by Michael Davies

c. The Supreme Jurisdictional Power of the Pope

The First Vatican Council taught infallibly that the Pope possesses full and supreme power of jurisdiction over the whole Church, not merely in matters of faith and morals, but also in Church discipline and in the government of the Church. He is the supreme lawgiver of the Church. He can be judged by no one, Prima Sedes a nemine iudicatur. As the supreme lawgiver he is not legally bound by ecclesiastical decisions and usages but by divine law alone. He has full authority to interpret, alter and abrogate both his own laws and those established by his predecessors. He has the same plenitude of power as they enjoyed, and stands in the same relation to their laws as to those which he himself has decreed. This power is not arbitrary, and, in consonance with its purpose should be used for the building up of the Mystical Body, and not for its destruction.

In the Old Code of Canon Law it was forbidden for Catholics to take part in the divine worship of non­Catholics. This is an ecclesiastical and not a divine law. The first Christians continued to take part in the worship of the synagogue, and there were circumstances in which Catholics were permitted to take part in non­Catholic worship prior to Vatican II. Canon 1258 of the Old Code listed them as "funerals, weddings, and other similar celebrations." The interpretation given to "similar celebrations" varied widely, depending on the local bishop. It was stipulated that attendance at such services should be "passive".

Canon 2316 of the Old Code condemned as suspect of heresy those who participate in non­Catholic worship contrary to the provisions of Canon 1258. The procedure for dealing with a cleric suspected of heresy was specified in Canon 2315. He was to receive two admonitions, then be suspended a divinis, and, if he had not amended his life within a full six months from the time the penalty was incurred, he was subject to the penalties for heresy. This would not involve excommunication latae sententiae (i.e. ipso facto), but would require the pronouncement of the sentence by the appropriate authority, ferendae sententiae. This authority must be a judge or a superior.

It should be evident immediately that the Roman Pontiff could neither be judged nor sentenced under the terms of this Canon as he has no human superior competent to judge him, Prima sedes a nemine iudicatur. Anyone in the Church who possessed the temerity to pass judgement on the Pope, and declare him a heretic, would be acting beyond the limits of his authority, ultra vires, and would himself become liable to canonical censure. It is equally evident that, as the Pope is not bound by ecclesiastical laws in the same way as his subjects, he would have the right to interpret this canon in accordance with his own wishes, and broaden the grounds for participating in non­Catholic worship, e.g. to facilitate the unity of Christians or to bring about world peace. As this would be a prudential judgement he could certainly be mistaken, and his action could bring harm to the Church. There is no guarantee that simply because a pope is acting within his legal rights he is acting prudently and in a manner that is beneficial to the Church. As has already been explained, it would be for his successors to make any judgement on his decisions and to pronounce any censures they deemed necessary.

However, and this is a matter of paramount importance, since 1983 the Old Code of Canon Law is no longer in force. Those of us who belong to the Roman Rite are bound by the New Code, no matter however inferior we may think it to the old one. The Second Vatican Council taught that there can be occasions on which worship with non­Catholics can bring benefits, an expression of opinion with which we are quite free to disagree. At the conclusion of the Council Pope Paul VI took part in a joint service with the non­Catholic observers, an action which we are perfectly entitled to deplore. The New Code of Canon Law, the only one which applies in the Church today, simply states that a person guilty of prohibited participation in the worship of non­Catholics is to be punished with a just penalty. The offence no longer involves ipso facto suspicion of heresy. Once again we may deplore this change, but it does not alter the fact that this is the present law of the Church, and it is pointless to attempt to apply laws which no longer exist, even to persons who would have been subject to them when they were in force. But, in point of fact, the Pope was not subject to the provisions of Canon 2316 even under the Old Code.

The visibility of the Church is an essential element of its constitution. It has been made clear that the Church is a visible, hierarchically governed society with a visible head, the Roman Pontiff. Every society must have laws which govern it, and the legal code recognized by every legitimate authority within the Church, and in all the courts of the Church, is the New Code. It would be a contradiction in terms to claim to belong to the Catholic Church, but to be regulated not by its universally accepted laws, promulgated validly by its visible head, but by another set of laws recognized neither by that visible head nor by a single ecclesiastical court of any status anywhere within the Church.

