On the Fernández Document: PART III

Eamonn Clark

PART I, PART II

THE LEGITIMACY OF A CHANGE IN DISCIPLINE

Is this change possible and acceptable? Can Francis accept what was taught by St. John Paul II and yet open a door that was closed? Yes, because an evolution in the Church’s understanding of her own doctrine and its disciplinary consequences is possible. Let us look at some historical examples.

Rather, because the pope is the supreme legislator of the Church, he can write and interpret ecclesiastical law authoritatively, so long as it does not contradict Divine law – or, presumably, other existing ecclesiastical law. To date, Pope Francis does not seem to have done either with respect to c. 915 or c. 916 as it relates to the divorced and remarried beyond stating what has always been taught, albeit in a way that is open to other interpretations – yet continuity and custom are also relevant for understanding law (c. 20, c. 21, c. 27, etc.), and so long as it is not clear that the law or its authoritative interpretation has changed, there should be no change in the application of that law except to bring practice more in line with the law itself.

In 1832, Pope Gregory XVI, in Mirari vos, had said that it is an “absurd and erroneous doctrine, or rather delirium, that freedom of conscience is to be claimed and defended for all men” (MV 15). In the Syllabus of Pius IX (1864) religious freedom is condemned as one of the principal “errors.” But in the following century, the Second Vatican Council substantially modified these very firm ideas (cf. DH 2-3). A similar evolution occurred on the issue of the possibility of salvation outside of the Catholic Church. We recall also the case of slavery: Pope Nicholas V allowed the king of Portugal to take slaves. Then, in 1455 the Bull Romanus Pontifex reaffirmed this. And this is not a secondary issue, since it has to do with the inalienable dignity of the human person. (With respect to this subject of the evolution in the understanding of the doctrine, the examples can be taken into account which are given in: Thomas Rausch, “Doctrine at the service of the pastoral mission of the Church,” La Civiltà Cattolica, v. 3981, May 14, 2016; pp. 223-236.) As of those changes in the understanding of doctrine, there were, as a consequence, various changes in discipline.

This is not the place to launch into an extensive investigation of slavery or soteriology, but the Archbishop’s confidence in these examples as analogies is unwarranted. Chattel slavery, the intrinsically evil institution within the very broad term “slavery”, has never been taught as moral by the Church (nor is it taught as moral in Scripture), so there has been no development of doctrine here. The development on “extra ecclesiam nulla salus” was with respect to the scope of the Church itself, not with respect to its necessity for salvation.

However, some hold that these comparisons are not convincing, and insist that any evolution should be carried out in the same line as what was said previously by the Church. It would be a kind of magisterial “fixism.” But, precisely in the examples mentioned above, it can be seen that the evolution did not take place “in the same line” as before, at least not on the question in itself. Between allowing slavery and not allowing it in any case, there is an immense evolution. There is only Continuity in the general doctrine about human dignity, but not in the precise point in question, where the Church really evolved in its understanding. In the same way, between affirming that only a Catholic can be saved and holding that there is a possibility of salvation outside the Church, there is no continuity with regard to the question in itself. It is obvious that the Church grows into a better reception of the proposal of the Gospel, in a more complete vision and in new ways of applying what has been taught. But some have an enormous difficulty in admitting that something similar can occur in questions related to sexuality.

The Archbishop insists on his examples as good ones, though he is apparently aware that some disagree. It is in no way clear how his exposition of these matters would not constitute an about face in doctrine, an act which would undermine the Church’s very authority to teach without error. For example, if the Church really taught that there is no salvation outside the Church, then taught that there is, we are left with two possibilities: either the Church does not possess the guarantee of truth in definitively teaching on matters of faith and morals, or there are multiple truths which may contradict each other. Neither of these conclusions is admissible.

RECENT CHANGES OF DISCIPLINE REGARDING NEW UNIONS

The fact is that even in the praxis related to the disciplinary treatment given to the divorced in a new union, there have already been major changes over the last century. Let us recall that, with the same arguments with which it is not accepted that they may not receive communion, a long time ago “the prohibition against funerals and any public funeral service” was also applied to them (Francisco Elizari, Pastoral de los divorciados [Pastoral Care of the Divorced], Oxford: Oxford University Press, pp. 31-32.). This changed without all the beliefs that supported that praxis falling away.

The Archbishop apparently does not realize that this penalty may still be applied, if it seems prudent to do so. See Dr. Ed Peter’s post on this matter for more: HERE

Based on reasons that remain standing, the previous Code of Canon Law (1917) sustained a discipline which the current Code (1983) does not maintain: “If, spurning the admonition of the Ordinary, they stay in the illicit relationship, they are to be excommunicated according to the gravity of the deed or struck with personal interdict” (Canon 2336). This indicates the possibility of changes in the disciplinary practice that do not necessarily make the great beliefs that supported the previous praxis fall away, but the possible practical consequences of the general norm are considered in another way.

This is also incorrect, if the Archbishop means to say that under the Pio-Benedictine Code those who divorced and remarried incurred the penalty of excommunication simply by the act itself. See the same article linked to in the previous paragraph for more details.

