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Pontifex legibus solutus?

Conservatives and traditionalists need not be the only ones to raise questions about some of Pope Francis's liturgical innovations, whether it was his including women and Muslims among those whose feet he washed or in the reduction of the readings for the Easter Vigil. But shouldn't we all be concerned when they are justified by the idea that, after all, the pope is the supreme law-giver and so is not bound by Church law?

There is an old Latin legal term for this: princeps legibus solutus, which Blacks legal dictionary translates as: Released from the laws; not bound by the laws. An expression applied in the Roman civil law to the emperor. As the example given shows, it is a very dangerous principle to allow into ecclesiology. At Vatican II, when no. 22 of Lumen gentium was being discussed, Pope Paul VI proposed introducing into a sentence about the pope's relationship to the college of bishops that in deciding whether to call the bishops to a collegial act a pope was bound to the Lord alone [uni Domino devinctus]. The Doctrinal Commission refused this addition for two reasons: (1) its intent was already assured by statements about the pope's freedom and independence, meaning by this that there is no higher human authority which the Roman Pontiff has to observe; and (2) because the formula is over-simplified. For the Roman Pontiff is also bound to observe revelation itself, the basic structure of the Church, the sacraments, the definitions of previous Councils, etc.; all such things cant be counted. Formulas of this sort, using only, have to be treated with the greatest circumspection; otherwise countless difficulties arise.The Commission was pointing to elements that bind the pope in the exercise of his role. A pope is not legibus solutus. Would we not like to propose some conditions on what Pius XII's claim that the pope alone has the right to permit or establish any liturgical practice, to introduce or approve new rites, or to make any changes in them he considers necessary? Can we be content with the view that the Pope is not bound by Church law when he does something we like, but ought to be bound by Church law when he does something we don't like?

So if one wishes to applaud some of the new pope's departures from Church law, before one gets too enthusiastic, it might be well to recall that it was also a pope who not so long ago tempted people to flee to the mountains when he obtruded the Divine Mercy devotion into Eastertide (see Mk 13:14).



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Grant: Yes, I suppose I should have put "alleged" before "departures" in my last sentence. I confess I'm surprised that the majority of respondents have concentrated on the first and last sentences of my initial post and largely ignored what came in between. It is even more surprising that several people took the post to indicate that I disagreed with either of the actions that provided the occasion for some people to say that it would not matter if a pope were to depart from traditions or laws because, after all, he's the pope and can do what he wants. (My only hesitation about the new Pope's actions concerns whether Muslims should have been included in the foot-washing.) So the issue for me is not the actions themselves but a justification for them I have heard given.As for my last sentence, I guess that subtlety and indirection don't work. How anyone might conclude from it that I agreed with Pope John Paul's obtruding (the verb was chosen deliberately) the Divine Mercy devotion into Eastertide baffles me. May I suggest that the reason why some people were tempted to flee to the mountains (I was among them) is given by the Gospel text to which I, again deliberately, pointed and which I should have thought made it clear how abominable (the adjective is chosen deliberately) I consider that action of the former pope was. It's the sort of thing that can happen if one thinks the pope above the law on the grounds that quod papa facit, facere potest--what a pope does, a pope can do.

It appears that we have now a Pope with priorities, preferences, talents and interests that differ in many ways from those of his predecessor-- who tried with considerable success to impose his views and even his tastes on the Church. That the Bishop of Rome now has different views and tastes and gifts may seem to some of us a hopeful change, but it is a heavy burden to fall heir automatically to the outsize cult of personality that has grown up around the office, and also to the expectation that he may behave as an absolute monarch. This fatal combination can't be good either for the incumbent or the Church. Clarifying the limits of Papal prerogative might be a good first step toward improving the situation, for Francis, for those who come after Francis, and for all the rest of us.

Just checking my understanding here:The point of the post is to note that a perceived departure from strict tradition on the part of Pope Francis might send up red flags with the Orthodox (not Roman Catholics), who could see such departures as a sign that the Pope considers himself above tradition, yes?I would be interested to know if Mr. Fr. Komonchak has perceived any such concern among his Orthodox friends as a result of the foot-washing and abbreviated readings.

