Below is the text of a paper I delivered today at this year’s “Student Theology Conference” at the Angelicum in Rome. It is just the start of the articulation… More work (especially research in older legal commentaries/authors) needs to be done.
I neglected to mention as an example in this talk that the Pope “qua” Bishop of Rome is something which would also arguably fit in my “novel” category of law.
-Eamonn Clark, STL
On September 21 of 687, Pope Conon died after a reign of several weeks – not enough time for rivalries to cool and dissipate. Conon had been a compromise candidate between the Roman clerical faction and the Roman military faction. Paschal, a former contender and now Archpriest at the Lateran Basilica, vied for the throne of St. Peter once again. His supporters, however, were less numerous than those of the Archdeacon, Theodore. After sending a bribe to the Exarch of Ravenna John II Platyn, the Emperor’s main legate in Italy, to have his papacy affirmed by Constantinople, Paschal attempted to take up residence in the Lateran with his supporters – as did Theodore with his. What followed was a nearly three month long armed conflict between the two parties inside the Lateran complex. By mid-December, the Romans had had enough, as had the Exarch. When John II Platyn was arriving in Rome, Paschal sent another bribe, which the Exarch happily took, but then he confirmed a separate candidate who had been acclaimed by politicians, soldiers, clergy, and normal civilians who were gathered on the Palatine Hill. Pope St. Sergius I was elected. Theodore relaxed his grip, and Paschal was eventually thrown into monastic prison on suspicion of witchcraft.
So goes one of several wild stories of the early medieval papacy. Of particular further note is the accession of the infamous Pope Vigilius to the Throne – who not only flirted with Monophysitism and was effectively excommunicated by the Second Council of Constantinople, but also seemingly colluded with the Emperor’s General, Belisarius, to force his predecessor Pope St. Sylverius into exile and took up the papal office while his predecessor was still alive. At least when Sylverius died, all of the Roman clergy began to treat Vigilius as pope…
Such irregularities could no doubt be multiplied – similar skirmishes surrounding the pontificates of Benedict IX immediately come to mind. This raises an important question – where does accession to the papacy fit into the broader world of law? Is it merely a matter of ecclesiastical law? This seems impossible, as there are certain qualities which one must possess to be pope, such as being baptized. Or is it a matter purely of Divine positive law? This too seems untenable, as we clearly have a manmade process today which has produced valid popes for centuries, namely, the conclave process. How do we deal with the fact that the papacy has often been treated much like the Roman imperial throne – where “might makes right” – that is, if you get enough power that is somehow related to the office – like by dominating the Lateran Palace with your army, or by forcing your predecessor into exile – you can somehow enter the office by that very fact? To drive it home, had Paschal the Archpriest successfully crowded out Theodore the Archdeacon, and the Exarch had not arrived, we would almost certainly have had Paschal as Bishop of Rome. This is, in fact, how Benedict IX regained office at least once, with respect to Clement II, seizing the Lateran in November of 1047, and perhaps also previously when expelling Sylvester III in April of 1045. Pope Damasus II ended Benedict’s third papacy when he invaded Rome with his army from Germany and forced Benedict into pious retirement in Grottaferrata.
In this paper I will present a hypothesis that there sits in between Divine positive law and ecclesiastical law a third kind of law which is analogous to the category of law which fills the gap between the natural law and civil law, namely, the “ius gentium,” the law of nations. This kind of law, which I will refer to as the “ius Gentium Dei,” the “law of the People of God,” is relevant not only for solving difficult problems related to papal succession – which topic is not simply historically interesting but increases in pastoral importance in direct proportion to the growing crisis of sedevacantism – but also to topics like rights over the use of liturgies, unjust episcopal depositions, and lay governance… perhaps even doubts about the role or importance of subjective intentionality in the dispensation of the sacraments. All of these are topics on the minds of many. I will argue that collapsing these issues into Divine positive law or ecclesiastical law is a mistake, which is part of why the discussions related to these topics have proven somewhat fruitless. The task, then, is to contextualize these controversies and others like them.
The natural law is man’s participation in the Eternal Law. From the natural law, man devises artifices which provide the structure of distributive justice in civic life – ordinances of reason for the common good promulgated by one with the authoritative care for the community. This is the civil law, which can positively create moral duties, insofar as it squares with the nature of law and has within itself a legitimate presumption of morally preceptive force.
Divine positive law is, one might say, the Church’s participation in Eternal Law, which is preceptive data known through faith. Revealed precepts are given either directly or indirectly – baptize with water, confess your sins, love your enemy, pray the Our Father, and so on – and the practical life of the Church is built around these preceptive pillars. Ecclesiastical law, which essentially tracks the definition of civil law, with the qualification that faith informs the ordinance of reason, must be in accordance with Divine positive law (while also, of course, not violating natural law).
