Limiting Diocesan Bishops’ Authority: Recent Decrees From Pope Francis

Q:  I would like to ask a question about diocesan bishops and episcopal authority, but I don’t know how to formulate it.  I hope you’ll bear patiently with me, there’s a confused jumble of ideas in my head!

These ideas mostly center around the many decrees (if that’s the right word) of Pope Francis regarding what bishops can and can’t do.  For example, they can’t allow the Old Mass in their dioceses without permission now; they can’t allow the establishment of new religious orders in their dioceses without permission now; they can object to Fiducia Supplicans, according to Cardinal Fernandez’s explanation, except that in another sentence he says they can’t because Pope Francis said so.  I am not a theologian … [but] to me this all seems random and inconsistent.  Excessively restrictive too, as if bishops are nothing but papal minions.

… Another idea I have floating in my brain concerns subsidiarity, and the 20th-century emphasis on allowing local parishes and dioceses to make many decisions for themselves, instead of mutely waiting for Rome to tell them how to do every single thing and even how to think….  For years we heard that centralized power in the Church was bad, in fact Pope John XXIII wanted to let the bishops at Vatican II tell him their opinions and what they wanted to do.  If “the spirit of the Council” is our Catholic “guiding light,” why does so much of what the Pope says and commands seem to restrict what bishops may want to do?

If I am confusing multiple separate issues in the asking of this “question” I would greatly appreciate your help in clarifying them….—Tamara

A: Tamara certainly isn’t the only Catholic out there who is trying to make sense of what is happening these days in the Church—and despite her stated confusion, she has actually identified a significant ecclesiological issue which is lately being raised by at least some theologians and canonists.  This issue involves the parameters of the power of a diocesan bishop, and the relation between his power and that of the Pope, who sacramentally is likewise a bishop.  This is directly connected to yet another key issue: where exactly do diocesan bishops get their power from?  The complexity of the answer, and the extremely subtle nuances which can arise in its practical implementation, might be surprising!  Let’s go through this carefully, step by step.

To begin with, Tamara is absolutely spot-on when she references the Second Vatican Council, because one of the many issues hashed out by the Council Fathers involved the authority of bishops, and the relationship of that authority to the power of the Pope.  Now that nearly 60 years has passed since the end of Vatican II, we Catholics mostly take for granted some aspects of episcopal power which are actually fairly new in the history of the Catholic Church, having been explicitly acknowledged only in the post-conciliar period.  If you look at some of the relevant canons of the current Code of Canon Law (promulgated by St. John Paul II in 1983), and compare them to the parallel canons of the previous code of 1917, there are some pretty blatant differences—because the 1983 code reflects the teachings of the Second Vatican Council.

Both codes rightly recognize(d) that some, though not all, of a diocesan bishop’s power comes from his episcopal consecration. It is this sacramental power which, for example, enables a bishop validly to celebrate the sacrament of Confirmation, and to ordain priests.  Once a priest has been consecrated a bishop, nobody on earth can take these purely sacramental powers away from him—because it’s impossible to “unconsecrate” a validly consecrated bishop.

A diocesan bishop has plenty of other authority, however, in the administration of his diocese; and this is where it quickly gets tricky.  What is the source of a diocesan bishop’s power of governance?  Is a diocesan bishop merely a delegate of the Pope?  Or what?  This isn’t as cut-and-dried an issue as one might think.

The 1917 Code of Canon Law tended to describe the hierarchical ordering of the Church in terms mirroring a civil state.  This shouldn’t be terribly surprising: for centuries, the Pope was both the head of the Catholic Church (and thus a spiritual leader), and the head of the independent nation called the Papal States (and thus a political leader) at the same time.  True, revolutionaries seized nearly all the territory of the Papal States during the Italian revolution, which ended in the formation of the nation of Italy in 1870; but this seizure was not recognized or officially accepted by the papacy until the signing of the Lateran Treaty in 1929.  Thus at the time of the promulgation of the 1917 code, the Pope was technically still considered both a spiritual and a temporal ruler—and canon law understandably echoed that fact.

Canon 108.3 of the 1917 code (which is no longer in force, remember!) described the Pope as having “supreme power” and the bishops as being “subordinate” to him.  And the former canon 109 took a passing swipe at anti-clerical Italian revolutionaries, when it asserted firstly that those who are brought into the ecclesiastical hierarchy receive their power of orders, not from the people or from secular civil authorities, but from sacred ordination.  It next declared that a Pope received his power “by divine law itself” after his legitimate election and acceptance; and those “in the remaining grades of jurisdiction” received the rest of their power from canonical mission.

