1. Possible grounds of accusation

Canon 1382 of the current Code of Canon Law for the Latin Church states: ‘Both the bishop who, without a pontifical mandate, consecrates a person a bishop, and the one who receives the consecration from him, incur a latae sententiae excommunication reserved to the Apostolic see.’Footnote ³ To breach a merely ecclesiastical law, however, can be justified or even required by higher considerations, as the Code itself implicitly recognises in its final canon, which speaks of ‘[…] the salvation of souls, which in the Church must always be the supreme law’.Footnote ⁴ The question at hand, therefore, is whether to consecrate a bishop without a pontifical mandate, and, indeed, contrary to an express order of the Roman pontiff, is also contrary to divine law and, therefore, something that may in no circumstances be approved.

There are various arguments that one might use for such a conclusion. The most obvious would be to state that such an act constitutes the mortal sin of schism and, therefore, is intrinsically evil. Alternatively, one might argue that if not a formal schism, an ordination of this kind would nevertheless be intrinsically bad by virtue of setting up a power in rivalry with the legitimate spiritual power; such an act might be described as schismatic in its trajectory. A closely related argument would introduce the category of ‘canonical mission’ and argue with the aid of weighty magisterial teachings that to consecrate bishops without such mission is always gravely wrong. Finally, one might argue that whether or not such a consecration was necessarily excluded by any of these arguments, it would nevertheless imply a lack of trust in God’s providence over the Church. I shall consider each of these arguments in turn, before offering a counterargument, by way of a thought experiment.

2. What is schism?

St Thomas Aquinas explains that schism is the sin by which a person ‘intends to separate himself from that unity which charity produces’.Footnote ⁵ Since this unity is the unity of the Catholic Church, produced by the Holy Spirit dwelling within her, schismatics are those who ‘by their own initiative and intention [propria sponte et intentione] separate themselves from the unity of the Church’. Aquinas further notes that this unity consists both in the subjection of each member of the Church to the head, namely, to Christ and, thus, to the Roman pontiff as Christ’s vicar, and also in the union of the members among themselves. He concludes: ‘Therefore they are called schismatics who refuse to be subject to [subesse] the sovereign pontiff, and to hold communion with the members of the Church subject to him.’

From this account, it follows that a single act of disobedience, or of non-obedience, does not by itself constitute a schism. A bishop who does not comply with a papal command does not ipso facto become a schismatic, just as a child living under his parental roof who disobeys a command of his father does not thereby renounce all allegiance to him. A bishop would, however, certainly become schismatic, if he denied that a pope had a right to command him in any matter of ecclesiastical discipline and claimed that all papal laws might be set aside in advance as null. Aquinas writes: ‘The essence of schism lies in not obeying precepts by a kind of rebellion. I speak of a rebellion, which both stubbornly rejects the precepts of the Church and refuses to be subject to her judgement.’Footnote ⁶

Normally, for a bishop to ignore a papal precept in a matter of ecclesiastical discipline would be at least the sin of disobedience, greater or lesser in proportion to the gravity of the matter.Footnote ⁷ For example, for a bishop to refuse the command to consecrate a bishop to a vacant see because he feared to lose his own influence over the episcopal conference of the country would be worse than to refuse a command to ensure that the candles used in his cathedral were made mostly from bees’ wax. But even a grave act of disobedience would not itself be formally schismatic, provided that the bishop continued to recognise in principle the rights of the sovereign pontiff.

There seems no reason why one who consecrates a bishop contrary to the order of a pope must necessarily reject in principle all papal rights. Such a man could continue to accept the pope’s universal ordinary and immediate jurisdiction, as defined at Vatican I, and show his acceptance of it by, for example, going to an ecumenical council when summoned, taking part in ad limina visits to Rome, naming the pope in the canon of the Mass and recognising the diocesan bishops appointed by him, and following and enforcing the universal disciplinary laws established by papal authority, perhaps with regard to fasting or to holy days of obligation. Again, the one who received consecration could continue to show that he recognised papal authority, in many of the same ways. These men could thus continue to manifest a hierarchical communion with the pope.Footnote ⁸

Likewise, there is no reason why either man need be guilty of the second kind of schism noted by Aquinas, of refusing to hold communion with his fellow Catholics. Provided that a bishop is willing to recognise as Catholics those and only those whom the pope also recognises as such, and provided that he also acts in accordance with this recognition, for example by administering to them the sacraments that they request and which they are not impeded from receiving, he cannot be said to be refusing communion with them.

