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Thumping on the Law

by Christopher A. Ferrara
December 21, 2017

Lawyers have a saying that when the facts are against you, hammer on the law; and when the law is against you, hammer on the facts; and when both the facts and the law are against you, hammer on the table.

I have great respect for the renowned canonist Edward Peters, who is not only a fellow lawyer but a doctor of canon law.  But in his public debate with Dr. Roberto de Mattei and others over the impact of Amoris Laetitia (AL) and the Pope’s publication in the AAS of his letter approving its implementation by the bishops of Buenos Aires as the only correct interpretation of AL, Peters continues to hammer on the law while downplaying the facts.  (See my previous column on this subject, here.)

In his most recent post on the controversy, Peters largely admits the damning facts even as he attempts to erect Church law as a barrier against them, in particular Canon 915, rooted in divine law, which prohibits admission to Holy Communion of those “obstinately persevering in manifest grave sin,” including the divorced and “remarried” who, as even the Catechism of John Paul II teaches (consistently with the perennial teaching of the Church), are living in a state of “permanent and public adultery.

Writes Peters:

“I do not know or care whether the ambiguities in Amoris regarding expectation for those seeking Holy Communion were put there purposely by the pope or appeared there because of the incompetence of his drafters. I only know those ambiguities are there and that (a) they are not per se heretical, but (b) they have allowed others to claim papal cover for local policies that do spurn the force of Canon 915 and that do betray the sacramental, moral, and ecclesiological values behind the law.”

Putting aside whether AL contains explicit heresy as opposed to ambiguities lending themselves to heresy, I note that Peters’ assertions that AL has “allowed others to claim papal cover for local policies that do spurn the force of Canon 915 and that do betray the sacramental, moral, and ecclesiological values behind the law.”

With all due respect, Peters grossly misstates the issue. Pope Francis has done far more than merely provide some “papal cover” for “local policies” that spurn the “sacramental, moral, and ecclesiological values behind the law [Canon 915].”  He has explicitly declared, via publication in the AAS, that the “local policy” which spurns Canon 915 in Buenos Aires is the only correct interpretation of AL (“there are no other interpretations”) and that this declaration of his is to be considered “authentic Magisterium.”

Faced with these facts, however, Peters continues to deny that Francis has personally and directly undermined Canon 915. He criticizes those who “pronounce the evisceration of Canon 915 at the pope’s hands (as opposed to what that law has suffered from others)...”  But this is not a question of what the law has suffered from others, but rather what it has suffered precisely at the hands of Pope Francis, with these others merely proceeding according to his green light.  Peters is trying to have it both ways:  local policy pursuant to AL has undermined Canon 915, but the Pope has not undermined Canon 915 by authorizing as the only correct interpretation of AL the very local policy that undermines it.

I am sorry, but this argument verges on sophistry and is not worthy of a canonist and scholar of Peters’ stature.

Peters continues to — one must say it — sweep inconvenient facts under the rug when he writes:  “Against Canon 915 there is, according to some, arrayed a practically incomplete and theologically ambiguous assertion made by one pope in one footnote of a 50,000 word, non-legislative, document.”

Peters, of course, knows better.  This is not a matter of a single ambiguous footnote, but rather numerous problematic ethical assertions in Chapter 8 of AL, the Pope’s express approval of a heterodox reading of Chapter 8, and now his explicit declaration in the AAS that this heterodox reading is the only correct reading of AL.

Hammering ever more insistently on the law while minimizing the facts, Peters asks: “Are ancient and unanimous Church teachings and practices so inconsequential as to be overturned so easily? Only a law or the canonical equivalent of a law can overturn a law. And Amoris, let alone a footnote in Amoris, is not a law or the canonical equivalent of a law [his emphasis].”

So, apparently, in Peters’ view, all that is required to overturn “ancient and unanimous Church teachings and practices” is a “law or the canonical equivalent of a law.” If this purely legal requirement were met, then “ancient and unanimous Church teachings and practices” could be given a legalistic heave-ho.  But so long as Canon 915 remains on the books, the “ancient and unanimous Church teachings and practices” remain in effect, although Peters notes thatthe fact that we are lately having to rely on law [his emphasis] almost exclusively to defend crucial Church teachings [his emphasis] is a sign of serious, deeper problems.”

No.  A thousand times no.   The truth of “crucial Church teachings” on faith and morals precedes the canonical provisions that reflect those teachings, numbered codes of canon law being a relatively recent development (beginning with the 1917 Code).  Canon law cannot touch these teachings for they are revealed by God or proceed immediately from revelation, as does the intrinsic impossibility of administering Holy Communion to unrepentant public adulterers. 

To hinge the defense of “crucial Church teachings” on the mere fact that Pope Francis has not (at least not yet) officially abrogated or obrogated Canon 915 is, in essence, to accept the very thing Francis deplores constantly: the legalism of the Pharisees, which placed changeable law above the immutable Truth that makes us free.

That a good man and a loyal son of the Church like Peters feels compelled to resort to such arguments, in order to avoid the staggering conclusion that this pontificate represents a direct attack on the Church’s moral edifice, is yet another sign that the current crisis in the Church is like no other before it. 

Our Lady of Fatima, pray for us!