Jean: Not quite. The point of the post was to draw the attention of Roman Catholics to the dangers of defending actions by popes (any popes, not just Pope Francis) on the grounds that he is not bound by traditions or laws. This view certainly is anathema to the Orthodox, as I pointed out, but my main focus was on Catholics.I haven't seen any reactions from Orthodox commentators on Pope Francis' actions, so I can't answer your question.

How anyone might conclude from it that I agreed with Pope John Pauls obtruding (the verb was chosen deliberately) the Divine Mercy devotion into Eastertide baffles me. May I suggest that the reason why some people were tempted to flee to the mountains (I was among them) is given by the Gospel text to which I, again deliberately, pointed and which I should have thought made it clear how abominable (the adjective is chosen deliberately) I consider that action of the former pope was.Agree that it was abominable.

Pope Francis, it seems to me, conducts himself by intuition. He does things on the spur of the moment, without much (or any) consultation. He leaves procession routes to go into crowds to bless the disabled, he drops in unannounced at a luncheon for a group of priests, he decides to live in a guest house rather than his palace, he makes it known, a week or so in advance, that his Holy Thursday celebration will be in a juvenile detention facility. Under the previous papacy, saying and doing things without adequate consultation and consideration resulted in a number of gaffes. But so far, everything Francis touches seems to turn to spiritual gold. (Perhaps I am pouring my own hopes and fantasies into the vessel of this papacy, but I detect a certain joy on his part: that he finds his ability to do whatever he wants is very freeing, and that he derives a certain satisfaction from breaking with fusty traditions. I can't imagine what it would be like to be a bishop, to always be "on display", rather like the Queen of England, to always, always be expected to say and do the right thing. Perhaps he feels released from those expectations now.)Just speaking for myself, I can be an intuitive person. There are many times when intuition has served me well - but also a number of times when it hasn't. I've learned, in the school of hard knocks, to question my intuition, to seek to confirm it with data and outside opinions. I think intuition is risky. I hope the Holy Father has an internal braking system that warns him that a seat-of-the-pants judgment, in this or that particular case, needs to be restrained, or at least tested and confirmed.

The nub of the problem is found in the text from Lumen Gentium that Ann quoted above. popes power of primacy over all, both pastors and faithful, remains whole and intact. In virtue of his office, that is as Vicar of Christ and pastor of the whole Church, the Roman Pontiff has full, supreme and universal power over the Church. And he is always free to exercise this power.That particular primacy was, and Fr. K, can correct me if I am mistaken here, codified at Vatican I. Vatican II sought to clarify the scope of the Pope's power but we are stuck with this unfortunate formulation from Vatican I.So, we are essentially, at the mercy of the temperment and style of the occupant.Personally, I think that if there is going to be any decisions that impact the whole Church, these need to be undertaken by way of achieving a consensus. But the reality is that this has not historically occurred since Vatican II (John XXIII did not, as far as I know, consult the bishops as to whether a council was required, Paul VI did not consult the bishops concerning HV as far as I know, PJP II did not consult bishops for Divine Mercy, Benedict XVI did not consult bishops concerning SP).But, perhaps there is no juridical solution to this problem. Even in well developed democracies, governors, prime ministrs, and presidents have certain executive powers invested in the office and they have discretion to exercise those.Jesus, specifically, outlined how authority was supposed to be exercised among his followers; the so called servant leadership model. But what this looks like in practice varies considerably.

Pope Francis, it seems to me, conducts himself by intuition. He does things on the spur of the moment

I thought so initially too Jim but then I read an account where someone who knows him said that this is not the case. He prays before every action and is very deliberate and aware of the symbolism of his actions.I think that the problem is, as has been pointed out above, people are seeing these symbolic actions and reading (too much)/(too little) into them.As Shakespeare wrote, uneasy lies the head that wears the crown.

Joe, I thought you were saying in the post that if one likes the pope doing certain things which are, OK let's say "original" or "outside the law," one is admitting in principle that other actions which are outside the law are equally admissible. Have I misunderstood your point here?

If the story was true that poor Benedict XVI was not allowed to have a cat in the palace where he lived and reigned, who laid down "the law" to him? If he had said, I WILL have a cat or four, and YOU are in charge of the litter box[es], who would say NEIN, du willst nicht Katzen haben?

