Renewal and the Council: A lawyer’s perspective

The men who discussed and approved the documents of the Second Vatican Council also oversaw their implementation. The Church’s response to the Council was nonetheless very different from what they expected.

Why did that happen?

I am not a theologian or a historian, but a lawyer. That’s usually not much help in religious matters, but it gives me an interest in institutional and procedural matters that can deeply affect the life of the Church.

At the time of the Council, problems were developing in the world and the Church, such as the disappearance of God from consciousness, that went to the roots of our once-Christian civilization. Some sort of renewal was needed, and many people within the Church had been thinking about what it should look like.

But how complete, accurate, and compatible were their thoughts? And how should they have been tested and developed?

We are told that “the wind blows where it wills … but you do not know where it comes from or where it goes; so it is with everyone who is born of the Spirit.” If so, it seems unlikely that renewal would be led by an ecumenical council deciding on particular new directions for theology and pastoral strategy.

That’s not how past episodes of renewal have worked. At such times, the contributions of the hierarchy have mostly involved clarifying doctrine, suppressing abuses, improving discipline, and vindicating the Church’s autonomy over against the secular world. When it seemed appropriate, they also included supporting movements of Catholics not started by the hierarchy. Examples include the Cluniac reform, the rise of the mendicant orders, and the intense spirituality of the Catholic Reformation.

The Church needs her hierarchy (and prelates are sometimes saints), but when acting officially and collectively, their functions are normally less creative or prophetic than critical and limiting. They attend to things of the sort that can be made a matter of discipline and routine. These things are very important, but they’re not everything.

It’s usually not a good sign when politicians are poets, and something similar applies when anyone in a position of institutional authority claims special inspiration. Putting wide-ranging discussions of new directions for the life and thought of the Church in authoritative documents that are very difficult to change can easily be read as an attempt to do quickly and through legal and administrative means what can only be done organically and at its own pace. In short, it can look like clericalism.

The circumstances and problems facing mid-century Catholicism were unprecedented. How could it be prescribed in advance just what was needed? If the prescriptions were clear—even if generally correct—they would soon become too limiting. But if they were ambiguous, they would enable people to claim the overriding authority of an ecumenical council for projects of their own that reflect the problems more than the solutions.

That makes cautious realism all the more necessary for the rulers of the Church. Otherwise, they are likely to avoid the difficulties of actual Church renewal by bureaucratic churning or calling for a new church animated by new paradigms that always seem to be somewhere else or in a perpetually receding future—most recently, a church of the peripheries, or a synodal church.

How should Catholics today think about the Council? For a lawyer, it’s natural to compare an ecumenical council to the Supreme Court. Both are bodies of (we hope) wise and experienced people responsible for interpreting basic principles in a binding and durable way.

No matter how wise and good a judge or bishop, it’s hard for him to foresee what an interpretation of something fundamental will lead to as it works its way through life’s surprises. That’s why the Supreme Court normally accepts limits on what it does, including the case or controversy requirement and the non-binding character of dictum.

The case or controversy requirement tells us that the Court doesn’t issue advisory opinions—interpretations of the law regarding hypothetical disputes not before it. This ensures that when they decide something, they are looking at an actual dispute regarding a specific situation in which people with a stake in the matter can be counted on to develop and present the opposing arguments. That makes it more likely that when the Court does something, they will know what they’re talking about.

That requirement is supplemented by the principle that judicial dicta—statements about the law not needed for the decision—are not binding in later cases. After all, they haven’t been clarified and tested by use in an actual dispute.

Other related principles guide the Court in deciding, in its discretion, which cases to take. They don’t like cases relating to novel issues, since it’s too easy to miss something major or overvalue something minor. So they prefer to decide cases that involve questions that have already been dealt with in varied settings by a number of lower courts. That makes it more likely they will reach a solid understanding of the issues that will help resolve disputes in a sensible way.

When the Court puts such principles aside, it can blunder disastrously. Roe v. Wade is an obvious example, in which they reached out and created a novel principle that they thought would resolve a major social conflict. Instead, they created an enduring situation of gross injustice that has poisoned American politics ever since.

It’s notable that the council fathers did not limit themselves to themes that had been dealt with extensively within the Church, so that the merits of this view and that could be discerned from experience. There hadn’t been much previous discussion of episcopal collegiality, for example, or of a right to religious liberty rooted in the dignity of the person.

Nor is it entirely clear what the documents bind us to. The Council demonstrated that we can say good things about the modern age and other religions. But we can also say bad things, and when to say what isn’t something on which definitive guidance is possible.

The Council also tells us that people have the right to religious freedom within due limits. But what are these limits? They are said to include respect for public morality, and Dignitatis Humanae itself notes that men and societies have enduring moral duties toward what it calls the “true religion” and the “one Church of Christ.” It seems then that respect for public morality would include respect for those duties. If so, the scope of religious freedom becomes narrower than many believe.

So, what might a lawyer say about the situation? As many have noted, the council fathers enacted no canons, pronounced no anathemas, and adopted no new doctrinal definitions. Instead, they mostly presented lengthy discussions, some very eloquent, about the Church and its relation to the world.

From a lawyer’s standpoint, though, these discussions neither relate to a case or controversy nor establish enforceable rules. They’re very much like judicial dicta, and thus not the sort of thing he would normally view as binding, however lofty the source. Perhaps something like that is the effect of calling the Council “pastoral”: sixty years ago, the council fathers—I believe correctly—thought new approaches were needed, and urged the ones that then seemed best to them.

It is hard to believe they thought they were thereby permanently discrediting previous approaches in favor of a general process of revision. Today, after a great deal has gone wrong and the problems the Council worried about seem worse than ever, it seems unrealistic to suggest Catholics should be bound to accept the former view.

Why not let them instead draw what inspiration they can—within the limits of Church doctrine—from all aspects of Church history, not only Vatican II but also what preceded it?

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