December 20, 2001

Archbishop Rembert Weakland, OSB
Archdiocese of Milwaukee

Dear Rembert,

I am responding to your letter of January 2, 2002. I appreciate your request for theological input to help you understand the role of theology in church and society and I would hope that all Ordinaries are doing the same. I will not request either a mandate or an ecclesial blessing and my theological response will explain that decision. The theology I will present is, I believe, friendly to all bishops since only theology can free them from the impossible burden they assumed in voting for the mandating process.

I will share my remarks with others in theology and so you need not consider this response confidential.

In my judgment, the Apostolic Constitution Ex corde ecclesiae, the U.S bishops' document on "The Application of ‘Ex corde ecclesiae' for the United States, and their "Guidelines Concerning the Academic Mandatum in Catholic Universities (Canon 812)" are seriously flawed both as theology and as law. Some of the errors in these documents are these:

(1) The ruling assumptions of the above mentioned hierarchical documents depart from mainstream Catholic teaching on the legitimate role of the theological magisterium and on the definition of a theologian.

(2) The mandatum would anomalously subject professional theologians to the judgment of those who are outside the academe and are not professional theologians. In my judgment, no theologian could accept this without violating the integrity of his/her discipline. It also puts the bishops into the embarrassing and impossible position of judging scholars without the benefit of the appropriate expertise.

(3) The mandating process violates the civil status of universities which, while devoting themselves to the study of Catholicism and other religions, are chartered under U.S. law and are understood in American jurisprudence as institutions of higher education committed in good faith to untrammeled academic freedom.

Theological Critique:

The theological magisterium has its own competence and freedom to pursue the truth wherever it leads. Published theologians are always subject to corrective criticism from their peers, i.e. from those who are professionally qualified to judge their work. Theologians should also correct errors from any provenance, including the hierarchy. The mandating process introduces a system of oversight and control that would chill and even negate these theological duties and freedoms.

Some of the realism of Gaudium et Spes applies here. We are advised not to assume that "pastors are always such experts that to every problem which arises, however complicated, they can readily give...a concrete solution, or even that such is their mission." In my judgment, the healthy ideal for relations among theologians, laity, and hierarchy is contained in the Council's words: "They should always try to enlighten one another through honest discussion, preserving mutual charity and caring above all for the common good." Such a process obviously would not involve a theologian getting permission from a non-theologian to do his/her job.

This understanding of the theological mission, including the right and obligation to dissent from hierarchical teaching when necessary, is not outrider theology. Rather, in support of it I would first invoke the tone-setting testimony of Saint Thomas Aquinas and two contemporary cardinals of the Church, both of whom are fully credentialed as theologians: Avery Cardinal Dulles, S.J. and Joseph Cardinal Ratzinger.

Cardinal Dulles in his Presidential address to The Catholic Theological Society of America said that Vatican II "implicitly taught the legitimacy and even the value of dissent." The council, says Dulles, conceded "that the ordinary magisterium of the Roman Pontiff had fallen into error, and had unjustly harmed the careers of loyal and able theologians." He mentions John Courtney Murray, Teilhard de Chardin, Henri de Lubac, and Yves Congar. Dulles says that certain teachings of the hierarchy "seem to evade in a calculated way the findings of modern scholarship. They are drawn up without broad consultation with the theological community. Instead, a few carefully selected theologians are asked to defend a pre-established position..." Dulles aligns himself with those theologians such as me who do not limit the term "magisterium" to the hierarchy. He speaks of "two magisteria--that of the pastors and that of the theologians." These two magisteria are "complementary and mutually corrective." The theological magisterium has a duty to critique the hierarchical magisterium. Dulles concludes: "we shall insist on the right, where we think it important for the good of the Church, to urge positions at variance with those that are presently official."

