Former president Mary McAleese. 
Mary McAleese’s remedy for greater lay involvement is undermined by the legalism with which she wants to save the synod process writes Prof. Massimo Faggioli
It is always wise to pay attention to the statements that former president Mary McAleese makes on the Catholic Church. They always reveal something on this moment in the life of our ecclesial communion. It was no exception in the opening keynote address, delivered on September 10 for the ‘Root and Branch Synod’ in Bristol – an independent gathering of Catholics meant to influence the ‘synodal process’ launched by Pope Francis for the entire Church between now and October 2023.
In the lecture, titled ‘No synodality without freedom of speech: canon law must acknowledge the human rights of Church members’, Dr McAleese makes some valid points, especially on the insufficiencies of the institutions that were designed for collegiality in the Church, but now are woefully inadequate. Institutions that were designed at the time of Vatican II (but not by the council) for episcopal collegiality (meaning, the Pope and the bishops only) are not easy fixer-uppers for ecclesial synodality (that is, involving the whole People of God). Dr McAleese is right in sounding the alarm about the persistent reluctance of the hierarchy to comprehend and receive inputs from the laity about the need to reform Church structures. I had my fair share of frustration, as one of the consultants for The Light from the Southern Cross, a 200-page document on ecclesial governance submitted in 2020 to the Australian bishops and Australian religious – a report commissioned by the bishops and religious orders themselves.
There are also some points in Dr McAleese’s address that simply do not stand the test of Catholic theology and tradition, like the one – brought up in this speech once again – on infant Baptism that according to Dr McAleese deprive children of rights: “fictitious baptismal promises made by non-sentient babies”. I find it a strange way to assert the baptismal dignity as foundational to ecclesial synodality. There are also cheap shots against Vatican II, like the one on the declaration on religious freedom, Dignitatis Humanae. The ultra-traditionalists of the Society of St Pius X at least are more aware of how much and at what cost Dignitatis Humanae updated Catholic tradition. But these are not the major problem with Dr McAleese’s take on synodality.
Church canon law currently imposes limits and restrictions on all those rights”
What undermines the plausibility of her whole argument is the legalism with which she wants to save the synodal process from failure. She stated: “synodality will only work, in fact the future Church will only work, if it is firmly set in a context where there is unequivocal acceptance that Church members are entitled within the Church and all its laws and processes, including synods, to the inalienable human rights set out in ‘The Universal Declaration of Human Rights’ of 1948…the equality of men and women, and their intellectual rights to freedom of expression, speech, thought, opinion, belief, conscience and religion, including the right to change religion. Church canon law currently imposes limits and restrictions on all those rights.”
Why is this a problem? There are certainly issues with the way canon law understands rights compared to the secular law – even though not always in the way Dr McAleese sees that: for example, the concept of membership in the Code of Canon Law of 1983 is conceived in ways that more juridical (Roman law) than sacramental.
Paradoxically, the cure Dr McAleese is proposing would make the patient even sicker. The biggest problem in her proposal is the attempt to constitutionalise Catholicism. It’s not the first time. In the early post-Vatican II period, the papacy of Paul VI tried to draft and promulgate a constitution for the Catholic Church, the Lex Ecclesiae Fundamentalis. Facing strong opposition, in the early 1970s the project was withdrawn (important parts of that draft were resurrected in the Code of Canon Law of 1983, but that is another story). What was the opposition about? The opponents pointed out, I think correctly, that constitutionalisation would not just make the Church subject to the majorities in the lay and “episcopal parliamentarism” (to quote Dr McAleese) of the day and lock it in a political dynamic. It would also mean bringing back a legalistic understanding of the Church and, most importantly, of Church membership. It would immobilise theology and pastoral praxis under the sovereignty of the law. Surely the Gospel should be sovereign?
Spiritual and liturgical
Now we are back to that debate on the Lex Ecclesiae Fundamentalis, in a different situation. Maybe it’s because I live in the USA, but I think the Church is already too dominated by lawyers (canon lawyers and otherwise). A constitutionalisation of the Church would make clear that Catholicism is failing to grasp what is at stake, in this 21st Century, in the fight between the spiritual and liturgical on one side and what is legal because contractually enforceable on the other side.
A constitutionalisation of synodality aims to give Catholics new freedoms, but I think it will mean, in the long run, more subjugations. The question now is how to make Catholicism conducive to spiritual, theological, and cultural changes that help a development in favour of respect of human rights, without locking the Church – not just the synodal process – in the quagmire of defining these rights in an ecclesial community that is global. This kind of legalistic approach reveals a claim to universality understood in a monopolistic way, a false universalism hidden behind accusations against an institutional Church – something that in this age of resentment will always find an enthusiastic and receptive audience.
It seems to me that the question is ultimately whether the foundation of the Church and of synodality is sacramental or juridical”
I strongly believe in the importance of the law in the life of the Church, especially today when the religious factor is a key element in building a more just society, respectful of the dignity of every woman and every man. I am certainly not in favour of a Church that allows itself to be identified with the rejection of the equality of men and women, with clericalism, etc. Especially in the US, we have seen what the alignment of some Catholic leaders with the proud ignorance and the anti-science movement, the rejection of democratic values, sexism and illiberalism is costing the Church.
It seems to me that the question is ultimately whether the foundation of the Church and of synodality is sacramental or juridical. Dr McAleese thinks it is more juridical. This would only serve the enemies of synodality and of this ‘synodal process’ which, she is right on this at least, needs a miracle to succeed.
Dr Massimo Faggioli is Professor of Historical Theology at Villanova University in Pennsylvania.
