the participation of the laity in the governance of the church

7/24/2019 The Participation of the Laity in the Governance of the Church

1/32

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2/32

4

r

tlat

an autbor1ty of the

'talure of Kuttner

beJ1,eves the

is5ue is

secondary to

egaJ &velopm.L11t

.

3

Ir1

t ~

prese

nt 5tudy

1 pr

o

pose to explore

a

compr

om

ise reached in a

&pute

bated during the drafting of

the code:

the participation by lay

perwru in the governance

of

the Church_ I propose to do this exploration in

three itage&. The

fir

r t is to di sc1JSS the issue as it surfaced in the course of

rlr'1fting

the

new

c o d e ~

TI1e

second

is

to

indicate the comprom

ise

whi

ch

res lted trom this

deb'ate

and to explore tne possible involvement of

lay

persoru, in the power ofgovernance according to the new code. The third

stage will

be

to

sugge

st some issues which remain to be stud i

ed

.

DRAFTING

THE

NEW COD E

1.

Review

of

the D

ra

fts

a. The

involvement

of

lay pe

rsons ia the

gove

rnan

ce

of

the

Church

particularly at the Jevel of church office , was ruled out in the 1917 code.

Only

clergy

under

that

code could po

ssess

ecclesiastical

power,

whether of

o r d e r ~ or jurisdiction (c. 118); possess

io

n of such power

was

essential to

holding an

ecclesiastical office in the sense commonly

used

in the code

(c.

145

).

b. The possibility in law

of

lay persons

ass

uming a greater role in the

inner

life

of

the

Church

fir

st appeared

in

the

drafting

pr

oces.5

for

the

Lex

Ecclesite Fundamental

is. The initial

vers

ions of this document affirmed that

lay persons

were 'habiles

7

' for

ecclesiastical functions munera congruous

with their oondition.

4

They could help the

bi

shop in

hi

s gove

rn

ance

3

See

Stephan KU1rNEk,

' 'Betrachtungen zur

Systematik

eines

neuen Codex

I

uris

C a n o n i c . i in

Ex


3/32

PARf lCJP ION OF THE LAITY 419

function , fulfilling what they were competent to do in accord with the

canon .

5

In developing a revised version of the

LEF

in 1976 the

ccetu

s

pe

c

ifi

ed that this participation

in

governance might include various

office

s

\Vhi

ch

could be given lay persons according to the law, although a query

was sent to the Congregation for the Doctrine of the Faith

to

determine

what tl1ese might be.

6

The Congregation responded that given the present

state of doctrinal investigations on this question

it

did not want to

give

a

precise

and exact response. Nevertheless, it did provide certain practical

cat1tions

about drafting the code so that it would not foreclose legitimate

discussions.

7

Apparently the Code Commission felt the response

from

the

Congregation did not require any change in wording, for the proposed

text

in

1980 was essentially the same as the 1976 version of

this

canon.

8

As

you

k11ow the

LEF was

never promulgated. What

is

interesting

is

that,

at

least in the Communicationes reports, our issue does not seem to

have

surfaced much discussion in the

LEF

cretus. The issue did come up

as

to

how

much of the bishops governance of a diocese could be delegated,

and whether it could be delegated to lay persons; but the reports do not

indicate

a heated debate, nor do they indicate the response

from

the

CDF

raised many concerns.

c.

The 1977 schema

De Populo Dei

was

similarly vague. It spoke of

lay

persons

being capable (habiles) of fulfilling those ecclesiastical offices

and

munera which they are able to fulfill according to law.

9

The canon did

not

go on

to

specify further what those might be. The same

vagueness was

present

in the revised version which appeared in the 1980 schema for the

code

1

and

is

now

in

the promulgated text

as

canon 228, l.


4/32

420

STUDIA C ICA

It

may

be the text remained general enough and did not

a d d r ~ the

specific issue of what degree of participation in the governance of the

Church was involved in such offices. In any event, not much discussion is

reported. But once the drafters turned to specific offices which laity might

hold, and to the question of exercising the power of governance as such the

issue became more heated.

d.

The debate began in earnest with the .Practical question

of

the

admission of

lay

men as judges in church tribunals. The

1976

schema on

procedures proposed to continue the provisions of the motu proprio

Causas

matrimoniales.

These provisions had themselves been criticized

already

s

being contrary to the council.

12

So when the cretus met to discuss the

comments

on

the schema, doubts were expressed about the

possibility

of

conferring jurisdiction on lay persons and permitting them to serve as

judges. These were resolved

for

a majority of the cretus (7 voted

in

favor of

the canon, 2 against

it)

by arguments taken from history and from approved

theologians. The precedent of

Ca

.usas matnmonial

es

was

clearly

in

mind

as

well,

both for permitting lay men to serve .as judges and for

excluding

women

from this office.13

A slightly stronger version of the canon, permitting lay men

to

be

constituted judges per1nanently rather than just for individual collegiate

tribunals, appeared

in

the

1980

schema (

c.

1373

2).

When

this

version

was submitted to the members of the Code Commission for their comments

several

were pleased with it, although not happy

with

the

exclusion

of

women from this office; others objected because admission of lay

persons

to

the office of judge was giving them an exercise of sacred power

and

only

a person

in

sacred orders could do that.

14

e. The major objections to the canon on lay judges were made

in the


5/32

.

>

t

JlAJt11 tflA l1

0N

Of

'flfE LAITY

42

l) a11C>ll

96 of

the first draft

on General

Norms pro

vi

ded for

p:.i

r

ti

\i

1lati

o

t1

in

the exercise

o.f

the

power

of governance

by

those who

were

11ot

ordai11ccl

1

in

so

far

as that power was not based

in

sacred orders. Such

~ r c i s c

w

as

lirnited to th

c>se

situations in

which the supreme authority

of

tl1e l1urc

ll

pe

rmitted

it.

15

There i

no published report of

the

discll ions of

th

' '


6/32

'

\ \

\

l

n

tis

19

.and the

full text

of

the

~ ' ~ u n d material for the commi

s.5ion

ti

. ter

) Prefect of

the Vatican

...

~

a 1 \ :

'11i\.ersit canon law faculty to

,,

..

....... . \ \& \ 'f

ll

C\V

ha

t re\

1

ised versions

of

th

ese

: .:

. h

ro

1nments

to.gether

with

a

\.\

'

\\

\ '\

\

..

\ \ ~

.

\\ .