If this all sounds headache-inducing to you, be aware that even back then, scholars had difficulty articulating what this meant in actual practice, and why.  Basically, they agreed that once diocesan bishops take office, they “rule their flocks as true pastors in their own name and with a power inherent in their own persons” (see here, p. 355).  But at the same time, bishops only obtained that power because the Pope chose to appoint them bishops of specific dioceses—and the parameters of their powers as diocesan bishops were largely delineated by Rome.

In short, the 1917 code declared that a bishop’s power of orders, stemming from his episcopal consecration, comes from Christ Himself; but a bishop’s canonical mission as the head of a given diocese comes from the Pope.  So how is a bishop simultaneously a “successor to the Apostles” (as the former canon 329.1 described him), and subordinate to the Pope?  Back then, trying to identify where to draw the line between these two sources of episcopal powers could tie canonists and ecclesiologists in intellectual knots.  For example, some canon lawyers attempted an explanation by creating a distinction between “ordinary” and “extraordinary” powers of the Apostles (see here, pp. 460 ff.).  This is all very abstract, so here’s a concrete case that a real-life bishop actually had to deal with under the 1917 code—and how Rome reacted to his decision.

Canon 138 of the 1917 code declared that clergy were prohibited from taking part in hunting.  This was one of a list of activities which the canon declared were unseemly for clerics to take part in (see “Can Priests Hold Public Office?” for more on this topic).  But the bishop of Gniezno, Poland issued a decree that was even stricter: he declared that the clergy of his diocese who engaged in hunting of any kind would be punished with suspension (see (“Father Pavone’s ‘Suspension’: Priests for Life, Part II” for a discussion of this canonical penalty, which can only be applied to the clergy).  The bishop was wrestling with a problem particular to his diocese, where priests were routinely engaging in hunting—even large-scale, organized hunts, involving dogs who tracked game—and this not only caused scandal to the faithful, but had even resulted in serious injury when one priest shot and “disgracefully wounded one person gravely.”  Consequently, the bishop had concluded that in these particular circumstances, in his own diocese, a harsher penalty was warranted.

But in 1921, the Bishop of Gniezno’s successor sought the opinion of the Holy See, as to whether his predecessor actually had the authority to make such a law within his diocese.  Rome examined the case … and then declared that he did not.  (See here, pp. 498-501, for a full discussion of the case.)

At the Second Vatican Council, however, the nature of the power of a diocesan bishop, and the relationship between episcopal power and the authority of the Pope, was re-examined in a new light.  Lumen Gentium, the Dogmatic Constitution on the Church promulgated in 1964, put special emphasis on bishops’ apostolic succession (especially in 19-21), declaring that “by divine institution” they “are regarded as transmitters of the apostolic line” (LG 20).  Yes, this statement in itself was not new: as we saw above, the apostolic succession of diocesan bishops was mentioned in the 1917 code.  But what was new was the perceived source of a bishop’s power, as articulated by the Council Fathers.  Because bishops are the successors of the Apostles, they receive (according to LG) their sanctifying, teaching, and governing offices through their episcopal consecration—not from the Pope.  That said, bishops cannot exercise these offices unless they are in hierarchical communion with the Pope–meaning primarily that they are not in schism or heresy, but rather are operating in good standing within the Catholic Church, under the Holy Father’s leadership.

Don’t think for a moment that the Council Fathers reached this conclusion easily or unanimously—far from it!  In fact, the whole issue was so theologically complex, and the various attempts at the wording of this teaching were so prone to misinterpretations of all kinds, that Pope Paul VI actually had to step in and insist that an additional explanation be appended to LG, in order to clarify the text further.  This famous Nota explicativa praevia, or “Preliminary Explanatory Note,” was intended to prevent anyone from wrongly concluding that the Council was diminishing the supreme authority of the Pope as the Vicar of Christ, by elevating the College of Bishops to a sort of parliamentary status.  (Many whole books have been written on this subject; but most are not in English.  A solid, although brief, overview of this issue in English can be found here.)  Some of the language of LG made its way into the current canon 375 on bishops—which quotes parts of LG virtually verbatim.

So what is the upshot of all this?  Well, the first point that can be made is that diocesan bishops do not govern their dioceses merely as delegates of the Pope—on the contrary, they possess their own power by virtue of their episcopal consecration.  A second, very important point follows from the first: if the Pope wasn’t the source of your power, he logically can’t limit or take that power away from you.

