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3 See Stephan KU1rNEk, '' Betrachtungen zur Systematik eines neuen Codex Iuris
Canonic.i.:~ in Ex <quo er bono: Willibald M Pwch/ zum 70. Geburtstag, ed. P. LEtSH tG~
et al, 15-21 (Innsbruck : Universitittsverlag, 1977). Other studies cited by Aymans include
Heribert SCHMJTZ, Die Geset.zes5ystematik des Codex Juris Canonic~ Liber /./II, Milncbencr
Theologische Studien, Kanonistische Abteilung 18 (Munich : 1963); Acta Comm~ionis, ''De
Ol'dinatlone systematic.a novi Codicis luris Canonici," CommunicaJiones, l (1969), 100-1 13;
Klaw Mo~"OOKf .. " Zur Neuordoung der Systematik des Codex luris Canonici,'' Arclriv far
kaJhllli.Jches Kir!:henrecht, 137 ( 1968), 3-38 ~ Peter KRAME~ Kritische Anmerkungen iur
S)'b1ematik eineh neuen kirchlicben Gesetzbuc.hes," ibid., 147 ( 1978 ), 463-470 ; Heribert
SCHMITZ. uR.eform des k.irchlichen Gesetzb11ches Codex Iuris Canonici 1963-1978.," in
CanontStit:a, Beitrage zum Kirchenrecht. ed. H. ScHMJTZ, vol. 1, 36 44 (Trier : 1979); 1DEM,
~0e ordinatione systematica novi Codicis luris Canonici recognit~ Periodica, 68 ( 1979),
J7 J-200 :. Win fried AYMANS, "Der strukturelle Aufbau des Gottesvolkes," A rchiv fiir
k.athtJIIs,he:, Kirlhenrelht, 148 ( J 979 ), 2 l-47.
4 Sc:hemo LegiJ Ecclesia FundamenJalis, Textus Emendatus (Vatican City: Typis
419
code.
Pontificia Commissio Codici Juris Canonici Recognoscendo, ''Lex Ecclesite Fundamentalis seu Ecclesite Catholica? Universa? Lex Canonica Fundamentalis, Romre, die 24 Aprilis,
1980," c. 80.
9 Schema Canonum Libri II De Populo Dei (Vatican City: Typis Polyglottis, 1977),
c. 528, 2.
IO Schema Codicis Juris Canonici (Vatican City: Libreria Editrice Vaticana, 1980),
8
420
STU DIA CA 0
ICA
It may be the text remained general enough and did not addr~ 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. 11 These provisions had themselves been criticized already as
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 matnmoniales 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
context of a much larger intervention dealing with t\vo other canons. Th~e
were more theoretical in nature, but fundamental to our topic. The first
dealt with lay persons exercising the power of governance the second is a
canon on the offices restricted to clergy.
Schema Canonum de Modo Procedendi pro Tutela Iurium seu De Procc..~ihus (Vatican
City : Typis Polyglottis, 1976), c. 20, l . See PAUL VI, motu proprio Ca.usas manimorrial"s,
11
,.'
>
421
ultors discussed this idea, found it to have some merit (at least
in o far n. the meaning of ''sacra potestas'' was concerned); but also felt it
w uld only further complicate the situation to adopt the wording proposed
b the conference. They also feared the wording proposed by this
oonferen e would seem to close off what was considered a question still
11
open to debate.
f. The 1980 . hema reports the same text as the 1977 dra~ It is in
response to this ca11on and to the canon on lay participation in the exercise
of the po\ver of governance, that major objections were lodged prior to the
n
~\;. '""'~"und
'
:!!.: . h
ro1nments to.gether with a
\.\
.. \\~ . \\ . \t,\\\ n u .. tfle secretariat were distributed
'f tl1 I'981 session and forrned the
:ussi l at the meet.ing.
\\
\ '\
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tis 19
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;J.
a ,., be considered to go
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e fi_t; prare?