\t,

\ \ \

n u

tfle

secretariat

were

distributed

..

'f tl1

I981

session

and

f

orrned the

:ussi l at the meet.

ng

.

\

'

'\..'ioO\

t :\ 11

t

admit that lay J>C'TSOns could

t'

tl

t \\

r

\.

t'

i"l

e m a n c e

but

to drop

th

e

..

. " it

t 13c

n,

l1I . f ttte po er

of

governance

\

' t

it

a pea.

r

ed The

pos.s

ibiiity of

~ \ t ;J .

\

\

\ ,'\ \

'"._1 "t.

he

canons in

question,

let

th" a . .meot.

~

ma.y help to

''

t

\ '

' ' t \

~ t

\ t

' '

\l t

..' - ~ -

'

, . .

'\

\ t ' \ ,, ,

c

.

"l

.::&t'Jt.A U J L u ~ a . be conside

red

to go

...

11

i

e fi_t;

prare

?

"'

~ l l ~ the

1

0

positions the

-

.

1

at

t

e outset

t h

~

~ ~ ' in

"

ous

pan of

the

:

..

erl in the C.ode

-. } re m GtmW>-

a plicitl)' by

he

WO

-


7/32

23

he

Gemia1

1

Positio11

a. Funda1ner1tall

y, their point is

this.

Despite

a history

of the

oonfusi-On

f ; . u l a r and sacred

power

in

the

Church the Second Vatican

1

Comtcil has

brought the

hu

rcb

to a clear position of

rooting

all

eo::lesiasticaJ

pou-er

in

the sa

rame11ta

l n.ction of h r i s t

and specificall

.Y

n

the

sacrament

ofomen.

ince the

cour1cil

tl

ere

is

no

longer

a

u ~ t i o n

of

two distinct

poweJS

in

die

h u ~ h - t e po\ver of orders

and

the power of jurisdiciion. There is only

Otte power, ''sacred power,'' and

that

power is the power .of Cbrit p:resent

i1l

the hurch through the sa

.crament

.of

orders.

Tberefore it is nonsense to speak of a power which

is

oot rooted

in

sacred

orders,

uch as the

draft

canon

on

lay

participation

in the

pov.'"er

of

,

go

emanQ

would have done. Moreover it is an .

aberration

to permit

fa}

'

pe ns to erve as judges in ecclesiastical trials, for such u ~ do

~

the

pourg, Switzerland: Editions n i v ~ I l

);

J. kn:ttS

0.1NE0, The Po\\> er of Jurisdiction : Empowerment for Chun:b F u n c t i a t ? : ~

ar.d

~ c t from the Power of Orders. TM Juris. 39 (1979), 1 3-219; Join 1M. ff

l-a.

..Another Look at y Jurisdiction. The Juris/., 41 ( 1981 ), 5 9 - 8 0

Edwml

J. w ~

''

Lay

Participatioo in the Apostolate

of the Hierarchy, . The JJU'81, .;1

( I 1).

:Ml- ;

A.

MAR

Q

'

ES.

..

Funcion pastoral y poder en

la

Iglesia,

.

u s ~

15

( I'll)),.

159-1

;

rban

"v \RRErt.

..

Potestas

vica.ria

E c d e s i ~ Evo1utio historia oot'lC.'eplT..JS

:.:pc

attenra doctrina cooalii Vaticani II

," Periodica ,

60 (

1971 ).

414-486;

J J. RVA'- ...

f u

Separation of 'Ordo' an.d '1urisdictio' in

its

S:trucrural-Doariml

O a ~ r


8/32

4 4

STUDIA CA 0 ICA

on the positions developed

in

Vatican II, particularly

concerning the so

u

rce

of a bishop s power. While the interventions themsel

ves

are

relati

vely brief,

they

draw

on considerable research done since the

council,

some

of

it by

noted German-speaking canonists.

Briefly

, let

me

trace the

main elements of

the

argument.

b. It really comes down to the nature of power in the Ch

ur

ch . The

way

in

which that power has been understood has gone through a

remarkable history, one that marks our understanding of it today. To g

et

at

a true understanding of what power is in

the

Church, it

is necessa

,ry t free it

from

some of

the

aberrations which have crept in during this history.

I) For the first millenium, power in the Church

was

one

sacred

reality,

conferred with the office

for

which one was ordained through the

system of

relative ordination. The Church s power was distinct from that of the State,

although under the system of Christendom the power of both

Church

and

State were considered

to

derive ultimately from God. Around the

eginning

of the thirteenth century several major shifts took place. The

syste

m of

relative ordination gave way to the system

we

are familiar with toda

y,

absolute ordination. Debates over simoniacal clergy, lay investiture, and

heretical or schismatic bishops led to a distinction etween the po

wer of

orders (which inhered in the person and came with ordination),

and

the

power of jurisdiction (which was located in the office, came

with the

office,

and could be lost with the office).

2 The

process

of Roman c e n t r l i ~ t i o n gradually separated

jurisdiction

from orders to such an extent that the power of jurisdiction was said to

derive from the pope, while that of orders came through ordination. Th

e

powers were different in their source.


9/32

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J t ' I I N

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lf t It

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2

} , t iltJt .

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ijtl

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11

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t

tl1 R

n

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r of

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d

ers

is

t )tt

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1 11

tt11tlllll

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f 1111

th

J1 w r f

L1ri

s

di

tion s

,., , ,1

t'l4( t-

1 t .

fl

1t1

'll

in ifs ' n nam .

~ tit 1 t7 ' t'c911 t d

J

O\l r in tl1r ...lturchw

hi

erarcl1ical

('' ~ ,t

l1 t l ~ t

'll \l1 , ) r ( j j J

g

1

t11 pc)"'

r

of

orders nn l the

power

c)f

t

\l

,

1

1\

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\l&

l l t ~ l t

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Ill

1

)

I

(

'

llCJ

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di

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Jl

co

t1ld

be

he

ld

and

~ f

tlil

vt

1Jtt

,

Jltl

y

t) t' t rr

l

rH1

A n

ly nilmec

J bis

l1op,

for example,

'.;.

' )\t.


10/32

t l ll I N N

IC 'J

\

I i r '( t

I

,.,,,,,, a i Jtt

ir

th

f -0

11

e

of

1

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hurch .

