CANON LAW AND COMMUNIO
Writings on the Constitutional Law of the Church

 

Aspects of the Reception of Vatican II in the Code of Canon Law *

 

I. The Epistemological Structure of the Code

II. Reception of the Ecclesiological Contents of Vatican II

III. Conclusion

 

 

The response of commentators to the new Code of Canon Law during the first two years after its promulgation has been mostly positive. 1 The significance of this approval remains unclear, however, both because of the varied criteria used in evaluating the Code and because in individual authors positive and negative judgments are often heaped together without reference to any scale of values, so that they simply offset one another. When tested by facts, therefore, the widespread acceptance may prove to be not unlike the special relief felt by those who believe they have been rescued from great peril.
When we turn to the specific question of the reception of the Council, the first thing to be kept in mind is that judgments on the Code reflect interpretations of the Council and the often differing degrees of importance assigned to its documents. In this context it is necessary to avoid any static reading of the conciliar documents and to attempt instead to grasp their deeper tendencies, which, it can be foreseen, will win the day in the future, even though the Council itself did not expressly state them with all desirable clarity.
One point of reference in this attempt, which is not without its risks, is to compare the documents with the doctrinal interpretations and developments already published whether by the universal and local magisteria or by theologians, whom canonists must keep in view even though they themselves possess an epistemological authority of their own. As far as the Magisterium is concerned, it would be enough to take account of important documents like Ecclesiam suam and Evangelii nuntiandi, the documents issued by Medellín and Puebla, and the legislation, especially synodal, of the particular churches. The limited space at my disposal, however, allows me to make only occasional reference to all these sources.
A further point: in examining the reception of the Council in the Code a number of valuational standpoints are possible. I shall limit myself to two: epistemology and the incorporation of some of the most important contents of the conciliar documents (the assessment here is based on the reception, both material and formal, of these contents). 2

 

I. The Epistemological Structure of the Code

1.  The Council decreed (in Optatam Totius, § 16) that the mystery of the Church should be taken into account in the teaching of canon law. The logic of this principle requires that it have been applied first of all to the establishment of canonical norms. It should therefore have likewise been applied in a very strict way to the reform of the Code.
In a seemingly marginal way, and yet with the universal force proper to any methodological principle, the principle in question summed up the many-faceted desire of the Council for the dejuridicization of Church life. This desire had arisen as a reaction against the “institutional hegemony” under which the Church lived in the age when the idea of “Christendom” reigned 3 and which was consolidated in a notable measure by the codification of 1917.
The choice of codification as a tool is therefore a priori problematic, if not utterly inadequate. Although historically the concept of codification has been concretized in various ways, 4 the fact cannot be overlooked that from a methodological point of view codification refers to a gnoseological experience, that of the Enlightenment, which supplied a supposedly purely rational alternative to Christian culture, the latter being based on the indispensable part played by mystery in our knowledge of reality as a whole and thus on the priority of faith over reason.
Codification, a juridical tool developed on the basis of general theory as a way of making law rational, is thus more apt for expressing an institutional and societal view of the Church - and one on which the natural law shadow of the societas perfecta still rests - than for expressing the Church as a sacramental mystery. The problem arises ultimately from the fact that the philosophical notion of law that lies behind the modern idea and experience of codification is not applicable to canon law, because the formal definition of the latter cannot prescind from its theological dimension. 5 If we once admit the inescapably dictatorial nature of any methodological principle, then, as far as the risk of distorting the essence of ecclesial experience is concerned, there is no substantial difference between applying the method of Marxist analysis and applying the method of autonomous reason that is the mark of modern liberal rationalism.
When the Commission for the Revision of the Code of Canon Law opted for recodification, its members obviously could not fail to take into account the methodological directive of Optatam Totius, although they did not realize its full scope and implications. The resulting compromise has caused the Code to reproduce, and even magnify, the two divergent approaches to the Church that are found in the Council: the Church as societas and the Church as communio. 6 In fact, both the idea of law that underlies the Code (as Sobanski has perceptively noted) 7 and the overall systematization reflect the continuation of this dualism in a very obvious way.
The reception, in the three central books of the Code, of the conciliar model of the Church as the people of God that share in the three offices of Christ irreversibly shattered the unity of the rational epistemological principle that underlay the systematic approach, derived from Roman law, of the old Code. This same reception, however, did not lead the Commission to approach all the material in the Code in the epistemological light of faith. This remains true even if it must at the same time be acknowledged that the legislative material in its totality could not have been organized into a unitary system on the basis of the tria munera scheme. And, contrary to the impression often given, this was not primarily because of understandable technical difficulties. It was rather because of the theoretical weakness of the scheme itself and, above all, because the Commission did not attend in a sufficiently rigorous way to the fact that the participation of the faithful in the munus regendi is no less necessary theologically than their participation in the other two munera.
If the Commission was unable to emancipate itself completely from the existing juridical schema, it was because it found in the Council itself a cue permitting it to approach the Church as a society and to give a natural law justification for the existence of canon law. From this point of view, the ambiguity resides in the interpretation of LG 8, § 1. The primary intention there is not to assert the societal nature of the Church ( an aspect that recurs in LG 14, § 2, which shows redactional confusion) but rather to explain the principle of an indissoluble unity between the invisible and visible dimensions of the Church by analogy with the mystery of the incarnation. 8 It is simply presupposed that the Church is also a society, but the Council did not intend to take a position on what precisely is meant by this.
The erroneous interpretation of the thrust of LG 8, § 1, which has long since found a place in theology, 9 and the lack of attention to the basic methodological directive in Optatam Totius had for result that the greater part of the books of the new Code were not plotted out under the guidance of a theological epistemology.

2.  The adoption of the technique of “general norms” (an expression more characteristic of the method of abstract codification) caused the legislators to apply a strictly juridical criterion to the contents of Book I.

a)  The principal subject of canonical regulations, namely, the believer, is defined in Book I (as also in Book VII), not on the basis of his or her ecclesiological identity, but by the Roman law category of persona physica. The latter, however, is not only irrelevant from the theological point of view; it is even misleading both in itself and in relation to an understanding of persona iuridica.
This category is inadequate in itself because it suggests that in the canonical order the physical person exists prior to the Church, just as the human person exists prior to the state. Not only does this ambiguity emerge every time that natural law seems still to take precedence in the Code over divine positive law as the source of canonical regulation; 10 it also has ramifications whenever the new Code follows the line of the old and uses the category of “competence” to define the juridical situation of believers, instead of using the more conciliar category of “participation.” 11
The limiting clauses frequently occurring in the lists of the obligations and rights of the faithful reflect more than a mere preoccupation with external safeguards; 12 they seem to be dictated by the juridical category of “competence” that is at work in an almost subterranean way. But this approach does not seem to be as universally operative as has been claimed, 13 for in some fundamental norms the idea of participation dominates, whereas in the lists of obligations and rights the Code, unlike the Lex ecclesiae fundamentalis (LEF), obviously gives priority to “obligation” over “right.” 14 And in fact participation in the life of the Church can be described as primarily an obligation, once it is maintained that the believer as such does not exist prior to the Church but is called to it by divine vocation.
The second difficulty inherent in the definition of the faithful as physical persons is the ambiguity thereby indirectly introduced into the concept of juridic person. The factor that distinguishes believers from juridic persons in canon law is not natural physicality but sacramental structure. In accordance with what was affirmed in Communicationes (9 [1977] 240) the Code defines the Catholic Church and Apostolic See as moral persons (can. 113, § 1), because their existence does not depend on an act of the human will, but it describes as public or private juridic persons all the other collective entities that canon law or competent authority declares to be juridic subjects. This distinction should not have been inferred from the fact of erection as such, but from the ecclesiological nature of the different entities in question. Thus even though the particular Churches exist concretely only in consequence of being erected by the Holy See (can. 373), nonetheless they exist prior to the canonical organization of things insofar as they are necessary ecclesiological entities. If this were not the case, the implication of can. 113, § 1, would be that only the universal Church (assuming that catholica means “universal”) - and not the particular churches - exists ex ordinatione divina. If, on the other hand, “Catholic Church” means “Church of Christ” which is both universal and particular, then the particular churches too should be defined as moral persons and not simply as juridic persons on the sole ground that their concrete existence must come by an act of establishment.
It is therefore inaccurate to treat the particular churches in the same way as all the other public juridic persons, as is evidently done in can. 1257, § 1 (but see also can. 1255), because there is a fundamental ecclesiological difference between these various entities.
The idea of making a terminological distinction between these entities is a promising one, but it should have been carried out with greater ecclesiological accuracy. The fact of having defined believers as physical persons has prevented a clearer treatment of the material, because it has kept the compilers from seeing that the status of necessary ecclesiological entities (the universal and particular churches, the Holy See, and possibly other entities such as, for example, the college of bishops) as juridic subjects flows from their sacramental nature (as it does in the case of the faithful) and not from an arbitrary act of establishment as in the case of other public and private juridic persons. All this should obviously not cause us to forget that the moral personality of the Catholic Church and the Holy See, which are ex institutione divina, is only analogous to juridic personality as developed in the Roman juridical tradition.
b)  The other canonical institution that by reason of its inclusion in the book dealing with general norms is deprived of its theological meaning to a much greater extent than in the old Code is the potestas regiminis, seu iurisdictionis.
Stripped as it is of every reference to the conciliar idea of sacra potestas and far removed from its appropriate constitutional context, the power of governance is treated in the “general norms” as if it were essentially different from the power of orders (can. 129ff.). This theological and systematic dualism, to which I shall return further on, is another manifestation of the fact that the power of governance (with the norms regulating its exercise and its transmission by delegation) is seen as ultimately derived from the societal structure of the Church, in a way analogous to statutory juridic power. Can. 129, § 1, emphasizes its divine origin, but seems to do so as if this were a simple consequence of the fact that the Church itself, as a society, is of divine origin.
When (as in title 8 of Book I) the power of jurisdiction is separated from the power of orders and unconnected with sacra potestas, it is not possible to bring out its theological connection with the three functions in which this power customarily finds expression: the function of establishing general norms (law and custom), the administrative function, and the judicial function. Because of the normative approach, the last named has been discussed in the completely different context of Book VII. If the Code in dealing with the power of jurisdiction had been concerned to bring out its theological and constitutional dimension, it would not have located the norms governing this power (even if it had dealt with them under “general norms” as in the 1917 Code) after those for laws and administrative acts. It should, if anything, have put them before these, because laws and administrative actions are functions in which the power of jurisdiction finds expression.
c)  The result has been that in the new Code the norms for law and custom (to take only these two examples) have the same juridical and technical connotation they had in the preceding Code, and lack any ecclesiological dimension.
The norms governing law make no reference at all to the sensus fidei, in which the participation of all the faithful in the munus regendi of Christ and the Church finds expression, and therefore to the word of God. The munus regendi is treated, both in the opening canons (7-22) and in those dealing with the power of jurisdiction (135 ff.), as though it were, as an instrument of governance, the prerogative solely of the hierarchy and its special participation in the munus regendi of Christ.
As far as custom is concerned, it must be noted that can. 23 recognizes the “community of the faithful” as its subject and that in accordance with tradition (and not canonical tradition alone) can. 27 repeats the principle that “custom is the best interpreter of laws.” But even in this context the sensus fidelium does not emerge with sufficient explicitness to make it clear that the participation of the faithful in the establishment of custom is not reducible and attributable to the same social phenomenon in which all earthly customs originate.
It goes without saying that the participation of the faithful in the legislative function cannot be limited to the indirect form of interpretation through custom. It is also direct, both in the legislative phase (for example, when synodal procedures for which the Code itself provides are implemented) and in ensuring the survival of law through reception. 15
d) The purely technical and positivistic approach to the norms for juridic acts also causes the Code to forget a fact basic for the development of the very idea of canon law: namely, that among the more constitutive (as well as more frequent) juridic acts of the Church must be numbered the sacraments, whose binding juridic force has a value that is not simply social but also and above all soteriological. This approach has thus led to the absurdity of establishing (in can. 125 and 126) general rules for the validity or invalidity of juridic acts that are in principle not applicable to the sacraments.

3.  The tribute that codification has paid to the societal and juridical principle is also to be seen with utter clarity in Books V (on temporal goods), VI (on sanctions), and VII (on processes).
The necessary role of communio in the possession and use of material goods shows up repeatedly in the conciliar texts and should have provided the keystone for Book V in its entirety. Instead, Book V has included among its fundamental norms the natural law parameters proper to a societas perfecta, the benchmarks here being the peremptory assertion of the Church’s right to possess patrimonial goods (can. 1254, § 1) and its right to require of the faithful the contributions needed to meet its financial needs (can. 1260).
The patrimonial relationship between the faithful and the Church thus continues to be determined - though with fiscal variations - by similarity to the state model that provided the inspiration for the ius publicum ecclesiasticum.It is no accident, therefore, that precisely in this book of the code the Church is still seen (and this not simply by reason of terminology) as a hypostatized entity that, like the state, stands in a relationship of altereity with its subjects. 16
In the final analysis, this overall epistemological structure is not impaired in Book V either by the definition of the purpose of ecclesiastical possessions, which is taken, more consciously than in the 1917 Code, from the early tradition of the Church (when the administration of the patrimony was structurally connected with the celebration of the Eucharist), or by the reception of certain conciliar institutions, such as the diocesan and interdiocesan institutions of can. 1274, in which the communion structure of the presbyterate and the whole people of God takes concrete form in the patrimonial sphere. It may be asked whether the preferential option for the poor, which was formulated at the magisterial level in the Puebla document, could not have led the Commission to revive the early Church’s idea that the poor are not only the beneficiaries of the Church’s patrimony but its very owners, at least morally if not juridically. 17

4.  In Book VI, on sanctions, the concern to develop a juridical structure consistent with the general theory of penalties has likewise taken precedence over courageous reform in individual areas. Although the indispensable norms with reference to the sacrament of penance are not lacking, a more structural connection with this sacrament would have been helpful in understanding that not only excommunications latae sententiae, but also excommunications ferendae sententiae, which are imposed by a so-called irrogatoria judgment, do not in themselves correspond to the idea of penalty as found in the general theory of law. Excommunication is a de facto situation in which believers put themselves by anti-ecclesial behavior that can be officially observed by authorities and for which, in any case, juridical regulations specify certain juridical consequences. A statement of John Paul II provides valuable magisterial support 18 for this interpretation, which has been gaining increased acceptance. 19
The nonpenal nature of the most important sanction exerts such an influence on lesser sanctions that it undermines the foundations of the entire epistemological structure of Book VI, which is still harnessed to the natural law categories of the restoration of justice (see can. 1341) and coercive power (can. 1311). The principle set down in can. 1314 and approved by the Synod of 1967, that ferendae sententiae penalties are to be preferred, is not enough to correct this approach to the subject. In fact, neither the Synod nor the Commission for the Revision of the Code of Canon Law derived the principle in can. 1314 from the logic of communion, with the intention of enabling church authorities to deal with the situation of the believer in difficulty by applying pastoral criteria unaccompanied by potentially harmful elements, formal and juridical. The concern that guided the formulation of the principle was rather to make the Church a more consistent image of a societas perfecta (sic!) in which the problems of juridical safeguards and equality before the law remain key points. 20
Can. 1341 makes plain the futility of this approach, 21 , but the expansive force of this canon in relation to the entire structure of Book VI is offset by its unfortunate location in the system of the Book. If it had been placed at the beginning, it might have made more explicit the supplementary nature of the entire penal apparatus.
This canon, which was inspired by the Council, as well as the principles governing imputability (can. 1321-1330) and the application of sanctions (can. 1354-1363) and, even more decisively, the “general” norm in can. 1399, show how the penal law of the Church has in fact already been stripped, as far as its contents are concerned, of any real claim to follow the paradigms given in the doctrine of statutory penalties. It was all the more important, therefore, to drop the old formal and conceptual approach and thus show greater respect for the conciliar spirit behind the substantive material norms, and to cease trying to force all the material into schemata clearly dictated by a societal image of the Church.