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positions the
- ...... 1 ~it at t e outset th~
~i~'~"' in " ous pan of the
~ :. .. .ti~ erl in the C.ode
-.-~~ } re m GtmW>aplicitl)' by
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23
---~
''Lay Participatioo in the Apostolate of the Hierarchy,.. The JJU'81, .;1 ( I 1). :Ml- ; ~
A. MARQ 'ES. .. Funcion pastoral y poder en la Iglesia,.. /us~ 15 ( I'll)),. 159-1 ;
"v \RRE rt. .. Potestas vica.ria Ecdesi~ Evo1utio historia oot'lC.'eplT..JS :.:pc ~~
attenra doctrina cooalii Vaticani II," Periodica, 60 ( 1971 ). 414-486; J
J. RVA'- ...fu
Separation of 'Ordo' an.d ' 1lurisdictio' in its S:trucrural-Doariml Oa~rl
&xl~ologicaJ Significance." Munster in Westfalen, 1972 ; E. SAUR.AS. -a anc:a -
de
los poderes de la Iglesia," Ju.s Canonicu.m., I 5 ( 1975~ I S-43; .R rinboki Scmr.rn., D2
eigenberech1ige Ge...u/1 der Kirdte, Analer;ta Gregoriana. 196 (Rome: Uci\"CJ~m Gtq@ti:c:t
Editrice, 1974); IDEM. "De polestate propria ~ .. Periot!im., 63 ( 19 4). ~2945S;
Antonio da Silva PEREIRA , Sacramen.1.0 da On:Jem e ojiciD ~
.,
do sacramento e fX>der na lgreja, AnaJecta Gregoriana 17'.."" (Rome: Umia:s!t.i Gt1~ftm'!
Editrice, 1969); Nikolas TIMPE, Das kanonisclte X ildtaltbild i&"ft <Ad&
zum Beginn des Vaticanum Secundum. Eine hmori.sdrel
(~ :
St Beno Verlag, 1978); Marie Zr>.iMERMA.~N, Stru:ct:Ilff socillk l!I ~ a.\'e
1t=CntDtC~
1981).
STICKLER also provides a bibliography in .his recenr ~ oo
1u
' potestas regiminis': visione teologica," in fl nuovo cotlice di &.!irJtJ
: i1' f. .;
mofiwizione e significaro, 63-74 (Ro me : Libreria F.ditrice dell.a Pootffic:D L~~ ~.z:ra
t 983), especially. pp. 73-74.
rban
...
424
STUDIA CA 0
ICA
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 beginning
of the thirteenth century several major shifts took place. The system of
relative ordination gave way to the system we are familiar with today,
absolute ordination. Debates over simoniacal clergy, lay investiture, and
heretical or schismatic bishops led to a distinction between the power 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 centrali~tion 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. The
powers were different in their source.
3) With the rise of nation states in Europe, individual nations began to
claim sovereignty over any other power in the temporal order. This claim to
sovereignty spread to the religious domain under the Refo,rmation. The
Church, it was said, should be responsible only for religious matters and
leave jurisdictional ones to the state. In response to the.5e claims Catholics
emphasized the visible, jurisdictional reality of the Chur,ch ~ the Church was
as much a sovereign in the spiritual realm as a government might claim to
be in the temporal sphere.
This had an effect on the understanding of power within the Church.