Elsewhere, and relevant to our purposes here, Dulles, speaking at The Catholic University of America on the feast of St. Thomas wonders whether Thomas Aquinas, "if he were alive today...would be welcome" at The Catholic University of America. (It is questionable whether Aquinas, one of the most censured theologians of his day, could get a mandate from most Ordinaries today. He certainly would not have gotten one in his day from Bishop Stephen Tempier.) Once again, Cardinal Dulles insists that the "magisterium of the professors" relies "not on formal authority but rather on the force of reasons." He unites himself with the understanding St. Thomas Aquinas' view that "with the growth of the great universities the bishops could no longer exercise direct control over the content of theological teaching." "Their role," Dulles insists "was primarily pastoral, rather than academic."

Thomas Aquinas, the saintly theologian who exemplified theology done ex corde ecclesiae, drew a sharp and still useful distinction between the officium praelationis of bishops and the officium magisterii of theologians. Thomas also distinguished the magisterium cathedrae pastoralis of the bishops and the magisterium cathedrae magistralis of the theologians. What Aquinas is saying here, as Cardinal Dulles comments, is that the hierarchy does not monopolize the charism of truth and "the theologian is a genuine teacher, not a mouthpiece or apologist for higher officers."

Joseph Cardinal Ratzinger spoke an important truth when he said: "The Church is not the petrification of what once was, but its living presence in every age. The Church's dimension is therefore the present and the future no less than the past." A mandating bishop, who is--and should be-- too busy with his pastoral and administrative duties to be up-to-date in theology, could insist that only past views are acceptably "Catholic" and he could then use the mandating process to harm the reputation of a theologian who is doing creative work re-imagining the Church in ways that respond to present and future needs and realities.

To me it seems surpassingly naive not to recognize that the spirit and purpose of Ex Cordeis to reverse the freedom that came to Catholic theology before and during Vatican II. In the century before Vatican II, the Catholic Church shied from the challenges of the modern world and it shackled its theologians. The Syllabus of Errors was a stifling cry of alarm. It was followed by the very papally controlled First Vatican Council which, as Gabriel Daly, O.S.A. says, "was summoned to copper-fasten the Catholic Church's radical opposition to modern thought." Curial control worked to seal the mind of Catholicism from Vatican I to Vatican II. Protestant theologian Langdon Gilkey described what happened in the pre-Vatican II church as giving authority to "seventeenth-century minds over twentieth-century ones." With Vatican II, however, Gilkey says, "the Catholic theological mind was free to show its vast intellectual creativity as well as its monumental learning. It now easily dominates, as it has not since the fifteenth century, the
Christian theological scene." Writing in the afterglow of Vatican II Gilkey also opined that if a new creative synthesis of Christian theology were to be achieved, it would come from Catholic not Protestant theological quarters. Gilkey could not make these statements today in my judgment since we have faced twenty-five years of Vatican-led retrenchment since he wrote those generous words, retrenchment that involved censuring and silencing of major theologians.

This sorry record of repression gives us an insight into the mens legislatoris as we read Ex Corde Ecclesiae. Ex Corde has the same intention as did Vatican I, to adapt Father Daly's words, "to copper-fasten" the retrenchment of the last twenty-five years. It is today's Vatican I. It has already had a grave chilling effect on the academe. Cooperation with this process is, in my judgment, unconscionable.

Efforts to disguise this effort in the language of ecclesial unity are not plausible. This intrusive effort, instead of unity, is sowing division between those who seek the mandate and those who do not, between those who are under the judgment of a non-academic and those that labor under no such encumbrance. It also divides professors in theology from colleagues in other disciplines who are free from this non-academic, invasive intervention. Clearly the Ex Corde concern is not unity but control. Its ecclesiological symbolic matrix is not the corpus Christi mysticum but the difficult-to-inter corpus Christi juridicum.

The Magical Implications of Ex Corde Ecclesiae

Religions always teeter on the edge of magic, and slip over that edge with unfortunate frequency. Ex Corde Ecclesiae slips into magic, implying as it does that non-theologian bishops will be miraculously endowed with some noetic grace to make up for their lack of expertise in judging all the complex branches of theology...something that not even members of a theological faculty would attempt on colleagues not in their area of expertise.