5.  The norms that begin Book VIII, on processes (can. 1400-1403), again reveal the same cultural and epistemological approach as in the Code of 1917.
Can. 1446 contains the directive that all the faithful (and bishops in particular) are to avoid recourse to lawsuits as a way of settling disputes. If this admonition, which is clearly conciliar in its inspiration, had not been interpreted reductively as a simple moral exhortation and had instead been allowed to exercise its full structural potential, it would have been possible to provide the whole body of norms dealing with processes with a more satisfactory ecclesiological setting.
This would have required, however, a theological rethinking of the nature of potestas sacra and its judicial function; instead, as we shall see, the entire Code takes a regressively positivist approach to this subject. The legislator has thus been deprived of the possibility of overcoming the dualism latent in the twofold requirement - both parts of which come from the Council - that canonical procedures be adapted to modern juridic sensitivities and that an ecclesiologically more profound image of the nature and function of canonical processes be conveyed.
To the extent that sacra potestas is a power of loosing and binding in reference to salvation, it can in fact operate, and has often operated in the past, even without having canonical processes available. The latter are technical superstructures that have probably become increasingly indispensable for dealing in a safer and juridically more equitable way with subjective situations in which the faithful find themselves as social bonds become increasingly more complicated even in the Church; nonetheless such processes are not constitutive for the existence and exercise of sacra potestas. Only when there is a statutory separation of powers do judicial procedures become an institutionally necessary and constitutive projection of the very existence of a judicial power that is separate and autonomous in relation to legislative and administrative powers. In the state the existence of judicial power is coextensive with the existence of procedures by which it finds expression.
From this point of view the removal of the canonization process from the Code and the failure to include in the Code the procedures for the examination of doctrine are symptomatic. The reason for saying this is not that these procedures cannot be regulated by special laws, but that because of their ecclesial importance and because they are procedures that have a formally more administrative than judicial character, they show clearly that in the canonical order there is no potestas iudicialis distinct and separate from the other two functions (the legislative and the administrative) of the power of jurisdiction. In all three functions a single sacra potestas operates, following the logic of communication that is specific not to the sacraments but to the word.
The jurisdictional function of sacra potestas is at work in these two procedures and takes on there a clearly magisterial quality. This explains why the document concluding these procedures (a document that is a decree, not a sentence) can be published only by him who possesses in its entirety the one undivided sacra potestas, namely, the supreme authority in the Church or, as the case may be, the bishop.
The other symptom of the dualism mentioned above is the fact that, in obedience to the requirements of the technique of codification, the new Code downgrades processes dealing with the constitutional state of persons (marriage, ordination, membership in the ecclesial communion, and the so-called penal process) to the level of simple “special” procedures. Even though these processes are a fundamental and indispensable part of the canonical order, they are grafted as simple appendices onto the ordinary procedures for dealing with litigation, procedures that the new Code continues to see as the keystone of the entire canonical judicial structure. This, despite the fact that these procedures are regarded by can. 1446 as simply supplementary, comparable to civil litigation processes that have for their purpose to settle disputes (private cases, cases dealing with patrimonies, benefices, etc.).
It can be maintained that the Church can accept the relevant civil processes as its own ordinary procedures for litigation (modifying them as need arises) and have the advantage of being able to take over as well as any possible cultural and juridical connotations. It is unthinkable, on the other hand, that the Church can do away with procedures dealing with the constitutional state of the faithful. This impossibility is due to the fact that these procedures are directly related to participation in the Eucharist or to the fact that they show forth the special nature of canon law, which is guided by the principle that truth and material certainty take precedence over formal certainty (a principle that is alien not only to civil litigation but also to ordinary canonical litigation as now practiced). 22
The fact that in ordinary litigation the sentence can also have a (constitutive or rescissory) definitive character (unlike sentences in processes dealing with the status of persons) is certainly not proof that in such litigation a potestas iudicialis separata (but not adequately distinct) from the other two functions (the legislative and the administrative) of jurisdiction is operative in a direct and constitutive way. The possible definitive character of a contentious process is nonetheless different from that of a process of canonization or an examination of doctrine. It is definitive, not because it determines the content, but only because canonical regulations decree that a final sentence has the force of turning its object into a res iudicata, regardless of the degree of material certainty attained in the examination of the case.
In contentious processes, as in those dealing with the state of persons, where the sentences are purely declaratory, sacra potestas (in its jurisdictional function) does not intervene directly but only indirectly in the act of passing sentence. It is directly operative only in the preliminary phase, that is, the action that initiates the procedures and appoints the judges.
In contentious procedures and procedures dealing with the state of persons, judges therefore do not exercise a potestas iurisdictionalis iudiciaria, which as iudicialis does not exist (once the difference between this and legislative or administrative actions becomes purely procedural); they only carry out a functional and technical task in relation to the sacra potestas of the bishop. It follows that the admission of laypersons to the office of judge poses no theological problem.
In light of this analysis it can be concluded that can. 1446 should at the very least have called for a different systematic arrangement of procedures. Instead of proposing as a paradigm ordinary contentious procedures as presently practiced, it would have made greater ecclesiological sense for the Code to propose as the typical kind of process that which deals with the constitutional states of persons (and the respective variants of these states), especially in view of the fact that because of marriage cases this kind of procedure is by far the most frequently occurring. The Code should have placed the “special” norms for canonical “civil” contentious procedures at the end, after the processes for canonizations and the examination of doctrine.
It would have been possible in such an approach to meet the demand (which in fact has in good measure been met) for a greater responsiveness to modern juridical sensitivities and for a greater attention of other juridical traditions of non-Roman and non-Germanic origin (such as the common law tradition), thus yielding an image of the Church and its authority that resembles less closely that of the state.

6.  These observations make it possible to say in recapitulation that the binding methodological and epistemological directive of OT (16, § 4) has been received only in the three central books of the Code, although it must be acknowledged that the epistemological change effected in these parts of the Code makes irreversible the break between the present canonical regulations of the Church and the preceding Roman-law tradition.
The reasons for this serious inadequacy are obviously numerous. I cannot here give an exhaustive list of them, but neither can I fail to mention some of the more important ones.
The first, which was inseparable from the political need of showing the Holy See’s determination to proceed expeditiously to the reforms called for by John XXIII and Vatican II, was that the appointment of the Commission for the Revision of the Code of Canon Law came too close on the heels of Vatican II. The Commission lacked the necessary distance from the conciliar event and, instead of undertaking a work of comprehensive comparative interpretation of the conciliar texts, preferred to make a selection. This had the serious consequence that others were neglected.
The second reason, connected with the first, was that the members of the Commission were drawn from a generation of canonists who had been trained before the Council and who for the most part regarded continuity with the preceding juridical tradition as indispensable.
Finally, there is the fact - rarely taken into consideration up to now, but in many ways disconcerting - that the norms for revision that were approved by the Synod of Bishops in 1967 obscured rather than helped to clarify the central problem of the epistemological and theological approach to be taken in the new canon law. They did so because they strengthened the conviction - already present among the council fathers but meanwhile largely transcended in part of the conciliar teaching - that the existence of a canon law originates in the societal nature of the Church. This explains why the Synod so readily proposed the application of the principle of subsidiarity, 23 which had been imported by canonists from the philosophy of law or the Church’s social teaching, and overestimated its potential homogeneity with the principle of communion. It also explains why the Synod so emphatically supported as necessary a judicial protection for the rights of the faithful, but also saw this protection as modeled on civil administrative justice. 24

7.  In this situation, the inevitable question is what alternative systematic solutions were available besides the one adopted in the Code.
The first step would obviously have been to reject codification as a tool and to choose instead (on the assumption that the idea of a single body of law - not necessarily a code - was to be retained) an ordo Ecclesiae. This would have the advantage of further emphasizing the constitutional character of canon law over the civil law character that is still very strongly felt in the Code, and of making superfluous any attempt at a Lex fundamentalis. Acceptance of the category of ordo, which has been favored especially in Protestant theology, 25 would have meant a valuable ecumenical opening in this vital area of church life, and not implying (contrary to what has been claimed) 26 the acceptance of the opposition between ius divinum and ius humanum in which Protestant teaching is still bogged down. 27 The rejection of codification would have meant the rejection of the idea of “general norms,” which gives structural dominance to an epistemological principle derived from philosophical and juridical reason over an epistemological principle derived from theology. As a matter of fact, the directive (which in any case was superfluous) of the 1967 Synod that the Code should retain a juridical character 28 in no way requires the acceptance of the method of abstract codification; in any case the Code was forced to some extent to renounce the application of this method.
There are evidently many possible ways of developing an order Ecclesiae. It is not possible in the present context to propose a fully articulated system, but it will be worthwhile to state at least a few criteria.
An ordo tends by its nature to translate the constitutional structure of the Church into institutional forms. Inasmuch as the essence of the Church’s constitution is part of the content of the faith, the standard of purely disciplinary norms cannot be applied to it so as to give it a purely functional role in the subjective faith of the believer. An ordo Ecclesiae will by its nature highlight those elements that are based on ius divinum and therefore reveal both the sacramental, as opposed to societal, origin of canon law and the dependence of human norms on divine law.
The conciliar model of the tria munera has not only not been integrally respected by the Code but has not even become the basis for the Code’s systematic structure. In light of this, I remain convinced that a systematic approach based on the sacraments would have been a valid alternative. 29 In any case, the hastily made claim is incorrect that such an approach would not have been inspired by the Council. 30 In LG 11 the institutional description of the Church begins precisely by following the succession of the sacraments. The same procedures is also sketched in SC 6 and LG 10, § 2, and 25, § 3.
The more difficult technical problem that then arises is to find a place in the system for the word. 31 The difficulty should be met not by separating word and sacrament but by respecting their inseparability. Word and sacrament are in fact only two formally different ways in which the one presence of Christ becomes a reality in the Church. 32 On the other hand, the word does not have a structural autonomy of its own, for the institutional existence of the Church begins with the exercise of the first sacrament, baptism. What exists apart from the sacramental structure is not the Church but the “Christian religion.” The word always has its own specific place and manifestation (preaching, catechesis, magisterium) in every sacrament.
Beyer’s recent proposal is not without its interest, 33 if we prescind from the conceptual overlappings it contains, but it tends to reduce the entire institutional structure of the Church to a purely functional role in the subjective faith of the believer. Its role as he conceives it belongs more in a pastoral directory than in an ordo iuridicus.

 

II. Reception of the Ecclesiological Contents of Vatican II

An exhaustive appraisal of the phenomenon of reception would require a quantitatively far more extensive analysis of the data in Council and Code than is possible here. But a selective examination of some basic ecclesiological contents of the Code is enough to bring out some salient traits and to lay bare the ambiguity present in them. There were other factors, over and above the twofold epistemological approach sketched in the preceding section of this essay, that contributed to this end result.
On the one hand, some conciliar contents were not received or were received only partially; on the other, not all the contents materially received in the Code have completely retained the formal value and dynamism that is theirs in the conciliar texts. A judgment on reception must therefore take into account the way in which the Code has dealt with both the formal and the material aspects of the conciliar contents. Although it is true that a content requires a satisfactory formal expression in order to have its full value, it is also true that form always has an impact on the material element as well. When form takes precedence over content, the latter takes on a meaning different from its original meaning; when content takes precedence over form, the latter becomes ineffective.
Both of the phenomena just described are to be seen in the reception of the ecclesiological contents of the Council. Because the relationship between the two is reciprocal and convertible, they are both ultimately reducible to the epistemological problem.
If we take Vatican II as our point of reference, it is possible to identify in the Code cases in which the conciliar form has taken precedence over the contents of the Code, and cases in which the conciliar contents have not found an adequate form in the Code. The paradigmatic example of the first type of case is the conciliar schema of the tria munera, which has imposed severe limits on many institutional contents of the three central books of the Code, as, for instance, on the sacraments. 34 A typical example of the second series of cases is the idea of the common priesthood or that of the sensus fidelium, both of which have been taken over materially from the Council but have not been used in the Code in a way that allows their ecclesiological meaning to deploy its full formal potentiality.
To avoid this ambiguity the process of reception would have had to deal more freely with the fact that Vatican II not only did not intend to develop a comprehensive ecclesiology, but also did not offer a systematic organization of the doctrine of the Church with the intention of providing at the institutional level a systematic model that would be valid for a reform of canon law, to say nothing of a recodification of that law.

