By Oswald Sobrino, J.D.; M.A. (Econ.); M.A. (Theo.); M.L. (Master of Latin), doctoral student, University of Florida.

Monday, April 8, 2013

Summary of Foot Washing & Pope Blog Posts

Update: I have added a new "Canon Law Issues" Page to the blog, which you can access at this link or at the sidebar under "Pages."

Below is a list of blog posts relevant to Pope Francis' washing of the feet of two females on Holy Thursday, 2013. The posts address the canonical issues in great detail based on my study of the 1983 Code of Canon Law, based on the commentary published by the Canon Law Society of America along with the text of this Code, and based on consultation with two canonists (one American and one European). Some of the posts also address broader points of significance.

What is the significance of a matter that to outsiders may seem trivial? I think the significance is the same as that present in the Gospel stories in which Jesus "changes" and "disregards" the law to achieve his mission. In place of "changes" and "disregards," read "fulfills." I especially recall the story in which Jesus allows his disciples to pick grain on the Sabbath because of their hunger. Here is the story from Mark 2 (1899 Douay-Rheims translation):

23 And it came to pass again, as the Lord walked through the corn fields on the sabbath, that his disciples began to go forward, and to pluck the ears of corn.
24 And the Pharisees said to him: Behold, why do they on the sabbath day that which is not lawful?
25 And he said to them: Have you never read what David did when he had need, and was hungry himself, and they that were with him?
26 How he went into the house of God, under Abiathar the high priest, and did eat the loaves of proposition, which was not lawful to eat but for the priests, and gave to them who were with him?
27 And he said to them: The sabbath was made for man, and not man for the sabbath.
28 Therefore the Son of man is Lord of the sabbath also.

It is clear that, according to the Pharisees, Jesus "broke" the law (back to this issue shortly). Jesus does not deny what he has done, but rather points to the precedent of David who also "broke" a law for, let us say, "pastoral reasons"--namely, that his men, like the disciples of Jesus, were hungry. It is also sensible to say that Jesus was not concerned only with the issue of going hungry on the Sabbath but was also making a wider point summed up by the famous words: "The sabbath was made for man, and not man for the sabbath."

I strongly believe that this same principle is what Pope Francis is restating as the vicar of Christ on earth, especially to those who overemphasize rubrics (and who believe that overemphasizing rubrics is an impossibility). This Gospel story also tells us about the methodology for interpreting the New Law in the New Israel: look also to precedent and circumstances and pastoral reasons, not only to the isolated letter of the rubric. In Christianity, church law distinctively and appropriately contains an internal tension, the purposeful tension imposed by a determined founder who subjected all rules to the test of saving and healing. This tension fulfills the critique of ritual and sacrifice that began with the Old Testament prophets and is a distinctively Christian treasure.

But, back to an earlier point in the story, did Jesus really "break" the law? Of course not, because Jesus is the law--He is the Torah, the Logos. Did Pope Francis really "break" the law? Of course not, because the Pope as the duly chosen vicar of Christ is the supreme legislator holding and wielding the keys granted by Christ. If that scenario--like the Gospel scenario--makes some of us nervous because of our compulsive and understandable need for stability as insecure and vulnerable human beings, then so be it. Faith, hope, and charity can handle any sense of instability or disorientation that we experience.

This latter observation is not an illegitimate ad hominem argument, but simply highlights that legalism as exhibited by the Pharisees arises from extra-logical emotional and spiritual sources (that point is the whole thrust of Jesus' critique in the Gospels of many of the Pharisees). The legal logic and analysis of Jesus was impeccable in pointing out the precedent of David and in pointing out that the ritual institution of the Sabbath must always be applied with the institutional purpose of the divine legislator in mind. That approach of Jesus is impeccably logical and legal--but it is not legalistic.