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ta

\411

,

11

1t

11t

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:

11

rt

#

mnti

'

und

n d

i n g

of

power

in

t

l1 \ l l 1 t, ~ 'l

v

1ta i

1

I",, r.

r

(1l d

i

11

.

a

ron1 nta

I con

secrati

on

l t l

lt

, l

n

111u11i

n. If 11

w

r t admit

anoth

er

l l i . >f , , 1\{ t i , 1 tltit tt t l i ti ., l p w r r rci ed by per ns

w

l1,

l1

,l

l>

t .,

'cl

,,

d.

tl1

,

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m ,. uld

b

.) weak

e

ned

and

the

\\

'

l

ll I

tt

ly t i l l l

ir

t

u kir

1d

f ivil

under

tand

ng of its

w

l\

\,

lt

tt\ 111

tl1

l

ll

Jl .i" 11

r

l ti

v

whi h i pr

p r

to

the hur

ch

t l l t

la

.

1

}

l

n

I

.,,

,

J

J

h

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)t

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ut'

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22

It h Id tilt t1 1

tw

() tlil' tll 1

w

i11 tt1 hurch distinct in o

rigin

,

pt1 1->

os t


11/32

PA

Tl

CIPAT O OF THE LAITY

42

7

o longer is it enough to have received an

office

o.f jurisdiction or the

power of governance to be a cleric ; one must now also have been ordained

at least a deacon. Given the traditional doctrine

th

at o

nl

y cl

erics

are

ca

pa

ble

.of holding power in the Church,

3

some have been led by this chang.e n

what constitutes the clerical state to conclude that only those with sacred

orders are capable of the power of governance. This has enco

urag

ed the

confusion concerning

munera

and

potestas

b. Stickler faults the German approach on both its major

premi

ses,

history and the understanding of Vatican II.

As

an historian

he

r

eci

tes a

number of factual instances to prove

his

point. In reference to

the

council

be foc

uses

more on rebutting the assertions of the other

school than

n

developing a coherent position of his own.

l ) With regard to the tradition of the Church, Stickler readily admits

:

h

ere was no developed doctrine on the natu.re and immediate source of

sacred power, or even a clear terminology to talk about

this.

Even Saint

Augustine, faced with problems of schismatic and heretical clergy

or

unworthy ministers in the Church, did not develop a consistent theo ry but

distinguished between the existence of the sacrament of orders

and

its

exerctSe.

a. Stickler also readily admits that

in

the early

Church

there

was no

distinction between the granting of an office and

the

granting

of

sacred

or

ders (the collatio officii and the collatio ordinis sacri ). But he argues

that there was a distinction between the designation for

an office

and

or

dination, the

frrst

often being provided by election. In effect, there was

already in practice a distinction between orders and ju.

risdiction.

For example, even with relative ordination, a person could be

named


12/32

[

ftl , ,

l '

\1 \ l t \ ' '' ll'

1i )\ ){)

l1tl {

I \

.

> t i ~ - ~

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.

l

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lt

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itlll >t \

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.

'b. 'l

t\

tllt' l\

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.,, '

t tw .,\ t > r t l l ~ 1 : \ttd ju1isw ti t

thei:ero

titt\ s t >ltt tt\ti l>\ >li ti

1t\

o t

th

t ii

{lf

ttict. W t:t1 th t1\

'di

nn

..:.. ~ . . ; ; ~ l W l

ltt

lt\V

~ t i t

Ul

' X

>l\t

t

>V

~

. .

th

t1 f tictll b i t l t > p ~

.. th

h d

th

ti

n uen

su 11

bish

lp >r d n i n ~ n_l_ th li

d v l >p t h l positi t1 th

t

th ~ ~ ~

pt;fS)O nod

ulw1

c n n i n ~ Th

to

th

otli

\11d uld

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ab \

ut

ordi11ttti n cm1

t

..

e o n ,

.,.'*

-

'

l ' - ~

m ~

-

jt1risdi tio11 could not be ~ r c e r i C J oo tb ut the 'nest: ' mg

QA.

~ - -

(

otfi

;e

or de\egati

n).

Tt1' p )ition w

th

n th t n pers. n

uld retti

pow

T >f juri

dicti n that went

~ i t h

it.

~

t h

ut

t h e

~

orders;

but

that the po

n

f

the

ffi '

n

t

rompl enm ~

corr pondir1g r d e ~ ere received. The anal ID. vf the d i l l a e r ~

a

ratun1

tUld a rutum-et-c

n

u m m a t \ a m

mania2e \lt

t ~ ~

~

-

tickler \ises several papal

exan1plcs l

make bis

poinL

Gr. _


13/32

adition of the Church, nor could it deny the divine plan

for

the Church

oreover, it never said what the other school claims it said concemini

acred

power. It did speak of the ''munera'' or

functions

of

teaching

nctifying

and ruling coming with episcopal ordination, but

it

specifica

ll)

ed the term

''munera'' rather than ''potestates''

to

indicate

they are

not tbt

.me.

A furthe

r juridical determination is needed

for

a ''munus''

to

becomt

''potestas. Finally, the council specifically affmned that it

did

not

want

tc

~ l v

issues

which

are

still

open to theological debate.

24

He

readily

admits the desirability of uniting orders and jurisdiction Hi

e exercise

of pastoral ministry, especially

by

bishops, but

this union

doo

t require the unity or unicity of these two powers, not does it require

nial

of

the

diversity

of their natures. Rather,

it

is

seeking

a unicity of

tht

tive subject of power, although that one subject may hold two pow.ers.

The debate then turns technical. Rather than bore you with the

d e t i l s

t

me

just sketch the key points. The first

is the

question of exercisin.

cred

power

without being an

office

holder; Stickler

faults

the other sch.

oo

>r failing to

recognize

the role of delegated power. As to the exercise o

by

lay

persons, or those not

in

sacred orders, he argues tha

cred

orders

has

not been required

in

the past, but clerical state

was. Now

~ t

sacred

orders

and clerical state are the same (clerical status

coming

witb

dination to

he

diaconate), the new code

is

merely proposing to continue

h t was formerly

possible

for persons who did not yet have sacred orders

me

tonsured and

some

(historically, at

least) not. He adduces

a number

oJ

amples

of

this,

ranging

from

religious superiors and

Abbesses

to

lay

vocates and defenders in the Church. There

is

also

a debate over the


14/32

4 0

'tuli'\ l ' 1 U

o how

tl1

c

u r c \ol

l, ' ' ' t

w(

t

t

'

