil situation I outlined above.

Benedict XV’s recourse to the societas perfecta language in the very document promulgating the Code of Canon Law can be taken as an indication that, no matter how the Roman Question would be resolved—at the time Benedict XV was prisoner of the Vatican, just like his three predecessors—the Church’s integral power with respect to its spiritual ends (and associated temporal ends) could not be denied. With regard to the first aspect of the modern ecclesiastical settlement, the Church’s political neutralization, societas perfecta allowed the Church to reject any notion of its dependency on the civil power. With regard to its new moral voice, societas perfecta explained the Church’s competency. If the Church has any end or purpose, it is a spiritual one, and thus the Church must be competent to determine and promulgate her own teaching.

Second, on the Church as sacrament or sign. This language stems from the beginning of Lumen gentium of the Second Vatican Council: “the Church is in Christ like a sacrament or as a sign and instrument both of a very closely-knit union with God and of the unity of the whole human race” (LG §1). Although Lumen gentium does not reject the language of societas perfecta, some of those pushing for the language of sacrament, Yves Congar in particular, saw the new language as presenting a different “entrance gate” for discussion between the Church and the world, as well as the Church and other churches.[4]

The same thought has been presented by other theologians as constituting a shift toward understanding the Church as “communion” rather than, in addition to, or beyond the sense of the Church as a juridical body. Indeed, in a famous phrase Giuseppe Dossetti termed Lumen gentium a “Copernican revolution in ecclesiology”—the Church would turn away from itself as an integral society, and toward presenting itself as the experience of the body of Christ. Perhaps pulling back from such revolutionary implications, however, in 1992 the Congregation for the Doctrine of the Faith under Cardinal Ratzinger issued a letter to bishops on the notion of the Church as communion, correcting some erroneous tendencies toward viewing communion strictly as a local matter, or in abstraction from the bishops and the pope.[5]

Moreover, it should be noted that Lumen gentium in no way abandoned the notion of the Church as a juridical society. Lumen gentium identifies the Church as a hierarchically structured society (LG §8), describes the Apostles as the “rulers” of that society, and affirms the essential importance of the legislative power of the Church (LG §27).[6] On the 20^th anniversary of the closing of Vatican II, the International Theological Commission recalled to mind the nota praevia explicativa which Pope Paul VI affixed to Lumen gentium, noting:

While the ontological, sacramental function of the Church may be distinguished from its canonical-juridical aspect . . . it is nonetheless true that in differing degrees both aspects are absolutely necessary for the Church’s life.

Still, in spite of the Holy See’s own protestations, it is broadly true as a feature of the modern settlement that the canonical-juridical aspect of the Church has been less visible in the public life of the Church than its moral teaching. This partial obscuring of the canonical-juridical aspect of the Church is, of course, ironic, since the Church’s claims not only to teach (the munus docendi) but the ability to bind the faithful to a certain teaching or to punish departures from teaching (the munus regendi).

The Church’s right to determination in moral and social principles is articulated in a canonico-juridical context, in canon 747 of the Code of Canon Law: “It belongs to the Church always and everywhere to announce moral principles, even about the social order, and to render judgment concerning any human affairs insofar as the fundamental rights of the human person or the salvation of souls requires it.” While the Church’s moral teaching may be understood in many different ways—for example, as an aspect of its life in communion—the concept of an imposed teaching cannot be parsed without a juridical element.

The Contradictory Demands on the Church

The question of the Church’s nature as a juridical body or a “communion” is not merely a confessional one. Indeed, it is one of the most pressing political questions of the hour. However, it is simply not recognized as such. For even within the framework of the societas perfecta, the expectation of the modern settlement was that both the Church and the state were to remain competent in their own spheres, as the language of (among others) the Church’s concordat with Italy made clear. Although the olden days of a close cooperation of Church and state in ecclesiastical matters were gone, so too (the argument went) were the downsides of attempted cooperation.

In the immediate situation, the “political” challenge which has returned this question to the forefront is that of the Church’s response to allegations of abuse and misbehavior by its clergy. Speaking with regard to the situation in the United States, I can attest that the reaction of some to allegations of clerical malfeasance, and failures to respond adequately to clerical malfeasance, has led occasionally even to frenzied calls for the assertion of conciliar government in the Church, or, even for the United States to revoke its diplomatic relations with the Holy See (which, in modern times, it has had only since 1984), and generally for the secular power to “sort out the mess” of the governance of clergy.