1. The Faithful in General

a)  The ambiguity of which I have spoken comes out quite clearly in the way in which the Code tackles the problem of the faithful.
There is no doubt that in the central three books of the Code the legislators were able to profit by the essential lesson of the Council and to substitute the faithful for the clergy as the principal protagonists in the organization of canon law. This central achievement influences, at least potentially, the entire Code, despite the inconsistencies already brought to light (above) in Books I and VII with regard to persona physica.
In so doing, the Code has quite gone beyond the material data verifiable in the Council. This is true, first of all, in that Book II, implementing the insight of LG 10 (which the Council itself was unable to follow up fully), begins its entire treatment of the juridical constitution of the people of God with a broad set of norms covering the status common to all the faithful (can. 204-223). Secondly, in can. 204 the Code defines the faithful without identifying them with the laity, as is done in LG 31, § 1. Thirdly, can. 208, unlike LG 32, § 3, gives a doctrinal clarification of the principle of equality in dignitate et actione (one of the most important ecclesiological achievements of Vatican II) by applying it no longer directly to the laity but to all the faithful.
Finally, by listing together at the beginning of Book II almost all the main obligations and rights (scattered throughout the conciliar documents) of the faithful, the Code strongly emphasizes the inalienable juridical heritage of the faithful and thus breaks, at least in principle and despite possible inconsistencies, with the constitutional hegemony the hierarchy has always enjoyed in canon law. Moreover, this has been done without introducing the principle of “fundamentality” (still used by the LEF), which is applicable to the rights of the person in the constitutions of modern states, but not to the obligations and rights of the faithful in the constitution of the Church. 35
Thus, instead of creating an artificial formal hierarchy of norms - characteristic of the constitutional principle in modern states - the list of the obligations and rights of the faithful, almost all of which are based in divine or natural law, makes clear the existence of a material hierarchy of norms that the ecclesiastical hierarchy too must respect. 36
This coherent explanation of the status of the faithful is undoubtedly reinforced by the emphasis put on the constitutional character of the state of those practicing the evangelical counsels. Can. 207, § 2, like LG 44, § 4, does not intend to face directly the long-standing question of whether the evangelical counsels have their origin in ius divinum. 37 On the other hand, the Code repeats in can. 575 the basic passage in LG 43, § 1, where the evangelical counsels are defined as “a divine gift the Church has received from the Lord.” It also places the norms for “Institutes of Consecrated Life” in part 3 of Book II, away from the juridical context of “Associations of the Christian Faithful.” By doing so, it highlights the ecclesiological importance of the consecrated state, making it parallel, from an institutional standpoint, to the lay and clerical states that have been dealt with in parts 1 and 2 of the same book. 38
The constitutional parity thus assigned to the evangelical counsels makes it possible to move beyond the barren bipolarism of the clergy-laity relationship which has always led either to the dominance of the former over the latter or to the reductive identification of the faithful with the laity. The circular relationship within the new trilogy makes it possible to recognize each state as having a specific ecclesiological function that belongs to it in a primary way: secular responsibility to the laity, responsibility for the unity of the Church to the clergy, and responsibility for the eschatological dimension to the evangelical counsels. At the same time, the circular relationship allows the common equality of the three to emerge more clearly. 39
b)  All this is on the positive side. It must also be admitted, however, that the Code has dropped certain elements of the Council that are indispensable in defining the ontological and juridical structure of the faithful, or at least has not been able to turn to full account the entire formal meaning of these elements.
The most important of these neglected elements is that of charisms. 40 The faithful are constituted as such not only by their sacramental structure, thanks to which they share, though in varying ways, in the tria munera of Christ and the Church, but also by the possibility of becoming the rightful subjects of charisms. When this potential charismatic dimension is omitted, the ecclesial and juridical identity of the faithful (and therefore the entire people of God, which is the Church) is seriously impaired. The Council, which frequently refers to the presence of charisms in the Church, does not hesitate to regard the right to exercise charisms as one of the principle rights of the faithful; 41 this right is completely neglected by the Code.
The Code certainly does contain propitious references to the presence of the Holy Spirit in the Church: for example, in can. 879 in connection with the sacrament of confirmation; in can. 369 to the Spirit as ingathering the particular Church; in can. 375, § 1, to the Spirit as establishing the apostolic succession of bishops; and in can. 747, § 1, to the Spirit as assisting the Church in its universal teaching office; as well as in the norms for institutes of consecrated life, where, however, the more soothing expression “gifts of the Holy Spirit” is used instead of “charisms,” which was removed for good after the schema of 1982. 42 This substitution induces doubt about the ecclesiological significance of charisms. Charisms are not the same as the grace of the Spirit’s presence in the faithful, nor can they be looked upon as gifts given preferentially to categories of the faithful (for example, members of the institutes of consecrated life) that are by definition more readily subject to institutional and juridical control. 43
The Code yielded to the repeated objection that no juridical value can be assigned to charisms and did not have the courage to penetrate to the heart of the Church’s constitutional structure by tackling the ontological essence of the faithful in all its aspects. If we consider that charisms never exist autonomously but are always bestowed on the two polar groups in the institutional Church - namely, those possessing the common priesthood (which also finds expression in the ways proper to the sensus fidei) and those possessing the ministerial priesthood - then it must be recognized that here again the institutional approach has prevailed over the approach determined by the mystery of communion.
In point of fact, contrary to what is true of the structure of modern states, the constitution of the Church is not identifiable with the institution. By its very nature, the presence of charisms freely bestowed by the Spirit relativizes the hegemony of the hierarchy in the Church, because, like the obligations and rights of the faithful, it sets imprescriptible limits for the exercise of sacra potestas by authorities. Their sacra potestas gives them the responsibility not only of passing judgment on the authenticity of charisms but also, and above all, of not extinguishing them.
c)  Emphasis on the ecclesiological centrality of the faithful would have been much more effective if the Code had once again penetrated to the deeper roots of the Church’s existence and made the common priesthood and the sensus fidei (both bestowed on all the faithful by their baptism) the basis for its systematic and doctrinal organization.
These two factors, which in LG 10 and 12 are of primary importance for understanding the constitutional structure of the Church, are the ontological presuppositions onto which the derivative doctrine of the tria munera of Christ and the Church is grafted. The Code, however, limits itself to repeating them in a purely material way in brief references in can. 836 (De munere sanctificandi) and 750 (De munere docendi), and makes noformal use of the full ecclesiological dynamism proper to them.
Even if we prescind from the fact that in receiving the sensus fidei the Code seriously mutilates its meaning, 44 it must be admitted that if the Code had defined the faithful primarily as rightful subjects of the “common priesthood” and the sensus fidei, it would have brought out the imprescriptible structural connection of all the faithful with the sacraments and the word (see LG 35, § 1) - that is, with the factors that generate the Church itself and are also the root of the distinction between the functions of order and jurisdiction in the sacra potestas, functions in which the specific participation of ordained ministers in the mystery of Christ takes concrete form.
The essential difference (LG 10, § 2) between the common priesthood and the ministerial priesthood would likewise have emerged in all its relevance, even if the emphasis were placed on the participation of the faithful and ordained ministers in the word.
In addition to providing a stronger systematic arrangement for the norms governing the faithful, the reception of these two elements with their full formal value would have allowed the Code to avoid having recourse to certain compromise formulas that are not free of all ambiguity: cooperatio in exercitium potestatis regiminis 45 (can. 129, § 2) and cooperatio in exercitium ministerii verbi (can. 759), which are used in order to bring out the difference in the participation of laity and ordained ministers in the munus regendi and the munus docendi, that is, the ministry of the word.
d) Omission of the charisms and failure to assign full value to the common priesthood are also the source of the ambiguity in the Code’s way of dealing with the phenomenon of associations, which is likewise basic for an understanding of the ecclesiological status of the faithful. Associations have a significance transcending the social and juridical as such, because in addition to being, in many cases, concrete manifestations of charisms (as historical experience shows), they are also a sign of communion among the faithful and of the unity of the Church (AA 18, § 1). 46
In this area the new Code advances beyond the Code of 1917, for the latter did not explicitly acknowledge the right of association, as the new Code does in can. 215. 47 But this progress cannot hide the subtle regression of the new Code in relation to the Council, despite the more modern juridical style of the new apparatus. Whereas Vatican II fully appreciates the variety and multiplicity of the forms of association (see esp. AA 18 and 19), the Code unhesitatingly follows the lead of the 1917 Code in treating them as uniform and forcing them into the traditional corporative mold. It takes no account of the special characteristics of the communal forms of apostolate that swarm in the contemporary Church - the movements, the societies, the base communities (which are recognized not only by the Medellín and Puebla documents but even by Evangelii nuntiandi) 48 - and that in defense of their own spiritual identity refuse to be subsumed under the juridical category of association or, if they must accept this subsumption, treat it as a formal juridical superstructure that lacks real content and is therefore foreign to them.
The distinction made by the Code between public and private associations (a distinction borrowed from civil law and applied also to juridic persons) relegates the vast majority of associations to the private sphere and thus promotes the growth of a distorted ecclesial mentality. In the state, private associations exist because it is possible to distinguish between society and the organization of state power.
In the Church, however, it is impossible to demote the common priesthood, which is the first and irreplaceable pole of the Church as an institution, to the sphere of private life, once it is realized that the function of representing the institution cannot be assigned exclusively to the other pole, namely, the ministerial priesthood, as it can be assigned to the public organs of power in the structure of the state. Because the common priesthood continues even in the ministerial priesthood, and because the ministerial priesthood exists only to serve the common priesthood, which is primary in relation to it, it is not possible to split their unity and structural reciprocity by using the criteria of public and private.
The concern to control the phenomenon of associations by applying typically societal and legitimist criteria also surfaces in can. 299, § 3, which was introduced into the Code only in the 1982 schema. Inasmuch as no norms are furnished that would require Church authorities to follow objective criteria in granting or refusing juridical recognition of public status, can. 299, § 3, is in danger of removing all formal value from the principle of association, which was proclaimed by Vatican II (AA 19, § 4), and is materially accepted in can. 215. 49

2. The Laity

From the systematic viewpoint, the Code fully recognizes the position of the laity, inasmuch as it reverses the approach of the 1917 Code and even improves on the systematization found in Lumen Gentium, where the laity is still discussed after the clergy, and inasmuch as it formulates a list of the principal obligations and rights of the laity, paralleling the list provided for the faithful generally. At the same time, however, it is impossible not to see that, in accordance with a promotional policy that is by its nature contingent, the list tends more to emphasize the importance of the laity than carefully to define its ecclesiological and juridical status. In fact, of the seventeen particulars listed in can. 225-232 only eleven can be assigned strictly to the laity, to the exclusion of clerics. 50
A comparison with the Council reveals moreover the existence of some uncertainties and ambiguities in two areas: the participation of the laity in the munus regendi, and the secular identity of the laity.
Contrary to what it does in dealing with the participation of the laity in the munus docendi et sanctificandi, which is expressly asserted in can. 759 (first phase) and 835, § 4, on the basis of LG 34 and 35, the Code provides no specific canon that explicitly asserts the participation of the laity in the munus regendi as taught in LG 36 and 37. It therefore becomes necessary to fall back on the more general norm in can. 204, which, though valid for all the faithful without distinction, in the final analysis includes the laity only according to the sacramental definition of the laity as formulated in LG 31, § 1. The immediate reason for the lack of a special canon must be looked for in the decision not to have a book De munere regendi in the Code. Above and beyond the possible difficulties of a technical kind that may have inspired it, the decision also points to the difficulty the lawmakers felt in accepting the idea that the participation of the laity in the office of governance is as essential, from the constitutional point of view, as the participation of the clergy - even though the co-essentiality was acknowledged with regard to the other two munera. In Book II, therefore, there has been a reabsorption, not only systematic but to some extent substantial as well, of the munus regendi of the laity into the munus regendi of the hierarchy. 51
Even can. 129, § 2, which is the only norm in the context of sacra potestas that shows any ambition to make a doctrinal statement, does not help us understand the real scope of the problem. In the compromise formulation adopted in this canon, a formulation not identical with the one in LG 33, § 3, which focuses more on the possibilities available, 52 participation of the laity in the munus regendi is not seen as the exercise of a native, personal qualification bestowed upon them in baptism, but as an extrinsic cooperation with the exercise of a potestas possessed by others, namely, the hierarchy.
From the standpoint of concrete solutions, however, it cannot be said that the Code is ungenerous in acknowledging a broad responsibility of the laity in all areas of ecclesial activity On the contrary, if we add all the norms presupposed by the exercise of the munus regendi to those in which the munera docendi et sanctificandi are concretized, we get an image of the layperson henceforth difficult to distinguish from that of the deacon. Nonetheless a symptomatic fact remains. On the one hand, the Code avoids making more obligatory the establishment of pastoral councils, whether diocesan (the divergence from CD 27, § 5, is clear) 53 or parochial; on the other it refuses to promote with greater determination the activity of laypersons even within those institutions in which by their nature it is appropriate for all the faithful (and therefore the laity as well) to assume not only a responsibility as individuals but a co-responsibility for “synodal” government that has much more impact on the daily operation of the Church than that expected from particular councils and diocesan synods.
The second area in which a gap emerges between the council and the Code is that of secularity. The Council did not intend directly to define the indolis saecularis (LG 31, § 2) as a theological constitutive of the status laicalis. 54 On the other hand, this “secular quality” cannot rightly be interpreted, as some theological teaching interprets it, as simply a sociological dimension of the laity. For, on the one hand the secular involvement of clerics is supplementary and is not identical, even in concept, with the idea of secularity proper to the laity; and on the other the clear predominance of conciliar texts on this secular quality (LG, AA, and AG) over those in which the Council defines the laity on the basis of its sacramental structure (LG 31, § 1) seems to allow no doubt on the point. 55
Even if we are willing to leave this matter unsettled, it is surprising to see that in LG 36 and 37 the Council had already taken the secular modality to be the predominant characteristic of specifically lay participation in the munus regendi. This explains the very important statement in LG 37, § 4, that pastors, “helped by the experience of the laity, are in a position to judge more clearly and more appropriately in spiritual as well as in temporal matters.” To this statement corresponds another that is no less important for understanding the role of laity and clergy in the Church; it occurs in LG 35, § 2, in connection with the prophetic office: “This evangelization (the laity’s profession of faith, joined to a life of faith)... acquires a specific property and peculiar efficacy because it is accomplished in the ordinary circumstances of the world.”
The Code clearly ignores these two statements, which are essential for understanding the specific, constitutional contribution of the secularity proper and peculiar to the laity, in the sphere of lay involvement not only in the world, but also in the Church. The statements enable us to overcome the dualistic temptation of maintaining that secularity, as the ecclesiological dimension in which the primary role of the lay state as compared with the other two states finds expression, manifests itself only in lay involvement in the world and not in any involvement within the ecclesial structure. The laity in fact ensures the unity of the mission of the whole Christian people in both the Church and the world (LG 31, § 1) because the laity is the point at which Church and world, that is, the economy of creation and the economy of redemption, come together. This is why marriage, wherein creativity is sacramentally fused with the supernatural (can. 1055), belongs by its innermost essence to the lay state. For secularity is in fact not operative with the same intensity and the same ecclesiological relevance in laypersons who live in the world and laypersons who live in the clerical state or the state of the evangelical counsels (in religious or secular institutes). In the case of clerics and followers of the counsels, secularity lacks its essential and constitutive elements (property, marriage, and freedom) and is almost completely absorbed by the sacramental dimension common to all the faithful.
The problem is therefore not reducible to a matter of urging the laity in a general way to assume its responsibilities in the Church and in the world, as the Code exhorts the clergy generally (can 275, § 2), bishops (can. 394, § 2) and parish priests (can. 529, § 2) to do. The problem is rather to accept the fact that the indolis saecularis sets certain limits within which the ministerial priesthood must carry out its mission. The “secular quality” thus makes it possible to determine more precisely not only the ontological nature of the laity but indirectly that of the ordained minister as well.
In view of the fact that the Code has not formally received the idea of indolis saecularis, it is not surprising that the detailed set of norms aimed at fostering the participation of the laity in the life of the Church in the areas of the munera docendi et sanctificandi (a participation that directly presupposes the sacramental definition of the layperson: LG 31, § 2) is not adequately balanced by the few norms dealing with the area of lay co-responsibility that has as its direct doctrinal presupposition the definition of the laity in terms of secularity (LG 31, § 2). In fact, only four norms (or groups of norms) relate to the laity as defined by its indolis saecularis. Two are contained in the general list of lay obligations and rights (the duty of imbuing the temporal order with the spirit of the Gospel: can. 225, § 2; and the right to the freedom needed for carrying out this mission: can. 227). The third asserts the right of association to this end (can. 327). The fourth has to do with the obligations and rights of the family in the education of its children (can. 226, 793, 796-799).
In proceeding as it does, that is, not fully in step with the most basic position of the Council, the Code has allowed itself to be influenced by the postconciliar theology of the laity. This theology has neglected the problem of secularity (which alone opens up truly new ecclesiological perspectives) and has gotten bogged down in an effort to attribute to the laity competences ever closer to those of the ministerial priesthood, thus setting itself on the course of a subtle but distortive clericalization of the laity. 56 The Council itself, by backing (in AA 20 and 24, § 4) the outdated doctrine of the collaboration of the laity in the mission of the hierarchy by way of a mandate (itself not a very clear notion), has certainly not helped to do away with the ambiguity .

