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Recently in Church History class we were discussing the heretic Nestorius, the Archbishop of Constantinople who, in 428, pronounced his heresy that Mary was not the Mother of God because the two natures in Christ, divine and human, were only connected in an accidental manner.

Already in 428, the clergy of Constantinople broke communion with him, that is, they did not recognize him as a Catholic archbishop. Similarly, as the people were seeking the traditional preaching of the Faith, they publicly cried out: “An Emperor we have, but no bishop.” It was not until 431, however, at the Council of Ephesus, that he was officially condemned. At that council, up until the moment of his condemnation, he was addressed as “Your Reverence” and given other formalities of honor. (Yet they did not permit him to sit among the bishops, but in a special place as an accused culprit).

So a seminarian asks the question: If Bergoglio is not yet officially condemned, then why do we not give him the title of “Your Holiness?” There are essentially three answers to this question: (1) people would vomit on calling him “Your Holiness;” (2) one must always distinguish between the world of reality and the world of legality; (3) the normal processes of accusation and condemnation are not available to us. I will not address the first reason, since it is obvious to all. I will proceed to the second.

Reality and Legality. The real world is the world of concrete facts, which are made known to us through our senses. So, for example, in these horrific school shootings, there are multiple witnesses who see someone shooting other people. There is absolutely no doubt who is the perpetrator of the crime. Yet, in the world of legality, he is innocent of the crime until proven guilty of it in a court of law.

It is clear, then, that what is true in the world of reality may not be true in the world of legality. A completely innocent person in the world of reality may be condemned as a criminal in the world of legality. ¹  And vice versa.

Law is the order of reason. It is not the order of concrete fact. The world of law normally lags behind the world of fact. It takes time to establish a fact legally. So even though everyone knows that someone is in fact a murderer, his status of murderer does not become a legal fact until it has been established by competent authority.

This distinction does not stop us, however, from treating the perpetrator as guilty or suspect before his condemnation. For this reason, people who commit crimes are imprisoned while they await trial. Likewise the clergy of Constantinople broke communion with Nestorius long before his condemnation. There are other examples of this in the history of the Church.

Because Nestorius was not yet condemned, the Council of Ephesus, acting in the name of the pope and carrying out his orders concerning the heretic, had to follow the norms of legality, since it was a court of law regarding Nestorius. For this reason, they addressed him with titles of respect, even though everyone knew that he was as guilty as sin.

Why this distinction between reality and legality? Because it prevents the Church — and any society — from becoming a mob. We Americans who are familiar with Westerns remember stories in which the townspeople would not want to wait for the judge to come, but wanted to “string up,” that is, execute by hanging, someone whom they thought to be guilty. In the South of the United States, it was not uncommon that “lynch mobs,” would hang from a tree a black man who was accused of some serious crime. This they did without any trial. It was clearly wrong.

Special considerations today. In normal times, if an elected pope should even hold heresy in a private way, but not teaching it to the Church, he would immediately be cited by the Cardinals, who would give him a chance to recant, or have the Roman See declared vacant. This swift move on the part of the Church took place in the case of John XXII, who privately held something heretical. He recanted.

What is the difference today? The first difference is that the Vatican II “popes” are not merely heretics personally, that is, holding heretical doctrines as private teachers, but they are teaching these heretical doctrines to the whole Church, and imposing them as binding. They are also imposing evil disciplines and a false liturgy, both inspired by the heresy of ecumenism, which in the words of Pope Pius XI is tantamount to “denying the religion revealed by God.” (Mortalium Animos)

This distinction is important, since it is impossible that the Catholic Church teach heresy to the whole Church. Consequently, it is clear that it is impossible that a “pope” teaching heresy be in fact pope, and this even before any declaration. Such activity does not even fall under Canon Law. We are completely in the world of reality, since there is no legal norm regarding a pope teaching heresy.

The second difference in our time is that there is no one to carry out the processes of accusation and condemnation. The entire Novus Ordo hierarchy is infected with modernism and ecumenism. Hence there is no one to accuse, no one to condemn. They are all followers of the heresiarch.

By analogy, imagine an atomic blast in a large city, where the entire police force is wiped out. There is no one to summon while marauders, rapists, and looters approach your home to rape and pillage. Shall we say, “Well, since they are not condemned as criminals, we shall treat them as innocent until proven guilty,” or “Since we are not the police, we can do nothing to protect ourselves?” Would not responsible and law-abiding citizens band together in order to keep peace and order? The same is true in our ecclesiastical situation.

The third difference is that the case of a heretical pope is different from that of a heretical bishop. A pope is the living rule of faith for the entire Church, and is infallible in his magisterium (whether solemn or ordinary universal), and is infallible in promulgating universal laws, liturgy, and disciplines. None of these things is true of a bishop of a diocese. I remember as a child that people would often say, “You can’t be more Catholic than the Pope.” Very true. He is the living rule of faith, just as a yardstick is the rule of what is one yard.

Hence Canon Law provides for the prosecution of heretical bishops, but is silent about heretical popes, and silent about the unthinkable idea that a pope would promulgate heresy and evil laws, liturgy and disciplines. It cannot even foresee an entire hierarchy poisoned by heresy. Yet this is the reality before us, as mysterious as it is horrifying.

Consequently, there is no law governing our problem. It is impossible, therefore, to act legally, since there is no law.

All of the arguments which have been made concerning heretical popes — on both sides of the issue — have been based on Canon Law’s approach to heretics other than the pope, i.e., either laypeople, priests, or bishops. They are merely analogical arguments. Furthermore, they concern the personal heresy of a pope, and not someone who is teaching and imposing heresy. This is an entirely different crime. The law is silent about it.

¹ Now with DNA testing, not a few people have been exonerated of crimes for which they were condemned by juries in courts of law, and for which they spent decades in prison.