The National Catholic Review
The Editors

The recent investigation and trial of the theologian Jacques Dupuis, S.J., alerted Catholics and others to the judicial methods of the Vatican Congregation for the Doctrine of the Faith (Am., 3/12, Signs of the Times). Although Father Dupuis was cleared of any error, the entire episode raises questions about C.D.F. procedures. Do they respect human rights and modern notions of due process?

Father Dupuis joins a long list of eminent Catholic theologians who have been harassed by the congregation: Leonardo Boff, Yves Congar, Bernard Häring, Henri de Lubac, Richard McCormick, John Courtney Murray, Karl Rahner, Pierre Teilhard de Chardin, Edward Schillebeeckx and more. With such a track record, one would think the congregation would learn some humility and be more reticent to repeat the mistakes of the past. The congregation, however, has gone full speed ahead with its investigations of theologians around the world.

Under current Vatican rules, the congregation is entitled to examine the writings of any author whose doctrine appears erroneous or dangerous. Its inquiry proceeds in two stages. The first is carried out in total secrecy. The congregation is both the investigator and the prosecutor; it appoints a defender and acts as judge. The author is left uninformed while the work of a lifetime may hang in the balance. If he is absolved, the case is closed.

If, however, the judges find his opinions erroneous or dangerous, the second stage begins. The congregation notifies all interested ordinaries (bishops and other religious superiors), departments of the Holy See and the author himself. Since the media usually learn of the judgment, the author’s reputation is stained, but he is impotent to do anything about it since he is often silenced and told not to publicly defend himself, write or teach. He is instructed to correct his views or to clarify his texts to the congregation’s satisfaction. Although he can defend himself in writing to the congregation, he has no right to appear before his judges, still less to confront his accusers. If he asks, the congregation may grant him an audience with a designated official, but it is not required to do so. It may or may not allow him to have an adviser at his side, but it will not permit a lawyer to defend him. At the end of the process, the congregation’s judgment is final, with no appeal permitted, on the ground that the office kept the pope informed throughout and its decision was approved by him. (The fact that the pope signed three different versions of the C.D.F.’s judgment against Dupuis as the congregation repeatedly revised its views makes one wonder about the usefulness of this procedure.)

How does this process stand up to the criteria of modern (or even classical) jurisprudence?

First, in a constitutionally grounded legal system that respects human rights, legal violations are precisely defined; otherwise the rule of law cedes its place to the rule of man. The terms erroneous and dangerous are too broad and too vague for comfort. Only totalitarian states use such expressions. There is a difference between denying the faith and being in error on some minor issue. There is also a difference between being truly dangerous and being judged dangerous by some fearful people.

Second, natural equity, a concept already familiar in ancient Greece and Rome, demands that the accused be heard before, not after, judgment is passed. In addition, Christian charity forbids the reckless destruction of a person’s reputation. Moreover, giving the functions of investigator, prosecutor, grand jury, judge and jury to one office fails to provide the checks and balances modern society has learned to value. Finally, no human court is immune to mistake. Appeals must be allowed.

The congregation’s inquisitional procedures are indefensible. The church should of course safeguard its faith, but not by means unworthy of that faith. Christians have suffered in many countries at the hands of judges who in the name of national security wanted to extirpate erroneous or dangerous convictions. Often, the judges deliberated in secret and reached a verdict without giving a fair hearing to the accused person. Then they denied appeal. Rightly, the church protested. But the church’s defense of human rights will not be credible unless it practices what it preaches.

The inquisitorial methods of the Congregation for the Doctrine of the Faith are out of date and do not respect human rights. They should be dismantled without delay. There is enough intelligence in the Catholic community, created and sustained by God’s Spirit, to find better ways to safeguard the faith. Pope John Paul II has quite bravely apologized for the treatment of Galileo and other sins of the church, but along with confession should come a firm purpose of amendment.

This editorial was selected by the Catholic Press Association as the best editorial in 2001.

Comments

Larry N. Lorenzoni, S.D.B. | 1/24/2007 - 1:55pm
A deafening chorus of anonymous amens must have greeted your editorial “Due Process in the Church” (4/9). It echoed so well the statement made to reporters in Rome on Feb. 27 by Jacques Dupuis, S.J.: “The Vatican Congregation for the Doctrine of the Faith followed faithfully its norms for investigating theologians. Of course it can be asked whether these norms are justified. The relationship between the central doctrinal authority of the Church and the thought of many, many theologians today is a big problem” (Origins, 3/8).

I have often cringed at statements from the C.D.F., in spite of my deep personal esteem for Cardinal Ratzinger, the quintessence of gentleness and affability, and in spite of the fact that I know well his good secretary, my S.D.B. confrere.

This, however, triggers again a nagging and disturbing thought: the magisterium does not claim to have the world’s leading theologians at its service. Otherwise the C.D.F. would be the greatest theological faculty in the world. But its theologians have something the others do not have: the pope’s ear and the power to censure their colleagues.

The question raised by Father Dupuis and by your editorial is serious. We are all in your debt for the light your reasoned reflections have brought to a topic of such current practical import.

(Rev.) Leonard F. Villa | 1/24/2007 - 1:24pm
With all due respect, I found your editorial criticism of the Congregation for the Doctrine of the Faith absolute nonsense (4/9). This congregation now bends over backward to allow due process for theologians whose work is being questioned. This is why it can take years before the congregation renders decisions on theologians—precisely because of the back and forth consultation that goes on.

