The Rule of Law and the Francis Pontificate

The rule of law is never subject to the slightest exception, even in times of crisis. The reason is that the rule of law is at the service of the human person and aims to protect his or her dignity, and this does not allow for exceptions. It is a principle. — Pope Francis¹

An ordinance, then, shall be proper, just, possible, in accord with nature, in accord with the custom of the country, suitable to the place and time, necessary, useful, clear enough so that it contain no hidden deception and not accommodated to some private individual, but composed for the common utility of the citizens. — Gratian²

The role of law in the life of the Catholic Church has a long and complicated history. Debates about St. Paul’s apparent dichotomy between law and spirit have raged in Christianity for two millennia. But the place and role of the rule of law, as pointed out by Pope Francis, is clear: it is at the service of human dignity and, therefore, an effective tool of the highest law, salus animarum.

But in the life of the Church in the 21st century, there has been a consistent decline of the rule of law in favor of an approach that can appear to be rule-by-caprice. This inconsistent approach to governance, sadly, is not exclusively the product of crisis. While much of what the casual observer can notice is the fruit of repeated attempts to respond to various crises in the Church—usually sexual ones—the more careful observer recognizes that capriciousness has also been written into law. It is difficult to express just how wide a divide exists between the words of Pope Francis cited above and the reality in the Church’s juridical and administrative praxis today. It is not lawlessness but, rather, the frequent instrumentalization of law into a tool at the service of power.

Anecdotally, arbitrary decisions by figures within the Roman Curia are not new. What is novel are the cases in which that fickleness, even at the highest level, has become public knowledge.

Perhaps the most well-known example is the case of Father Marko Rupnik. Much remains to be seen about how that case is ultimately resolved, as the former Jesuit priest has been accused by dozens of women of sexual violence and abuses of the sacraments. While there was an initial process for crimes against the sacrament of penance, and the censure of excommunication was imposed, the excommunication was lifted in a matter of weeks. Worse, at least in the eyes of the public, was the decision of the Jesuits to expel Father Rupnik from their community, thus allowing him to incardinate in a diocese and exercise unrestricted public ministry, despite the fact that the accusations of these dozens of women apparently remained unexamined.

While the case of Father Rupnik represents for many a total failure on the part of Church leadership to apply the law in the protection of the dignity of the consecrated women who have described suffering horrific, even sacrilegious acts, at the hands of the charismatic artist, the matter apparently remains under examination.³³ Hence, there is still hope for a just resolution. Nevertheless, even if justice were to be done, grave harm has already been done to the confidence of the people of God by the, at best, suspect adherence to the rule of law.

Unprovoked degradation

Another contemporary case that seems to demonstrate a degradation of the rule of the law is that of Sodalitium Christianae Vitae. We need not make any judgment on the abuses allegedly perpetrated by the founder or the decision of the Holy Father to suppress the organization; the examination of one document will prove the point.

On September 25, 2024, Pope Francis signed a penal precept regarding two journalist members of Sodalitium, Giuliana Caccia Arana and Sebastián Blanco Eguiluz.⁴ Again, with no judgment regarding the veracity of the claims made by either journalist or even the claims made in the motivations of the precept, the legal instrument demonstrates fundamental flaws, despite the fact it carries the signature of the Supreme Legislator himself.

Precepts, as instruments of the law, are designed to “directly and legitimately enjoin a specific person or persons to do or omit something, especially in order to urge the observance of law.”⁵ What makes a precept “penal” is the fact that it “threatens determinate penalties.”⁶ The Sept. 25 precept issued by Pope Francis does just that; it threatens penalties if certain acts are not accomplished by the two reporters within 48 hours.

While the existence of the document in question certainly received attention, at least in Latin America, the illegality of the penalties threatened by the pope went uncommented. Of the three penalties, one is formulated in a way that appears to violate the law; another is only possible if an action had previously been taken by the Episcopal Conference of Peru; the final one is of such an absurd scope that it brings the reader to the conclusion that the motivating factor behind the precept is extremely personal.