'l

t

jurisdic

ti

on, ev n thottgl1 tt1 s ar \ltl

1

~ l t t i ,\ ltlll\

no

rm

a

ll

y exerci '

d

by

the

sn

1n

~ l i c

h .., t f

Two

p o

rnauc by ll yrr l\ JC W

1

( )f j\it

The second point Bey r m

1

1k

"S

i

tt tn

{)

I

''''t'''\ c

Jtl

' ' '

't

l\ t

tt\At

tlh

power of

go

vernance

h

as

b

n '

nd

ti

ll

i,

x '

i

hy

v

t

tl\ \

''t'l

'''

t\h

Church wh o do not have the pow r

c>

I 1d as. 1t\ \ ~

t'

1

t l t t '

situations where sacred

mir1i

ster ' ar 11

ki

1

1

ligi ) -

''ll

' ' ' ' '

, (' V

t\ttt\

ordained (as

in

lay institut

es

of in

r1

c>r

W(>

tt'

) i t

t)

()W ' i't

,\

''

exercising an authority rising from the I si'' 1 111 i i l\ 'JI

t.l

\ ,,, ll\ \\t A&\tl

e

xt

ending to

th

e

fun

c

ti

ons

of

tea hin , ,

11

tit

yi

1l

g

~ 1 t\ t\ .'

1

4. Some Comme

nts

Let

me

co

mm

ent a moment

on

the tw

o J

>()Si

t

iun

s

l

v

.

'l,

t

\

First I want to point out the tw dif crent 1t1

e

r\tll1 ti wiii ''' \\ntl ltl tt\

two p

os

iti

ons; ne

xt

I would like

to su

gge

1

t

wh

at I

u11d

1. lstncl V tt t t\ lt '' l

say on

thi

s score.

a.

At Vati

can 11 several peo ple remarked

l)

t1 tll tw 11 \

lllnlilt

,,.

, \\

were at work.

It

was not so much tt

qlte

til)t1

>

t l

Wf>

c:,Jt\p. )t t\ \ \ '\l

\

clearly

on

one s

ide

of every

issue and

others

c\

cr rly

(lll t \1c ( Pl 1 1l i l

PA.RTIClPATIO t OF THE


15/32

LAITY

4 l

Bernard Lonergan. as classicist and b i s t o r i c a l m i n d e d n ~

9

I think the

two positions on our is.5ue give a good illustration of these diffe1ent outlooks

at

work.

For example, in the app.roacb to history, there are two different

mentalities being expressed. The Gern1ans are attempting

to discover

the

underlying concepts which emerged

in

the flow of history, became lost

for

various reasons, and now have emerged again. The Roman school

appears

to begin with a sense that certain timeless, correct concepts are

always

present, and then goes on to uncover evidence of them in every age even

though the people at that time were not conscious of these

truths.

Again, the German position admits growth and change within the

Church, and even the fact that for long periods of church history,

for

very

practical reasons, the true understanding of power in the Church

was lost

from mind and a civil rather than religious concept held s

way.

The Roman.

position cannot accept that the Church would have erred in

what

they

consider so essential a matter, and point to the assurance of the continued

help of the Holy Spirit as justification for their view.

A final point on how they see history relat

es

to the papal

role

in

jurisdiction. The Roman school sees from the earliest ages the granting of

jurisdiction by the pope, at least tacitly, and therefore the c o r r e c t n ~ of their

theory that jurisdiction devolves ultimately through the pope. The Germans

discern a variety of approaches, only gradually resulting

in

the centralization

whereby jurisdiction descends from the papacy.

These two mentalities are also evident in how they evaluate Vatican II.

The council was a ''pastoral'' council, by which

so

me meant it dealt with

the core of what the Church

is

about and others meant a momentary

concession to the evils of our times but not any sort of theologically or


16/32

43

ri .

i

m.

fhe

Germa o .ect to

a .a

:g

v rning power

for it

would ma e

t l ~

tr

ul

lai

ty.

b.

Per

mit

me three

personal OOu

U,..l.M..U.

r lly did y. First, the council

papal

-e

p

iscopal

relations. Jo terms

rea

ll

y

d

ea

lin

g

wi

th

the

source of

emphasize

that

the b hop

is

no a .

hrist

(

LG

27

). Therefore

it

rooled

d i r ~ c

sacramental relationship with

_,,_

muruon.

It seems to me to be carrying the

council

itself

went,

if

one were

to

make a

to all power in the Church unless one

power. That would

be

to

ignore the

o o ~ ~ a a

are themselv

es

a so.urce of

obligatioL...

meaning of the term, pow.er) io l

Second, the council presented a

ur.s, :

only

a

typological

description .of

la

what a lay

person

does typically

n

..

. L E

.

cleric does typically (inv.olvement in

claiming

these

were

hard

and .fast

typological

understanding

t

he b y

the council did provide for

partioipati

Church

, whether s

upp

lying here

-

..

-


17/32

PARTICIPAT ION OF Ti ff lAJTY

4

PROVISIONS OF THE

NEW

CODE

The

issue was c

learly joined for the Code Commiss ion. It 1w been

reported

inf

o

rmally

that

by

a

vote

of 52 out

of 63 the commiss

ion me

mber

voted

to

permit

the exercise

of

th

e power

of

governance by

J

ay

per

so

ns

,

including lay judges. The only chan

ge

in

the dis

put

ed canons was the

deletion

of reference to

''power

of governance

r

ooted in sacred o

rde

.rs,''

itself

a

novel concept and

one

which

was

difficu

lt

to

define in

practice.

1.

Canons 1421

2

and

274

The

final texts s

how

some

intere

sting changes as a

re

s

ult of

the

review

of

the canons by the pope

with

the

team

of

advisors

he

put together

for th

is

purpose.

The canon

on lay

judges

(c. 1421 ,

2)

has

dro

pp

ed

the

restriction

to males

,

so that any competent lay person, man

or

woman

,

may be

considered.

The canon on

offices

restricted

to clerics (c. 274, 1) remains

the same, with

the deletion of the

phrase ''ordine sacro innixa'' which

qualified

the

power

of governance.

2 Canon

129 2

The canon on the power

of governance

shows quite clearly

the

effects

of compromise (

c.

129).

It now consists in two

sections.

The frrst deals with

clergy; the second addresses the involvement

of

laity. Prescinding from

some

of the fascinating issues

touched

on

in

the

first section,

let me

concentrate on

the

second, which is to

the point of our

disc

uss

ion.

