How are theologians in Catholic universities bonded to the Church?
Please, read what I have said elsewhere on the six types of universities. These 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 lions 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 Pauls 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 communityas 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 Gods 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 churchas 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 teachers 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 peaceand 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 reasonas 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.
From: The Church: Learning and Teaching, by Ladislas Örsy, Michael Glazier 1987, chapter 4. Read the whole chapter here.
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