That’s not to suggest, of course, that the Holy Father lacks the authority to overrule/correct a decision made by a diocesan bishop!  If a bishop violates universal law in some way, perhaps teaching heterodox doctrine or trampling on the rights of the faithful, Rome certainly can and should intervene to stop this—and it definitely has happened, in the post-conciliar era.  One example which got a lot of attention from canonists at the time was Rome’s 1993 overturning of a decree of excommunication issued by the then-Bishop of Honolulu, Hawaii, against six lay Catholics who attended an SSPX chapel.  Then-Cardinal Ratzinger, the Prefect of the Congregation of the Doctrine of the Faith, found that the decision lacked foundation, and declared the bishop’s decree “null and void.”  (A fuller discussion of this case can be read here.)

Another well known intervention by Rome occurred in the 1980’s, when the Bishop of Seattle, Washington was ordered to correct a laundry-list of violations grounded in heterodox theology—and a Bishop Coadjutor was assigned by Pope John Paul II to oversee specific sectors of diocesan administration (See “Bishops, Coadjutors, and Auxiliaries” for a definition of this term.)  These two cases were instances where Vatican officials determined that individual diocesan bishops had violated universal law—which binds all Catholics, including bishops!—and/or taught doctrines which were not found to be in keeping with Catholic teaching.

In extreme cases, the Pope has sometimes concluded that it is even necessary to remove a bishop from his office, by urging him to resign.  We looked at a good example of this from the U.S. in “How Do I File a Canon Lawsuit?” and at another case from Scotland in “Why is Cardinal Mahony Voting in the Conclave?

That said, absent clear evidence that a diocesan bishop is objectively committing some significant theological or legal violation, Rome will, almost invariably, defer nowadays to the bishop’s judgment.  In “Canon Law and Getting What You Want,” we examined a couple of different situations where diocesan bishops had full authority to make a judgment-call, and they made it.  Their decisions prompted objections from some of the faithful; but the odds that Rome would overrule these bishops in either of these cases are practically zero.  Yet if these scenarios had arisen a century ago, under the 1917 code … the outcome might have been entirely different, because Rome could easily have decided to intervene and overturn the bishops’ decisions.

Tamara is absolutely right that the notion of subsidiarity plays a big role here.  We looked at this concept in “Are Women Required to Cover Their Heads in Church?” and also in “How Much Financial Support Are We Required to Give Retired Bishops? –two very different topics which nevertheless both involved its application.  St. John Paul II once described this concept in this way:

…[T]he principle of subsidiarity … requires that a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its rightful functions; instead the higher order should support the lower order and help it to coordinate its activity with that of the rest of society, always with a view to serving the common good.  Public opinion needs to be educated in the importance of the principle of subsidiarity for the survival of a truly democratic society.

Applying subsidiarity to the scope of a diocesan bishop’s power implies that with regard to decisions made in the everyday operation of his diocese, the bishop’s superior (the Pope) defers, as a general rule, to the bishop’s judgment.  This is why, incidentally, it is virtually inconceivable that if the abovementioned case involving hunting in Poland were brought before Rome today, the bishop’s decision would be overruled.  That’s because the Vatican ordinarily operates on the presumption that nobody, not even the Pope, knows the inner workings of a given diocese like that diocese’s own bishop does!

Current canon law, by the way, does direct bishops who wish to create new penal laws to ensure that they are territorially consistent (c. 1316), and that “they are really necessary for the better maintenance of ecclesiastical discipline” (c. 1317); and bishops are urged not to create new latae sententiae penalties, or laws punishable by excommunication, “except with the greatest moderation, and only for offences of special gravity” (c. 1318).  (See “Have Pro-Abortion Politicians Excommunicated Themselves?” for more on what a latae sententiae penalty is.)  But these instructions, which are very narrow in scope, are a far cry from the broad restrictions on episcopal power that were taken for granted before Vatican II.

Bearing all this in mind, let’s now turn to the specific examples which Tamara mentions, of Pope Francis’s decrees affecting the power of diocesan bishops.  Firstly, as was discussed in detail in “The Enormous Loophole in Traditionis Custodes,” diocesan bishops are now required to consult with Rome before granting permission for the Traditional Latin Mass to be celebrated in their dioceses; and as if this weren’t problematic enough, Pope Francis subsequently issued yet another document—intended to clarify “beyond even the most remote possibility of misunderstanding”—that bishops are actually obliged to seek authorization from the Dicastery for Divine Worship before granting this permission.  In this post-conciliar era, when subsidiarity is supposed to be a guiding principle, and bishops are recognized as having their own authority with regard to the sanctifying office within their dioceses … this sort of top-down restriction, preventing bishops from exercising their own judgment without first obtaining permission from above, seems ecclesiologically unjustifiable and thus is actually quite staggering.

