How far are Catholics morally obliged to obey the pope? Some centuries ago this question arose politically. Suppose the pope commanded you, for the good of religion, to abandon allegiance to your political ruler; would you be morally bound to do so? Since the Second Vatican Council the question has arisen once again with the liturgy. In 1970 Paul VI commanded the abandonment of the long-established Latin rite for a new rite that was a radical revision. The older rite was restricted, for many effectively forbidden. But then later popes began to remove these restrictions, and Benedict XVI even encouraged its celebration, claiming that it could never be right to suppress it. Now in Traditionis custodes Francis has re-imposed restrictions, limiting the discretion of bishops to permit the liturgy, as a path to the older rite’s complete suppression. Papal decree reverses earlier papal decree, with spiritual burdens all along the way for many priests and for their people. Again we face the question; are we bound to obey the pope? 

Some Catholics are in no doubt. On social media supporters of Traditionis custodes gleefully cited Pastor aeternus, the decree of the First Vatican Council that defined a papal primacy not only of teaching but also of jurisdiction. This decree seems to dictate unconditional obedience to papal legislation:

Therefore in relation to this juridical authority [of the pope] clergy and faithful, of whatever rite and dignity, both singly and collectively, are bound by a duty of hierarchical subordination and true obedience, and this not only in matters concerning faith and morals, but also in those which regard the discipline and government of the Church throughout the world.

One internet ultramontane posted this very passage, underlined in green ink, and claimed that even public criticism of the motu proprio was “Protestant” and forbidden. Pastor aeternus again:

The sentence of the Apostolic See (than which there is no higher authority) is not subject to revision by anyone, nor may anyone lawfully pass judgment thereupon.

Opponents of Traditionis custodes struck back. They too appealed to the papalist tradition in Catholic theology, this time not to the teaching of Pastor aeternus, but to the theology of the Counter-Reformation. Long before Vatican I many theologians already defended a papal primacy of teaching and jurisdiction, opposing appeals against papal decrees to any other authority within the Church and especially opposing appeals to a general council. These theologians included Francisco Suarez and Saint Robert Bellarmine, who in their turn cited eminent papalists preceding Trent, such as Juan de Torquemada and Cajetan. These theologians all defended something like the understanding of papal primacy taught in Pastor aeternus; but they still entertained the possibility not only of a pope who fell into heresy, but also of a pope who misused his legislative authority to attack the Church, and who, if he did so, would morally have to be opposed. Bellarmine insisted:

As it is lawful to resist a pope if he attacks the body, so it is lawful to resist him if he attacks the soul or afflicts the state, and much more if he seeks to destroy the Church. It is permitted, I say, to resist him by not doing what he commands and by preventing the execution of his will.

For Bellarmine there was no unconditional duty of obedience to the pope. 

Following Cajetan and Torquemada, Suarez insisted that a pope could even fall into schism, detaching himself from the church by legislating in a way hostile to her unity and mission. One way he could do this would be through a radical assault on the liturgy. A pope would fall into schism “if he wanted to abolish all ecclesiastical ceremonies that are based on apostolic tradition.” Some opponents of Traditionis custodes imply that the motu proprio and the Pauline liturgical reform that it enforces could amount to schismatic acts. But can we really use the papalist theological tradition to win the liturgy wars, either for Traditionis custodes or against it? Not in the way that either of the opposing sides intend. 

We must first make a distinction—between magisterial teaching, which Pastor aeternus plainly is, and what one might call “official theology.” Magisterial teaching is given by an office-holder within the Church, a pope or bishops, with magisterial authority—with the authority, that is, to impose canonical obligations on belief. And since not all utterances even of popes or bishops count as magisterial teaching, the teaching must signal an intention to impose some such obligation. Official theology, as the term suggests, is likewise produced by office-holders within the Church. It is, simply put, what such office-holders are expected to say. But it may still fail to count as magisterial teaching. It may be given by someone with magisterial authority, but without clear signal that he intends to place an obligation on the minds of the faithful. It may be a currently received view, but be given by a pope or bishop in his capacity as a private doctor. It may even be given in a forum which expressly disavows any exercise in its pronouncements of magisterial authority—such as a statement of the International Theological Commission. Or it may be given by office-holders who, though their role is central to the faith as it is communicated on a workaday basis, lack magisterial authority in their own right. It could be the content of a parish homily. 

