Vatican II: A Lawyer’s Perspective

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The Second Vatican Council continues to provoke concern, as shown by the recent open letter from priests, scholars, and journalists in support of calls from Bishop Schneider, who believes it contains errors and ambiguities needing correction, and Archbishop Viganò, who has suggested it might be best to forget the whole thing.

I don’t have much to add to discussions of the authority and interpretation of the Council or its documents. I’m not a cleric, nor even an amateur theologian or historian. But I’m a lawyer, and that gives me a perspective on the issues which might add something.

For a lawyer it’s natural to compare an ecumenical council to the Supreme Court. Both, we hope, are bodies of wise, experienced, learned, and public-spirited people responsible for interpreting basic law in a way that binds everyone and is intended to last.

This means caution is needed. The Church is infallible, but her servants shouldn’t presume on God’s readiness to make up for their missteps. Bad choices matter. No matter how wise a judge or bishop may be, it’s hard for him to foresee how interpretations of fundamental principle will turn out as they work their way through the unexpected turns life throws at us.

This is why people in positions of supreme authority who decide they’re Solomon and present grand principles that they expect everyone to follow usually aren’t Solomon. They’re much more likely to be tyrants—or, if they’re clerics, clericalists.

This is also why the Supreme Court accepts doctrines designed to limit what it does. These include the “case or controversy” requirement, and the non-binding character of “dictum.”

The “case or controversy” requirement tells us that the Court does not 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 over a specific situation with opposing parties who lay out the facts and law from opposing perspectives. This helps ensure that when they say something they know what they’re talking about.

That requirement is supplemented by the principle that judicial dicta—statements about the law that are not necessary for the decision—are not binding on later or lower courts. They may be persuasive, because of the force of the reasoning or authority of the judge or court delivering them, but nothing more. After all, they haven’t been tested by use in an actual dispute.

There are other principles that guide the Court when it decides which cases to accept. Courts don’t like “cases of first impression,” those relating to novel questions. It’s too easy to miss something major. They would rather deal with cases involving principles and legal language that have already been considered by a variety of judges in a variety of settings.

The Supreme Court almost always acts as a court of appeal, so it’s not at the absolute front line in such situations. It normally has at least the benefit of the opinions of lower courts that have dealt with the same facts and arguments.

But that’s not enough for them. In dealing with questions that have already been dealt with by a variety of courts in a variety of settings, as they prefer to do, they think they will then be more likely to find a solid understanding that will help future courts resolve disputes in a way that makes sense. If there is a conflict among lower courts that’s an additional reason to take the case.

When the Court steps outside that cautious and comparatively modest role it can blunder disastrously. Roe v. Wade is an obvious example. Rather than pick through the ways previous courts had applied known principles in varying situations and trying to come to a stable resolution, they reached out and created a novel principle that they hoped would resolve a major social conflict. In doing so they created an enduring situation of gross injustice that has helped poison American politics for the past 50 years.

With all that in mind, the Second Vatican Council is the sort of thing that would make me nervous if I were running the show. The documents of the Council are twice as long as those of the first seven ecumenical councils put together. Even so, the major documents don’t give us much that’s concrete. They enact no canons, pronounce no anathemas, decide no particular cases, and adopt no new doctrinal definitions. Instead, they present lengthy discussions of the Church and its relation to the world that are sometimes eloquent and sometimes confusing.

From a lawyer’s standpoint, they don’t relate to a case or controversy, and they’re dicta. They’re not the sort of thing he would customarily view as binding—however much he might respect the source. Even when they deal with something fairly concrete, like the reform of the liturgy or religious life, they leave the specifics to future decision.

And when viewed as binding, it’s not clear what they bind us to. The Council tells us that people have the right to religious freedom “within due limits.” But what limits are due? They make some general remarks, and that’s it. The Council shows us that we can say favorable things about the modern age and other religions. That’s true, but we can also say not-so-favorable things, and the prudence of one statement or another isn’t something on which definitive guidance is possible.

There’s also the problem that the major documents don’t 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 by the Council Fathers. 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.

Instead, the documents were mostly drafted by Northern European theologians with their own recent work in mind, promoted by a well-organized network of Council Fathers, mostly from that same region, and accepted by the other Fathers after modifications made them less alarming to those with concerns about where the new principles might lead the Church, but also less clear as to their ultimate meaning.

So what’s the result? Half a century and more after the Council we have no accepted understanding of what it did. Instead, we have those who support a “hermeneutic of continuity” and those who support a “hermeneutic of rupture,” with the latter divided between those who reject the traditional Church and those who reject the Council. Worse, there’s a crisis in the Church—at least partially stemming from the Council—regarding doctrine, discipline, and unity, and a radical decline in Catholic adherence in the very region that most influenced the documents.

In the law, such a situation would lead lawyers and judges to rethink matters and find ways to limit the practical effect of formulations that have led to problems. Eventually, if the new approach worked better, the troublesome formulations would no longer be appealed to. For a lawyer, given the depth of the problems in the Church, it is natural to expect that something of the sort will be part of the way forward.

This seems to be happening at ground level. Already we see a steady growth of the Latin Mass, a rediscovery of traditional devotions, and a tendency among young seminarians, priests, and laity toward classical Catholicism. Who cares, many seem to be asking, what cutting-edge theologians thought 60 or 70 years ago? In the living parts of the Church, the trend seems only likely to continue. Why bother with the Church if you don’t get the whole Church of 2,000 years, but only that of the last 50 years?

James Kalb

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James Kalb is a lawyer, independent scholar, and Catholic convert who lives in Brooklyn, New York. He is the author of The Tyranny of Liberalism: Understanding and Overcoming Administered Freedom, Inquisitorial Tolerance, and Equality by Command (ISI Books, 2008), and, most recently, Against Inclusiveness: How the Diversity Regime is Flattening America and the West and What to Do About It (Angelico Press, 2013).

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