Between Legalism and Lawlessness: The Relationship between Pope and Bishops

As promised some time ago, today I am sharing—for the first time online—the text of Dr. Joseph Shaw’s Foreword to the new anthology Unresolved Tensions in Papal-Episcopal Relations (Os Justi Press, 2024). Dr. Shaw is the President of the Latin Mass Society of England & Wales, and the Chairman of the International Una Voce Federation. This major text by him is worth careful consideration and makes an excellent opening to an insightful collection of essays occasioned by the deposition of Bishop Joseph Strickland. Footnote references have been removed for this online version but may, of course, be found in the book.—PAK

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The Catholic Church, in addition to Word, sacrament, and creed, is also a community of law. Canon law orders Church life, harmonizes its institutions and procedures, and guarantees the rights of believers.

These are the words of “Demos II,” an anonymous cardinal who circulated a memorandum to members of the College of Cardinals regarding the principles that should guide them in a future conclave. They are a statement of the obvious, but this obvious truth is in danger of being forgotten by Catholics with a wide range of views on other matters. One might even say, in Aristotle’s phrase, that it is evident in itself, but not evident to us.

The present collection of writings is an attempt to make this truth evident to Catholics once more, to reiterate and clarify its status as evident. We are grappling with a problem that has been creeping up on the Church for centuries, and yet has received inadequate attention from theologians: not just the relationship between the pope and bishops, but the relationship between the pope and law.

Until recently, it was commonplace to hear Catholic theologians and commentators who regard themselves as “progressive” dismiss the “hyperpapalism” of some historic theological schools and the ambitious claims of popes such as Innocent III, Pius V, and Pius X. On the old, progressive narrative, the Second Vatican Council rightly put an end to this self-aggrandizement, and having relinquished the papal tiara and gestatorial chair, popes must now accept that the bishops of the world are their co-workers in the vineyard of the Lord, with their own share in magisterial authority and a mandate directly from God. Only such a conception of the dignity of the “local church” (as they like to call each diocese) would be acceptable to their ecumenical “dialogue partners” among the Protestants and Orthodox. The next items on the liberal agenda for the relationship between pope and bishops were the restoration of some version of the ancient custom of bishops being elected by the clergy of a diocese—and perhaps by the laity as well—and the idea that the pope has a primacy not of monarchical power, but merely of respect and love.

There was always a tension in this position. Although progressives like to suggest that papal prerogatives had been exaggerated, in theory or in practice, by the Councils of Trent and Vatican I, Vatican II set in motion an exercise of papal power the like of which had never been seen before in the annals of the Church: a root and branch reform that left almost nothing untouched, from the position of the tabernacle in tens of thousands of churches to the formula to be used to bless a rosary, and from the dress of female religious to the relationship between Church and state in the constitutions of Catholic countries.

Some kind of reform was mandated by the Council, certainly, but the Council’s instructions were for the most part impressionistic, and it was clearly impractical for the Council as an institution to oversee their implementation. The sweeping reforms were actually carried out by commissions of “experts,” of varying quality, appointed by and answerable to the pope, and their proposals were implemented by papal legislation. The postconciliar popes—for the reforms were far from complete at the death of Pope Paul VI in 1978—remade the Church, sometimes cleaving faithfully to Vatican II, sometimes going far beyond it, and occasionally directly contradicting it.

The most famous example of the last phenomenon concerns the place of Latin in the liturgy. The Council had declared that “the use of the Latin language is to be preserved,” a statement that was explained in the course of the debate by the official “relator” as meaning that Mass could never be celebrated wholly in the vernacular; and, equipped with this understanding, the bishops voted in favor of the text.

This, however, as everyone quickly experienced, is not at all what happened. Bishops around the world felt helpless in the face of a new array of legislation—their only remaining discretion, to be exercised at a collective level, being the timing of when some of the changes would come into force. Even in this regard, Cardinal John Heenan of Westminster, England, complained that delay was impossible: “Most of us would be content to delay changes but the mood of the Council compels us to act. Otherwise the attack from our own people would become ever more bitter.” This is the apotheosis of the model of a bishop as “the pope’s vicar”—a model decisively rejected by the very Council in whose name the reforms were being carried out.

However, progressives balanced their ruthless use of papal authority with a large-scale campaign of disobedience to the Holy See, which started even before the liturgical reform was fully in place. The defiance of papal authority reached an early crescendo in response to Pope Paul VI’s 1968 encyclical reaffirming the Church’s bimillennial teaching on contraception, Humanae Vitae, but it extended far beyond that issue. As the decades passed, liberal bishops would boast that papal directives, such as those on liturgical abuses, didn’t touch their desks on the way to the waste-paper basket. The long period during which the Code of Canon Law was being revised gave a new sense to the term “vacatio legis”: it was as if the law had gone on holiday, since the old Code was clearly moot and no one could know what the new one would say. By the time the new Code finally emerged, in 1983, the idea of taking Canon Law seriously seemed like an attitude belonging to a long-dead age.