Hence, it does not seem that either the minister or the subject of a consecration performed contrary to the will of the pope becomes a schismatic by that very fact.Footnote ⁹

3. Schism by conferring jurisdiction?

There might, however, appear to be a special reason why such an action, unlike other acts of non-obedience to a papal command, would in fact constitute a schism. There belongs to bishops as the ‘high priests’ of the new covenant not only the fullness of sanctifying power but also that power to rule in the Church, which is called jurisdiction or governance. Anyone attempting to govern the Church or some part of it independently of the pope is plainly in schism from him, ‘setting up a throne in opposition to that single throne’, in the words of St Optatus of Milevis.Footnote ¹⁰ If episcopal consecration by itself implies that its recipient seeks to govern the Church, or some part of it, such consecration must be schismatic when received contrary to the will of the pope.

It is sometimes claimed that the Second Vatican Council taught that episcopal consecration by itself confers jurisdiction upon its recipient.Footnote ¹¹ Taken literally, this would be a strange claim, since jurisdiction means a right to govern; but if episcopal consecration by itself conferred a right to govern, no episcopal ordination could ever be schismatic, since only Catholics can have a right to govern the Catholic Church. Clearly, what is meant by the claim is that episcopal ordination necessarily involves, objectively and whatever may be the subjective intention of consecrator and recipient, an attempt to give to the new bishop a share in the governance of the Church or some part of it.

But what does Vatican II teach on this matter? Lumen Gentium, the dogmatic constitution on the Church, affirms: ‘Episcopal consecration, together with the office of sanctifying, also confers the office of teaching and of governing’.Footnote ¹² The nota praevia to Lumen Gentium, which is an integral part of the document, explains why the word ‘office’, munus, was used in this context:

Episcopal consecration, therefore, although it already confers a new share in Christ’s kingly office, does not of itself imply the claim to be actually ruling the Church or some part of it. For as long as the bishop has no territory or subjects duly assigned to him, his power remains in some way bound. A bishop who had received consecration contrary to the will of the pope but who did not claim to be the proper ruler of any territory or subjects would, therefore, not as such be seeking to separate a portion of the Lord’s flock from their proper pastors. He would not be causing a schism in the Church by setting up his throne against the throne of Peter in the manner reprobated by St Optatus.

What of the claim that the teaching of Vatican II on collegiality implies that a Catholic bishop, while not necessarily governing some portion of the Church, is nevertheless by divine law governing the Church as a whole, as a member of the episcopal body? For if this were the case, it would follow that episcopal consecration of itself objectively included the intention to make the recipient an actual ruler of the Church, and, hence, that it would be schismatic when performed contrary to the will of the pope. While Lumen Gentium 22 could give the impression that the doctrine of collegiality implies such a claim, here also the nota praevia provides the necessary clarification: ‘The college is not always “fully in act”; rather, it acts as a college in the strict sense only from time to time and only with the consent of its head’.Footnote ¹⁴ In other words, any bishop is capable of governing the universal Church in union with his fellow-bishops in dependence on the pope, most obviously when summoned by the pope to participate in an ecumenical council; but the mere fact of being a bishop does not imply the claim to be actually so governing.Footnote ¹⁵

4. Schismatic trajectory?

It could be argued that episcopal consecrations contrary to the will of the pope, while not constituting a formal schism, are nevertheless intrinsically bad, as involving what may be called a ‘schismatic trajectory’. This is the thesis of an anonymous group of theologians, whose recent study ‘Des sacres légitimes?’ has been praised by Cardinal Robert Sarah. The authors write:

Such a consecration, state these authors, if not in itself schismatic, is nevertheless an evil, and is at least on the road towards schism (‘dans la ligne même du schisme’). The man who received an episcopal ordination of this sort would be, if not a limb cut off from the body, at least a limb hanging by a tendon and in danger of being fully severed.

From a psychological and sociological point of view, this argument has force. A bishop who had received consecration against the will of the pope would no doubt be in some danger of inwardly rejecting the papal headship of the Church and of outwardly assuming to himself some portion of the flock; that is, it would be natural for him to experience some temptation to do these things. But deliberately to put oneself in a situation of danger, even of spiritual danger, is not intrinsically bad: the lawfulness of doing so must, therefore, depend on the circumstances, in particular on whether the good to be obtained warrants the risk, and whether one may prudently judge that one possesses the resources necessary to avoid the evil at hand.

The argument of the authors just mentioned seems to be that it is wrong to assume a power if it would be wrong to perform the actions attendant on that power. But it is not clear why this should be always true. As a counterexample, we may consider the members of the political party, Sinn Fein, who thought that for the good of Ireland, they should seek election to the British Parliament but should refuse the oath of loyalty to the Crown that is necessary after being elected in order that one may act as an MP. We need not suppose that these Irish nationalists were right in their judgement, but it is not absurd to suppose that they were right, or that others might be right in acting in a similar way. We should then have an example of someone being justified in seeking to acquire an office which it would not have been lawful for him to use.

