Teaching Authority – Catholic Universities – Academic Freedom
by Ladislas Örsy, SJ
Chapter Four in his book The Church: Learning and Teaching, Michael Glazier 1987; here republished with the necessary permissions.
- The house of intellect
- When is a university Catholic?
- Catholic university defined by its purpose
- Practical consequences
- Bond of communion, bond of law
- Bond of communion (cf. the third and fourth types)
- Bond of communion and of law (cf. the fifth and sixth types.)
- Academic freedom
In our contemporary world Catholic universities occupy a special position in the intellectual life of the church. Since most of the work of the theologians is done there, both in research and in teaching, universities have a mediating role in the interplay between the magisterium and the community at large, besides mediating between the evangelical message and the local culture. This essay, therefore, would not be complete without a brief description and assessment of their structures and operations, and in particular of the various types of relationships they can establish with the believing community in general and with the teaching authority in particular.
My main purpose in this section is to present a reasoned understanding of how a university can be Catholic, and, once Catholic, how its life can be receptive and responsive to the pronouncements of the magisterium. Sound method and logic postulate, however, that before we speak of how a university can have a religious dimension, the very idea of university should be clarified.
The starting point of our reflection should be a fact: universities are of human creation.1 They are the products of a long and complex cultural evolution.
1. First an acknowledgement: I have been inspired to use the expression “house of intellect” by Barzun (see Bibliography).
What follows is clearly a summary description; but that is all we need to come to a good and operational understanding of what a Catholic university can be and how it ought to function. The analysis offered is applicable to other Catholic institutions, such as hospitals, social works, etc. At the basis of this theory there are some simple assumptions: the humanity of an institution should be affirmed and respected; the freedom of such human institutions to develop a religious dimension should be upheld; the freedom of the church to reach out for human institutions and establish various degrees of association or union with them should be recognized. It is this analysis that opens the vista for a legitimate pluralism in creating specifically Catholic institutions. (I am very much aware also of the fact that there are countries where the Catholic community has not, and does not, favor the establishment of Catholic universities.)
It would be beyond the scope of this essay to quote documents and statements concerning the nature of a university and in particular of academic freedom, issued by various societies and associations, such as the International Federation of Catholic Universities, American Association of University Professors, Canon Law Society of America jointly with the Catholic Theological Society of America, and others; they are easily available elsewhere (for references see Hansel, Kaplin, Sullivan in the Bibliography).
Universities are also marked by the particular traditions and customs of the nation to which they belong. (2)
2. For the history of universities in a nutshell, with as many details squeezed in as such a shell can hold, see A. Franzen “Universitaeten” in LTK, 10: 510-517. The name was first used in 1221 by the masters and students of Paris: nos universitas magistrorum et scolarium.
But no matter how different universities may be from one country to another, there is a common denominator that sets them apart from all other institutions: they are the “houses of intellect.”
They are specialized establishments with the purpose of supporting and promoting the operations of the human mind in acquiring and communicating knowledge. They play a particular role in the complex machinery of the human society, not unlike the way the mind plays a particular role in the human person. If their relationship with the social body is not balanced, both sides suffer. An isolated university (an ivory tower that stands alone) is bound to become a useless eyesore; a university that loses its identity (it dissolves into a political or social action group) leaves the whole community intellectually weak and undernourished. Obviously, I am not suggesting that there cannot be intellectual life outside the universities (it would be silly even to think so); I am simply stating that much of the advancement in learning and in the communication of knowledge in our culture takes place within the universities.
The inside operations of a university consist principally in gathering data, reflecting on them, searching for the laws that govern them, always with the view of communicating the information and intelligence so acquired to generations of students. Throughout it all, good teachers will know that there is more to a person than the operations of the mind, therefore they will function and present their instructions in a broader context which takes into account the needs of the whole human person and of the human family at large.
In performing their multiple task, universities may specialize further. Some will put more emphasis on research, catering mainly to graduate students; others will perform best in teaching and training undergraduates; again, some may develop adult education programs in the service of the larger communities around them. Such diversification is legitimate; each university should have the right to shape its own life and destiny—as long as it remains the house of intellect. Beyond that, theoretical discussions as to what “a university as such” or “by its essence” ought to be, may become idle speculation with little relevance to reality. Universities exist in the concrete order only. Each community has its own needs, and its own potential.
Much is said today about the duty of every university to be value-oriented. No one should quarrel with such a statement; in fact, it is difficult to see how any institution of higher learning could ever function without being value-oriented; after all, the possession of knowledge and the spreading of it are very much values in themselves. The issue is rather about what values a university should serve and promote in choosing its fields of research, in educating the citizens, and also in inserting itself into the life of the civic community. (3)
3. As a rule, the claim that the university should be value-oriented refers to orientation toward moral values. It means that the university should provide instructions for learning about values, help the students to develop a critical capacity to judge values and provide them with sound criteria for making moral decisions. It is easier said than done. The problem is that the acceptance of a value system is very much of a personal option. A “house of intellect” can certainly present the options; moreover, it can provide inspiration, e.g., by effectively upholding basic human rights on campus, by promoting international cooperation for the peaceful resolution of conflicts etc. If the institution is religiously committed, its life and operations will be permeated by religious values, which in itself is the presentation of an option.
Catholic universities, while intending to remain universities, have chosen an orientation toward religious values.
Let us begin at the simplest and most obvious test: When is the adjective “Catholic” used for a “university”? Clearly, when people perceive some kind of connection or association between a university and the Catholic community. Not much investigation is required to notice that this use of the term can cover a great variety of situations.
Those situations, however, are not so disparate that they could not be classified into a few types, each displaying a different kind of structural link between a university and the believing community. I shall list six of them, moving from the loosest of relationships to the closest of unions. Please note that these models are not mere conceptual constructs but they represent concrete situations. They are typified images leaving aside many individual variations. After the description of each I shall add also a short note about their position in canon law.
1. Secular universities in a Catholic environment
There are universities, established and operated by a secular authority, but within an environment where the Catholic influence is strong. Inevitably, the religious beliefs of the persons on campus, faculty, students, administrators, will have some impact on the operation of the institution itself. As a rule, the narne Catholic would not be applied to such institutions; or very loosely, to distinguish them from other universities attended principally by non-Catholics. In this sense the National University in Dublin was called, in less ecumenical times, a Catholic university, in distinction from Trinity College which was spoken of as a Protestant institution.
Canon law has no competency in this case.
2. Secular universities integrated with a Catholic academic unit
There are secular universities with confessionally dedicated theology departments. Such universities are not referred to as religious, but their academic units are known under the name of the church which sponsors them. Thus, in Germany, Austria and Switzerland there are state universities with Catholic or Evangelical or Reformed “faculties” of theology.
Virtually all such Catholic “faculties” have their special statutes approved by the ecclesiastical authorities within the framework of a concordat between the civil government and the Holy See.
3. Universities nourished by Catholic tradition but with no formal institutional commitment.
There are universities, officially classified as non-denominational (non-sectarian), but which were founded under Catholic auspices and are operating strongly within that tradition. Although in their institutional structures they do not reflect any religious commitment, they assert their fidelity to a living tradition, and their various constituencies de facto keep the Catholic ideals alive, as a free choice on their part. (4) Such Catholic universities can be found in the United States and Canada.