Official theology may represent and interpret what is magisterial teaching, and it may do so faithfully. But it does so without imposing any further claim of its own, independent of that which is already attached to the magisterial teaching referred to. Much of what passes for the communication of Church teaching, the stuff of parish homilies and catechesis, is not itself magisterial teaching, but at most refers to such teaching as a report or interpretation of its content. Suarez and Bellarmine were very eminent. Suarez was a theologian some of whose work was papally commissioned. Bellarmine was a cardinal and bishop and a member of the Congregation of the Roman Inquisition. Their writings, however, generally amounted at most to official theology of a highly prestigious and influential kind. Their accounts of magisterial teaching might in many cases be accurate. But like similar reports and interpretations today they remain perfectly open to debate.

Official theology is fundamental to the life of the Church. It is the main medium through which the Church’s teaching is represented and understood by Her members. For that reason, it is often difficult for many of them to distinguish the official theology of the age from magisterial teaching proper. That official theology, to the extent that they grasp it, commonly provides their understanding of the teaching. More than providing a common understanding of magisterial teaching, official theology can even help shape the content of that teaching. The assumptions on which the magisterial teaching of a general council is based generally come as official theology. At Trent, as we shall see, received assumptions about the moral force of canonical legislation were crucial to the formulation and approval of dogmatic canons. 

Unlike much (not all) magisterial teaching, including the magisterial teaching that it helps form, official theology is not itself protected from error. Far from being so protected, official theology can be various and inconsistent, taking local forms that contradict official theologies within the church of other times and places. Official theology in Rome in 1600 was broadly papalist in its view of ecclesial authority; that was not the official theology of then more Gallican Paris. In both places the official theology of limbo and the destiny of infants who die unbaptized of 1600 was not that of 1500, nor is it that of either Catholic Rome or Paris in 2022. As it mutates and changes, official theology may repeat magisterial teaching, or it may go beyond it; it may pass over some magisterial teaching in silence, or even begin to contradict it.

If Suarez and Bellarmine were purveyors of official theology, does that alone show the opponents of Traditionis custodes are wrong to invoke them? Certainly not. Official theology is indispensable to our understanding of the faith. But it is only as as good as its interpretations of magisterial teachings and the arguments on which those interpretations rely. On the specific points cited these two theologians were surely right. The immunity of papal legislation to “judgement” which Pastor aeternus teaches is clearly an immunity to any “higher” juridical sentence. There can be no juridical appeal against it in any earthly forum. That does not mean, however, that all public criticism of it is forbidden morally, or even that it cannot be so morally faulty as to fail to impose a moral obligation to obey. The duty of obedience that Pastor aeternus teaches is juridical. The Church is a potestas—a sovereign legislator with jurisdiction over a community which Her authority serves. The Church shares this character of potestas with states, as Leo XIII taught. A state is sovereign in civil matters over a political community for which it issues civil law. The Church is the one sovereign authority for religion on this earth, with jurisdiction over the Christian faithful for whom She issues canon law: the discipline of the Church of which Pastor aeternus treats. Pastor aeternus teaches that the faithful are canonically subject to papal authority, with a legal obligation to obedience without any legal forum for appeal. But, as Bellarmine and Suarez well knew, it does not follow that the faithful need be bound morally. As Bellarmine took some trouble to explain in De Romano Pontifice, just as a valid legal directive of the state may fail to bind its citizens morally because of some defect in it, so too the faithful may fail to be bound morally by a valid but defective legal directive of the Church. The legal directive could be immoral and unjust; or it could simply be too damaging to the community to be morally binding on them. A legal obligation is not necessarily a moral obligation.

Pastor aeternus teaches that the pope has a primacy in respect of two distinct kinds of authority: an authority to teach and an authority to direct and legislate. It further defines conditions under which the pope will teach infallibly, without possibility of falsehood. But note well: there is no parallel definition of conditions under which the pope will legislate “infallibly,” that is without possibility of legislative fault, let alone a fault substantial enough to remove a moral obligation to obey. Had Pastor aeternus meant to teach about our moral obligation to obey the pope, it would have had to specify such conditions, which it did not.