5. Lack of canonical mission

In its decree on the sacrament of order, the Council of Trent took issue with the first Protestants for having, in effect, claimed for themselves a sacred ministry to which they were not entitled. The conciliar teaching is summarised in the seventh canon of session 23:

Alluding to the parable of the Good Shepherd, the council Fathers had already stated in the body of the same decree that those who rashly take to themselves the ministries of bishop, priest, or of the other orders are not ministers of the Church but thieves and robbers who have not entered by the gate (cf. Jn. 10:1).

The Second Vatican Council repeated the requirement that bishops be sent, making use in this context of the phrase ‘canonical mission’ (missio canonica).

Vatican II did not invent the phrase ‘canonical mission’, which was already in technical use in jurisprudence; commentators on the 1917 code used it in connexion with the offices of teaching and liturgical preaching.Footnote ¹⁹ That code itself had used the phrases ‘canonical provision’ and ‘canonical institution’ to describe the process by which a bishop is established by the pope with rights over a particular diocese.Footnote ²⁰ Whichever phrase is preferred, the consequence is the same: no bishop may take possession of an office against the will of the pope, just as Trent had taught that bishops who had not been duly appointed by canonical authority may not be considered ministers of word and sacraments.

These texts might seem to make an open-and-shut case against the suggestion that it could ever be lawful to receive episcopal consecration against the will of the pope. On closer inspection, this is not so clear. The Council of Trent was dealing with men who wished to overturn the existing hierarchy of the Church and to arrogate to themselves, in place of that hierarchy, the right to act as Christ’s ministers. They were not considering the hypothetical case of men who recognised that hierarchy with its rights but who would also, without claiming to hold any office in the Church, seek to supplement the work of the hierarchy in extraordinary circumstances.

This may sound like special pleading, but an example will perhaps make it more plausible. A priest who has been returned to the lay state no longer has the right to hear confessions and does not possess the faculties that would allow him to give a valid absolution. Nevertheless, according to canon 986 of the present code, if this priest encounters a dying man who wishes to go to confession, he has the right, and even the duty, to hear the man’s confession and to absolve him. If a future pope were to revoke this canon and forbid laicised priests from hearing confessions under any circumstances, such a priest would still have (I should maintain) the right and duty by divine law to hear a dying man’s confession and to grant him absolution. As we have seen, the salvation of souls is, and necessarily must be, the supreme law in the Church, because Christ Jesus came into the world to save sinners (1 Tim. 1:15). The priest could, therefore, reasonably presume that he would receive authority to absolve in this case from Christ Himself.Footnote ²¹

It is true that such a priest would not have a canonical mission: if asked, when about to enter the dying man’s house, ‘who has sent you?’, he would not be able to name the pope or the diocesan bishop. Nevertheless, he would not be a thief or a robber. By hearing the man’s confession and granting him absolution, he would be using a sacramental power that he had from Christ in order to respond to an emergency, thus supplementing and not supplanting the hierarchy’s mission. He would be exercising the virtue of epikeia. Footnote ²² It, therefore, does not seem to be excluded a priori that a bishop in equally drastic circumstances might virtuously exercise his proper sacramental power without a canonical mission.Footnote ²³

6. State of necessity

The principle that ‘necessity’ constitutes a defence for at least some class of actions that would otherwise be unlawful is a familiar one.Footnote ²⁴ It was summarised in the following terms by James Fitzjames Stephen’s influential Digest of Criminal Law:

A ‘state of necessity’ may, therefore, be defined as a situation where such cases arise frequently. When a society is in such a condition, habitual compliance with the letter of the law will be not sufficient to ensure the ends for which that society exists and, indeed, would be seriously inimical to them.

It does not seem possible to exclude in advance that such a state might come to exist in any society composed of fallen men, including the human society of divine institution that is the Catholic Church. If the rulers of any society are habitually governing contrary to its proper ends, but may not be deposed, either because the attempt to do so is foreseen to be productive of greater evils, or for some other reason, then such a state is even to be expected.

The doctrine of necessity cannot be used to justify evil actions, that is, ones contrary to natural law or to divine positive law.Footnote ²⁶ The laws which may be breached in case of necessity are only human laws, including, therefore, merely ecclesiastical ones.Footnote ²⁷ Canon law itself recognises this principle, when it establishes that Catholics who have violated some law or precept are subject to no penalty if they acted from necessity, provided that their action was not intrinsically evil nor tending to the harm of souls.Footnote ²⁸

The question at hand, therefore, is whether to receive episcopal consecration contrary to the will of the pope is an action that is contrary to natural law or to divine positive law. It cannot be contrary to natural law since natural law governs human beings as directed to their natural end and not as elevated by the grace of Christ. It would be contrary to divine positive law if it constituted a schism or inevitably tended to produce a schism, or again, if it was an act of sinful disobedience. I have already argued that it does not appear to be necessarily schismatic or productive of schism. In normal circumstances, it would be an act of sinful disobedience, since it pertains to a realm where the pope is certainly competent, in virtue of his universal jurisdiction within the Church. But if a pope were habitually and manifestly governing contrary to the good of the Church and were to forbid the episcopal consecrations in question as a part of this misgovernment, he would be acting contrary to his own superior, that is, to Christ, and so would not have to be obeyed.Footnote ²⁹ In such a case, the principle of necessity might lawfully be applied.

