1. The statement issued by Curran and his associates after the publication of Humanae vitae contained this assertion: “The Encyclical is not an infallible teaching.” It went on to argue that documents of similar or even greater weight have been proven inadequate or even erroneous.
2. However, Curran and his associates did not consider whether the Catholic teaching reaffirmed by Humanae vitae might have been infallibly proposed prior to Paul VI’s inquiry. Instead, they merely assumed that the teaching had not been proposed infallibly and concluded that dissent from it would be licit in view of what they considered sufficient reasons.28
3. Some signatories of the statement issued by Curran and his associates subsequently published a defense in which they explained and sought to justify their dissent. Here the possibility of infallibility in the ordinary magisterium was admitted.29 But the authors went on to argue: “. . . those who defend the possibility of infallibility in teaching morality do not produce specific historical instances in which such teaching has been promulgated. According to the guidance of Canon 1223 [sic], No. 3, of the Code of Canon Law nothing is to be considered defined ‘nisi id manifesto [sic] constiterit’ (unless it is manifestly clear). There is no specific moral issue where this condition can be shown to obtain.”30 This argument clearly proceeded on the assumption that any infallible moral teaching would have to meet the conditions proper to infallibly defined teachings. This and similar arguments by other theologians overlooked the possibility that, though not defined, the moral norms which they rejected might have been infallibly proposed by the ordinary magisterium.
The relevant canon is 1323, not 1223. What is more important, the first section of the same canon requires that teachings proposed as divinely revealed by the universal and ordinary magisterium, as well as those solemnly defined, must be believed with divine and Catholic faith. This requirement is drawn, almost word for word, from Vatican I’s solemn teaching on the same matter (see DS 3011/1792).
4. Some episcopal statements issued after Humanae vitae, while by no means stating or even implying that the bishops who joined in them dissented from the encyclical’s teaching, discussed the possibility and the limits of licit dissent from authoritative teachings of the magisterium. In several cases, such statements proceeded directly from the nondefinitive character of Humanae vitae to the possibility of dissent.31 No hierarchy raised the question of whether the received Catholic teaching has been proposed infallibly by the ordinary magisterium, and so none took a position on this question. In consequence, although what some of the hierarchies said about dissent seems to have assumed that the received teaching is not infallible, there is no warrant for supposing that many bishops meant to take a position on this question, which they simply did not address.32
Probably the most important statement by a national hierarchy concerning dissent was one published not after Humanae vitae but before it, by the bishops of West Germany in 1967.33 By mid-1968 it had been widely disseminated; without doubt, it influenced virtually everything said about dissent in the episcopal statements after Humanae vitae. The German statement points out that teachings can be proposed infallibly by the ordinary magisterium, and that if they are, then there is no room for dissent. But it goes on to discuss “the possibility or the fact of error in nondefined [italics added] statements of doctrine on the part of the Church.” Here a vital distinction is overlooked.
The German bishops proceed to explain why it is necessary to teach and preach in ways not always infallible; in such cases, they say, the faithful are in the position of people who must follow a fallible professional judgment—for example, that of a statesman or a physician—because it is the best judgment they can obtain. (This point is sound as far as it goes, but the German bishops fail to clarify the relationship between teachings proposed noninfallibly and divine faith; they also confuse matters by their analogy between the magisterium and other responsible leaders or professional persons.)
The German bishops next exclude the preaching and teaching of dissenting opinions, but acknowledge the possibility that an individual with adequate theological knowledge could reach a dissenting view “in his private theory and practice.” (This admission need not go beyond the dissent admitted in chapter thirty-five. The difficulty, however, is that the German bishops do not make clear that in the moral field, at least, only a superior theological source could justify dissent.) They proceed to warn against subjectivism and rationalization, and they defend the authenticity of a person who submits his or her conscience with all docility to the Church’s teaching.
In sum, what the German bishops say is not false, but it is incomplete and somewhat confusing. On the account (in 35‑F) of teaching not proposed infallibly, one should not be surprised to find defects in the bishops’ teaching when they noninfallibly taught about teachings which are not infallibly proposed.