While these views have no particular traction within the Church, legal maneuvers against the Church, by at least 15 attorneys general in U.S. states as well as the Justice Department, have increased in frequency. On several occasions in my home state of Texas police departments have launched unannounced raids on diocesan archives, even breaking open “secret archives”—tactics questionable from the standpoint of legal protection of ecclesiastical procedures involved in the selection and evaluation of clergy. In September 2018 the Vatican was also forced to invoke its diplomatic immunity when a French court issued a summons to Cardinal Luis Ladaria concerning matters outside French jurisdiction. The Vatican later lifted its claim of diplomatic immunity.

Criticism of the Church’s handling of wayward and abusive priests, from both civil authorities and members of the Church, has obviously played an important role in causing the Church to react with new procedures designed to ensure a more effective response to allegations of clerical misconduct. But there is a larger political point within these responses. Outrage at ecclesiastical misgovernance contains within itself two contradictory demands of the Church. On the one hand, the problem is said to be the Church’s secrecy. To fix this problem, the Church must publicize all its internal procedures and, in the most extreme cases, even yield the governance of its own clergy to the civil power.

On the other hand, there is outrage that the Church did not do a better job policing its own clergy. We want to seize control of the Church, break the clericalist monopoly and essentially govern the Church—not by changing its internal procedures, but by referring internal allegations immediately to secular authorities, and at the same time holding the Church to anti-discrimination standards that it cannot meet. Having taken away from the Church the full power of governing its own clergy, we are then angry when it fails to govern its clergy fully.

This point is no mere idle one. It is a matter of defining the political boundaries of the Church, which, at the moment, and in the West, concern the referral of clerical abuse cases to the civil power. The Church occupies a middle position. It has a greater degree of internal organization than comparable entities, and thus a higher expectation—indeed, a wholly just expectation—that it will govern its clergy well. But under modern legal codes it does not claim the privilege of the forum or the benefit of clergy, and accordingly it does not exercise over the clergy the full jurisdiction that, in principle, it claims.

In a strange turn of events, then, the Church has exercised the forms of coercive jurisdiction that it has over the clergy—placing them on leave, sending them for counseling or treatment, and reassigning them—although these forms of coercion are now plainly seen as inadequate to the gravity of the alleged conduct in many cases. By contrast, an institution in the United States such as the Southern Baptist Convention, a network of 47,000 independently governed evangelical churches, has recently seen allegations of sexual misconduct levied at almost four hundred of its ministers. Perhaps ironically given the degree of public criticism of the Catholic Church, one commentator lamented that the Southern Baptist Convention’s degree of decentralization makes system-wide changes more difficult to bring about.[7]

On May 7, 2019, Pope Francis issued the apostolic letter Vos estis lux mundi by motu proprio, instituting new norms for the reporting of sexual abuse allegations throughout the Catholic Church for a period of three years. The final article of the motu proprio indicates that the new norms operate internally to the Church without affecting the obligations of or to the state: “These norms apply without prejudice to the rights and obligations established in each place by state laws, particularly those concerning any reporting obligations to the competent civil authorities.”

Reporting obligations aside, it is clear that the fundamental problem remains. Again, the Church occupies a middle position. It is sufficiently hierarchical in its organization that it bears the blame, and often justly, for mismanagement. Yet, it lacks the power to fully govern itself, according to its judicial power, as the juridical or perfect society that it claims to be. As Abbé Alexis Campo, chancellor of the diocese of Fréjus-Toulon, put it:

The independence of canonical legislation is broken or simply forgotten nowadays. In short, canon law has bad press, especially in its procedural aspect, which is reduced to caricature: quibbles, narrow legalism, clusters of formal requirements, an abstract language where Latin reigns supreme. The consequence is that the representatives of the Catholic Church in France renounce their full liberty to submit to the civil power, however incompetent it may be.[8]