Amoris Laetitia gives rise to a new change, which does not imply a contradiction with the previous teaching, but a harmonious evolution and a creative continuity. The prestigious philosopher and specialist in the thought of St. John Paul II – Rocco Buttiglione – has explained it very well:

“John Paul II, however, does not want at all to nullify the role of the subjective conscience. The objective aspect of the act determines the goodness and the seriousness of the act. The subjective aspect of the action determines the level of responsibility of the agent … Pope Francis sets himself on the ground, not of the justification of the act, but of the subjective attenuating circumstances that diminish the agent’s responsibility. This is precisely the balance of Catholic ethics and distinguishes the realistic ethics of St. John Paul II from the objectivistic ethics of some of Pope Francis’s opponents. … Familiaris Consortio, moreover, when it formulates the rule, does not tell us that it does not tolerate exceptions for a proportionate reason. The rule that no one who is not in grace God ought to receive Eucharist by its very nature does not tolerate exceptions. Whoever receives the Body and the Blood of Christ unworthily eats and drinks his own condemnation. The rule according to which persons in God’s grace are excluded from communion as the canonical penalty for the counter-witness which they have given, however, may be subject to exceptions, and this is exactly what Amoris Laetitia tells us.” (Rocco Buttiglione, L’Approccio Antropologico di San Giovanni Paolo II e quello Pastorale di Papa Francesco [The Anthropological Approach of St. John Paul II and Pastoral Care of Pope Francis])

By now the same point has been made a number of times, namely, that a person committing adulterous acts may not be gravely culpable for those acts which are themselves grave matter. However, this does not respond to the difficulty with public reception (c. 915), nor to the difficulty of a habitual intention to continue such behavior, an intention which is separate from the acts themselves, which is far less easily mitigated in culpability. 

It would be fitting to clarify Buttiglione’s expression “for the counter-witness they have given” by saying: “because their situation does not objectively correspond with the good that the general norm proposes.”

Indeed, a counter-witness really is given, as general norms do more than propose: they oblige.

RECOGNITION OF LIMITS AND GOOD THAT IS POSSIBLE

Once again, we may say that this does not imply watering down an objective value. What Francis suggests is the situation of a person who, in dialogue with the pastor, does not present the intimate acts of a more uxorio cohabitation as subjectively moral, that is to say, as the object of a personal choice that legitimates them. It only presents them as difficult to avoid in their concrete circumstances, even if they are sincerely willing to grow in this point. Circumstances can diminish culpability, but not transform an act, immoral by virtue of its object, into an act that one may justifies as a choice. In fact, the same Amoris Laetitia, rejects the attitude of someone who “flaunts an objective sin as if it were part of the Christian ideal” (AL 297). Therefore, it is clear that Francis does not admit that that act is justifiable as a “personal choice”.

The Archbishop does speak correctly here, but whether he keeps this line throughout the whole document is questionable.

Amoris Laetitia refers to people aware of the severity of their situation, but with “great difficulty of going back without feeling in conscience that one would fall into new sins” (AL 298). That culpability is diminished, because the capacity for a decision is strongly conditioned, does not mean presenting one’s situation as a personal plan consistent with the Gospel. That is why discernment is not closed, but “is dynamic; it must remain ever open to new stages of growth and to new decisions which can enable the ideal to be more fully realized” (AL 303). This, according to an authentic understanding of the “law of gradualness” (AL 295), invites us to respond better to God each time by trusting in the help of His grace.

Finally, there is an indication that a couple in an irregular union is called to grow toward the norm. This is good.

If the act remains objectively immoral and does not lose its objective gravity, then it is not possible that it can be “chosen” with conviction, as if it were part of the Christian ideal. Still less could it be held that, by this “choice of life”, it becomes subjectively moral. It is another very different thing is to propose, as Francis does, that in a context of attenuated culpability one seeks to respond to the will of God with a greater commitment, possible in the context of that situation. For example, with a greater generosity towards the children, or with the decision to assume as a couple a more intense commitment for the common good, or with a maturation in familial dialogue, or with the development of mutual gestures of more frequent and intense charity, etc. These attempts can be objects of a “personal choice”, and they are examples of that “possible good” that can be realized within the limits of the situation itself (cf. EG 44-45, AL 308). They are expressions of the “via caritatis“, to which “those who have difficulties in living God’s law to the full” (AL 306) can always turn. Staying on this path, conscience is also called to recognize “what for now is the most generous response which can be given to God … the commitment which God himself is asking amid the concrete complexity of one’s limits” (AL 303).

In this paragraph the Archbishop returns to an apparent contradiction of Trent on the possibility of following the Commandments (and/or the connected doctrine on sufficient grace). And surely, the Archbishop is not suggesting that the adulterous acts themselves could constitute “expressions of the ‘via caritatis’” or are “what for now is the most generous response which can be given to God … the commitment which God himself is asking amid the concrete complexity of one’s limits,” although this could easily be taken away from this passage of the article or from the quoted paragraph of Amoris Laetitia.