The distinction between power of orders and power of jurisdiction was now
applied to the object of those powers, not just their source. Jurisdiction in
the Church is the same kind of power as any sovereign state would have; it
is native or proper to the Church. Orders, on the other band, arise from a
J J tI'
I I N f lf t It J t I '
'. i\t
V~llit;i\tl
t )f
II tl1is isst1
\Vll1~
'
In order to asst1re the unity of the Church which had been juridically
structured tt1rough the ce11tralized concept of a distinct power of jurisdiction,
the council turned to t.he age old notion of communion. Christians are
bonded together in a cornmt1nion of faith, sacraments and discipline. This
communion is a hierarchical communion lived in particular churches or
dioceses under the leadership of the bishop, and linked together through the
~'
Ii
'(
'tI
,.,,,,,, a i
Jtt
ir
t l ll I
(~
N NIC 'J\
f th ~ -011 e of
f hurch .
th
ll I tt ~ ly ~till l,,
ir t u kir1d f ivil under tanding of its
w l\\,lt tt\ 111 tl1 ~ lll Jl .i" 11 r l tiv whi h i ' pr p r to the hurch
~llt !la.
t
1
}\
(Jffl (Jn
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PARTlCIPATIO
OF THE LAITY
427
23
[' ftl ,,
l '
1i )\ ){) ~
>ti~-~
l t \ '
l1tl {'I\ .
\1 \
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.
pow "T >f juri dicti n that went ~ith it. ~ ~th ut the ~
orders; but that the po ~ n f the ffi ' ~ n t rompl& enm ~
corr pondir1g rde~ ~ ere received. The anal ID. vf the dillaer~
a ratun1 tUld a rutum-et-c n ~ummat\am mania2e \lt ~ to~~ ~
adition of the Church, nor could it deny the divine plan for the Church
loreover, it never said what the other school claims it said concemini
sacred power." It did speak of the ''munera'' or functions of teaching
tnctifying and ruling coming with episcopal ordination, but it specificall)
sed the term ''munera'' rather than ''potestates'' to indicate they are not tbt
l.me. A further juridical determination is needed for a ''munus'' to becomt
''potestas." Finally, the council specifically affmned that it did not want tc
~lve issues which are still open to theological debate. 24
The debate then turns technical. Rather than bore you with the details~
!t me just sketch the key points. The first is the question of exercisin.g
icred power without being an office holder; Stickler faults the other sch.ool
:>r failing to recognize the role of delegated power. As to the exercise ot
1risdiction by lay persons, or those not in sacred orders, he argues that
acred 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
1rdination to he diaconate ), the new code is merely proposing to continue
~hat was formerly possible for persons who did not yet have sacred orders,
Dme tonsured and some (historically, at least) not. He adduces a number oJ
xamples of this, ranging from religious superiors and Abbesses to lay
dvocates and defenders in the Church. There is also a debate over the
osition of Schmalzgrueber whom the Ger111ans cite as opposed to lay
idges, but whom Stickler claims actually is in favor of the possibility if one
~ the cited passage correctly.2s
As indicated earlier, STICKLER cites the Nota explicativa prtEvia to the handling of the
odi for Chapter III of Lumen gentium to prove his point. This Nota, by decision of higher
1thority, is always to be printed with Lumen gentium as expressing the proper interpretation
24
these
noint~
40
to how l~)al tl1c (_'~\urct1 \ol l, ''' t w( t t ''l t
jurisdiction, ev n thottgl1 tt1 s ar \ltl1 ~lt't i ,\ ltlll\
normally exerci' d by the sn1n ~ ~ltl lic ~, .
'tuli'\ l
'
l~I ~1 1
''U
Two poinl~ rnauc by ll 'yrr l\ JC <:lt I ' ir1l itl\J)4 t1t .,, ,,, , ' r ' .,,\ \l\t
school of thought. l 'h first i ' t 1tll tl1r . ll\.' l; ll' 11t11l1ty t tl1~ J' 'l\l '' ,1,
not appear, in Vatican II, as th S\>l ~>tlNi <)I n li' tJ()ll' ,,. w a
tun
to the episcopate docs co11~ r the tl1t '''''''~"'' ,,,,t lit '''' '''''''' ~'''''''''J"i\t\
is needed to put those in u11crR i11l(J n 'l t() ll . 1,c ' iti'' l1ta \nei1IA'
t~,~ \
study,26 equates hierar hical corntrt ltt) i ~ > ~1 witt1 t \,<~l ll i~lt l ~I'' ~,, t\t)t\h ttl
mission, and so with receiving th 1>>W 1 ( )f j\it i~ ~Ii ~i ' ''
1
'l''''
' t"
''''t''''\
4. Some Comments
Gianfranco
PA.RTIClPATIO
OF THE LAITY
4 l
Bernard
L ONERGAN,
43
a .a .