At this point, it is likely to be objected that nobody would have the right to make or to enforce such a decision, given the well-known principle that ‘the First See is judged by no one’ (canon 1404). But here we must distinguish between the right to make a judgement in virtue of some public power that one possesses within a given society, a judgement that will bind others in virtue of that power, and the right to make a judgement as a private individual and for the sake of guiding one’s own actions. The laicised priest who defied a hypothetical change in canon law to hear the confession of a dying man would not be able to establish in an ecclesiastical court that he had acted correctly, but he would surely have done so in the sight of God. Likewise, it does not seem possible to exclude a priori that a bishop constrained by necessity would have the right to consecrate another bishop contrary to the command of the pope, even though he would be necessarily unable to vindicate his decision in any ecclesiastical court.Footnote ³⁰

Someone might argue, however, that to apply the principle of necessity to the Catholic Church is to lack trust in divine providence. The Church, after all, unlike all merely human societies, has a divine guarantee of continuance; it is only to her, not to the Venetian Republic or to the United Kingdom, that Christ has said I am with you all days, even to the end of the world. Therefore, one might argue, we can be certain that whatever evils come upon the Church, Christ will maintain her intact, and, hence, that there can never be cause to invoke a state of necessity and to act outside canon law and contrary to a papal command.

The argument is fallacious. All that we can conclude from the divine promise is that whether or not a given person acts on the principle of necessity, Christ will preserve the Church and bring her to her proper goal. It does not help us to decide whether or not a given man may invoke the principle of necessity in a particular case. After all, it may be that Christ wishes to liberate the Church from certain evils precisely through this man’s so acting, or at least in part by his action; it may be that if the man in question does not so act, Christ will move another person to do so in his place. A missionary might as well argue that he need not preach the gospel to pagans since God has promised to offer grace to everyone; for it may be precisely through this missionary’s words that God wishes the offer of grace to reach a certain pagan.

7. A thought experiment

Let us imagine that a man was elected to the see of St Peter at an unusually young age. Pope Benedict IX is thought to have been about twenty years old when he was elected in 1032. Let us further imagine that the new pope announced upon his election that he was deeply inspired by the example of the hidden Christians in Japan who remained without priestly ministry between the 17th and 19th centuries, and that in consequence he would give no approval for any episcopal ordinations during his reign. It would thus be quite possible, even likely, that the sacrament of holy orders would die out in the Church during his reign.

In such exceptional circumstances, what should the bishops of the world do? Canon law provides no answer. Canon 335 speaks of circumstances in which the Roman see is either vacant or fully impeded, but neither of these descriptions would seem to apply to this case. The see would not be vacant, since the pope would neither have died nor have fallen into manifest, public heresy.Footnote ³¹ Nor would the see be fully impeded, since he would still be free to govern.Footnote ³² Our hypothetical pope would no doubt be deeply misguided, but that is not the same as being heretical, imprisoned, exiled, or mad.Footnote ³³

The bishops might respond to this crisis by prayer, penance, and persuasion. If, however, these failed to alter the papal resolve, and if with the passage of time and the deaths of members of the episcopal college, entire countries began to find themselves without bishops, most Catholics would probably think that such a response was insufficient. All the faithful, after all, can engage in those activities, and it would be strange if the specific powers of the bishops gave them no specific responsibilities. It is at least highly plausible that bishops in such circumstances would have the right and duty to proceed to episcopal consecrations against the express will of the pope.

Someone may object that so far-fetched a hypothesis is futile. But this is to mistake the processes proper to dialectics. Analytic philosophers make use of thought experiments for the same reason that analytic chemists make use of physical experiments: to create conditions apt for discerning the specific natures and essential properties of things. Just as it would be unreasonable to object that the chemicals of which chemists avail themselves in their experiments are unlikely to exist in such purity outside laboratory conditions, so it is unreasonable to claim that because a given philosophical or theological hypothesis is unlikely ever to be realised, it has no heuristic power. To employ such a hypothesis, and to draw conclusions from it, it suffices that it should not be logically impossible. In the present case, the conclusion appears to be that, in conformity with the preceding discussion, it is not always contrary to divine law that bishops should be consecrated against the will of the pope. But it is no part of the present article to propose how this delicate and even dangerous conclusion should be applied outside the theological laboratory.