Due Process in the Church
The recent investigation and trial of the theologian Jacques Dupuis, S.J., alerted Catholics and others to the judicial methods of the Vatican Congregation for the Doctrine of the Faith (Am., 3/12, Signs of the Times). Although Father Dupuis was cleared of any error, the entire episode raises questions about C.D.F. procedures. Do they respect human rights and modern notions of due process?
Father Dupuis joins a long list of eminent Catholic theologians who have been harassed by the congregation: Leonardo Boff, Yves Congar, Bernard Häring, Henri de Lubac, Richard McCormick, John Courtney Murray, Karl Rahner, Pierre Teilhard de Chardin, Edward Schillebeeckx and more. With such a track record, one would think the congregation would learn some humility and be more reticent to repeat the mistakes of the past. The congregation, however, has gone full speed ahead with its investigations of theologians around the world.
Under current Vatican rules, the congregation is entitled to examine the writings of any author whose doctrine appears erroneous or dangerous. Its inquiry proceeds in two stages. The first is carried out in total secrecy. The congregation is both the investigator and the prosecutor; it appoints a defender and acts as judge. The author is left uninformed while the work of a lifetime may hang in the balance. If he is absolved, the case is closed.
If, however, the judges find his opinions erroneous or dangerous, the second stage begins. The congregation notifies all interested ordinaries (bishops and other religious superiors), departments of the Holy See and the author himself. Since the media usually learn of the judgment, the author’s reputation is stained, but he is impotent to do anything about it since he is often silenced and told not to publicly defend himself, write or teach. He is instructed to correct his views or to clarify his texts to the congregation’s satisfaction. Although he can defend himself in writing to the congregation, he has no right to appear before his judges, still less to confront his accusers. If he asks, the congregation may grant him an audience with a designated official, but it is not required to do so. It may or may not allow him to have an adviser at his side, but it will not permit a lawyer to defend him. At the end of the process, the congregation’s judgment is final, with no appeal permitted, on the ground that the office kept the pope informed throughout and its decision was approved by him. (The fact that the pope signed three different versions of the C.D.F.’s judgment against Dupuis as the congregation repeatedly revised its views makes one wonder about the usefulness of this procedure.)
How does this process stand up to the criteria of modern (or even classical) jurisprudence?
First, in a constitutionally grounded legal system that respects human rights, legal violations are precisely defined; otherwise the rule of law cedes its place to the rule of man. The terms erroneous and dangerous are too broad and too vague for comfort. Only totalitarian states use such expressions. There is a difference between denying the faith and being in error on some minor issue. There is also a difference between being truly dangerous and being judged dangerous by some fearful people.
Second, natural equity, a concept already familiar in ancient Greece and Rome, demands that the accused be heard before, not after, judgment is passed. In addition, Christian charity forbids the reckless destruction of a person’s reputation. Moreover, giving the functions of investigator, prosecutor, grand jury, judge and jury to one office fails to provide the checks and balances modern society has learned to value. Finally, no human court is immune to mistake. Appeals must be allowed.
The congregation’s inquisitional procedures are indefensible. The church should of course safeguard its faith, but not by means unworthy of that faith. Christians have suffered in many countries at the hands of judges who in the name of national security wanted to extirpate erroneous or dangerous convictions. Often, the judges deliberated in secret and reached a verdict without giving a fair hearing to the accused person. Then they denied appeal. Rightly, the church protested. But the church’s defense of human rights will not be credible unless it practices what it preaches.
The inquisitorial methods of the Congregation for the Doctrine of the Faith are out of date and do not respect human rights. They should be dismantled without delay. There is enough intelligence in the Catholic community, created and sustained by God’s Spirit, to find better ways to safeguard the faith. Pope John Paul II has quite bravely apologized for the treatment of Galileo and other sins of the church, but along with confession should come a firm purpose of amendment.
This editorial was selected by the Catholic Press Association as the best editorial in 2001.