Father Komonchak: there's a difference between justifying Pope Francis' action on the basis of princeps legibus solutus est and refuting the argument that Pope Francis violated liturgical law by washing a woman's foot. Many factors go into whether a Roman Pontiff is justified when ignoring law or changing it. But I think that those who say that Pope Francis "violated the law" when he washed a woman's foot in the mandatum rite either misunderstand the purpose of the rite or fail to appreciate that the Pope is not legally bound by his own law.

Rita: My point has been that the principle that the pope is above the law can cut in both directions. This doesn't mean you can't make distinctions, can't criticize, etc.

George DI remember being told in a graduate Theology course that before his (infallible) declaration of the dogma of the Assumption of Mary (1950), Pope Pius XII sought the opinion of Catholic Bishops throughout the world.

Here is the joint statement issued by the North American Orthodox-Catholic Theological Consultation in 2010, which includes a vision of a reunited church and takes up the question of primacy. It alludes to Apostolic Canon 34 (late 4th century):

The bishops of every nation must acknowledge him who is first among them and account him as their head and do nothing of consequence without his consent; but each may do those things only which concern his own parish and the country places which belong to it. But neither let him (who is the first) do anything without the consent of all; for so there will be unanimity, and God will be glorified through the Lord in the Holy Spirit.

And it raises the question whether the principle can enter into the understanding and exercise of the Petrine office.

Mr. Madrid: I am among those who "fail to appreciate that the Pope is not legally bound by his own law." That's precisely the principle I think is so dangerous in ecclesiology. Church law is not "his" law; it's the Church's law.

the Pope is not legally bound by his own law.Really! Jesus himself chose to remain bound by religious laws. His excursions from Jewish laws were always explained as clarifications or re-interpretations (Matt 5:17). He was not above the law, but the Pope would be??

Thanks for the clarification, Fr. Komonchak. Clearly, I'm not subtle enough to follow this discussion, which everyone already knows, but I want the record to show that I'm not so dumb that *I* don't know it, too.A lot of Catholics (and otherwise) think that whatever the pope does or says is infallible, which seems to be a misread of the whole infallibility business raised at the first Vatican Council. People read "infallible" and run with that without looking at the caveats and historical context. Sorta like they do with then they read "right to bear arms" in the Second Amendment.I'll go find something to read that I can understand better now.

Father Komonchak: Not all of the laws of the Church are the Pope's laws. Note that I said "legally bound by his own law." The Pope is not the only ecclesiastical legislator, and the other authorities mentioned in your initial post accurately prescribe some of the bounds of his authority. I think that your citation of the Apostolic Canon is another appropriate source. But perhaps you are making a larger point than my relatively small one: are you suggesting that the Pope's own enactments legally bind him in all cases?Claire: I believe that you misunderstand my point. I am only making the relatively simple point that the Pope's own enactments do not legally bind him. Besides, note that your statement that Christ "chose to remain bound" implies that He was in fact above the law and chose to be otherwise.

It was a great gesture.Better to ask forgiveness than permission liturgically is a good motto.I've been at too many funerals where the so called rubricians who monitor anyone else's deviance have made crude and insensitive editorial remarks about who's welcome to the Eucharist that is not called for in the rubrics.I'm just glad the Pope did not apparently overly agonize with canon lawyers or liturgists before he did this.Now, he could, of course, done something that would have been seen as less inclusive and more restricting than necessary canonically and I'd be wrting in critism rather than priase. that's they way it.Take an action and take the consequences, Pope Francis. Thanks.

... and I'm sorry, but for all the beauty of the readings, most parishes cannot sustain a Holy Saturday liturgy that includes all these readings... Call us liturgical wimps and mandate that the Cathedral in each diocese celebrate with all (most do not) and cut the celebration back to three. You're still lucky to have cermony - done well with some good music less than 2 1/2 hours -- and I'm one who loves it!

Father Komonchak: to further illustrate my position, you had earlier posed whether it was in the power of the Pope "to repeal canons 208-223." If what you mean is "can the Pope repeal the norms expressed in canons 208-223," my answer is that he probably cannot, especially given that the majority of the norms in those canons are promulgated in scripture, tradition, and natural justice, all of which are sources of law for the Church. However, if what you mean is "can the Pope remove canons 208-223 from the code," my answer is yes.

