Recent Papal Legal Thought: The Doctrinal/Pastoral Axis
There is a relative absence of research into papal thought about legal matters, and it can be observed that much of the recent and contemporary debates in the Western Latin Church and in other Churches and Christian communities revolve around what is meant by “doctrinal” and “pastoral” as regards the adherence to canon law and in general to Christian teaching and practice.
This paper argues that the doctrinal/pastoral axis provides a foundational means to locate and therefore to understand recent calls for development of both terms. In fact, they provide the key to interpreting the signs of the times – a perennial call especially of the Roman Catholic Church – to track the working of God in human affairs.
The problem with this particular axis is a simple one: “doctrine” is viewed as virtually unchangeable and can only be added to through further understanding; “pastoral” is seen as meeting the lived needs of the Christian faithful, and others. The recent and current debates in the Catholic Church occur when one is in conflict with the other. And so I seek to explore these debates by examining the legal thought of the last three popes: John Paul II, Benedict XVI and Francis.
Their respective thoughts provide a most interesting account of the development of how “doctrinal” and “pastoral” are related. I will present their thought by analyzing the annual papal legal addresses, which have the title of “Papal Allocutions to the Roman Rota” (hereafter Allocutions). I shall begin with the Allocutions of John Paul II from the time of the promulgation of the Revised Code of Canon Law for the Latin Church in 1983.
Use of the term “pastoral” in Papal Allocutions to the Roman Rota 1983 – 2021
It can be observed from the above graph that the use of the term “pastoral” was of significant interest to John Paul II (1983 – 2005), Benedict XVI (2005 – 2013), and Francis (2013 – present). Note in particular the emphasis placed on this term in the Allocutions of 1990 and 2011. This echoes the attention given to the term “pastoral” by Paul VI in his Allocution to the Roman Rota of 1973 where he referred to it 26 times; in the Allocution of John Paul II of 1990, he refers to the term an unprecedented 27 times.
John Paul II (1983 – 2005)
Since the revised Code was promulgated in 1983 it can be seen that there was the opportunity for John Paul II to examine the issue of what “pastoral” generally meant in canon law and the theology (doctrine) upon which it was based. The 1983 address referred to “pastoral indications” where the presence of these in the new Code is contrasted with “ecclesiological doctrine” and the former, the pope comments, “assure us of a stimulating wealth and concrete adherence to reality.” Here, the term “pastoral” is contrasted to “doctrine,” that is to say, they are different. This may seem an obvious point but, as we shall see, this difference between these terms is not consistently made and that later on they become interlaced.
An analysis of the 1990 papal address to the Roman Rota reveals that John Paul II was concerned with the “pastoral aspect of canon law, or, to put it in other terms, the relationship between ‘pastoral’ ministry and the place of law in the Church.” As far as the doctrinal/pastoral axis is concerned, clearly John Paul II thinks that the pastoral and juridical aspects of canon law have become separated and that this is regrettable. The pope then goes on to speak of those in unhappy marriages being the object of “special pastoral concern” but warns of injustice and sentimentality that would give rise to “pastoral appearance alone.”
The pope then introduces a new hybrid phrase as regards norms on marriage, namely that they have their own “juridical-pastoral importance,” so at this point he combines the pastoral and juridical dimensions of canon law. Hence, “pastoral” in this Allocution includes the juridical aspect of law, and therefore the doctrinal dimension of the Church, a separation that Pope John Paul II wished to correct. We can observe now that the terms are indeed different but closely related.
John Paul II is calling attention again here to the phenomenon of the separation of pastoral from juridical interpretations of canon law and their doctrinal basis that have led to relatively liberal pastoral approaches to dealing with juridical matters and particularly marriage cases.
The background to these and other Allocutions is the use of pastoral approaches to canon law that seek to counter the legalism of the 1917 Code and the more liberal approach of the contemporary period. This experience of countering legalism, the delay in the Code revision, and the emergence of a more liberal approach was central to the rise of the use of the term “pastoral” in these Allocutions because of the prevalence of the pastoral approach to canon law which was situated between “continuity” and “discontinuity” as regards the implementation of the Council’s teachings and the revision of the Code of canon law.
Benedict XVI (2005 – 2013)
The pontificate of Benedict XVI was one where the postconciliar debate took a deeper aspect, moving from the opposition between continuity and reform that had grown under John Paul II, to a hermeneutic of continuity and discontinuity and even rupture.
In contrast to these relatively few mentions of the term “pastoral” in his previous Allocutions, that of 2011 contains 16 instances and this gives an opportunity to analyze more fully Benedict’s legal thought. He quotes John Paul II when his predecessor stated in his Allocution of 1990 that “it is not true that, to be more pastoral, the law should be less juridical,” thus expressing “the radical surmounting of an apparent antithesis.” Benedict goes on to quote John Paul II as regards “the juridical and pastoral dimensions being inseparably united in the Church.”
