“Steeped in Romanity” — Fr. Victor-Alain Berto

Articles written, translated or selected by John S. Daly

The guiding star of this site is fidelity to Rome.

From torrid south to frozen north,
The wave harmonious stretches forth,
Yet strikes no chord more true to Rome’s,
Than rings within our hearts and homes.
Cardinal Wiseman

Pertinacity: Material and Formal Heresy

1. What is Pertinacity?

If a baptised person expresses an opinion in conflict with Catholic dogma, it is plain that the material element of heresy is present: error in the intellect contrary to the Catholic Faith. But of course it does not yet follow that the sin of heresy has been imputably committed, or that the person in question is in fact a heretic.

To establish whether the misbeliever is in fact a heretic, from the position of Canon Law a single question must be asked: does he realise that his opinion conflicts with Catholic teaching? If he does, he is canonically deemed to be a heretic. Canon 1325 defines a heretic as a baptised person, still calling himself a Christian, who “pertinaciously denies or doubts any of the truths which are to be believed with divine and Catholic faith.” And the word “pertinaciously” is understood by canonists to mean that the person is conscious of the conflict between his opinion and the Church’s teaching. (Cf. Noldin, Theologia Moralis, vol. II, n. 29; de Siena, Commentarius Censurarum, p. 24; Dom Gregory Sayers, Thesaurus Casuum Conscientiae III, iv, 18; Suarez, Opera, XII, p. 474, ed. Vivès; Bouscaren and Ellis, Canon Law, p. 902)

It is important to avoid a misunderstanding at this point. It is well known, that Canon law, like civil law, is concerned with externally ascertainable facts and their external effects. It is not directly involved with what takes place in the individual’s soul, for until the internal act is externalised, this cannot be known with certainty. In technical terms, moral imputability is said to belong to the internal forum, known with certainty only to the individual and his Creator, and to the confessor in the sacrament of Penance. By contrast, canonical imputability and its effects belong to the external forum and are assessed in accordance with outward words and deeds, not with hidden interior dispositions. For this reason Canon Law provides that when a Catholic commits an external infraction of a law, he is presumed for legal purposes to have done so knowingly and culpably, unless and until he should prove the contrary (Canon 2200§2).

Relying on this principle, some have imagined that when a heretical statement is made, it is presumed to have been pertinacious — i.e. that the person knew his statement to be heretical and made it nonetheless. This view is quite mistaken. Canon 2200§2 requires guilt (culpability – Latin dolus) to be presumed whenever an infraction of the law takes place, but of course it does not authorise the presumption of the infraction itself. One must first know that the law has indeed been broken, at least externally, before Canon 2200§2 can have any application.

And as the Canon Lawyers understand it, this pertinacity, this consciousness that one’s opinion is in conflict with Catholic teaching, is not an adjunct to heresy that may or may not accompany it, but an essential part of heresy itself insofar as it is a canonical delict. Hence Canon 2200§2 does not entitle anyone to presume it. If an individual makes a heretical statement, as we have said, we must find out whether he is aware that his opinion conflicts with the Faith. We may now add that we must establish the answer to this question without any help from Canon 2200§2 and its presumption of guilt in the external forum. Otherwise we should be presuming not just imputability, but the crime itself, which would be plainly contrary to justice.

To clarify this point, let us state it in slightly different words. A heretic is a baptised Christian who does not accept the Catholic rule of faith, i.e. who rejects the Church’s authority in forming his religious beliefs. Whenever anyone rejects the Church’s rule of faith, he is canonically presumed to do so culpably. But the denial of a dogma does not of itself establish that the Catholic rule of faith is being rejected. Perhaps the misbeliever does not realise that his stated opinion is contrary to the Faith. To clarify whether someone accepts the Catholic rule of faith or not, Canon 2200§2 offers no help. It cannot be legitimately applied to settling, even presumptively, that question.

So how can the individual’s awareness that his view is unorthodox be established? There are in fact several ways. He may say so in as many words, or unmistakably imply that he is departing from Catholic belief. Alternatively, it may be evident from his status and education, and the particular dogma he rejects, that he cannot be unaware of the facts. Otherwise, it is open to anyone to draw to his attention the Catholic teaching which directly conflicts with his stated opinion, to give him the opportunity of correcting his position. If he really has denied a dogma, that dogma must be sufficiently made known to him. Thereafter, persistence in denying or doubting it establishes pertinacity and therefore the canonical delict of heresy.