Ecclesiastical law moderates all manner of property and offices which are “possessed,” as does Divine positive law. As already mentioned, the papacy is a good example of these two kinds of law working together. This is unlike natural law, which only indicates a social order based on some kind of common life and the pursuit of truth. Civil law moderates myriad aspects of property ownership, yet we can perceive rather intuitively that it must respect the logic of the ius gentium or else become unjust. One does not acquire possession of a house merely by writing his name on the wall, for example, regardless of whether this is legislated.
Ecclesiastical laws regarding the possession of some spiritual good or authority obviously must accord with Divine positive law, but it seems they must also be in accord with something which “interprets” Divine positive law by extending it to the whole Church as a society, yet without being properly contained therein.
What I am calling the “ius Gentium Dei,” the “law of the People of God,” is the wise application of reason working through faith of the Divine positive law towards the ordering of the whole Church as a perfect society as such. It is, as the ius gentium, as conclusions drawn from premises, rather than particular determinations of higher law (cf. ST I-II q. 95).
Perfect societies, for example, have a visible head, at least habitually. The papacy is important enough that, even were there to be some crisis, such as with Sergius I or Sylverius and Vigilius or other similar cases, the fact will always remain that the Church needs a pope – the need for a successor of St. Peter is indicated by Divine positive law and by lived experience – one need only think of the extended periods during which deadlocked papal elections dragged on for months or even years, such as in the late 1200’s. Yet given that ecclesiastical law, which typically moderates this office, cannot provide for all cases, just as civil law cannot provide for all cases, sometimes appeal must be made to a higher law. Further, given that God, despite being a perfect Legislator, for whatever reason did not actually provide procedural law of any kind for the accession to the papacy, as is evidenced by the vast diversity with which real accession has occurred, no appeal can be made to Divine positive law to settle the matter. The answer lies with the wise application of reason working through faith of the Divine positive law towards the ordering of the whole Church as a perfect society as such, the ius Gentium Dei. We can accept that Sergius I was Roman Pontiff just as much as Vigilius, just as much as Benedict IX three times along with Sylvester III, Gregory VI, and Clement II, and so on. As Fr. Taparelli, grandfather of Catholic social teaching, would likely point out, the fact itself is what makes the society and allows for its contracts, not the other way around. Not to put too fine a point on it, we have a Church of popes, not a Church of the 1983 or 1917 Code of Canon Law.
In his book treating of political economy, the ghostwriter of Rerum Novarum Fr. Liberatore presents the ius gentium as a spectrum, with some items, like the very institution of private property, being closer to the natural law than other items. The papacy and its acquisition seem closer to the Divine positive law than something like rights over the use of particular liturgical customs, which is another item that very much seems not merely part of ecclesiastical law while nonetheless obviously largely subject to ecclesiastical law. The Church can legislate rather arbitrarily a lectionary, a calendar, various kinds of vestments and their colors, the kind, number, position, and use of candles, and so on. We can perceive that, beyond the proper minister and matter and form, there are in fact items which seem so fundamental to the right liturgical order that they are very likely indirectly indicated by Divine positive law; for example, that the readings precede the confection of the Eucharist – the way that Christ’s public teaching preceded His death on the Cross, the way that the prophets preceded the Incarnation, and the way that the Eternal Word of the Father precedes creation through that same Word. However, something like the attempt to introduce extra-Scriptural readings into the Mass would be less offensive but still, I think most would agree, would be illegitimate. The question is, offensive against what? It cannot be Divine positive law, as God gives no direct commandment about readings at Mass – it cannot be only against ecclesiastical law, if that law were actually to be changed. It is instead against the wise application of reason working through faith of the Divine positive law towards the ordering of the whole Church as a perfect society as such, in this case about how that society conducts acts of religion – how God is worshipped by outward, official, public acts of the Church.
No doubt, there is something which lawful authority possesses in the Church that matches the civil reality of eminent domain. One might think of Pope St. Pius V doing away with long-standing local liturgies after Trent, those of almost but not quite 200 years of age. But nobody thinks that the Roman Pontiff could, for example, legitimately (with morally preceptive force) do away with all the liturgies of the Eastern Churches simply at will, or even of a single Church. The Armenian Catholic Church, for example, has an acquired right to use their own liturgical books and rituals, within reason; the ratio for any meaningful intervention in the Armenian liturgy is and can only be what is fair with respect to the ownership of the same liturgy on the part of the entire Armenian Church. The analogy which comes to mind is that of children living under their father’s care in a common house – surely, the father owns the house in the absolute sense and exercises the fullness of authority – immediately, supremely, etc., as to domestic life and the governance of his family – but he cannot arbitrarily and indefinitely forbid the children to use the central rooms of the house, for it is their house too in a real way, albeit in a limited and participatory sense. While the supreme and immediate power of the Roman Pontiff over the whole Church is part of Divine positive law at least indirectly or even directly, the character of ownership over something like the use of particular liturgical customs, especially on the part of the faithful, is not part of Divine positive law. Rather, the articulation of that ownership, along with how it is suspended, modified, or removed, is in large part a matter of the ius Gentium Dei.