Newman was very aware of this distinction between infallibility in teaching and in legislation. In his Letter to the Duke of Norfolk just after the Vatican Council he discussed the force of Pastor aeternus, which asserted the infallibility of the pope as teacher; but not an infallibility of the pope as a legislator:

In doing this, I shall, with him, put aside for the present and at first the Pope’s prerogative of infallibility in general enunciations, whether of faith or morals, and confine myself to the consideration of his authority (in respect of which he is not infallible) in matters of conduct, and our duty of obedience to him. . . . But a Pope is not infallible in his laws, nor in his commands, nor in his acts of state, nor in his administration, nor in his public policy.

Others have ignored Newman’s distinction - not only the internet ultramontanes of today, but the arch-ultramontane Manning at the time, who flatly claimed in a letter to his clergy:

In a word, the whole magisterium or doctrinal authority of the Pontiff as the supreme Doctor of all Christians, is included in this definition of his infallibility. And also all legislative or judicial acts, so far as they are inseparably connected with his doctrinal authority; as, for instance, all judgments, sentences, and decisions, which contain the motives of such acts as derived from faith and morals. Under this will come laws of discipline, canonisations of Saints, approbation of religious Orders, of devotions, and the like; all of which intrinsically contain the truths and principles of faith, morals, and piety.

Cardinal Manning certainly did not exclude papal legislation from infallibility. Nor did another eminent author of the early twentieth century, Cardinal Billot, who in his De Ecclesia Christi expressly extended infallibility to include legislation as well as teaching:

Infallibility always attaches to the exercise of the supreme legislative authority [within the church] in so far as the Church has divine assistance and can never establish discipline opposed to the rules of faith and of evangelical holiness.

The real problem with using Suarez and Bellarmine to oppose Traditionis custodes is that their theology was far closer to Manning and Billot than the brief passages cited on the internet, torn from context, might suggest. Of course Suarez and Bellarmine admitted at least some bare possibility of moral error in papal legislation, and they were right to do so. But they did this hypothetically. In fact, their considered view accorded immense force to bind or obligate morally both to papal legislation and to ecclesial legislation in general. And this force to obligate morally was explained, in turn, by a claim that not only the teaching but the settled law of the popes and of the Church could not conflict with faith and morals.

Thus Suarez raised the issue of whether the canonical punishment of the baptized for heresy was morally objectionable. It could not be, he reasoned, because the Church had long provided for this in her canon law:

Secondly I prove the claim from the custom of the Church: for the whole Church makes use of an authority to do this, an authority that has been so employed since ancient times. But the whole Church cannot err in moral questions and in matters pertaining to religion and justice. It is in itself quite unbelievable that the Church usurped this authority tyrannically and without legitimate title.

For Suarez the settled canon law of the Church simply could not be in moral error. Nor was Suarez’s view eccentric for his time. Dogmatic canons of Trent anathematizing Protestant claims could be argued for by the council fathers and by the theologians advising them on canonical grounds. What the heretics were proposing could be anathematized because it conflicted with established canon law. The punishment of heresy in the baptized by means other than mere exclusion from the sacraments was an example. Objection to such punishment was anathematized in canon XIV session VII on baptism, and the anathema was argued for at Trent by appeal to law. Theologians formulating the canon appealed to the decree of a provincial council in Visigothic Spain calling for such punishment, a decree that by the time of Trent remained in general canonical force within the church. An important part of Counter-Reformation official theology, the assured morality of settled canon law, fed into the delivery of magisterial teaching at a general council.

Suarez and Bellarmine thought that just as canon law was generally morally impeccable, so was the legislation of the pope as canonically supreme. A bare possibility that a papal decree might be morally objectionable was conceded. But the hypothetical cases were of isolated and particular decrees, not settled law for the Church as a whole. Why was the concession made? Because papal authority was plainly answerable to a higher authority that was not human—moral law as known by reason alone (natural law) and as revealed (the divine law of the New Covenant). The authority of the popes like all legal authority served the good of a community, in this case that of the Church and of her mission. This left open the possibility of some misfunction in papally imposed law—for some conflict with moral law, or for some harm to the Church and Her mission, even to the point of a particular pope putting himself in schism. Thus Suarez and Bellarmine could not dismiss out of hand a hypothetical papal decree that failed to bind morally.