However, the antinomianism of the postconciliar period has not, in general, been to the advantage of bishops. On the contrary, their room for maneuver has been drastically reduced by a novel institution that was supposed to manifest their restored role in the life of the Church: the episcopal conference. Conferences quickly set up secretariats; its departments are headed by bishops, but bishops are busy men and much of their work inevitably devolves to committees, often composed of laity. I will never forget dealing with one such committee, of the Conference of England and Wales, whose lay members were clearly under the impression that for practical purposes they were the Conference: that their decisions were not mere advice to the bishops, but were actually decisions of the Conference, with all the weight this implied.

Bishops can fare little better than laity in dealing with this bureaucratic “blob.” In 2007, Bishop Patrick O’Donahue of Lancaster in England published a booklet for the many Catholic schools in his diocese, Fit for Mission? Schools. He was criticized for this on the basis that education was not his responsibility within the Bishops’ Conference. Since every area of Catholic life has its own conference department, this clearly leaves no area in which a bishop can do more than meekly implement a policy decided by a committee, of which he is probably not a member. In this way, a bishop becomes not so much the vicar of the pope as a dogsbody commissioned to carry out the wishes of unaccountable administrators.

Conferences are sometimes given a decision to make (by a two-thirds majority) by the Holy See, but they are not institutions of divine law, and have no authority of themselves to make rules that bind their members. The President of a conference may not act for its members if even one of them disagrees (see can. 455 §4). Bishop O’Donoghue could ignore these complaints, and did so, but he paid a price. He was identified as an outlier among the Catholic bishops, even a dissident. When he was criticized by a politician, not one of his brother bishops defended him. The recommendations he made to his own schools, which ran counter both to the direction of government policy and to the attitude of the conference’s educational organ, the Catholic Education Service, could be dismissed by the educational establishment as not representing the official Catholic position. This undermined his influence within his own diocese; his “lack of collegiality” might, if exhibited today, even mark him out as a target for removal from office.

The oscillation of the Catholic progressive tendency between anarchism and authoritarianism is not as surprising as it sounds. As Anne Roche Muggeridge noted, referring to James Hitchcock’s The Decline and Fall of Radical Catholicism, “to survive in power over a large number of unwilling subjects who still adhere to the older order, a revolution is forced to maintain a more rigid and punitive orthodoxy that the one it is trying to supplant.” The role of the bishops’ conference exemplifies the fact that the structure of the Church established by her divine Founder, and elaborated by canon law and tradition—in short, law—is today not the source of real power in the Church. When law loses its proper role in ordering a society, it is replaced not by an increase of freedom held by individuals, but by the influence of people able to wield power deriving from other sources.

In an institution like the Church, this comes down to things like the power of patronage and social networks. Annoy the wrong people and your life becomes very difficult, not because you have exceeded your legal prerogatives, but because no one will back you up or help you out, in public or behind the scenes. Instead, you will find people hindering, confusing, and undermining your plans. Cardinal Heenan was frightened of being publicly criticized by Catholic intellectuals; Bishop O’Donoghue experienced the loneliness of not being supported by his brother bishops.

Similarly, we hear anecdotally that the liturgically conservative Bishop William Gordon Wheeler of Leeds is said to have remarked that the other bishops “rolled their eyes” whenever he spoke up in meetings. More recently, it is said that certain bishops at one time had to sit on their own at meals, at episcopal gatherings, because the other bishops wouldn’t sit next to them. Such things may seem trivial, but it becomes serious if a bishop’s initiatives are publicly opposed by a small but noisy clique of laity and priests, with their brother bishops’ quiet approval. The media and local public figures are unlikely to come to their rescue, and such bishops can look as though they have become incapable of governing their dioceses. If they then get a visit from the Nuncio to indicate that the pope would welcome a letter of resignation, this may seem to remove the last major element of moral support that they have. Their resignation becomes inevitable for reasons that are psychological, political, and social.

This kind of pressure has sometimes been employed to bring about good results, such as the removal of criminals from office; yet even in these cases it is problematic. Canonical trials can be somewhat opaque, but the alternative—a demand for a resignation which may or may not have been preceded by some kind of non-public investigation, visitation, or administrative procedure—hides the process completely not only from the public but from the accuser (in abuse cases, for example), and even from the accused. Nearly all the principles of natural justice are thereby ignored: the testing of witnesses; the accused having a genuine opportunity to defend himself; the making public of the evidence; even the revelation of the nature of the alleged crimes. The process results in a decision that may appear overly harsh or strangely lenient, but it is impossible for outsiders to tell how it really sits in relation to the facts.

