The abuse crisis and the 'tribunalization' of the Church

By Massimo Faggioli
LaCroix International
August 27, 2019

There is a gray area between 'the bad ones' and 'the good ones' that the entire Church must address, a work it cannot relegate to others

If Vatican officials thought that they could regain control of the narrative concerning the Catholic Church's clergy sex abuse crisis by defrocking Theodore McCarrick just days before the recent abuse summit in Rome, they failed to take into account the cases of Cardinals George Pell and Philippe Barbarin.

The last two weeks have indeed provided us with a series of events that mark yet another twist in the ongoing story of the crisis. The Australian and French justice systems have created new precedents.

Two cardinals under the age of 80 (still eligible to take part in a conclave that elects the pope) have been declared guilty by the secular courts in Lyon and Melbourne. Pell was convicted of sexual abuse, Barbarin for failing to report the crime.

The two cases are very different. Barbarin has announced that he will go to Rome in the coming days to hand in his resignation to the pope. It's still not clear yet if he intends only to step down as Archbishop of Lyon or also offer to relinquish his red hat.

Nonetheless, the cases of both Pell and Barbarin — and those of other high-profile clerics that are still to come — demonstrate the predicament the Catholic Church faces in a world and a society that no longer tolerates ecclesial authorities to deal with these crimes as internal affairs.

This has multiple consequences.

Within the Church there is a series of internal re-negotiations triggered by the abuse crisis: between sin and crime; secrecy and publicity; justice and mercy; laity and clergy; Rome and the local churches.

But the biggest and epoch-making consequence is the huge re-negotiation of the relations between Church and State, in different ways in different countries of global Catholicism.

This spells the end of old privileges that once shielded the clergy, especially bishops and cardinals, from public scrutiny and from justice (both ecclesiastical and secular). What we are facing is revolutionary. And we do not yet know where it will lead.

But there is also another possible consequence. Let us call it the "tribunalization" of the Church. The wave of revelations, investigations, and prosecutions against sexual abusers in the Church and those who failed to report them, can blind us to the many layers and dimension of this crisis.

We all have a duty to seek the truth. But which of the many types of truth do we seek? There is a judicial truth, for sure. But there is also a moral truth, a historical truth and a theological truth related to the tragedy of the abuse crisis.

We can ask the police and the criminal justice system to help us get to the truth that can be proven in the courtroom, but as members of the Church, we cannot limit ourselves to the judicial truth alone.

Since the abuse crisis is being manipulated internally for ideological purposes (especially on the issue of homosexuality in the priesthood), we must reject a tribunalization of the Church because it tends to create new forms of partisanship.

It leads to assessing this or that outcome of investigations and prosecutions on the basis of ecclesiastical alliances, where every "theological party" in the Church defends his own. We have seen this happen already in the way people have interpreted Cardinal Pell's conviction.

In a post-truth world, where truth has different meanings to different people, it is dangerous for us in the Church to limit ourselves to the judicial truth. It will end up causing a radical de-legitimization of one of the fundamental institutions of our civil societies, the justice system.

And all this happens in a moment when it has become clear that there is no imaginable solution to the Catholic abuse crisis that excludes the action of the secular or civil justice system.

This also shows the evident contradiction between the expectations of anti-liberal Catholics from the secular state. On the one hand, they seek to deny all legitimacy to the liberal secular state.

But, on the other hand, they are among the most vocal proponents of a "law and order" Church – where law and order can be guaranteed only by the secular state.

There is no question that the secular state is absolutely necessary for addressing abuse in the Church. But in the long term the most disturbing danger is the acceptance of a "justicialist" idea of truth inside the Church itself.

The sheer fact is that the global Catholic Church, included the Vatican, is now symbolically sub judice – waiting for the verdict. The Church cannot and should not avoid the intervention of the secular state in this matter.

But it cannot intellectually and spiritually enslave itself to the truth established by the tribunals. It would be terrible if the Church were to limit the issue of the sexual abuse among the clergy to a massive police operation.

This epoch-making crisis must be viewed within the context of Church history. But it must also be seen the context of the history of the justice systems and of the parallel changes that took place in the Church and in the State in the last five hundred or so years.

Helpful in this regard is the work of Paolo Prodi (1932-2016), one of Italy's most important Church historians of the last century.

In his book, A History of Justice (2000), he highlighted a fundamental dynamic of the modernization of Western and Christian society beginning with the Reformation: the parallels between juridicisation of morality in the Catholic Church (moral rules are enforced and policed like laws), and the moralization and theologisation of the law (the law of the State claims a legitimacy that is sacred).

Between the 16th century and today there has been an absorption of different and coexisting legal systems and traditions into the law of the State.

This has produced a mono-dimensional legal system, where there is only the law of the State (and other jurisdictions once coexisting with the State have disappeared), to the effect of a substantial impoverishment of pluralism and also of respect of religious liberties protected by other fora.

Parallel to the this has been the tribunalization of the Church. The increasing role of the Holy Office (now Congregation for the Doctrine of the Faith), the emphasis on the need to police religious beliefs and the creation of special tribunals were clear symptoms of this.

We are no longer in the 16th century, but we are still living with the consequences of this development.

On the one hand, we live in a society that is hyper-tribunalized: justice is identified as secular justice, truth is identified with the sentence of the judge, and even history is called to judge more than to understand.

One could have a field day analyzing how misguided it is for an historian to use the expression"on the right (or wrong) side of history" in order to make a moral judgment on controversial social issues.

On the other hand, the Church is still tribunalized and it is trying to free itself from a courtroom-like way of finding the path for the future Church. You can have the Inquisition or you can have a synodal Church, but you cannot have both.

The Church's abuse crisis is cataclysmic. There are things that need to be done and other things that must be avoided. One of those to be avoided is to accept the equation between the hard truths of the crisis with the "guilty-vs.-innocent" truth established by tribunals.

The tribunalization of the Church is tempting because it brings down the guilt solely on abusers and those who it covered up — few or many, but still delimited individuals.

This clear distinction between a few bad apples in comparison to the otherwise healthy batch can too easily become self-absolutory for the rest of the Church. If we assume that we can clearly identify the individuals responsible for the crimes, we feel relieved of the fault that weighs on the Church.

There is a gray area between "the bad ones" and "the good ones" that the entire Church must address, a work it cannot relegate to others.

"The gray area, it's not just the others. The gray area is also us," said Father Hans Zollner SJ, one of the chief organizers of the Vatican abuse summit, in an article recently published in the German cultural weekly Die Zeit.

The hard truth is that those who are morally and theologically responsible for Catholic sexual abuse crisis are a far greater in number than those who can and should be convicted by a tribunal for their crimes.


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