According to the Vatican’s concordats with Germany, professors are appointed to a Catholic faculty of theology only if the responsible bishop, after reviewing the candidates’ teaching and conduct, raises no objections and grants the nihil obstat. The Vatican’s Decree of Accommodation of 1983 adapts for Germany the norms of ecclesiastical law for higher education set down in the apostolic constitution Sapientia Christiana (1979). Contrary to the express wishes of the German Bishops’ Conference, wrote Heribert Schmitz in his commentary on that constitution (1992), this decree made it obligatory that before a bishop responds to the request of a German state government concerning a candidate who is being called for the first time in his or her career to a Catholic faculty of theology, the bishop must obtain the approval of Rome. The ecclesiastical responsibility in this matter belongs to the Congregation for Catholic Education, which is supposed to assure itself through the Congregation for the Doctrine of the Faith that there are no doctrinal objections.
Since a formal invitation to a teaching position at a university is considered only after the appropriate theological faculty has ascertained with certainty the candidates’ capability and the responsible bishop has then reviewed the matter again for himself, Rome’s nihil obstat should properly be only a formality. It should simply make certain that there is nothing on record in Rome against the candidates that might not be known to the theological faculty or the bishop. Doctrinal objections must of course be based on publications. For this reason, the Roman officials can hardly be in a better position to know than those who have responsibility at the local level. Since the professors who are already members of a theological faculty must distinguish themselves through high scholarly qualifications and consciousness of [their] responsibility (Sapientia Christiana, Article 25), and since a similarly rigorous theological education is required of every bishop (Code of Canon Law, Canon 378), a theological faculty and a bishop really should be capable of evaluating the qualifications of future professors.
Nevertheless, a further evaluation of the content of a candidate’s publications now takes place in Rome. This is not only a sign of the tendency of Roman officials to draw to themselves as many decisions as possible and to bring everything under their control. It is also a blatant manifestation of Rome’s mistrust of the competence and judgment of both Germany’s theological faculties and the responsible bishop. Further, it is an affront to a bishop when his recommendation is rejected and the nihil obstat is withheld. In recent times, this kind of action is occurring with striking frequency. The bishop of Augsburg, for example, was recently refused two candidates (both women) for a chair in moral theology.
It must be added that Roman officials do not adhere to even the minimum requirements for a fair process as determined by juridical principles. The people concerned have no claim to a juridical hearing. Access to the documentation is denied them. What happens in Rome after an application for the nihil obstat arrives remains unclear. The doors are wide open, even to denunciations. In the case of a negative decision, the objections to the candidate are not spelled out. Most of the time Rome’s statement denying the nihil obstat conveys only in a general way that the man or woman involved does not stand on the solid ground of church teaching.
When, as occasionally happens, Rome’s report on a candidate has become known, it has been frightfully lacking in professional expertise. There exist no effective juridical means for an objective, independent review of Rome’s negative decisions. The Roman congregations are simultaneously the evaluators, the decision-makers and the judges. The candidatesand in this case even the responsible bishopcome forward as petitioners without rights who are subject to the good will or, better, the arbitrariness of officials who make judgments according to their own, completely independent views, which are not subject to verification. And here we are not talking about some abstract state of affairs, but about the professional future of a human being.
Hans Maier [a Catholic professor of political thought in Munich and formerly Bavaria’s minister of education] commented in 1970 that church law concerning the rights of individuals still falls short of the standards of secular law and that bringing ecclesiastical norms up to the level of a state governed by law is still an urgent task. This view has lost none of its validity today. The Synod of Bishops of 1971 requested that procedures in the church should be reexamined, because only if the church is itself a witness to justice can it speak to the human family about justice and also issue calls for justice. But this request has been completely disregarded. The same silence has occurred in response to the recommendation made to the pope by the General Synod of German Dioceses in 1975 that the church issue general guidelines for establishing an independent ecclesiastical judiciary to oversee administrative matters.
But things need not remain as they are, especially since what is involved is not doctrine but procedural rules, which can be revised at any time. The Jubilee Year 2000, in which the pope has called for an examination of conscience and has requested forgiveness for the failures and omissions of the church, would be an appropriate moment for revisions in this area.
The damage to the church from the procedures just sketched is great. The authority of the bishops is weakened, indeed ultimately undermined, if they are treated simply as dispensers of the Roman Curia’s decisions and are not entrusted with the tasks and decision-making that were rightly and undisputedly theirs until a few years ago. The Roman Curia creates the impression that it is a repressive system. In this situation, theology can hardly fulfill its important work, namely, to illuminate and develop the Christian faith in our time. Given such a restrictive way of dealing with the nihil obstat and the unpredictable process of decision-makingone that lacks clear, publicly verifiable criteriareluctance to take risks and fear of new ideas can only increase. And who is well served if theologians who want to embark on a scholarly career pursue only harmless topics until after they receive their first academic appointment?