In a strange way, this situation is not so far removed from that of the ancien régime. The jurisdictional flashpoint between civil and ecclesiastical power in the ancien régime was the appel comme d’abus, or the appeal as from an abuse, which allowed clergy tried before ecclesiastical courts to appeal from ecclesiastical to secular courts in cases whose conclusion had been apparently abusive. A common Gallican conception of civil power, from the Pragmatic Sanction of Bourges, to Pierre Pithou’s 1594 Les Libertez de l’Eglise Gallicane, to the Gallicans of the 17^th and 18^th centuries, held that royal courts could take cognizance of ecclesiastical causes by reason of the disruption of the peace. In a kind of inversion of the papal cognizance of civil causes by reason of sin, the royal courts of France frequently accepted appeals from clergy dissatisfied with judgments made in ecclesiastical courts, not only in criminal matters but, including in many famous cases, even in the determination of liturgical questions.

It was at this usurpation of ecclesiastical prerogative that the papal bull In coena Domini was annually proclaimed, objecting to the appels comme d’abus as well as the subjection of clergy to lay courts generally—a bull that was in principle in force as late as 1855, on the eve of the First Vatican Council. No modern approach for adjudicating these boundary disputes is wholly satisfactory—neither the Gallican approach, which was folded into the Civil Constitution of the Clergy, nor the secular-liberal approach, which has the Church assume the form of any other legal corporation, albeit with some special privileges.

No approach offers a clear distinction of civil jurisdiction from spiritual matters, for the boundary between those powers has always been contested. Each power has always sought grounds for superiority in the disputed matters. The question is only what are the boundaries of that jurisdiction, whether the boundaries are in dispute, and what sort of determinations are able to be made by the powers on each side.

The causes prompting the clarification of civil and ecclesiastical power are frequently the sort which have recently been the source of scandal—crimes against the 6^th and 9^th Commandments where the proper forum is disputed between the civil and the ecclesiastical power. Equally important, although not the entry point for this discussion, would be the appointment of bishops—another boundary dispute that has recently come back into view in the Preliminary Agreement between the Holy See and Beijing. It is always the boundary dispute that leads to internal articulation. We can thus be confident that we are on the cusp of a new period in which the question of the political boundaries of the Church will become important again.

The New Boundary Problem

If this sounds like a modest conclusion, let me rephrase it. The “modern settlement” of the political and ecclesiastical boundary has been decisively unsettled, through the opening of a process whose end we cannot currently see. The long-term goal of hostile civil powers is to take advantage of the Church’s internal mismanagement (which, we have seen, is partly a result of its middling juridical position) in order to remove it from what were, so to speak, elements of its essential social contribution throughout all Christian centuries—particularly education and health care.

The context for this renewal of the “boundary problem” in civil and ecclesiastical jurisdiction is thus one in which the political or juridical character of the Church has been forgotten (by many) on the one hand, just as the ecclesiastical or religious character of liberalism has been forgotten on the other. The “modern settlement” or modern truce between the Church and the nations opened some space, indeed, in which different aspects of the Church could be highlighted—for example, as we discussed, the Church as sacrament or sign. These aspects of the Church are doubtless important, but they do not provide an answer what the Church’s judicial power is or should be, or how the “demilitarized zone” between civil and ecclesiastical power can be traversed.

But this context has been there all along—one in which political liberalism hoped to create an expansive new world on the basis of a few narrow agreements, and in which the Church would be free to live her vocation as sacrament or as communion, projecting her moral voice across the world. But as her critics acknowledge now, above all, the credibility of the Church’s moral voice appears to rest, as well, on the effectiveness with which the Church governs itself as a real society, a political society, or a societas perfecta. It is, indeed, only this conception which is able to make sense of that other boundary dispute so lately come into view, the question of episcopal nominations (particularly in China), and the ability, indeed willingness of the Church to engage in diplomacy and quid pro quo.

At the same time, the European political settlement is more uncertain than ever, with over 20% of the European Parliament now filled with those who reject its legitimacy. The European Union was to be built around an “ethical” consensus that has failed to materialize. The internal politics of European countries have also considerably unsettled the expectations of the post-Cold War liberal consensus. The demarcation of legitimate action for Church and state, the “liberal demilitarized zone,” is predicated on the non-recognition of what the Church is by the state, and, for the Church, overlooking the religious or even ecclesiastical character of liberalism’s commitments. Compounding this situation has been a slipping from memory of the Church’s claim to be a societas perfecta, just as liberalism becomes more assertive in its own clericalism.