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Muzzling the theologians

Muzzling the theologians

by Richard McBrien

from THE TABLET, 20 March 1999, p. 397; here re-published with permission.

American Catholic universities have a proud tradition of academic freedom. That is why they have been so successful. A new directive from the Vatican could threaten their future, according to the professor of theology at the Universiy of Notre Dame.

MANY Catholic educators and scholars, particularly in the United States, breathed a sigh of relief when they read Pope John Paul II’s apostolic constitution, Ex Corde Ecclesiae (“From the heart of the Church”), on the place of Catholic universities in the Church’s life. Released on 15 August 1990, the document was divided into two parts: the first on the identity and mission of a Catholic university, and the second containing practical norms for implementing the terms of the document. There were several positive statements about these institutions of higher learning and about the faculties that teach in them. It could have been worse, many Catholics in education thought.

Others, however, were troubled by the landmines placed here and there throughout the papal text: the subtle equation of “the Church” with the “hierarchy”, or simply with the “magisterium” or teaching authority; the need of the Catholic university, as an institution, to recognise and adhere to that teaching authority; the role of the local bishop in preserving and strengthening the Catholic identity of Catholic universities in his diocese; and the seemingly one-sided obligation of theologians to respect the pastoral authority of the bishops, without a similar injunction directed to the bishops to respect the scholarly authority of theologians.

Perhaps the most important concession in Ex Corde Ecclesiae was its explicit recognition that not all Catholic universities are alike. Most Catholic universities, the Pope acknowledged, were not established or approved by the Holy See, an episcopal conference, or a diocesan bishop. He pointed out that universities founded and governed by religious orders or by lay people would apply Ex Corde Ecclesiae’s general norms in the light of their own special circumstances and in keeping with their own governing documents.

Meanwhile, the mandate from the competent ecclesiastical authority required under canon 812 of all Catholic theologians teaching in Catholic universities was only mentioned in a footnote. But administrators and theologians in the Catholic universities themselves and many American canon lawyers believe that canon 812 cannot be applied without undermining the academic freedom of Catholic institutions. They fear it would make it more difficult for Catholic universities in America to recruit top-flight faculty staff, and that it would tend to diminish the reputation of these institutions.

The apostolic constitution left to the various national conferences of bishops the task of applying the general norms specifically to their respective countries. In addition to the Code of Canon Law, these applications were expected to take into account the statutes of each institution as well as the civil law of the region. But the Pope reserved to the Holy See the right of final review and approval.

That was in 1990. Today the academic sector of the Catholic Church in the United States is embroiled in a controversy provoked by the Vatican’s rejection of the American Catholic bishops’ proposed application of Ex Corde Ecclesiae. Although the bishops had approved the application with virtual unanimity in November 1996 (the vote was 224-6), five months later (a relatively rapid response for the Vatican) the Congregation for Catholic Education indicated that a “second draft” was needed, and that such a draft should function as a “juridical instrument” with norms for the United States which “have a true juridical character”.

Faced by this request of the congregation, the implementation committee of the United States bishops asked the president of the bishops’ conference to appoint a subcommittee of canon lawyers to assist it in its work. The subcommittee was duly established, with Cardinal Anthony Bevilacqua, Archbishop of Philadelphia, as its chairman. Significantly, Cardinal Bevilacqua was one of a mere handful of bishops who had originally opposed the application that had been approved. It came as no great surprise, therefore, that the new “juridical” draft produced by this subcommittee faithfully reflected Cardinal Bevilacqua’s views and of those of the tiny minority of bishops who had voted against the application document that was subsequently forwarded to the Holy See.

This second, “juridical” draft is now under discussion by the bishops of the United States and by administrators and faculty members of Catholic universities and colleges throughout the country. Two of the most dramatic elements of that discussion thus far have been the publication of a hard-hitting article in the 30 January issue of the Jesuit weekly America, coauthored by J. Donald Monan SJ, former president and current chancellor of the Jesuit-sponsored Boston College (which, in spite of its name, is actually a large university)’ and Edward A. Malloy CSC, president of the University of Notre Dame; and a speech given by Cardinal Francis George, Archbishop of Chicago, at the annual meeting of the Association of Catholic Colleges and Universities in Washington on 2 February.