There were further reasons for discussing such cases. Conciliarists argued that because some defective papal legislation was possible on any view, provision for remedy was required: some forum of legal appeal against the pope, such as to a general council. The answerability of papal law to moral law and to the mission of the Church was common ground, yet threatened to lend support to the conciliarists. So the papalists insisted that their theology too could provide for remedy: not appeal to a juridically higher authority, for there was none, but the possibility of morally legitimate disobedience on a scale sufficient to disable an errant pope and block the execution of his decrees. As Bellarmine insisted:

It is permitted, I say, to resist [the pope] by not doing what he commands and by preventing the execution of his will. But it is not lawful to judge him, or to punish him, or to depose him, which alone is the business of a superior.

It is clear that Suarez and Bellarmine did not seriously intend such concessions to provide a practical theology of resistance to papal authority. They were instead thought experiments meant to clarify their own understanding of the authority in question; they conceded its non-arbitrary nature and its service to the Church, but in a way designed to stave off conciliarist inferences. These thought experiments ask us to suppose that a pope did X, where X is so fantastic and so absurdly damaging to the good of the Church that of course a pope doing that should not be obeyed, nor would he be; but equally (it is also hard not to suppose) Providence would surely not let such a thing happen. They really amount to “Suppose, per impossibile, a pope did X…”

Suarez discusses, as we have seen, the case of a pope who put himself in schism from the church by “abolishing apostolic liturgies.” Now Suarez does not further specify what such an act might involve. But since it amounts to the pope detaching himself from the rest of the Church completely, it must come to something rather more radical than the Pauline liturgical reform. One suspects that Suarez had notionally in mind some wholesale papal attack on anything even recognizable as an ordered Church liturgy. Suarez cites in his support an earlier discussion by Torquemada of just such a hypothetical schismatic attack by a pope on the liturgy. Torquemada’s discussion gives more detail and what he envisages is indeed drastic. It extends to a pope’s refusal of all sacred vestments and even of the sign of the cross. Furthermore Suarez parallels a pope’s attack on the liturgy with another case which is very evidently fantastic: a pope, he suggests, might also put himself in schism by excommunicating absolutely everyone else in the Church. Did Suarez really think that God would ever let this happen? This is obviously a formal thought experiment meant to drive home the point that punishment legitimately imposed by a pope cannot be arbitrary; since papal authority serves the Church’s unity, its legitimate exercise cannot directly attempt that unity’s destruction.

Bellarmine’s considered view still leaves papal legislative authority infallible to a very significant degree. When the pope legislates for the whole Church, his decrees cannot directly conflict with moral law, natural or revealed. And even when papal decrees given for the whole Church misfunction in other ways, still we are morally obligated to obey. Not only that, as subordinates we are forbidden even to criticize:

The supreme pontiff not only cannot err in doctrines of the faith but nor can he err in moral directives which are given for the whole Church, and which are concerned with matters necessary to salvation or with what is per se good or bad…So the pontiff cannot direct to what is vicious, such as usury…or direct to what is now contrary to salvation, the practice of circumcision…or forbid what is necessary to salvation, the practice of baptism.…But it is not absurd to say he could direct what is neither good nor bad in itself, nor in itself contrary to salvation but simply useless… But it is not for subjects to debate this issue, but only to obey.

“Uselessness” in papal law is possible for Bellarmine, provided the law is not directly contrary to morals or the needs of salvation. But such “uselessness” could still be extremely damaging. Could there not be a “useless” law which, though in itself strictly consistent with morals and salvation still, because of attendant circumstances, threatened immense harm to the Church and her mission? Imagine a liturgical reform that provided for valid celebration of the sacraments, with texts and rubrics that under some conditions might be harmless. This liturgical reform would still be “useless” if in existing circumstances it would be dangerously corrosive of existing belief and devotional practice. For example in existing circumstances the reform might involve radical omissions of previous text and custom, omission dangerously apt to suggest some change in doctrine. Bellarmine’s theory leaves room for that sort of “uselessness” in law, which would surely warrant public criticism lest the damage to the Church’s mission be too great. It might even warrant disobedience. But Bellarmine will not entertain that possibility: “It is not for subjects to debate this issue, but only to obey.”