4. The reason for not inserting any religious commitment into the charter or by-laws of some traditionally Catholic universities is usually in the civil law system within which they must operate. A legal tie with a religious denomination would civilly disadvantage them to the point that they could be compelled to close down altogether; which is a good illustration of the thesis that no amount of abstract reasoning can decide what is the best way for a university to be Catholic. If what is theoretically the best may lead practically the worst, less perfect ways must be found to uphold and support Christian values in a secular society.
Such universities exist and operate outside of the canonical structures. Since the church asserts a “proprietary” right over the term “Catholic,” if they want to use it in their name, they must petition for a “license.”
4. Universities with institutional commitment to Catholic ideals but without an eclesiastical charter.
There are universities which by their own decision wanted to commit themselves to the pursuit of truth within the context of Catholic ideals. To assure this orientation, they inserted into their statutes significant provisions to the same effect: e.g. some members of the board must represent a religious community, the President must be Catholic, and similar ones. They have not, however, petitioned for an ecclesiastical charter, hence they have not become “persons” in canon law; they are not (as an institution) under the jurisdiction of the Holy See or of the local ordinary. (5) Still, they wish a close relationship with the church, a “communion” built on mutual respect and trust. Rightly, they describe themselves as Catholic universities, although as a rule without using that adjective in their name. Often they are closely associated with, or supported by, an institute of consecrated life or a society of apostolic life. This type is mostly found in the United States.
5. This does not mean that the Catholic persons working at such universities are not under the jurisdiction of the ecclesiastical authorities.
They are as individuals. This distinction becomes very important for deciding how issues of church discipline must be handled, should they ever arise. On the level of law, either the Holy See or the local ordinary ought to contact directly the person concerned.
There is no other correct approach in canon law. Unless an institution obtains legal personality in the church, it cannot have legal rights and duties in the church.
It is a different question whether or not an institution which professes itself Catholic is morally bound to take action against a member who publicly displays a destructive behavior against the religious commitment of the university. There is no a prori answer to this question; it is a matter for prudential judgment. More of this later in the text.
Such universities can prosper as Catholic institutions only if all its constituencies (faculty, students, administration, alumni, benefactors, etc.) freely support their orientation. This is true, of course, of the next category as well.
The same as above.
5. Universities established by the church with a canonical charter.
There are “Catholic universities” which are incorporated into the legal structures of the church. In canon law they have a juridical personality, accordingly they are subjects of rights and duties. They are, as an institution, under the jurisdiction of the Holy See (and of the local bishop, or of a committee of bishops, as the case may be); they report to the Congregation for Catholic Education and they have a standing before an ecclesiastical court. Their assets are ecclesiastical goods, normally subject to the canonical rules of acquisition and alienation. They need not have an exclusive or even primary orientation toward the “sacred sciences.” The degrees they confer, although recognized by the church, may simply follow the civil pattern customary in the country. All such details are handled in their church-approved statutes. The Catholic universities of Leuven and of Louvain-la-Neuve fall into this category; also The Catholic University of America.
The canonical status, the rights and duties, of such universities are regulated in the Code of Canon Law; see the chapter on “Catholic Universities and Other Institutes of Higher Studies”; canons 807-814.
6. “Ecclesiastical Universities and Faculties” established by the church and dedicated to “sacred sciences”.
There are “Ecclesiastical Universities and Faculties” specifically founded by the authority of the Holy See and under the direction of the same. Their main purpose is to do research in the field of “sacred sciences” (such as biblical studies, church history, theology, canon law, etc.) and to teach them in a scientific manner. They confer ecclesiastical degrees with canonical effects. They are juridical persons in the church, with corresponding rights and duties. Their establishment and operations are regulated by an apostolic constitution, Sapientia christiana, which requires each to present its own statutes for approval. De facto most of such institutions are instrumental also in training candidates for ordination. The Pontifical Universities in Rome (Gregorian, Lateran, St. Thomas and others), the specifically “ecclesiastical faculties” (Theology, Canon Law and Philosophy) of The Catholic University of America are good examples for this category.
For the applicable laws see the chapter in the Code of Canon Law on “Ecclesiastical Universities and Faculties”; canons 815-821 and the Apostolic Constitution Sapientia Christiana, promulgated April 15, 1979, and the subsequent Ordinationes by the Congregation for Catholic Education, promulgated April 29, 1979.
These are six typical situations, but to know them for what they are a few more remarks must be added.
* The dividing lines between the different types cannot be always sharply drawn. At times, their individual variations are such that they blend into each other; this may especially occur between the first and second, the third and fourth, and the fifth and sixth categories.
* When it is a question of assessing the Catholic character of a university, it is never enough to ask about the structures of its organization; such as how many courses on religion are offered, whether or not certain offices are reserved for Catholics, etc.; it is necessary also to inquire about the internal dynamics operating in the institution. The forces which create and sustain the religious commitment of an institution are never immobile and unchanging (no less than in a human person); in the real world such an energy is either increasing in intensity, or decreasing in vitality. To observe such a movement over a longer period of time is just as important as to know the structures.
It is quite possible that two institutions exhibit the same static pattern today, but underneath they are moved by opposite forces. The full impact of those internal currents will be revealed only in, say, fifty years, when one will be a strong and healthy Catholic institution, the other a respectable seat of learning but without any religious orientation.
* The intensity of religious dedication should be always distinguished from legal structures and corporate charters. High-sounding statutory statements may not cover deep convictions, and vice versa, deep convictions may be present even if there are no legally sanctioned expressions.
* There is nothing, absolutely nothing, in any of the six types that would be objectionable from a Catholic theological point of view. All are honest and respectable combinations of academic life and religious dedication. The question, however, which must be raised is whether or not a given combination is the best (the most prudent, the most efficient) way of upholding human and religious values in a given place and at a given time.
Thus, it may not be wise to push for a canonically chartered Catholic university at a place where public universities operate in a Christian spirit within a Christian climate.
Also, it may not be wise to compel Catholic universities which operate freely and vigorously in a secular society to enter into a legal bond with the church if by this act they become so disadvantaged civilly that they lose their position and must reduce their service to the community. (6)
6. This would be a typical case of losing concrete values in the real order for the sake of abstract values conceived in the abstract order.
But it may be wise for a Catholic institution in a country with an oppressive government to obtain a legal charter from the Holy See and secure the protection that canon law can give in order to be free from interference by the state.(7)
7. At times one hears the statement: the mind of the church is that to be Catholic a university must be under the jurisdiction of the ecclesiastical authorities. I doubt that such could be the mind of the church. In all likelihood the church would be very glad to have Catholic institutions of the third and fourth type (bond of communion with the church, but no legal tie) in countries where the official policy of the government is to propagate and support atheism. The mind of the church would be to take full advantage of the freedom granted. No responsible person in the church would disavow such institutions because they do not have a canonical charter; their support from the hierarchy would be overwhelming.
After this brief look at the empirical reality of the Catholic universities, we should be in position to raise the question What is a Catholic university? Or: How ought a university to be if it wants to be Catholic? Or What makes a university Catholic? (8)
8. The answer to this last question is: people. This is to anticipate the gist of a conclusion to come; also to stress right from the beginning that ultimately persons, and persons alone can make a university Catholic. (But please, do not conclude that the mere presence of persons is enough!)
We are no longer seeking an empirical answer, we want a critically sustainable definition or determination which can serve as a guideline for both the founding of Catholic universities and the assessment of the operation of the existing ones. But how to proceed? If past discussions are of any guide, they tell us that the path toward this determination can be full of pitfalls, either leading into a maze of endless discussions, or into the temptation to jump to conclusions. Caution is necessary.
