It isn’t easy, at first glance, to associate Pope Francis with actual legislative activity. From the beginning of the pontificate, the Pope’s image is that of a Pope of gestures who wants to set a good example and pull the Church out of its institutional walls and bring it towards the outskirts. A missionary Church, outgoing as Pope Francis likes to say. A Church in a state of permanent Synod, without those who Pope Francis calls “clerics of state.”
Pope Francis himself contributed to building this image with great care and attention to his public image and public statements. To a specific question, the Pope never answers yes or no. Instead, he asks for discernment and a pastoral answer, without defining how to proceed – the last example, on the question of access to communion for pro-abortion politicians. Therefore, Pope Francis always emphasizes an alleged continuity in his decisions without ever actually taking direct responsibility.
A deeper analysis beyond what is seen shows a very different reality. Pope Francis makes decisions personally, almost always bypassing the bodies that should help him legislate, in many cases with documents formally handwritten after audiences (the famous rescripts), and in other cases by adjusting the first drafts of the laws with motu proprio.
In practice, Pope Francis uses all his powers as an absolute monarch to “force” in some way the reforms he intends to make, without waiting for the consultations or the necessary harmonizations with the code of canon law.
To understand the significance of this choice, one must also understand how the Holy See has always worked. The Pope is the absolute monarch who can make and undo the laws as he pleases. An old Roman saying explains it ironically: “The Pope makes the bull, and the Pope unmakes the bull.” (“Il Papa bolla e il Papa sbolla”)
However, despite being an absolute monarch, the Pope has always conceived of himself first of all as the one who must bring unity to the Church. His laws are not his laws, but they are the application of God’s laws. Therefore, the Curia has always been considered the body of the Pope, the arm that helped him make decisions, not something detached.
For this reason, the popes have never legislated alone. Despite having the power to do so, and although there have been cases of absolute monarchs in history, the popes have always tried to make use of their energy in a collegial way. In the Middle Ages, three consistories a week were convened for decisions that did not concern only the laws but also the administration of the state. The Holy Office was established not only to control heresies but rather to verify a harmonious development of the doctrine of the faith. And every legislative text had to be carefully weighed against maintaining continuity with canon law, the first normative source.
Not surprisingly, canon law arises from the work of Gratian, who harmonizes and classifies all the sources of law to make it a single and harmonious corpus. In short, there is a tendency towards unity, which ignores the popes and their addresses, which somehow overcomes the system of absolute monarchy. This tendency towards unity is also present in the Pontifical Council for Legislative Texts , established by Paul VI with the task, in fact, of verifying and harmonizing every Church law with the corpus of canon law.
With Pope Francis, this tradition was somewhat broken because Pope Francis made extreme use of his legislative prerogatives. This is shown in the book “Finis Terrae for Canon Law?,” brought to the headlines by a review by long-time Vatican expert Sandro Magister.
In the text, it is noted that Pope Francis has made many decisions (almost all of them) simply by overriding the Pontifical Council for Legislative Texts, moving forward in subsequent adjustments, and creating a problematic situation within the Holy See precisely because there is uncertainty in the law.
Many corrections were initially made at the instigation of the Vatican Secretariat of State, which tried to act as a balancer. Still, now everything seems to come directly from the Pope’s hands, without external consultations and harmonization with canon law.
The most recent case, and the most striking one, concerns the trial in the Vatican for the management of the funds of the Secretariat of State. The Pope intervened in the process with four rescripts, going as far as suspending some procedural guarantees. In the end, he had to go back on some decisions, the investigations had to start over, but the fact remains that the rule of law has been put in brackets.
Are the choices of Pope Francis transparent and consistent not only with canon law but with the social doctrine of the Church? In some cases, the answer appears to be no. But it “seems” because there is no possibility of further analysis, the legislative activity is so fast, and the consultative activity is so small.
Pope Francis uses all the means at his disposal to ferry the Vatican to where he thinks it should be. And the Holy See, from specific points of view, tries to maintain transparency of communication, guaranteeing journalists’ access to the processes and various activities of the Pope. But many other decisions, even important ones, are communicated directly, without explanations, without press conferences for questions to be asked – from the meetings of the Council of Cardinals on the reform of the Curia to the budgets of the IOR and more recently the annual reports of the Financial Intelligence Authority – and establishing a narrative that does not allow depth.
Apart from the protests of the media (the latest against the cancellation of the live broadcast of the visit of President Biden), there have been no Catholic intellectuals who have taken a strong position. Yet, any account of the situation without saying that the situation is problematic risks legitimizing it. No story can ignore a fact: the Pope has taken all the prerogatives of a Pope-king, but in doing so, he put the Holy See at risk. Even though he made decisions in good faith, he created a problematic situation and, as far as the rule of law is concerned, unacceptable in some cases. And this is the necessary starting point for any analysis.