It is not that everything is the same, or that now “nothing matters”. The need to avoid concealing the seriousness of the situation explains why the Pope sets some firm limits on the proposed discernment. For example, it excludes the case of “a new union arising from a recent divorce” or “the case of someone who has consistently failed in his obligations to the family” (AL 298). At the same time, he asks that people be guided so that they may sincerely recognize their own truth, especially in relation to “how they acted towards their children” or with the abandoned spouse (cf. AL 300). There are limits that discernment should not exceed, particularly when the recognition of the other is at stake, or when there is still little clarity about the situation itself. The Gospel is not reduced, let alone its demands of charity, but it is incarnated in the concrete possibilities of human complexity.

Let it be noted that the conditions laid down for the “proposed discernment” (of one’s culpability for current adulterous acts, presumably) do not constitute anything other than vague suggestions of how to discuss these difficult situations.

CONSCIENCE

In the discussions about Amoris Laetitia, some hold that the Pope claims to grant to people’s conscience a power to create the truth and the norms at its whim. With this argument, these opponents of Francis try to force others to assume a determinate logic, from which there is no way out. The Gospel is thus subjected to a kind of theological and moral mathematics. Once that mental structure is adopted, there is no choice but to accept all the logic and consequences of that manner of using reason. It is a death-trap.

One must wonder what this “determinate logic” actually consists of. The Archbishop does not say, though surely he would grant that the rigorous application of immemorial laws as they have been authentically interpreted would be a good thing for the Church and Her faithful, no?

It is not the logic that Francis proposes for the shepherds of this time (cf. AL 296. 312). In addition, he rejects the pretension of “those who long for a monolithic body of doctrine guarded by all and leaving no room for nuance” (EG 40). He recognizes the value of reason to reflect on the Gospel, and appreciates the dialogue between faith and reason. But this does not imply canonizing “a” reason, a determinate manner of reasoning, a philosophy to which the Gospel and the whole Church must submit. The Gospel is not enclosed in a philosophy because “Christian morality is not a form of stoicism, or self-denial, or merely a practical philosophy or a catalogue of sins and faults” (EG 39).

Again, because the Archbishop does not detail the line of reason he critiques, one is left to speculate. However, his assertion that the Gospel and the whole Church need not submit to any philosophy is at least open to some criticism, given the condemnation of many kinds of philosophical worldviews which do not allow for the Gospel as the Church understands it. There are philosophies which allow for the Gospel, and there are philosophies which do not. The Archbishop fails to describe how the “determinate logic” does not allow for the Gospel in the way Modernism, Relativism, or Nihilism do not allow for the Gospel. What seems especially important to affirm in this discussion is that we can in fact know the truth of what is right and wrong, and we are in fact free in proportion with our capacity for reason. If the Gospel does not “submit” to this, then it must at least co-exist with it.

If a determinate manner of using reason is absolutized, only those who possess this mental structure will be able to interpret doctrine and revelation, and they would place themselves even above the pope. The supernatural vision of the Church and the Petrine ministry would thus be lost. Someone has said that this is an “intellectual Pelagianism”, because a determinate reason occupies the place of the Gospel and of the action of the Spirit in his Church. The Scriptures would serve only to illustrate the logic proper to “that” reason, administered by an oligarchic group of ethicists.

Surely, the Church is not called to stone the adulteress – but She is indeed called to tell her to sin no more. (John 8: 1-11)

Anyway, let us remember what Francis says about the importance of conscience; for example, in the following texts:

We also find it hard to make room for the consciences of the faithful, who very often respond as best they can to the Gospel amid their limitations, and are capable of carrying out their own discernment in complex situations. We have been called to form consciences, not to replace them (AL 37).

…Individual conscience needs to be better incorporated into the Church’s praxis in certain situations which do not objectively embody our understanding of marriage (AL 303).

This is all true, but announcing the truth to which a conscience must conform is certainly distinct from replacing that conscience.

However, Francis does not indicate that the conscience of each member of the faithful should be left completely free to its own judgement. What he asks for is a process of discernment accompanied by a pastor. It is a “personal and pastoral” discernment (AL 300), which also takes very seriously “the teaching of the Church and the guidelines of the Bishop” (ibid.) and supposes a “properly formed” conscience (AL 302). It is not a conscience that pretends to create the truth as it pleases, or to adapt it to its desires. On the part of the pastor, it “never implies dimming the light of the fuller ideal, or proposing less than what Jesus offers to the human being”, nor “an undue reticence in proposing that ideal” (AL 307). Some priests may be questioned who tend to fall into irresponsible or hasty discretion, causing confusion. The Pope does not ignore these risks that must be avoided (cf. AL 300). Each local Church will find the right balance through the experience, dialogue and guidance of the Bishop.