U,..l.M..U.
..
muruon.
..
-h
\U , .
...,.""
t . ;s
433
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 discussion.
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
the.5e phrases mean?
a. "Lay Christian faithful'' is normally understood in the code to refer
to Catholic lay persons, even though any baptized person is a ''christifidelis"
(c. 204, 1). At least in virtue of c. 11, baptized non-Catholie5 are not
bound by our laws, although it could be argued that for sufficient reason
they could be permitted to benefit from them. 33 Canon 204, however, deals
This is done by the law itself in several instances ; for example, the reception of the
sacraments of penance, Eucharist and anointing under certain conditions (c. 844); the
celebration of marriage with a Catholic when permis.5ion bas been given (c. l 124); introd.ucing
a case before a church tribunal, which even the nonbaptized may do (c. 1476); serve as a
procurator or, with permis.5ion, even as an advocate before a church court (c. 1483~
33
witl1 ll (,,hr' tiar1 , atholic o,r not, while canon 205 provides the crjteria
w}J r by 1t1 " c Chri ianb who are Roman Catholics can be determined.
1
"J~.c
r;opeti'''" with
f'acul~),
b$~
PARTICIPATlO
'
.,,
\
'\
'~
t~..
.....,
:: J
~1
....
OF THE LAITY
Bishops cooperate in the work of the Roman Pontiff through the synod fL serving as cardinals or in va.rious other institutes (c 334). Presbyters cooperate with Ille
in pastoring the diocese (c. 369), training for this in seminaries (c.. 245, 2) and C'dil)lng i! oct
especially as parish priests (c. 529, 2). Presbyters are called on to coope.rate in the s
function of preaching the Word (c. 757), and lay persons can also be called tn cooperare mn-:is
work (c. 759). Parish priests receive the cooperation of parocb.ial Yicars (c.. 54- J ) arxi of
other priests and deacons (c. 519), although lay persons are said to provide ~ rath.Y
than cooperation in these pastoring functions (c. 519). Lay persons ran be ID\U \W
organic cooperation with the works of a personal prelature {c. 296) and. memhefs of S:.'l
~ w
institutes cooperate with the local ecclesial communities (c. 713, ~ 2)36 If we find some difficulties in the concept of jurisdiction, that should oot be a ~:
it is, after all, an ambiguous term. See Gi useppe ALBE.RIGO. " La juridic.tion : reman}tJ.eS terme ambigu," Jrenikon, 49 (1976), 167-1 80.
35
r u Dli\ C'Ai 0 IC A
perso~
but not
An ordinary is presumed. to have all the power of the office ; for each
office the obligations and rights proper to that office ar.e to be clearly set
fortl1 (c. 145, 2). The law presumes that when people do something in
virtue of their office, they are entitled to do it Delegation, on the other
hand does not have such a presumption with it; the person who has been
delegated must prove the delegation (c. 131 , 3) and is limited to the
mandate for the validity of what is done in virtue of delegation (c. 133).