Painting by Fernando Gomez Balbontin (source)

We are living in an age when it is almost unheard-of for justice to be seen to be done in the Church. It is some satisfaction, to be sure, to see criminal clerics departing the scene, on the occasions when this does happen, but such a process does not inspire confidence in the system.

There is another reason, in addition to justice and transparency, why the extra-legal use of power is problematic. Like the One Ring in Tolkien’s epic, it tends to corrupt the user, thanks to the lack of checks, balances, and proper procedures. But even leaving that problem aside, it is also like the One Ring in that it is difficult to use this power for good. The reason for this has already been hinted at in my examples: however skilfully it may be wielded, the system of social pressure that has been substituted for legal process in the Church inevitably leans in a certain ideological direction. It is easy to bring social pressure to bear on a bishop (or a priest) not to oppose the convictions of an aggressively anti-Catholic secular elite. He can even be told that his positions are correct but that he has “gone about promoting them in the wrong way” and needs to step aside for the good of the Church. It is much more difficult to shame a bishop or priest into going quietly into retirement for downplaying the seriousness of the secular elite’s favourite sins.

This reality goes a long way towards explaining the extraordinary difficulty experienced by successive popes in dealing effectively with powerful heterodox bishops, sometimes even when serious effort is expended in the matter, from Archbishop Raymond Hunthausen of Seattle in the early 1980s to the ongoing case of former Cardinal McCarrick today. This problem is paralleled by the Holy See’s difficulty in dealing with problems in American seminaries or female religious orders, investigations into which concluded in 1986 and 2014 respectively, and the failure to deal decisively with the Legionaries of Christ in 2019.

Bishop Strickland offering a Pontifical Mass

By contrast, Bishop Strickland is only the most recent case of the instant dismissal of an essentially conservative bishop, for misdemeanours that clearly don’t rise to the level of canonical crime. Nor is this a phenomenon limited to the present pontificate. Due to the objections of local progressive Catholics, Bishop Wolfgang Haas of Chur, Switzerland, was moved sideways by Pope John Paul II in 1997, who created a new diocese in Vaduz, Liechtenstein, to receive him. Similarly, Gerhard Wagner, appointed auxiliary bishop of Linz in Austria in 2009 by Pope Benedict XVI, turned the post down only two weeks later, due to intense media pressure.

These dynamics need to be understood better by conservative Catholic defenders of arbitrary papal power. In the current state of the Church and the world, the Nuncio’s tap on the shoulder is highly effective in getting rid of orthodox bishops who have run into opposition in their dioceses. With sufficient force of character, it can be made to work against bishops deeply implicated in clerical abuse or financial scandals, particularly if the press or the secular courts have become involved. It can be made to work after years of patient effort against outrageously heterodox bishops such as Bill Morris of Toowoomba, Australia, who called for the ordination of women in 2006, received an apostolic visitation in 2007, and resigned in 2011. But it is almost useless as a way of removing those who harm the Church by being too closely aligned with secular opinion on moral issues.

This may seem difficult to understand, as the claim that is being advanced by the more authoritarian conservatives is that the Nuncio’s suggestion has real legal force, that it is not just a matter of social pressure. My point is not that it lacks legal validity—that argument will be made at length in the pages of this book—but simply that its effectiveness derives from social pressure. It will be obeyed by those vulnerable to this pressure, because of some combination of factors such as a personal feeling of obligation to the pope, ostracism by fellow bishops, or attacks in the local press or on social media. Those buoyed up by the support of liberal elites will be emboldened to resist it, and without recourse to proper legal procedure—which has, in the meantime, become almost unthinkable—a conservative pope may find he has no other cards left to play.

This last point is worth underlining: that the use of proper legal procedures against bishops by the Holy See has become almost unthinkable. If the law of the Church is to function again, reforms are needed: the efficiency, stability, transparency, and impartiality of the law must be re-established; its institutions and personnel must be renewed; and mechanisms must be created to make the law useful, not only as a tool of control by the Holy See but as a way for subordinates, including the laity, to vindicate their rights. No such reforms will have credibility, however, unless the pope is seen not only as a legislator, but also as a subject of law. Though he cannot be judged, he should still feel the obligation that law lays upon him, and give law the respect it deserves for the good of the Church. (This point is brought out especially well in chapter 15 of this [present] book.)

The extra-legal exercise of power is a constant temptation, and indeed informal methods may often be proportionate in bringing about good results. Nevertheless, for serious matters—and the deposition of a bishop is nothing if not serious—a fair and open canonical procedure, concluding with the condemnation and sentencing of the accused, is far more difficult to fabricate against the good, and far more difficult for the bad to resist.

(For an overview of this book, go here; you may order it from the publisher here.)