Lay members of Christ's faithful, it is said, can cooperate in

the

exercise of this power in

accordance

with the provisions of law.

What

do


18/32

witl1

1

ll ( hr '

tiar1

,

atholic o,r not, while

canon 205 provides

the

crjter

ia

w

J r by

1t1

c Chri

ianb

who are Roman Catho

li

cs can

be

determined.

c dis

tin -11.ion becomes

interesting

when qualification

s

for o

ffi

ce are

examined . anon 149, 1 requires that an

office

holder be '' in EccJesire

oomm n i < J n ~ : 0 001;

tbi mean

full co

mmunion? The provisions concernin

g

the los ot

office do

not

reso

,lve this

questions; loss

can occur because of

lap:;e from the C

atholic

faith

or

aut) the

communion of the

Church (c. 9

1, 2).

At

times, the canons specify

full communion as

a

definit

e

qualification.; e,

g,, or member

s of

diocesa

n

pastoral

councils (c.

512,

1

,

r

o b.e an

advocate in

chur

ch

courts

unless the

bishop

makes an exception

in

individual

c ~ e s

(c.

1483

),

Does this mean

that

in other

s

ituation

s

a

b.

aptized n o n ~ t h o l i c might be given an office if the person had all the

requisites for

the pom7

This

might apply, for example,

to the

diocesa

n

fin 1nce

o c e wh

om

the law requires to be skilled in

financial

affairs nd

h

ones

t, but

n,ot

necessarily

in full communion

(c

. 494,

1

.

However

,

her

e

we

arc

touching on,

a very complicated

question,

namely

the

extent to whi

ch

non ..,Cath

o

lics,

though n

1

ot bound

by the code

(

c.

11

), may benefit from it,

and the extent to which this permits church autorities

the

discretion to

inv

olve

them in various church activities. That is a topic for another

study

altogetht:r

,

and

we must

return to our theme.

b, ' Cooperate in the exercise of the power of governance'' is the key

element. What

does

~

c o o p e r

t e ~

mean

here? In the code, ~ c o o p e r a t i o n is

sometimes

used

to refer to coordination of efforts.

34

At

other times, it

refer

s

to

d.irect

participation in

the

wo

Tk

of

another.

This

can

be

the

s

exual

o o o p t . ~ a

o

n

needed

to procreate

children (c. l

096,

I)

or the criminal


19/32

\

\

\

.

...

I

.

J

1

PARTICIPATlO

OF THE

LAITY

members of the Church cooperate in the works proper t ~

~ i

ett

bishops cooperating with the Roman Pontiff, or

priests and

cooperating with the diocesa.n bishop, with the parish p1iest, or \iM-..i otl l

er

specific works

in

the Church.

35

Cooperation takes on an

evaJ

~ ~

technical sense when used of works

in

a diocese in support

of

me

(c.

791

), works which are ultimately subj:ect tosupervisiun by the pope , - r 'd

college

of bishops (

c.

782,

I

).

What it means to 'cooperate , therefor


20/32

r u

li\

C'Ai ICA

of a11oth r (vicarious) or it can be

delegated (granted

to a p r s o ~

but

n

ot

by

means of

an

office) (

c.

131

).

An

ordinary

is

presumed. to have all the power

of

the office;

for

each

office the obligations and rights proper to that

office

ar.e to be clearly set

fortl1

(c.

145

, 2). The law presumes that when people do something

in

virtue of their

office,

they are entitled to do

t

Delegation, on the ot

he

r

hand does not have such a presumption with

it;

the person who

has

been

delegated must prove the delegation (c. 131 , 3) and is limited to the

mandate

for

the validity of what is done in virtue

of

delegation (

c.

133).

Delegation can be for all cases and then. it

is

interpreted broadly the way

ordinary power

is

to

be

interpreted. Otherwise

it

must be interpreted strictly,

although such strict interpretation must always include as well whatev

er

is

nece ary to exercise the power (c.

138).

''Cooperation'' in the power

of

governance,

it

appears, can

be

the

cooperation of a vicar with the proper ordinary,

or

that of a delegate

with

any kind of ordinary.

2) The new code indicates the power of governance is distinguish

ed

into legislative, executive and judicial (c. 135 , I

).

Normally all of

this

is

exercised

by

the same agents, whether it

be

the

pope

or college of

bishops

for

the Church universal, or the diocesan bishop within the diocese. Usually

they do this with the cooperation of others, some

of

whom are

ordinari

es

(vicars) and others of whom are delegates. Not all

of

this. governing

power

can

be

shared, however,

for

the code makes specific provision

for each type

of power of governance.

To

determine what

c o o p e r a t i o n , ~

in

the

power

of

governance means according to this scheme

of

things, especially for la

y


21/32

I

PARTICIPATION OF

TH

E LAITY

437

diocesan

synod,

38

have the right to speak there.

This

is

consultative

vote

or

''voice. The final decision of the legislative body (the deliberative vote) s

reserved

by law

to

bishops in particular councils and

synods

; it is left to the

determination of supreme authority

to

decide who

in

addition

to bishops

may

exercise deliberative vote

in

ecumenical

council.

39

Clearly the lay persons called

to these legislative

bodies ''cooperate''

in

the

exercise of the power of governance, at least

by the

exercise of a

consultative vote. Those with deliberative vote remain the principal agents.

Having a consultative vote, however,

is no mean

role, for the process of

decision making

relies heavily

on

the consultative process for effectiveness.

40

The

new

code even highlights the possibility for

lay

involvement in these

bodies as

one

of

the

obligations

and

rights

of

Christian

lay

persons

(

c.

228,

2).

Do

they

also exercise an office at

such

events? An

ecclesiastical

office

in

the new code is

much

the

same as

an office in the wide sense in the old

code

c.

145

in both

codes).

It is any ''munus'' which

by

divine or

ecclesiastical disposition

is

established

in

a stable manner

to further

a

spiritual

purpose.

4

The

function

of

those invited to

a

council

is

constituted

in

a stable manner by

law,

42

even though it

is

not exercised in an

ongoing

fashion but only

when

the councils meet. If the position of a

diocesan

administrator is an office, however, and is filled and exercised

only

for

those

rare times when the diocesan see is vacant cc. 421-430), could it

not

also

be

true

that members of

an

ecumenical or particular council, or of a

diocesan

synod,

hold

an

ecclesiastical

office for

the

duration of that bod

y?