The “irresponsible or hasty discretion” which the Archbishop condemns, as the Church has always understood it, is a suggestion given to a person in an adulterous relationship living “more uxorio” to go to Holy Communion publicly. Suppose the divorced person shows up in the parish and finds his or her spouse according to ecclesiastical law going to Holy Communion publicly while civilly married to another person with whom there is reasonably presumed a “more uxorio” relationship. If this person approaches the pastor, what recourse does he have to Divine or ecclesiastical law? None. What terrible injustice, scandal, and pain has been caused in such a situation, with no spiritual advancement for anyone. The current law helps prevent such a tragedy (although people certainly can and do take their own initiative to receive illegally and hope for the best). Tribunals exist to discern whether a person can live “more uxorio” with a person other than the presumed spouse and then go to Holy Communion publicly – NOT individual priests or bishops or bishops’ conferences, especially through a judgment on the internal forum (see c. 130). The timeless wisdom of the Church on this matter should not be quickly set aside. “Do not move an ancient boundary stone…” (Proverbs 22:28, 23:10) To delegate these judgments in a way differently from how it is now (through the courts) would be a disaster. The best way to judge these cases is with a real system of courts who are not “interested” or “biased,” who are well educated, who have appropriate perspective of the whole situation, and who can effectively promulgate their decisions. A confessor cannot gather and weigh evidence in this manner, not all bishops are well-trained in canon law (and thus one might question the prudence of the “Briefer Process” outlined in Mitis Iudex Dominus Iesus), and pastors have the temptation to succor favor with their parishioners. Most dangerous of all would be the delegation of these decisions to the interested individuals themselves.

Francis’s proposal is very demanding. It would be easier or more convenient to apply norms in a rigid and universal way, to pretend that everything is “black and white” (AL 305), or to start with some general beliefs and draw fixed conclusions without taking into account the complexity of reality and the concrete life of persons. But this comfortable rigidity can be a betrayal of the heart of the Gospel: “At times we find it hard to make room for God’s unconditional love in our pastoral activity. We put so many conditions on mercy that we empty it of its concrete meaning and real significance. That is the worst way of watering down the Gospel.” (AL 311).

On the contrary, the traditional teaching and practice of the Church seem much more demanding both of doctors of souls and of those in irregular unions. This is why Our Lord’s words on divorce and remarriage startled the Apostles so much that they exclaimed, “In that case, it is better not to marry!” Our Lord did not disagree. (Matthew 19: 10-11) It is seriously doubtful that the places where this proposal is adopted as legitimate and is put into practice that chastity will actually be preached in any meaningful way. Rather, human nature will simply take over in the absence of a strict ecclesiastical law. We have to wake up and smell the concupiscence.

A SECONDARY QUESTION

Although the question of the possible access to the communion for some divorcees in a new union has caused much commotion, the Pope intended – unsuccessfully – that this move be made in a discreet manner. Therefore, after developing the presuppositions of this decision in the body of the document, the application to communion for the divorced in new union was made explicit in the footnotes.

Herein lies the proof that there has been no authentic interpretation of law, let alone a change in legislation. There can be no discreet authentic interpretation or legislation – these must be open and clear, like the reforms Pope Francis made for tribunal proceedings in Mitis Iudex.

This caution is explained by the fact that what Francis considers “central” are the chapters of Amoris Laetitia “devoted to love” (AL 6), where he proposes for us a beautiful task in order to stimulate “the growth, strengthening and deepening of conjugal and family love” (AL 89). He asks us to carry on “before anything else a pastoral care of the marriage bond, assisting couples not only to deepen their love but also to overcome problems and difficulties” (AL 211), a pastoral care that encourages communion, generous dedication, the bonds of tenderness and mutual belonging.

All well and good. Recall, however, that the Church understands “conjugal love” to exist only between validly married persons, not between non-spouses.

For, ultimately “marital love is not defended primarily by presenting indissolubility as a duty, or by repeating doctrine, but by helping it to grow ever stronger under the impulse of grace” (AL 134). It would be very good for us to work more intensely in this line, in the face of a world darkened by the comfortable and superficial individualism that weakens and destroys these bonds.

Who could disagree with these closing lines? And yet the article’s ubiquitous pessimism about both human nature and the help of the grace of the Sacrament of Holy Matrimony seems quite contradictory to the spirit of what the Archbishop ends with. If we want “to work more intensely in this line,” we must indeed present “indissolubility as a duty” and repeat doctrine to call people to account, as our culture and so many in the Church are falling into confusion on this critical part of human society.

————-

Some closing thoughts… In all of these theoretical back-and-forths, it can be easy to forget that behind it all there are indeed real people in truly difficult situations. We must indeed accompany them diligently and carefully, a theme this pontificate has routinely emphasized. But we must remember too that mercy is the removal of an affliction, and this may involve causing some pain. When serious sin becomes easy, comfortable, banal, and even feels like a duty, the sinner sits in such profound darkness that the light of Christ will necessarily hurt. This does not mean it ought to be hidden under a bushel basket, which is the idea one sometimes gets from the modern usage of the word “pastoral.”