Delegation can be for all cases and then. it is interpreted broadly the way
ordinary power is to be interpreted. Otherwise it must be interpreted strictly,
although such strict interpretation must always include as well whatever is
nece$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 distinguished
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 ordinaries
(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 ''cooperation,~ in the power of
governance means according to this scheme of things, especially for lay
members of Christ's faith.ful, we have to examine each form of governing
power individually.
a. Legislative power of governance cannot be delegated by a legislator
below the highest authority unless the law specifically provides for this
(c. 135, 2). 37 However, legislative authority is exercised through two types
of ''votes'' - consultative and deliberative. .All \vho are to be called to a
legislative session, whether it be an ecumenical or particular councill or a
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) is
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
I
'
438
STUDJ
CA (0 ICA
acts preparatory to a decree or decision (c. 135 3). Lay persons who 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 whose
exercise the power of governance is required. This is in evident contradiction
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 be through this office. Howe\~er.
executive power of governance can be delegated, and this can be either for
all acts or for single acts. Delegated executive power is not attached 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 bas 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 which 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 person
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 virtue of their offi"""""'
The office of chancellor itself does not require the exercise of these p<>\vers;
under the new code it seems to be an office which lay persons n1ay hold as
notaries and archivists. 43 It may be asked whether such persons n1a
cooperate in the exercise of the power of governa.nce through delegated
power, including the habitual faculties usually given to chancellors in m
part of the world. Such cooperation is not in virtue of the office, bt1t of th "
habitual faculties attached to the office.
A similar question could be asked concerning those who hclld th r
offices in the diocesan curia. The bishop is now free to organize the urin
43 I 9 J 7, CIC, c. 372. l required that the chancellor be a priest ; fl<\ $&111ilar r !'ltri\'.t
appears in the new code, except for notaries in cases when the reputation t>f pri~t n\a be tt
stake (c. 483, 2).
439
The distinction can be most clearly seen in terms of canon 1400, the
first canon in Book Seven on procedures. The second section of that canon
restricts the bearing of controversies which arise from an act of administrative
power (" ex actu potestatis administrativre'') to hierarchical recourse or to
tn administrative tribunal. Hence, the diocesan tribunal is not competent to
iear such 'cases. Yet in canon 1413, which deals with the tribunal where a
Canons 469-494 require a vicar general, chancellor, finance council and flSCal officer ;
11 other positions mentioned in the code - episcopal vicars, moderator of the curia, and other
IOtarics - are optional. Moreover, the bishop is given the responsibility for organizing and
raming persons lO the curia (cc. 469-473), so has the authority to develop whatever
!fP 0 ization is needed for his diocese so long as be respects the bare minimum required in the
44
ode.
440
STUDIA CANONICA
u 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
f
. .
.
Y 1nvo1ves 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
. .
.
.
ncepts on
a elm 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
ed
h
h
.
are
.
.
1im1t to t ose w o exercise the power of governance, at least in its form of
executive power. These are the ''actus potestatis administrativ~'' 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 such 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 ~o . bun
(c. 1276, 1), but they act in the name of the juridic person they administer,
10
not in the name of the bishop. This kind of "good stewardship" seems . ~
the ''administratio'' of canon 1413, 1. It seems to be a power which is no
strictly a power of governance.
ed as an
However this kind of administration now can be organtz
. oc
'
.
.fi
I0 nger requ1rw
ecclesiastical office. The revised defin1t1on of of tee no
be
anfid caanncial
Participation in the ecclesiastical powers of orders or jurisdiction,
Th d.1ocesan in
composed of non-executive administrative power.
e
hich each
administrator or econome is a good example of s~ch an
45
Genere (Vatican
Schema Canonum De Procedura Administratzva in
City: Typis
Polyglottis, 1972).
escinding the ap
0
46 One mention is here in c. 1400, the other in c. I 49, ~ 2
r
' - -Ir. -- ~ ' " "'"",..,"'" t11 hA 1~rli-Pti thP nPr~TV aualificatlOflS.
. ~eot
pDJ01.1''
\ Tt 1P
...~.n
t:
J duti
. .........t ~uri
:ati ~ ,
no . Of
441
TUE l ITV
erase
.. th e.