If

so, this could be

an

example of

lay

persons holding

an office which

invol

ves

the

exercise

of the power of governance with at least a consultative vote, a

possible contradiction with c. 274, 1.

b. Judicial authority

is

exercised in virtue of office

by

the judicial

vicar, his

adjutant,

and

the judges.

It

cannot

be

delegated except

to

carry out

38

All

of these are

li

sted as legisla tive bodies in the law : cc. 337,

l and 341

>

l for

an

438

STUDJ CA 0 I

CA


22/32

acts

preparatory to a decree or decision

(c. 135 3)

. Lay persons

wh

o are

appointed

to

the office of judge (c. 1421

,

2) cooperate in

the e

er ise of

judicial power not through delegation,

but

in

virtue

of

an

office

for

wh

ose

exercise the power of governance

is

required. This is

in evident

co

ntradiction

with c. 274, 1

as

it now stands.

c. Executive power is exercised by ordinaries in

their

own

nrun

through vicars, or through delegation. Vicars general

and

episcopal

vic.ars

are to be priests (c. 478,

1); the cooperation of lay

Christi

,

an faithfuJ

in

executive power of governance cannot

e

through

this office. w

executive power of governance can

be

delegated, and

this

can be either for

all acts or

for

single acts. Delegated executive power

is

not

attac

hed

to

an

office, but

is

given to a determined person (c. 131 , 1 . It is an example of

how lay persons clearly can cooperate

in

the exercise of

the

power of

governance, for the office holder who issues the

delegation

remains the

principal agent.

Let

me

explore this example in greater detail,

for

it

b

as

som

interesting possibilities. The identity of the person who receives delegated

power

can

be established in several

ways,

including the post which

on

holds

in

the Church. So, an office could

be

established

whi

ch has attached

to it, in

addition

to

the powers of the

office,

other

delegated

powers,

even

in

the

form

of habitual faculties which

will

be passed o.n

to

the

ne

t

pe

rso

n

who holds that office

(c. 132).

In North America this

has

been the usual

arrangement for diocesan chancellors who, in law , are notari and

archivists. In our practice, however, they have enjoyed

by

habitual

faculties

the

powers which

the

law

gives

to

vicars

general

in

virtu

e of

their

offi '

The office of chancellor itself does not require the exercise of these p\vers ;


23/32

P RTICIP TION OF TH E LA JTY

439

he

wishes

,

respecting the rather bare minimum establ

ished

in

the

code.

44

If

he organ izes the offices on some basis other than episcopal vicars, and gives

by

habitual faculties to the various offices the delegated power to carry on

the daily work of the diocese, could these offices be filled by lay persons?

While vicars general and episcopal must be priests ( c. 478, I) and are

local

ordinaries

c.

134,

2), and so the power they exercise is

in

virtue of

their office, others as delegates could exercise similar power not in virtue of

their office but in virtue of faculties. Technically this would not

be

in

coollict with c. 274, I, which considers only ordinary power (that which

comes with an office), not delegated power.

The code also recognizes a variety of consultative bodies

in

the exercise

of executive power. Some of these may, or even must, involve lay persons

who

thereby are cooperating in the exercise of executive power of

go

vernance. For example, diocesan bishops are required to have finance

councils which may include

lay

persons expert in financial matters and civil

law

(c. 492

).

In

so

far as pastoral circumstances suggest it, each diocese is to

have a diocesan pastoral council on which, among others, lay persons se rve

cc. 511-512

).

While these are not legislative bodies, they do exercise

important roles in the executive functions of planning and financial

management, the finance council having such authority

as

to restrict the

initiative of the executive without its consent e.g., cc. 277 on acts of

extraordinary administration and

1292

on alienation).

3)

In

addition to the code s explicit tripartite division of the power of

overnance into legislative, judicial and executive, there seems to be a

urther distinction regarding power which is implicit in the code. It is the

uestion

of administrative power, which may be executive (that is, a fo r of

gover

11ance)

or non-executive.

The distinction can be most clearly seen

in

terms of canon

1400,

the

440

STUDIA CA NONICA


24/32

party may be cited, a tribunal is said to be com t .

d

. . .

( .

. pe

ent

in

cases h'

concern a ministration in causis qure circa admin t . w tch

f . . h . . .

is rat1onem

ve

i it

is

t e place where the administration was conducted ('' b'

~ ~ n t u r

)

ta

t ) I d u

1

admmistr t'

ges. es . s. a min1stratio'' the same as an ''actus potestatis ad .a 1

trativce ? I think not. mmis

We have here another evidence

of

compromise It

reall

1

f . . .

Y

1nvo

ves

the

vestiges o the schema on

adm1n1strat1ve procedure.4s

What

is

left

f

h t f d o that

sc ema are _wo mentions o a m1nistrative

tribunals,46

and

the

co

elm

. . . .

ncepts

on

a ini.strat1ve acts in Book One. Such acts can be

issued

by a

person

with

executive power (c. 35). Hence, some administrative acts in the

Church

1

. . ed

h h .

are

im1t

to t ose w o exercise the power of governance, at

least

in

its

form

of

executive power. These are the actus potestatis

a d m i n i s t r a t i v ~

of c. 1400,

as is evident from the mention

of

administrative tribunals in that context.

They are clearly acts of the power of governance.

The other form

of

administratio appears

in

Book

Five

on

the

temporal goods

of

the Church. Title Two of that Book

concerns

the

administration of s

uch

goods, a responsibility

which pertains to the

individual who immediately governs the person to whom

the

goods belong

(c. 1279, 1). These administrators may be either clerical or lay (c.1282),

and their responsibilities are spelled out in law. They are subject to t ~ e

supervision of the diocesan bishop if their juridic

person

is subject bun

(c. 1276, 1 , but they act in the name of the juridic person they administer,

not in the

name

of the bishop. This kind

of

good stewardship seems .

10

the ''admi

ni

stratio'' of canon

1413,

1. It

seems

to

be

a

power

which

is

no

strictly a power of governance.

ed

as

an

\ Tt 1P

no

.

Of

TUE l

ITV

441


25/32

t J

duti

.. th

e.

erase 0 e .

hop

' mpervisory

...

........

t ~ u r i i u ea

to

him c 1276 I

.

This

is

an

tltiti

il

:ati

m

he n

n,

-e;

.

ecuti

sense

.

