so should we burn Archbishop Dziwisz instead?

It has been widely reported over the weekend that Archbishop Stanislaw Dziwisz, who was authorized by John Paul to destroy his personal notes upon his death, has not in fact burned the late pope's notes. John Paul's last will and testament reads: "My personal notes are to be burned. I ask that Don Stanislaw oversees this and thank him for the collaboration and help so prolonged over the years and so comprehensive."

Dziwisz said about the notes that "None of it is fit to be burned. It is a great heritage, a huge treasure, great texts of a rich variety. All of it should be kept for posterity."

This prompted one reader to comment: "In any other jurisdiction where an executor acted in such a manner as the Archbishop, without any lawful authority (however noble his motives), the judge would probably put the executor to the flames."

So, for not following through with John Paul's wishes, should we instead burn Archbishop Dziwisz?

Well, there are only two points I'd like to make about this prima facie disobedience to the late pontiff's last will and testament by a man who was his very close aide and confidante.

First, this is perhaps indicative of the great influence that the Archbishop wielded during John Paul's pontificate, especially during his last years--profoundly frail and needing the assistance of aides. People generally do not act in a manner inconsistent with their past behavior. If Dziwisz saw fit to alter John Paul's expressed wish after his death, this is most likely not inconsistent with the kind of influence that John Paul might have rendered to Dziwisz during his lifetime. It betrays perhaps the kind of unfearful and close manner that the Archbishop had around the late pope. Therefore it is interesting to briefly look at the connection between the two men.

In his massive biography of John Paul entitled Witness To Hope, George Weigel describes the kind of relationship that the late pope and Dziwisz had: "The relationship between the two men is perhaps best described as that which every father wants from a son: love and duty without fear or sycophancy. Dziwisz brought complete loyalty, utter discretion, sharp judgment, a puckish sense of humor, and indefatigability to his job. He was by no means a carbon copy of Wojtyla."

"Non-sycophantic, unfearful, yet loyal," are noteworthy words when analyzing Dzwisz's decision not to carry through with the late pope's wishes. Here is a man who had a very close connection and relationship with John Paul, and with that vantage point and inside knowledge, the aide saw no disrespect, offense, and disobedience in his decision not to burn the personal notes. If the pope entrusted to this man a lot during his lifetime, perhaps even to the point of altering some of his own decisions at his advice, I presume the pope would have been persuaded to preserve his notes if it were to come from the counsel of a man whom he perhaps regarded like that of a son. This is speculative of course, but my point here is that Dziwisz's decision is another indication of his vast influence during the previous pontificate. So what we have here is another instance for future biographers of John Paul.

Now, what's the law's perspective on this? Many will say that when we deal with last wills and testaments, we are dealing with law, and therefore Dziwisz is bound by law to execute the pope's wishes. This is true. The Church is very mindful of this, as reflected in the Church's Canon Law. Canon 1301 §2 [paragraph 2] reads that the executor "can and must exercise vigilance, even through visitation, so that pious wills are fulfilled."

However, and I come to my second point, Canon 1310 §1 reads that "the ordinary [in this case executor] only for a just and necessary cause, can reduce, moderate, or commute the wills of the faithful for pious causes if the founder has expressly entrusted this power to him." Additionally §2 of the same article reads, "If through no fault of the administrators the fulfillment of the imposed obligations has become impossible [one can say that Dziwisz has seen the impossibility of burning the late pope's papers] because of diminished revenues or some other cause [in this case the cause of John Paul's candidacy to sainthood and of the spiritual benefit to us and to posterity of having John Paul's words from his notes], the ordinary can equitably lessen these obligations, after having heard those concerned." This article in Canon Law ends with the words, "In other cases, recourse is to be made to the Apostolic See."

Canon Law, especially Canon 1310 §2, therefore empowers the executor to alter the will's obligations, even if this power is not explicitly stated in the will. However, if the executor is to do so, he must consult those most concerned. As one commentator on this particular article has said, "Such alteration, which should be made by decrees, is to preserve as much as possible of the founder's intentions, is to be equitable, and is to take place only after the ordinary has consulted those concerned...Failure of the ordinary to consult would canonically invalidate the alteration of the pious will" (commentary by Robert T. Kennedy).

If Dziwisz had failed to consult, especially those relevant people in the Holy See, then his decision not to burn the papers breaks the law.

But it seems that the Archbishop has consulted his superiors and his decision was met with approval: this past weekend it was also reported that Pope Benedict has bestowed upon Dziwisz the title of archbishop of Krakow, John Paul's own former title. Dziwisz has been spared from the stake.