Canonist: Bergoglio's private letter published on the Vatican website has zero canonical authority.

August 24, 2017 Edward Peters

Part of the turmoil engendered by Pope Francis’ exhortation Amoris laetitia regarding whether divorced-and-remarried Catholics (living in the manner of married couples) may be admitted to holy Communion turns on what authority should be accorded a private letter the pope sent to the bishops of Buenos Aires endorsing, supposedly as definitive, their interpretation of Amoris in regard to this crucial question.

For the reasons I suggested here*, however, the pope’s letter to the Buenos Aires bishops does not “settle” anything about the application of Amoris in this area, if for no other reason than that the Buenos Aires directives themselves, amid their copious platitudes and euphemisms, manage to avoid, if perhaps more narrowly than does Amoris, directly answering the key question raised by Amoris in this area. Thus, the near-universal conclusion, applauded by some and deplored by others, that the pope in Amoris, or at the very least in his endorsement of the Buenos Aires document, has indeed established that, ‘Yes, divorced-and-remarried Catholics, while living sexually active lives, may licitly approach for and be administered holy Communion’—as, I grant, the Maltese bishops plainly say and as the German episcopal committee effectively holds—is a source of consternation. Oh well. 

In any event a few days ago the pope’s letter and the Argentine directives to which he was replying appeared on the Vatican’s website (Spanish, English), setting off a fresh tizzy of concerns about the level of authority to be accorded them in light of their now being posted at vatican.va.

In response to such concerns, here are, in my professional opinion, the three levels of canonical authority to be ascribed to Church documents in virtue of their being published on the Vatican’s website: None, Zero, or Zip.

Let’s back up.

As has been explained many times (and pace fact-patterns very rarely encountered) divorced-and-remarried Catholics living as if they were married should not approach for holy Communion per Canon 916 and, if they do approach, ministers should not give them the Sacrament per Canon 915. Therefore, if the pope, immediately (in Amoris) or mediately (by endorsing the Buenos Aires directives), wished to authorize persons living in irregular unions to approach for holy Communion and/or to direct ministers of holy Communion to give the Sacrament to such persons, he would have had to modify or cancel the pontifically-authorized canons unquestionably prohibiting such actions found in his Code of Canon Law.

But canon law is barely a blip in Amoris and neither it, nor the Argentine directives, nor the pope’s endorsement letter so much as mentions Canons 915 or 916, meaning that these two canon laws remain in full force and must be understood and applied as the canonical and moral tradition has long understood and applied them. That, or Francis is the first pope in history to widely and expressly authorize what he plainly and comprehensively prohibits. Which I don’t think is the case.

But now, suppose under some result-driven, eisegetical reading of Amoris and/or the Buenos Aires document, someone argues that Canons 915 and 916 have been derogated from in the case of divorced-and-remarried Catholics, in other words, that Amoris or (even more fantastically) the endlessly malleable verbiage of the Buenos Aires document, has the character of universally-applicable canon law. What then?

Enter Canon 8 § 1 of the 1983 Code of Canon Law which states: “Universal ecclesiastical laws are promulgated by publication in the official commentary Acta Apostolicae Sedis, unless some other manner of promulgation has been prescribed in particular cases.” 

For over a century the Acta Apostolicae Sedis (Documents of the Apostolic See), a monthly journal subscribed to by few outside of arch/diocesan chanceries and ecclesiastical academe, has been the nearly-exclusive vehicle for publishing the official, binding documents of the Holy See. In just the last several years it has, Deo gratias, been posted on-line (warning: there are many maddening errors in the electronic texts not present in the printed versions). But the Acta Apostolicae Sedis is not a synonym for “Vatican Website” and, however useful that website might be to researchers, it has not been designated as the vehicle for promulgating canon law or equivalent provisions. As it is, moreover, self-evident that no “other manner of publication” was prescribed in Amoris or the pope’s follow-up letter, the appearance of these materials on the Vatican’s website means canonically nothing.

There are, to be sure, many important publications coming out of the Holy See and/or the Vatican City State (L’Osservatore Romano, Communicationes, Enchiridion Vaticanum, the Insegnamenti of recent popes, and so on) some of which carry canonically and magisterially significant documents in a complex (and sometimes confusing) variety of formats. Sorting out these fontes essendi and fontes cognoscendi is stuff for professionals; our focus today is on key points of codified canon law, on some very important disciplinary provisions presented in that law, and specifically on where such laws and norms for pastoral activity are set out authoritatively.

And that, folks, is not the Vatican website.

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* See also my article “The canonical position of Amoris laetitia” in Fellowship of Catholic Scholars Quarterly 40/1-2 (Spring-Summer 2017) 15-19.

Related thought: What if the pope’s Buenos Aires letter does eventually appear in the Acta, what then? Well, in this case, basically, nothing. Many, nay most, papal documents appearing in the Acta carry no canonical or disciplinary force, a fact demonstrable by understanding how to assess the various fontes mentioned above. We can talk about that if it happens (my guess is, it will), but my concern today is for those who, in this electronic age, think that the appearance of a papal document on the Vatican website carries some special canonical consequences. Well, it doesn’t.