0
e . hop"' mpervisory
u "ea to him (c 1276 I ). This is an
m the
tltitiil"
n n,-e; .ecuti
. tttul
n I
in tituw
V,P.
d. '' I.tl a tdan \~ mth pro . ions of law ' is another compromise
ph~~ ~ lli 1 .appears n t
nl~ in atn ,n 129, but frequently in the
d \Ul1ents f ,tticnn I(.. he council resorted to this or similar ph~ in
Q\~
Previ us drttlls
exc.r i.~ f tll PQ\~
_._..ri tiai1 ltt . pers n'. ~
~th~
'
the Church conceded to them in each instance (''singulis pro causis''). 47 The
Germans were upset with the concept that some exercise of the power of
governance would not be rooted in sacred orders, the Romans pointed to
the po wer 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 specify on
w hat basis such cooperation takes place, nor does it restrict such
cooperation to those instances when the supreme authority itself grants it.
Instead, the canon refers to the provisions of the law. At times the law calls
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 itself
specifies this participation. 49 Here is where it seems to me the compromise
has 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
have more on that shortly.
3. Summary
The new code does provide for lay persons to cooperate in the exercise
of the power of governance. While c. 27 4, 1 restricts to clergy those offices
for whose exercise the power of governance is required, in practice this
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 offices whose exercise may not even require the exercise of the
po wer of go vernance 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 code
were written when a different distinction was presumed, namely the
distinction between the power of governance which required the use of
sacred orders, and power of governance which did not require sacred orders.
That distinction was expressed in c. 274, I, but not in direct terms of using
1977 Schema on General Norms, c.an. 96 and 1980 Schema, can. 126.
For example, the supreme authority is c.alled on to determine whom else to invite to an
ecumenical council ; the conference of bishops and diocesan bishop must act before a lay
person can be named as judge on a tribunal.
.
.
49 For example, the law itself grants the cooperation with consultative vote 10 partic~ar
councils and diocesan synods once the decision is taken to convene such bodies. By elecuon,
religious superiors enjoy the power of governance appropriate to their office.
47
48
PARTlClPATIO
OF TH
LAITY
443
the power of orders, but rather in the more theoreticaJ 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 could hold without an
adequate theoretical foundation so that they may now seem 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 involved).
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
canon 274, 1 which says that only clerics (''soli clerici'') can obtain offices
for whose exercise the power of ecclesiastical governance is required, and on
so PAUl Vl in his motu proprio Solliciludo omnium Ecclesiarum, 24 June 1969: AAS,
61 ( 1969) 473-484, restricted the appointement as legates to a church to clerics, but permitted
lay men to serve as legates to international organizations and meetings. If the motu proprio
~ses now that the law on legates has been reorganized in the new code (c. 6, I , 4), the
restriction would no longer apply and lay persons could also be appointed legates. Giuseppe
Dalla Torre seems to lean toward this opinion in Considerazioni prelin1inari sui laici in diriftf)
Ctlltonico (Modena : Mucchi Editore, 1983), p. 78. Personally I am of the opinion the motu
proprio remains i.n effect as particular law for legates of the Roman Pontiff.
444
ST DI
CA 0
lC
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 times their cooperation is not 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 ecclesiastical governance is required.
REMAINING ISSUES
445
wl1I 11 i11 Juil tll p~JW f gf gov rnn11 ,~2 So far as these authors ,are
ooncer'tted, Jay ' J f)Jl' tl Ip Ir, tl1 " r is. of the power of governance, but
do tJ{)l x rciu it Lil in Iv ; tl1 provlRlo for Jay persons to serve as judges
i b~cn w cvtJtrf-l<1f l fl tlJflJ, must b r solv d, possibly by an authentic
in t~rpteta lio11 of tll' -oll .~ In tJ1 m ai1time, tl1ey give a different reading to
the terrrJ of tt1c 'ant>l tllan tll obviot1s se11se of the words, taking the
ca11on filj ptfJviuirJB ft)r a Jay j U(lg in tile sense of a{;ting as an assessor rather
t!1ar1 a j u<.lgc trictly Hp akit1A,
Anotl1cr wuy to r solv t11e contr1tdiction is to faJI back on the
principlca for tJ1e interpretation of la.w) particularly canon 17, a.nd begin to
work a variety of (}xplu.11atio11s, But I think it would be healthier to admit
that as u result of a compromi~e, we l1ave a contradiction in the law. This is
not unknown in tile: p.rcscnt code. Consider the plight of permanent deacons.