Francis is obsessed with the gospel which is the center of our lives. We have all been corrupted by an Empire church and think legalistically usque ad nauseum. The beatitudes are the thing....I know too simple.....

As I understand it, Fr. Komonchak proposed this discussion to grapple with the more or less hypothetical problem of popes overstepping their authority and/or considering themselves above church law. If that's not really it, move on; I apologize for yet another superfluous posting.If it IS the issue at hand, however, I still need it clarified for me how Pope Francis washing the feet of a couple women on Maundy Thursday relates? Is this or is it not a violation of some sort? What are the rules, if any, with regard to exactly whose feet can be washed? If there is indeed a liturgical rule against washing the feet of women, I've no doubt washing Muslim feet would be even more egregious. But it seems to me this would be missing the larger issue by far -- namely, how far has the Church come from its original mission that its rules limit the servant of His servants from performing such charitable gestures?

Re: Divine MercyI have always thought that the canonization of Sr. Faustina (first canonization of the 21st century) and promotion of the Divine Mercy devotion by JPII had strong elements of Polish chauvinism (for want of a better term). Hopefully, Pope Francis, first Latin American pope, will be just as enthusiastic about promoting the canonization of Archbishop Romero.

Well. I admit that until just now I thought Divine Mercy and Sacred Heart were the same. But now I am learning that so many parts of Christ are focus of devotions: Holy Face, Holy Name, Sacred Wounds, Holy Hole (in his side), Precious Blood and many more.

I seem to recall that this argument about [whether-a-Pope-to-wash-or-not-wash-the-feet-of-women-and-Muslims] was similarly visited in the NT. In Mt2:27 the writer records: Jesus said to them, "The Sabbath was made for man, and not man for the Sabbath."Something tells me that Papa Francesco has a deep understanding and appreciation of this scripture than some of us. And apparently, Francis intends to act upon it.The symbolism of gesture is always more powerful than human pretense.

Fr. Z reprints Fr.. Komonchak's post and ends with:"It is the ultimate dream of liberals to restrict papal authority, just as they hope to see restrictions on bishops and the reduction of priests and priesthood to ministry

I find reading blogs like Father Z dangerous for my immortal soul. Doing so fills me with so much anger and vitriol that I really think nothing good can come of it. Yet, I often still do. O, the lingering effects of original sin

Mr. Madrid: I am among those who fail to appreciate that the Pope is not legally bound by his own law. Thats precisely the principle I think is so dangerous in ecclesiology. Church law is not his law; its the Churchs law.In the case of the rubrics of the Mass, Francis could have issued a Motu Proprio changing "virii" to "homines" in the rubrics. He could also have said (If he wanted) that each bishop could determine the qualifications of "homines" in his diocese.If he had the power to authorize others to do it, he had the power to do it himself without authorizing others. Is this whole argument about whether he filled out some paperwork first before doing what was appropriate pastorally? Personally, I think it would be good if he issued a document revising the rubrics before next Holy Week. Given the number of other things he needs to do, I won't be devastated if that doesn't get to the top of his list by then.

Can one usefully distinguish between a politico-legal right of the pope to do whatever he decides regardless of what codified positive laws or customs say and a religious-moral right to do so. In political terms, a ruler is regularly recognized to be within his right to set aside many laws for the common good or for the defense of the state? Think of declarations of martial law. I assume that a ruler can sometimes be justified on both politico-legal grounds and on moral-legal grounds in doing so. It is also possible that a ruler could be justified on one of these grounds but not on the other. It is a practical impossibility to codify an exceptionless rule for determining whether he is, in a particular case, justified in doing so.Is this distinction relevant to determining what rights the pope has or does not have?

