The draft guidelines represent some unfinished business in the wake of the bishops’ 223-to-31 approval in November 1999 of The Application of Ex Corde Ecclesiae for the United States. The Application provided that after its approval, “a detailed procedure will be developed outlining the process of requesting and granting (or withdrawing) the mandatum” (Particular Norms, Art. 4.4.e.iv). The U.S. Application received the required recognitio from the Vatican’s Congregation for Bishops in May 2000 and was promulgated in June by the N.C.C.B. president, Bishop Joseph Fiorenza, who then appointed the Pilarczyk ad hoc committee on the mandatum.
Ever since the term was first used two decades ago in the context of the teaching of theology, the mandatum has been a neuralgic issue for theologians and university leaders. Canon 812 of the 1983 Code of Canon Law provides as follows: “Those who teach theological disciplines in any institutes of higher studies whatsoever must have a mandate from the competent ecclesiastical authority.” On this subject the 1917 code in one respect was more restrictive and in another left greater discretion to the local bishop. The former code treated Catholic universities in the same context as that of elementary and secondary schools and gave to local ordinaries, in Canon 1381, 3, the right (but not the obligation) of approving teachers of religion and, for reasons of religion and morals, requiring that they be removed.
Catholic universities are acknowledged by the 1983 code to be different from schools and from ecclesiastical universities and faculties. Separate chapters of the code treat each of the three categories of educational institution. The quality distinguishing Catholic universities from schools is the autonomy of higher education. University statutes, for example, determine how professors are appointed (Canon 810, 1), but the local ordinary has the right to appoint or approve religion teachers in lower-level schools (Canon 805).
Ecclesiastical faculties are rare in the United States. The degrees they grant are a prerequisite for holding certain church offices. Because they teach in the church’s name, their professors must have a canonical mission from the ecclesiastical chancellor of the institution. Earlier drafts of the 1983 code required this same missio canonica of theology teachers in what they referred to as “Catholic” (not ecclesiastical) universities, but the revision commission thought “mandate” a better term in this context and used it in the canon’s final version. The meaning of “mandate” in Canon 812, however, appears different from its denotation elsewhere in the code. In other contexts, the one with a mandate acts as the delegate of the one who granted it. The Second Vatican Council’s “Decree on the Laity” (No. 24), however, makes a distinction between mission and mandate that may be relevant here: lay holders of a mission may fulfill certain pastoral functions that are proper to the hierarchy, while through a mandate the hierarchy associates itself with actions that lay persons can perform in their own name.
Ex Corde Ecclesiae, John Paul II’s 1990 apostolic constitution on Catholic universities, mentioned the mandate only in passing: “Catholic theologians, aware that they fulfill a mandate received from the Church, are to be faithful to the Magisterium of the Church as the authentic interpreter of Sacred Scripture and Sacred Tradition” (General Norms, Art. 4, 3). Charged by the Congregation of Catholic Education to include particular norms concerning the mandate, an N.C.C.B. subcommittee of four canonist-bishops drafted the U.S. Application. They studied available commentary on Canon 812 and combined it with their own ingenuity to interpret what they preferred to call by its Latin name: mandatum. Their text passed muster with three Vatican congregations and provided the basis for the guidelines drafted by the Pilarczyk committee.
Here are the guidelines’ highlights:
The title, Guidelines Concerning the Academic Mandatum in Catholic Universities, restricts its application to theology teachers in Catholic institutions of higher learning, without reference to any obligation of counterparts in other institutions.
The guidelines will have the force of law only when they repeat an already existing norm. They will require no Vatican review.
They restate the Application’s understanding of the mandatum: the professor of theological disciplines is acknowledged by church authority as one who teaches within the full communion of the Catholic Church with the commitment and responsibility to teach authentic Catholic doctrine and to refrain from putting forth as Catholic teaching anything contrary to the church’s magisterium.
Since canon law applies only to Catholics, only they are required to have a mandatum.
Occasional lectures, preaching and counseling are not included within the scope of the mandatum.
Theological disciplines include Sacred Scripture; dogmatic, moral and pastoral theology; canon law; liturgy; and church history.
The mandatum is granted by the diocesan bishop of that diocese where the university has its central administrative offices.
A mandatum can be granted in response to a teacher’s request or on the bishop’s initiative. In either case, the theologian must declare a commitment to teach in full communion.
Teachers hired by May 3, 2001, are to have a mandatum by June, 1, 2002. Those hired later are to obtain it within the academic year or within six months after appointment, whichever is longer. If teachers do not obtain it in the allotted time, the bishop should notify the appropriate university authority. (The guidelines do not say how the bishop would know who is actually teaching theological disciplines.)
A theologian with a mandatum from one bishop may teach in the territory of another bishop unless the latter determines otherwise.