As a result of otJ1er ltlflt rnirJutc char1ges w'hich deleted the mention of
remarriage for wido,woo deacons, the norm on continence for the clergy was
modified to oblige even tJ1em (c. 277, 1). Theoretically, married deacons
break the law every time t~1cy tnake use of their marital rights I Of course,
the code d(Jes not Lttkc away acquired rights (c. 4), so the solution to that
prt,blem has not 'been so difficult a..'i our present one.
I)
powers, but the unity of the Churoh is maintained 'because these power
come from Christ through the mediation of the 83(,~ament of order and the
granting of hierarchical communion by the pope*
3, Organization of Mln/JJtry
f have not m~ntioned itt a11 th~ rathtr ~iartJing lnn<;vatj0118 in the rode
relative to fay ir~v<)lverocnt Jt1 JYar' h and ~umental mini ~ry.~ -~undamen
tafJy aJ1 power ir1 tJ'Jt? nutC . f, ~ k>raJ, fi)f it J t.;tJrj ,t Wh() pW)torS the
s1 Bven the rt.it te <A W-...ttrlt~I p<> r1 1 ~ '11tJYdtPA ~1rJt1n~ phy ~ ~t~. wMiher ,,f t,h.e '4wave..
f,,,
t1t.'1:ttlfitt~ l1J1tk;1~k., Y
("
!'
~
'
'\
'y
'
'
,.
447
the
l\Urcll.
First, if lny persons are admitted to such central roles in Catholic life
ev tl be<; \tlS of e111ergency sitt1ations, will it ever be possible to draw the
line a11d d "O)l them an active voice in church governance? The problem is
ito t so 111u 11 their inclt1sion in councils and synods, their involvement in the
adt11i11istration of goods or the decision of tribunal cases. The issue will be
\V11ether the Cl1t1rch can rely so heavily, as it already does, on lay persons to
contint1' its life at the parish and diocesan levels, and expect to deny them
nn effective say i11 policies that govern that life.
..
Seco11d, given tJ1e increasing shortage of clergy in relationship to the
.nt111tbers of Catholics, wl1at ought to be the proper involvement of clergy
ru1d of ltiy persons in tl1e governi11g functions of the Church? There are
three co1npeting tensions here. On one hand, there is a move to increase the
freedom of priests for sacramental ministry and so to involve lay persons in
positior1s which were formerly exclusively clerical domains. On the other
hand, there is a resistance to isolating the clergy in sacristies, so to speak,
and tl1erefore a desire to spread the sacramental work out as well. Finally,
there is the pressure, especially in the new code, to involve priests in key
administrative and judicial tasks (e.g., vicars general, episcopal and judicial)
which could produce a bureaucratic kind of clergy, leaving pastoral work
to lay persons. If we are to be realistic about the ministerial situation in the
future, ought we not to begin now with serious planning as to the relative
placement of clergy and lay persons in these various positions?
Finally, there is the question of adequate preparation of lay persons for
such roles. To cooperate in the power of governance means people should
know something of what they are doing. The code calls for adequate
preparation before a lay person undertakes church service (c. 231, I). Most
resources for preparation of persons for involvement in the inner life of the
Church have been concentrated in seminaries and novitiates. That is where
.major commitments of person.nel and financial resources have been made. If
lay persons are to cooperate more actively in church governance, even in a
consultative role, the Church will have to be prepared to provide them with
adequate preparation. We will also have to face the question of financial
support (c. 231 , 2), but that is a question for another day.
t,f 1. ~lf
I t
. ddr ..