The first penalty threatened is that of excommunication, ferrendae sententiae. Strictly speaking, excommunication is not a penalty, but a censure. It is a medicinal measure designed to bring a person to recognize his or her fault, to repent, and then to be reconciled with the Church. To include it in a penal precept is rare, but not necessarily problematic. The problem comes in the apparent contradiction between the denotation ferrendae sententiae—that is, imposed not declared—and the impression created by what happened after the precept was received. The penalties warned in a penal precept can be imposed only after a legitimate canonical process, be it a trial or by an extrajudicial decree. That is not what happened here.

The document gives the impression that if the two don’t complete a list of actions within 48 hours, the penalty will be automatically imposed. That is not what happened, either. Instead, someone organized a meeting for the two with Pope Francis some two months after the deadline and then reported that the pope had “signed in his own handwriting a document in which this excommunication was annulled, revoked.”⁷

The second penalty, a fine of 100,000 Peruvian soles (roughly $27,000) was to be imposed on the two, in accord with the norm of canon 1336 §2, 2°. Allowing for fines to be imposed as penalties is a novelty introduced in Pope Francis’ reform of the penal laws of the Church in 2021. The text of that norm states explicitly that fines can only be imposed as penalties after the local episcopal conference has determined what just and appropriate fines are. There is no evidence that the Peruvian bishops’ conference ever did that, meaning the fine imposed by the Legislator ignores the terms of law, which the pope himself created.

As troubling to the rule of law as the first two penalties are, the third one reveals just how personal the matter was. The two reporters were ordered to withdraw their complaint before the Peruvian courts against the priest Pope Francis sent to investigate Sodalitium for violating the laws of Peru. Allegedly, he revealed their names after they made allegations against other members of the group during the work of the “special mission.” Were the journalists not to retract that complaint, they were to be permanently banned from presenting themselves as Catholics.⁸ Such a prohibition lies well beyond the dictates of contemporary canon law, to say the least. Indeed, it is not clear what it even means, since a person’s “Catholicism” is linked to the validity of their baptism and remains intact and legally recognized even in the case of excommunication. In legal circles, it has been roundly characterized as “vindictive,” properly understood, which is to say intended to exact retribution.

Legislative confusion

One of the basic principles of the rule of law is clarity. The law, to be an effective tool, must be clear. An obvious example demonstrating the lack of clarity in recent legislation is found in the Church’s recent efforts to create legislation that affords special protections to people considered to be “vulnerable.”

Rightly and necessarily, over the past decade, the Church has tried to extend protection to a new category of persons considered vulnerable; that protection has been exclusively limited to acts of sexual misconduct. But despite good intentions towards necessary reforms, these efforts, as currently formulated, represent a deviation from the rule of law.

The first time the phrase “vulnerable adult” appeared in ecclesial legislation was in the document entitled Come una madre amorevole. The stated purpose of that legislation was to express the Church’s concern for protecting “the entire Christian community as a whole”, in particular “children and vulnerable adults.” But the legislation doesn’t give a definition of who such “vulnerable adults” might be. Rather, it points to “minors and vulnerable adults as stated in the motu proprio Sacramentorum sanctitatis tutela promulgated by St John Paul II and amended by my beloved Predecessor, Benedict XVI.”

The only problem is that the text doesn’t mention “vulnerable adults.” Rather than providing clarity, this legislation begins a twisted path that, to this day, leads to unknown and unexplained places.

The next time the expression appears is in the aftermath of the McCarrick scandal, in Pope Francis’ landmark motu proprio, Vos estis lux mundi. That document changes the nomenclature, referring to “vulnerable persons” and provides a capacious definition, but one impractical for adjudication. And, in light of its rising prominence, one would have expected that the legislator would incorporate the new category into the global revision of penal law, which appeared two years later. Rather, in the new Book VI—the collection of penal norms for the Latin Church—the term doesn’t appear. It is replaced by a generic expression “those to whom the law provides similar protection” to that which it provides to minors.

The absence of such heralded language is peculiar, but is nothing compared to the explanation provided as to why it wasn’t used: “The Code has avoided using the expression ‘vulnerable subject’ here, as it represents a notion that is not yet well-defined or doctrinally shared in the broad ambit in which canon law is in force.”⁹

In short: the curial office in charge of interpreting the pope’s legislation actively avoided a term introduced into legislation by the pope because it is not well-defined. That would, alone, be a sign of a lack of clarity in the law.

