On the Fernández Document: PART I

Eamonn Clark

The Rector of the Pontifical Catholic University of Argentina, Archbishop Victor Manuel Fernández, has published a summary defense of the apostolic exchortation Amoris Laetitia, which he helped draft. (English) The Archbishop is widely believed to be a close confidant of the Holy Father.

Though I had said in a former post that CRM would not be engaging further in debate on Amoris Laetitia, given that we have gone through some internal changes, and given the extremely significant defense which has been written by Abp. Fernández and the dearth of exhaustive and substantial counterarguments launched at this document specifically thus far, I publish here a commentary and exploration of this article in 3 parts, using the English translation linked to above (courtesy of Andrew Guernsey – used with permission).

–CHAPTER VIII OF AMORIS LAETITIA: WHAT IS LEFT AFTER THE STORM–

After several months of intense activity by sectors that oppose the novelties of the eighth chapter of Amoris Laetitia – minorities, but hyperactive ones – or of strong attempts to disguise them, the war seems to have reached a stalemate. It is now worth pausing to acknowledge that which is concretely what Francis leaves to us as an irreversible novelty.

The claim about who is really the majority is debatable, but it should be remembered that in any case truth is not at the service of democracy. On we go then, into the body of the article to examine the “irreversible novelty.”

“THERE ARE NO OTHER INTERPRETATIONS”

If one is interested to know how the Pope himself interprets what he wrote, the answer is very explicit in his commentary on the guidelines of the Bishops of the Buenos Aires Region. After discussing the possibility that the divorced in a new union live in continence, they say that “in other, more complex circumstances, and when it is not possible to obtain a declaration of nullity, the aforementioned option may not, in fact, be feasible.” They then add that

“nonetheless, it is equally possible to undertake a journey of discernment. If one arrives at the recognition that, in a particular case, there are limitations that diminish responsibility and culpability (cf. AL 301-302), particularly when a person judges that he would fall into a subsequent fault by damaging the children of the new union, Amoris Laetitia opens up the possibility of access to the sacraments of Reconciliation and the Eucharist (cf. footnotes 336 and 351) (Bishops of the Pastoral Region of Buenos Aires, “Criterios básicos para la aplicación del capítulo VIII de Amoris laetitia” [Basic criteria for the application of chapter VIII of Amoris Laetitia], Buenos Aires, September 5, 2016, 6)).”

It is not clear what the Buenos Aires guidelines intend from the text. What do they mean with regard to a declaration of nullity not being possible to obtain? If they are speaking about so-called “conflict marriages,” which a tribunal is not really built to investigate (albeit some progress is being made on the point), or where some situation makes approaching a tribunal literally impossible or extremely difficult due to external factors like distance or danger, that could be stated easily enough (and would surely make for an interesting conversation). If they are speaking about someone who petitioned a tribunal and received a denial of his or her request for a declaration of nullity, then the entire authority of the law and court is undermined and the rights of the other party in the prior union are trampled. How do mitigating factors for objectively wrong acts change the application of c. 915, which is not about subjective guilt? Do the bishops only have in mind private reception? How would the good intention of protecting children change the adulterous act itself, without falling into a consequentialist vision of normative ethics (condemned by the Church)? How would a person have firm purpose of amendment sufficient for absolution without at least formally intending to avoid adulterous acts, even though he or she sees the real possibility of failure, given the expectation of duress? What kind of complex circumstances do the bishops envision in their exceptions? Does “not feasible” mean “very difficult” or “impossible”? There are many questions and few answers in the Buenos Aires guidelines.

Francis immediately sent them a formal letter stating that “the document is very good and completely explains the meaning of chapter VIII of Amoris Laetitia.” But it is important to note that he adds: “There are no other interpretations” (Letter from the Holy Father to Mons. Sergio Alfredo Fenoy, Delegate of the Pastoral Region of Buenos Aires, September 5, 2016). Therefore, it is unnecessary to expect another response from the Pope.

Because the Buenos Aires guidelines are ambiguous (and they themselves are interpreting the also ambiguous Footnote 351), it does not seem possible to make a reasonable claim that there is nothing left to discuss or explain.

It could be called into question that the pope would clarify his interpretation in a letter to a group of bishops. But, in fact, this has happened other times. To give an example, let us recall an incident about the interpretation of Vatican Council I. The German bishops responded to Chancellor Bismark, who argued that a Roman centralism had been defined that weakened episcopal authority. With their response, they rejected that interpretation of the Council. Pius IX endorsed the interpretation of those Bishops with a letter (March 12, 1875) and with the consistory of March 15, 1875 (DH 3112-3117). In a footnote to Lumen Gentium 27 the letter of Pius IX to the German Bishops is quoted, whereby its hermeneutical authority is confirmed.