I leave aside other possible inhabitants of this category, including those already mentioned – the deposition of bishops, lay governance, and even the character of sacramental intentionality, for lack of time. Rather, I will address the problem which by now should be obvious: Who decides what is contained in the ius Gentium Dei, and, even more importantly, who decides what it demands?
My suggestion is that the answer lies with the whole Church, especially with clergy and the maiores, those who are educated. To reiterate my definition of the ius Gentium Dei, it is the wise application of reason working through faith of the Divine positive law towards the ordering of the whole Church as a perfect society as such. The key is wisdom, the knowledge of the causes of things, in this case knowledge of the causes of the flourishing of the whole Church. This principally belongs to local bishops and most of all to the Roman Pontiff. Yet the head cannot do without the foot. The various roles played by lower clergy and by educated and deputed laity to assist in the governance of the Church are critical, as is the movement of the Holy Spirit among the pious minores, the uneducated, who may by the Gift of counsel know that somehow, something is wrong about a decision about governance without fully or even significantly being able to explain why. When moving all together, problems or conflicts which are over things inside the scope of the ius Gentium Dei are normally figured out less by reasoning or acts of juridic power than by flesh and blood – over time, the solution simply appears because of the fact of the matter at hand. Such was the case with the abnormal papal accessions previously considered – so too it may be the case for various ecclesiological crises in our own day. God wants us to know that we have a pope – other than knowing someone is actually a baptized male, what else do we really need to say other than, “Well, he controls the Lateran and everyone calls him ‘Pope’”? Something similar could be said about lay governance, episcopal depositions, and even sacramental intentionality, if time allowed. The key question is something to the effect of – “Is this paradigm or set of expectations and practices workable for the whole Church with respect to Her good as a perfect society, in line with clearly revealed precepts?” This kind of argument is what needs to be taken up in the apostolate to the sedevacantists – we ought mostly to leave alone particular arguments about the 1917 CIC and the precise definition of “heresy,” let alone any particular historical questions, which, by the way, are seemingly never extended into the murky depths of the First Millennium; as if we really know anything about what men in the 700’s were teaching and preaching before their pontificates. The fact is that “they controlled the Lateran and they were called ‘Pope,’” and this is more or less everything we need to know. This is somewhat of a simplification, but it is not a very large one.
What remains to be said in this brief presentation is to insist that the ius Gentium Dei is not a “trump card” which can or should be “played” by anyone seeking some particular solution in a given conflict. Such an attitude would be the practical equivalent of the speculative error found in illegitimate appeals to the “sensus fidelium.” Just because a decision of a lawful superior seems unfair or ill-considered does not thereby render it invalid or even illicit, even though it may truly be immoral to have legislated on account of his own poor judgment, which because of his office he is specially bound to avoid. If anything, rather than simplifying particular courses of action which smack of disobedience and flippant impiety, this juridic resetting of major ecclesiological crises and questions, and the conflicts which unfortunately accompany them, is an invitation to more serious dialogue and discourse. Children should not simply disobey their father and harshly rebuke him, even when it is really the case that he is unfairly restricting their usage of the house, to return to my analogy – rather, the children must appeal to their father respectfully and plead with him (1 Timothy 5:1). Sometimes, the father lacks wisdom and thinks too much of his rights; however, this is more frequently true of the children who are bound to him in obedience.
In this presentation, which is only a sketch of an at least superficially plausible idea which requires more research and reflection, I have proposed that there is an analogous category of law in the order of revelation to the ius gentium in the order of nature, which category I have called the “ius Gentium Dei,” and I have shown how such a category could help to contextualize several pressing concerns which confront the Church today. Real solutions to these problems may yet be a long way off. However, it is no doubt extremely important both to avoid erroneously claiming one’s rights to be sanctioned directly by God and to avoid erroneously claiming that whatever such rights exist are subject entirely to the whims of the lawful superior. Instead, the via media ought to be more frequently considered, in the form of the ius Gentium Dei – in this case it is not the ”both/and” we are so accustomed to in Catholic theology but rather a rare “neither/nor.”
Christian Renaissance Movement 