A good starting point is to make clear that a university is not some kind of metaphysical substance from which its “essential definition” can be deduced. It is ultimately a complex structure of human operations, a set of relationships built upon characteristic activities; all of them ordered to a specific end. In this end is the clue for determining what a university is in general, and what a Catholic university is in particular. (9)
9. In scholastic terms: the correct definition of university comes from its causa finalis, not from its causa materialis or formalis. This is not mere playing with words; it touches the heart of the matter.
It follows that if the question “What is the essence of a Catholic university” refers to a mysterious substance in the institution, it is a misconceived and misdirected question. If it refers to the purpose of the university, it is a good question and leads to the correct answer; such as: it is of the essence of a Catholic university that its operations are directed toward the realization of Catholic values.
At this point we are at a critical juncture; our inquiry could go in two different directions. One leads into the world of abstractions, the other into the world of concrete realities.
Let us see what happens in each case.
If someone takes the path into the world of abstractions, he will raise the question about how the best values, to their highest degree, can be obtained by a university. That is, he will focus his attention on an ideal end, construed mentally. It should not be difficult for him to find an answer. From there is just one logical step to the definition of the Catholic university. Once he is in possession of that definition, he has the criterion to judge and to evaluate, with a certainty that only metaphysics (possibly combined with religious conviction) can give, all other definitions and all universities. (10)
10. This was the way Plato conceived and worked out the constitutions of his ideal state, which no one, not even himself, could ever put into practice.
The problem with this method is that the inquirer went out of the real world, and his conclusions are applicable only in an ideal world. Abstract values are no more real than abstract mountains, and abstract values are no more attainable than abstract mountains are climbable.
The other path is into the world of concrete realities. This is the correct path because it leads to real values, which can exist in the concrete world only. Therefore, the right question in every single instance when a Catholic university is to be founded or being evaluated is a prudential (that is, practical as distinct from metaphysical) question: What type of bond between the secular reality of a university and the sacred aspirations of a religious community is most suitable (most conducive to the realization of values) in a given place at a given time?
The world in which a university must take its place and carry out its operations is by no means uniform; it is full of differences originating in the mentality of the local people, their culture, their civil laws, their very perception of a university. In such an uneven world there is no uniform way of fostering values. The answer cannot be but a prudential judgment. (11)
11. That is a judgment which goes beyond the abstract perception of values and takes into account the concrete and particular circumstances.
But let me add immediately, there is a duty to reach for the very best obtainable values in the circumstances; there is no virtue in a shallow compromise. (12)
12. Our approach is not mere pragmatism either. Admittedly, the judgment about what values are attainable in the practical order is a pragmatic one; but the judgment about what values are the true and authentic ones can be based only on sound philosophy or religious faith.
Thus a Catholic university can blend in the best sense of the term into its environment, it can be the salt of the earth, or better, it can be the well-measured leaven in the mass. (If the leaven is not judiciously measured, either it remains ineffective or spoils the mass.)
Further, because a prudential judgment by its very nature is about concrete situations, the persons best qualified to make it are the persons fully familiar with the circumstances. Without their knowledge, notional and experiential, an abstract theory can be construed, but a feasible plan cannot be worked out.
Let us collect now the fragments of these terse reasonings, and (I submit) there emerges a balanced and harmonious image of what a Catholic university ought to be.
It is the house of intellect made all the brighter by the light of faith. More prosaically, it is an institution to uphold and promote human and religious values according to Catholic beliefs.
It is well-proportioned to its environment; it is adapted to its neighborhood; it blends into the social structures of the place. It provides as much opportuinity for the advancement of learning and religion as possible at a given moment of history. For its religious dedication, it relies primarily on the internal disposition of its constituencies; it is part and member of the Catholic communion but it uses a canonical framework as far as it is helpful in promoting its primary end.
Because the circumstances in which Catholic universities must fulfill their end vary, there is a great deal of variation in their structures and operations; rightly so. The task of the ecclesiastical authorities is to respect this natural order of things and to encourage such a variety. The temptation for the authorities may be to proceed in an abstract way, and to judge the concrete good by the abstract best. Once such a judgment is formed, and the necessary power of jurisdiction is at hand, it takes just one step to make “the ideal” into a common legal norm. If that happens, true values may be the victims. An attempt to impose forcibly what is the best in the abstract but unsuitable in the concrete circumstances, can destroy quickly what good and prudent persons succeeded in building over a long period of time. (13)
13. The first canon on “Catholic Universities” in the Code of Canon Law begins “The church has the right to establish and to direct universities . . . ”, Jus est ecclesiae. . . (Canon 807). One wonders if our speech would not be more ecumenical (in the broadest sense of the term) if the canon stated “The church is ready to offer the service of establishing and directing universities. .
While it made good sense for the church to claim its own rights in an officially Christian state (or in Christendom); it is hardly a suitable way of approaching a modern secularist society.
Some important practical consequences flow from the proposed understanding of Catholic universities:
* To begin with, this understanding transfers the issue of “what a Catholic university is” from the abstract conceptual order (where the question is mostly handled and answered) into the concrete existential order. Now this should not be interpreted as denying the value of construing pure theories; they can be useful as far as they list “conceivable options”; what they cannot do, however, is to determine what option is the best for a given place at a given time. Thus, a theory may well set the ideal structures for a Catholic university, but in practice those structures may not be in harmony with the traditions of a culture (no culture is perfect), or may even be in plain conflict with the local laws; hence to impose and enforce them would defeat the very purposes of a Catholic university.
* Further, it cautions about universal legislation that would impose one pattern in differing situations. A law conceived on the basis of a theory may not only fail to promote the desired values but may even destroy the values which are being promoted. Since we live in an imperfect world, a perfect law can be destructive of the only obtainable values. (14)
14. In our age, in an increasing number of countries, the church is existing and operating in conditions which it has perhaps never experienced in its two thousand years of history: virtually total freedom in an indifferent state. In the pro-Constantine Roman empire it was (by and large) oppression in a religiously lukewarm state. Then it was freedom in close juridical association with the state (the age of Christendom: established church with rights and duties, various struggles between the two “perfect societies”, etc.).
Canon law, as we have it today, is the product of the age of this latter type of relationship between church and state when it was necessary to vindicate and to define the rights of the church toward the secular authority—with which it was (sometimes for the better, sometimes for the worse) in permanent partnership. Hence the church claimed the right to property, to schools, to evangelize . . .and so forth. Ecclesiastical institutions had to be precisely defined canonically because otherwise their identity was not recognized by the state. E.g. there could not be a Catholic university without an ecclesiastical charter and jurisdictional ties. But how much canonical legislation is necessary in the new conditions? There is little experience to guide us. Is it too much to say that the church must learn how to define and guide its institutions in a climate of virtually unlimited freedom?
* Also, the shifting of the problem to the practical order could put an end to the endless and infertile discussions as to what the “essence” of a Catholic university is, and open the door to greater mutual understanding of different situations.
* Finally, it should bring home to all of us that at the final resort the Catholic orientation of a university rests on the judgment and decisions of persons, which cannot be made once for all. To maintain the Catholic character demands an ongoing dedication and alertness; “Catholic” structures may save appearances but not the substance if the persons are failing. In fact, the idea of Catholic university which I offer is a very demanding one. It requires a commitment of all the constituencies not only to the usual academic ideals but also to ideals known by faith alone. Moreover, because it is not satisfied with the establishment of static structures but requires an internal dynamism to keep the religious orientation alive and developing, it genuinely speaks of a living Catholic institution.