To make matters more complicated, Vos estis lux mundi was only approved for a three-year-long period.

It apparently sunset in May 2022, presumptively leaving a lacuna in the law, as the phrase incorporated into the new Book VI now referred to a law that had, in theory, expired.

Only in March 2023 did the pontiff re-introduce the term “vulnerable person” in the revised version of Vos estis lux mundi, seemingly ignoring the caveat offered by the office designated with the task of interpreting the pope’s laws. A few weeks later, changes were introduced into the penal section of the Code of Canons of Eastern Churches. There, an entirely different wording is introduced, equating vulnerability to a habitual lack of the use of reason.⁹¹⁰ So much for clarity, let alone consistency.

Other examples can be found in Pope Francis’ landmark reform of the process around declarations of nullity of marriage, Mitis iudex. As has been noted, this was the most incisive reform to marriage law in over 300 years.¹¹

Setting aside the laudable changes that were included, which did not directly impact the Church’s understanding of marriage, some changes did and do pose serious questions. The first is the elimination of the evidentiary standard unus testis nullus testis—one witness is no witness.

While modern canon law already included a more nuanced interpretation of this standard of evidence,¹² Pope Francis eliminated it entirely.¹³ While not directly attacking the legal principle that marriage enjoys the favor of law,¹⁴ Pope Francis’ reforms have arguably eliminated it, seemingly allowing the statement of a single spouse to provide sufficient proof to declare a marriage null, without necessarily seeking any corroborating evidence.

Another colorful example pointed to by scholars is the inclusion of “etc.” in the procedural explanation attached to Mitis Iudex. In describing the new briefer process (processus brevior) in the legislation, article 14 lists a series of circumstances that “allow a case for nullity of marriage to be handled by means of the briefer process.” The examples listed, however, include a mix of already-defined causes of nullity (simulation of consent; defect of the use of reason) together with difficult circumstances (unexpected pregnancy), thereby creating the impression that these difficult circumstances might actually be, in and of themselves, new causes of nullity, even as they are post-facto circumstances. More curious is the not-quite-so-precise “etc.” that caps off the list.

While not inferring malice or ill intentions to the document, it is clear to demonstrate a lack of precision with the potential to create more confusion than clarity in the law. It runs the risk of being (mis)understood as legislation aimed to be more a panacea than a tool in service to the dignity of the human person.

An even more confusing example is the recent decision not to hold elections for the office of dean of the College of Cardinals, despite having jettisoned centuries of tradition (immemorial custom,¹⁵ to practitioners of canon law) and limiting the holder of that office to a five-year term, on Nov. 29, 2019; the current dean’s term expired, then, in late 2024, only to be later renewed ad bene placitum nostrum by the pope.

For many, that reform went unnoticed because, at the end of the day, the dean of the College of Cardinals is mostly immaterial to day-to-day life in the Church—until it matters.

While the changes introduced in 2019 allow for this quinquennium to be renewed, it only refers to the office of dean—not to the office of sub-dean. So, when the announcement of the renewal of Cardinal Giovanni Battista Re—who cannot fulfill the requirements of the office of dean, given his age—came on Feb. 6, 2025, it was nothing (too) odd.

But the Feb. 6 announcement stated that this renewal/extension had actually taken place on Jan. 7. Odd, then, the delay in announcing it. Odder still was the inclusion of the announcement of the extension of the office of sub-dean to Cardinal Leonardo Sandri, a decision that took place a week later (on January 14) but was announced on the same day. Unlike the decision to renew Cardinal Re as dean, the decision was legally unnecessary, even unforeseen by the law. No temporal limitation was placed on the office of sub-dean, as had been for the office of dean.

Again, while that kind of issue often goes unnoticed, it raises a number of questions, all of which point to, at best, an apparent disregard for the dictates and details of the Church’s law. Either way, this is emblematic of legal confusion that stands at odds with the principles of the rule of law.