Surely, nobody is questioning the competency of the pope to comment authoritatively on his own document. What is in question is whether this private letter legislates new law, or a binding and authoritative interpretation of existing law. I suggest that this has certainly not occurred – the Pope’s letter to the Buenos Aires region bishops has not even entered into the Acta, the normal place to promulgate such authoritative interpretations and legislation. But again, even if it were, there is such a lack of clarity in the Buenos Aires guidelines that it is impossible to draw a definitive conclusion about what the text actually means even if it were promulgated authoritatively. The Holy Father could indeed write such legislation or give a new authoritative interpretation of existing law which contradicts past authoritative interpretation, or he could answer the pending dubia (laden as they are with citations which would adequately settle the matter), which, for whatever reason, he has chosen not to do.

Obviously, a letter from the Pope does not have the same weight as an Encyclical, but, as we see, it can have a great practical, decisive importance to explain the correct interpretation of a text of greater weight. If the Pope has received a unique charism in the Church in the service of the correct interpretation of the divine Word – the charism given to Peter to bind and to loose and to confirm his brethren in faith – this cannot exclude his ability to interpret the documents he himself wrote.

Here, the Archbishop draws a comparison between “the divine Word” and “the documents [the Pope] himself wrote.” There is some analogy, insofar as the pope can indeed write infallible documents. The proper object, however, of papal infallibility is nothing other than what has already been at least implicitly revealed by God through Scripture or Tradition and is in the deposit of Faith. The charism is usually used because there is some controversy that requires an infallible definition for the good of the faithful. (Normally, this is done through an ecumenical council.) The proper object of infallibility would certainly not extend to interpreting the pope’s own documents except inasmuch as they are themselves expositions of the deposit of Faith. This means that a pope could fallibly interpret his own intentions, let alone produce fallible utterances when enunciating anything other than the deposit of Faith in a universally binding way which does not contradict past teaching. In short: no, the pope is not infallible here. 

“PERFECT CONTINENCE”

St. John Paul II’s proposal to the divorced in a new union to live in perfect continence, as a requirement to make access to Eucharistic communion possible, was already an important novelty. Many resisted this step. Still some today do not accept this proposal because they believe it leads to relativism. On the other hand, we must note a later novelty in the language of Benedict XVI. While Pope John Paul II asked them to “assume the commitment to live in full continence” (FC 84), Benedict XVI proposed to them, more delicately, “to commit themselves” to live “as brother and sister” (SC 29b).

In the judgment of Pope John Paul II, this was permissible only if the possibility of scandal was morally certain to be excluded, in accord with the true spirit of c. 915 which aims at preventing the sin of scandal (and only indirectly at the sin of sacrilege). It certainly may be unwise for a couple to separate civilly, though one or both remain in another bond according to Divine and ecclesiastical law. John Paul II was also insistent, as was Benedict XVI, on continence. One is led to some head scratching by the Archbishop’s implied dichotomy between continence and living as brother and sister. Surely, brothers and sisters ought to be continent in their relationship, yes?

Francis recognizes the possibility of proposing perfect continence to the divorced in a new union, but admits that there may be difficulties in practicing it (cf. footnote 329). Footnote 364 gives a place to administering the sacrament of Reconciliation to them even when new falls are foreseeable. There, Francis calls into question priests who “demand of penitents a purpose of amendment so lacking in nuance that it causes mercy to be obscured by the pursuit of a supposedly pure justice” (AL 312). And there he takes up an important statement of St. John Paul II, who held that even the anticipation of a new fall “should not prejudice the authenticity of the resolution” (Letter to Cardinal W. Baum, 03/22/1996, quoted in the footnote.). Against this cautious precision of St. John Paul II, some seem to demand a kind of strict control of what others do in intimacy. We must heartily congratulate those who manage to live in perfect continence, enriching their daily cohabitation in various ways. But that does not imply ignoring that others have serious difficulties in achieving this.

There is nothing wrong with this except the implication that there is any opposition between the firm purpose of amendment necessary for absolution and “strict control of what others do in intimacy.” A confessor would indeed be bound to “control strictly” that a person not be “intimate” with someone other than his or her spouse according to Divine and ecclesiastical law. If there is not an intention to try to avoid this sin, there can be no absolution – the penitent does not have true purpose of amendment.