Let me add also that the solution I offer has nothing to do with an existential philosophy that builds its positions out of the shifting sand of circumstances. My thoughts are grounded in an authentic metaphysical system, rooted in Aristotle and Aquinas, both of whom hold fast to the principle that values, that is, “what is good” for a concrete living being, exist in the concrete order only.
I wish now to return to the “types” for more comments on them.
The six could be further reduced to three categories:
* the first and second are not Catholic in the proper sense of the term;
* the third and fourth build their relationship on some kind of communion with the Catholic community;
* the fifth and sixth are legally incorporated into the canonical structures of the church.
No more needs to be said about the first group that professes no bond with the church. The two others need our attention. They represent two types of association with the church, the one is through communion, the other is through legal incorporation.
Before we go any further, let me give some background to these two concepts. Communion, or koinonia in Greek and communio in Latin, was a most powerful source of strength and action in the early church at a time when there were no significant legal structures and virtually no central organization. It was a firm dedication to unity, which inspired appropriate actions on the part of all, bishops and faithful. This happened at a time when the church displayed extraordinary energies and kept expanding into the whole known world. Now, if this communion could have been such a powerful factor in holding the church together in ancient times, surely it can be strong enough to hold a university and the believing community together in modern times.
From the twelfth century onwards, in the Western church, powerful legal structures began to develop. They became particularly helpful in unifying the church and directing its activities in the counter-reformation period, which lasted from the sixteenth into the twentieth century. They did more, however they caused a shift in the Catholic mind. Both the hierarchy and the faithful gradually attributed increasing importance to laws in preserving the unity of the church. (15)
15. The Council of Trent, without ever intending it, had put the church on a course where “legal correctness” increasingly overshadowed some greater values. The Council created the idea of “legal authenticity”; for instance, it declared the Latin translation of the Scriptures known as the Vulgate the “authentic” text, to be used in all instructions and disputations; there followed the neglect of the original and inspired text. The popes after the Council declared that the “authentic” meaning of the Council can be given by the Holy See only and forbade access to the original acts; there followed an ignorance of what happened and a reliance for the true meaning of a text on an authoritative (“jurisdictional”) pronouncement.
Such procedures led to the development of a mentality which gave an overriding importance to legislation and jurisdictional acts, but felt little need to return to the original sources.
The steady expansion of a centralized administration is a result of this mentality. Vatican Council II 1aid the theological foundations for the reversal of the trend, and the authorities in the church have taken important steps toward promoting decentralization. At the same time, undeniably, new efforts toward increased centralization appeared as well. (16)
16. In our post-Vatican II church there is a great deal of de iure decentralization, but there is also a steadily increasing amount of de facto centralization. This de facto centralization is manifest when, e.g., the episcopal conferences can approve certain liturgical rites (they have the power in law) but only after Rome has reviewed the issue (they must not do so unless authorized to act); the chancellor of an ecclesiastical faculty has the right to grant tenure but he must not do so until he has received a nihil obstat from Rome. Also, there is a steady stream of instructions to bishops and others directing them how to “use their judgment” when by law they would be free, e.g. in the administration of the sacraments. It would be difficult for an impartial theologian to argue that such developments are in the spirit of Vatican Council II.
The point I wish to make in connection with Catholic universities is that when their catholicity rests on communion with the church, the bond can be just as strong as if it rested on legal incorporation or jurisdictional ties. I assume, of course, that those who live by communion are determined to uphold it. (17)
17. In this context I would like to draw attention to a development in the history of Catholic universities in the United States, a development which is of greatest importance and to date has not been sufficiently noted. I am thinking of the extraordinary service and accomplishment of numerous boards of trustees in majority composed of lay persons. They have been in operation in many universities for about fifteen years or so. The lay trustees have demonstrated their dedication to Catholic ideals. They have worked with the clergy, presided over them at the meetings of the boards, with much satisfaction on both sides. Lay persons have assumed the lion’s share in financial management, and demonstrated a sense of responsibility which invites nothing but admiration.
In the board rooms of universities a silent revolution has taken place and keeps proving itself. Lay persons can take responsibility for Catholic institutions, they can preside over the members of the clergy, and with them, participate in decisions taken by the majority. The clerical members of the board and of the administration of the university are finding no difficulty in reporting and accounting to them. No complaint has been heard (certainly not by this writer) that any lay trustee would have sought to exercise undue influence over religious matters through his or her financial power.
Such a silent revolution, which is an effective demonstration of the capacity and of the sense of responsibility of our laity, was possible because the universities where all this happened were not under ecclesiastical jurisdiction.
Such a determination is necessary also for those who abide by legal structures; if the religious dimension of an institution is not sustained by the doctrine of communion, a reference to its catholicity can be described with Paul’s words only it will sound like a noisy gong or a clanging cymbal.
Now we can turn our attention more specifically to the interplay between the teaching authority and the believing community—as it takes place at a Catholic university.
This section refers to Catholic universities which profess a bond of communion with the church but do not have a legal personality in canon law. Let me stress again that in itself such a bond of communion need not be any weaker than a relationship of legal incorporation, but it is of a different order. It is a bond of common beliefs, mutual trust and respect, revealing itself in practical support and help.
Our question now is: Assuming this bond of communion, what should the relationship be between the magisterium and the university (as an institution)?
I wonder what the significance of this development is for our parishes, dioceses, and even for the universal church; and above all for determining the role of the laity in the church.
Whatever it is, it cannot be a legal relationship because there is no specific superior-to-subject relationship between the teaching authority and the university. There is, however, another bond that has its own binding force on a different level. If the university is committed to Catholic beliefs, it needs to hold in respect whatever the magisterium may declare for the whole church; otherwise how could it be so committed?! But such an act of respect (shall I call it obsequium?) will spring from a spontaneous dedication, not from any legally enforceable obligation. As always, this obsequium ought to be given according to the particular weight and authority of the declaration, as I explained above.
In fact, the response of a Catholic university to a magisterial pronouncement can be greatly helpful in two ways: the university can strengthen the position of the church by its respect for the declaration; or it can contribute to further research if the proclamation is a step toward the whole truth but as yet is not a conclusive judgment.
Examples can be given if the church strongly condemns racial discrimination, a university which professes to be in communion with the church, must not preach or practice such a discrimination. Or, if the church strongly promotes human rights, the university can do much to support such a movement. If the magisterium issues a provisional judgment on a question of bioethics, continued research at universities could contribute out of their own resources toward the further refining of that judgment. (18)
18. Whenever a declaration by the magisterium is based on the natural law, further contribution and help from universities can be vitally important. Since the church has never canonized a philosophical system, in the case of a particular instruction based on philosophical principles, the issue cannot be closed since infallibility cannot be invoked. Responsible scholarly work will be more needed than ever, especially when the issue directly touches the lives of people.
Such an exchange between the magisterium and the university can lead to great enrichment for both sides, and can benefit the whole church. But it can work only in a climate of mutual respect and trust.
Problems, however, could occur. For instance, those who participate in the magisterium (the Congregation for the Doctrine of the Faith, the bishop of the diocese) could conceive their relationship to the university as a juridical one, and proceed accordingly, by issuing an order to be obeyed. But such an approach, if it ever happened, would be based on a misunderstanding. In the correct perception of the relationship, the task of the magisterium toward the insitution is to enlighten and to support, to encourage and to inspire, and not to issue legal precepts.