All this seems clear and simple enough. If misunderstandings and conflicting interpretations have arisen, it is chiefly because the Church’s laws on this topic, and the classic theological texts dealing with it, consider heresy as the act of a person who has once been a Catholic and has recognised the Church’s divine authority to teach. Such a person, of course, if he consciously departs from that teaching, is inevitably guilty in the eyes of God of a mortal sin against the virtue of faith. (Denzinger 1794 and 1815)

2. The Relevance of Good Faith

But of course there are baptised persons who consider themselves Christians and yet have never recognised the authority of the Catholic Church. Some of them have never been presented with any reason for submitting to the Catholic Magisterium as the divinely established rule of faith. Some have barely heard of God’s Church. Thus there exist baptised non-Catholics who think themselves to be disciples of Jesus Christ, yet are separated from His Church by invincible ignorance of what it is. And these persons all fall within the canonists’ definition of heretics, for they openly reject what they know the Catholic Church teaches — and why should they do otherwise as they know of no reason to accept it?

At this point the moral theologian parts company with the canonist. There is no disagreement between the two, of course, but there is a difference of perspective. For the moralist, heresy is a sin; the sin of rejecting a truth revealed by God. But Protestants in good faith who reject Catholic teaching are guilty of no sin by so doing because they do not realise that these truths have been revealed by God. And if they have not culpably committed the sin of heresy, the moralist does not classify them as heretics. If they one day convert to Catholicism and go to confession, they will have no sin of heresy to confess.

To the canonist this is true but irrelevant. All such individuals, he remarks, are presumed guilty of heresy in the external forum by virtue of Canon 2200§2 as they have committed an external infraction of the law requiring assent to every Catholic dogma (Canon 1323§1). Their moral guilt in the internal forum the canonists will leave to moralists to theorise about and to confessors to assess when necessary. Their own task is simply to evaluate the external fact that a given baptised person publicly rejects the Catholic rule of faith, and as such is deemed for all practical purposes to be excommunicated and outside the Church.

Here some individuals have become confused between the external, canonical facts, and the internal, moral ones. By reference to some of the classic theological writers, they argue that “pertinacity” is the element that makes heresy culpable, an imputable sin. And they rightly observe that Protestants who are in good faith are not culpable or guilty of imputable sin for their rejection of Catholic doctrine. Therefore, it has been argued, pertinacity is wanting to the case. And since this pertinacity is admitted by canonists themselves to be essential to the material act of heresy, it certainly cannot justly be presumed. That would be presuming the fact of the crime itself, not just its guilt. Moreover, it is argued, since pertinacity implies moral guilt in the rejection of Catholic doctrine, if Protestants in good faith are to be canonically presumed pertinacious and excommunicated, the same must apply to Catholics who by an innocent mistake advance an opinion which they do not realise to be in conflict with a dogma. Thus Catholics who pronounce on theology with insufficient knowledge would be forever incurring excommunication in the external forum by virtue of presumed pertinacity.

What terrible confusion! And it has been only aggravated by writers who have tried to reply without spotting the root of the disagreement, rashly conceding the last point of their adversaries by allowing Canon 2200§2 to apply to the mere outward statement of a position which the Church rejects. Thus they admit that one may presume an individual to be in conflict with the Church, even though he is a good sound Catholic and merely guilty of a mistaken formulation. And they concede this because they see no other way of defending what they know to be true — namely that Protestants, no matter if they be in invincible ignorance, are presumed excommunicated and deemed to be outside the Church’s external communion.

3. Two Distinct Senses of the Word Pertinacious

The nub of the problem — we say it again — is that the word pertinacity has been differently used by different kinds of writer. Each use is defensible, and the distinction is largely an accident of history. But now that it exists, it is crucial not to apply to this term in one sense statements made about its other sense.

The canonists have defined pertinacity as recognition or awareness of the conflict between one’s belief and that of the Church. As such, pertinacity is essential to the canonical delict of heresy; it is part of the matter or (technically) corpus delicti of heresy. Hence it must be proved before anyone can be considered a heretic, and Canon 2200§2 with its presumption of culpability does not help to prove it, for it applies only when the law has already been externally infringed. If Catholic doctrine is inadvertently denied by one who does not realise that his error is opposed to Catholic doctrine, there is not even an external infraction of the law requiring submission to Catholic doctrine.

Moralists, on the other hand, consider pertinacity as the formal constituent of the sin of heresy — the disordered state of the will in adhering to a belief opposed to the Faith. As such, pertinacity never exists except where the heretical belief is imputably sinful. And for that, not one, but two things are necessary. First the doctrinal authority of the Church must be sufficiently proposed to the individual concerned. Secondly the specific teaching of the Church which conflicts with his error must be sufficiently proposed to him. In other words, according to the definition, pertinacity entails awareness of two distinct truths: not just (i) that the Church rejects the opinion advanced, but also (ii) that the Church is the divinely-appointed custodian of God’s revelation to men.