3. Communio Hierarchica

Vatican II uses the technical expression communio hierarchica only to describe the nature of the sacramental and synodal relationship that unites ordained ministers (except for deacons) with one another. It must be admitted, nevertheless, that the element of hierarchy pervades all levels of communio: 57 the fundamental level, which is the communio fidelium; the level of the communio ecclesiarum (which also includes the relationship between the Catholic Church and the separated churches and ecclesial communities); and the level of the communio ministeriorum. Therefore, prescinding from the question of whether communio hierarchica insofar as it is hierarchica is conceptually suited for expressing in all its complexity the nature of all the levels of communio, 58 the term can be accepted as a tool for appraising, in a minimally systematic way, the reception by the Code of the conciliar ecclesiology in which the principle of communion rather than the societarian principle comes to the fore.
To the extent that it is possible to distinguish clearly between the doctrinal and the institutional aspects of these problems, I shall analyze them separately.

 

A. The Doctrinal Aspect

a)  At the level of communio fidelium, only can. 209, § 1, can be regarded as sufficient evidence that the Code has not only materially received the substance of the conciliar teaching that makes communio an ontological structureconstitutive of the faithful, but has also been able to exploit the full formal value of the teaching, to a greater extent even than the Council itself was able to do.
In its catalogue of the obligations and rights of the faithful, the Code lists in first place the obligation to live, interiorly and exteriorly, in communion with the whole Church (can. 209, § 1). It thus shows that communion is the factor determining the anthropological and ecclesial identity of the faithful. The priority of this obligation over all the others in the catalogue is not due simply to the fact that it heads the list of obligations and duties common to all the faithful; its position at the head could, after all, have been due simply to chance, given the lack of order in the list as a whole. Its priority is due rather to the fact that it is the ontological and logical foundation of a series of other obligations and rights, such as the obligation and right to seek holiness (can. 210), to collaborate in the spread of the gospel (can. 211 and 225, § 1) and in apostolic undertakings (can. 216), to receive the sacraments (can. 213), and to help in the promotion of the Church’s life (can. 212, § 3; 228). These obligations and rights are in turn the source of almost all the other particulars that make up the juridical patrimony of the faithful. 59
The hierarchic structure of the communio fidelium, which shows itself in the duty of the faithful to obey their pastors as formulated in can. 212, § 1 (this canon is the point of convergence for other similar dispositions of the Code; can. 750-754; 846, § 1; 1311), shows its negative side in the many precautionary and preventive clauses in the catalogue. Taken singly, these clauses might have been justified, but all of them together poison the atmosphere of trust and magnanimity with which the council generally treated the relationship between faithful and pastors. 60

b)  Thanks to its inclusion of the most important ecclesiological formula of the Council (LG 23, § 1), according to which the universal Church comes into being in and from the particular churches, it can be maintained that the Code has received the substance of the conciliar doctrine on the communio ecclesiarum. 61 And in fact from this basic statement all the other constitutive elements of the doctrine can be derived by a process of explicitation. The reason is that the formula in quibus et ex quibus defines the source of the communio on the basis of a hermeneutical model marked by a paradigmatic clarity. For although communio includes a whole range of meanings that vary in importance and correctness, it consists essentially in a relationship of immanence that applies to all the structural elements in the Church’s constitution: the mutual immanence of the universal and particular dimensions of the one Church of Christ; the immanent reciprocity in the relationship of the faithful and the Mystical Body; the immanence marking obligation and right; and the relationship of reciprocity between common priesthood and ministerial priesthood, and between word and sacrament.
The Code should, however, have made clearer the two ways in which the communio ecclesiarum becomes a reality. It does not arise solely from the hierarchic, constitutive relationship between particular churches and the Roman Church (can. 331, 349, § 3, 431, § 1), but also from the reciprocal relationship between the individual particular churches. This second relationship, even though derivative compared with the first, 62 is no less essential for understanding the nature of the communio ecclesiarum that is the direct ontological and gnoseological foundation of “episcopal collegiality.” The Council, unlike the Code, brought out this “horizontal” aspect of the communio ecclesiarum at the level of the universal Church in UR 14, § 1 (where the relationship of communion in faith and sacramental life is defined as a relationship between “sister” churches), and especially in LG 23, § 2, where the Church is expressly said to be a corpus Ecclesiarum.
Ignoring, however, these passages in which other analogous doctrinal suggestions of the council combine in an especially effective way, 63 the Code - even more than the Council itself - does give a glimpse of this same dimension at the level of the particular churches. For such institutions as ecclesiastical provinces and regions (can. 431ff.) and particular councils (can. 439) are not thought of as resulting from a convergence of individual bishops, as is true of episcopal conferences (can. 447), but rather as a product of the communio ecclesiarum that exists among the particular churches. 64
Clearly present in the Code, on the other hand, is the conciliar idea of the communio ecclesiarum with its reversal of position on the relationship between the Catholic Church and the separated churches and ecclesial communities. The reversal is basic to an understanding of the nature of this Church as embodiment of the one Church of Christ. It appears in the Code both in can. 844, § 3-4, 908, and 1124, and in can. 204, § 2, which cites the laboriously elaborated passage in LG 8, § 2, according to which the one Church of Christ “subsists” in the Catholic Church. This means that because it embodies communio plena, the Catholic Church represents the “hierarchic” high point of the gradual self-realization of the Church of Christ.
The conciliar teaching on the oneness of the Church of Christ (e.g., LG 8, § 2, and UR 3, § 2), which is received without further development in can. 96 and 369 of the Code, returns to the ecclesiological thinking of the time before the age of controversy (it had survived in can. 87 of the old Code). The idea that communio can be realized in stages has led to specific reversals within the Catholic Church itself, as can be seen in the idea of excommunication or the exclusion from Eucharistic communion of faithful who are in a state of serious sin (can. 915 and 916), and in the doctrine of the tria vincula required for full membership in the Church; the latter teaching is taken over in can. 205 but with the omission of the conciliar phrase Spiritum Christi habentes (LG 14, § 2). 65 This last-named very important pruning of the conciliar text is a further example of the tenacious resistance offered by juridical positivism to the reception at the institutional level of the full formal dynamism inherent in the ecclesiological principle of communio, which has its roots in the mystery of the Trinity.
Communitas plena, which is the ultimate point of reference for membership in the Church, is found in the Catholic Church precisely because in the latter there is by definition (even if the fact is not always historically evident) a total immanence of the universal and particular dimensions of the Church; in this it differs from the separated churches and ecclesial communities.
Only an ecclesiology that takes the one Church of Christ as its generative point of departure is in a position to avoid the impasse in which an ecclesiology exclusively of the universal Church or one exclusively of the particular Church lands itself. At the same time, an ecclesiology of the one Church of Christ must distance itself from the view (which can be found in the Council) according to which the universal Church and the particular Church are different concrete, material entities; instead it must look upon them as the two constitutive formal dimensions of the one Church of Christ. 66 For the universal Church as such does not materially exist in a place other than that in which the Church of Christ exists as particular.
In view of this, it is symptomatic that the Code has not made its own the passage in LG 26, § 1, which says: “In these (altar) communities, though they may often be small or poor, or existing in the diaspora, Christ is present through whose power and influence the One, Holy, Catholic, and Apostolic Church is constituted.” The reference to the Eucharist, which is the source and summit of Christian life (can. 897), might have caused the legislators some doubt about the priority given to the universal Church over the particular Church in the systematic organization of Book II of the Code.

c)  In regard to collegiality (or communio ministeriorum), the Code must once again be said to have stuck closely to the teaching of Vatican II and made no effort to note factors (admittedly, already absent from the Council’s treatment) that might suggest possible structural limits set for the primacy by collegiality. 67 Like Vatican II, the Code uses (but how could it have done otherwise?) a terminology whose predominantly juridical character and cultural presuppositions prevent a clear grasp of the fact that collegiality is not exercised only when it finds expression in the formal juridical mode of a collegial act (as defined in can. 119 among the general norms) but in other ways as well. In the abstract, the term “synodality” is equivalent to “collegiality.” But in fact it makes it possible to give the idea of collegiality a less reductive meaning. 68
On the other hand, the adverb conjunctim (and indeed the very words collegium and collegialis), which can. 447 takes materially from the Council (CD 38, § 1) with reference to episcopal conferences, excuses the Code from the obligation of making it clear that the principle of collegiality applies not only at the level of the universal Church but also at the level of the particular churches. This is an obligation, however, that can no longer be avoided twenty years after the Council.
But the Code has not remained completely deaf to the ecclesiological developments of the past twenty years. In their systematic organization of the material, the lawgivers have located the intermediate collegial agencies (particular councils, episcopal conferences) no longer after the universal Church, as in the old Code, but after the particular churches. They did so in order to show that the power that these agencies exercise is of episcopal, not primatial, origin.
The Code also deals with the relationship between the college of bishops and the Pope without leaving room for very much discussion. The reason is that in its systematization the Code unvaryingly gives priority to the Pope over the college. The council, on the other hand, at least in passages in which the ecclesiological problem is not looked at primarily from a collegial institutional standpoint but remains imbedded in broader theological reflection, repeatedly does not hesitate to give the college of the apostles priority over Peter and the college of bishops over the Pope. The consistent way in which the Code has instead put the Pope before the college (can. 330ff., 746, 749, 782) 69 gives the impression that, at least for itself, it preferred to ignore the doctrine of the one subject of supreme power in the Church. 70
This doctrine, unlike that of the two (inadequately distinct) subjects, gives a clearer glimpse of how the supreme and full power of the college over the universal Church could lead to the concentration of primacy in a single person. 71 The application of the adjective immediata to the potestas of the Pope does not change the nature of this power in relation to the power of the college, once it is granted that the college, in which individual pastors directly represent their particular churches, necessarily has a potestas immediata over these churches. 72 This approach is dominated by the typically juridical and not necessarily ecclesiological principle that the universal takes precedence over the particular. It degenerates even more into verticalism by reason of the fact that the Code, adopting the same civil law (rather than constitutionalist) outlook as the 1917 Code, begins its series of norms regarding the Pope without locating them in the ecclesiological context of the universal Church as it does for intermediate agencies, whether personal or collegial, that is, for bishops and parish priests. Can. 330, which was introduced at the last moment, is important but it does not substantially alter for the better the direction of the overall trajectory.
The idea of communio hierarchica also regulates the relationship between bishop and priests within the presbyterium. It must be acknowledged that Vatican II itself shows a good deal of terminological fluctuation and doctrinal uncertainty in this area. 73 In LG 28, § 2 (at the end) and PO 2, § 2, the presbyterium is seen as a universal college of priests, parallel to the universal college of bishops. In PO 2, § 1, and CD 11, § 1, on the other hand, it is seen as a community of presbyters who form a body distinct from the bishop, somewhat as does the cathedral chapter. The passages in LG 28, § 2 (at the beginning), PO 8, § 1, and AG 13, § 3, in which the issue is resolved and the presbyterium emerges as the community of presbyters with the diocesan bishop at its head (he is therefore a member of the presbyterium) were not received by the Code. It might indeed be admitted that if can. 713, § 3, and 400, § 2, are analyzed simply in terms of syntax, they suppose the image of the presbyterium as a college of priests that includes the diocesan bishop. But the image of a separate body is to the fore in all the other canons dealing with the presbyterium (369, 245, § 2, 529, § 2, 754), including the fundamental canon (495, § 1), which prescribes the obligation of setting up a presbyteral council.
This striking lack of formal exactitude is due in the final analysis to the Code’s failure to understand that the synodal structure of the presbyterium is an analogous projection of the synodal structure of the universal Church in the particular Church 74 The universal Church, with its characteristic synodal structure, could not be embodied in an ontologically true way in a particular church that was structured exclusively around a single person.
The reason for the Code’s inattention is that among the many conciliar texts asserting that presbyters are “cooperators” of the bishop (or the episcopal order) and received in can. 245, § 2, and especially in can. 384, in which the bishop is ordered to “attend to” (audiat) his presbyters, the Code neglects the most important, namely, the passage in PO 7, § 1, in which presbyters are defined not only as fidi cooperatores but also as cooperatores necessarii of the bishop. Here, in a nutshell, is the ecclesiological justification for the presbyterium. The hearing the bishop is to give to the presbyters does not reflect simply a moral, legal, or vaguely communional obligation, but flows from the ontological structure of communio itself, which implies an immanence of the component parts. The adjective necessarii defines the nature not only of the presbyteral ministry but of the episcopal ministry as well. It follows that the obligation to have a presbyteral council is not justified merely by corporative principles, but has its raison d’être in the fact that the ministry of the diocesan bishop is not purely personal but essentially synodal, although the analogy probably does not justify us in thinking that the presbyterium is the single subject of potestas in the particular Church, as the college of bishops is in the universal Church.