When the need to avoid scandal is spoken about, we must note that this only happens when people “flaunt” their situation as if it were correct (cf. AL 297). Otherwise, scandal would also be given when the first marriage has been declared null, since probably many who see them go to confession and communion do not know about the annulment. For that matter, neither could they know whether they live as brother and sister or not. The objective fault is not “manifest” insofar as it cannot be confirmed from the outside, and all deserve the benefit of the doubt. Let us leave this matter – in fact, unverifiable – to the intimacy of the discernment of the member of the faithful with his pastor.

The Archbishop’s argument is difficult to see through if one does not understand this key principle behind c. 915: the reasonable suspicion of obstinate perseverance in grave sin based on a reality which is generically publicly available knowledge. The primary concern of c. 915 is to prevent scandal, and its object, apart from those under some penalty, is those persons whose sufficiently manifest and exterior (or “objective”) conditions would be reasonably assumed to imply obstinate perseverance in grave sin if those conditions were actually known. To be sure, “good faith” ought to be applied in the distribution of the Sacraments. A priest ought not barrel into a litany of questions about the personal lives of every individual in his parish, confessional, or Communion line, but when an irregularity becomes known it must be addressed in a certain way which will indeed depend on the reality of what occurs in private – if they are continent, then they must be ministered to privately, or provision must be made to preclude scandal. If they are living “more uxorio,” then they must be helped to understand that they cannot present themselves for Holy Communion, for, if their irregular status were to become known (even if known only independently of their activity), which is certainly possible given human nature and the public character of civil marriage, then there would be grave scandal given and likely taken. If the couple has obtained an annulment, and they have a convalidation to regularize their union, then they have publicly removed the possibility for giving scandal in this way. That scandal may still be taken is possible, and adequate provision can and should be made, but there is no longer an irregular situation to discover or actually know: they are indeed not irregular, so no revelation or knowledge is possible to the contrary. The couple who practice continence in an irregular union have themselves the obligation at least to be sure that the possibility of scandal is excluded before their public reception, lest it become known that they are in an irregular union; people would have the reasonable assumption that they would indeed be living as married people, and scandal would be taken. It is the reasonable assumption of the grave sin that generally goes with such adultery, contingent upon the reasonable possibility of revelation of irregularity, which c. 915 aims at avoiding here – “flaunting” as the Archbishop envisions it need not occur for either to happen in most parish settings. (I have never been to Argentina, and so perhaps there is some unique situation there which allows for what the Archbishop says to make some practical sense.) Publicly civilly remarrying after a divorce without an annulment, and publicly receiving Holy Communion, certainly do seem to be “flaunting” in a way that is sufficient to cause plenty of gossip, loss of respect for the Sacraments and their ministers, and even imitation, should part or all of the truth come out.

The great resistance that this issue provokes in some groups indicates that this question, beyond its importance in itself, breaks a rigid mental structure, very concentrated in issues of sexuality, and it forces them to broaden their perspectives. This is why Francis asks pastors to help the faithful “to treat the weak with the logic of compassion, avoiding aggravation or unduly harsh or hasty judgements.” (AL 308).

The claim that the “conservative” approach has a concentration on sexuality is easily dismissed on account of the consistency of that approach with respect to other sorts of sins. On the contrary, the “liberal” approach seems fixated – it is only the sexual sins which warrant this special exemption from the timeless understanding of c. 915 and its predecessors. Why, for instance, does the secretive abortionist who has no other means of feeding his family not qualify for the same kind of exception as the divorced and remarried? He may indeed be faced with much pressure, have no easy options, and see a great good to be obtained by doing abortions, such as feeding his family. It would be immensely difficult for him to stop, and he could probably get away with nobody finding out that this is his business, if he doesn’t “flaunt” it… If he explains his situation to Father, could he too discern that he can go to Holy Communion, despite intending to continue performing abortions? Hopefully, it is clear that this would be totally inadmissible, not only because of the grave sin which is likely on his soul, but also because of the risk of someone discovering what has occurred – and that scandal being both taken and given due to the reality of such a decision by the parish priest who decided to give him a pass and implicitly confirmed him in his wicked practice. How much damage could be done! Further, we can ask if the abortionist could receive absolution without a firm purpose of amendment, viz., a real intention not to perform any more abortions? No. Presumably, the Archbishop would agree, but why then is there such a fixation on the 6th Commandment? In fact, the Archbishop will soon go on to argue that there are exceptions to the 5th Commandment (and the 7th), in addition to implying that there is one for the 6th. Why, then, can distressed abortionists not discern on the internal forum that they can present themselves publicly for Holy Communion? If we are going to be looser on c. 915, then we ought not be fixated on the sexual sins, right?

