Academic Freedom and the Vatican’s Ex Corde Ecclesiae

The Vatican’s new policy attempts to bind Catholic theologians more closely to church hierarchy, but Catholic theology and Catholic universities are best served by holding fast to academic values.

By Daniel C. Maguire

The announced purpose of the mandate is to ensure that the teaching of Catholic theologians is in "full communion with the Catholic Church." The bishops recognize the professors’ "lawful freedom of inquiry" but make the point that not all "freedom of inquiry" is lawful. The bishops stress the professors’ obligation "to refrain from putting forth as Catholic teaching anything contrary to the church’s magisterium." The Latin term magisterium means teaching office, but in the official language of the church hierarchy it means the teachings of bishops and the pope. Thus the mandate could be denied or withdrawn if the local bishop deems that the professor is not in accord with hierarchical teaching. Any appeal by the professor would have to adhere to "the general principles of canon law," that is, Roman Catholic Church law, not to systems of academic due process.

The following text, edited for publication, is from a January 25, 2002, letter from Daniel Maguire to Archbishop Rembert Weakland, O.S.B., of the archdiocese of Milwaukee, where Maguire’s institution, Marquette University, is located. Translations of Latin terms appear in parentheses. The original text of the letter, including citations, is available by e-mail at <maguired@juno.com>.

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 bishops 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, so you need not consider this response confidential.

In my judgment, the apostolic constitution Ex Corde Ecclesiae; the U.S. bishops’ document, "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:

a. 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.

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

c. 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

Some of the realism of the Second Vatican Council’s Gaudium et Spes, the Constitution on the Church in the Modern World, applies here.1 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 in Gaudium et Spes: "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’s getting permission from a nontheologian to do his or her job.

This understanding of the theological mission, including the right and the 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 St. 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 a 1976 presidential address to the Catholic Theological Society of America said that the Second Vatican Council (1963–65) "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 mentioned John Courtney Murray, Teilhard de Chardin, Henri de Lubac, and Yves Congar.

Dulles said 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 theo-logical community. Instead, a few carefully selected theologians are asked to defend a preestablished position." Dulles aligned himself with theologians like me, who do not limit the term magisterium to the hierarchy. He spoke of "two magisteria—that of the pastors and that of the theologians." These two magisteria are "complementary and mutually corrective," he said. The theological magisterium has a duty to critique the hierarchical magisterium. Dulles concluded, "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."2

Elsewhere, Dulles, speaking at the Catholic University of America on the feast of St. Thomas in 1975, wondered 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 bishops today. He certainly would not have gotten one in his day from Bishop Stephen Tempier, the bishop who condemned Aquinas’s work in 1277 only to have that condemnation reversed in 1325.) Once again, Cardinal Dulles insisted that the "magisterium of the professors" relied "not on formal authority but rather on the force of reason." He united himself with Aquinas’s 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 insisted, "was primarily pastoral, rather than academic."

Aquinas, the saintly theologian who exemplified theology done ex corde ecclesiae (out of the heart of the church), drew a sharp and still useful distinction between the officium praelationis (the administrative office) of bishops and the officium magisterii (the teaching office) of theologians. Aquinas also distinguished between the magisterium cathedrae pastoralis (the teaching office of pastors) of the bishops and the magisterium cathedrae magistralis (the teaching office of professors) of the theologians. What Aquinas meant, as Dulles commented, was that the hierarchy does not monopolize the truth and that "the theologian is a genuine teacher, not a mouthpiece or apologist for higher officers."

Joseph Cardinal Ratzinger spoke an important truth before the Second Vatican Council 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 reimagining the church in ways that respond to present and future needs and realities.