We must carry the lost sheep gently, but where are we really carrying them: back to the fold, or to the jaws of the wolf? Let every person charged with the cure of souls recall those foreboding words which God said to Ezekiel: “If I say to the wicked, ‘You shall surely die,’ and you do not warn them or speak out to dissuade the wicked from their evil conduct in order to save their lives, then they shall die for their sin, but I will hold you responsible for their blood.” (Ezekiel 3:18) 

On the Fernández Document: PART II

Eamonn Clark

PART I

WHEN ONE CANNOT

Francis considers that even knowing the norm, a person “may be in a concrete situation which does not allow him or her to act differently and decide otherwise without further sin. As the Synod Fathers put it, ‘factors may exist which limit the ability to make a decision’” (AL 301). He speaks of subjects who “are not in a position to understand, value or fully practice the objective requirements of the law” (AL 295). In another paragraph he reaffirms: “Under certain circumstances people find it very difficult to act differently.” (AL 302).

Here, the Archbishop begins to violate his earlier commitment to looking beyond the possibility that one could be ignorant of the “norm” itself. This is its own mistake, as it tends toward emptying the meaning of Christian conscience. But what is more important, and indeed, in my opinion, the most important point to consider in the article, is the apparent suggestion of an impossibility of following the 6th Commandment. Trent condemned such opinions in the strongest terms: “If anyone says that the commandments of God are, even for one that is justified and constituted in grace, impossible to keep; let him be anathema.” (Canon XVIII, Session 6) Of course, a person who is not justified by grace (and therefore might not be able to follow the Commandments) is in mortal sin, and that sin is due to his or her own fault (along with the sins which result), as he or she resists God’s free gift of sanctifying grace. (The Buenos Aires guidelines also could be read as contradicting this anathema when they speak about continence not being “feasible.”) Nobody argues that such choices are easy to make and live out, but to say that they are impossible or that failing to make them is without guilt due to mere temptation is to contradict the clear teaching of the Church. Let us recall the sobering words of the Lord: “If anyone comes to me and does not hate father and mother, wife and children, brothers and sisters – yes, even their own life – such a person cannot be my disciple.” (Luke 14:26) If one must be ready to make these persons and one’s own life second to the Lord – goods which have frequently been used in the Amoris debate as foils for the choice to live “more uxorio” with a non-spouse – what of the sexual goods themselves which are being provided by an illegitimate lover? What of the distant possibility that that person might withdraw some financial and/or emotional support? Sometimes doing the right thing requires enormously difficult sacrifices, and it may also occasion sin in others – the witness of the martyrs demonstrates this.

He also recalls that John Paul II recognized that in certain cases “for serious reasons, such as for example the children’s upbringing, a man and a woman cannot satisfy the obligation to separate” (FC 84; AL 298). Let us note that St. John Paul II recognized that “they cannot“. Benedict XVI was even more forceful in saying that in some cases “objective circumstances are present which make the cohabitation irreversible, in fact.” (SC 29b).

A couple definitely may find themselves unable to separate physically or even according to civil law. Persisting in such a state does not of itself constitute sin. (While it is fitting for civil status to correspond to ecclesiastical and sacramental status, it is not absolutely necessary. In fact, one must change his or her civil status through divorce before changing his or her ecclesiastical status through annulment. To contract a second civil marriage while still ecclesiastically bound to another does indeed constitute a more serious act, but it could be justified, so long as the rights of the divorced party are not violated.) What should be evident, however, is that remaining together physically and civilly is distinct from living “more uxorio.”

This becomes particularly complex, for example, when the man is not a practicing Catholic. The woman is not in a position to oblige someone to live in perfect continence who does not share all her Catholic convictions. In that case, it is not easy for an honest and devout woman to make the decision to abandon the man she loves, who protected her from a violent husband and who freed her from falling into prostitution or suicide. The “serious reasons” mentioned by Pope John Paul II, or the “objective circumstances” indicated by Benedict XVI are amplified. But most important of all is the fact that, by abandoning this man, she would leave the small children of the new union without a father and without a family environment. There is no doubt that, in this case, the decision-making power with respect to sexual continence, at least for now, has serious forms of conditioning that diminish guilt and imputability. Therefore, they demand great care when making judgments only from a general norm. Francis thinks especially of “the situation of families in dire poverty, punished in so many ways, where the limits of life are lived in an excruciating way” (AL 49). In the face of these families, it is necessary to avoid “imposing straightaway a set of rules that only lead people to feel judged and abandoned” (ibid.).

The Archbishop’s points about the difficulty of such situations is granted. What requires much caution, however, is examining how mitigating factors work in the act of forming a habitual intention to continue “more uxorio.” If it is not a matter of a persistent acute fear or a mental illness, what must be shown is that some particular external temptation has become an internal force which has rendered the will unable to carry out its proper function – in other words, a true addiction. Sexual addiction is, I suggest, possible but extremely rare, given the fact that the vast majority of such couples may go a long time without intimacy for some other reason, such as a health condition or even simply the mundane distractions of daily life, quite unlike a real addiction. (We should also note that it is especially egregious for any person willfully to use as license to commit a sin those factors which would mitigate that sin’s culpability. This surely only adds guilt, even hardening a person’s heart in the vice.) 