ABSOLUTE MORAL STANDARDS AND HUMAN LIMITS

Amoris Laetitia brings back a teaching of St. Thomas Aquinas on the application of the general principles: “The more we descend to matters of detail, the more frequently we encounter uncertainty” (AL 304). Francis does not affirm that general moral laws cannot provide for all situations, nor that they are incapable of impeding the decision of conscience. On the contrary, he says that “[they] set forth a good which can never be disregarded or neglected.” However, “in their formulation they cannot provide absolutely for all particular situations” (AL 304). It is the formulation of the norm that cannot provide for everything, not the norm itself. And this applies not only to positive laws, but even to our way of formulating the natural law in its various expressions. In this line, the International Theological Commission, within the Pontificate of Benedict XVI, stated: “Natural law could not be presented as an already established set of rules that impose themselves a priori on the moral subject; rather, it is a source of objective inspiration for the deeply personal process of making a decision” (International Theological Committee, “In Search of a Universal Ethic: A New Look at Natural Law,” Rome, 2009, 59.).

The teaching of St. Thomas being applied here is found in the Summa Theologica II-I, q. 94, a 4. In this Article Thomas is explaining, among other things, that the natural law is not always easily formulated in general principles which can account for every case. His example is the placing of goods in trust, which would normally require the holder to return those goods upon demand, though some wicked intention of the retriever might render the relinquishment of the goods unjust (cf. II-II q. 120 a. 1). The general formula “return entrusted property when asked to by the depositor,” does not account for the murderous intentions of one retrieving an entrusted sword. Needless to say, it would be quite easy to misapply this idea to suit one’s own purposes: one can simply claim, “The law doesn’t apply to this case.” The burden of proof, then, is upon the one who would claim that some widely accepted general formulation of natural law would not apply in a particular case. One situation which the general formulation against adultery would not seem to obtain would be the reasonably presumed but not entirely certain death of a spouse. Is it really a requirement of justice and chastity that one be absolutely sure that his or her spouse is dead? The Church does not seem to think so (see c. 1707), and attempting to remarry and living “more uxorio” while one’s spouse is hopelessly stranded on a desert island would not be the sin of adultery except in a material sense, with no guilt whatsoever. It remains to be shown, however, how the general principle fails in what seems to be its clearest application by Our Lord and by the Church throughout 2,000 years of legislation and moral theology, namely, to divorce and live “more uxorio” without proper certainty of nullity or dissolution (Pauline and Petrine privilege, etc.). One must also wonder if St. Thomas would agree with this application, given his brief and uncompromising treatment of adultery in the same text.

The absolute norm in itself does not admit exceptions, but that does not imply that its succinct formulation must be applied in every sense and without nuances in all situations. “Thou shalt not kill” does not admit exceptions. However, it raises this question: should taking life in self-defense be included within the term “killing” prohibited by the norm? Should taking food from others to feed a hungry child be included within the term “stealing” prohibited by the norm? No one would doubt that it is legitimate to ask whether these concrete cases are actually included within the narrow formulations of the negative precepts “Thou shalt not kill” or “Thou shalt not steal.”

While there are cases where killing becomes legitimate, the 5th Commandment, despite popular translations, is definitely not simply about “killing” (“matar”), but about a specific kind of killing. The Hebrew “ratsach” does not mean to execute lawfully, nor does it mean to kill in moderate self-defense. It means, roughly, “to slay,” which is done through malice or negligence. Even if not fully clear in the text of the Decalogue itself, it is clear in its interpretation within Scripture and the constant authoritative interpretive tradition surrounding it. As for the 7th Commandment, there is no possibility of theft when the principle of the universal destination of goods makes into momentarily common property some object which is another’s property according to human law. We understand that taking a ladder from a hardware store without paying is not stealing if it is urgently needed to save a child from a burning building – even if there is no possibility of returning the ladder or making reparation. So these analogies do not seem to work so well… As John Paul II taught in Veritatis Splendor, the negative precepts of Divine law, when properly understood, do not admit of exceptions (see par. 52 and 56).

For this reason, it is also licit to ask if the acts of a more uxorio cohabitation should always fall, in its integral meaning, within the negative precept of “fornication”. I say, “in its integral meaning,” because it is not possible to hold that those acts in each and every case are gravely immoral in a subjective sense. In the complexity of particular situations is where, according to St. Thomas, ‘uncertainty increases.’ Indeed, it is not easy to describe as an ‘adulteress’ a woman who has been beaten and treated with contempt by her Catholic husband, and who received shelter, economic and psychological help from another man who helped her raise the children of the previous union, and with whom she had new children and cohabitates for many years.

