Canonist Edward Peters on antinomianism in high places

My esteemed colleague Edward Peters, JD, JCD, Ref. Sig. Ap., "Addressing antinomianism requires recognizing it" (In the Light of the Law, January 6, 2015), here addresses an issue that has concerned him for some time. He writes:

Let’s use a little point to illustrate a large point.

Little point: Francis has appointed five more papal electors than Church law authorizes.

Large point: Antinomianism (ignorance of, disregard for, and sometimes contempt toward, law) is so pervasive in the Church (and in the State, for that matter) that almost no one notices it anymore.

Let’s back up:

Church law limits the number of cardinals eligible at any given time to vote for a Roman Pontiff to 120. See Universi Dominici gregis (1996) n. 33. Now, UDG (issued by John Paul II, following the example of Paul VI) is an “apostolic constitution”, the highest form of legislative document used in the Church, and its cap on electors is set out by a negative subjunctive (Maximus autem Cardinalium electorum numerous centum viginti ne excedat) which construction, as the Canon Law Society of America notes in the introduction to its 1999 English language translation of the Code, is regularly used by the Church to express straightforward commands and prohibitions. There is nothing unclear* about the law in this area or ambiguous about Francis’ action in regard to it, so, yet again, the Vatican Press Office finds itself explaining away the discrepancy between law and action, this time, basically saying that the number of electors appointed by Francis is not ‘very much’ in excess of what is allowed—which it’s not, of course, though, if I were advising the VPO, I’d suggest they simply point the finger to John Paul II’s frequent practice of exceeding his own elector limits (if memory serves, at one time JP2 had authorized some 130 eligible electors!); it plays better, I think, to suggest that anomalous papal conduct is actually in line with past anomalous papal conduct than it does to try to say that papal conduct isn’t exactly what it is.

Anyway, my concern is for law, and here it is: most of the world and many in the Church do not realize that, although the Petrine office is of divine constitution, the papal election process is almost entirely a human construct, that popes write nearly all of the rules of that process, and that popes can change almost any of those rules (including, beyond any doubt, the elector limit of 120) virtually at will. Instead, most of the world and many in the Church only see law here—pontifical, promulgated, translated-into-the-vernacular-so-anyone-can-look-it-up law—yet again being used not as a vehicle to express binding norms of conduct, but rather, as a way to express what are at best papal predictors about what future papal behavior might be, these, to be observed or not as suits the man who wrote, or who could easily change, the law. No wonder so many now wonder so much about what other canon laws we might chuck when we feel like it.

That’s antinomianism, folks: laws mis-written in the first place, misunderstood and/or misapplied by administrators, and eventually ignored alike by leadership and those subject to it. But antinomianism (which, I grant, is as likely today to spring from ignorance about law as to come from contempt for it) does special damage in the Church. Why? Because the Church lacks most of the legal enforcement options available to States and so is even more affected by the example of respect for law being given, or not, by those in leadership positions.

Let me be clear: it does not make a fig’s worth of difference whether 120 or 125 cardinals vote in the next papal conclave, but it does make a fig’s worth of difference, I suggest, if yet another ecclesiastical rule, set out in a major legislative document using terminology indistinguishable from that which conveys many other considerably more important rules, is ignored because this leader or that doesn’t feel like abiding by it. We have processes to reform law in the Church; looking the other way isn’t one of them—at the very least, it’s a very dangerous way to change laws.

Antinomianism has been a long time spreading, and we are going to be a long, long time repairing the damage it has done to the Church (and the State). Where to start, then, except with the first step: recognizing that antinomianism is the default setting today. + + + [emphasis mine - PP]

* Supposing, for a moment, that John Paul’s use of the subjunctive in this passage was merely hortatory (there are grammatical arguments for, and against, that interpretation), we would still have a problem: namely, popes deliberately using legislative documents to express wishes about how they might act in an important matter of ecclesiastical governance. Bad approach, that.