The task of the university is to be responsive, out of the strength of its original dedication. Such an exchange can become a fine and fruitful play. Admittedly, from time to time it can be spoiled by human elements, ill-conceived responses and delays; but that too is part of the bond of communion among human institutions. With the best of intentions, distrust and impatience may arise on either side. If there is, however, enough confidence in the internal strength of the Word that both sides believe in and honor, misunderstandings and conflicts should eventually be resolved in harmony.
But what if dissent arises within the university on the part of an individual Catholic teacher? Then we have to distinguish between the relationship of the hierarchy to that teacher, and its relationship to the university. As canon law is now, the matter must be handled between the competent ecclesiastical authority and the teacher.
The new Code of Canon Law has a legal provision in canon 812, which must serve as a guide. It prescribes that “They who teach theological disciplines in any kind of institutes of higher studies must have the mandate of the competent ecclesiastical authority”. (19)
19. I broke up the text to facilitate its understanding, the translation is my own. Here is the Latin original: “ Qui in studiorum superiorum institutis quibuslibet disciplinas tradunt theologicas, auctoritatis ecclesiasticae competentis mandatum habeant oportet.” The text allows no other construction than “They who teach, must. . .”; that is, the individual teacher has the obligation to obtain the mandate; it is a personal duty.
Undoubtedly, the rule of mandate, confers a significant legal power on “the competent ecclesiastical authority,” the local ordinary in the first place, the Holy See on a higher level. They can grant to someone the right to teach, or they can deny it or withdraw it. They can certainly set up norms for each of these acts. Precisely because this power is so significant, no effort should be spared to understand it correctly.
The very opening words of the canon make it clear that the obligation is imposed on individual persons who intend to teach any of the theological disciplines; it does not go any further. No other interpretation is compatible with the text, and the general norms for interpretation forbid extending the burden, onus, any further than the law extends it. (20) Thus, there is no legal duty imposed on the institution.
20. A canonical query: Could an ecclesiastical authority (the Holy See or the local ordinary) invoke canon 812 and order a Catholic university which has no legal personality in canon law to appoint as teachers of theology only those who have obtained the mandate?
The response cannot be but negative. The reason is twofold: (1) no ecclesiastical authority has the right to impose a duty on an institution which is non-existent in canon law; (2) no institution can be bound to accept an order from an office which has no jurisdiction over it as an institution. Indeed, I cannot think of an ecclesiastical court that would uphold and enforce such an order.
It may be argued, however, that universities chartered by the Holy See have an indirect legal obligation to give effect to this canon in its hiring policies, precisely because they already operate in the framework of canon law; therefore they cannot ignore a canonical provision. The same arguments could not be used in the case of Catholic universities which are related to the church through the bond of communion, because they do not operate in the framework of canon law
Let us turn now from the textual exegesis to a practical example. Let us suppose that a teacher, Catholic and entrusted with the teaching of Catholic theology, deviates from the Catholic doctrine in a substantial manner; he declares himself publicly as a follower of Arius (c. 250-336, heresiarch), he claims that the Logos was created, factum non genitum, and he professes himself a dissenter from the doctrine of the Council of Nicaea. Surely a heretic by the standard of most Christian communities. (Of course, more modern examples could be adduced; but none clearer than this one.)
The magisterium would be acting within its competence, if it recalled the profession of faith of Nicaea and declared that the belief embraced by the teacher is contrary to the Catholic faith. It could certainly state that a person holding such views does not belong to the believing community. That much should settle the problem between the church and the newly born Arian. If he had a mandate, it should be withdrawn.
But what about the university? Should it take notice of the situation and proceed to action? Most certainly it should take notice of all the factors in the case, and then, through its appropriate procedures, form its own prudential judgment of what the proper action should be. The available options may depend on the local conditions, some circumstances being beyond the control of the university. For instance, it may well be that the laws of the country would protect the vested right of the heretical teacher to tenure, in fact, they would compel the university to continue his employment. If so, it would be imprudent for the university to enter into a litigation that it could not win. The sensible option would be to reinforce its theology department in such a way that the Nicean doctrine is clearly stated, and the inconsistency of the opposite view with the whole of Christian tradition demonstrated.
It would be a mistake to think that the best way of training students consists always in protecting them from erroneous views. Even if such protection worked at the university, they would encounter them as soon as they exit from their sheltered environment, if there is a sheltered environment at any university today! At times, to witness a real conflict while at school may be more formative than many lectures.
When a university obtains a charter form the Holy See, it enters into the legal world of the church and becomes part of its structures and operations. Literally a host of new legal relations arise because a new juridic person has been created. Such a university, as an institution, is bound by all the ecclesiastical laws applicable to it; it is subject to the supervision of the appropriate offices of the Holy See and that the potential is there for conflicts between two perfectly legitimate but different orientations. (22)
22. At the last count, the potential for conflict is, of course, not in the different tasks, witnessing and researching, but in human beings who are never omniscient and omnipotent. A theologian may be far ahead of a bishop in his insights into the mysteries; or a bishop may have a clearer and firmer perception of a mystery than a theologian for whom it is an object of analysis. The potential for conflict is in human beings.
The role of the magisterium in such institutions is reinforced by the requirements of the missio canonica (canonical mission), venia docendi (permission to teach), and nihil obstat (no objection), each of these applicable to a distinct group of teachers. Those who teach “disciplines of faith and morals” must have the mission before they can function; those who teach other subjects within the institution must have the permission, and those who are to be promoted to the highest academic rank (ordinary or full professor) or are to be tenured (at whatever rank) must have the “no objection.” These requirements are more far-reaching than that of the mandate; the Constitution leaves no doubt that both the institution and the individual persons are bound by its norms.
The canonical mission is granted by the chancellor; he is usually the local ordinary but as chancellor he is also the representative of the Holy See toward the institution. The canonical mission is not unique to the academic world; for instance, bishops need it to take possession of their diocese. (23)
23. The meaning and scope of the canonical mission, however, is not the same in the case of a bishop as in the case of a teacher. The bishop receives his canonical mission from the pope; he is assigned a portion of the people of God for his pastoral care; he is inserted into the visible and hierarchical structure of the church; he obtains legislative, judicial and executive power over his diocese. (In a now antiquated perception, he received the power of jurisdiction over the diocese.) The teacher receives a license to practice what he is professionally qualified for.
It would be better to reserve the expression “canonical mission” for bishops, and return to the traditional term “license” for teachers.
Literally translated, canonical mission means an official sending, or a lawful commissioning. In practice it is the act by which an office is definitely conferred. It is the final confirmation of the appointment on the part of an ecclesiastical authority, no matter in what way the candidate arrived at the threshold of that position, by way of an election, through a nomination, or as the result of a promotion. (24)
24. The canonical mission can be granted explicitly or implicitly. Cf. LG 24: The canonical mission of bishops can come about by legitimate customs which have not been revoked by the supreme and universal authority of the Church, or by laws made or recognized by that same authority, or directly through the successor of Peter himself. If it can be given implicitly to bishops, a fortiori it can be so given to teachers.
Although the canonical mission presupposes manifold qualifications, scientific and educational, ultimately it is to the local bishop, both of whom have over it the potestas regiminis the power to govern (although in different measures); to them the university must account with regularity.