In their article, Frs Monan and Malloy argue that the subcommittee’s draft of the application “fails to do what Ex Corde Ecclesiae itself asked of episcopal conferences, namely, to take account of the distinctive statutes of the universities and the civil law of the region”. In the United States, Catholic universities expect to enjoy “institutional self-governance or autonomy and academic freedom in teaching and research”. It is their boards of trustees or directors who “hold the ultimate governing authority and responsibility for carrying out the university’s mission”.

The subcommittee also overlooks the crucially important distinction which Ex Corde Ecclesiae had made between universities established and governed by official church authorities, such as the Catholic University of America in Washington, and those (clearly the great majority) which are legally and canonically independent, such as Notre Dame and Boston College. These latter institutions are more accurately described as Church-related or Church-affiliated than as “canonically Catholic”.

With regard to canon 812 on the necessity of theological mandates from ecclesiastical authority for those teaching theology in institutes of higher studies, the article in America holds up for criticism the “incongruity” between the affirmation of academic freedom made in the subcommittee’s second draft and its “array of prescriptions” to reinvigorate that particular canon. “The subcommittee’s Herculean effort to make this canonical mandate acceptable", the article says, “cannot conceal the fact that it is an instrument, however ineffective, to control what is taught and written." This authority to control the teachings and writings of theologians is “legally and organisationally external to the university and its governance", an arrangement that is totally and absolutely unacceptable to university administrators and faculty alike.

The subcommittee’s failure to safeguard the institutional autonomy of Catholic universities and the academic freedom of their faculties “would be enough to make the draft positively dangerous to these institutions”, Frs Monan and Malloy warn. But there are other problems as well. This so-called “juridical” draft would have the effect of removing lay people from the governance of Catholic universities, with the ultimate responsibility residing once again with clerics and religious. The Monan-Malloy article also singles out for special criticism the “juridical” draft’s use of the theological concept of “communion”. (The notion of communion is also at the heart of Cardinal George’s defence of the subcommitteets draft, as we shall see.)

WHILE Ex Corde Ecclesiae itself makes only a very brief reference to the notion of “communion” near the end of the text, the subcommittee’s draft application places it, as does Cardinal George, at the centre of its argument. According to Frs Monan and Malloy, ‘’this is a further illustration of the centrality within the subcommittee document not of Ex Corde Ecclesiae’s ideals, but of the revivification of canon 812". In other words, the draft application is using the notion of “communion” as a cover for its real purpose - which is to reinstate a canon which has already been widely rejected as unworkable in Catholic universities in the United States.

By contrast, Cardinal George welcomes the subcommittee’s “juridical” draft, and he does so on the basis of a doctrine of the Church as “communion” which he assumes to have been the core of the Second Vatican Council’s own teaching on the Church. What does he mean by “communion”, however? For him, communion describes a “network of relationships created when the gifts of Christ are shared”. It is a community in which “no baptised person, no ecclesiastical institution, is completely autonomous, and no one is Catholic simply on his or her own terms”.

According to the Archbishop of Chicago, the Pope views Catholic universities as residing and functioning in “the heart of the Church” in such a way as to be “intrinsically related to all those people and institutions that also share Christ’s gifts”. “This picture”, Cardinal George says, “is a threat only for those who understand freedom as complete autonomy and for whom relationships jeopardise control.”

But when the cardinal gets into the details, he seems to use words to say one thing but to mean another. Thus, he assures Catholic university personnel that the theological mandate granted by the local bishop is simply “a statement of relationship, not of direct control”. It is a juridical recognition “that a Catholic theologian teaches in communion with the Church, and the theologian is related to the pastor of the faith community, who recognises the importance of his work for the community of faith”.

But several questions are begged here. First, what effect will this mandate to a theologian from the bishop have on the current relationship between the theologian, on the one hand, and the local Church and the universal Church, on the other? The cardinal says that all it does is to make that relationship “visible”. But in that case, what does the current relationship lack in terms of visibility?