Instability in the face of crisis

Even more obvious than the lack of clarity in Church legislation is the lack of stability. Stability in the law means that one can reasonably expect that the law is applied equally to all people. While there are many examples that demonstrate a general willingness to ignore this principle of law, just a few will be given. Sadly, all of them represent the kind of manipulation of the law in moments of crisis, such as Pope Francis laments in the opening quote.

Despite the rise in attention given to financial scandals (i.e., Cardinal Becciu), it is undeniable that the Church in the 21st century has been marred primarily by sexual scandals, particularly those involving the abuse of minors by clerics.

Despite the legitimate efforts to legislate against this crime, providing extraordinary—but legal—liberties in the manner of proceeding in these cases,¹⁶ in order to be able to respond adequately to the crisis, there are clamorous examples in which the rule of law has been cast aside, in favor of solutions apparently designed to appease the masses, abate criticism, or even directly show favor to friends.

One of the earliest publicly verifiable examples of this is that of former-Father Mauro Inzoli, a priest of the Diocese of Cremona.

Don Mauro, or “Don Mercedes” as the media liked to refer to him, was condemned by the Italian judicial system for various acts of sexual abuse of minors. Given Inzoli’s high-profile status in northern Italy, the case was splashed over the front page for months. The Church’s own process also found Inzoli guilty and imposed a perpetual penalty on him, forbidding him from ever exercising public priestly ministry, similar to what the Essential Norms in the U.S. call the penalty of “prayer and penance.”¹⁷

This process, as far as can be known from public sources, ran its course, arrived at a judgment, imposed a penalty, and a challenge was made and rejected.¹⁸ The rule of law was followed. Until, that is, Don Mercedes showed his face in public.¹⁹ This launched something new—it’s hard to call it another process, as there is no public evidence of such—that eventually led to Pope Francis dismissing him from the clerical state.²⁰

The great irony, of course, is that, according to media reports, the original penalty imposed on him was dismissal from the clerical state, which was reduced to a life of prayer and penance by Pope Francis in 2014,²¹ only then to come back in 2017 and dismiss “Don Mercedes” from the clerical state (laicization).²² The only thing known to have changed was Inzoli’s appearance in public after the imposition of the first penalty.

In that case, there are myriads of problems for the application of the rule of law, most notably a question of the adherence to the basic legal principle ne bis in idem.

An outlier case, which puts into relief the degradation of the rule of law in crisis situations, is, surprisingly, that of former Cardinal Theodore McCarrick. In the highest profile case of sexual abuse by a cleric to date, the law of the Church was assiduously followed. The world was informed of the accusations²³ and the outcome of the process.²⁴

The statement released by the Vatican on Feb. 16, 2019, stands as a singular example of transparency that reveals the way the law was applied to McCarrick’s case, despite the pressure generated by the media attention it received.

Due process was observed; McCarrick’s right to self-defense was preserved; his right to appeal was exercised; the decision was made in accord with the substantive and procedural norms of law, not by the direct intervention of the pope, whose role was limited to “recognizing the definitive nature of the decision.”

The decision was followed closely by the issuing of new norms, Vos estis lux mundi, that were purportedly designed to prevent any future such cases.

Yet, all the while the Church was observing the rule of law regarding the most high-profile cleric accused of sexual abuse to date, elsewhere, simultaneously, the rule of law was apparently thrown out the window. Gustavo Óscar Zanchetta was one of the first priests elevated to the episcopacy by Pope Francis, appointed just four months into the pontiff’s reign. After four years, he resigned as Bishop of Orán, citing a “health problem;” in the meantime, he had left the country and moved to the Vatican, living in the Domus Sancta Martha, where Pope Francis resides. Months later however, the Vatican press office director, Alessandro Gisotti, would state that Zanchetta resigned not because of health reasons, as the Bishop himself had stated, but rather because of “his difficulty in handling relations with the diocesan clergy, some of which were very tense.”²⁵

A few months after disappearing from Óran, on Dec. 19, 2017, he was named to an office apparently created just for him, assessor of the Administration of the Patrimony of the Apostolic See (APSA). So, he was given a supervisory role over one of the major financial offices of the Vatican, despite repeated rumors of fiscal malfeasance during his time in Orán. The pope even said that Zanchetta was “economically disordered,” but that Zanchetta’s financial “vision was good.”²⁶