Moreover (this is rarely realized) the university by becoming a juridic person in the church, may enter into another cultural world as well. Since the church is human, and universities are of human creation, there may be differences in the very conception of what a university is or ought to be. Such things do not surface at the joyful moments of the foundation but at the difficult times of the implementation.
Further, if the same university is civilly chartered in its country, it will be under two legal systems, which may not operate in harmony. Practical cases may end up with no resolution, or better, with conflicting claims originating in different legal systems. Then, all the wisdom of Solomon may not be enough to find an equitable solution.
As we recall, the canonically chartered universities divide into two groups, “Catholic universities” and “Ecclesiastical faculties and universities,” the former being closer to a genuine universitas studiorum, the latter specializing in research and instruction in “sacred sciences.” Accordingly, there can be differences in the way the magisterium relates to them.
The “Catholic universities” (with an ecclesiastical charter; known also as “pontifical”) have an indirect legal obligation to pay attention to canon 812 concerning the “mandate” because they are inserted into legal structures of the church. Their obligation is indirect because the duty of having the mandate is directly imposed on the individual teacher. But to be a legal person in the church, as these universities are, means that they must respect and uphold the internal legal order in the church which requires that a teacher should have the mandate. It follows that they have the right and duty to ascertain that the canonical requirements in their teachers are fulfilled.
I am somewhat cautious, however, because even such universities are embedded in a culture and may be functioning civilly on the strength of a legal system which does not allow the application of canon 812; at least not without putting the university into a disadvantaged position among others, such as loss of accreditation, public support, and so forth. If that is the case, the virtue of justice postulates the invocation of epieikeia in place of the straightforward application of the law. (21)
21. According to Aristotle, laws are in the service of the virtue of justice. But laws are by their nature limited; in some cases not only may they fail to do justice, they may even work injustice. The reason for this limitation is that all laws are general, abstract and impersonal, but all cases crying for justice are particular, concrete and personal. Therefore a corrective is needed if justice is to be done. This corrective is what he called epieikeia, often translated as equity; it is an exception to the law for the sake of true justice. (See Nichomachean Ethics, 5, 9.)
Since the need for a corrective flows from the very nature of law, canonical norms may be in need of a corrective too. Should such a need emerge, it is legitimate to invoke epieikeia.
The “Ecclesiastical universities and faculties” have their own particular law in the Apostolic Constitution Sapientia christiana, and in the attached Ordinationes. Their overall purpose, however, is stated in the Code, in canon 815; it should be quoted in full because it is a difficult text.
The church, on the strength of its mission to proclaim the truth, has the right to establish universities or ecclesiastical faculties, for the purposes of conducting research in sacred disciplines and in others connected with them; also for giving scientific instructions in the same disciplines.
The meaning of “church” is ambivalent: does it mean the community of all believers in a general way, or does it mean specifically the hierarchy? Surely, the whole church has the mission to proclaim the truth; yet in the context there can be no doubt that the word means the hierarchy.
Now the prime mission of the hierarchy is not to do scientific research, nor is it to give academic instruction, but to witness to God’s mighty deeds. It follows that in such “pontifical faculties” a very delicate situation is created: the mission of witnessing is brought together with the task of the academia. Add to this that these “faculties” are usually instrumental in training candidates for ordination, which is a “sacrament of sending,” and you can see granted on the basis of a judgment on the religious suitability of the candidate. Such a grant, of course, can never make a bad theologian into a good one; it is the duty of the one who makes the grant to ascertain that the candidate is academically qualified.
Sapientia christiana gives the reason for the requirement of the canonical mission: “they do not teach by their own authority, but on the strength of a mission received from the church” (Art. 27 # 1). The correct interpretation of this clause is difficult. At times one hears it paraphrased as “they do not teach in their own name but in the name of the church,” which, if anything, makes an explanation even more difficult.
Before anything else, there is again the problem with the term “church”; does it mean the whole church or does it mean the hierarchy? It cannot possibly mean the whole church (that is, the whole people of God!); the word must have a more limited sense. But it cannot mean the hierarchy either, at least not without some reservations. The episcopal power of witnessing the message is certainly not transferred by the canonical mission nor do the teachers acquire a charism to speak in the name of the church—as is given by the Spirit to the episcopal college. So what is the meaning of this “teaching on the strength of a mission (authority) received from the church”?
For an answer one must begin with the obvious question: what is given to a teacher by the canonical mission which he did not have before? It cannot be anything in the order of grace, or in the order of science, since the conferral of the canonical mission does not make anyone holier or more learned than he was before. It can only be something in the juridical order: it must be the approval for the office. The person becomes legally qualified to teach at an “ecclesiastical faculty.”
By what authority then does the teacher teach? He certainly has the authority conferred on every Christian by baptism to proclaim the evangelical message. He is also invested with the authority to conduct courses, give lectures, carry out examinations, and participate in the government of the institution. As regards the content of his doctrine, it will have as much authority as the reasons supporting it; both Gratian and Aquinas would agree to that. Therefore, there is no magical change when a person is granted the canonical mission, either in his doctrinal authority or in his capacity as teacher; all that happens is that he can practice his profession at an ecclesiastical institution, in a position of trust. (25)
25 1t is interesting to compare the conception of Gratian and Aquinas with that of Sapientia christiana concerning the authority by which a magister teaches. Neither of the two medieval authors speaks of the authority of the church being somehow vested in the teacher; both make it clear that the authority a teacher must invoke is that of reason (meaning reason informed and enlightened by faith). The implication is that the teacher’s doctrine has authority as far as it is supported by reason. True, Aquinas insists that a license is required for teaching, but it does not occur to him that such a juridical act could give any authority to the doctrine taught.
Thus, the meaning of the clause quoted can be rendered as “teachers in an ecclesiastical faculty do not have their position on their own authority but through an appointment (or the approval of it) from the competent ecclesiastical superior,” which is plain English, correct theology and makes good sense. (26)
26. Here we have another illustration of how difficult it is to get to the correct meaning of a text if the term “church” is not used with precision. Church means “gathering,” ecclesia; it means the whole of it. The so-called “clericalization” of the church was a regrettable historical development; it caused a shift in the understanding of the word “church.” If by some kind of holy conspiracy all the theologians and canon lawyers agreed to use the term “church” only in its true sense, that is, in reference to the whole ecclesia, they would be doing a great service to the whole community. Gradually, all would become aware that when a document or decree (less than infallible) is published, it is the act of a Congregation, of an episcopal conference, of a particular bishop, but not “of the church.” Without much explanation, believers and unbelievers would have a better knowledge of what the church is or is not, what it says or says not, what it does or does not. Of course, this moderate use would in no way prohibit one from saying “the church has spoken through the Council of Nicaea”, or “the church must work for peace”—and so forth. The use is correct as long as it refers to an organ which can speak for the whole community or refers to the aspirations of all.
Sapientia christiana seems to imply that by the fact that the magister teaches “on the strength of a mission received from the church” his doctrine somehow obtains greater authority. This may be true of episcopal teaching in appropriate circumstances; it cannot be true of academic teaching, which must be based on the authority of reason—as explained.
An interesting study would be how the sharp medieval distinction between the two types of teaching has become somewhat obliterated. One historical reason might well be found in the sad state of theology after the Council of Trent when disputed issues about the Council (and indeed about the Scriptures) could not be resolved by turning to the original sources but had to be settled by a decree of the Congregation of the Council. A new concept developed: teaching with authority did not mean the invoking of reasons but the invoking of administrative decrees.
