Pope Francis and the ‘subsidiarity’ of the rule of law

Is Pope Francis ignoring his own legal reforms when it comes to dealing with problem bishops?

There is no set process or criteria for disciplining or dismissing a bishop, one of the Vatican’s most senior canon lawyers said Tuesday, while insisting that decentralization remains central to the Church’s ecclesiology.

Speaking to press Nov. 28, Bishop Juan Ignacio Arrieta, secretary of the Dicastery for Legislative Texts, also said that the post-conciliar “great decentralization” of the Church remained intact and aligned with the synod on synodality.

Bishop Arrieta cited Vatican II and canon law, as he fielded questions on recent papal disciplinary action against an American bishop, as well as Vatican attempts to reign in the German synodal way. 

Pope Francis. Alamy stock image.

But to many Church-watchers, there appears to be little consistency in how Pope Francis responds to differing situations involving bishops. 

Will Arrieta’s arguments be seen to address mounting criticism among bishops that — by ignoring his own legal reforms — the pope’s style of governance appears increasingly arbitrary and autocratic?

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During a press conference Nov. 28, Bishop Arrieta responded to questions about the recent dismissal of Bishop Joseph Strickland from the see of Tyler, Texas, and said that “there is no official mechanism for the firing of bishops.” 

While a formal canonical process for removing bishops from office does exist, the bishop said, it was only necessary in instances of specific, grave canonical criminal actions. 

Most cases, Arrieta suggested, presumably including Bishop Strickland, were less clear cut: “Sometimes it’s a question of a single act, others it’s an issue of conduct,” or an “evaluation of communion.”

Strickland’s removal from office was announced by the Vatican on Nov. 11. While no reason was given for the decision, it came two months, to the day, after The Pillar reported that senior cardinals had recommended to Pope Francis that Strickland be pressured to resign leadership of his see following an apostolic visitation of the Tyler diocese earlier this year.

While sources close to the investigation noted questions about Strickland’s administration of the diocese, the bishop had also made a series of public statements appearing to challenge the pope’s orthodoxy.

In a May post, the bishop said that he believed “it is time for me to say that I reject [Pope Francis’] program of undermining the Deposit of Faith.”

To many canonists, Strickland's public statements appeared to present a possible canonical criminal case, since the Code of Canon Law criminalizes “a person who publicly incites hatred or animosity against the Apostolic See… because of some act of ecclesiastical office or duty, or who provokes disobedience against them.”

If, as has been widely suggested, Stirckland’s removal was linked to his public statements against the pope and triggered, as Arreita phrased it Tuesday, “an evaluation of communion”, many would argue a formal canonical process was warranted — both to allow the bishop the right to speak in his own defense, and so the faithful of his diocese could understand the gravity of the situation.

Still, Arietta insisted that while a bishop can be criminally tried, there is no established process — or required steps — for sacking a bishop who has not necessarily committed a crime. 

But in fact, Pope Francis created such a mechanism. 

In 2016, the pope promulgated Come una madre amorivole, a motu proprio creating both criteria and procedures for the removal of bishops from office. 

Noting that “canon law already provides for the possibility of removal from ecclesiastical office ‘for grave reasons’,” Pope Francis said he wished to “underline that among the aforesaid ‘grave reasons’ is the negligence of a Bishop in the exercise of his office.”

A bishop, Francis wrote, “can be legitimately removed from this office if he has through negligence committed or through omission facilitated acts that have caused grave harm to others, either to physical persons or to the community as a whole. The harm may be physical, moral, spiritual or through the use of patrimony.”

In addition to criminalizing administrative negligence by a bishop against individuals or a diocesean community which causes any kind of harm, moral, spiritual, or financial, Francis also created a formal canonical process for dealing with such cases.

According to the pope’s legal mechanism, when a bishop is accused of negligence in office, the competent curial department (usually the Dicastery for Bishops) can be given given authority to investigate — with the explicit requirement that the accused bishop be allowed to present evidence in his own defense, and to “always be given the possibility of meeting with the superiors of the [curial department].” 

