By Rev. Michael X., J.C.L.
With news filtering out from Rome that Pope Benedict may not, in fact, have issued, as normally required, a written order imposing sanctions upon then-Cdl. Theodore McCarrick, the heroic efforts on the part of Abp. Carlo Maria Viganò to clean out the house of the Roman Curia may have been doomed to failure from the start.
According to Edward Pentin of Catholic Herald, a source has indicated that "there was 'no formal decree, just a private request." If this point of fact is true, then it could very explain how McCarrick was able to get away with ignoring the canonical penalties that Viganò says Pope Benedict imposed upon him. McCarrick, even worse, may have used the Code of Canon Law designed to protect minors and adults from sexual abuse and abuse of power by bishops to ignore the sanctions imposed on him by Benedict.
According to canon 51 of the Code of Canon Law (CIC), "A decree is to be issued in writing. When it is a decision, it should express, at least in summary form, the reasons for the decision." Furthermore, "For a singular decree to be enforceable, it must be made known by a lawful document in accordance with the law" (can. 54, § 2 CIC).
Could the alleged failure on the part of Pope Benedict to observe these norms be the reason why McCarrick felt he could continue doing anything he wanted?
According to the Church's most ancient tradition, the Roman Pontiff is not bound or subject to what are called "merely positive ecclesiastical" norms of canon law that have been promulgated by him or his predecessors for Catholics subordinate to him to observe. As Vicar of Christ and Sovereign of the Vatican City State, the Pope is not subject to any man's judgment — and hence laws — but God Almighty's, unless, according to an exception first set forth by Pope Innocent III, it concerns a matter of heresy proven to have been committed by the bishop of Rome himself.
Additionally, like countless popes across the centuries before him, Pope Benedict had every single power and right to issue sanctions by what is canonically called a "vivae vocis oraculum," or "oracle of the living voice," the ancient expression for a verbal decree.
According to his commentary on the vivae vocis oraculum in The Law of the Church by Ethelred Taunton (London, 1906):
1. Authentic oracles are those which, lest they should be forgotten, and in order that they may be of use in foro externo, are at once reduced to writing and given credit to by those who ex officio can authenticate an instrument (q.v.). 2. Non-authentic oracles are those which, by the neglect of the petitioner or for any other cause, are not reduced to writing in the prescribed form. (my emphasis)
While the canonical institute of the vivae vocis oraculum or verbal decree is only referenced in can. 59, § 2 of the Code of Canon Law with reference to the granting of favors, the Pope and senior officials of the Roman Curia continue to this day to issue verbal decrees in a host of other matters not limited to the granting of requests. Problems arise, however, as Taunton perceptively implies above, when a Church official does not consign such a verbal decree to writing.
The exception on the part of the Pope to being subject to merely man-made laws of the Church is entirely justified from a theological point of view. Ordinarily, however, it does not release the Roman Pontiff from recognizing the validity of any defense argument on the part of McCarrick or his supporters that said sanctions never existed, precisely for the reason that they allegedly were never set forth in writing.
An exception to this defense would only exist if an eyewitness to the issuance of a verbal decree by Pope Benedict imposing the alleged sanctions were to go "on the record," so to speak, and attest to how the verbal decree of Pope Benedict had been set forth in writing. It is only in this manner, as Taunton notes, that such a verbal decree becomes "authentic" — that is, legally effective.
With the Emeritus Pope staying quiet, and Pope Francis brazenly telling journalists, "Read it yourselves carefully and make your own judgment. I will not say a single word on this. I believe the memo speaks for itself, and you are capable enough as journalists to draw your own conclusions" (English language edition of L'Osservatore Romano, Aug. 31, 2018), the Church at large may never know the truth.
Worse of all, evil men like McCarrick and protectors of sexual abusers of children like Cdl. Donald Wuerl may succeed in using the Church's own canon law against her as a shield to avoid being held accountable.