B. The Institutional Aspect

a)  With regard to the communio fidelium I have already pointed out that in response to the line taken by the Council the Code provides many areas for participation, individual and collective, by the laity, which makes up by far the largest sector of the faithful but has traditionally been the most marginalized. But in doing so the Code has not avoided useless exclusions and important omissions.
In the area of individual lay participation, the basic institutions that convey this recognition and were to some extent anticipated by postconciliar law, both common and particular, are: ecclesiastical office, which is defined in such a way as to include nonordained and “collective” ministries (can. 145, § 2); and the possibility of lay persons filling the office of judge (can. 1421, § 2), chancellor (can. 482, § 1), missionary (can. 784), pastoral leader of a parish (can. 517, § 2), official witness at a marriage (can. 1112), and preacher (can. 766). The exclusion of women from the regular ministry of reader and acolyte (can. 230, § 1) has no theological basis. On the other hand, the exclusion of all laypersons from the office of homilist (can. 767, § 1), can at least be based on the fact that there is some theological doubt in this area. 75 As far as omissions are concerned, it cannot be denied that the Code has neglected the necessity of establishing new forms of lay ministry, some of which have won approval in the practice of not a few particular churches. 76
In the area of “collective” participation, there are some important achievements and omissions. On the one hand, there are the norms establishing the optional participation of laypersons in particular councils (can. 443, § 4) and their obligatory participation in diocesan synods (can. 463, § 1, no. 5),as well as their nonexclusion in principle from ecumenical councils (can. 339, § 2). On the other hand, there is the merely optional establishment of pastoral councils, diocesan (can. 511) and parochial (can. 536, § 1). If we take into account the fact that at the diocesan level the problem concerns not only the laity but the clergy as well, and that the Code allows not only for the establishment of a diocesan pastoral council (without, however, hoping for it, as Vatican II did) but also of parochial councils (for which Vatican II did not provide), then the failure to establish these representative structures in common law as forms of expression required by he common priesthood can be interpreted only as an unnecessary penalization of the laity, especially in light of its basic qualification, recognized by the Code itself (can. 228, § 2), for filling synodal offices.
When the Code came to translate the various roles of bishops, presbyters, and laypersons in the celebration of the Eucharist into institutional terms, it found no detailed leads in Vatican II. It therefore adopted the traditional solution, anticipated in the motu proprio Ecclesiae sanctae (I, 16, 2), of distinguishing between deliberative vote and consultative vote.
General theory recognizes other technical ways of expressing varieties of participation in the exercise of power: a deliberative vote for everyone, combined with the right of veto or the reservation of consent to qualified members, or the granting, ad nutum of the superior (in certain areas or in individual cases), of a deliberative vote to those to whom the law grants only a consultative vote. Although the right of veto, which is a more massive expression of the freedom enjoyed by those who possess or usurp power (consider the United Nations), is alien to canon law, the reservation of consent and the granting ad nutum of a deliberative vote are institutions that conceptually imply a negation of the truly juridical character of a deliberative vote.
The fact that bishops in their role as witnesses, not only constitutive but necessary, of the apostolic faith express themselves in a deliberative vote, which they have in virtue of divine and not simply human law, keeps the reservation of consent, which the Pope enjoys in the college, from downgrading their deliberative vote to a merely consultative vote. But in the canonical order the consultative vote likewise possesses a certain necessity, thanks to the relationship of immanent reciprocity that exists between the common priesthood and the ministerial priesthood. This vote can be described as consultative only because the witness given by presbyters and laypersons to the faith, though being, like that of the bishops, inherently constitutive (thanks to the sensus fidei), is not binding in the same way. It follows from this that despite the alternative technical and terminological ways available for expressing the participation of the laity in the decisions of the Church, this participation cannot be misunderstood, as Acerbi, for example, misunderstands it, 77 as a simple “help” given by the laity to ordained ministers. The role of the common priesthood (and of the sensus fidei) is not to help the ministerial priesthood but to express its own witness and its own views on the faith and on Church discipline.
The common priesthood is in fact primary, even in relationship to the ministerial priesthood. Consequently, the latter cannot ignore the witness of the former without violating the principle of communion. Although the deliberative vote and the consultative vote are institutions that do not succeed in translating into juridical terms the full ecclesiological dynamics of communio hierarchica, they are in fact the most transparent and therefore least inadequate technical means of expressing it. 78 Moreover their application can always be nuanced or strengthened by technical expedients of various kinds, as postconciliar particular law has always shown itself able to do.
The Code could have done greater justice to the different relationships that exist between, on the one hand, the laity and bishops and, on the other, the laity and presbyters, if it had, for example, explicitly allowed for an appeal to the bishop by a parochial pastoral council in case of an unjustified refusal by the pastor to comply with a consultative vote that had the backing of a qualified majority.

b)
  The institutional concretization of the communio ecclesiarum can be evaluated by taking as point of reference the legislative, administrative, and judicial autonomy of the particular churches.
The revisers of the Code could obviously have been more courageous in the legislative area, if they had had a more decisive grasp than they actually show of the volume of common law. 79 From a quantitative standpoint two areas of discipline that are especially vital and responsive to every reforming impulse - as shown by the upheaval and suffering of the years after the Council - can be regarded as symptomatic of a certain attitude adopted by the legislators toward the problem of autonomy. I am referring to institutes of consecrated life and to the formation of the diocesan clergy. In the former the degree of legislative autonomy granted to the ius proprium is very great, whereas in the latter it has clearly been reduced.
Not the least reason for the latter reduction is that the institutionis sacerdotalis rationes of the episcopal conferences find in the ratio of the Holy See (can. 242) a barrier that precludes the possibility of adequately diversifying the training of the diocesan clergy to fit the spiritual, ethnic, and cultural context of the individual groups of particular churches. It must be observed, moreover, that from the viewpoint of its material reception of the Council, the Code has preferred to draw its inspiration from Optatam Totius rather than from Presbyterorum Ordinis. 80 As a result, the educational model it proposes is calculated to ensure that the candidates will live lives befitting the status clericalis rather than that they will be prepared to exercise the pastoral ministry. Although it is true that the existence of the presbyteral ministry, based as it is on the sacrament of orders, is not merely a functional organization of the status fidelium, it is also true that the pastoral purpose of the sacrament must determine the preparation for its exercise.
On the other hand, the exemption granted to institutes of consecrated life has been much less extensive than the discussion at the Council would have suggested. Consequently, the legislative autonomy given to them takes the form not so much of freedom in relation to the particular churches as of an area of freedom within their relationship with the Holy See, which, however, possesses the necessary means of controlling this freedom at the administrative level (as the norms set down in can. 573-606 show). It must therefore be concluded that here again the final result does not differ greatly from that achieved in the area of the training of the diocesan clergy, where autonomy is already precluded at the legislative level.
After these observations, which can to some extent be extended to other areas of discipline, it must be acknowledged that in the new Code reference to particular legislation is no longer contingent and to be decided case by case by the legislator (as in the 1917 form of government), but has become a structural principle of the canonical order. 81 The dominant concern no longer seems to be to ensure the uniformity of legislation required by the medieval principle unum imperium, unum et ius, as in the old Code. The concern is rather to establish a new constitutional balance between the universal and particular dimensions of the Church of Christ.
In the administrative area the reception of the Council has perhaps been more thoroughgoing, thanks to the application, in can. 87, of CD 8 a and b. 82 The strictly juridical principle of the old discipline, that only the author of a law (or his superior) can dispense from it, has been replaced by the ecclesiological principle that the diocesan bishop has all the faculties needed for providing for the spiritual good of his faithful. The shift from a system of concession to a system of reservation has thus brought about an almost Copernican revolution within the canonical order. Here again, however, the most stubborn resistance to decentralization shows itself in regard to the obligations inherent in the state of the evangelical councils and in the clerical state (see, for example, can. 291, 686, 691, § 2, 700, 1078, § 2, 1079-1080).
If we prescind from the simplification of procedures (which is, however, something that also concerns the universal Church), we find that no progress has been made beyond the Code of 1917 in the area of the judicial function. The jurisprudential autonomy of the particular churches was acknowledged in can. 19 of the 1980 draft as a means of filling in legislative lacunas, but it was suppressed at the last moment. If the problem was to ensure, in the judicial area as elsewhere, an equality before the law that was rendered doubtful by an often excessively free and easy local jurisprudence, this could have been accomplished by expedients of an administrative kind, without directly attacking the value of the jurisprudence of the particular churches.
c)  The institutional reception of the communio hierarchica ministeriorum is to a great extent identifiable with the problem of synodal or collegial structures.
In discussing the collegial relationship of the bishops and the Pope, the most recent literature has shown in sufficient detail that, instead of receiving the doctrinal formulas of Lumen gentium that allow the greatest range of possibilities and are most respectful not only of the historical experience embodied in the ecumenical councils of the first millennium but also of the practice of Vatican II itself, 83 the Code has preferred the institutional interpretations given in the “prefatory note of explanation” (nota explicativa praevia), which, as it were, encloses the college of bishops in a rigid hierarchic wrapper. 84 The tendency to place excessive emphasis on the primacy evidently surfaces in other contexts as well, as, for example, in the assignment to the Pope of the right to administer and dispose of all ecclesiastical goods, instead of allowing him a simple right of control (can. 1273).
It is true that, apart from any possible political intentions, the Code has in fact shunted ecumenical councils into a systematic position of secondary importance, even in comparison with the position given councils in the 1917 Code. But this does not make any more plausible the claim that it gives the college of bishops a substantial and systematic priority over councils. 85 The subject of plena et suprema potestas is admittedly not councils as such but the college of bishops, and this is true even when councils are in progress. On the other hand, there is no doubt that a council should be regarded as an institutional expression of the most binding as well as the most solemn form of episcopal collegiality. But this must not be understood as meaning that in order to be real, collegiality must take the form of “conciliarity,” if “conciliarity” implies a permanent or ongoing ecumenical council. 86 From the standpoint of terminology the abstract idea of “conciliarity,” which has been taken over from theology, only increases the ambiguity inherent in the term “college.” Though used by Vatican II as an alternative for juridically less ambiguous terms (coetus, ordo), “college” prevents the elimination from theological and canonical thinking of the conviction that, if collegiality is to be genuine and real, it must necessarily find expression not only in technically collegial acts but also in the most binding form, the deliberative vote.
As a matter of fact, the ecclesiological reality we call communio hierarchica episcoporum is not conceptually reducible to the juridical notions of college and deliberative collegial act. The reason for this is not so much the hierarchical structure of the college (as the “prefatory note,” no. 1, would suggest), but that the bishops are bound by the synodal dimension of their office even when they act outside strictly collegial structures. Even prescinding from the fact that, according to the juridical technicalities of a collegial juridical act, a consultative vote can have a place in, for example, a synod of bishops, where the acting subject is not the individual bishops or even the majority of bishops but the synod as such, it must be admitted that the word “synodality” is in the final analysis better suited than “collegiality” to convey a correct idea of the ecclesiological reality.
Because it is not prejudiced by historical and juridical preconceptions, “synodality” can include all the levels at which the in solidum responsibility of the college of bishops is expressed: 87 from concelebration, which takes the form of parallel actions, to the concern of individual bishops for the universal Church; the ordinary Magisterium, which finds expression in collective actions; the acts of episcopal conferences in matters not pertaining to their competence as collegial agencies; the consultative actions of the synod of bishops, the college of cardinals, or presbyteral and pastoral councils; and other possible juridical forms not yet used, all the way to the deliberative collegial actions of the college and ecumenical councils.
In order to be in a position to evaluate potential institutional forms that would be alternatives to the solutions adopted in the “prefatory note,” and even new by comparison with the historical relationships between college and Pope, one would have to provide theoretical explanations for a series of other theological data and problems. First of all, there is the fact that synodality, even when exercised consultatively in service to the primacy, is not without a profound ecclesiological value, 88 for such activity tends to enhance not only the primacy but also the position of the episcopate. 89 Secondly, there is the ecclesiological significance to be given to the fact that ecumenical councils have never been permanent. In light of this, is it possible that Vatican II called for conciliarity if the latter is to be regarded as the basic institutional embodiment of the limits that collegiality possibly places upon the primacy?
It certainly cannot be denied that in theory the college of bishops can commit itself to celebrate a council at fixed intervals. But if it be accepted that a council, to be effective, presupposes the emergence of a need of the Church that can be formulated in a sufficiently organized way, then such a course evidently runs the risk of starting a formal synodal practice that is counterproductive - to say nothing of the fact that the college would remain in authoritative control of its own commitment. Even in the hypothesis suggested by the theory of a single subject of authority in the Church, namely, that the Pope exercises the authority of the college itself, it must be admitted that the Pope would probably retain his freedom in face of the norm established by the college.
The limits that collegiality places on the primacy cannot in fact be understood as materially reducing the plena potestas but only as limits on the modality of its exercise. The hypothesis that the synod of bishops is authorized to represent the entire college is not a plausible one, 90 because no one in the Church, and therefore not even the bishops, can be represented by others in the act of bearing witness to their own faith. The compromise formula of can. 343, thanks to which the Pope can allow the synod a deliberative vote, and the thesis that allows for the possibility of appealing from the synod, invested by law with deliberative power, to the college of bishops or a council, are juridical substitutes, useful perhaps for encouraging a more intense synodal practice, but incapable of providing a theoretical solution to the problem of the limits that collegiality places on the primacy. Any limitation or self-limitation of papal authority that prescinded from the intrinsic objective truth of the college-pope relationship could only result from a voluntaristic nominalism that would be unable to establish a practice epistemologically capable of revealing the intrinsic nature of the relationship itself.
If the principle be accepted that ecclesial practice can give rise to a process of doctrinal development only on condition that the practice is based on doctrinal elements already clearly possessed, and if it is permissible therefore to express dissatisfaction with the Code’s reception of the “prefatory note,” rather than the more open and surer formulas of Lumen gentium, it can only be hoped that in the future the synodal practice of the episcopal college at the level of the synod of bishops will develop as fully as possible the potentialities present in the doctrinal truth that is already possessed with certainty.
d) The final institutional element in the communio ministeriorum is the presbyterium. The existence of this collegial entity around the diocesan bishop is required not simply by the need to provide the bishop with helpers, as though he were not in a position to carry out by himself the many tasks inherent in his ministry, but by ecclesiological considerations, as we have seen. The presbyterium takes institutional form first of all in the presbyteral council, which in turn leads to the college of consultors (can. 496ff.); but in another whole series of juridical institutions it has the factors that more or less directly contribute to making more organic the unity of the presbyters among themselves and with their bishop. 91 I am referring to institutions that were accepted by Vatican II or are given shape directly by the Code and that tend to dismantle structures established in the course of history in order to ensure the clergy an increasingly greater autonomy of the corporative type over against the bishop. In the process, they destroyed the very idea of a presbyterium.
Not all the institutions foreseen by the Council have, however, been received by the Code in an equally decided way. For example, the principle of a communion of goods, which is suggested in PO 8, § 3, and 17, and by CD 28, § 3 and § 4, has been completely neglected, and the principle of a common life has been taken over by the Code (can. 245, § 2, 280, 533, § 1, 550, § 1-2) with even less conviction than Vatican II itself showed (OT 11, § 2, and PO 8, § 3). On the other hand, the Code has made obligatory a common diocesan fund for the support of the clergy (can. 1274, § 1), which PO 21, § 1, proposed as optional, and it has specifically stated the right of association for all the faithful (can. 215), including the clergy, although it favors, in a discrete way, associations of diocesan clergy within the presbyterium as distinct from those open to everyone in the Church (can. 278).
Other factors of basic importance because of their impact on the bishop-presbyter relationship are, on the one hand, the radical relativization of the principle of territoriality, the application of which is excluded by the theological definition of a particular church and a parish (can. 368-369, 374, § 1, 515, § 1, and 518), and, on the other, the removal from common law of the benefice system (can. 1272), with the consequent suppression of the principle of irremovability (can. 522), called for by PO 20, § 2, and CD 31, § 3, respectively. These institutions had contributed greatly to fragmenting dioceses into small parochial entities by guaranteeing the clergy the material conditions for the economic self-sufficiency that their juridical and pastoral autonomy presupposed. With the abolition of the benefice system is connected, at least in fact, the suppression of the rights of presentation and popular election and the institution of concurrence, as decreed by CD 28, § 1, and Eccl. Sanct. I, 18; these two texts are the basis for interpreting can. 523, which establishes a clear juridical presumption in favor of the free conferral of parochial offices by the bishop. Related to the elimination of irremovability and to the norms for the resignation of parish priests who have reached the age limit (accepted by can. 538, § 3; see CD 31, § 4, and Eccl. Sanct. I, 20, § 3) are the norms of the Code for the removal and transfer of parish priests (can. 1740-1752), as called for by CD 31, § 3, and Eccl. Sanct. I, 20 § 1.
All these institutions are clearly connected both with greater mobility, for which the clergy is to be prepared by seminary education (can. 257), and with the relaxation of the discipline of incardination (can. 265-272), as provided for in PO 10, § 2, and Eccl. Sanct., I, 23. There is question in the main of norms that, in addition to urging upon all presbyters a sense of responsibility for the universal Church, at the same time emphasize the fact that the clergy is structurally defined in its apostolic mission by a constant reference to the bishop and the presbyterium.
This transformation in the identity of the diocesan clergy is effected through an organic change in structures, which are now able to bring out better the ontological, sacramental, and jurisdictional bond among all the members of the presbyterium. The transformation makes clear the principle that the pastoral mission in the diocese is entrusted to the presbyterium as such, with responsibility for it being individually differentiated but synodally reciprocal. This means a radical change in the meaning of pastoral coordination. Coordination is called for not on grounds of efficiency but for ecclesiological reasons. It is in this setting that two other institutions, new even in relation to the council, have their place: the entrusting of one or more parishes to several priests in solidum (can. 517, § 1), thus making the communio ministeriorum of the presbyterium a reality at the parochial level, and the establishment of a college of diocesan consultors (can. 502), which, to the extent that it replaces the cathedral chapter, does away with the corporative element that contributed so much in dioceses to creating the image of a clergy competing with the bishop.