5. Until the end of Vatican II, no Catholic theologian denied the infallibility of the ordinary magisterium under conditions such as those articulated by the Council (see 35‑F). Many theologians clearly and forcefully defended the infallibility of the ordinary magisterium in moral matters.34 Furthermore, up to the time this is written, no critic has shown any serious flaw in the detailed argument set forth in an article published in 1978 by John C. Ford, S.J., and the present writer to demonstrate that the received Catholic teaching on contraception has been proposed by the ordinary magisterium in a manner which meets the conditions for infallible teaching articulated by Vatican II.35
About a decade before Humanae vitae, Karl Rahner, S.J., published a small book which included an essay entitled, “An Appeal to Conscience”; it is in a part of the book subtitled: “Dangers to Catholicism Today.”36 This essay on conscience is a response to situation ethics, which the Holy Office dealt with in 1956 (see DS 3918–21/—).
Responding to situation ethics, Rahner lays out received Catholic teaching on conscience and its formation. Conscience is the most immediate giver of moral norms; it must be followed even when in error. But one must form one’s conscience carefully and distinguish it from mere subjective inclination. “And so man has a duty to do everything he can to conform his conscience to the objective moral law, to inform himself and let himself be taught and make himself prepared to accept (how difficult this often is!) instruction from the word of God, the magisterium of the Church and every just authority in its own sphere.”37 Conscience does sometimes lead individuals to actions unique to themselves, and individuals need to accept personal and mature responsibility. But this maturity requires that one accept binding norms which are valid for human persons as such. Moreover, morality is essential to Christian life; the fulfillment of the commandments is not just a field for faith to manifest itself.
Furthermore, the Church teaches these commandments with divine authority exactly as she teaches the other “truths of the Faith,” either through her “ordinary” magisterium or through an act of her “extraordinary” magisterium in ex cathedra definitions of the Pope or a general council. But also through her ordinary magisterium, that is in the normal teaching of the Faith to the faithful in schools, sermons and all the other kinds of instruction. In the nature of the case this will be the normal way in which moral norms are taught, and definitions by Pope or general council the exception; but it is binding on the faithful in conscience just as the teaching through the extraordinary magisterium is.
Although clearer than others, Rahner’s defense of the infallibility of the ordinary magisterium articulated the common view of Catholic theologians at that time.
It is therefore quite untrue that only those moral norms for which there is a solemn definition (and these are criticized from all sides in the “world”) are binding in faith on the Christian as revealed by God, and must be accepted by him as the rule for his own behaviour; and of course it is equally untrue—and this is often unadmittedly expected—that the moral law preached by the Church must necessarily receive the assent (even if it is only theoretical) of the non-Christian world. When the whole Church in her everyday teaching does in fact teach a moral rule everywhere in the world as a commandment of God, she is preserved from error by the assistance of the Holy Ghost, and this rule is therefore really the will of God and is binding on the faithful in conscience, even before it has been expressly confirmed by a solemn definition.
A moral norm is by nature universal but, precisely as a universal law, is intended to be the rule for the individual case. And so when it is fully grasped and rightly understood and interpreted (that is, understood as the magisterium means it, not just as an individual thinks fit to interpret it), and bears on an individual case, then this unique individual concrete case is bound by the norm and obliged to abide by it. When, for example, the Church teaches that every directly induced abortion is morally wrong, that every sacramentally contracted and consummated marriage between two baptized persons is indissoluble, then this applies to every individual case quite regardless of the circumstances.38
28. Dissent, 25–26.
29. Ibid., 56.
30. Ibid., 63. Some of the dissenting theologians argued in the same way in independent works. See, for example, Daniel C. Maguire, “Morality and Magisterium,” in Readings in Moral Theology: No. 3, who admits the category of infallible, ordinary magisterium (36), yet proceeds to argue as if it did not exist (42). Bruno Schüller, S.J., “Remarks on the Authentic Teaching of the Magisterium of the Church,” in the same volume, 14–21, simply assumes that in its moral teaching the magisterium is not infallible.
31. Conferences of bishops which proceeded directly from the assumption of noninfallibility to consideration of dissent (in Horgan, ed., op. cit.): Austria, 61; Belgium, 65; Canada, 79; Scandinavia, 237–38; Switzerland, 259–60; United States, 276–77; West Germany, 306.