Why suppose that canonical decrees issued for the Church as a whole cannot be directly contrary to moral law? The official theology of the Counter-Reformation generally did suppose this. An inference was frequently made from the infallibility of the pope or the Church as a teacher, an infallibility as teacher that extended to the content of moral law both natural and revealed, to a comparable infallibility as legislator. We find the inference being made very explicitly by Melchior Cano in his greatly respected and highly influential work of 1563, De Locis Theologicis. As with Bellarmine, for Cano the infallibility of the Church as legislator involved an impossibility of her issuing canon law that directly contravened moral law. And that was because the Church teaches infallibly what the moral law contains, natural and revealed:

Then the Church cannot define something to be a vice that is morally good, or to be virtuous what is morally bad. Therefore in the law which she makes the church cannot approve something that is contrary to the gospel or to reason… For which reason just as a council cannot put forward falsehoods to people as what they are to believe, so it cannot put forward evil as to be done.

But why cannot the Church be protected from error in Her teaching, including Her teaching about what is good or bad, without ipso facto being protected from legally directing the doing of what is bad?

There is one basis for inferring infallibility in legislation from infallibility in teaching. This is the educational function of law. A potestas makes law; but it also teaches through its legislation. This applies to every potestas, state as well as Church. When a state forbids theft and punishes it heavily as a crime, it conveys the message—teaches—that theft is morally wrong. Correspondingly when the state puts us under a legal obligation to do X, it conveys the message that insofar as it is required by law doing X must be good morally, or at least not bad. States of course are not infallible as teachers about morals; but the Church is. If the Church as potestas legally directed us to do what is morally bad, She would then be teaching error about morals, which is impossible. 

There is a fatal difficulty for this line of thought, however. In directing that X be done, the Church would certainly be teaching in the sense of conveying or implying a belief. She would be conveying the belief that doing X would at least not be bad. But as our discussion of official theology has emphasized, the Church’s office-holders, including those with magisterial authority, convey lots of beliefs, without teaching magisterially and without any guarantee that these beliefs are true. Teaching is only ever protected from error (and even then not always) when it takes magisterial form—when it is proposed as imposing a canonical obligation on the mind. But canonical direction to do X, whilst it may convey that what it directs is at least moral, does not itself impose any canonical obligation to believe this. It imposes merely an obligation to do X—to act as canonically directed.

Let us return to Bellarmine’s deferential view of “useless” papal decrees, which (he thought) we are morally obliged not only to obey but to avoid criticizing. His view gives rise to the question of whether compliance with such laws might still, in some cases, be immensely damaging to the mission of the Church. In such cases, why should disobedience, still less open criticism, be morally excluded?

There is one doctrine of the Church which might justify Bellarmine’s insouciance. This is not the infallibility of the magisterium as a teacher, but the Church’s more general indefectibility. The doctrine of indefectibility—the Church cannot fail—may resolve the tension within Counter-Reformation official theology: its concession of the possibility of defective legislation, but its effective refusal to allow for legitimate disobedience. Because canon law is in service to an end, the Church’s good, and subject to a higher moral authority, ecclesial and papal legislation must in principle be capable of going wrong. But Providence’s protection of the Church’s good is bound to limit how far ecclesial legislation really can go wrong, and thereby limit too the harm that can ever come from complying with it when it does. Given this protection the balancing good of respect for authority and ecclesial order dictates not only obedience but complete docility. We should not even dare to criticize because in the end Providence has assured that it is non-criticism and compliance that turn out for the best.

This is a very familiar line of thought in Catholic circles. But does the doctrine of indefectibility really preclude legitimate disobedience? How far really is the Church protected from failure? She may not be permitted to fail completely. But otherwise Her guaranteed protection is hardly total. Loss of communion with the East, the Reformation, the collapse not only in Mass attendance but in vocations and the decline of catechesis in Europe and the Americas since Vatican II—all these have been allowed to happen, partly through the sins and mistakes of office-holders in the Church, popes very much included. If serious damage to the Church’s mission can occur through other means by which popes fail, why not through their legislative errors? The extent to which Her own legislation can do serious damage to the Church’s mission, especially when complied with, is surely for the historical record to establish, not for appeals to indefectibility to prejudge. 