The difference between the cathedra pastoralis (the authority of the bishop is rooted in his sacramental office), and the cathedra magistralis (the authority of the teacher is as good as his reasons) remains intact. (27)
27. Undoubtedly, the close association between the episcopal authority and the teaching function at an ecclesiastical faculty can lead to unwarranted transfers: the hierarchy may expect the teachers simply to echo their statements (they teach in the name of the church!), or the teachers may proclaim their opinions without supporting them with valid reasons (thinking that they have a special authority).
The permission to teach is necessary for all other teachers within an ecclesiastical faculty; no matter what they teach; whether they are Catholics or not. The chancellor has the right to grant it.
The requirement of the “no objection” guarantees that no one will reach the highest rank or will get tenure if the Holy See, which alone is competent to issue the declaration, is not satisfied with the qualifications of the person. The procedure must be described in the statutes of each institution; the general law does not give further details. (28)
28. A complex process which may easily become lengthy beyond measure should any problem arise. The surprising feature of this law is that even when there is a significant number of bishops directing and controlling the institution, they are not authorized to make a judgment on the suitability of the candidate for promotion until the reception of the nihil obstat from Rome.
My purpose is not to give a full systematic exposition of the doctrine of academic freedom and of the problems connected with it; nor is it to propose precise practical rules for its protection. Such a vast enterprise would be well beyond the scope of this inquiry.
I intend to present the issue in fairly general terms, first by outlining its context, then by identifying its basic elements, finally by outlining some practical rules which can be helpful for the protection of this freedom.
What is the context?
The broad context is indicated by the very purpose of the university: to be the house of intellect in the community at large. A university is not an isolated self-serving institution; it exists for the sake of the society surrounding it. That society has created the university and keeps supporting it and renewing it by the influx of persons and funds. The university, in its turn, nourishes the community with knowledge and provides trained persons for all kinds of jobs and tasks. Its operations touch somehow the life of many (all?) of those who live and work outside its boundaries.
It follows that the issue of academic freedom is not merely an internal problem, to be left to and handled by the academicians alone. All those who have an interest in the university, have also an interest in academic freedom.
What is academic freedom?
Let us begin with the general concept of freedom in an organized human society. The life of such a society turns on a balanced play between contrasting forces and interests. One of such a pair of forces is in the right-and-duty situations: if I have the right to a service, someone somewhere has the duty to perform it. Another one is in the freedom-and-restraint situations; if I have the freedom to speak, all others are restrained from interfering with it. Those who have a freedom are like persons living in a protected territory; the others are enjoined from entering it.
In the case of academic freedom the territory in question is the academia. Those who belong to it are entitled to carry out their activities unhampered. Such activities are manifold; the most prominent among them are those which are directly connected with the primary purpose of the university, such as gathering information, proposing insights, testing hypotheses, formulating judgments (probable or certain), communicating knowledge to others, and so forth. Other operations too postulate freedom: the testing of the students, participation in the government of the institution, as well as serving the general public in an intellectual way through lecturing and publishing.
All consiclered, academic freedom is nothing else than the freedom to do what is necessary to help the university to fulfill its purpose. Clearly any community which wants a university in its midst wants academic freedom as well; which is to say that it wants to restrain the citizens from interfering with the academia.
How can academic freedom be assured?
The problem is not a new one; it must have surfaced in the middle ages, otherwise it would be difficult to explain why the universitates studiorum were constantly seeking exemption from local jurisdiction, ecclesiastical and civil, and wished to place themselves under the protection of popes and emperors. Such efforts clearly show a realization that the house of intellect serves a broad human purpose which transcends the local interests. Inside the universities, new institutions sprouted from this conception of freedom, such as internal and autonomous courts of justice, elected representatives to be sent to the parliament, and others.
To this day in some European countries academic freedom is assured by constitutional provisions, not unlike the independence of judges. In the United States accrediting agencies, professional societies, and departments of education of individual states and courts of law, all contribute, each in its own way, to the safeguarding of academic freedom.
In the church, the new Code of Canon Law, lists among the fundamental rights of the faithful the freedom of inquiry:
“Those who are engaged in the study of sacred disciplines, in matters in which they are experts, enjoy the just freedom of inquiry and of expressing their mind prudently, with due obsequium toward the magisterium of the church.” (Canon 218)
This canon is applicable to anyone who is engaged in the study of, say, theology; but the prime place for its application is obviously within the boundaries of the Catholic universities and ecclesiastical faculties. It is reinforced by another one:
“ The faithful are entitled to vindicate and defend lawfully their rights, which they enjoy in the church, before a competent ecclesiastical forum, according to the norm of the law.” (Canon 221 § 1) (29)
29. Unfortunately the provisions of canon law for all practical purposes end there. I say for practical purposes because although theoretically there are ways and means of vindicating rights in the church, in the practical order the procedures are most of the time so complex, protracted and expensive, that a thoughtful canon lawyer will hardly ever counsel someone to initiate such a case.
What are the limits of academic freedom?
Freedom in an organized society always has its limits since it imposes a restraint on others; unlimited freedom would mean unlimited restraint. The limits in our case are determined by the boundaries of the academia; nothing more, nothing less. As long as the reflecting, teaching, communicating is in the service of the purpose of the house of intellect, freedom is justified. If someone uses his position at a university for the promotion of other causes, such as for the spreading of unscientific ideologies or the support of commercial interests, he is surely overstepping the legitimate boundaries of freedom.
Can religious principles set limits to academic freedom?
The answer depends on the nature of the university. In a secular university operating in a pluralistic society it would be utterly wrong to set a limit on the basis of religious ideas. This is so clear that I do not see any need to discuss it further.
But if the constituencies of a university have freely chosen to commit themselves to the service of religious values, the situation is different. They have exercised their freedom by adding this specific scope to the generally recognized purpose of the university. If they want to operate within that scope, they must have permanent freedom to direct their operations toward it, and to demand that others should be restrained from interfering with it. If not, the commitment to those values is worthless.
It follows, of course, that a person who is unwilling to accept or respect the choice for religious values, should never participate in the work of an institution so committed. This is simply a matter of fairness and honesty for all concerned.
But human nature being what it is, problems still may arise. There could be misunderstandings in the beginning.
There could be even a change of heart in someone; a person may not wish to support or even to respect values that at one time he had judged desirable; in fact he may undertake a campaign against the same values right at the university. What to do then?
The ideal solution would be in a peaceful separation, which is usually the most efficient way of preserving respect for each other. If that is not possible, the next course of action depends on the local circumstances.
If the university is civilly chartered but has no canonical status, the matter ought to be regulated according to civil law. For the rest, it should be a matter for the wisdom of the university to find a way of safeguarding its own dedication—with fairness to all concerned.
If the university is merely canonically chartered (there are such universities in Europe), the case will have to be handled within the framework of canon law, which, as we have seen, provides in various ways for the protection of the Catholic orientation of the institution (cf. the requirement of mandate, canonical mission, etc.). (30)
30. All judgment should operate within a sound hierarchy of values. An attempt to dismiss a teacher for proven opposition to the religious commitment of the university may result in the university losing its civil privileges and eventually losing its students as well. A strong and healthy institution should know how to create the necessary dialectics to clarify the situation; by dialectics I mean sound and vigorous academic debates.