4. Sacra Potestas

a)  Another content important for evaluating the Code’s reception of the teaching of Vatican II is sacra potestas. 92 The Council carefully avoided taking a position in the doctrinal debates on the existence of two powers, one of orders, the other of jurisdiction, and of a possible third power, that of teaching. In principle it left the traditional distinctions untouched. 93 On the other hand, it is undeniable that Vatican II chose to express itself, when dealing with the Church’s power, by means of the unitary idea of sacra potestas, which is outside the tradition of the 1917 Code and avoids the ideas of “power of orders” and “power of jurisdiction.” Except for LG 23, § 2, where the term actus iurisdictionis seems to be a synonym for potestas iurisdictionis, in all the other passages in which iurisdictio has a canonical and not merely a civil law meaning, it can be replaced, without any change of meaning, by the unitary and general term potestas or auctoritas, without the limiting genitive iurisidictionis. 94
The Code has not adopted this line either materially or formally, but has chosen to follow three sources that differ in their inspiration but have in common a preconception of the Church as a societas and therefore an idea of ecclesial power with secular overtones. The three sources are: the doctrine that underlies the “prefatory note” but is not necessarily part of its dogmatic content; 95 the teaching that the power of orders and the power of jurisdiction differ in their nature; and, finally, the division of the power of jurisdiction into legislative, administrative, and judicial, a division closely linked to the philosophical and constitutional theory of the separation of powers. An irrefutable sign that the Code has not made any effort to treat potestas as unitary entity is undoubtedly the removal from can. 1213 of the idea of sacra potestas, which was part of it in the 1982 draft. Admittedly, the context in which the term appeared there was doctrinally irrelevant. It is highly significant, nonetheless, that the Code should have decided at the last moment to replace the formula according to which the bishops are free to exercise sacra potestas in their churches with the formula couched in the plural, and now - more ambiguous than ever - according to which the bishops are free to exercise suas potestates et munera (sic!) in their churches.
b)  In the sacramental area of the exercise of potestas, the Code renounces both the term potestas and the institution of delegatio, which has traditionally been used to denote the transmission of the material content of a power. The most important context here is undoubtedly the sacrament of penance (can. 872ff.), which is regarded by the school of canon law of which Mörsdorf is the most illustrious contemporary representative 96 as the most telling instance of collaboration between the power of orders and the power of jurisdiction as two causes together producing a single sacramental effect, namely, reconciliation with God and with the Church. Contrary to the 1917 Code (can. 872ff.), the new Code regularly replaces the word potestas (iurisdictionis, absolvendi, audiendi confessiones) with the word facultas, thereby also renouncing the institution of delegatio (can. 966ff.). Thus the Code seems explicitly to suggest in can. 966 that absolution from sins is the effect solely of the potestas ordinis. As a result, it becomes very difficult to interpret facultas as meaning potestas.
The same phenomenon occurs over and over: in the sacrament of confirmation, where instead of delegatio potestatis the term concessio facultatis is used (contrary to the old Code, can. 782, § 2 and 5), as a more appropriate expression of authorization or licentia; in the sacrament of matrimony, where however the word facultas is combined with delegatio, the result beingthe same terminological contradiction found in the old Code (can. 1094); finally, in the sphere of the sacramentals. For sacramentals that can be administered by laypersons the Code uses the word potestas (can. 1168), thus presupposing the possession of a delegated power; for consecrations, however, which presuppose possession of the power of orders, it uses the word concessio (can. 1169, § 2), which is correlated with facultas.
The conclusion must be that the Code no longer maintains (as the old Code could be said to maintain) that the administration of the sacraments is a joint act of the power of orders and the power of jurisdiction (understood as having two material contents), but thinks of it as being rather the effect exclusively of the power of orders. The potestas iurisdictionis would thus no longer operate as an intrinsic factor, but only extrinsically, alongside the properly sacramental power, as a social power that is purely formal in character and sees to the correct administration of the sacraments. It seems clear, therefore, that from a doctrinal standpoint the Code has adopted the solution that also underlies the “prefatory note” (no. 2) and is inspired by the theory of which Bertrams is the principal exponent among contemporary canonists. 97
Neither the “prefatory note” nor the Code gives a theologically plausible explanation of how the potestas iurisdictionis, understood as purely formal in nature, can in case of need annul the operation of the power of orders (which alone has a material content), without the latter ceasing to exist conceptually as a true power. The system at work here, then, is one that assigns an ecclesiological priority to the social power of jurisdiction over the sacramental power of orders.
c)  In the nonsacramental area, on the other hand, the Code seems to regard the potestas iurisdictionis as having a material content of its own that differs from that of the potestas ordinis.
Like the Code of Pius X and Benedict XV, the new Code uses the word potestas (iurisdictionis) in strict relationship to those acts of ecclesial authority that have traditionally been looked upon as evident operations of the power of governance. Thus it uses the word in connection with the granting of indulgences (can. 995), where there is no doubt that the potestas is to be understood as power of jurisdiction, inasmuch as the college of bishops (suprema Ecclesiae potestas) cannot express itself collegially according to the communicative logic proper to sacramental signs but only according to that proper to the word, that is, to jurisdiction; or again in connection with the potestas dispensandi from vows (can. 1196), oaths (can. 1203), and matrimonial impediments (can. 1079, § 2-4). The same language is used for the remission of canonical penalties in the external forum (can. 1354, § 2). The exception in this area confirms what was said above about the use of the word facultas in the context of the sacraments; can. 1357, § 3, uses facultas, not potestas, when, speaking of a confessor empowered to remit penalties, it says that he must be facultate praeditum.
The analysis of these two areas - the sacramental and the nonsacramental - shows that the Code distinguishes in a clearly inflexible way between the two potestates of orders and jurisdiction, assigning a material content to the former and making the latter a purely formal control. By using the word facultas in connection with the sacraments and potestas for the nonsacramental sphere, the Code gives two different meanings to the power of jurisdiction itself: one formal and the other material, depending on the area with which its operation is concerned. This double dualism, which betrays beyond any doubt the two ecclesiologies of communio and of societas that are at work, is already contained in a nutshell in can. 130, which establishes the principle that has behind it the authority of the 1967 Synod of Bishops, 98 namely, that the potestas regiminis is normally to operate in the external forum and only exceptionally in the internal. This closely resembles what was thought good by the 1917 legislators (can. 202), who, however, took the societas perfecta as their model of the Church.

d) It is possible to move beyond this positivist position only if we interpret the pointers given by Vatican II in regard to the unity of sacra potestas, which have led the majority of theologians and some canonists to claim that all power in the Church originates in the sacraments, and in regard to the teaching according to which there are different degrees of communion in the one Church of Christ (a doctrine that the Code too accepts; see, e.g., can. 844).
Mörsdorf has seen that the distinction between orders and jurisdiction has its origin in the distinction between the two factors in the Church that produce institutions: the sacraments and the word. 99 These are the two formally different ways in which God has revealed and communicated salvation, which itself is not only something single but is as one and indivisible as the person of Christ himself, the Word who through the incarnation became a sacrament of salvation. Just as Christ communicates himself in his totality in sacrament and word, which are structurally reciprocal, so the oneness of sacrament and word is manifested and concretized in two institutional ways that canonical theory has described terminologically as “power of orders” and “power of jurisdiction.” In orders the logic of communication proper to symbolic sacramental signs prevails, whereas in jurisdiction the prevailing logic is the formal logic of spoken language, that is, of the word (iuris dictio). Orders and jurisdiction are thus the institutional instruments in which the whole of potestas sacra, not merely a part of it, is at work. Potestas sacra therefore does not act according to two material contents but according to two different formal modes having an identical salvific content. It follows that the distinction between power of orders and power of jurisdiction is formal, not material.
This makes it possible to move beyond the two traditional theories in this area. The one maintains that orders and jurisdiction bestow two complementary parts of sacra potestas, and that the Church need only not give, or need only withdraw, jurisdiction in order to keep sacraments from being valid (Mörsdorf). The other holds that the power of orders contains the entire material content of sacra potestas, whereas jurisdiction is purely formal in nature (Bertrams). For even in this second theory control over the power of orders is exercised in accordance with a voluntaristic theory: jurisdiction puts the Church in a position to loose or bind the power of orders to the point of determining the validity of its exercise.
If we distinguish between the transmission of sacra potestas, which can take place only through the sacrament of orders, wherein the word is present (a fact that explains why apostolic succession is connected in its full expression with the sacrament of orders), and its exercise, which follows the two logics of communication proper to the sacrament and the word, then we must conclude that when sacra potestas is exercised within the limits of the substantia sacramenti and the substantia verbi it is always sufficiently effective to bring the Church of Christ into being. In virtue of sacra potestas, which thus exercises a control over itself, the Church establishes what essential elements are required by ius divinum for a sacrament to be a sacrament and for the word to be sufficiently complete so as still to be the word of God. In the hypothesis that these two elements are substantially present, the Church cannot prevent their effective operation even outside communio plena, in a degree that varies with the completeness of their content.
Vatican II teaches that the Church of Christ subsists in the full communion of the Catholic Church in virtue, among other things, of the total immanence in that Church of the universal dimension (all the sacraments and all the doctrine) and the particular dimensions, but that it is also found in various degrees outside the boundaries of the Catholic Church. This teaching makes it intelligible that sacra potestas through which salvation finds binding expression, should also operate with varying degrees of effectiveness. This approach enables us to avoid all voluntaristic views in appraising the validity or invalidity of the sacraments and the word. Communio becomes the setting for judging the validity or invalidity of the actions both of the Catholic Church and of the separated churches and ecclesial communities, because on the one hand it is the ecclesiological reality within which sacra potestas must be exercised if it is to be efficacious and, on the other, it is the reality that sacra potestas helps bring into being. Communio either is or is not, and the Church is called to pass judgment on it in virtue of sacra potestas itself, which it both precedes and follows upon.
If a Catholic minister exercising the functions of orders and jurisdiction that belong to sacra potestas were to go beyond the limits set for him by communio plena (limits established in principle by the canonical order), his sacramental and jurisdictional acts would no longer be capable of bringing about communio plena and therefore of being binding on the Catholic Church. This does not necessarily mean that these acts are null or invalid as nullity or invalidity is understood in the general theory of law. When the substantia sacramenti and the substantia verbi are respected, any positive intervention declaring the sacramental or jurisdictional act of a minister (acting according to the degree of orders that he has received) to be invalid instead of simply illicit is a dubious one. Such, for example, are the norms declaring that the sacraments of penance (can. 966, § 1) and confirmation (can. 882) are invalid when administered by a priest who lacks the necessary facultas.

e)  A final proof of the positivist approach taken to the problem of sacra potestas, and one that makes clear the absence from the Code of any concern to give even a minimum of theological and conciliar direction to a matter so centrally important to ecclesiology and the canonical order, is the introduction on a massive scale of juridical terminology unabashedly smacking of civil law. For in the Code sacra potestas comprises not only potestas ordinis et iurisdictionis but potestas legislativa, potestas executiva, potestas iudiciaria, and even potestas interpretandi (can. 129ff.). The intention may have been to make clearer than in the 1917 Code the various areas of the exercise of power in the Church and the various criteria governing this exercise. The result has certainly been to give the impression that the “powers” exercised are not different functions of a single sacra potestas but powers really and truly separate, as in the juridical organization of states.

