Responding to a juridical positivist

by Br. Alexis Bugnolo


Recently, the Most Rev. Henry Gracida, on his blog published a long critique, entitled, “Some Thoughts about the status of Cardinals etc.”, of a post, here at the From Rome Blog, entitled, “How usurpation of the Papacy leads to the excommunication of the participating Cardinal Electors and Bishops“.

Since, I intend to respond to the charges brought against my position, I recommend that all readers first read both articles, in chronological order. — Since the commentator is anonymous, I will refer to him by the initials of his nome du plume: CC.

The argument marshaled against my position contains a list of ridiculous errors.  The first of which is derived from juridical positivism, which holds that nothing is certain in reality unless it be judged by a competent court of law, holding constitutional authority to judge the matter. This is the kind of error no one but a Canonist or Lawyer would fall into, because it reduces the realm of epistemological truth to that of what a court recognizes as facts. Now, its quite understandable that someone exercising the profession of a lawyer or canonist, who must prove everything to the level of certitude had in the courts before whom he appears, to have such a habit of mind, but is quite a grand moral and philosophical error to hold that such a criterion is validly applied to the whole of reality.

On the contrary, the human mind can know truth with certitude. This is a fundamental presupposition of all human endeavor, because if it be denied, then there could be no faith given by one man to another on the basis of human judgements. Now just as the human mind can exist outside the mind of a lawyer before a court, so the human mind can know truth with certitude outside of the court of law. To say otherwise, would be psychotic, that is divorced from reality.

I say this to preface the notion of latae sententiae excommunication as a canonical penalty in the new code of Canon law. Many canonists, proceeding from the mindset of juridical positivism hold that whereas such penalties are published in the Code, they are either never incurred or that they can never with certainty be known to be incurred, until, in both cases, a competent authority declares them.

The fundamental error of this position, is that the very Latin of the penalty contradicts their position:  “latae sententiae” in Latin means, without the necessity of a juridical sentence being handed down. This means, that the one who violates the law which bears this penalty for violation, is penalized BEFORE and WITHOUT any public declaration of the penalty being inferred.  This being the case, a human mind can know of it with certitude. The certitude I speak of here is the certitude of natural reason which from facts which are in the external forum and known by documented evidence or eye-witness testimony, can be with seen as fulfilling the conditions for the excommunication to be incurred.

What CC attempts in criticizing me is a sophistic error:  For first he argues that such excommunications cannot be known with certitude, and then asserts that such certitude can only be had in a court of law, from which he infers that I am wrong in saying that Cardinals are excommunicated. — As an aside, no where in my article do I say that any Cardinal is excommunicated;  I merely said that Cardinals and Bishops are subject to the penalty.

While it it true, that in the Catholic Church, the incurring of any ecclesiastical penalty, whether declared or not, should be made known by ecclesiastical authority for the sake of the unity of the Church, it is not true, that all of them are NOT incurred if ecclesiastical authority through corruption, fear, sloth or some other vice, fails to declare that they are incurred.  For excommunications latae sententiae are incurred by the law itself. Those who say otherwise are simply ignorant of Latin.  To say this idea of excommunication as “automatic” is merely a canard, since as is clear it depends not upon the private individual or merely the act of violation, BUT by the imposition before the fact by the Supreme Legislator, the Pope, of a penalty which applies to all future violations ipso facto.

He extends this error of juridical positivism in the most clericalist manner by denying that a Catholic can know with certitude if a Conclave be valid or not, when a Conclave is called to elect another pope, while the first pope is still alive! — This is pure insanity! That is like saying a layman cannot know the Moon is eclipsing the Sun, just because he saw the Moon blot out the Sun! — You have to be totally psychotic to even say such a thing.

The truth is, the certitude that a Conclave is invalid is had from the certitude of the facts according to which it would not be licit to convene the Conclave. In the case in question, this certitude derives from the certitude that Pope Benedict XVI never resigned the petrine munus.  Which certitude is objective, real, verifiable, documented and testified to by 2 things: the document Non solum propter, which only renounces the ministerium, and canon 332 §2 which says a Pope resigns when he resigns the munus.  Since every Latinist knows that ministerium and munus are not only different words, but which do not share the same significations in ecclesiastical usage, the certitude that Pope Benedict XVI never resigned the Papal Office is both prima facie and a necessary consequent of the law (especially since canon 38 required that if Benedict wanted to signify munus by ministerium, he would have had to explicitly derogate the obligation of canon 332 §2 in its fundamental conditional clause).