It seems to me that in parts of this discussion laws are being confused with the justification, the grounds of the laws. A law is a *command* to do or not do something. It is neither a simple description nor a generalization about a class of things. For instance, the fact that we are siblings by adoption is the ground of the law that says that we must love all people. But being-a-sibling is not the law. Neither history nor science is law, though there are "laws" of history and of science in a somewhat different sense of "law". They describe regular behavior without any element of command or authority constituting the so-called law. When a law-giver actually establishes a general command (one that many people are bound by) it is his/her intention to bind (for the common good) and his/her promulgation of that intention that constitutes the law as such, and this assumes a prior acceptance of that law-giver's authority to make the the law. When an emperor says, "you shall not steal", he is implicitly affirming that a he is binding the people not to behave in a certain way. And as long as his intention (plus the intentions of the next emperor) endure, that is a law of the empire. A law is not some pie-in-the-sky Platonic "subsistence" which exists independent of the lawgivers and those bound by the law. It has no independent ontological status which continues when the law-givers and followers are gone. Describing the ontological status exactly would be very difficult, I think, because a law is actually a very complex reality involving processes which involve intentions and acceptance of those intention by the people, not to mention the historical event of promulgation. The basic problem about Frances and the foot-washing concerns, I think, his *authority* that is, his right to make a command/law and also his right/authority to eliminate or change the law. But trying to describe "rights", "duties" and "intentions" philosophically is philosophically highly perplexing, even though most of us are definitely convinced that such things as rights and duties intentions are real. Here comes my mantra again: we need a new Aquinas.(I still think that Vatican I and Vatican II on the subject of papal authority are contradictory in some ways, which adds to the problems in this discussion.)

ISTM that Fr. Z's problem is the same as the SSPXers problem: they accept the statements by Vat I and Vat II about the universal, full authority of the popes. They have my sympathy. They were taught one thing, and now they're being taught another.

John Hayes: "In the case of the rubrics of the Mass, Francis could have issued a Motu Proprio changing virii to homines in the rubrics. He could also have said (If he wanted) that each bishop could determine the qualifications of homines in his diocese."Ye gads, so this IS it! The rubrics say "virii," and Francis (like how many bishops before him?) acted as if the word were "homines." This is what has our ecclesial talking heads a-twitter?Forgive my slow take. I looked away for about a minute and missed the controversy so quickly stirred by a pope's Christ-like "impulsivity." A year ago, say, would anyone have believed this would be a topic of heated conversation today?

It wouldn't take a motu proprio. Just a word to the CDWS in preparation for the next edition of the Roman Missal. It could have been done with the third edition, but wasn't. We got 2 new dismissal formulas from Pope Benedict, no motu proprio on that.

It's clearly time the wording was changed, however it's done.That would certainly be a more likely (and limited) outcome of the Pope's controversial foot washings than the spectre of papal totalitarianism alarmists have raised.

I intended the thread to be a discussion, not of the foot-washing, but of whether there are any limits to the exercise of papal authority. I confess to being alarmed, indeed, by arguments that a pope is not bound by Church law. A little knowledge of Church history can reveal whether the consequences of such a view are merely spectral. And we might keep in mind that Francis is unlikely to be the last pope.

Father Komonchak: in your opinion, is the Pope bound by his own decrees? If so, why?

Yes, Father, I think I get your concerns. In fact, I believe I understood the larger point you were trying to make all along; it was the citation of the foot washings (and reduction in Easter Vigil readings) as reason for alarm that threw me for a loop. Why such dire foreboding over what still seem to me such charitable acts? For a Pope to overlook certain liturgical rubrics when, if followed to the letter, these would 1. exclude over half those standing before him, or 2. overburden the faithful who've been standing and kneeling for many hours, doesn't seem unreasonable, and certainly not radically disrespectful of church law per se. To paraphrase Christ, were we made for the rubrics, or were the rubrics made for us?All in all, I can't see how what the Pope did in these particular situations set a precedent for anything other than acting more Christ-like.

Mr. Madrid: If the Pope is legislating for the Church, and he is a member of the Church, he is binding himself. Pope Benedict XVI said several times that the pope is not an "absolute monarch". If he is above the law, in what sense, I ask you, is he not an absolute monarch?Ms. Bailey: I didn't cite those examples as "reason for alarm." My alarm was over justifications of them on the grounds of papal absolutism.

Fr. K: "I intended the thread to be a discussion...of whether there are any limits to the exercise of papal authority."Isn't the exercise of any legitimate authority limited by the demands of justice and charity?