More important, what would be the academic effect of a bishop’s withholding of the mandate? On what basis will the bishop make that judgement to withhold the mandate? Will that judgement be backed up by arguments which are made public, so that the theologian’s peers and the wider Catholic community may examine and evaluate them? Can the theologian’s classes be listed as theology courses, or must they be listed under some other category? Will students be forbidden to take such a theologian’s classes? What expectations will students and parents have of courses taught by a theologian who was (a) granted the mandate, or (b) denied the mandate? If he is not tenured, will the theologian’s chances of being tenured be diminished or nullified entirely?

Cardinal George tries to reassure the Catholic academic community that the granting of the mandate “does not put the bishop into the governance structure of the university, any more than granting a theologian membership in the Catholic Theological Society of America puts that organisation into the university’s government”. But there is no comparison. First, the criteria for membership in the CTSA are purely objective (especially regarding advanced degrees earned) and have nothing at all to do with the organisation’s assessment of the applicant’s theological writings. Secondly, such membership can have no possible effect on the theologian’s capacity to teach as a theologian in a Catholic theological faculty or to teach theological courses in a Catholic institution. lIardly any students or their parents have even heard of the CTSA, much less know which of the faculty belong and which do not.

By contrast, if the local bishop were to deny a mandate to one of those same faculty members, that fact (not necessarily the reasoning) would become public knowledge and would be used by conservative Catholics to put pressure on the university to restrict that theologian’s teaching activities as a theologian. Such Catholics would also use the withholding of the mandate as evidence that the theologian is unorthodox and that his teachings and writings are completely unreliable from a Catholic point of view. Why else would the Vatican want to enforce the mandate if not to ensure “truth in advertising”, as many of the mandate’s defenders like to put it? Parents and students, they insist, have a right to know that what they are paying for in tuition, namely, a Catholic theological and doctrinal edueation, will actually be delivered. It is the local bishop’s job to give them that assurance. But, then, all of the questions listed above come back into play.

It is true that Cardinal George raises some questions of his own regarding the impl mentation of the bishop’s mandate: f~ example, what about the status of no Catholic faculty members, and is the ma date transferable from university university? But these are soft questions. The hard ones are side-stepped - the ones that undermine the cardinal’s (and other. assurances that there would be no negative fall-out if the relationship between the hierarchical Chureh and the Catholic academic community was made juridical.

I return here, by way of conclusion, to what is perhaps the most troubling aspect the arguments of those who support and defend the “juridical” approach, namely their use of the doctrine of the Church on “communion”. For Cardinal George and others, “communion” is simply a matter relationships - but relationships, mind you in which there can be no autonomy of individuals or ecclesiastical institutions. But the argument against autonomy is only used against university personnel, never against the hierarchy. In fact, however, according to the Second Vatican Council the bishops are not “autonomous” either.

The doctrine of “communion” is realyl about the nature of the Church as a “communion” of local Churches, each of which is the body of Christ in a particular place (‘Lumen Gentium, 26), and all of which together constitute the universal Church. The doctrine of “communion” requires not only that local Churches see themselves in a profoundly spiritual relationship of “communion” with the other local Churches and with the universal Church, but also that the universal Church should fully respect the pastoral integrity and, yes, even autonomy of the local Churches, in accordance with the principle of subsidiarity, that nothing should be decided or done by a higher agency that can be decided or done as well, if not better by a lower agency, in this case the local Church, or the Catholic university within the local Church.

Thus, if a doctrine of “communion” is at all applicable here, it means that Catholic universities are indeed part of the life of the local, regional, national and universal Churches and exist to contribute to that life and to the strengthening of the ties of faith and love that bind these Churches together. But a doctrine of “communion” also means that the universal Church and the Roman Curia, as well as the local bishop, must respect the academic integrity and institutional autonomy of these education institutions. This is the other side of the doctrine of “communion” that keeps getting lost in the argument- an argument that as Frs Monan and Malloy correctly observe turns the concept of communion on its head.

The Catholic bishops of the United States will be reconsidering the whole matter at their annual meeting in Washington DC, in November. Speculation abounds whether they will capitulate to the Vatican’s wishes by endorsing this new draft application. If they were to do that, they would do serious harm to the effectiveness and reputation of the very institutions which have yielded the best-educated Catholic laity in the history the Church.


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