Those who have studied and understood philosophy know that both in logic and in moral and legal affairs, the certitude of principles and causes extends and flows down through to conclusions and effects.  A Canonist who is expert in the procedural rules of declared and imposed penalties which are not latae sententiae, might think differently, since he moves in a world of courts, but that is not the whole of reality. Thus to discount canon 359, the canon which forbids Cardinals to convene a conclave when there is no sede vacante, is not only absurd but should make anyone who knows Canon Law doubt whether CC has ever read the law.

Next, in regard to his attempt to fault me for misreading 1382, he seems never to have read the Code of Canon Law of 1983, which specifically obrogates the old code and makes recourse to its terms unauthentic when the new code establishes a greater penalty, which is true in the case of episcopal consecrations. And no, contrary to CC’s assertion, when I said, “ordain” I mean “consecrate” because the consecration of Bishops is a species of the power of ordination, a thing everyone who knows his theology of the Sacraments knows well enough. CC furthermore goes off into the fog, by saying in effect that an AntiPope consecrating Bishops or nominating Bishops is only guilty if he is feigning to have the authority of the Pope to confer jurisdiction. What kind of argument he is trying to make by moving this against the case in question, I do not know, because that is what an Anti-Pope objectively does!!!

The appeal to canon 1405 §1, 2°, namely, that the Pope alone judges the Cardinals, is praeter rem, because in legislating canonical penalties which apply to everyone in the Church, without exception, Pope John Paul II did judge the Cardinals  beforehand.  Those who have studied Canon Law and understand its nature know this well.

Finally, all CC’s other assertions saying things cannot be known or known with certitude, by anyone but the Canonist or Judge in a court of Canon Law, or by the Pope alone, is merely an extension of juridical positivism, an absurd professional error of snobbery among poorly schooled lawyers. Canonists who know the Faith understand well that Canon Law’s fundamental context is the Catholic Faith and that it must be understood in a manner which does not conflict with objective reality and epistemology. Like the Catholic Faith, it is not a gnostic science in which the truth is only known by the initiates who study at Pontifical Universities.

I invite all those who have not yet done so, to read my original article on the Excommunication of Cardinals and Bishops who participate in the usurpation of the Papal Office more carefully, and they will see how I speak of moral causes and the terms of the law, and how I never said anyone was excommunicated, only that if they know what they did, they merit to have incurred the penalty. This is perfectly Catholic.

As a Postscript, I add, that I am not in the least offended by the publication of CC’s critique. I appreciate the occasion to manifest the truth better through the clash of mental swords. — I would also note that, what really irks Canonists and Bishops about my article is that I have put them on notice that their offices and privileges be derived from a true Pope, not a fake pope; in other words, I am reminding the malicious ones that their entire project is null and void, and that they are risking losing communion with Christ, canonically speaking, if they have not already done so.










Scruton: The Law on “homophobia”? — It’s like the show trials under Mao Tse Tung

Roger Scruton, one of the leading Philosophers in the United Kingdom, spoke today to Giulio Meotti of Il Foglio, on of the leading Italian Dailys.  What follows is an unofficial English translation of that article.

They’re creating a whole new language, like the Communists did during the time of the Cold War.  A wooden language.”

Roger Scruton, renowned English philosopher« George Orwell already spoke of this in his famous ‘two minutes of hatred’ in the novel, 1984, said Roger Scruton, the English Philosopher and Commentator, during his interview with Il Foglio.  « The problem of homosexuality is a complicated and difficult one, but we cannot imprison thought itself with laws against the so-called “homophobia”, like that being contemplated by the Italian Parliament, which is nothing other than the criminalization of the right to free intellectual discourse on the question of “gay-marriage”.  They are creating a new intellectual crime, a crime against their own ideology, like the Communists did during the Cold War.

The seventy-year old professor of Philosophy at St. Andrew’s University, Scotland, author of thirty books which have made him the most famous conservative English philosopher (or as the Sunday Times: put  it: “the brightest intellect of our time”), Scruton was commenting on the proposed law before the Italian Parliament which would criminalize “homophobia”.  Even Amnesty International is in favor of the law.  « To me, this law on “homophobia” brings back memories of the farcical trials held at Moscow, or those of Maoist China, in which the victims were forced to confess with enthusiasm their own crimes, before being condemned.  In all those show trials, the enthusiastic prosecutors accused the victims of “hatred” and “hate speech”, you see what the philosopher Michale Polanyi, in 1963, defined as a “moral inversion”:  if you deplored the welfare system ,you were lacking in compassion; if you are opposed to the normalization of homosexuality, you are a “homophobe”; if you believe in western culture, you are an “elitist”.  The accusation of “homophobia” means the end of your career, especially for those who work at a University.