BEYOND SITUATIONALISM

The Pope, faithful to the real and limited possibilities which the Synod opened – and even against the proposals of progressive moralists – has preferred to maintain the distinction between objective sin and subjective guilt. Therefore, although it can be held with all clarity and forcefulness that sexual relations for the divorced in a new union constitute an objective situation of habitual grave sin, this does not imply that there necessarily exists grave sin in a subjective sense, that is to say, grave guilt that takes away the life of the sanctifying grace:

There has long been a distinction between “formal sin” and “material sin,” which seems to be what the Pope means by “subjective guilt” and “objective sin.” If there are factors which sufficiently mitigate or remove the guilt for what would otherwise be mortal sin, there remains “grave matter” but there is not mortal sin. This is not what is at stake in c. 915, however, as that canon refers to sin in a distinctly legal sense, which is related to but different from the moral sense… For example, a gullible and innocent person who is otherwise free to receive Holy Communion in public might have to be denied if he or she were tricked into wearing a rainbow sash under the pretext of celebrating the Noahic covenant. Onlookers would take scandal at the knowledge of an objective situation (“rainbow sash-wearing”) which would be reasonably assumed to mean that this individual is a committed LGBT activist, which itself is reasonably assumed to mean obstinate and persistent grave sin. That the soul of this individual is in grace is not a consideration in this situation.

The Church possesses a solid body of reflection concerning mitigating factors and situations. Hence it is can no longer simply be said that all those in any “irregular” situation are living in a state of mortal sin and are deprived of sanctifying grace. (AL 301).

One is left wondering when and where this was ever said with any universality. There are no documents cited to support the thought that there has been a true development here. If the Archbishop’s text is taken in its plain meaning, the possibility of an irregular couple living in continence is included, rendering his claim without the kind of significance he seems to envision it having. The apparently implied meaning is that irregular couples living “more uxorio” may not be in mortal sin due to mitigating factors impinging on their culpability for such acts. This, I submit, is not a development at all, just a theoretical possibility which has always existed – and is unlikely to exist in reality with much frequency.

It is already widely accepted – even in the Catechism – that “imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors” (CCC 1735).

The paragraph cited is only directly and fully applied in the Catechism in its treatment of self-abuse (#2352), a sin which lends itself to conditioning and inadvertent commission in a way that relations with another human being do not.

For Francis, however, it is not the concrete circumstances that determine objective morality. That forms of conditioning can diminish culpability does not mean that what is objectively evil may become objectively good. Suffice it to read the following sentence: “Because of forms of conditioning and mitigating factors, it is possible that in an objective situation of sin – which may not be subjectively culpable, or fully such – a person can be living in God’s grace” (AL 305). That is to say, it remains an “objective situation of sin”, because there remains the Gospel’s clear proposal on marriage, and this concrete situation does not objectively reflect that. Francis, like the Synod, maintains the existence of objective truths and universal norms, and has never defended subjectivism or relativism. God’s plan is a marriage understood as an indissoluble union, and this point was not placed in doubt either in the Synod or in his pontificate.

There is some rhetoric in this paragraph, but we should notice that the Archbishop points out “that what is objectively evil [cannot] become objectively good.” Could this be a way to leave one with the impression that what is objectively evil could become “subjectively” good? Whatever the case, while there has perhaps not been subjectivism or relativism or “situationalism,” in some circles there has been some consequentialism insofar as the possible good outcome of some adulterous act (or some bad outcome of failing to commit some adulterous act) has been suggested as rendering that act less objectively grave in itself, but the Archbishop seems to have avoided this by implying that such a consequence rather inhibits freedom and therefore mitigates culpability. While the former is condemned, the latter is at least questionable. The mere existence of external or even internal temptation does not mitigate culpability, and it is a stretch to say that in these difficult cases a person faced with such consequences is necessarily overcome by them in a way that inhibits the natural operation of the intellect and will in a way that would eliminate grave guilt for an objectively grave sin.

THE POWER OF DISCERNMENT

On the other hand, Francis has never claimed that anyone can receive communion if he is not in the grace of God. But, as we have just seen, for someone to be deprived of sanctifying grace, it is not always enough that a serious objective fault exists. Therefore, there can be a path of discernment, open to the possibility of receiving the nourishment of the Eucharist.

So far, the Archbishop has neglected to cite the governing canons (c. 18, c. 213, c. 915, and c. 916). It is now a serious problem: c. 915 does not preclude from public access to Holy Communion those known with moral certainty by the minister to be in personal grave sin – c. 916 does precisely this, but it does so only in private administration. This distinction is absolutely essential to a coherent discussion of the entire issue.

This is only possible if a different way of thinking about the consequences of the norm is accepted. This does not admit exceptions with regard to the objective evaluation starting from an absolute moral precept, but he allows a discernment with regard to its disciplinary derivations. Although the norm is universal, however, “since the degree of responsibility is not equal in all cases, the consequences or effects of a norm need not always be the same” (AL 300). “This is also the case with regard to sacramental discipline, since discernment can recognize that in a particular situation no grave fault exists” (AL footnote 336).