After discussing the case in a full session of its cardinal members and consulting other local bishops, the dicastery could then encourage the bishop to resign or decree his removal. 

But each case has to be personally approved by the pope, who himself is supposed to consult with “a special College of Jurists designated for this purpose.” 

Strickland at least according to the bishop himself, was not afforded this legal process, nor has he been given a clear indication about the exact reasons for his removal.

It is, of course, the pope’s prerogative to dispense with merely ecclesiastical laws of his own making, but it is hard to credit Arreita’s claim that no such process exists. 

And the emerging pattern of Francis ignoring his own legal reforms in cases for which they seem designed is fueling wider suspicions and criticisms of the pope’s governance, with critics increasingly painting his application of episcopal discipline as arbitrary and motivated by personalities, rather than substance.

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Arrieta was also asked about plans underway in the Church in Germany, following the multi-year synodal way undertaken by the bishops’ conference there in partnership with a controversial lay group. 

The Vatican, including Pope Francis personally as well as Arrieta’s own department, have issued numerous warning s and correctives to German bishops’ calling for a national committee made up of lay people and bishops to assume a kind of governing role over the local Church, as well as demanding the revision of Church teaching on doctrinal and disciplinary matters.

In a letter earlier this month, Pope Francis warned that the Church in Germany was pursuing plans “to steer it increasingly away from the universal Church’s common path.”

Arreita told journalists that “doctrinal symmetry is lacking” between the German plans and the pope’s vision for a more synodal Church. “When bishops in a specific location want to intrude in a field that concerns the unity of the Church, it’s clear that it creates problems,” he said.

But despite those problems, and years of Vatican warnings and papal admonishments, several German bishops, including the leadership of the bishops’ conference, have continued to push without consequences an agenda at odds with both the pope’s stated priorities and the Church’s teaching.

Some bishops, in Germany but also in neighboring countries, have gone so far as to publicly break from Church teaching, putting forth their own contrary beliefs on a range of doctrinal issues including human sexuality and sacramental theology, and demanding Rome move to accommodate them.

Public refutation of the Church’s teaching by a bishop would strike many as doing “spiritual harm” in the language of Come una madre amorevole. 

And the creation of a German national decision making body remains in train despite the pope saying explicitly that its creation is “forbidden by the Apostolic See.” While canon law states that those who “not obey the lawful command or prohibition of the Apostolic See” and “persist in disobedience” are to be punished, including by deprivation of office, not such action has been taken against a German bishop.

As a result, the building impression among Vatican watchers, including bishops across the world, is that the freedom to contradict Rome and defy Pope Francis is available to some but not others.

Many canonists, bishops, and Church commentators have noted simultaneously the potential issues which could have warranted Bishop Stirkcland’s removal from office and the lack of due process he was afforded, even according to Pope Francis’ own personal legislation. 

Those same observers have noted, too, that bishops publicly dissenting from Church teaching and defying Roman instructions would seem to merit at least the same level of response — yet none has come.

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Apart from instances of removing and disciplining bishops, over the last several years some have noted a range of papal initiatives which have appeared to roll back the authority of diocesan bishops in favor of more centralized exercises of direct papal governance — a seeming reversal of the reforms of Vatican Council II. 

But in his comments Tuesday, Arrieta insisted that “the Second Vatican Council did a great job on the episcopate,” and had ensured a “great decentralization in the Church.”

The bishop also insisted that canon law as currently promulgated could accommodate many of the recommendations from the ongoing synod on synodality to increase lay participation in Church affairs “without changing a thing” legally.

Many canonists would likely agree with Arrieta that existing canonical structures in the Church could be better implemented by bishops towards the pope’s stated vision of synodality. 

But while the most prominent episcopal implementers of synodality remain committed to a lack of “doctrinal symmetry,” as Arrieta calls it, without any consequences, many will also conclude that law in the Church — synodal, hierarchical, procedural, and disciplinary — is largely irrelevant, except in specific cases in which Pope Francis chooses to apply it. 

So long as that remains the case, the emerging definition of synodality in the Church governance increasingly resembles a highly selective kind of subsidiarity.