The removal of Bishop Strickland by the Pope last month has raised some consternation among the faithful about the nature of this action, with some going so far as to suggest it was canonically illegal. The topic has been well covered elsewhere, see for example “Removing a Bishop From His Diocese: The Case of Bishop Strickland” and the interview with the eminent canonist Father John Beal, JCD by Catholic Review, “Bishop Strickland removal is ‘administrative, not penal’ says canon law expert.” This post will principally fill in the gaps in these statements and explore a quirk in the present law.
So can the Pope remove a bishop from his diocese? Yes, of course, he can. The Pope holds supreme, full, immediate, and universal power in the Church (can. 331). I doubt any Catholic seriously disputes this point. But was what the Pope did contrary to the norms of canon law? That is a much more interesting question. In short: yes, no, maybe! Depends on your perspective. Let’s get started.
Canon law states a diocese becomes vacant when its bishop dies, resigns, is transfered, or “privation is made known to [him].” Can. 416. Bishop Strickland isn’t dead, didn’t resign, and hasn’t been transfered to another diocese, so only the last condition is relevant: privation. Canon 196 (which is found under the chapter on the loss of ecclesiastical offices) states privation is a “penalty for a delict” and can be imposed only according to law. So it appears a bishop can only leave his office by death, resignation, transfer, or as punishment for a crime. But from public information, it appears Bishop Strickland commited no canonical crime and did not undergo any canonical trial, so what happened to him clearly doesn’t fit the definition of privation. Given he meets none of the conditions, then, it must be illegal. That is certainly the position of this article, though the author is careful to point out the Pope isn’t bound by canon law like you or I might be, so perhaps not illegal in a strict sense but you get my point.
The above is a cogent, clean textual argument, but ultimately, I think it misses the mark. I think Father Beal’s defense of the Pope’s actions is a correct assessment, and I think this is how the Holy See would explain its actions if it were to do so. Unfortunately, this characterization is messier to explain because it’s premised upon more than just the black letter text of the Code of Canon Law.
For those who don’t know, the current Code of Canon Law (1983 CIC) is a wholesale revision of the 1917 Code of Canon Law (1917 CIC) undertaken in the decades following the Second Vatican Council. While much was changed, much was copied directly from the prior text, so it’s often helpful to refer back to the old code to better understand the current one. Regarding the loss of a bishop’s office, the 1917 code stated, “Sedes episcopalis vacat Episcopi morte, renuntiatione a Romano Pontifice acceptata, translatione ac privatione Episcopo intimata.” 1917 CIC 430 (“The episcopal see empties by the death of the Bishop, by resignation accepted by the Roman Pontiff, by transfer, or by privation communicated to the Bishop.” trans. Edw. Peters JCD). And at this time, privation was understood in two senses. As one respected English language commentary put it:
“[Privation] is a canonical act by which an ecclesiastical office is taken away from an incumbent cleric independently of his consent. (a) It may have the character of a penalty (privatio poenalis) and in that case supposes a crime for which it is a punishment. In this case it is ordinarily called deprivation (privatio) without qualification. […] (b) It does not necessarily possess a penal character, but may rather be concerned with the promotion of the common good (privatio oeconomica, privatio administrativa). In this case it is called simply removal.” — Abbo & Hannan, The Sacred Canons, vol. 1, 247 (1952) (emphasis mine).
Thus, under the 1917 code, there was no question a bishop could be removed administratively—not just by penal privation—from his office. That brings us to the 1983 code.
The revisors of the 1917 code formalized the distinction between privatio poenalis and privatio administrativa, choosing to call the latter amotio (“removal”). Thus we now find removal defined separately from privation. See 1983 CIC 192 ff. regarding “removal” and 1983 CIC 196 regarding privation. But when it came to the revision of 1917 CIC 430 regarding the vacancy of diocesan bishops’ offices, the drafters of the revised code simply copied the existing text word for word, though with the addition of the adjective “diocesan.” (Sedes episcopalis vacat Episcopi dioecesani morte, renuntiatione a Romano Pontifice acceptata, translatione ac privatione Episcopo intimata. 1983 CIC 416 [emphasis mine].) The update in one canon and lack of update in the other has resulted in the new law being more restrictive than the former; whereas the old law allowed the removal of a bishop by privatio, both poenalis and administrativa, the language of the new canon allows for removal by privatio but, by its omission, not amotio. It’s hard to say whether this was intentional or merely an oversight by people so thoroughly accustomed to the “old” way of thinking of privatio that they missed the implications of the changes.
Modern commentaries on the 1983 code lean both ways. The CLSA Comm (1985), CLSA New Comm (2000), GB&I Comm (1995), and the Exegetical Commentary (2004) don’t mention removal (amotio) with respect to bishops whatsoever, and speak only of privation. Whereas Code of Canon Law Annotated appears to take the position that it was unintentional and corrects the omission by stating: “Even if not expressly indicated in c. 416, it is obvious that the episcopal see can also be vacant due to a removal of the bishop established by the Holy See.” Arrieta, Code of Canon Law Annotated, 354 (4th ed. 2022). The two Spanish language commentaries I consulted likewise suggest it was unintentional. One goes so far as to say, “Removal is not listed, despite being a means by which ecclesiastical office is lost, because it is understood to be be included as a subspecies within the broader understanding of privation”—a claim which would seem difficult to defend in light of 1983 CIC 196. Poveda, Código de derecho canónico, 215 (9th ed. 2001) (translation mine). See also Núñez, Código de derecho canónico, 331 (10th ed. 2021).
So where does this leave the question? Well, from a purely textual perspective, the omission of amotio in canon 416 would mean it doesn’t apply, so Bp. Strickland’s removal is illegal. But from the perspective of the code being more, what you’d say, guidelines than actual hard rules when it comes to the Pope as supreme head of the Church and supreme legislator, it’s not illegal. And from the perspective of the drafters of the 1983 code and Pope St. John Paul II who personally approved it, maybe… maybe not… we’ll never know. I think the fact that in the years since its promulgation, the Holy See has and continues, albeit infrequently, to remove bishops from office suggests it didn’t intend canon 416’s list to be exhaustive. In which case, it’d be better all around if canon 416 were amended and amotio included in that list.
Servatis Servandis 