The logic of Jesus against legalism does not need to rely on an ad hominem argument--and neither do the plausible arguments that the Pope acted in accord with what canon law and pastoral discretion in liturgical matters consider possible. A doctrinaire refusal to at least acknowledge (even if not agreeing with) that plausible legal alternative would be, in my view, rooted in something that goes beyond the logical. To point out that extra-logical bias is to alert readers that sometimes what is presented as purely logical and objective analysis is often fueled by other influences. Thus it has always been with human nature, both mine and yours; and there is no need to engage in denial about this human spiritual reality. Most of us are too old and experienced for such blinders. If, on the other hand, we bring our biases into the light and examine them, then we can argue better. Logically speaking, biases are relevant in identifying, questioning, examining, and evaluating our logical assumptions and premises. A true ad hominem argument would be to say that your liturgical or legal analysis is wrong because you have brown eyes. We are not dealing with such trivialities here.

In sum, this is what we have: Jesus "disregarded" a ritual or liturgical law as it was imperfectly understood and, by doing so, revealed the true, fuller law in the matter. So has Pope Francis. The Gospel is the interpretive key (we pedants like to say "hermeneutical" key) to the entire foot-washing episode. And, by the way, the Gospel is the New Law. The rubrics relate to the Gospels in the same way that a statute relates to the U.S. Constitution. The key to interpretation and application lies in the magna charta. In the liturgy, we don't stand up for the rubrics--we stand up for the Gospel, the ultimate rubric, the rubric of rubrics.

Update: At least two liturgists from England have taken public exception to the Pope's inclusion of females. As I understand them, their reasoning is that in the Holy Thursday liturgy the foot-washing is "intrinsically" tied to the ordained priesthood. When such critics say "intrinsically," I assume that they mean "exclusively." But they cannot prove that at all; and, upon further reflection, their view gives us an absurd conclusion (reductio ad absurdum). 

They are indeed correct that connection to the ordained ministry is certainly one of the meanings of the rite: ordained leaders as persons wielding authority are especially called to humble service, but so are all other Christians and certainly ordained leaders are called to serve both men and women (obviously those served are the persons whose feet are washed). 

Yet, to conclude from the above that therefore there is an exclusive connection to the ordained only--as those whose feet are washed--is to commit a logical non sequitur ("it does not [necessarily] follow"). It makes more sense to contend that the one washing the feet always be ordained (as a representative of governing authority); it really makes no sense to say that only the ordained, or only those who as males can be hypothetically ordained, can have their feet washed. It is as if one said that only those who hypothetically qualify for the highest positions of authority can have their feet washed. That view really seems absurd.

The Pope has, sensibly and reasonably, chosen to apply the broader and richer meaning to include serving (washing the feet of) those who cannot be ordained because they are females--and it is undisputed that he has the legitimate authority to do so. The ordained are called to serve (wash the feet) of all sorts of people, not just of those who can be ordained--maybe, especially of those who cannot be ordained and thus are furthest from the possibility of governing others in the Church.

Moreover, those who emphasize the wording of rubrics fail to note that the rubric (liturgical instruction) itself does not say "only" males. There is a very good Latin word (used when the Church wants to be absolutely clear) which means "only": tantum. That word was not used. So, even a literal and plain reading of the rubric does not foreclose the inclusion of women. 

Technically speaking, the rubric has left the matter open. An old rule of statutory construction (even in canon law) is that if a rule appears to impose a limit, then its wording should be strictly construed--that is, interpreted in a way that is least restrictive in its application. Applying strict construction in this case means that we take seriously the absence of the word "only" in the rubric. No one that I have read has yet to address this issue of wording in the rubric. My personal view is that the rubric on foot-washing should be changed to explicitly allow for pastoral discretion to admit females or children as persons whose feet may be washed. I think that pastoral flexibility is what, in any event, the Vatican has been permitting for years and what the Pope himself has embraced in both his actions, as archbishop and as Pope, and in the public statement issued by his spokesman Fr. Lombardi. In fact, the rubric for an optional foot-washing in the Holy Thursday liturgy explicitly states that the entire rite is, to begin with, available for pastoral reasons--so rubrical recognition of pastoral flexibility as to women and children is a very consistent and congruent step to take, especially since, in my view, the Pope has already canonically approved that pastoral flexibility by his conduct and by the public statement of his spokesman.