It is certainly odd that the Archbishop uses the word “fornication” (“fornicar”) rather than “adultery,” seeing as we are presumably not speaking of a couple with both partners being free of other presumed marital bonds (which, by the way, would not come under c. 915’s scope unless the fornicative cohabitation were sufficiently notorious or “manifest” and there was obstinate perseverance). The difficulty of the situation the Archbishop describes is granted – but one must wonder why such a woman did not approach a tribunal for a declaration of nullity so that she might marry the second man. In any case, the Archbishop is now walking back the proposition that there is an “exception” as for the 5th and 7th Commandments – now he is simply saying that there might not be sufficient culpability for grave guilt. So, which is it? Is there an exception to the rule, or is the rule simply not broken in a grave way?

The question is not whether that woman does not know that cohabitation with that man does not correspond with objective moral norms. It is more than that. Some claim to simplify the matter in this way, by saying that, according to Francis, “The subject may not be able to be in mortal sin because, for various reasons, he is not fully aware that his situation constitutes adultery.” (This is what Claudio Pierantoni stated in a recent conference, very critical of Amoris Laetitia in Rome on April 22, 2017.) And they question him that it makes no sense to speak about discernment if “the subject remains indefinitely unaware of his situation” (Ibid.). But Francis explicitly said that “more is involved here than mere ignorance of the rule” (AL 301). The issue is much more complex and includes at least two basic considerations. First, if a woman who knows the existence of the norm can really understand that not abandoning that man – of whom she cannot now demand a total and permanent continence – is truly a very grave fault against the will of God. Second, if she truly can, at this point, make the decision to abandon that man. This is where the limited formulation of the norm is incapable of stating everything.

Surely, it is difficult to imagine a baptized, sane adult not having internal access to the moral law against divorce and remarriage, as set down in all four Gospels, though perhaps a seriously deficient moral education could cause a Christian to be invincibly ignorant. A coherent explanation of such ignorance would have to be harmonious with the clear sense of, among other important texts, Romans 1(On the other hand, a person certainly could be invincibly ignorant of ecclesiastical law or matters of fact; for example, if an individual was unaware of his/her baptism and subsequently violated canonical form in attempting marriage, this would render the marriage invalid but not morally problematic in a subjective sense.) Instead of developing this point, he seeks to introduce a conflict of obligations – a situation which sometimes, it is true, can only be solved by recourse to one’s own practical wisdom. It remains to be shown, however, that there is not an objective hierarchy of obligations which can be appealed to; it seems that there is, as adultery comes under a negative Divine prescript, while care of children comes under a positive Divine prescript. This means that the former must never be done, while the latter should be done as far as possible without violating other more serious duties – like not committing adultery, which is itself contrary to the welfare of children in a variety of ways, lest we forget.

In any event, the specific and principal proposal of Francis, in line with the Synod, is not concerning the considerations on the formulation of the norm. Why then is this question part of his proposal? Because he calls for much attention to the language that is used to describe weak persons. For him, offensive expressions such as “adulterer” or “fornicator” should not necessarily be deduced from the general norms when referring to concrete persons.

The prudence of this is at least questionable in light of the uncompromising and “offensive” language of Our Lord. Nobody, of course, would suggest that “name calling” is an effective approach to saving souls, but delicate euphemisms are not always appropriate either.

But his emphasis is rather on the question of the possible diminution of responsibility and culpability. Forms of conditioning can attenuate or nullify responsibility and culpability against any norm, even against negative precepts and absolute moral norms. This makes it possible not always to lose the life of sanctifying grace in a “more uxorio”cohabitation.

That there is a possibility of mitigation of culpability for individual adulterous acts has not come under serious criticism as far as I know, although one should certainly be wary of overextending this possibility (which is surely not hard to do). What is different from individual instances of such behavior, however, is the intention to continue in it. When that intention occurs apart from some grave duress (or other mitigating factor), it seems that this would always constitute mortal sin (excepting those cases of invincible ignorance). It should also be noted that mere temptation does not constitute a mitigating factor, and the loss of some good (like financial support) is itself merely an external temptation until it actually damages the soul’s ability to function properly in decision-making. Further, we should recall that “subjective guilt” for such acts is not matter for c. 915, only for c. 916. Finally, we should at this point draw the distinction between a person choosing to do an act and tolerating an act being done on oneself. A woman may tolerate the sexual advances of a man in a non-marital union for some serious reason, but she may not internally consent. (It is more difficult to imagine this situation obtaining for a man.) These distinctions must be made in order to have a coherent discussion of the issue at hand.

PART II

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