We are, then, entitled to deplore the action of the conciliar popes in worshipping with non­Catholics as this is undoubtedly leading to indifferentism. We can, however, at least be thankful that they have not taken part in the official liturgical worship of these religions. We are entitled to bring our misgivings to the Pope's attention, and, given the gravity of the matter, even to make them public in a respectful manner. We have a duty to pray that the practice will cease and that the New Code of Canon Law will be suitably amended on the lines of the Old Code. We are not entitled to behave as if the Old Code were still in force, and we are not entitled to pass judgements upon the Roman Pontiff in a matter that concerns only ecclesiastical law. It is also possible that his actions are prompted by no more than misplaced ecumenical enthusiasm and a desire to show the Church to those outside her boundaries in as favourable a light as possible. The Catholic Encyclopedia warns us in respect of anyone we might suspect of heresy: "It is not for man, but for Him Who searches the reins and heart, to sit in judgement on the guilt which attaches to an heretical conscience."

There may well be Catholics who have an unshakeable personal conviction that the Pope is a heretic. They suspect him of heresy. But to be suspect of heresy in the canonical sense has a very specific legal meaning. There is no case whatsoever for alleging that any of the conciliar popes have been suspect of heresy in the very restricted meaning of the term in the Old and New Codes of Canon Law.

a. Pertinacity

b. Censures

c. The Supreme Jurisdictional Power of the Pope

d. The Conciliar Popes

It should now be apparent that there is no case whatsoever for claiming that any of the conciliar popes have lost their office as a result of heresy. Anyone wishing to dispute this assertion would need to state the doctrines de fide divina et catholica which any of these popes are alleged to have rejected pertinaciously. There is not one instance which comes remotely within this category. The nearest one can come to a formal contradiction between preconciliar and post­conciliar teaching is the subject of religious liberty. It has yet to be shown how they can be reconciled. It is possible that the Magisterium will eventually have to present either a correction or at least a clarification of the teaching of Vatican II on this subject. Neither the pre­conciliar teaching nor that of the Council on religious liberty comes within the category of de fide divina et catholica, and so the question of formal heresy does not arise.

It should also be noted that the conciliar popes (Pope John XXIII and his successors) have upheld many doctrines which have come under attack by neo­Modernists. The Credo of Pope Paul VI, his encyclicals Mysterium Fidei and Humanae Vitae, and the Holy Thursday letters of Pope John Paul II are typical examples. The Congregation for the Doctrine of the Faith has issued a stream of documents upholding orthodoxy of which many Catholics appear unaware. Justice demands that we judge the orthodoxy of any Catholic by the totality of his published opinions, and not solely by particular actions or statements which appear suspect or ambiguous.

On the other hand, any objective assessment of the conciliar pontificates must conclude that while orthodox teaching may have been upheld in theory, virtually nothing has been done to uphold it in practice. Cases such as the disciplining of Hans Küng and Charles Curran are not only few and far between, but too little and too late. However, weakness in defending the faith and disciplining those who undermine it, and ill considered ecumenical gestures, do not put anyone, least of all the Pope, into the category of formal heretic, even though the practical effect of papal weakness and imprudence serves in itself to undermine the faith and blur the distinction between truth and falsehood. The higher the ecclesiastical office the greater the responsibility, and the greater the culpability, for the loss of souls. No, shepherd can escape the final responsibility for the members of his flock. It will be for future popes to make the necessary judgement on their conciliar predecessors, and to publish any censures they deem fitting.

While, as has been stated, the faithful (whatever their ecclesiastical rank) have no right to judge the Pope, they have every right, according to their degree of competence, to bring to his attention any aspects of his pontificate which they consider harmful to the Church. They also have the right to refuse to obey him if they are convinced in conscience that a particular command will harm rather than build up the Mystical Body. Cardinal Newman stressed the fact that if a man is convinced that "what his superior commands is displeasing to God, he is bound not to obey." He accepted that "the word 'superior' certainly includes the Pope." But he added that it must always be our initial presumption that the Pope is right, and that we should not so much as consider disobeying him unless we had reached the conclusion that to obey him would be a sin, after examining the question with serious thought, prayer, and all available means of arriving at a right judgement.

The doctrine of the Church's indefectibility is not weakened in any way by the fact that there have been a number of popes whose pontificates have been gravely harmful to the Church. These popes never attempted to impose upon the Church heretical teaching as of divine and Catholic faith. The survival of the Church despite the failings of some of those who have occupied the highest positions in her hierarchy is, as Hilaire Belloc noted, one of the most striking proofs of her divine nature. There could be no more eloquent testimony to her indefectibility.

© 1997 Michael Davies.

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Last modified 27th October, 1997, by David Joyce.