 

III. Conclusion

It is not possible to appraise adequately the process of the reception of Vatican II by the Code of Canon Law simply by applying the positive scientific method. If one were simply to compare the material contents of the respective texts without reference to a comprehensive interpretation of the deeper tendencies at work in the Council, one would have to allow that the Code has received, in approximately equal measure, both the ecclesiology of societas and the ecclesiology of communio. At most, one would have to note the fact that the different systematic requirements of the Code as compared with those of the Council have made even clearer the unbridgeable gap between the two ecclesiologies.
Those therefore who maintain that the two ecclesiological models used by Vatican II are necessary structures and cannot be eliminated from theology may well be satisfied with the conclusion that the Code only acted prematurely in accepting the two as equal. The fact that at this level the Code already shows many limitations and omission of details (these, admittedly, of varying importance) in its material and formal takeover of individual texts is something that cannot be gainsaid, but it is secondary in relation to the overall judgment. This is true especially if we take into account the fact that Council and Code, with their different roles in the Church, are not really reducible to documents or sources, because they are events 100 in the Church’s oral tradition and are therefore not susceptible of a purely positivist interpretation.
Those on the other hand who reject the established theological practice of recent centuries and maintain that the Church is not a human society “elevated” to the supernatural sphere but a social entity generated by communio (the formal constitutive element in the entire institutional reality of the Church) 101 will inevitably have a different set of criteria for evaluating reception. It is in fact no longer possible to think that the institutions and laws of the Church are produced by the “spontaneous (biological) dynamics” of human life in community, as is the case in the state; they are produced rather by the social dynamics specific to communion and are knowable in their essence only through faith.
If the essence of ecclesial sociality and canon law differs profoundly from that of human sociality and state law, because the former has its origin preeminently in the sacraments, then neither can sacra potestas be regarded as a social power having the same nature as the social power of the state. Sacra potestas is in fact identical with the binding salvific power inherent in word and sacrament, which together and in the same degree, though according to different formal logics of communication, produce the Church itself together with its sociality, for the purpose of bringing about an eschatological salvation that is already present in history.
If we may legitimately think that the ecclesiology of communion is destined gradually to absorb the scraps of natural law that serve as cues for the ecclesiology of the Church as society and to integrate them into a theological synthesis capable of shutting the door against every dualistic approach, then the Code was clearly not in a position to receive this conciliar datum with all its power of expansion and to identify it as the only factor binding in the future. The fact that twenty years after the Council the Code did not avoid this ambiguity is clearly not a reason for any sense of satisfaction.
Our judgment on the Code will inevitably be even more severe when we consider the discontinuity manifested by the Code in applying the epistemology proper to faith (and called for by the ecclesiological principle of communio: OT 16, § 4) in its overall systematic organization of the legislative material and in its approach to each content. Severity is also warranted by the discrepancies between the conciliar texts and the normative texts of the Code (discrepancies surfacing in the material and formal reception of many institutions). The severity is justified even when it is based, as it is here, on only a partial analysis, though one that deals with some basic areas of legislation.
The limited question of the reception of Vatican II cannot, of course, be made the sole and exclusive criterion for evaluating the Code. Many other points of view would have to be taken into consideration, not least the suitability of promulgating it at the present moment in the history of the Church. In any case, one point is certain: the Code represents a transitional stage of major importance for the life of the Church. Its novelty, even if only partial, in relation to the 1917 Code, is such that it will irreversibly affect the institutional image of the Church and the methodology of the science of canon law. Well before the last two decades this science had indeed already entered upon the fourth stage of its development (despite the resistances of many kinds persisting in a doctrinal approach that can still claim justification in various - outdated - elements of the Code). This fourth phase is the theological phase and is based on the acceptance of theology as co-essential for the development of a general theory of canon law. It was preceded by the sapiential phase of the first millennium, the techno-juridical phase of the golden age that had its origins in Roman law, and the apologetic phase of the ius publicum ecclesiasticum that was based on natural law.
Only the distance given by the years will make it possible to evaluate in an adequately balanced and magnanimous way the impact of the new Code on the consciousness and practice of the Latin Church and the universal Church. For the moment, my impression is that the attempt of the Code to put order into Church discipline by accepting many of the innovative impulses of Vatican II, while also trying to contain the dislocations and profound tensions that emerged in the postconciliar period, is like trying to put the lid on an already operating pressure cooker whose safety valve is the principle implied by Pope John Paul II, namely, that the Code is to be interpreted in the light of Vatican II. 102  This is the principle that must control the work of the Pontifical Commission for the Interpretation of the Code of Canon Law.
When the turmoil has died down and it becomes possible to get a clearer grasp of the doctrinal and institutional problems presently distressing the Church, it will also be possible to begin a new page in the history of the Church.

 

 


* First published: “Aspetti della ricezione del Vaticano II nel Codice di Diritto Canonico,” in: Il Vaticano II e la Chiesa, ed. by G. Alberigo and J. -P. Jossua (Brescia 1985), pp. 333-397. English translation first appeared in: The Reception of Vatican II, ed. by G. Alberigo, J.-P. Jossua, and J.A. Komonchak (Washington 1987), pp. 249-296.

1 Among the many publications that have appeared since the promulgation of the Code, attention must be given to (a) the editions with commentary, in Spanish and Latin: Código de Derecho Canónico, under the direction of L. De Echeverría (Madrid 1983); Código de Derecho Canónico, under the direction of P. Lombardía and J.I. Arrieta (Pamplona 1983); (b) manuals: Nuovo Derecho Canónico, under the direction of L. De Echeverría (Madrid 1983); H. Schwendewein, Das neue Kirchenrecht (Graz 1983); Handbuch des katholischen Kirchenrechts, J. Listl, H. Müller, and H. Schmitz, eds. (Regensburg 1983); H. Heimerl and H. Pree, Kirchenrecht. Allgemeine Normen und Eherecht (Vienna/New York 1983); M. Petroncelli, Diritto Canonico (Naples 1983); G. Feliciani, Le basi del nuovo diritto canonico (Bologna 1984); Münsterischer Kommentar zum codex Iuris Canonici¸ K. Lüdicke, ed. (Essen 1984); (c) collections of essays: Il nuovo codice di diritto canonico, S. Ferrari, ed. (Bologna 1983); La nuova legislazione canonica (Rome 1983); La normativa del nuovo codice, E. Cappellini, ed. (Brescia 1983); E. Cappellini and F. Coccopalmerio, Temi pastorali del nuovo codice (Brescia 1983); F. Coccopalmerio, P.A. Bonnet, and N. Pavoni, Perché un codice nella Chiesa? (Bologna 1984); Dilexit Justitiam. Studia in honorem Aurelii card. Sabattani, Z. Grocholewski and V. Carcel Ortí, eds. (Vatican City 1984); (d) issues of periodicals: AfkKR152/1 (1983); ScCatt112 (1984); (e) monographs: J.B. Beyer, Dal Concilio al Codice (Il Codice del Vaticano II) (Bologna 1984); C. Cardia, Il governo della Chiesa (Bologna 1984); V. Fagiolo, Il Codice del Post-Concilio. Introduzione (Rome 1984); (f) acts of congresses: Il nuovo codice di diritto canonico. Novità, motivazioni e significato. Atti della Settimana di Studio del 26-30 aprile 1983, Pontificia Università Lateranense (Rome 1983); I diritti fondamentali del fedele e le garanzie costituzionali. Atti del V Colloquio Giuridico della Pontificia Università Lateranense dell’8-10 febbraio 1984 (forthcoming); Foi et Institution dans le CIC. Actes de la XVIIe Session de Droit Canonique organisée par la Société Internationale de Droit Canonique et de la Législation Religieuse Comparée et par l’Institut Catholique de Paris, du 26-30 avril 1984 à Paris (forthcoming); The New Code of Canon Law. Acts of the 5th International Congress of Canon Law, organized by the Consociatio Internationalis Studio Iuris Canonico Promovendo and Saint Paul University of Ottawa, August 19-26, 1984 (forthcoming; already in print are two volumes of papers presented to the congress). For the history of the new Code, see F. D’Ostilio, La storia del nuovo codice di diritto canonico (Vatican City 1983); J. Gaudemet, “Collections canoniques et codifications,” RDC 33 (1983), 82-109; R. Metz, “La nouvelle codification du Droit de l’Église, ibid., 110-168. - The translation of the new Code is taken, unless otherwise stated, from The Code of Canon Law. A Text and Commentary, J.A. Coriden, T.J. Green, and D.E. Heintschel, eds. (New York 1985).

2  Some other writings of mine complement the present article: “I presupposti culturali ed ecclesiologici del nuovo ‘Codex,’” in Il nuovo codice di diritto canonico, S. Ferrari, ed. (n. 1, above), pp. 37-68 (German translation in AfkKR 152/1 [1983] 3-30); “Theological Justifications of the Codification of the Latin Canon Law,” in The New Code of Canon Law. Acts of the 5th International Congress (n. 1, above).

3  See G. Alberigo, “Egemonia istituzionale nella cristianità?,” Cristianesimo nella storia 5 (1984), 49-68.

4   See N. Irti, L’Età della decodificazione (Milan 1979), pp. 3-39; R. Sacco, “Codificare: modo superato di legiferare?,” Rivista di Diritto Civile 29 (1983), 117-135.

5  See A. Rouco Varela, “Le statut ontologique et épistémologique du droit canonique,” RSPhTh 57 (1973), 203-226; E. Corecco, “‘Ordinatio rationis’ o ‘ordinatio fidei’? Appunti sulla definizione della legge canonica,” StILT: Communio 36 (1977), 48-69 (French translation in RCI Communio 3 [1978], 22-39).

6  See A. Acerbi, Due ecclesiologie: Ecclesiologia giuridica e ecclesiologia di communione nella “Lumen gentium” (Bologna, 1975).

7  “Rechtstheologische Überlegungen zum neuen kirchlichen Gesetzbuch,” ThQ 163 (1983), 178-88.

8  See H. Müller, “De analogia Verbum Incarnatum inter et Ecclesiam (L.G. 8/a),” PRMCL 66 (1977), 499-512.

9 See, e.g., A. Rouco Varela, “Katholische Rechtstheologie heute. Versuch eines analytischen Überblickes,” AfkKR 145/1 (1976), 19.

10  As, e.g., in matrimonial law.

11  See R. Sobanski, “L’ecclésiologie du nouveau Code de Droit Canonique,” in New Code of Canon Law (n. 1, above).

12  See H. Schnizer, “Individuelle and gemeinschaftliche Verwirklung der Grundrechte,” in I diritti fondamentali del cristiano nella Chiesa e nella società. Atti del IV Congresso Internazionale di Diritto Canonico, Fribourg, Oct. 6-11, 1980, E. Corecco, A. Scola, and N. Herzog, eds. (Fribourg/Milan, 1981), pp. 419-448.

13  See Sobanski, “Rechtstheologische Überlegungen,” pp. 186-188.

14  For example, in the list of the obligations and rights of the faithful (can. 208-223). See Corecco, “Il catalogo dei doveri-diritti dei fedeli nel nuovo CIC,” in Atti del Colloquio Giuridico della Pontificia Università Lateranense (n. 1, above).

15  On the principle of reception, see, e.g., W. Krämer, Konsens und Rezeption. Verfassungsprinzipien der Kirche in Basler Konziliarismus (Münster 1980), esp. pp. 318-336; G. Alberigo, “Wahl-Konsens-Rezeption,”, Concilium, 8 (1972), 477-483.

16  See E. Corecco, “Dimettersi dalla Chiesa per ragioni fiscali,” Apollinaris, 55 (1982), 467-487.

17  This idea endured in canon law until the seventeenth century; see W. Schwickerath, Die Finanzwirtschaft der deutschen Bistümer (Breslau 1942), p. 79; J. Evelt, Die Kirche und ihre Institute auf dem Gebiete des Vermögensrechtes (Soest 1845), pp. 4-6.

18  See the Pope’s first address (Feb. 17, 1979) to the judges of the Roman Rota: “The penalty that is threatened by ecclesiastical authority (but that, in reality, is simply a recognition of a situation in which the subject has put himself or herself) is seen as a means of fostering communion” (TPS, 24 [1979] 220-21). For a comment, see Gerosa (next note), pp. 138 and 243.

19  On this question, see the doctoral dissertation of L. Gerosa, La scomunica è una pena? Saggio per una fondazione teologica del diritto penale canonico (Fribourg, 1984), esp. pp. 249-388.

20  See Communicationes, 2 (1969) 84-85.

21  “Only after he has ascertained that scandal cannot sufficiently be repaired, that justice cannot sufficiently be restored and that the accused cannot sufficiently be reformed by fraternal correction, rebuke and other ways of pastoral care is the ordinary then to provide for a judicial or administrative procedure to impose or to declare penalties.”

22  On the dispute that arose among Italian lay canon lawyers on this problem, see E. Corecco, “Valore dell’atto contra legem,” in La norma en el derecho canonico, Actas del III Congreso Internacional de Derecho Canonico, Pamplona, Oct. 1-15, 1976 (Pamplona, 1979), I, pp. 839-868.

23  See Communicationes, 5:80-82.

24  Ibid., 7:83

25  See, as representative, K. Barth, Die Ordnung der Kirche. Zur dogmatischen Grundlegung des Kirchenrechtes (Munich 1955); E. Wolf, Ordnung der Kirche. Lehr- und Handbuch des Kirchenrechtes auf ökumenischer Basis (Frankfurt 1961).

26  For example, W. Aymans, “Ekklesiologische Leitlinien in den Entwürfen für die neue Gesetzgebung,” AfkKR 151/1 (1982), 27-57.

27  See A. Rouco Varela, “Was ist ‘katholische’ Rechtstheologie?,” AfkKR 153/2 (1984), 530-43; idem, “Die katholische Rechtstheologie heute,” ibid., 145/1 (1976) 3-21.

28  See Communicationes,1:78-79.

29  The idea has been proposed (even in the Commission for the Revision of Canon Law) by S. Kuttner, “Betrachtungen zur Systematik eines neuen Codex Iuris Canonici,” in Ex Aequo et Bono. W. Plöchl zum 70. Geburtstag, P. Leisching, P. Pototschning, and R. Potz, eds. (Innsbruck 1977), pp. 15-21.

30 Thus J. Beyer, “Il nuovo codice di diritto canonico,” ScCatt112 (1984), 130-133.

31  This is the problem raised by W. Aymans, “Ekklesiologische Leitlinien” (n. 26, above), p. 38.

32  On the problem, see E. Corecco, “La ‘Sacra Potestas’ e i Laici,” Studi Parmensi 27 (1980), 5-26.

33  See Beyer, “Il nuovo codice,” p. 133. Numbers I-IV in Beyer’s plan have different titles but deal substantively with the sacraments.

34  Except for baptism, which in can. 96 and 204 begins the treatment of physical persons and the faithful, respectively, the Code does not locate the sacraments in a systematic context that brings out their genetic relationship to norms. Thus the norms for the clerical state (can. 232ff.) are unconnected with the sacrament of orders; those for the universal and local churches (can. 330ff. and 368ff.) have no connection with the Eucharist; and the family, of which the Code says little and this in an unorganized way, is not seen in context as the outcome of the sacrament of Matrimony.

35  On the problem, see E. Corecco, “Considerazioni sui diritti fondamentali del cristiano nella Chiesa e nella società” in I diritti fondamentali (n. 12, above), pp. 1219-1222.

36  See C. Mirabelli, “Protezione giuridica dei diritti fondamentali,” ibid., pp. 397-414.

37  See H. Urs von Balthasar, The Christian State of Life (San Francisco 1983).

38  W. Aymans, “Ekklesiologische Leitlinien” (n. 26, above), pp. 43-45, adopts the surprising view that the evangelical counsels belong under the laws governing associations and not under the laws of the Church’s constitution.

39  See. H. Urs von Balthasar, The Christian State of Life.

40  On this point, see the criticisms already leveled at the projected Code of 1980 by J. A. Komonchak, “The Status of the Faithful in the Revised Code of Canon Law,” Concilium 147 (1981), 37-45.

41  The principal passage on this point in AA, 3, 4.

42  See can. 605. In the project of 1982, charisms were still mentioned in can. 580, 590 § 3, 631 § 3, 708, 716 § 1, 717 § 3, 722 § 1 and 2.