If the university is both civilly and canonically chartered, there may well be a conflict of laws. Such a conflict is hardly ever amenable to a resolution by principles because it originates in concrete and particular regulations. No one but those who are experts in both systems can even attempt to disentangle the complications. These are the situations to which I have already referred by saying that all the wisdom of Solomon may not be enough to find the correct solution. The available solution may be no more than an honest settlement among conflicting claims. (31)
31. The Declaration on Religious Freedom of Vatican Council II undoubtedly has relevance for an understanding of a religiously committed university in a pluralistic society. The church must respect the mind of the nation (the light, imperfect as it may be, of the conscience of the nation) in organizing its own institutions of higher education; it cannot simply withdraw from the scene and follow its own ways. (Dignitatis humanae)
Admittedly, the most delicate and complex cases are likely to arise in “ecclesiastical faculties” dedicated to research and teaching in sacred sciences. There freedom must be maintained within the parameters set by religious beliefs. Some guidelines and norms for achieving harmony can certainly be conceived, such as:
—the rights and duties of the individual faculty members and of the university should be clearly spelled out before any appointment is finalized;
—there should be good and workable structures to handle disputes or conflicts;
—besides the local remedies, there should always be ways and means for appeal.
Once these provisions are in place, it remains still true that there is no substitute for wisdom and prudence in all concerned. Even the best of structures can be turned into instruments of oppression or endless turmoil if they fall into the hands of the wrong persons.
Who should be the judges?
The right to judge belongs to those who have responsibilities for, or towards, the university. Accordingly, whatever the procedures may be, they are likely to be complex. A good judicial system will always try to give a scope to the intimate knowledge of the insiders, and a scope to the detached perception of the outsiders. Should there be a prima facie case of violation (someone inside the university overstepping the boundaries, someone from the outside unduly interfering) it is fair and just that those who are closest to the case and know the circumstances best should form a first judgment; this is the judgment of peers. It is equally fair and just that there should be an opportunity for some kind of appeal, be it to a constitutional court, or to an accrediting body, or to a commission appointed for the purpose.
A remark concerning canonically chartered institutions.
It is now easy to locate the specific problem of ecclesiastically chartered institutions: they are supervised by the episcopate of which the specific task is pastoral care, and they have to function as universities of which the scope is scientific research and teaching.
The first step toward handling the relationship is the awareness of this difference on both sides; otherwise, the wrong types of expectations will build up. The hierarchy will expect and request pastoral help; the researchers will demand episcopal endorsement for their tentative hypotheses.
The second step is in balancing the proximity brought about by the bond of law with the due distance postulated by the differences in scope and task.
Thus we come to say it again: ultimately it will be a matter for prudential judgment. No matter how perfect the statutes may be, how many rules are drawn up, there comes a point where there is no substitute for a sound particular judgment.
To illustrate this, let me turn to the magistra vitae, history.
Lean years, rich years
Let me begin by narrating what happens if there is too much control. The story is not invented; it is history, from within living memory.
After the silences and privations imposed by the second World War, there was a sudden blossoming out of theological research and reflection in the Roman Catholic church, heralding the advent (or so it was thought) of a new theology. In reality, it was not all that new; its roots went back to various biblical, patristic and historical studies carried out (with interruptions and impediments) ever since the beginning of the century. Now, as happens always when there is a true effort to reach the truth, there were exaggerations and mistakes; but on the whole the fields were heavy with the promise of a rich harvest. Then, in 1950 the encyclical Humani generis was published, and in the wake of it (even if it was not so intended by the document) “the disciplining” of theologians began. Books were withdrawn from circulation, translations and new editions of “potentially harmful” works were forbidden (among them such a judicious one as Congar’s True and False Reform of the Church). Some thinkers (Karl Rahner, John Courtney Murray) were ordered to submit their writings to special censorship. Well-known teachers were removed from their chairs, or restricted in some other way. What was the result?
In well-known and respectable theological schools a new climate developed. Some professors (the more creative ones) refused to publish their lectures or to put their thoughts into writing, for fear of being condemned. If someone wanted to know their doctrine, he had to go to “students’ notes.” Stenciled texts travelled from one place to another; I myself remember that when I was studying theology at Louvain (1948-52), some of Teilhard’s (and of others’) writings reached us in this way. Teachers tended to develop a new phraseology that both conveyed their ideas to the initiated and covered it up for all others. The subtle oppression did not really put an end to original thinking (or to the mistakes that accompanied it) but succeeded in creating a climate of distrust and suspicion.
It was a climate totally unbefitting the church of Christ. Fortunately Vatican Council II swept it away, and we have seen (I have seen), not without amazement, several of the theologians who not so long before were “under a cloud” present in Rome and advising the Fathers and helping them to draft the documents by which the church lives today.
If there is a lesson in this experience, it is that well meant condemnations in the interest of truth can create a climate which is destructive for the truth. Then the second evil is worse than the first.
In ordinary circumstances, the church is strong and healthy enough to throw out the chaff, even if the process takes some time. The parable of the zealous servants is as valid as ever: premature weeding may well uproot the wheat. Besides, according to the same parable, the master knows about the conditions of his field, and has every intention to take care of it once the time has come for the harvest.
But this is not the note on which I wish to close this chapter: truth and fairness demand more.
The contribution of Catholic universities (of whatever type) to the progress of religion and culture is well known, no need to insist on it. The more specific achievement of “ecclesiastical universities and faculties” dedicated to “sacred sciences” is less known to the general public and at times is not fully perceived by experts either. To say that Vatican Council II was prepared quietly and unobtrusively in such places would not be an exaggeration—it was prepared by nothing else than the standard and quality of research and teaching. The finest tools in theological investigations, such as the Dictionnaire de théologie catholique, Lexikon fur Theologie und Kirche, and New Catholic Encyclopedia have been conceived, created and composed mostly by faculty from such institutions. In one way or another, the Roman College (which has become the Gregorian University of Rome), the École Biblique in Jerusalem, the Institut Catholique in Paris left an indelible impact on Catholic theology. To this day, the scientific standards of many publications coming out from such ecclesiastical faculties in Belgium, France, Germany, Italy, Spain and other countries bear witness to a dedication to the most rigorous standards of scholarship.
This is not to deny that there are institutions which have never reached such a level, perhaps have never come anywhere near it. My intention in quoting the achievements of good years is rather to confirm once again that when right persons are around and they can work in a climate of freedom and trust, there is bound to be a rich harvest. (32)
32. I like to direct the reader’s attention to a recent publication which came to my attention too late to be inserted into the Bibliography: James John Annarelli, Academic Freedom and Catholic Higher Educahon (New York: Greenwood Press, 1987). The book contains ample and important documentation on the history and issue of academic freedom in Catholic institutions in the United States.
There are the paradoxes of the Christian community: it will remain forever a learning church because the depth and breadth of God’s mysteries can never be known; it will remain forever a teaching church also because God’s mighty deeds for our salvation must be proclaimed to the whole creation.
Further, its progress toward the fullness of the truth will be marked always by joy and frustration; it has never been easy for human beings to get acquainted and with divine mysteries. The twelve apostles could testify to that.
Perhaps there is no other activity in the church where the limitations of our human nature can be more strikingly revealed than in our efforts to advance toward the fullness of the truth. But weak as we are, we are not without hope; in our weakness the strength of God can become manifest.
The prayer of the Psalmist may be appropriate for all of us:
“May the Lord give strength to his people! May the Lord bless his people with peace!” (Ps 29,11)
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