32. Among the few instances, the clearest examples are in the statements (cited in the preceding note) of the Austrian bishops (“Since the encyclical does not contain an infallible dogma . . .”), the Canadian bishops (“Since they are not denying any point of divine and Catholic faith . . .”), and the West German bishops (“a non-infallible doctrine of the Church’s magisterium . . .”). Even in these cases, the documents provide no evidence that the bishops considered and rejected the possibility that the doctrine has been infallibly proposed by the Church in its ordinary magisterium. Hence, those who made these statements cannot be said to have rejected this possibility which they very likely never considered. Joseph A. Komonchak, “Ordinary Papal Magisterium and Religious Assent,” in Readings in Moral Theology: No. 3, 90, said: “There is the possibility that some would maintain that the practical conclusions of Humanae Vitae are infallible not because of the encyclical but because of a constant tradition in the Church. Obviously, I have assumed throughout that the practical conclusions are not infallible. In 1964 Pope Paul VI, by speaking of a possible duty to reform the tradition, implied that the tradition to that point was not irreformable. Nothing in the subsequent discussion can be said to have strengthened the force of the tradition. And in Humanae Vitae itself, Paul’s quest for assent is built not upon the infallibility of the tradition or of his restatement of it, but upon the authority of the ordinary magisterium. This is also the assumption of the great majority of those bishops who have commented on the encyclical and its authoritative force.” Komonchak was mistaken in saying that Paul VI in 1964 spoke of a possible duty to reform the tradition; rather, he referred only to certain statements of Pius XII, as Vatican II correctly indicates by referring to “certain questions” (GS 51, official note 14). In June 1964, the Commission Set up by the Holy See to Study the Problems of Population, Family, and Birthrate, was asked to consider the precise question of the “pill”; eventually all but one or two of the theological periti voted negatively on the question: “Whether in the moral consideration of methods the use of the ‘pill’ constitutes a special problem?” See Henri de Riedmatten, O.P., “Rapport Final,” mimeograph, with a covering letter dated 27 June 1966, 8 and 18. Paul VI’s quest for assent in Humanae vitae should be gathered from the official text (60 AAS  481–503) which refers (501, n. 39) to the whole of Lumen gentium, 25: “AAS, 57 (1965), 29–31.” Moreover, note 39 is placed in Humanae vitae to include a reference to Vatican II’s teaching on the light of the Spirit, which is mentioned in Lumen gentium, 25, especially in respect to infallible teachings. In talking of the “tradition” and ignoring the infallibility of the ordinary magisterium, Komonchak confused the issue. Moreover, he merely asserted, not proved, that most bishops commenting on the encyclical assumed its teaching on contraception to be noninfallible; even if they did, their assumption on an issue they did not consider, which was being misrepresented at the time by some theologians, can hardly constitute authoritative teaching on the point.
33. The text of the relevant segment of the document is in Karl Rahner, S.J., Theological Investigations, vol. 14, Ecclesiology, Questions in the Church, The Church in the World, trans. David Bourke (New York: Seabury Press, 1976), 85–88. Rahner, in a very influential article published soon after the publication of Humanae vitae (Theological Investigations, vol. 11, Confrontations I, trans. David Bourke [New York: Seabury Press, 1974], 263–87), ignored the category of teachings infallibly proposed by the ordinary magisterium, and in quoting (267–70) from the German bishops’ letter of 1967 omitted from their remarks about dissent only the opening section in which they acknowledge this category. Thus Rahner was free to proceed (270) from the observation that Humanae vitae contains no ex cathedra definition to the conclusion that its teaching is in principle open to revision.
34. Some who defended Humanae vitae against dissent took the approach that even if not infallible, its teaching should be accepted as binding. See, for example, Austin Vaughan, “Msgr. Vaughan Answers Critics,” National Catholic Reporter, 11 September 1968; a fuller development of this case: James J. Mulligan, The Pope and the Theologians (Emmitsburg, Md.: Mount Saint Mary’s Seminary Press, 1968), 13–88. But others did make the case for infallibility. See, for example, Zalba, op. cit., 63–65, 93, 124–26, 130–32, and 179; La regulación de la natalidad (Madrid: B.A.C., 1968), 133–40; Joseph F. Costanzo, S.J., “Papal Magisterium and ‘Humanae Vitae,’ ” Thought, 44 (1969), 377–412, esp. 410, n. 9.