Yes, "the exercise of any legitimate authority [is] limited by the demands of justice and charity." But two questions: (1) Are these the only limits on papal authority? (2) Has the Church any recourse if a pope ignores "the demands of justice and charity"?

Correction: Instead of "to enforce papal violations of the law", I should have written "to enact sanctions against popes who violate the law".

Sorry for the multiple posts, but perhaps Galatians 2:11 is an illuminating example for this discussion. Paul resisted Peter "to the face" (strongly worded!) when Peter acted against the new norms revealed to him (Peter) by Christ - that Gentiles were welcome in the church without being subject to the dietary (and other) laws....

Claire: I don't think that "absolute monarch" means "omnipotent monarch."

Fr, K: "I didnt cite those examples as reason for alarm. My alarm was over justifications of them on the grounds of papal absolutism."I'm sorry, I know this must be frustrating for you; clearly, there should be some way other than asserting papal absolutism to justify papal deviations such as this Pope's from the strict rubrics regarding feet washings, etc. I think I provided the one that likely occurred to the Pope himself, namely, the overriding demands of justice and charity.Beyond that, I don't know. It's not as if the Church had a constitution spelling out just how far, and no farther, a pope's authority extends. But we do have the words of Christ in scripture sending his apostles and Peter out into the world. Nothing said was a blueprint for absolutist rule. The best answer to your question is probably staring us all in the face.

JAK wrote: "two questions: (1) Are these the only there any limits on papal authority? (2) Has the Church any recourse if a pope ignores the demands of justice and charity?"Not after Chapter III of "Lumen Gentium" and the attached "Appendix" was approved by Paul VI"The pope's power of primacy over all, both pastors and faithful, remains whole and intact. In virtue of his office, that is as Vicar of Christ and pastor of the whole Church, the Roman Pontiff has full, supreme and universal power over the Church. And he is always free to exercise this power."Even an Ecumenical Council can't overrule the Pope (it can't meet unless he calls it and its decisions don't take effect unless he approves them):"The order of bishops, which succeeds to the college of apostles and gives this apostolic body continued existence, is also the subject of supreme and full power over the universal Church, provided we understand this body together with its head the Roman Pontiff and never without this head. This power can be exercised only with the consent of the Roman Pontiff. For our Lord placed Simon alone as the rock and the bearer of the keys of the Church,and made him shepherd of the whole flockin the end, he limit on Papal power lies in the consciences of individual believers - clergy who would resign and laypersons who would refuse to comply with evil or heretical instructions of the Pope. There is no provision to overrule a papal decision, to impeach a pope, or to remove a pope who becomes mentally or physically incompetent.

Your 4:21pm questions are not about opinions but about legal facts, aren't they?It doesn't seem that anyone reading this knows the answer better than you.

John, your comment was not up yet when I wrote mine. It was not about your comment.

John Hayes, I like the way you amend the statement to say "are there *any* limits on papal authority." And you amplified the difficulty I mentioned in giving a fuller citation of Lumen Gentium. And certainly action based on conscience would be a personal, perhaps private, way to respond to such a situation. However, there may be ways to develop provisions to handle formally these situations. The college cannot make universal acts without their head, but they can (and have) made particular and local acts that include sanctions - just glance at any edition of Denzinger and you can see them. I know this is "out of the box" in that it lacks historical precedent, but I don't see any reason why it couldn't be done, do you?

Mr. Hayes: You are correct that there is not in today's Code any provision for what the Church must do if a pope becomes a heretic or becomes mentally or physically impaired, but that is a defect in the Code and should be corrected. There was once a very extensive theological and canonical discussion of what to do in the case of a heretical pope, and Robert Bellarmine said that it would be legitimate to oppose even with physical force a pope who was ruining the Church. I don't think the Church should be left simply to wait for an intervention of divine providence, a lightning bolt, a Deus ex machina.Vatican II allows for collegial activities to be initiated "from below," by the bishops, with the pope's eventually approving or receiving the action (see LG 22, end).



About the Author

Rev. Joseph A. Komonchak, professor emeritus of the School of Theology and Religious Studies at the Catholic University of America, is a retired priest of the Archdiocese of New York.