There is no doubt that the definition of the moralists is the older one. If the ancient authorities (St Augustine: Contra Manichaeos, De Civ. Dei, l. XVIII, c. 51, n. 1; St Thomas Aquinas: Summa Theologiæ, II-II, q. 11, a. 2; Cajetan, ad locum; St Alphonsus Liguori: Summa Theologiæ Moralis, l. 3, n. 19), who used the word “pertinacity” for the perverse will of one who sinfully rejects a part of the Catholic Faith, do not advert explicitly to the two conditions mentioned above as necessary to make a heretical statement pertinacious, it is because they were writing of Catholics who fell into heresy. And one who has once been a Catholic is necessarily aware of the Church’s teaching authority. He may have failed to advert to the conflict between his stated opinion and a given teaching of the Church, but he cannot be invincibly ignorant that his opinions ought to be in conformity with Catholic teaching. So it is not surprising to see some writers define pertinacity as the formal element of the sin of heresy, the perverse state of will, while mentioning only one necessary condition for this: awareness of the Catholic teaching with which one’s stated belief conflicts. With regard to Catholics and former Catholics, that is exact. With regard to persons baptised outside the Church, and perhaps invincibly ignorant of her teaching authority, however, it is an over-simplification due to factors we have already noted.

Could it be argued that the canonists’ use of the term “pertinacity”, with a slightly different meaning from that of the classic theological usage, is responsible for the confusion? Doubtless the canonists would say that they needed a word for the deliberate decision to hold a belief contrary to that of the Church and that pertinacity was chosen as being the classic term, so defined by many of the theologians who gave it its currency. Hence any confusion is due rather to the fact that theologians had made two statements about pertinacity (viz. (i) that is consists in awareness of the conflict between one’s opinion and Catholic doctrine, and (ii) that it is the formal constituent of the imputable sin of heresy) of which, with reference to Catholics who fall into heresy, both are true, but with reference to baptised persons who are invincibly ignorant of the Catholic faith, both cannot be true. In other words the confusion is due to the historical accident that theologians equated two concepts which, in the cases they were considering, invariably coincided, but which in a distinct category of cases, which they did not address, do not necessarily coincide.

In any event, further confusion can be avoided by bearing constantly in mind that all canonists are agreed as to what “pertinaciously” means as this word is used in the current text of Canon 1325§2. It means that the misbeliever is aware of the conflict between his belief and Catholic doctrine, and is therefore synonymous with knowingly.

Thus a baptised person raised in invincible ignorance of the Catholic Church is nevertheless a pertinacious heretic in the sense of Canon 1325§2. In the eyes of God he is not morally guilty, but owing to his external infraction of the law requiring all the baptised to accept Catholic doctrine, he is presumed in the external forum (by Canon 2200§2) to be culpable and to have incurred excommunication. He is certainly not juridically a member of the Church.

If theologians continue to use the word “pertinacity” to designate the perverse state of the will which makes the profession of a heretical statement an imputable sin, they must recognise that their usage, insofar as it applies to non-Catholics who are or may be invincibly ignorant of the Church’s divine authority, does not coincide with canonical usage.

On the other hand, to admit a possibility which canonists would apparently be very reluctant to accept, theologians might wish to argue that Canon 1325§2 has been misunderstood and that the pertinacity it requires for heresy is moral guilt. According to this understanding a Protestant in good faith is not, canonically speaking, a heretic, as he is not morally guilty. As he is certainly deemed by the Church in the external forum to be excommunicated, this must be attributed to a presumption of law — namely that Canon 2200§2 does authorise the presumption of pertinacity. But as this presumption clearly does not apply to Catholics who inadvertently advance an unorthodox proposition, some distinction must be found whereby Canon 2200§2 allows the presumption of pertinacity on the part of invincibly ignorant non-Catholics, but not on the part of Catholics who mistakenly make heretical statements while retaining orthodox interior dispositions. And as the Code lends no support to such a distinction, it is clear why the canonists have unanimously rejected any attempt to construe the Code in this way.

