Bainbridge and Cardinal Mahoney

A recent post on the blog of Professor Bainbridge of UCLA law has called for Cardinal Mahoney to resign his see of Los Angeles. He calls for a resignation because he mistakenly thought that there are no express provisions for a diocesan bishop to lose his office outside of resignation in canon law. Professor Edward Peters corrected him, aptly demonstrating that there are indeed express provisions in canon law indicating the Pope's ability to remove a bishop through privation, which is a penalty removing someone from office due to the commission of an ecclesiastical crime.

Here are a few more words on the scenario.

Canon 387 is not a penal canon

It should be noted that Professor Bainbridge's post does not indicate, at least at the first glance, the commission of an ecclesiastical crime. Bainbridge cites an ecclesiastical law that lists some of the duties that the diocesan bishop is to follow while in office, very important duties I might add. Codex Iuris Canonici [CIC] c. 387. However, this canon establishes no penalty if the diocesan bishop fails in these duties. Neither do any subsequent ones.

Now, I do know there are appropriate penal canons which do deal with Cardinal Mahoney's scenario—Professor Peters expressly omitted them in his discussion for brevity's sake and I will too—so I'm pretty sure privation should indeed apply here. I'd like to continue the discussion for a second though. Let's assume that violation of this canon was all that one had to go on and that privation actually does not work. What then?

Simple removal

There are other ways to lose ecclesiastical office besides resignation and privation: age limit, time limit, and most importantly removal. Id. c. 184 § 1. A later canon specifies exactly how someone is removed from office:

One is removed from office either by a decree of the competent authority lawfully issued, observing of course the rights possibly acquired from a contract, or by virtue of the law in accordance with Can. 194.

CIC c. 192 (Ab officio quis amovetur sive decreto ab auctoritate competenti legitime edito, servatis quidem iuribus forte ex contractu quaesitis, sive ipso iure ad normam can. 194.), translated in The Canon Law Letter & Spirit: A Practical Guide to the Code of Canon Law 107 (1995) [hereinafter Letter & Spirit]. Unfortunately competent authority is not defined in this canon or anywhere else in the section on removal. In the case of a diocesan bishop, there are many higher authorities. The Pope is an obvious one, as is the College of Bishops. The episcopal conference, for those cases mentioned in law, is another higher authority, as is the Congregation for Bishops or the Congregation for the Doctrine of the Faith. The metropolitan is a less obvious one, since his authority over a suffragan is really limited to oversight and judicial appeals. Most Catholics should be able to realize that at least one of the persons I just listed is a competent authority for removal of bishops. Are there others? Are all the persons on the preceding list competent authorities? How are we to know?

To figure this question out, we need to turn to the preliminary canons on interpreting ecclesiastical laws:

Ecclesiastical laws are to be understood according to the proper meaning of the words considered in their text and context. If the meaning remains doubtful or obscure, there must be recourse to parallel places, if there be any, to the purpose and circumstances of the law, and to the mind of the legislator.

Id. c. 17 (Leges ecclesiasticae intellegendae sunt secundum propriam verborum significationem in textu et contextu consideratam; quae si dubia et obscura manserit, ad locos parallelos, si qui sint, ad legis finem ac circumstantias et ad mentem legislatoris est recurrendum.), translated in Letter & Spirit 17. The context here would be similar phrases used within the same chapter or title of the code. New Commentary on the Code of Canon Law 73 (John P. Beal, James A. Coriden & Thomas J. Green eds., Paulist Press 2000). When we look at the canons on provision of ecclesiastical office which appear earlier in the same title as removal from office, the phrase competent authority is used again. It is this authority that freely confers ecclesiastical office, installs someone presented to office, or confirms someone elected to office. CIC c. 147. It turns out that this competent authority, unless the law establishes otherwise, is whoever can establish, change, or suppress the office. Id. c. 148. Using the principle of canon 17, we can infer that a competent authority for removal would be whoever can establish the office of diocesan bishop. The law tells us that the supreme authority of the church establishes particular churches. Id. c. 373. Of course, establishing a particular church automatically establishes its head officer, the diocesan bishop.

Thus, since the supreme ecclesiastical authority can establish the office of diocesan bishop, that same authority can remove diocesan bishops. That supreme authority is the Pope and the College of Bishops. Id. cc. 331, 336. Since the other guys listed lack the canonical authority to establish the office of diocesan bishop, they too lack the authority to remove him.

This result also jives with the situation of Bishop Galliot, the former Bishop of Evreux, who, from what I understand, did many things that, while not ecclesiastical crimes, were sufficient in the mind of the supreme ecclesiastical authority to warrant his removal.