There is a deeper problem with the appeal to indefectibility. What if the Church is sometimes to be preserved by God from failure precisely through open criticism by the faithful of Her laws, and even by non-compliance? God might sometimes protect the Church from failure not by preventing very bad, even flatly immoral, papal legislation in the first place, but through raising up internal opposition to it when it does occur. In the absence of some magisterial teaching otherwise, it is obsequious clericalism to assume that it is only hierarchical authority that God uses to preserve the Church from failure, and not, at least on occasion, Christian non-compliance with hierarchical authority. Sometimes, perhaps, non-compliance may not be merely permitted by God as an evil but, where the papal laws are sufficiently bad, may even be His will. At any rate, appeals to indefectibility alone do not prove otherwise.

The official theology of the Counter-Reformation sought to block this line of thought. The drafting of canonical legislation was directly assisted by God, and so directly willed by Him, and hence was not a potential source of damage to the Church’s mission. Disobedience could not be justified. In De Locis Theologicis Melchior Cano appealed to the authority of a great fourth-century pope:

But the canons of the Church are issued on the prompting of the Holy Spirit, as Damasus defines.

Cano cites the teaching from a doctrinal passage in Gratian’s decretum. This is a letter from Pope Damasus I in the fourth century to Aurelius, bishop of Carthage:

Those who voluntarily breach the canons are harshly judged by the holy fathers and condemned by the Holy Spirit at whose prompting they are issued, since someone who shamelessly does or speaks something against the same canons when not compelled by necessity to do so but acting freely, or who freely consents to others willingly so doing is rightly seen to be blaspheming against the Holy Spirit. Such presumption is clearly of one kind with blasphemy against the Holy Spirit since as we have already said they are acting against Him at whose prompting and by whose grace the holy canons are issued.

But, unfortunately for the official theology that appealed to it, the papal teaching which Cano cited was imaginary. The alleged letter from Damasus to Aurelius was a forgery, from the false decretals of Pseudo-Isidore. This was a fabricated collection of ecclesiastical decrees and teachings formed, probably, in ninth-century northern France (it is a matter of continuing scholarly discussion) possibly in part to support the cause of a bishop deposed, in the view of his clerical supporters irregularly, by a Carolingian ruler. One purpose of the collection, very possibly assembled by these very supporters, seems to have been to establish, in part through manufactured papal teaching, a highly convenient official theology of the moral authority of canon law. Canon law was supposed to carry an absolute morally binding force for Christians generally, and so for Carolingian rulers too. Hence Damasus’ supposed letter, inserted prominently at the collection’s beginning, with its eloquent and forceful assurance of the assistance guaranteed the Church as legislator by the Holy Spirit. The letter convinced Gratian and through him passed into the decretum as a genuine teaching. The spurious nature of the Pseudo-Isidorean collection was already evident to humanist and Protestant critics by Cano’s time. But its importance to the official theology of the Counter-Reformation, shown by Cano’s reliance, delayed acceptance of its origins for Catholic theologians, who resisted the growing weight of criticism until the seventeenth century.  

Appeals to Pope Damasus were eventually discredited. But even in the nineteenth and twentieth centuries theologians continued to base a moral duty on the faithful to obey the pope and Church on a supposed infallibility of canonical legislation—and to link this supposed legislative infallibility, in turn, to divine assistance. And they still appealed to magisterial teaching, though this time from a text that did exist. This was Auctorem fidei, the bull of Pius VI that condemned, with varying degrees of force, a numbered collection of propositions associated with the Synod of Pistoia in 1787. This synod had met to reform the church in Tuscany on Italian Jansenist lines with the approval of the Grand Duke, Joseph II’s brother Leopold. 

We have already noted Cardinal Billot’s exalted view of papal legislation. Why was the infallibility of the pope as legislator so clear to him as it certainly was not to Cardinal Newman? Billot appealed to Pius VI’s condemnation in Auctorem fidei of a Jansenist proposition which, as cited by Pius VI, claimed:

That which pertains to faith and to the essence of religion must be distinguished from that which is proper to discipline. . . . In this (discipline) itself there is to be distinguished what is necessary or useful to retain the faithful in spirit, from that which is useless or too burdensome for the liberty of the sons of the new Covenant to endure, but more so, from that which is dangerous or harmful, namely leading to superstition and materialism.