This could be possible for private reception of Holy Communion, but it is not possible for public reception. But this would not constitute a new discipline at all, for it has always been the case that private reception is allowed given the minister has no reasonable certainty that the communicant is in mortal sin.

The question that arises is the following: Can this be discerned in pastoral dialogue? The Pope says yes, and that is what opens the way to a change in discipline. Francis’ great novelty is in allowing that a pastoral discernment in the realm of the “internal forum” can have practical consequences in the manner of applying the discipline. The general canonical norm is maintained (cf. AL 300), although it cannot be applied in some cases as a consequence of a path of discernment. In this discernment, the conscience of the concrete person plays a central role with regard to his real situation before God, his real possibilities, and his limits. That conscience, accompanied by a pastor and enlightened by the guidelines of the Church, is capable of an assessment that gives rise to a judgment, sufficient to discern regarding the possibility of access to communion.

Surely, determining personal culpability for past actions could be helped by a dialogue with a priest or other learned individual. Once again though, in such a setting, away from the distressing and mitigating factors which would encroach on a person’s freedom in an acute way sufficient for rendering that person less responsible than what mortal sin requires, it is not possible to choose to continue habitually in a “more uxorio” relationship with the non-spouse without mortal sin. Intending to continue choosing such acts, even if only because one foresees the impinging of one’s freedom, cannot be rendered less culpable merely on account of the difficulty of refraining from those acts or the goods which might be lost due to their omission – a person must really intend to try to avoid these acts. (Such a decision might be without grave guilt if the person has a mental illness, such as PTSD or split-personality disorder which would be carried into every situation, thus rendering the habitual presumption to continue “more uxorio” insufficiently free to constitute mortal sin.) What is even more inadmissible is the usurpation of a tribunal’s proper role or a contradiction of the judgment of a tribunal. This would undermine the judicial system of the Church, such that we would have a kind of canonical vigilantism.

Does this imply that a judgment can be given about one’s own state of grace? St. John Paul II stated that “the judgment of one’s state of grace obviously belongs only to the person involved, since it is a question of examining one’s conscience.” (“De gratiae statu, ut patet, iudicium solum ad singulos homines spectat, cum de conscientiae aestimatione agatur”: EdE 37b.) But it must be clarified that it is only a certain moral security, the only thing which someone can obtain before approaching to receive communion. It is never a certainty, however much one may be unaware of having violated a commandment. The Council of Trent defined that, looking at ourselves, we cannot be certain about our state of grace (cf. Session VI, chapter 9). We speak, then, of that minimal “moral security” that the person can obtain after a process of personal and pastoral discernment, which should not be based only on a single general norm.

To reiterate, this would only be relevant for private reception, not public reception.

Up to now, discernment about an attenuated culpability did not allow for removing consequences at the external or disciplinary level. The disciplinary consequences of the norm remained unaltered, because they were based only on an objective fault against an absolute norm. Francis proposes to go one step further. It is true that the general norm is not purely a discipline, but it is related to a theological truth, such as the union between Christ and the Church which is reflected in marriage. But sometimes “undue conclusions from particular theological considerations” (AL 2) are derived when they are translated into a rigid discipline that admits no discernment whatsoever. This is the point where Francis makes a change with respect to the previous praxis.

It must be asked: what specific change is being made? There is no change in law on this point, either in Amoris Laetitia, Mitis Iudex Dominus Iesus (where he actually did reform canon law on marriage), or any document of Pope Francis, nor is there a clear and authentic interpretation of canon law (such as would allow for a different application of c. 915, as St. John Paul II did with respect to allowing the divorced and civilly remarried publicly receiving Holy Communion if they were living in continence and were reasonably sure there could not be scandal taken), as has already been argued. I submit that until such is done, nothing can be presumed to have changed, either in legislation or its authentic interpretation.

PART III

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

The Dark Knight of the Soul: Fortitude in the Batman

Behold, a humorous essay I recently wrote for a moral theology class, with some slight edits. Enjoy!

Mr. Bruce Wayne had a troubled childhood. Not only did he lose his parents to a crazed gunman, but he also fell into a deep well full of bats. The former occasioned the inheritance of vast amounts of wealth, while the latter occasioned an intense case of chiroptophobia (fear of bats). Together, these effects would eventually lead him to undertake a massive bat-themed vigilante project which would dominate his life and cause a complicated set of benefits and drawbacks in Gotham City. The question is: whether the act of becoming the Batman was an act of true fortitude on the part of Bruce Wayne?

