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The heresy letter is intelligent, but doesn’t quite convince

Fr Aidan Nichols, a signatory to the letter

The open letter “accusing Pope Francis of the canonical delict of heresy” raises several canonical questions. It is generally recognised, subject to important qualifications, that a pope can commit material, formal or obstinate heresy triggering thereby, for himself and the Church, canonical consequences running from the almost non-existent to the catastrophic.

Academics have speculated on procedures for assessing allegations of papal heresy but have concluded little except that a pope cannot be put on trial (c 1404). Given the gravity of obstinate heresy in a pope, however, it is accepted that some mechanism for assessing and, if demonstrated, proclaiming such heresy must exist.

The right of the letter’s signatories to publish their contentious opinions is protected by Canon 212 § 3 and they correctly recite the elements of a heresy case (cc 751, 1364). But, as an outline of a canonical case against a pope for heresy, the letter stumbles in several crucial respects. Most seriously, it fails to grapple with the “principle of benignity” in the interpretation of law and evidence.

For many centuries canon law has expressly demanded that “in penal matters the more benign interpretation must be followed” (Regula Iuris 49), meaning, in brief, that the benefit of the doubt is to be accorded the accused in a criminal case. This interpretive principle goes beyond canon law: it is fundamental to the Western legal tradition.

The principle of benignity demands that, in every facet of the penal process, one must, for example, construe penal norms as narrowly as is reasonably possible (c 18) and judge the accused only and strictly in accord with law (c 221 § 3). But the letter consistently fails to appreciate, or even allude to, the principle of benignity as it impacts any penal matter, let alone one involving a pope.

The letter claims, for example, after reciting several statements by Francis, that “understood in their most obvious sense, the statements listed above are heretical.” But that assertion, even if it were factually correct, is canonically irrelevant for, per the principle of benignity, if an orthodox interpretation exists for an ambiguous theological assertion, that benign interpretation must be ascribed to the words of the accused – regardless of whether the accused actually intended such an interpretation. To adapt a phrase from A Man for All Seasons, the world may construe words according to its wits, but courts must construe according to law.

Again, the letter correctly notes that behaviour can be taken as evidence of heresy. A traditional example is mentioned in the letter: a man’s failure to kneel before the Blessed Sacrament could be evidence of his heretical denial of the Real Presence. But such behaviour could be also explained on other grounds ranging from mere physical disability to intentional disrespect for the Real Presence. Thus a man’s failure to kneel, even if it indicates an offence, would not be evidence of heresy.

Ironically, the principle of benignity also protects the signatories: there is talk of their being sanctioned, but I would reject that. The letter, though wrong-headed, can, and thus should, be taken in an ecclesially acceptable sense.

Heresy cases are not impossible under canon law, but they are, and are meant to be, very difficult. As a brief against the pope for, say, chronic misuse of his office (c 1389, a crime for which a pope cannot be tried), I find the letter thought-provoking; as an admonition to His Holiness that his words and actions have attracted serious, unprecedented, negative attention, I find the text instructive. But as a canonical brief for a papal heresy case, I find it unconvincing.

Edward Peters is a canon lawyer