4. Agreement as to Facts: Disagreement as to Their Expression

The confusion and disagreement we have referred to must not be allowed to cloud the perfect agreement which subsists among all approved theological and canonical authors as to the relevant facts, irrespective of how the current (1917) Code of Canon Law is to be understood as stating them. This agreement is best shown by summarising the correct doctrine without using any of the vocabulary which has shown itself liable to ambiguity, and this we think can be done as follows:

Every Catholic must accept the Catholic rule of faith, by believing whatever the Church teaches that God has revealed. Any statement made by a baptised individual which reveals that he does not accept the Catholic rule of faith and knowingly rejects some part of the divine revelation which the Church proposes for our belief, proves that he is not a Catholic but a heretic, and deemed to have incurred excommunication.

By contrast an unorthodox statement which may have been due to mere inadvertence proves nothing of the sort. One who makes such a statement is not proved to be a heretic until such time as the Catholic doctrine has been sufficiently drawn to his attention and he remains obstinate in his position.

The baptised individual who is truly shown to reject the Catholic rule of faith will be guilty of sin if the Church’s authority has been sufficiently proposed to him — which will always apply to one who has previously been a Catholic, but will not apply to non-Catholics if they are invincibly ignorant — but not otherwise. But whether or not he is guilty of sin, his rejection of the Catholic rule of faith attests that, for all external purposes, he must be deemed an excommunicated heretic, not a member of the Catholic Church.

5. True Rôle of Canon 2200§2 and its Presumption of Malice

Having established these facts, we may now note the true function of Canon 2200§2 in relation to the delict of heresy. This canon rules that when a law is outwardly infringed, the infraction is presumed culpable for the purposes of the external forum. Should a Catholic make an unorthodox statement, it does not entitle anyone to presume for any purpose that his unorthodoxy was deliberate if that is not already evident. But once established that the unorthodoxy was conscious, Canon 2200§2 does require the presumption that the departure from orthodoxy was not merely simulated, due to fear or mental derangement. And with regard to non-Catholics, Canon 2200§2 provides that they are for practical purposes deemed to be culpable for their heterodoxy and therefore excommunicated — a legal presumption which in no way alters the fact that they may be invincibly ignorant of the Church’s authority, and therefore guiltless in the internal forum. The Church, as a visible institution juridically able to recognise her members, cannot consider such people to be Catholics.

6. Material and Formal — More Ambiguity

The preceding discussion leads logically to consideration of the analogous ambiguity, relevant to the same topic, which has perhaps been the source of even more serious confusion than the word “pertinacious”; namely, the distinction between material and formal heresy.

Every material object exists by virtue of the union of two elements — the stuff it is made of (matter) and the shape it is made in (form). Thus a wine-glass is made out of glass — its matter; but that alone is not sufficient to make it a vessel suitable for drinking wine from; it also needs its form — the shape of a wine-glass.

Scholastic philosophy has taken the distinction of the two constituent elements of physical objects, and applied it, by extension or analogy, to other entities. Its best known theological application is to sin. Each sin is said to consist of its matter (the forbidden action) and its form (the disordered act of the will). And this application is very useful because it facilitates recognition of the cases in which the matter of the sin is not accompanied by its form. Thus a man who shoots his neighbour has performed the physical action proper to the sin of murder. But if he had blamelessly mistaken his neighbour for a wild animal, his intention was not disorderly. The matter of the sin was present, but not its form. We have come to say that such a man has sinned materially, but not formally. But what that really means is that he is not guilty of sin at all, for in the absence of its formal element, no entity can exist. A material sin is not really, or fully, a sin, any more than a pane of glass is a drinking vessel until it is moulded to the shape of one.

7. Application of these Terms to Heresy

With regard to the sin of heresy, it was said that the matter was the intellectual error involved in assenting to a heterodox proposition, while the form was the obstinate attachment of the will. And once again this distinction usefully clarified the fact that one who assents to a heterodox proposition by inadvertence, without obstinate attachment of the will, was not guilty of the sin of heresy.

What muddied the waters was the misleading linguistic development by which material heresy was said to make the person professing it a material heretic. No conclusion could seem more natural to the layman, but it does not in fact follow in logic. A retired lion trainer is not, after all, a man who trains retired lions! And a serious problem arises when you designate as a material heretic anyone who assents, without moral guilt, to a heretical proposition. This is that you have created a category which comprises two quite distinct sorts of member and you therefore run the risk of confusing the two. For according to that definition, a good Catholic who inadvertently holds a condemned doctrine, not realising that it is condemned, is a “material heretic”. And so too is a Protestant if he is invincibly ignorant of the Church’s divine status. And while it is true that there is a resemblance between the two cases (for both indeed hold in their minds unorthodox doctrine and neither is culpable in the eyes of God for doing so), nevertheless there is also a huge gulf between them. For the former is a Catholic, habitually adhering to the Catholic rule of faith, whereas the latter is a non-Catholic, with no knowledge of the correct rule of faith and tossed about on the treacherous sea of private opinion.