What is clear is that in Batman’s vigilante project there is matter for fortitude, namely, dangers of death. “Now fortitude is a virtue; and it is essential to virtue ever to tend to good; wherefore it is in order to pursue some good that man does not fly from the danger of death.” (1) Wayne, of course, is choosing to fly toward dangers of death, and literally at that. With countless thugs, gang leaders, and dastardly supervillains, Gotham is anything but safe; and this is not even to mention the means which Wayne adopts for fighting crime, which includes jumping off skyscrapers and careening in between all kinds of obstacles, supported by some mesh wings. He is doing battle with criminals who might kill him, in a way that might kill him. “Dangers of death occurring in battle” are the proper matter for fortitude, beyond lesser evils like bodily pain or the annoyance of standing in line at the DMV. (2)

It seems that Wayne might have gone to a vicious extreme in overcoming his own private chiroptophobia by becoming “half bat.” Yet there is really nothing to fear about bats in themselves, so to fear bats at all seems to be a case of timidity. This means that overcoming such a fear is a good thing to do. In facing his repressed traumatic experience of nearly dying in the well, which became so closely associated with the well’s bats, Wayne becoming Batman would only tend towards a vicious neurosis if his new bat-persona did not serve some purpose beyond itself. That is to say, if Wayne habitually dressed up like a bat in his own house and looked in the mirror, this would be disordered. Taking on the bat-persona for the sake of intimidating criminals, which is his primary motivation, is something else entirely.

Wayne does not become Flowerman or Butterflyman or Puppyman, he becomes Batman. Even if he had had traumatic experiences with flowers and butterflies and puppies, surely he would not want to deal with those memories in the same way. The idea of a vigilante qua bat (or alternatively qua spider) is simply terrifying, which is the point: it is an effective aid to fighting crime. This, however, does not necessarily make it prudent, as prudence means that justice and other virtues are not being violated. Here we will simply mention the possibility that vigilantism is unjustifiable in Gotham, given that there are good cops like Commissioner Gordon around. If Wayne had not considered this, or had not considered the physical risks involved, then the decision would be imprudent regardless of whether it is just. Becoming a vigilante virtuously requires serious counsel and an understanding of the principles of law. (3)

There are certain appearances of fearlessness and daring throughout the career of Batman, but one must wonder if this is merely a result of having mastered the fear of death during his time training in the mountains with the League of Shadows. On the contrary, Wayne goes to great lengths to protect himself, investing in the production and maintenance of extremely sophisticated protective devices, and this could exonerate him at least of fearlessness. Batman, supposing his project is just, certainly ought to fear death, not just for his own sake, seeing as life is a great good, but also for Gotham’s sake: “Death and whatever else can be inflicted by mortal man are not to be feared so that they make us forsake justice: but they are to be feared as hindering man in acts of virtue, either as regards himself, or as regards the progress he may cause in others.” (4) This is also part of why concealing his true identity is so important, for if it was widely known that Batman is Bruce Wayne, he would be easier to destroy.

As for magnanimity, Wayne already has great honors, insofar as honors accrue to a man of enormous wealth such as himself. Ironically, his public identity as a billionaire is a cover for what he really lives for privately, which is the accomplishment of great things like deposing crime bosses and deterring supervillains at great personal risk. He accepts the “unofficial honors” that come with such acts, but he does not care for them for their own sake, so he is not ambitious. He takes on the project to give the city of Gotham hope, which is where he refers the glory given to him as Batman. Therefore, Batman has a degree of magnanimity. (5) There is, however, an element of Wayne’s public life that is pusillanimous, as he purposefully distances himself from seeming great by being an arrogant, dishonest, quarrelsome womanizer. He could gain more honor publicly by being more virtuous, but he rightly fears that this could lead to the suspicion that he is Batman. Insofar as this component of concealing his nocturnal activities is vicious, it is neither magnanimous nor fortitudinous, as sins cannot be called acts of virtue.

The crime fighting skills of Wayne are second to none, and since he has ordered his life and vast wealth towards crime fighting without compromising his fortune or social status, he most certainly deserves to be ascribed the virtue of magnificence. For, “[It] belongs to magnificence not only to do something great, ‘doing’ (facere) being taken in the strict sense, but also to tend with the mind to the doing of great things.” (6) Since Wayne could do almost anything he wants on account of his wealth, the good use of which is the proper object of magnificence, his mind certainly tends with great force toward the accomplishment of masterful crime fighting. (7) Otherwise he would do whatever it is that other billionaires do.

To the question, whether Bruce Wayne’s choice to become Batman was an act of true fortitude, we answer is the affirmative, with two qualifications. The first is that the entire vigilante project is just, which is unclear. The second is that the artificial public persona taken on as part of the condition for the project, which can be assumed to have been part of the means from the start, is at least mildly vicious and therefore reduces the fortitudinous character of the choice.

(1) STh II-II q. 123 a. 5 ans.

(2) Ibid.

(3) Namely, gnome and epikeia would be required. See STh II-II q. 51 a. 4; q. 120 a. 1, a. 2

(4) STh II-II q. 126 a. 1 rep. 2

(5) That his voice is extraordinarily deep is not a sign of greater magnanimity, it is merely another component of his intimidation, as well as a way to conceal his public identity. Furthermore, that he does not walk slowly to accomplish his tasks does not imply a lack of magnanimity, as the particular kind of great things which he seeks to accomplish demand agility.

(6) STh II-II q. 134 a. 2 rep. 2

(7) STh II-II q. 134 a. 2

 

Post by: Eamonn Clark