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What O'Clock I Say: Juridical Epistemics and the Magisterium of the Church

  • Robert E. Rodes


Petruchio: I will not go today; and ere I do

It shall be what o'clock I say it is.

Hortensio: Why, so, this gallant will command the sun.

Scrope, C.J.: I remember it well, but I can have no knowledge of it in my capacity as judge.

The Catholic Church claims a wide authority to make pronouncements on faith and morals, and have them respected by members of the church. The nature and extent of the respect to be accorded them is subject to considerable debate, some of it both extensive and acrimonious. It is claimed, to be sure, that certain pronouncements are infallible; if so, they are obviously beyond debate. But for most pronouncements no such claim is made. Furthermore, the question whether a given pronouncement is infallible or not is itself debatable, and can generally not be infallibly resolved.

We are confronted, therefore, with an array of assertions of varying provenance to which we are expected to give some measure of credence, even though we have no guarantee that they are true, or even that their authors are particularly well-informed. They take their authority from that of the church, which in its corporate capacity is the repository of God's Revelation, and the beneficiary of His guidance.



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1. The Taming of the Shrew, Act IV, Scene 3 .

2. Eyre of Northamptonshire 1329-1330 at 238 i (Selden Soc. xcvii). An ex-sheriff, accused of allowing a prisoner to escape, has reminded Scrope that he was previously cleared of the same charge before Scrope himself in the King's Bench. But personal recollection will not serve for an acquittal in the Eyre. The accused must go to Westminster and get the record from the King's Bench. Compare St. Thomas Aquinas's argument in S. Theol., II, II, q. 64, article 6 that a judge must condemn an accused to death if the evidence indicates that he is guilty, even if the judge has personal knowledge that he is innocent.

3. If a fact is specifically found by a court or jury after a trial, the parties to the litigation are generally precluded from asserting in another litigation that that fact is not the case. Findings of fact in the preamble of a statute are used by courts either to interpret the statute or to uphold its validity. A famous example is Block v Hirsch, 256 US 135, 194 (1921), in which a finding by Congress as to the effect of the First World War on housing in the District of Columbia was used to uphold rent regulation that the Court as it was then constituted would otherwise have invalidated.

4. The usual estoppel occurs when A is so far responsible for a factual error on B's part as to be precluded from asserting the true fact against B. A presumption is a fact that requires no evidence to establish it. If evidence to the contrary will be received and considered, the presumption is rebuttable; if not, it is irrebuttable or conclusive. A constructive trust arises when A has acquired property from B by fraud or duress, and is therefore made to treat it as if he were B's trustee.

5. The Dover Castle, 16 Am J of Intl L 704 (1921).

6. Virtually all Civil War histories tell this story, as does Butler's entry in the Dictionary of American Biography, Vol. II Part I at 357 (Scribner, 1957).

7. State v Badolati, 241 Wis 496, 6 NW2d 220, 143 ALR 1234 (1942).

8. Ann, 143 ALR 1238 (1943).

9. The Statute of Frauds makes certain classes of oral contracts unenforceable.

10. Michael H.v Gerald D., 491 US 110, 120 (1989).

11. Res judicata is a doctrine that precludes relitigating a matter once decided by a court. Administrative finality does the same for a matter decided by an administrative agency.

12. See, for instance, die Ind Workers' Compensation Act, Ind Code 22-3-3-19; Wilson v LaPorte Gas & Electric Company, 107 Ind App 21, 22 NE2d 882 (1939).

13. Califano v Goldfarb, 430 US 99 (1977).

14. 8 US Code 1481. The provision on voting was repealed in 1978.

15. Perez v Brownell, 356 US 44 (1958).

16. Trop v Dulles, 356 US 86 (1958).

17. Perez, 356 US at 79.

18. Trop, 356 US at 97.

19. Id at 114.

20. Id at 105, 106.

21. Id at 105, 109-10.

22. Afroyim v Rusk, 387 US 253 (1967).

23. Vance v Terrazas, 444 US 252 (1980).

24. Ferry v Ramsey, 277 US 88 (1928).

25. Tot v United States, 319 US 463 1519 (1943).

26. NLRB v Hearst Publications, 322 US 111 (1944).

27. Id at 127.

28. Id at 135.

29. O'Keefe v Smith, Hinchman and Grylls Assoc, Inc., 380 US 359 (1965).

30. Id at 362.

31. Id at 365, 368-69.

32. Heckler v Campbell, 461 US 458 (1983).

33. Ann, 2 LEd2d 1917 (1958).

34. Note how that proposition differs in form from other things that might be said on the subject. “Don't use contraceptives” would be normative, but it would not be a pronouncement that this or that is or will be treated as being the case. So it is not within the scope of this article. “Anyone who uses contraceptives shall be considered an adulterer” would be a normative pronouncement within our scope. “The use of contraceptives is unnatural” would not be a proposition regarding morality, although it might be offered in support of such a proposition.