The inevitable consequence of this misleading assimilation of two such different sorts of person is that they will gradually come to be considered truly alike. This could happen in either of two ways. Mistaken Catholics could be regarded as no better than Protestants in good faith (and some zealous self-appointed heretic-hunters have practically taken this view, arguing that the most innocent error creates a presumption of heretical animus — a notion we have already seen to be false). More common has been the no less calamitous view that a Protestant, if invincibly ignorant of the status of the Church, is no worse off than a Catholic who inadvertently makes an incorrect doctrinal statement — as though adherence to the Catholic rule of faith, i.e. submission to the Magisterium, were irrelevant, whereas in fact it is what membership of the Church depends on and is the only normal embodiment of the theological virtue of faith which is absolutely necessary for salvation.

Correctly, the material element involved in being a heretic is conscious dissent from the Catholic rule of faith, while the formal element is the perverse state of the will which this entails. The distinction thus made, a Catholic who inculpably advances a heretical proposition by inadvertence may perhaps be said to have advanced a material heresy; but he cannot be called a material heretic. He is not a heretic in any sense. A heretic is one who dissents altogether from the Catholic rule of faith, and he will be called a “material heretic” if he is invincibly ignorant of the authority of the Church which he rejects, and a formal heretic if the Church’s authority has been sufficiently proposed to him, so that his dissent from it is culpable. (This is clearly and explicitly explained by Cardinal Billot in his De Ecclesia Christi, ed. 4, pp. 289-290 — a key text which the present writer is simply endeavouring to explain in relatively untechnical English.)

So according to the correct usage of the term, as outlined above, a Catholic can never become a material heretic. By the very fact of being a Catholic he is not invincibly ignorant of the Church’s authority, and any conscious dissent from her teachings will therefore make him a formal heretic. “Material heretics” are exclusively those baptised non-Catholics who err in good faith. That is why Dr Ludwig Ott notes that “public heretics, even those who err in good faith (material heretics), do not belong to the body of the Church, that is to the legal commonwealth of the Church”. (Fundamentals of Catholic Dogma, p. 311)

And in fact Dr Ott’s preferred expression — “heretics who err in good faith” is the one used in the Code of Canon Law (Canon 731), which completely eschews the potentially misleading term “material heretics”

8. Effects of Heresy

Before closing this discussion of the nature of heresy, some mention should perhaps be made of its effects.

Canon 1325 brands as a heretic whoever, while still calling himself a Christian, pertinaciously (i.e. consciously) doubts or denies any de fide truth. Anyone to whom this applies is deemed not to be a Catholic if he manifests externally his heresy. (If his deliberate misbelief is purely internal, he has committed a mortal sin against the virtue of faith, but remains within the Church’s communion, and without censure. Cf. Billot, op. cit. pp. 295 et seqq.)

All heretics automatically (“by the very fact of being such”) incur the censure of excommunication by virtue of Canon 2314. This must be carefully distinguished from their expulsion from the Church — one may be excommunicated and yet remain a member of the Church, or one may be outside the Church but nevertheless not excommunicated, as in the case of baptised children raised in heresy, between the age of reason (about seven) and the age of fourteen, before which it is not possible to incur the censure of excommunication.

One who commits heresy – i.e. consciously dissents from Catholic doctrine – through ignorance of the duty to believe all that the Church teaches, will not incur the excommunication unless his ignorance was “affected” — i.e. deliberately sought (Canon 2229). But in the external forum he will be deemed excommunicated until he prove the contrary. (In practice, converts who claim, on grounds of ignorance, not to have incurred excommunication are usually absolved conditionally to avoid a complicated judicial procedure to assess their claim.)

Heretical clerics, like laymen, incur excommunication; and infamy if they publicly join a sect. Unlike laymen, they are also to be deprived of any benefice, dignity, pension or office in the Church unless they repent on being admonished; and if a second admonition proves fruitless, they are to be deposed. Indeed, if their heresy is public, their offices are forfeited automatically without any admonition (Canon 188, n. 4). And if the heretical cleric not only doubts or denies a dogma, but publicly joins a heretical sect, he will not only lose his office ipso facto and incur infamy; he will also, should admonition fail to amend him, be degraded. (Canon 2314)

© Copyright John S. Daly 1999 – 2017.