H

owever

.

a110t1

\ \ ~ ~ ~ the .

ecuti

e

aulhori

nf

the bishop to

issue

iu t. 't\ l t tt in t i\ 1tati n f the ta which bmds admioislrators

u b

t

t ttttt\.. uld

th i

h

p

delegate the econome to issue such

\\\st u)ti

)\

F

X}

\\ital A i earlier on the

ahitity

to

delegate

executive

U:

\lt\\

>1

it

~

ul

l

ll

tt,d, and

j f

dre

eco.nome

is

,a

lay

person

'this

~

u\ .t\ tl\ 'J

tli

t . f

I.a pefS-0 ,

cooperating io the exercise

of

the

4 .tttul n I ~ .nt t menti .n hriefl on lay c o o p e r a ~ i o n in

the

' 'nil\-

religious.

C21non

606

.

app

l i

es

the

law

equally

_

tt1e.t1

tt men w i l ~ tbe contrary is apparent from the

\ \ ~ 1 t u :

f th .

nriatter

. In

1

delermiffi.ng

the authority .of superiors

\V

it

l1i11

i t l ~ t i t u ~ s

f n ~ .

3;ted

life, the con.text does not seem to

require

a

distil\

:\ t ~

1

tl\

. l

rutd

'1V

men,

and

the

}n{y

distin:ction

the

canon

tll

~ : ; i; ,

~ t\ .

cal

and la . incstirutes pr-o ding for n t e m a l forum

v v v t ~ ~ i a ; ti. l .. Y' t l l i l t .

tfl cried

reiigiuus ins:titutes .

of

pontifical right

-

.. tt1er\N _

ult reijg\.ous

su,peri.ors

are to follow

the

pre

.

ti 11' .

\1

iing e. tern.al forum gov-emaooe found in oc. l 31 ,

13

.3.,

l

--

144

..

..

, -

th:it

i ,

the canons

discUS'Sed

earlier

about

ordinary

ani d

~

ttOO ~ r, and the

e.

eroise

of exeouti

e

power.

th - .e is

appt .og to la

per.sons

ho are

s11periors

in

in tituw m .. ~ i . t e d life th canon;

n

the po .er

.of

governance.

They

.

er

it\

virtue

f

the office die

hold

,as

superior.

This

w,ould

_ 11trnry

t t.

he

provt

'

i ns of .

7 4

l as it

nDw

stands, but

V P. mad sen under its former ording in , hich ~ h e

JX>Wer

of

th

e Church

co

nc

eded

to

them

in each instance ( singulis pro

causis

).

47

Th

e


26/32

German

s were

up

s

et

with the concept that some exercise of the power of

governance

would

not be rooted in sacred orders, the Romans pointed to

the power of the supreme authority, especially as exercised by the

pope

, to

do this .

T

he

final version

of

the canon

is

much simpler. It does not s

pecify on

w hat basis such cooperation takes place, nor does it restrict such

cooperation to those instances when the supreme authority itself grants

it

.

In

ste

ad

, the

canon

refers to the provisions of the law. At times the law cal

ls

for specific authorities to intervene in order for lay persons to cooperate

in

the exercise

of

the power

of

governance ;

48

at

other times the law i

ts

elf

specifies this participation.

49

Here

is

where it seems to me the compromise

h

as

gone beyond what either side in

our

debate anticipated, and

may

point

to the need for a rethinking

of

the basic categories

of

their discussion ; I will

hav

e more on that shortly.

3.

Summary

The new c

ode doe

s provide for lay persons to cooperate in the exer

cise

of the power of governance. While c. 274, 1 restricts to clergy those offices

for whose exercise the

power

of governance is required, in practice

th

is

restriction has

not

been observed elsewhere in the code e.g. , on

judges

,

c.

1421 , 2). Moreover, given the new definition

of

office (

c.

145)

there

are

vari.ous of

fi

ces

who

se exercise

may not

even require the exercise of the

power of governance and which lay persons can be given without question.

To such offices could also be attached habitual faculties whereby such lay

persons would

be cooperating in the power

of

governance as

delegates

.

The application of this new technical meaning to various situations in

the Church is goin.g to take some careful work. The provisions of the

cod

e

were written when a different distinction was presumed, namely the

distinction between the power of governance which required the use

of

sacred order

s, and

power of governance which did not require sacred

ord

ers.

That

d

is

tinction was expressed in c. 274,

I

but not in direct terms of

usin

g


27/32

PARTlClPATIO OF

TH L

I

TY

443

the power of orders, but rather

in

the more theo

reticaJ

terms of rooting the

exercise of some power of governance

in

sacred orders. When this wording

was

attacked, a.nd

in

a compromise

was

dropped,

it

left

the

rest

of

the

provisions

of

the law about offices which

lay

persons

co

uld

hold

without

an

adequate theoretical foundation

so

that

they may

now

see

m

to be

contrary

to the current restrictive wording of c. 274, l.

For example, here are places

in

the code where

lay

participation

in

the

governing function

of

the Church

is

possible, and

seemingly

in

virtue

of

office:

1.

As

members of consultative bodies (

c.

228, 2),

specifically at

plenary and provincial councils c . 443),

the

diocesan

synod

c.

463

)

diocesan pastoral council (

c.

512), parish councils (

c.

536), the

finance

councils of the diocese (

c.

492) and of

the

parish (

c.

537),

and

other

finance councils (

c.

1280), councillors

in religious institutes

(c.

622)

and members of general chapters

c.

631,

I - although

here

deliberative rather than consultative vote is

invo

lved).

2.

Holding various administrative offices: diocesan chancellor

(

c.

483 ,

2), notary (

c.

483,

2),

fiscal

officer or econome of a diocese

(

c.

494,

1)

or of a religious institute (c. 636),

general

secretary of a

conference of bishops (

c.

451) and, according

to

some

,

papal legate

(c. 363).

50

3.

Holding executive

offices as

superiors

in institutes

of

consecrated

life

cc.

617, 717) or

as

novice director (

c.

651

).

4.

Holding judicial offices: judge (

c. 1421

,

2), ponens

(c.

1429

),

auditor (c. 1428),

asses5or

(

c.

1424), promoter of justice (

c.

1435) and

defender of the bond (

c.

1435).

The question

was

raised earlier whether the compromise

formula in

the

new

code resolves the dispute between the German and Roman

schools.