To conclude this Allocution the pope reiterates his concern about the relationship between law and pastoral ministry, identifying “in the field of marriage and of the family, a positive dynamic, a sign of profound harmony between the pastoral and the juridical,” noting that “pastoral care” is really about this juridical-pastoral harmony. This connection between the pastoral and the juridical in canon law as regards marriage cases is a consistent theme in Benedict’s Allocutions where he is concerned to protect the doctrinal basis of marriage.
Benedict’s address in 2012 uses the term “pastoral” twice as regards a hermeneutic of canon law of judicial creativity. He points to “an approach more consonant with the theological foundations and goals” of canon law, because recent “currents of thought have warned against an excessive attachment to the laws of the Church, starting with the Codes, judging them, as a case in point, to be a manifestation of Legalism.” So, Benedict XVI recognizes the different ways that the term “pastoral” has been used, that is as a hermeneutic device, and not merely as a term of reference to pastors.
Note that Pope Benedict XVI used the term “pastoral” a total of 38 times during his pontificate in his Allocutions to the Roman Rota and the majority of these were references to the duties of pastors, with only a very few instances of the term meaning anything else such as a hermeneutic. This pope’s intention seems to be to ensure that the term “pastoral” is not used in the context of any debate on continuity and discontinuity by proponents of “rupture” in relation to canon law and its doctrinal and juridical foundations.
Francis (2013 – present)
Following on from Benedict’s resignation, Francis began his pontificate in 2013 and in his first Allocution to the Roman Rota, in 2014, he uses the term “pastoral” six times. Part of the context for an appreciation of this new pope is that of his “pastoral focus” and his experience as a pastor in Argentina. He begins by stating that the juridical and pastoral dimensions of Church ministry “are not in opposition,” and that there is a “pastoral connotation” to juridical life in the Church.
Importantly, however, instead of the salus animarum, which surprisingly is not mentioned in this Allocution, it is the animus communitatis of that portion of the people of God whom the judges serve in as much as they are “recipients of the judges’ work.” Hence that work cannot be either “legalistic or abstract but adapted to the needs of the concrete reality.”
This is the very first occasion ever in a Papal Allocution to the Roman Rota in which reference has been made by a pope to the notion of the reception of canon law by the people, that is, the impact canonical demands have on persons, given the need to contribute to their own good, their spiritual development and the building up of the Christian community.
Francis expounds his legal thought by going on to speak of the judicial aspect of law and the judge as needing to have the requisite human and scholarly qualities to protect truth and law “without neglecting the delicacy and humanity proper of the pastor of souls.”
Here a difference can be seen between John Paul II’s and Benedict XVI’s insistence on the link between pastoral and juridical aspects of canon law and Francis’ use of “pastoral” as a term signifying helping the parties involved in the marriage. It is also worth noting that Francis makes no reference to the juridical dimension as his predecessors had consistently done and so it can be said that his legal thought tends markedly toward pastoral solutions.
Hence, we observe that the two terms are no longer “inseparably united” as before in the pontificates of John Paul II and Benedict XVI but are now regarded as being separate. This latter can also be seen in his 2016 Allocution to the Roman Rota where Francis uses “pastoral” twice; firstly to refer to the Rota’s “spiritual and pastoral attitude,” as regards the family and the Church’s understanding of it coming from the recent Synod on the Family, and secondly in the phrase “pastoral urgency” which refers to the structures of the Church involved in a new catechumenate as regards preparation for marriage.
The term “pastoral” in the former usage is mentioned in relation to the role of the Rota in judging or contributing to permanent formation about the Church’s teaching on the family. However, the term is also linked to mercy, referring to the “indefectible merciful love of God toward families,” and in particular to “those wounded by sin and by the trials of life.” The pope wishes to uphold the doctrine of marriage, “the inalienable truth of marriage according to God’s plan” which is entrusted to the pope and the bishops. In the latter usage, “pastoral” is concerned with Church structures being oriented toward a common effort as regards marriage preparation.
In both usages of “pastoral” the reference is to the work of pastors and is not about its qualitative meaning, which he introduces with reference to “mercy.” This polyvalent use of “pastoral” also continues in his more recent Allocutions of 2018, 2019, 2020 and 2021 where the term is sometimes used to refer to pastors while at other times to lay or married people or, alternatively, as a way of proceeding along a particular path.
Francis is clear that he does not wish law to “close the salvation of people inside a juridical bottleneck.” Also, Francis’ use of the term is wider and more inclusive than either of his predecessors, and it resonates with the “pastoral” meanings found in Gaudium et Spes. He does not link it to the juridical aspect of canon law, and he emphasizes the needs of the people which should be attended to by pastors especially if some pastors adopt too strict attitudes in the course of helping them.
However he does not make suggestions as to what should actually be done when the duties of pastors in their ministry and their duties as set out in canon law, the theology informing them, and the needs of the faithful, conflict, but leaves this for his apostolic exhortation Amoris Laetitia, where he presents a way of reconciling the doctrinal dimension with the pastoral dimension by recalling the 12th century and the legal thought of St Thomas Aquinas.