35. See John C. Ford, S.J., and Germain Grisez, “Contraception and the Infallibility of the Ordinary Magisterium,” Theological Studies, 39 (1978), 264–69. This argument was criticized by an article in the same issue: Joseph A. Komonchak, “Humanae Vitae and Its Reception,” 238–50. (Komonchak did not explicitly mention Ford-Grisez but had a year to study and reply to their article.) The heart of his reply is in the first full paragraph on 248; nothing else he says contradicts the Ford-Grisez thesis. Ford and Grisez had reserved the right to reply briefly in the same issue to Komonchak’s critique, and did so by adding one footnote to their article, 292, n. 73. The most pointed critique of Ford-Grisez: J. Piegsa, “Hat das ordentliche Lehramt zur Empfängnisregelung unfehlbar gesprochen?” Theologie der Gegenwart, 24.1 (1981), 33–41; ably answered: Rhaban Haacke, O.S.B., “Ein Widerlegungsversuch misslingt: Um das Lehramt und seine Aussage zur Empfángnisverhütung,” in Nicht Unfehlbar?, ed. Johannes Bökmann (Abensberg: Josef Kral, 1981), 43–57. F. J. Elizari, “The Ten Years of ‘Humanae Vitae,’ ” Theology Digest, 28 (1980), 33–34, digested from “A los diez años de ‘Humanae vitae’: Boletín bibliográfico,” Moralia: Revista de ciencias morales, 1 (1979), 239–42, raised five points. The first three were anticipated by Ford-Grisez, the fourth ignores their use of Noonan (which considerably reduces the need to provide data about the tradition), and the fifth is a question-begging argument based on the authority of theologians and the confusion of some episcopal conferences after Humanae vitae. Garth L. Hallett, S.J., “Contraception and Prescriptive Infallibility,” Theological Studies, 43 (1982), 629–50, tried to show that Catholic teaching on contraception (and, by implication, on all other disputed moral issues) could not possibly be proposed infallibly because, he claimed, it lacks any constant propositional content which could be true. His starting point was a theory of moral norms proposed by certain analytic philosophers, such as Kai Nielsen and R. M. Hare (632, n. 6), which renders their normativity (prescriptiveness) noncognitive and locates the propositional element in moral reflection elsewhere—for Hallett, in some reason for accepting and acting on the norm. Even this ground, in Hallett’s view, is subject to human choice; he asserted (634): “Criteria, however, are not made in heaven” and (636) “ethicians will have to furnish their own.” A version of this relativistic theory was criticized (4‑C). Many contemporary philosophers reject it, and Hallett provided no theological reason for taking it seriously. Nothing in Scripture or Church teaching supports the theory that moral norms are of themselves noncognitive; indeed, theological sources demand the contrary position, developed at length in chapter seven. Moreover, even if Hallett’s theory were sound, he only showed that theology had failed to provide a coherent theory of morality; he did not show that the Church’s teaching itself lacks a coherent general rationale for accepting and trying to live by the norms included in this teaching. In fact, faith does offer such a rationale: God as a wise and loving Father wishes us to shape our lives toward the building up of the goods of the kingdom in which we will find our own true fulfillment, and so he provides sound norms by revelation and the Church’s teaching; we are wise to follow these norms even if in some cases we do not entirely see the point in doing so. Finally, in this article Hallett, accepting relativism, treated all ethical theories, including hedonism and egoism as equally valid (634), yet hinted (639) at a preference for some sort of proportionalism. In a subsequent book, Christian Moral Reasoning: An Analytic Guide (Notre Dame and London: University of Notre Dame Press, 1983), Hallett opted (109–22) for proportionalism. However, he was reduced to intuitionism when he tried to answer the objection from noncommensurability by suggesting that one assign numbers to all relevant values and disvalues, and reach moral judgments by simple arithmetic. Hallett almost concealed the objection to which he was trying to reply, coming nearest to acknowledging the problem in one footnote reference (247, n. 40). Hallett’s method in this work was dialectical; he first surveyed (45–72) a variety of Christian judgments of various sorts (but ignored their distinctions), then claimed (73–105) that only proportionalism consistently covers the data. But though aware (113–14) of my moral theory, Hallett exempted himself from even considering it, on the ground that it supports traditional conclusions but not a traditional principle.
36. Karl Rahner, Nature and Grace: Dilemmas in the Modern Church (London: Sheed and Ward, 1963), 49–59.
37. Ibid., 50.
38. Ibid., 51–53. In view of Rahner’s evident, clear understanding of the infallibility of the ordinary magisterium in moral questions at the time he wrote this, one finds it hard to see how he later managed to overlook this category of teaching and to proceed as if it did not exist.