43 It is of interest to note that Vatican II never speaks of charism in reference to members of the Institutes of Consecrated Life (i.e., religious).

44  LG 12, 1, reads as follows; “Universitas fidelium, qui unctionem habent a Spiritu Sancto... in credendo falli nequit, atque hanc suam peculiarem proprietatem mediante supernaturali sensu fidei totius populi manifestat, cum ‘ab Episcopis usque ad extremos laicos fideles’ universalem suum consensum de rebus fidei et morum exhibet. Illo enim sensu fidei... Populus Dei sub ductu sacri magisterii, cui fideliter obsequens... indefectibiliter adhaeret” (italics added). Can. 750 reads: “Fide divina et catholica ea omnia credenda sunt quae verbo Dei scripto vel tradito... continentur, et insimul ut divinitus revelata proponuntur, sive ab Ecclesiae magistero solemni, sive... ordinario et universali; quod scilicet communi adhaesione fidelium sub ductu sacri magisterii manifestantur” (italics added). On the question of the sensus fidei, see R. Bertolino, “‘Sensus fidei’ e consuetudine nel Diritto della Chiesa,” in Studi in onore di Pietro Gismondi (forthcoming).

45  These formulas do not by themselves permit an unambiguous interpretation of the mind of the legislators, even though it seems clear that to “cooperate” (cooperare) does not mean to “participate” (participare) in the nature of a power or office that rightfully belongs to another. In fact, even priests (presbyters), who are the fidi cooperatores of the bishop (can. 245 § 2), help him in virtue of the degree of sacred orders bestowed on them, but they do not share the fullness of the bishop’s sacrament. It follows that interpretation must be based on an ecclesiological presupposition. Those who tend to divide sacra potestas into two powers - one of orders, the other of jurisdiction - will inevitably maintain that the power of jurisdiction may be delegated to laypersons; see, e.g., G. Ghirlanda, “De laicis iuxta novum codicem,” PRMCL 72 (1983), 53-70; idem, “I laici nella Chiesa secondo il nuovo diritto canonico,” Aggiornamenti Sociali 7-8 (1983), 485-496.

46  G. Feliciani, “I diritti e i doveri,” in In Nuovo Codice di Diritto Canonico (n. 1, above), pp. 266-269.

47  Can. 268 of the 1917 Code adopted a nonconstitutional juridical approach and limited itself to praising those of the laity who join associations established or recommended by the hierarchy. Obviously, the existence of “recommended associations” implicitly supposes that the faithful have a right to join them.

48  See, e.g., the apostolic exhortation Evangelii nuntiandi (Dec. 8, 1975), § 58.

49  See Feliciani, “I diritti e i doveri,” pp. 270-273.

50  The number of obligations and duties will obviously vary depending on the criteria used in identifying them. In any case, those not assignable exclusively to the laity seem to be these: can. 225 § 1 (first part of the sentence), 229 § 1-3, 231 § 1-2.

51  The reply given by the president of the Commission in the Relatio of 1982 to Cardinal Palazzini’s objection to the lack of a book De munere regendi was, to say the least, evasive. See Communicationes 14/2 (1982), 123. See also the text published in Communicationes 13/4 (1981), 12.

52  The conciliar text (LG 33 § 3) reads: “Praeterea (laici) aptitudine gaudent, ut ad quaedam munera ecclesiastica, ad finem spiritualem exercenda, ab hierarchia adsumantur”; can. 129 § 2, on the other hand, reads: “In exercitio eiusdem potestatis (regiminis) christifideles laici ad normam iuris cooperari possunt” (italics added).

53  CD 27 § 5, has the expression “valde optandum”; can. 511 says simply “...quatenus pastoralia adiuncta id suadent, constituatur consilium pastorale.”

54  On the difficulty of interpreting the conciliar texts, see E. Schillebeeckx, “The Typological Definition of the Christian Layman according to Vatican II,” in his The Mission of the Church (New York 1973), pp. 90-116; F. Danneels, De subjecto officii ecclesiastici attenta doctrina Concilii Vaticana II. Suntne laici officii ecclesiastici capaces? (Rome 1973), pp. 19-45.

55  A purely sociological interpretation is given by K. Mörsdorf, “Die Zusammenarbeit von Priestern und Laien in ekklesiologisch-kanonistischer Sicht,” in H. Gehrig, ed., “Die andere Hierarchie. Eine kritische Untersuchung zur Einsetzung von Laienräten in den Diözesen der Bundesrepublik Deutschland,” AfkKR 138/2 (1969), 461-509.

56  See E. Corecco, “Profili internazionali dei movimenti nella Chiesa,” in I movimenti nella Chiesa negli anni ‘80 (Milan 1982), esp. 221-234.

57  See W. Aymans, Einführung in das neue Gesetzbuch der lateinischen Kirche, published by the Secretariat of the German Episcopal Conference (Bonn 1983), n. 31, 7-28.

58  See G. Alberigo, “Istituzioni per la communione tra l’episcopato universale e il vescovo di Rome,” in G. Alberigo, ed., L’ecclesiologia del Vaticano II: dinamismi e prospettive (Bologna 1981), p. 248.

59  For a more analytical discussion of the question, see E. Corecco, “Il catalogo dei doveri-diritti del fedele,” in Atti del V Colloquio Giuridico (n. 1, above).

60  See J. Bernhard, “Les droits fondamentaux dans la perspective de la Lex Fundamentalis et de la révision du code de droit canonique,” in I diritti fondamentali, (n. 12, above), pp. 367-395.

61  On the interpretation of this formula, see K. Mörsdorf, “Das synodale Element der Kirchenverfassung im Lichte des 2. Vatikanischen Konzils,” in R. Bäumer and H. Dolch, eds., Volk Gottes.Festgabe J. Höfer (Frieburg/Basel/Vienna 1967), pp. 568-584; W. Aymans, Das synodale Element der Kirchenversfassung (Munich 1971), pp. 318-324.

62  See K. Mörsdorf, “Über die Zuordnung der Kollegialitätsprinzip zu dem Prinzip der Einheit von Haupt und Leib in der hierarchischen Struktur der Kirchenverfassung,” in L. Scheffczyk, W. Dettloff, and R. Heinzmann, eds., Wahrheit und Verkündigung. Michael Schmaus zum 70. Geburtstag (Munich/Paderborn/Vienna 1967), pp. 1435-1445.

63  See G. Alberigo, “Istituzioni per la communione,” (n. 58, above), pp. 236-242.

64  See J. H. Provost, “Particular Councils,” in Acts of the 5th International Congress, (n. 1, above).

65  On the debate over the interpretation of the conciliar phrase Spiritum Christi habentes, see, on the one side, W. Aymans, “Die kanonische Lehre der Kirchengliedschaft im Lichte des II. Vatikanischen Konzils,” AfkKR 142/2 (1973), 397-417, and V. De Paolis, “Communio et excommunicatio,” PRMCL 70 (1981), 271-302 (who argue that the text is juridically unimportant) and, on the other, F. Coccopalmerio, “Quid significent verba ‘Spiritum Christi habentes,’ Lumen Gentium 14, 2,” PRMCL 68 (1979), 253-276, and H. Müller, “Zugehörigkeit zur Kirche als Problem der Neukodifikation des kanonischen Kirchenrechts,” OAKR 28 (1977), 81-98 (who rightly assign a constitutional significance to the text).

66 In his teaching Pope John Paul II moved in this direction in his homily at Lugano on June 12, 1984: I discorsi del viaggio di Giovanni Paolo II in Svizzera, 12-17 guigno 1984, published by the Secretariat of the Swiss Episcopal Conference (Fribourg 1984), p. 17, no. 3.

67  On the discussion of this problem (defined by the author himself as ius cogubernii) at Vatican II, see A. Acerbi, Due ecclesiologie (n. 5, above), pp. 485-553; G. Alberigo, “Istituzioni” (n. 58, above), pp. 249-256.

68  On the problem of synodality, see G. P. Milano, Il sinodo dei vescovi (forthcoming).

69  Priority is given to the college of bishops over the Pope by, e.g., LG 17 § 1, 18 § 2, 19, 20, 21, 23 § 3, 24 § 1. At the concrete level it must be acknowledged that precisely when taking the principle of collegiality into account, the Code imposes some timid but nonetheless significant limits on the free exercise of the primacy when it requires the supreme authority to consult the episcopal conferences before erecting personal prelatures (can. 294) and personal dioceses (can. 372 § 2). Are we to suppose that this same law has been forgotten when it comes to the erection of territorial dioceses (can. 373)? The same tendency surfaces, though in a less compelling way, when the Code allows episcopal conferences to propose the establishment of ecclesiastical regions (can. 433, § 1) or a triennial list of candidates for the episcopate (can. 337, § 2) and allows the presidents of episcopal conferences to propose candidates when a diocesan bishop or coadjutor bishop is to be appointed (can. 377, § 3).

70  Can. 755 § 1, is the only place in the Code where the college of bishops is mentioned before the Apostolic See.

71  See K. Rahner, “On the Divine Right of the Episcopate,” in K. Rahner and J. Ratzinger, The Episcopate and the Primacy (Quaestiones Disputatae, 4; New York 1962), pp. 64-135.

72  On the meaning of these terms in Vatican I, see J.-P. Torrell, La théologie de l’épiscopat au premier concile su Vatican (Paris 1961), e.g., pp. 105-162.

73  On this question, see O. Saier, “Die hierarchische Struktur des Presbyteriums,” AfkKR 136/2 (1967), 351-360; see also H. Müller, “De differentia inter episcopatum et presbyteratum iuxta doctrinam Concilii Vaticani Secundi,” PRMCL 59 (1970), 614-618.

74  See E. Corecco, “Sacerdozio e presbiterio nel CIC,” Servizio Migranti 11 (1983), 354-372.

75   Laypersons never preach with the same formal authority as an ordained minister, because in them the word is not connected with the sacrament of orders. This is probably the only reason that can be given to justify excluding laypersons (in ordinary circumstances) as potential homilists. In fact, it is in the celebration of the Eucharist that the word and the sacrament of orders manifest in the highest degree their unity and reciprocity. See K. Mörsdorf, “Wort und Sakrament als Bauelemente der Kirchenverfassung,” AfkKR 134/1 (1965), 80-88.

76  See, e.g., S. Dianich, Teologia del ministero ordinato. Una interpretazione ecclesiologica (Rome 1984), pp. 259-274.

77  A. Acerbi, “L’ecclesiologia sottesa alle istituzioni ecclesiali post-conciliari,” in L’ecclesiologia (n. 58, above), pp. 226-228.

78  See E. Corecco, “Parlamento ecclesiale o diaconia sinodale?,” Strumento Internazionale per un Lavoro Teologico: Communio 1 (1972), 32-44.

79  See A. Scheuermann, “Das Neue im CIC 1983,” AfkKR 152/1 (1983), 132-134.

80  See also the observations of F. Coccopalmerio, “La formazione al ministero ordinato,” ScCatt 112 (1984) 219-251.

81  On this problem, see H. Schmitz, “Gesetzgebungsbefugnis und Gesetzgebungkompetenzen des Diözesanbishofs nach dem CIC von 1983,” AfkKR 152/1 (1983), 62-75.

82  See H. Schmitz, “Einleitung und Kommentar zu den Vollmachten der Bischöfe und Ordensoberen,” Nachkonziliare Dokumentation, 16 (Trier 1970), pp. 1-8.

83  See G. Alberigo, “Una cum patribus. La formula conclusiva delle decisioni del Vaticano II,” in Ecclesia Spiritu Sancto edocta. Mélanges théologiques. Hommage à Mgr. Gérard Philips (Gembloux 1970), pp. 291-419.

84  See J. A. Komonchak, “The Ecumenical Council in the New Code of Canon Law,” Concilium 167 (1983), 100-105.

85  See the statement of the Concilium Foundation, “Anxiety about the Council,” ibid., pp. 111-112.

86  The term is used by, e.g., Y. Congar, “The Conciliar Structure or Regime of the Church,” ibid., pp. 3-9, and G. Alberigo, “Istituzioni,” (n. 58, above), pp. 235-262.

87  See W. Aymans, Kollegium und kollegialer Akt im kanonischen Recht (Munich 1969), pp. 88-91.

88 See G. P. Milano, Il sinodo dei vescovi (forthcoming).

89  This aspect of the quesetion seems to have been neglected by J. M. Tillard in his The Bishop of Rome (Wilmington, Delaware 1983), when he speaks of the “solitude” of the Pope, p. 43.

90  On this point, see the draft constitution for the synod of bishops proposed by G. Alberigo, “Appunti per organi collegiali nella Chiesa cattolica,” in L’ecclesiologia (n. 58, above), pp. 262-266. But see also the observations made by J. Lécuyer on this proposal in “Istituzioni in vista della communione tra l’episcopato universale e il vescovo di Roma,” ibid., pp. 267-270.

91  For a more detailed treatment of the problem, see E. Corecco, “Sacerdozio” (n. 74, above), pp. 365-370.

92  On this whole section, see E. Corecco, “Natura e struttura della ‘Sacra Potestas’ nella dottrina e nel nuovo Codice di Diritto Canonico,” Strumento Internazionale per un Lavoro Teologico: Communio 75 (1984), esp. pp. 44-52.

93  LG 28 § 1, and PO 2 § 2, in which the expression consecrationis missionisque is used of Christ, cannot be interpreted, as Beyer interprets them in his “Il nuovo codice” (n. 30, above), p. 134, as a proof of the existence of two powers, for it is not possible to speak of Christ as having a power of orders and a power of jurisdiction.

94  The passages in which the Council speaks of iurisdictio can be tracked down with the help of X. Ochoa, Index verborum cum documentis Vaticani Secundi (Rome 1967), s. v. iurisdictio.

95  On the interpretation of the nota explicativa praevia, see A. Acerbi, Due ecclesiologie (n. 6, above), pp. 460-474.

96  See, e.g., his “Weihegewalt und Hirtengewalt in Abgrenzung und Bezug,” Miscellanea Comillas 16 (1951), 95-110.

97  See, e.g., his “De potestatis episcopalis exercitio personali et collegiali,” PRMCL 53 (1964), 455-481.

98  See Communicationes 2 (1969), p. 79, n. 2.

99  See his “Wort und Sakrament als Bauelemente der Kirchenverfassung,” AfkKR 134/1 (1965), 72-79.

100  See Cardinal Karol Wojtyla (Pope John Paul II), Sources of Renewal: The Implementation of the Second Vatican Council (San Francisco 1980), esp. pp. 15-41.

101   See A. Rouca Varela and E. Corecco, Sacramento e Diritto: antinomia nella Chiesa? Riflessioni per una teologia del diritto canonico (Milan 1971), pp. 59-62.

102   See the apostolic constitution Sacrae Disciplinae Leges on the promulgation of the new Code (Jan. 25, 1983), in The Code of Canon Law: A Text and Commentary (n. 1, above), pp. xxiv-xxvi.