The early church was confident that the truth could be known because the Spirit of Truth was breathing through the ecclesial community. Even into the early middle ages, the terms "inspiration" and even "revelation" were used rather promiscuously to describe the utterances of Fathers, councils, and outstanding churchmen. The Spirit was seen as "instructing," "dictating,", and "preaching" through the councils. Even disciplinary decrees were credited directly to the Holy Spirit.

This unnuanced confidence in the active illumining presence of God took a new form in the heavily juridical ecclesiology that grew out of the eleventh and twelfth century reforms. After studying the period closely, Yves Congar finds in this period "the transition from an appreciation of the ever active presence of God to that of juridical powers put at the free disposal of, and perhaps even handed over as its property to ‘the Church,', i.e. the hierarchy." Gradually the lubricious and mischievous term "assistance" replaced "inspiration" and "revelation" to explain the teaching power of the hierarchy. The term has never been developed or blessed by critical theology. Suarez even opined that it was "equivalent to revelation." The First Vatican Council added its weight to this confusion when it defined the possibility of making infallible statements through the medium of fallible language. The question was raised by the preparatory committee, The Deputation of the Faith, as to whether the pope had to use ordinary means to reach his infallible conclusions. The answer was that the efficacious nature of the "assistance" is such that even a negligent pope would be impeded from making a pronouncement that would be wrong or destructive. "The protection of Christ and the divine assistance promised to the successors of Peter is such an efficacious cause that the judgment of the supreme pontiff, if it were in error and destructive of the church, would be impeded." Pope Paul VI capped this sad theology by his baffling theological statement that the hierarchical magisterium could teach "without the aid of theology" because it "represents Jesus Christ the teacher and is his quasi-instrument." Pope John Paul II's Veritatis Splendor is in the grips of the same undeveloped "assistance" theology.

All of this teaching which is liable to charges of magic (the achieving of effects without appropriate causation) can be corrected by the Catholic tradition itself, in its tentatio Deiteaching. Catholic moral theology condemned the rash expectation of divine assistance when you yourself have not used the ordinary means to the desired end. This, in effect, challenges God, to supply for your negligence. The Jesuit theologians Noldin and Schmitt give the clear example of the priest who relies on God's assistance rather than preparing his sermon, and they call this a mortal sin of presumption. Henry Davis, S.J. says such tempting of God is a "sin against faith and religion." To expect bishops or popes who are not professional theologians to stand in judgment on theologians while the bishops rely not on study or expertise but on the alleged assistance of God, tempts God, and violates a healthy Catholic understanding of responsible conduct. .

In his study Censure and Heresy at the University of Paris: 1200-1400, J. M. Thijssen writes "When around 1200 the University of Paris gradually emerged, its appearance marked the birth of the studium as a new social order alongside regnum and sacerdotium, the powers of kingship and priesthood." The title "doctor" "which in the early church, designated the bishops,...was now reserved for theologians." As a result of this successful distinction between what Aquinas called the "officium praelationis" and the "officium magisterii," "academic heresies and errors were demonstrated in a process of rational discourse, by cognitive criteria that were provided by experts." The fallibility of bishops in doctrine was known to the theologian heroes of this moment. The condemnation of Aquinas by Bishop Stephen Tempier in 1277 had to be recanted by Bishop Stephen of Bourret in 1325. On the basis of that Godfrey of Fontaines said that a theologian should not comply with a teaching of a bishop if he saw it as untrue. If he was certain of its untruth, the theologian should speak out publicly even if people are shocked by his disobedience.

Like all breakthroughs this advance was not perfect or full blown. Ideals always have a rough birthing. The ideal of freedom in early America would take many amendments and struggles to bring it to term...and it is not yet fully born. Academic freedom in the modern sense flowered in nineteenth century Germany, not in thirteenth century Paris or Bologna. But the seeds were sown back there. Pioneers like William of Ockham saw that only truth has authority and doctrinal authority has to be based on cognitive criteria, not on institutional power. Today's theologians must prove themselves worthy of these pioneers of academic freedom and integrity.