Pius VI then issued his condemnation:

In so far as by the generality of the words it [the proposition] includes and submits to a prescribed examination even the discipline established and approved by the Church, as if the Church which is ruled by the Spirit of God could have established discipline which is not only useless and burdensome for Christian liberty to endure, but which is even dangerous and harmful since leading to superstition and materialism, — false, rash, scandalous, dangerous, offensive to pious ears, injurious to the Church and to the Spirit of God by whom she is guided, at least erroneous.

As Shaun Blanchard has written, Auctorem fidei was a central magisterial text for nineteenth-century Catholic theology. It was treated as of great importance at Vatican I. But as Newman’s case shows, not quite everyone seems to have understood it in Billot’s terms.

The problem with Billot’s use of Pius VI is clear. Billot is not convincing about what specifically is being condemned and precisely what, correspondingly, is being magisterially taught instead. For Auctorem fidei to extend infallibility to ecclesial legislation, Pius VI must have meant formally to teach that the legislative authority of the Church has from the beginning been guaranteed the direct assistance of the Holy Spirit. The Jansenist error specifically condemned would then be the denial of this guarantee. But the condemnation seems not to focus on any such error. There is no specific mention of any guarantee of assistance. The condemnation seems merely to presuppose instead a fact—that of the Spirit’s actual assistance—and then insist that given this assistance the Church’s discipline could never have gone wrong. 

In other words the Jansenist error condemned was, given the Spirit’s assistance, still to take a critical attitude to ecclesial discipline. Given the fact of that assistance, to suppose even a possibility of mis-legislation would indeed be an error, and one particularly injurious to and disrespectful of the Spirit, as Pius VI teaches. This second reading leaves the assistance guaranteed the Church by God entirely outside the condemnation rather than its focus. No doubt the pope had a generous view of the guarantee available. But that generous view was not defined.

On the first reading we would have a definition concerning revelation —how far the Church has from the outset been guaranteed the legislative assistance of the Holy Spirit. On the second reading we have, on the assumption of actual assistance, condemnation of an erroneous and impious disregard of its implications. The second reading seems better to fit the text. Hence the pope’s accusation not of heresy about revelation (an accusation made in Auctorem fidei of other condemned propositions) but of impiety and injury to the Spirit. 

This proposition (number LXXVIII) was cited by subsequent popes, Gregory XVI and Leo XIII. Leo XIII in Testem benevolentiae was the most specific—but again he only disparaged as injurious to the Holy Spirit too critical an attitude to the Church’s law. There was no explicit teaching of a guarantee of the Spirit’s assistance and of conditions under which, based on that guarantee, the Church’s legislation would always be preserved from fault. And despite its concern with defining a legislative primacy for the pope, we have noted that Vatican I entirely bypassed the issue. 

In the contemporary Church we find the issue addressed by the Congregation for the Doctrine of the Faith in Donum veritatis. The Congregation now clearly disavows a legislative “infallibility” for the Church, but it still gestures, without being specific, at some level of divine assistance and at some related duty to obey. Because all acts of the magisterium have their source in Christ “magisterial decisions in matters of discipline, even if they are not guaranteed by the charism of infallibility, are not without divine assistance and call for the adherence of the faithful.” This passage denies legislative “infallibility” but fudges what follows from this denial. Of course, since ecclesial authority is divinely instituted, its acts must in this respect, as the Congregation insists, have their source in Christ. But if legislative infallibility is excluded, then some ecclesial legislation could still be faulty. As faulty, how would that legislation be divinely assisted? Surely the faultiness would at most be divinely permitted as an evil. And again if faulty, how far then, depending on the fault, could the possibility of legitimate criticism and even disobedience be morally excluded? 

Donum veritatis seems clear on one point at least. Whatever the official theology of the past, neither pope nor Church is magisterially taught to be divinely preserved from error in their legislation. How far then can canonical legislation go wrong? Very far wrong, judging from history. Consider a body of canon law that was once settled, papally approved, and that applied throughout the Church. I mean the law of the Church that once bound the faithful canonically in their conduct towards the Jews.

This was the Church’s law for centuries. Through the compliance of the faithful, the law aimed to ring-fence the existing Christian community of the baptized from Judaism. Christians were to limit their social contact with Jews; for example, they were forbidden to work as servants in Jewish households. Christian rulers were required by the Church to enforce identifying dress upon the Jews; they were forbidden to tolerate the building of new synagogues; and they were commanded to confine Jews to their houses on the holiest Christian days. Jews who had received baptism were restricted from contact with those who still practiced Judaism, the parents and siblings of those baptized included, and so families were to be split. These unlovely regulations were to be found as settled canon law, applying throughout the Church, in the Corpus Iuris Canonici—for example, as parts of Gratian’s decretum and of the decretals of Gregory IX.