Scruton sustains that the manipulation of truth is being conducted under the cover of the distortions of language, just like in Orwell’s novel, under the name of “the New Language”.  « The New Language intervenes every time the principal proposition of a language, which is descriptive of reality, is replaced by the intended opposite:  and this is nothing other than the raw affirmation of political power over language itself.  Here, the fundamental linguistic act coincides only superficially with the assertive grammar.  The phrases in the New Language sound like affirmations in which the only logic underlying them is that of a magic formula:  they are designed to show the triumph of words over things, the futility of rational argumentation against the politically correct ideology and the danger of resisting the intended enchantment.  As a consequence, the New Language has developed its own special syntax which, though strictly connect to that which is normally used in ordinary descriptions, evades it precisely so as to deflower reality or to oppose rational argumentation itself.  This is what François Thom tried to illustrate in his essay, “La Langue de bois” (The wooden language).  Some of the syntactical peculiarities were pointed out by Thom:  the use of the noun in place of a transitive verb; the preference of passive forms and impersonal constructions; the use of comparatives in place of predicates, the omnipresence of the imperative mood ».

With the law on “homophobia”, says Scruton, “they are trying to instill in the mind of the public the same malign idea which is pervading all of Europe, taking up residence in the hearts and heads of the masses which are ignorant of their machinations, diverting, in this way, along the path of sin even the most innocent affairs of men.  The New Language freezes and hardens the mind.  Common parlance itself generates, with its own native resources, the concepts which the New Language prohibits:  correct / incorrect; just / unjust; honest / dishonest; your / mine.

A Form of Re-education

Scruton says that the fear of heresy is a foot in the country of Europe.  « A considerable system of semiofficial etiquette is emerging for the prohibition of free speech on points of reality which are seen as “dangerous”.  The threats are spreading so rapidly in society that there is no way to avoid them in daily life.  When words become crimes, and thoughts are judged as advocacy, a sort of malign prudence invades intellectual life.  They are controlling language, sacrificing style for a more “inclusive” syntax, they avoid speaking of sex, race, and religion.  Every phrase or idiom which contains a judgement on any category or class of persons can become, from one day to another, the object of reproach.  This political correctness is a soft form of condemnation with the same violence of a Salem witch trial ».  Like they did in Massachusetts in colonials times, as narrated in the Scarlet Letter.  « Whoevery is worried about all of those and wants to make some protest, has to battle against powerful forms of censure.  Whoever dissents from what is becoming the Neo-Orthodoxy of “gay-rights” is regularly accused of “homophobia”.  In the United States of America there are political action committees which examine the candidacy of politicians to determined whether they are “homophobes”, so to liquidate their candidacies from the get go, by means of the mere accusation.  Even in the selection of juries, one hears, “We will never accept the possibility that such a person can be part of the jury:  she is a Christian and a homophobe!”

According to Scruton, all this is reminiscent of the ideological warfare which prevailed at the time of the Cold War:  « In those years it was considered necessary by some to create definitions to stigmatize the opposition with a visceral hatred so as to justify his expulsion from society:  there was “revisionist”, “deviazionist”, “teenage lefty”, “utopian socialist”, “social fascist”.  The success of these labels to marginalize and condemn the opposition reinforced the error spread by the Communists that by means of language you could change reality:  for example, you could invent the culture of a proletariat by using the word “prolekult”; you could unchain yourself from the failure of a free economy simply by shouting “the crisis of capitalism” every time the topic came up; you could combine the absolute power of the Communist Party with the free consent of the people by calling the Communist Government, a “centralized democracy”.  How easy it became to murder millions of innocents, considering that nothing bad was resulting, no, it was only the “liquidation of prisoners”!  How simple it was to shut people up for years in work camps until they got sick or died, when one only had to redefine them as “re-education camps”.  Now, there is a new secular bigotry which wants to criminalize the liberty of expression when it regards the topic of “homosexuality”.

Finally, Scruton says, it’s a battle between the “pragmatist” and the “rationalist”.  For the former, « there is no utility in the old ideologies of objectivity and universal truth, the only thing which matters is that “we” are in agreement.  Who is this “we”?  And upon what do we find ourselves in agreement?  “We” are for feminism, “we” are liberals, supporters of the movement for the “liberation of gays” and for an “open curriculum”; “we” do not believe in God or in any handed-down religion, and the old ideas of authority, order and self-discipline are for “us” immaterial.  “We” are the ones to decide the meaning of texts, by creating with our own words the consent which with they are weighed.  “We” have no bonds, except for those of the community to which we have chosen to belong, and since there is no objective truth, but only a self-generated consent, “our “position is unattackable from any point of view outside of “our” own.  The pragmatist can not only decide what to think, he can also protect against anyone thinking in a different way ».