Many wonder today whether the term "Catholic university" is a contradiction in terms. Ex Corde Ecclesiae , operating out of a juridical paradigm instead of an educational one, encourages such doubts by making it clear that professors may not think certain thoughts without imperiling their mandate. If there is widespread acceptance of the Ex Corde restrictions by theologians, the doubt will deepen. Catholic theology will work under a cloud. The struggle of those thirteenth and fourteenth century theologians and prophets will be betrayed. Their struggle was not just for the freedom of theologians since at that time freedom for theology meant freedom for the whole academe. These trail-blazers fought for the freedoms relished in every modern Western university today. Theirs was a budding belief, in Cardinal Newman's wording, that the true university is a place where many minds compete freely together. A Catholic university, true to its own history, should be the freest place on earth. It is sin and scandal when this is not so. The Western university is a gift of Catholic Christianity to the modern world. In the universities the bush of learning was epochally set ablaze. Ex Corde would throw water on that blaze and for that reason I see it as a moral obligation to resist it firmly.

You offer the alternative or supplemental opportunity to request an ecclesial blessing. I find this objectionable for two linked reasons: it is offered in the context of Ex Corde and not in a neutral context. Also, even in your letter, it implies that "ecclesial" means hierarchical. Rather I would say that laity, bishops, and theologians should bless one another and then attend to their appropriate and distinctive duties.

Canonical and Legal Problems

Good legislation should be clear about its fundamental categories. Ex Corde is not...even regarding its basic category of "Catholic."

Ex Corde and its attendant documents reveals a misunderstanding of academic theology in saying that the subject of this intervention is the "Catholic" professor. Catholic theology need not be taught by a Catholic any more than Chinese religions need by taught by Taoists or Confucians. A previously Muslim Islamic scholar who converts to Buddhism does not lose his/her academic credentials to teach Islamic theology. Or consider the case of a Catholic theologian who converts from Catholicism and becomes an observant Jew. If this choice were to cause a loss of objectivity regarding Catholic theology, this would show up in his/her theology and be subject to criticism by credentialed peers. This in fact is the only plausible method of correction in any respectable academic discipline. It is also possible that the teaching of Catholic theology by this professor could be enhanced by this new religious practice with new avenues of dialogue opened and new perspectives added.

However, the focus of Ex Corde is not on the epistemological subtlety of the effect of changed personal commitments on cognitive objectivity. Its mission, as I see it, is thought-control and a denial of the legitimacy of the theological magisterium.

Marquette University is not Catholic in the sense that a parish is Catholic. The American University is first of all a state-chartered institution of higher education with avowed commitment to unfettered academic freedom of inquiry. All other aspects of a university are adjectival . They can enrich but not contradict the substantive identity of the institution. In this adjectival sense Marquette is Catholic and a center of Catholic studies. It is also ecumenical and its theologate has faculty qualified in Protestant, Jewish, and other religious traditions.

Ex Corde is also defective as legislation since it will be interpreted differently by different bishops, as you acknowledge. The administration of Ex Corde presents a nightmare of complexity to any bishop. Should a bishop only respond to teachings that are currently thought to be opposed to De Fide teaching (this too is an historical mutant) or should he monitor even those teachings that used to be called "offensiva piarum aurium," or merely "non-tuta" or "temeraria?" Will it be necessary to resurrect the old notae theologicae and start drawing lines of tolerability Most of our faculty at Marquette do not subscribe to the teaching of Humanae vitaethat all artificial contraception is intrinsically evil. Since dissent is now common to that teaching, many dissenters to that encyclical will presumably get a mandate. Does that mean that dissent to that encyclical is now blessed by the Ex Corde process? Most theologians who get a mandate will disagree with the Syllabus of Pope Pius IX. Does that mean that dissent to older hierarchical teaching is approved and only very recent teaching is exempt? The alternative to this thicket of problems is to allow the academe to function as the academe, a place where candid and often searing criticism best serves the truth in a world where there is no infallibility among any of us. Laity, bishops and theologians only know, as Paul said, "in part."

Wishing you good health and fruitful labors in your forthcoming retirement, I remain,

Sincerely,

Daniel C. Maguire
Professor