To me, it seems surpassingly naïve not to recognize that the spirit and purpose of Ex Corde is to reverse the freedom that came to Catholic theology before and during the Second Vatican Council. In the century before the council, the Catholic Church shied from the challenges of the modern world, and it shackled its theologians. Pope Pius IX’s 1867 Syllabus of Errors, for example, was a stifling cry of alarm that condemned most of the progressive ideas of his day, including the right to freedom of religion. Many of its teachings were reversed by the Second Vatican Council. The syllabus was followed in 1869 by the very papally controlled First Vatican Council, which, as theologian Gabriel Daly, O.S.A., wrote in Transcendence and Immanence: A Study in Catholic Modernism and Integralism, "was summoned to copper-fasten the Catholic Church’s radical opposition to modern thought."

Curial control worked to seal the mind of Catholicism from the first Vatican council to the second. In Catholicism Confronts Modernity: A Protestant View, Protestant theologian Langdon Gilkey describes what happened in the church before the second council as giving authority to "seventeenth-century minds over twentieth-century ones." With the Second Vatican Council, however, Gilkey writes, "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 the Second Vatican Council, 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, now that we have faced twenty-five years of Vatican-led retrenchment since he wrote those generous words. This retrenchment has involved censuring and silencing major theologians.

This sorry record of repression gives us an insight into the mens legislatoris (the mind of the legislator) as we read Ex Corde Ecclesiae. Ex Corde has the same intention as the First Vatican Council; to adapt Daly’s words, it aims to "copper-fasten" the retrenchment of the last twenty-five years. It has already had a grave chilling effect on 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 is sowing, instead of unity, division between those who seek the mandate and those who do not, between those who are under the judgment of a nonacademic and those who labor under no such encumbrance. It also divides professors in theology from colleagues in other disciplines who are free from this nonacademic, invasive intervention. Clearly, the Ex Corde concern is not unity but juridical control.

Magic and Ex Corde

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 eleventh- and twelfth- century reforms. After studying the period closely, theologian Yves Congar wrote in 1960 in Tradition et les Traditions that this period marked "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. Jesuit theologian Francisco 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," the Deputation of Faith concluded. Pope Paul VI capped this sad theology in 1966 in Acta Apostolicae Sedis with 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." The current pope, John Paul II, is in the grips of the same undeveloped "assistance" theology.

All of this teaching that is liable to charges of magic (the achieving of effects without appropriate causation) can be corrected by the Catholic tradition itself, in its tentatio Dei (tempting God) teaching. 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. In Summa Theologiae Moralis: De Praeceptis Dei et Ecclesiae, the Jesuit theologians Hieronymus Noldin and Albert 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. In Moral and Pastoral Theology, 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," he notes. 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," Thijssen continues. The fallibility of bishops in doctrine was known to the theologian heroes of this moment. The condemnation of Aquinas by Bishop Stephen Tempier had to be recanted by Bishop Stephen of Bourret. On the basis of that, theologian Godfrey of Fontaines wrote in Quodlibet VII 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 would be 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 then. Pioneers like philosopher-theologian William of Ockham saw that only truth has authority and that 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 of academe. These trailblazers fought for the freedoms relished in every modern Western university today. Theirs was a budding belief, in John Henry 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

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, whether church related or not, 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 respond only to teachings that are currently thought to be opposed to De Fide teaching (teaching considered essential and immutable dogma but that can be, and has been, subsequently revisited and revised), or should he monitor even those teachings that used to be called offensiva piarum aurium (offensive to pious ears) or merely non-tuta (not safe) or temeraria (rash)? Will it be necessary to start drawing lines of tolerability? Most of our faculty at Marquette do not subscribe to the teaching of Humanae vitae that 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 academe to function as 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 the Apostle said, "in part."

End Notes

2. The term "official teaching" is theologically defective. The important question is not what teaching is "official" in the sense of what is taught by officials, but rather what teaching is true.Back to text.

Daniel Maguire is professor of religious ethics at Marquette University and president of the Religious Consultation on Population, Reproductive Health, and Ethics, a collegium of eighty progressive, feminist scholars from the world’s major religions. His most recent book, published in 2001, is Sacred Choices: The Right to Contraception and Abortion in Ten World Religions.

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