What is even more noteworthy is that the pope admits to not having applied the law to Bishop Zanchetta’s case: “There had been an accusation and, before asking him to resign, I had him come here immediately with the person who accused him. In the end, he defended himself by saying that his cell phone had been hacked. So (sic) in the face of evidence and a good defense, the doubt remains, but in dubio pro reo [in doubt, for the accused].”²⁷

But the law requires, quite clearly, that any and every time an ordinary has information regarding a possible crime, he is to order an investigation (can. 1717 CIC). The pope didn’t do that; instead, he decided to deal with it in an ad hoc, ad personam manner. The canonical investigation only began after the installation of the new Bishop of Óran.

In the meantime, Pope Francis ordered Zanchetta to get a psychological evaluation in Madrid and then returned him to his job in the Vatican. That only came to an end when the civil authorities in Argentina began a prosecution against Zanchetta, in 2021, ultimately condemning him, a decision recently confirmed by the court of appeal.²⁸

McCarrick is prosecuted according to the law: accusations are received, investigated; a prosecution is ordered, a defense is offered, a judgment is given and the right to appeal protected. Meanwhile, now two years after his condemnation in civil court in Argentina for acts of sexual abuse, no ecclesiastical judgment has been rendered for Zanchetta. The pope’s own words in his interview with the Mexican television station Televisa demonstrate his application of the Italian saying: due pesi e due misure, that is, applying a double standard.

In short, the application of the law seems to depend not on who did what, but on who they are.

Another public example running counter to the principle of stability can be seen in the case of the former Bishop of Bruges, Roger Vangheluwe. His abusive actions were apparently known to Cardinal Godfried Danneels, but never reported to the Vatican, until Vangheluwe admitted to sexual misconduct with his own nephew, in a television interview.²⁹

In 2010, the then-Congregation for the Doctrine of the Faith began examining the matter.³⁰ While measures were imposed on him and the prelate effectively was barred from any future acts of public ministry, in 2024, Pope Francis dismissed Vangheluwe from the clerical state, citing art. 26³¹ of the revised Norms regarding Delicts Reserved to the Congregation for the Doctrine of the Faith.

That norm includes some kind of exercise of the right of defense but does not include any procedural norms; rather, the matter is referred to the Holy Father for a definitive and unappealable decision.

In this case, the penalty imposed was dismissal from the clerical state. Survivors’ advocates called Vangheluwe’s dismissal from the clerical state—just months before Pope Francis was to visit Belgium—nothing more than a public relations stunt.³²

This impression is reinforced by the fact that, despite Pope Francis’ decision to remove the pontifical secret³³ from information regarding claims of clerical sexual abuse of minors, no details regarding the supposed “grave new elements” allegedly made known to the Dicastery for the Doctrine of the Faith were ever shared with the public. Given that it was Pope Francis who removed the pontifical secret from just such cases, the fact that information motivating the decision made more than a decade after the original canonical sanctions imposed on him wasn’t shared, undermines the stability of the law, giving legitimacy to the fear that decisions are being motivated by public pressure, not by a sound application of the law.

If the pope is in charge, anyway, why does this matter?

The Church has long held to the rule of law. Even the pope, who is both supreme legislator and supreme judge, is bound to the divine law. In the realm of merely ecclesiastical law, over which his authority is supreme and immediate, he can always modify the law for an individual case to suit his purposes and judgment; but even that is, itself, an act of the law and must be done with great prudence because of its ripple effect throughout the life and governance of the Church. He even can derogate from it entirely, in specific cases, if he wishes.

The problem for the Church’s life, and for the application of justice, comes when the Pope appears to convey disregard or indifference for the uniform application of the law—even laws he has written—choosing to ignore them or apply them to some while reserving different treatment for others.

This brief assessment has looked just at the most noteworthy public examples of the decline of the basic principles of clarity and stability in the law, though many others could easily be called to mind.

The presence of so many public examples raises questions about whether more challenges to the rule of law in recent years will emerge in the years to come. When instability replaces the rule of law, the law no longer becomes the tool protecting human dignity that Pope Francis praised; rather, it becomes an instrument that can be wielded arbitrarily, to the harm of that same dignity.

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