Ecclesiastical authority should presume, until the contrary is proven, that those attesting that they teach in full communion actually do so. Once all the conditions for granting the mandatum are fulfilled, the teacher has a right to receive it and the authority is bound in justice to grant it.
A bishop who withholds or withdraws a mandatum must state his reasons in writing and should base them on specific and detailed evidence that the teacher does not fulfill the conditions required for the mandatum.
Several points are made concerning the resolution of disputes about the withholding or withdrawal of the mandatum: canonical counsel for both parties is important; there should be personal contact between the bishop and the teacher; the process outlined in the 1989 N.C.C.B. document Doctrinal Responsibilities, should be followed; informal means of resolving disputes are preferable; the aggrieved party can have formal canonical recourse to the Holy See.
The guidelines will be reviewed after five years.
Communion and Due Process
The bishops’ floor discussion of the draft ranged over several topics. Among them were questions about full communion, due process and the consequences of a theologian teaching without a mandatum. In his address to the assembly, Professor Finn had observed that the phrase “a teacher within the full communion of the Catholic Church” was “a recent invention and fraught with ambiguity.” One bishop asked whether it simply meant that the teacher was not excommunicated. The text of the Application, repeated in the guidelines, seems to identify “teaching in full communion” with “the commitment and responsibility to teach authentic Catholic doctrine and to refrain from putting forth as Catholic teaching anything contrary to the Church’s magisterium.” Finn and the C.T.S.A. are concerned that a local bishop has “unspecified discretion” in determining a teaching that disqualifies a theologian from teaching in full communion.
This leads to the question of what constitutes due process and where due process begins. What credence should be given to reports a bishop receives from various sources about a theologian’s teaching, and what right does a teacher have, even before a bishop makes a decision to withhold a mandatum, to know the bishop’s sources and the details of those reports? While the guidelines are slender in such detail, their presumption in favor of the theologian seems clear. The church’s law, moreover, is always to be applied according to the principles of natural equity, which assure persons the right to know the charges against them, to know their accusers and to mount a defense.
Perhaps the most perplexing question to some bishops had to do with the mandatum’s enforceability. What are the institutional consequences of a teacher not requesting or not accepting a mandatum, of requesting one and having it denied or of having one and having it withdrawn? Can employment be denied or terminated? The Application and the guidelines, as well as Archbishop Pilarczyk’s responses to questions from the floor, consistently maintain that the obligation of having the mandatum is the teacher’s and not the institution’s and that any consequence with respect to employment should be stipulated in institutional statutes and contracts. The guidelines state simply that if a teacher does not have a needed mandate, the bishop is to inform the university. The Application provides that “[i]f a particular professor lacks a mandatum and continues to teach a theological discipline, the university must determine what further action may be taken in accordance with its own mission and statutes” (Particular Norms, Art. 4.4.e.ii, footnote 41). The extent to which the norms of the Application must be reflected in institutional statutes varies with the kind of Catholic university. Diocesan universities, for example, must meet a higher standard than other Catholic universities. The latter are “as much as possible” to “conform their existing statutes” to the Application (Art. 1.2.b). To the extent that the university has no statutory provision about a theologian teaching without a mandatum, what remedies does a bishop have?
Canon 392, §1, provides that each diocesan bishop, “[s]ince he must protect the unity of the universal Church...is bound to promote the common discipline of the whole Church and therefore to urge the observance of all ecclesiastical laws.” Yet we know that there are many canonical obligations of Catholics that bishops take no specific role in enforcing, for example, Sunday Mass attendance or marriage before a sacred minister. They leave such matters to the moral conscience of Catholics. Is the mandatum somehow different? Perhaps it is, especially since it is intended to serve the good of the faithful at large. If a theologian teaches without a mandatum, a bishop, as one suggested from the floor, could make this fact publicly known and allow the faithful to make their own judgments about the teacher or the university. In the unlikely event that the bishop decides to resort to canonical measures, he could issue a precept urging that the law be observed (Canons 49 and 1319), though the law itself warns that such action should be taken only with the greatest caution (Canons 1317-18). In the even more unlikely event that the widespread violation of the mandatum obligation was part of a larger pattern of an institution’s abdication of its Catholic character, the bishop could take steps to have its Catholic designation removed (Veritatis Splendor, No. 116).
Extreme measures can be obviated by mutual understanding, trust and continued conversation. Accordingly, the Pilarczyk committee has urged the bishops to discuss the draft guidelines with theologians and university leaders at home. Also planned is a meeting this spring intended especially for those bishops with universities in their dioceses to consult with members of the committee and experts in theology, canon law, American law and university administration. This consultation can give practical assistance to the bishops involved and perhaps yield further refinement before the guidelines are submitted to the bishops for a vote at their June 2001 meeting. The Application takes effect on May 3, 2001.