Another decree of Pope Francis which Tamara mentions was addressed in “Founding New Religious Institutes: Pope Francis Changes the Law (Episcopal Authority, Part II).”  In 2020 Pope Francis amended canon 579 (an emendation which for some reason is still not reflected on the Vatican’s own website!), so that diocesan bishops who wish to erect a new institute of consecrated life within their dioceses can no longer do so validly without first obtaining written permission from Rome.  The original canon 579, promulgated in 1983 by then-Pope John Paul II, required only that a diocesan bishop consult with Rome before erecting a new religious institute; the reference to consultation meant that even if Rome objected, the bishop was still free to erect the institute anyway.  (See “Can a Bishop Expel a Sister From His Diocese?” for a discussion of the distinction between religious institutes which are of pontifical right, and those of diocesan right (c. 589)—a distinction which is directly relevant to this issue.)  Once again, it’s hard to argue that this new requirement, that a bishop must first obtain permission from Rome before doing what he believes best within his own diocese, is consistent with the Church’s understanding of episcopal power after Vatican II—and with the basic principle of subsidiarity.

Most recently, many bishops around the globe have decried the controversial declaration Fiducia Supplicans, which now authorizes the blessing of homosexual “couples” while claiming simultaneously that the Church’s teaching on both marriage and homosexuality remains unchanged.  (See “Fiducia Supplicans and the Magisterium” for more on this.)  The Hungarian Bishops’ Conference, for example, issued a statement that Hungarian clergy can always bless people individually, but cannot bless a couple living in an invalid marriage or a homosexual relationship.  The bishops of Kazakhstan have forbidden their priests from giving blessings to homosexual couples; and many, many bishops of Africa have prohibited these blessings within their dioceses altogether.  We see here exactly the sort of decision-making by individual diocesan bishops that the Council Fathers envisioned in LG: none of these bishops fails to acknowledge that Pope Francis is the head of the Catholic Church on earth (and thus they of course remain in hierarchical communion with him), but they are objecting to the implementation of this declaration within their own dioceses, out of spiritual concern for the well-being of the faithful entrusted to them.  They know their own dioceses better than anyone, and they know the age-old teachings of the Church—and they are safeguarding those teachings as they sincerely think is best.

Subsequently, the Dicastery for the Doctrine of the Faith issued a clarification of Fiducia Supplicans (such clarifications are becoming fairly routine, aren’t they?); and in reference to these objections, the Prefect Cardinal Fernández said this:

Each local Bishop, by virtue of his own ministry, always has the power of discernment in loco, that is, in that concrete place that he knows better than others precisely because it is his own flock. Prudence and attention to the ecclesial context and to the local culture could allow for different methods of application, but not a total or definitive denial of this path that is proposed to priests.

The first part of this paragraph is precisely in sync with the principle of subsidiarity, and with the Church’s current understanding of the power of diocesan bishops.  It acknowledges that individual diocesan bishops have authority of their own within their dioceses, and can thus make their own judgment-calls about what is best for the faithful under their spiritual care.

(Of course the final line of this paragraph is something else again: as was discussed in the abovementioned “Fiducia Supplicans and the Magisterium,” the idea that the blessing of couples in irregular situations constitutes “the Magisterium,” and thus must be accepted by Catholics, is contested.  But one finds this sort of inconsistency throughout the original document: statements articulating orthodox Catholic doctrine are repeatedly interspersed with other, refutable statements that introduce ambiguous, new, and/or arguably heterodox ideas—causing confusion throughout the Church worldwide.)

Returning now to Tamara’s original question, she hit the nail on the head when she asked, “If ‘the spirit of the Council’ is our Catholic ‘guiding light,’ why does so much of what the Pope says and commands seem to restrict what bishops may want to do?”  As should now be clear, this is the question, the answer to which seems at this point to be unknown.  What can be concluded, unfortunately, is that the Church’s theological position on the authority of diocesan bishops, first articulated at the Second Vatican Council and later implemented in the 1983 Code of Canon Law, appears to be increasingly disregarded—as Rome repeatedly seems to be reverting to a pre-conciliar ecclesiology, which involves a top-down approach and increasingly limits the discretion of diocesan bishops within their own dioceses.  At the same time, the canons of the current code which are pertinent to this issue are still in force, and still consistent with Vatican-II theology—which makes for confusion and inconsistency in this broad area, so vital to the overall functioning of the Church!  Humanly speaking, there’s no obvious way to square this circle, so at this point the best approach is surely to pray, pray, pray.


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