35. William Stringfellow, a great lawyer and theologian, once caused considerable excitement by saving that the civil rights movement is about baptism. Campbell, Will D., Brother to a Dragonfly 230 (Continuum, 1977). His point was not to exclude the unbaptized, but to derive from the theology of the sacrament a call to solidarity transcending the level playing field. On reflection, I believe he was right, but I had accepted the same theology for a long time without arriving at this particular consequence.

36. The earliest reference in the Oxford English Dictionary to the use of the word in this sense is to the Dublin Rev 422 (April 1866).

37. See Rodes, Robert E. Jr., Ecclesiastical Administration in Medieval England 7984 (U Notre Dame Press, 1977).

38. Parry, , ed, Registrum Jobannis de Trillek, Episcopi Herefordensis 105, 120 (viii Canterbury & York Soc'y, 1912).

39. Germain, Christopher St., The Additions of Salem and Byzance fol. 5 (London, 1534).

40. (Wash, Nat'l Council of Catholic Bishops, 1968).

41. It is generally believed that the pope rested his decision on the considerations set forth in the minority report of the papal commission on the subject. That report is published in Callahan, D., ed, The Catholic Case for Contraception 174 (MacMillan, 1969). It pays a great deal of attention to the impairment of the credibility of the magisterium that would result if contraception were declared to be morally licit. Prudential arguments based on this concern—which are non-epistemic—are a little difficult to separate from arguments based on the epistemic privilege of the magisterium, but the prudential arguments certainly play a part. A number of the dissenting arguments in the above volume reflect similar prudential concerns: It is Humanae Vitae, ill-reasoned as it is, that will impair the credibility of the magisterium. Also non-epistemic are arguments based on the problem of overpopulation. See, for example, Hastings, Adrian, The Faces of God 4246 (Orbis, 1976). On the other hand, arguments based on the effect of the anti-contraceptive teaching on the spiritual lives of individuals may be epistemic: moral principles may be known through experience.

42. See Noonan, John T. Jr., Power to Dissolve (Harv U Press, 1972). The epistemic question in a marriage case is ontological rather than moral, so the experience of hardship cannot have the same relevance it has in the case of contraception.

43. See, for example, Reese, T.J., Inside the Vatican 248–63 (Harv U Press, 1996).

44. Origins, xxiv 49 (1994): “The church has no authority whatsoever to confer priestly ordination on women.” “The real reason is that … Christ established things this way.”

45. Origins, 25 xxv (1996).

46. Code of Canon Law, can. 1314.

47. On the traditional attitude, see the story of Sverre, King of Norway, as recounted in Rosalind Hill, Theory and Practice of Excommunication in Medieval England, 42 History 1 at 56 and notes at xlii (1957). The tradition, of course, is a mere application of the broader principle that an unjust law is not binding in conscience.

48. C. 44, X, v, 39; Aquinas, Sentences IV, dist. 38, art 4. This citation from Aquinas is given as the authority for the supremacy of conscience over ecclesiastical authority in McBrien, Richard P., Catholicism 1003 (Winston Press, 1980, Study Ed, 1981).

49. Eliot, T.S., The Hippopotamus in Selected Poems 40 (Faber, 1954).

50. First Vatican Council, 1870. Documents of the Christian Church, Bettenson, Henry, ed, 383 (Oxford U Press, 1947).

51. For a judicious treatment of the subject, see Noonan, John T. Jr., The Alliance of Law and History in Persons and Masks of the Law 152–67 (Farrar, Straus and Giroux, 1976).

52. Friedrich Karl von Savigny, the founder of the Historical School of Jurisprudence, thought of law as an emanation of the Volksgeist, the spirit of a people. Using this terminology, one might say that the Holy Spirit is the Volksgeist of the church.

Paul J. Schierl/Fort Howard Corporation Professor of Legal Ethics, Notre Dame Law School.


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