The foundation of pastoral discernment
In Amoris Laetitia Francis describes the foundation for “pastoral” discernment by quoting from Aquinas’ Summa Theologiae where he speaks of how general principles cannot account for all matters of detail: “Although there is necessity in the general principles, the more we descend to matters of detail, the more frequently we encounter defects… In matters of action, truth or practical rectitude is not the same for all, as to matters of detail, but only as to the general principles; and where there is the same accuracy in matters of detail, it is not equally known to all… The principle will be found to fail, according as we descend further into detail.”
Francis then remarks that pastors cannot simply apply moral laws to those living in “irregular” situations “as if they were throwing stones at people’s lives” as this “would bespeak the closed heart of one used to hiding behind the Church’s teachings, sitting on the chair of Moses and judging at times with a superior attitude and superficiality difficult cases and wounded families.” He thinks pastoral discernment “must help to find possible ways of responding to God and growing in the midst of limits.” As such, Francis seems to want to underline the need to reconcile the doctrinal and the pastoral, reminding the Christian faithful of the limits of law when faced with the pastoral needs of the people.
Papal legal thought in recent times has been concerned with trying to keep together the teaching authority of the Catholic Church and, at the same time, respond to the lived needs of the Christian faithful. In this article I have argued that a fundamental key for understanding recent and contemporary ecclesial debate in the Catholic Church and in particular the Western Latin Church is the doctrinal-pastoral axis.
In recent papal thought – in particular, that of John Paul II, Benedict XVI and Francis – the term “pastoral” means, by and large, that which pertains to the offices of pastor and the ecclesiastical judge in marriage nullity cases and the supreme pastor, the pope. Hence the implementation of doctrine seems to be secure since that is their understanding of the duty of a pastor; the term “pastoral” is also linked to issues of governance, authority and apostolic ministry.
I also note that prior to the period I am considering, Pope Paul VI (1963-1978) spoke about the term “pastoral” in such a way that it meant the way or style of expressing the relationship between the Church and the world. In other words “pastoral” must be based on doctrine but should be presented in a way that recognizes and respects a relationship between these parties. Hence Paul VI’s and John Paul II’s use of “pastoral” does not mean an abrogation or deviation from dogma or doctrine, authority or governance, but rather a means of articulating and presenting them in a certain style, inspired by charity and in a spirit of understanding.
This understanding of “pastoral” also continues with Benedict XVI and his use of the term. In his Allocutions to the Rota, he almost always refers to pastors of the Church and their duties. For him these duties are concerned with justice and relationships and while it is couched in juridical terms he thinks that canon law is unlike positive (secular) law. Benedict XVI is also concerned not to separate the “pastoral” from the juridical” in his legal thought.
However, I note that with Francis there is a new feature of papal thinking expressed through his Allocution in 2014 as regards the omission of the salus animarum and the inclusion of the animus communitatis, for the first time ever in any papal Rotal Allocution. Francis also puts the emphasis on the needs of human beings over and above what he thinks are legalistic or abstract prescripts and his desire for the salus animarum not to be impeded by a “juridical bottleneck” in his 2015 Allocution. This pope makes it clear that in his thinking, the term “pastoral” includes pastors and people, as was mainly the case with his predecessors.
In our view, the legal thought of recent popes can be most appropriately thought of as being based on a doctrinal-pastoral axis as they have attempted to clarify the extent to which doctrine should apply when it conflicts with the (pastoral) needs of people. Different popes have used their annual legal Allocutions to address this issue of what “pastoral” means; this has contributed to the stimulation of debates about the relationship between doctrinal and pastoral matters, in the spirit of the Second Vatican Council, particularly in its pastoral constitution, Gaudium et Spes, often mentioned by Pope Francis.
. Cf. John Paul II, Allocution to the Members of the Tribunal of the Holy Roman Rota, February 26, 1983.
. John Paul II, Address to the officials and advocates of the Tribunal of the Roman Rota, January 18, 1990.
. Cf. Benedict XVI, Address on the occasion of the inauguration of the judicial year of the Tribunal of the Roman Rota, January 22, 2011.
. Benedict XVI, Address on the occasion of the inauguration of the judicial year of the Tribunal of the Roman Rota, January 21, 2012.
. Cf. Francis, Address to the Tribunal of the Roman Rota for the inauguration of the judicial year, January 24, 2014.
. Cf. J. C. Scannone, “Pope Francis and the Theology of the People”, in Theological Studies 71 (2016) 276.
. Francis, Address for the beginning of the judicial year, January 24, 2014; our italics.
. For a fuller appreciation of this Allocution, see Francis’ motu proprio Mitis Iudex Dominus Iesus (August 15, 2015) on the reform of marriage nullity canons.
. Francis, Address on the occasion of the inauguration of the judicial year of the Tribunal of the Rota Romana, January 23, 2015.
. Cf. M. Faggioli, “Vatican II and the Church of the Margins”, in Theological Studies, 74 (2013) 808-818; especially p. 817 where he says, “The notion of ‘peripheries’ in relation to the mission of the Church has become one of the key ideas by which to understand the pontificate of Pope Francis.”
. Cf. Francis, apostolic exhortation Amoris Laetitia, March 19, 2016.
. Thomas Aquinas, Summa Theologiae I-II, q. 94, a. 4, quoted in AL 304.
. AL 305.