What was the effect of this legislation, and its moral status? Such laws, by their very character, clearly prioritized protecting the existing Christian community from Judaism over a sharing of Christian fellowship and thereby of the Gospel, at least in ways likely to be inviting, with the Jewish people for whose salvation too Christ surely came. Laws such as these, to the degree that they were complied with, would not have conveyed love but contempt and fear, and harmed, rather than advanced, the Christian mission. The memory of them certainly discredits the Church now. In relation to the Jewish people in particular these laws also breached a basic moral requirement—that of charity. Here then are two faults in settled canon law that Bellarmine clearly thought impossible: real and discrediting damage to the Church Herself and Her mission, and direct offence against morality. It is hard to see how these detestable laws were ever binding morally on anyone.

History shows, then, just how very far ecclesial law can degrade from its proper function. The pious view according to which ecclesiastical legislation issues directly from the Holy Spirit may be no more sound than another, which associates the Holy Spirit with the selection of individual popes. The career of Paul IV Carafa refutes both pieties. He was as unloved and as unlovely morally as many of the canons he was so zealous in applying. In August 1559 at the news of his death the population of Rome erupted in celebration. Order collapsed. A mob attacked the statue of the pope that stood on the Capitol. They broke off its head and kicked it through the streets into the Tiber, having first covered the head with the identifying yellow hat which Paul IV had imposed on Rome’s Jews.

Just as history fails to guarantee the quality, even the basic morality, of canonical legislation, no more does Pastor aeternus. But Pastor aeternus does unquestionably guarantee something else, namely, that no law, no matter how horrible, which issues from papal authority admits of juridical appeal. The discomfort felt by the conciliarists now returns. If papal legislation can go so very wrong, how can the constitution of the Church fail to provide for remedy? 

The notional remedy of the Counter-Reformation papalist theologians was disobedience, a remedy which, however, in practice they withdrew. But even if disobedience to papal legislation really can be more morally justified than these papalists allowed, there is an obvious difficulty. Without juridical protection—which Pastor aeternus rules out—even morally justified disobedience may achieve little. Unless the disobedience spreads among the bishops, or is at least tolerated by them (which its moral justification certainly does not guarantee) it will likely be extinguished. 

Perhaps there is a less bleak and more important lesson to be drawn. The absence of a juridical remedy against the pope has one central and perhaps providential consequence. It is that Catholics cannot simply exploit procedure to block papal legislation, no matter how noxious such papal legislation might be. To reverse legislation that is defective and damaging one must ultimately to appeal to truth, not to a constitution. And in a Church founded on truth, it must be truth that matters.

Papal and ecclesial legislation generally reflects a current official theology. If the legislation is defective, that is often because the official theology upon which it is based is bad. This might be a fearful, contempt-ridden theology of Judaism, or it might be a recently invented and pastorally damaging liturgical theology. The only sure route to reversing the legislation is public and effective criticism of the underlying theology: establishing not only its erroneous nature but also the clear distinction between the official theology and genuine magisterial teaching, especially magisterial teaching that really is infallible. The critique must be effective enough to convince, if not a reigning pope (who may well be beyond convincing), then at least his eventual successors. That means convincing, over time, the clergy from whom those successors will be drawn. 

Of course past canonical legislation governing conduct towards the Jews was morally quite different from the modern papal legislation reforming liturgies and forbidding traditional forms. Just in its content the former legislation was in immediate conflict with morality as the liturgical legislation plausibly is not. But if the Church really can gravely damage Her own mission by legislating in ways that violate morality directly – the impossibility of this, remember, was supposed to be especially obvious - we can hardly exclude serious damage to Her mission from legislation that is defective in other ways.

The legislative primacy of the pope serves unity—but a Christian unity that rests, ultimately, on truth. Truth will win the sooner if within the Church there is a culture that tolerates, even encourages, legitimate criticism of the exercise of papal primacy and especially of the theology on which that exercise relies. Without such a culture of open criticism, as history shows, the damage from bad Church law can be immense and last for centuries.