Secular constitutional law should not be the standard of the church, as you assert. Secular constitutional law is governed by a political standard often beholden to compromise and expediency. The C.D.F., on the other hand, exists to assist the pope in his teaching office safeguarding the truth of the Catholic faith. The standard is objective truth.

Any Catholic theologian worth the name ought to have St. Ignatius Loyola’s attitude: humble submission to Christ’s church.

Stephen Patton | 1/24/2007 - 1:07pm
As a former criminal trial and appellate lawyer I found your editorial, “Due Process in the Church” (4/9), flawed in several respects.

You criticize the Congregation for the Doctrine of the Faith because the first part of its two-stage inquiry is held “in total secrecy.” It is typical that preliminary grand jury proceedings take place behind closed doors. It is not yet time to call the accused to make a defense. It is a process in which the state asks itself whether it has sufficient evidence to proceed against one of its citizens. “Judgment” has not yet been passed at this stage, and many investigations are dropped as a result of it. Furthermore, those parties excluded from this secret process include the press, precisely to protect the reputation of the prospective defendant.

You criticize the C.D.F. for giving the accused the right only to respond in writing. It is routine both at trial and appellate levels for judges to request that arguments, especially on technical matters, be submitted first and foremost in written briefs. They retain discretion to ask for subsequent clarification by way of oral argument. Since the subject matter of a C.D.F. investigation is almost always a written document, and the issues are technical in nature, written arguments would be normative. The C.D.F. protects a theologian’s most important right: the opportunity to be heard.

Are the terms “erroneous” and “dangerous” “too broad and too vague for comfort”? There are many such general terms in criminal law, like “reasonable doubt,” “threatening manner,” “malice” and so forth, that a judge or jury must apply to specific situations They are flexible, not “totalitarian” terms. I suspect that America does not so much have alternative terms in mind as it is troubled by the fact that it is the C.D.F. and not America that must apply them.

Should there be a right to appeal the C.D.F.’s decisions? To whom does America propose appeals be made when the pope himself has already said, in effect, that the C.D.F. is an extension of his own office?

Finally, America characterizes the C.D.F.’s procedures as “indefensible.” Imagine America’s response if the C.D.F. were to describe a theologian’s opinions with such a term.

Thomas A. Shannon | 1/24/2007 - 1:05pm
Thank you for your editorial “Due Process in the Church” and the “Way of Salvation” by Francis Sullivan, S.J., (4/9). I am pleased by your editorial stand on the inadequacies of the procedures of the Congregation for the Doctrine of the Faith. These procedures contribute to creating an atmosphere of suspicion and repression in the church. They also contribute to the centralization of power (which is obviously not the same as authority) in the papacy and some curial offices.

The history of theology is a history of different schools and opinions and sustained arguments over the meaning of the truths of the faith and attempts to articulate them in one’s culture and relevant philosophical frameworks. It is clear that some arguments and positions are better than others and that some are flat-out wrong. But it is also clear that an assumption of an ahistorical and monolithic understanding of truth surrounded by indefensible procedures whose purpose is to guard that truth is a poor way to conduct business. Peer review among theologians has historically served as a rather effective way of evaluating a particular position. Unfortunately, the C.D.F. seems to think that the only appropriate peers are curial.

For those concerned about the application of obtaining the mandatum under Ex Corde Ecclesiae, the guidelines under which the C.D.F. conducts business and the way it treats those under investigation provide a most unfortunate precedent.

(Rev.) Aldo J. Tos | 1/24/2007 - 12:40pm
The editorial “Due Process in the Church” (4/9) is on the mark! To say that the tactics of the Vatican Congregation for the Doctrine of the Faith concerning the investigation of theologians is inquisitorial is backed up by evidence. To defend them contradicts basic elements of justice and charity. They offend the rights of the human person, whose dignity is taught and defended in papal and other magisterial pronouncements.

Those who use and defend the present methods must live in an unreal world, protected by the fortress symbols of the ancient Holy Office and its procedures. They seem to be unaware of how their tactics and decisions negatively influence the pastoral mission of the church and the propagation of the faith, particularly in countries and communities of intelligent, thinking, faithful Catholics and others. They seem not to realize how their methods are perceived as contradicting the search for and defense of truth in a world that has generally moved from the rule of absolutist rulers who imposed their own univocal visions and versions.

Yes, the methods used toward theologians mentioned in your editorial and others violate the criteria of modern and classical jurisprudence. They also more seriously offend the Gospel of Jesus Christ. They are obstacles to the proclamation and reception of the Gospel, especially in societies like ours, where respect for the person should include freedom and dialogue in the search for truth and its acceptance.

(Rev.) James E. Sullivan | 1/24/2007 - 12:41pm
Congratulations on your very honest and courageous editorial “Due Process in the Church” (4/9), in which you review and regret as “indefensible” the “inquisitional procedures” of the Congregation for the Doctrine of the Faith—a process in which the C.D.F. is “the investigator, the prosecutor, grand jury, judge and jury.” For the Vatican, which preaches constantly that all institutions must respect human rights, its own lack of due process and its demeaning treatment of our theologians is an absolute disgrace.

Even if we grant, as seems certainly true, that Cardinal Ratzinger is a sincere man who is anxious to defend the integrity of the faith, his method of rushing “roughshod” over the rights and the reputation of good men and women is not only cruel but completely unnecessary. If any Catholic theologian writes something contrary to the faith, there are many fine, faithful theologians who will soon rush in to question his/her reasoning and conclusions. When the C.D.F. jumps in precipitously to fight any questionable teaching, it is like using a cannon to kill a fly. It’s overkill, and good, sincere people get crushed.

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