Laws, Roman and American

John Allen had an op-ed early this week in the New York Times outlining how an Italian understanding of law as an ideal rather than a strict rule might influence interpretations of the ban on ordaining gay men that supposedly is coming down the pike.

For your benefit, here's a short letter that I wrote in response, but which the Grey Lady in her wisdom didn't see fit to print:

John Allen is an astute decoder of the often murky ways of the Vatican; if he ever opts for a change of career, he would be uniquely positioned for a posting to Pyongyang. From my limited knowledge of Vatican practice and canon law, he is absolutely correct to note the distinction between Italian and Anglo-Saxon attitudes towards law.

One might note, however, an additional wrinkle: while the distinction between a legal ideal and a more humane reality on the ground makes perfect sense in an Italian context, those same laws are not going to be interpreted and applied in the United States by Italians, but by Americans with a thoroughly Anglo-Saxon understanding of jurisprudence. The closest recent parallel to the current discussion of ordaining gay men might be the conflict in the last ten years over the encyclical _Ex Corde Ecclesiae_. That document suggested that Roman Catholic theologians ought to receive a mandate to teach from their local bishop. By making this suggestion a legal requirement, the Vatican thought it was expressing its respect for the position of theologians in the church; American theologians and bishops, however, immediately interpreted it as a legal requirement which quickly established the two as parties in opposition, a situation with continuing repercussions up to now.

Similarly, in this case, Italian law will be enforced by American prelates, with a different sense of this law's significance. While time in Rome may have given many of our leading clergy a greater taste in Italian cuisine and wine, it is unlikely in most cases to have thoroughly changed their basic intellectual horizon. They will enforce the law as Americans, not Italians, and the space left for exceptions to the rule will be narrower in the United States than in non-Anglo-Saxon cultures. Bracketing the troubling question of whether such a situation is "ideal" to begin with, this move to limit the ordination of gay men is complicated by problems of enculturation -- problems which are likely to lead not to an Italianate application of charity but to a systemic exclusion of qualified men from the priesthood.


Michael said...

This reminds me of a joke from the early 1980s: "In Germany, everything is prohibited unless it is permitted. In France, everything is permitted unless it is prohibited. In the [then] Soviet Union, everything is prohibited even if it is permitted. And in Italy everything is permitted, especially if it is prohibited."

You and Robert Allen are of course boht right. He is right about what those in Rome mean (or at least, what they can say they mean if challenged on its absurdity) and you are right that Americans will be applying the law by our black-and-white approach. The fact is that this is like passing a law that everyone will be nice. You can say it, you can mean it but it is no law as far as Americans are concerned because it cannot be enforced. It is a fervent wish.

The late Bishop Kenneth Untner of Saginaw said that church laws should not be thought of as a tightrope from which a single step to right or left will cause a fall. They are instead like the line between buoys in a ship channel marking the safe path. One need not stay on a single straight line, one can move about within a safe zone. As Americans, we have the tightrope image. Telling us it is okay to wander from side to side sounds insane and we will not risk it.

I must also confess to a certain skepticism that Rome hasn't figured this out. Or that American bishops, many of whom are Rome-trained, haven't figured it out either. By not educating American Catholics about how church law operates, they can keep a tighter rein.

But then, I may just be projecting. God knows I do that enough, to my eventual embarrassment and sorrow!

BaptizedPagan said...

Damien, I don't think you're projecting. A wise canon lawyer from Europe once told me that the basic strategy of canon law is learning how to ask a question correctly. Her example: you don't ask, "may one smoke while praying?", but rather, "may one pray while smoking?"

Another complicating factor in all of this is the stunning lack of canonical knowledge among most clergy; I sat in on a good, but frustrating, canon law class where all questions focused upon how to follow the rules so as not to get in trouble...with very little reflection on the fact that the church has a canon law in order to keep its vision for community life on track. The institutionalization of Christian life is going to happen whether one wants it to or not, pace some pietist or catholic worker-like groups, because the Christian life is carried out by homo politicus; but by keeping that institutionalization public and relatively self-critical, canon law helps to guide it. The problem is that our current situation resembles having a ferrari without being able to drive: we know what a great ideal system exists, but very few people have any experience in using it, and even most of our tribunals only have experience in adjudicating annulment cases.

Michael said...

I have had occasion as superior of communities of sisters (it's a complicated canonical story, don't ask) of trying to explain to the good nuns how canon law works. They even had professional canon lawyers come in and give them workshops when they received their new legislation. As soon as it was over, they immediately fell back into "It's the law" with two options -- keep the letter or ignore the law as useless. As you wisely point out, either of those approaches undoes the purpose of the law which, as Aquinas told us, is for the sake of order for the common good.

Celine said...

Thanks, Baptized Pagan, for a reasoned discussion, something sorely lacking in both the right and left blogospheres. I think you hit the nail on the head about Italian vs North American attitudes to the letter of the law. As for American clergy and legalism, I once suffered through a sexual ethics q and a session in which a priest actually asked, "What sexual acts can a pastor tell his flock are acceptible in the bedroom?" It wasn't rhetorical: the man wanted a list of dos and don'ts to present to the married Catholics in his parish.

Fr. B said...

Thanks for a good discussion on Canon Law from the Church's ethos and that of American law. You and John Allen are exactly right -- And beloved Bishop Untener (may he rest in peace) knew how to explain it so that we could all understand. What we sometimes forget is that the Church speaks to the world. It is (thank God) not an American institution. The Roman approach to law is valid, it is rooted in a legal tradition far more ancient than English Common Law (America's basis for legal standing). What we need is the couirage to help American Catholics understand the difference. Ironically, most American lay Catholics got there themselves when confronting Church bedroom issues.

I guess in the end I'm also guilty of obsessing about Roman teaching (ala gays in the seminary) applied with American lenses. I know better than to worry about that stuff, but in the end I do.

It even sounds like Archbishop O'Brien had a lesson in Roman law and its application this past week.

There is hope for us all.
Fr. B.