As

a matter of

fact,

it seems to me

to

have left us

in

a state of

some

contradiction. There

is

clearly a contradiction between

on the one hand

ST

DI CA 0 lC


28/32

the other hand canons

129

and 228 which pro

ide

for

the

p ibilit

t

I

persons holding office and cooperating

in

the

exerci

e

f th

power

f

governance. At tim

es

their cooperation is n

ot

in

virtue

of

an

ffi .

but

du

to delegation; but at other times the ''provisions

of

law,, mentj ned

in

n.

228,

l do permit lay persons to hold offices for whose e er

i

th po\

ver

of eccl

es

iastical governance

is

required.

REMAINING ISSUES

Let me conclude by noting three i

ss

ues

in

need

of

resolution b e ~

re th

compromise formula in the code will be a welcome one in our

canon

ical

tradition. The

issues

are these: first, how can the contradiction

I

ha e ju

t

noted be resolved? Second, what is the source of power

in

the

Chu

rc

h?

And

third, how indeed should ministry be organized in the

C

hurch?

I

d

not pretend to have answers to the

se

qu

es

tion

s,

but let me

sk t

h

som of

the

elements involved.

1.

Resolving the Contradiction

Some attempt to resolve the contradiction by readi

11g

canon

in wa

that do not

seem

in

keeping with the texts. For exa

mpl

e

Ghirlanda

proposes to resolve it by giving a different reading to canon

27

4,

l

than

the words ''soli clerici possunt'' would seem to impl

y.

He tak

es

th

en1

to

mean

that

in

virtue of ordination, only cle

rics

are

fpso

facto

able

to recei

offices which involve the exercise of the power of governance,

in

k ~ p i n g

with

the ''habiles''

for

clergy in canon 129,

I. The capacity of l

ay

person

for

office

is

affirmed only generically

in

canon

228,

l ,

a

rld

in

particularly under the new definition of office

in

the code th.er

ca11


29/32

l

445

wl1I i Juil tll

p ~ J W f

gf

gov

rnn11 , So far as

these

auth

ors

,

ar

e

oon

ce

rtted,

Ja

y J f)

Jl tl Ip Ir, tl1 r

is. of th

e pow

er

of g

overn

an

ce, but

do

tJ{)

l x

rciu

it

Ll

in

Iv ;

tl1

p

rov

lRo

for Jay

p

erson

s

to s

erve

as jud

ges

i b ~ c n

w cv

tJtrf

l< f l fl t

lJflJ

, must b r

so

lv d, po

ssib

ly by

an

authentic

~ r p t e a o of

tll'

-oll In tJ1 m ai1tim

e,

tl1ey

give

a diff

ere

nt reading

to

the terrrJ of tt1c

'an

t>

l

tllan tll obv

io

t s se11se of the words, taking

th

e

ca11on

filj

pt

viuir

B

tr

a

J

ay

j

Ulg in tile

se

n

se

of

a

{;

t

ing

as

an

assesso

r

rather

t

1ar1 a j u


30/32

granting of hierarchical communion

by

the pope

*

The second approach attempts to locate the source of power in

hritt

and

to

relate more immediately

th,e

one

who

holds power with

hr

i.trt.

That

relationsh

ip

is assured

through

sacramental

otdination1

and

there

is

no

power in the Church except that sacred

power which

comes through

ordination.

A third approach

criticizes the

first as

failing

to

take

8 ' - ~ o the

teaching

o

Vatican II on the essentially religioltS nature of the C1lurch and

its

power, and criticius

the

second view for being so

focused in

on

C 'b

ri

Rt

that

it loses

the perspective of the action of

the

Spir

it

throlJgh charism and

grace. It calls f'or a

m()re trinitarian

view of .

od

1

action

in

the

C

hurch

, and

locates the

contact with the

Lord

in

more

than the sacrament

of orders,

Whether any of t h t approaches is

adequate

to explain.11g power in

the Church can be q u e s t i o n e d We are dealing here with a m.ystery, tbe

my

stery

of

the

Church and

the

m y

u . , , ~

of God action

in

' '

ur

midst

.

We

are

.also dealing with a very compfe'x concept,

that

o p o w e r Power is the

ability

to

produce an effect. B

ut

i power a thing which

HOmcc,ne

poo;esse ,

or

is

it a relationship am

ng

person in a group /ff It oouJd well

be

that by

focusing

on such power

que9tions, and pccifically '>

n

tbeffe

w; internal to the

Church

,

we mi

ss

the

mo

re

fundam;ental

questi

on,

the pur

f)Offe

for

Huc

h

power

. Would taking a

dlffer

e-nt apprO'deh

w

understanding the relat

ions

h

ip

o

Church an,d world

, of

m i

~ i o n and g

'Vernance,

prov

ide

a

mc

lr

e

effective

per

spective for a d d r ~ tbe se

'I

3,

Organi

z

ation

o

Mln

/JJ

try

f ha

ve

not

m ~ n t i o n e d

itt

a11

t h ~ rathtr i a r t J i n g lnn


31/32

p RTlClPAT I

ON OF

THE LATTY

44

7

l1t1

rc.ll

thro

\

.

l th

thre

e

z n

r

of teaching, s

anctifying and

governing

.

La r s ' ho take on these pastoral

roles

may

be

considered

to

be

pernt\n

i11

po\ver of governance in a broad

sense, and

even strictly

lO

tll

xtent they are given fact1lties or delegation. However, their pastoral

in

vo

l un1 tlt rai

s

eri

ot1s questions about the organization of ministry in

th

e

l\Urcll.

Fi

rst,

if

ln

y

persons are admitted to such central roles

in

Catholic life

ev

t be


32/32

I

J

ulv t tf 1.

I

t .

ddr .. th participation of the

laity

in the

f

ti 11 by .

pl

ring the issues which were raised

urL of d.rafting the code, examining how the

qt1

sti n nd th n proposing some of the

issues

which

r

tin

t

I

:

tld d. I ly

th

cod

has opened

as

many

are as

of

.taJtly . it y 1, v r Iv d But

th

resolution of these issues will c l l not

y t 1 t

< i

l r

h

and

dis

u ion, but for the collaboration of

1 (

t irt

.

1

s

n J xp ri n d .

hristia11

lay people if we are to achieve an

ff iv i11

rti

: ti

d

in th lif of

the

Church.

Rev. James H. PRovosT

Department of Canon

aw

Catholic University of America

Washington

D ~ C

20064

the participation of the laity in the governance of the church

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