1. The Distinction between Orders and Jurisdiction
a) By reevaluating the ancient theological tradition, Eastern and Western, but without wishing to take a position on the ecclesiological value of the distinction between the power of Orders and that of jurisdiction introduced in the theory of canon law before the twelfth century, 1 Vatican II has emphasized the unity of thesacra potestas. 2 The theological elements which tend towards a unitary conception of the potestas sacra are: the principle of the sacramentality of the episcopate; 3 the principle taken from can. 129 § 1, according to which the power of jurisdiction can be conferred only on an ordained person; and the possibility of giving a new interpretation to the distinction between Orders and jurisdiction.
The distinction between Orders and jurisdiction is the result of a reflection, lasting almost a millennium, aimed at resolving two underlying constitutional problems: that of the validity of sacramental acts placed by ministers who in one way or another have broken with ecclesial communion, and that of the validity of absolute ordinations, prevailing in the practice of the Latin Church notwithstanding the prohibition of the Council of Chalcedon. 4 That an excommunicated or deposed bishop can no longer be considered as a legitimate pastor of the People of God was never put in doubt even in the first centuries. More difficult, on the other hand, was the problem of understanding whether he could still validly baptize and consecrate. 5 This was true until Gratian and the decretalists succeeded progressively in formally distinguishing two powers in the activity of the ministers:6 a power of Orders and a power of jurisdiction, which according to Mörsdorf 7 are different, both with regard to the modality of transmission and their stability and function.
Beginning with the scholastic period, the idea began to prevail that the power of Orders has its field of activity in that which concerns the real Body of Christ, whereas the power of jurisdiction has as its field of action the mystical Body of Christ, understood in a reductive way as the extrasacramental or juridical area in the life of the Church. In this perspective, the distinction between Orders and jurisdiction becomes material instead of formal, provoking a split into two elements, not only of the sacra potestas, but also in the structure of the Church. In this way, in the High Middle Ages a distinction began to be made within the Church, according to which a sacramental area within which only the power of Orders can act, was contrasted with an extrasacramental field in which only the power of jurisdiction is able to act.
This latent antinomy between the spirit and the letter, and between charity and law, present not only in theological reflection, but above all in the spiritualist movements that flowered between antiquity and the Middle Ages, exploded in the radical ecclesiological split provoked by the Reformation with the clear separation between a hidden Church (abscondita) and a universal or visible Church (universalis seu visibilis).
b) Having consummated the split between the two areas and the two powers, medieval theology passed on to inquire into their origin, arriving at the conclusion that, in bishops, only the power of Orders has its origin immediately from God, in the act of their consecration, whereas that of jurisdiction was conferred on them by the Supreme Pontiff, “fons et origo omnis potestatis.” For St. Thomas Aquinas, from the point of view of the celebration of the Eucharist, the Pope does not possess a power superior even to that of a simple priest, let alone to that of a bishop. Following in this path, theology sought the difference between the episcopate and presbyterate outside the sacrament. The episcopal power was then articulated according to two directions of thought. For that of Orders, it was conceived from below, considering the episcopate only as a priesthood of a superior grade. For the power of jurisdiction, on the other hand, the consideration began from above, holding it to be transmitted 8
At the institutional level, the separation between these two functions of thepotestas sacra found their most aberrant expression, in the late Middle Ages and after the Council of Trent, in the practice adopted by bishop-princes of ruling their diocese only in virtue of the power of jurisdiction. Without receiving episcopal consecration, they had auxiliary bishops substitute for themselves in the area of sacramental power. 9
A further doctrinal development occurred towards the middle of the last century which has further obscured the original significance of the distinction between Orders and jurisdiction. Following the implantation of the doctrine of Calvinist extraction of the three offices of Christ (priestly, prophetic and regal), which occurred first of all in the doctrine of canon law through the work of F. Walter and G. Phillips, and then in ecclesiology, theology has not been able to resist the temptation to assign to each of these three munera a specific material area of activity, transforming them into three true powers. The ancient pair of Orders and jurisdiction was thus substituted by a threefold division: power of Orders, of Magisterium and of jurisdiction. 10 The same doctrine of the three munera was, for that matter, taken as a systematic basis for the entire ecclesiology of Lumen gentium, which, however, did not make use of it as a trilogy to which there corresponded three distinct powers. 11 Opposed to this, in fact, is the impossibility of making an adequate distinction between the power of jurisdiction and that of magisterium. Furthermore, other “functions” besides the tria muneracan be attributed to Christ, which medieval theology did in abundance. To the systematic utility of the trilogy adopted by the Council, there thus does not correspond a solid dogmatic value. 12 It is symptomatic in this regard that the Pope John Paul II has not hesitated to affirm that “it is necessary to speak of a triple dimension of the service and mission of Christ, rather than of three different functions.” 13
For the current doctrine of canon law, the problem is not whether there exist two or three powers, but rather of establishing the relationship that exists between thetria munera of Christ and the potestas sacra. As a result, the question is posed, on the one hand, whether it is still possible to maintain in theory the distinction between the power of Orders and of jurisdiction, and what significance should be attributed to it, given the fact of its millenary theological tradition and the ample use which the new Code still makes of it. On the other hand, there is the fact that the Council has intentionally avoided confronting the question expressis verbis. 14
2. Dualistic Solution in Traditional Theoretical Explanations
a) Up until today, the solutions proposed by theology have remained substantially two. According to one position, the principle taken from can. 109 of the 1917 Code – according to which the power of Orders was conferred by the sacrament and that of jurisdiction by the missio canonica – was interpreted in terms of their content. According to this view, the distinction as such remains formal, in the sense that a specific and distinct area of intervention is not attributed to Orders and jurisdiction (respectively, the “Corpus Christi verum” and the “Corpus Christi mysticum”), but following the immanent significance of juridical language, it was held that Holy Orders and the missio conferred, each according to different modalities, two distinct parts of the potestas sacra. They remained, however, reciprocally dependent on each other, either because of the principle of can. 118, according to which the power of jurisdiction could be conferred only on someone who is ordained, or because it is evident that Orders and jurisdiction work together in producing the sacramental effect at least in the case of some sacraments, as for example those of Orders and Penance. It is for this reason that, according to the common opinion of theologians and according to canon law, sacramental absolution given without jurisdiction is considered invalid. According to this teaching, the unity of the potestas sacra is saved, but the unity does not coincide with oneness. 15
On the basis of this presupposition oriented in terms of content, it is easy to give a plausible explanation to all the typical recurring cases of Latin theology, such as that of the invalidity of sacramental absolution given without jurisdiction, that of absolute ordination (where Orders and jurisdiction are conferred separately), that of ordinations “extra communionem ecclesiasticam” (or “extra muros”) and that of priestly ordinations done by a simple priest, thanks to a papal indult. 16
If one leaves aside the problem of absolute ordination, it is sufficient to admit, in order to resolve these cases, that the Church is able to render certain sacramental acts valid or invalid in virtue of the power which she has to confer or to take away jurisdiction. The existence of different grades in the sacrament of Orders (in particular that of the episcopate and the presbyterate) can also be explained on the basis of the different “quantity” of jurisdiction, conferred with themissio canonica.
The voluntaristic danger immanent in this conception comes out in a particular way in the solution that is given to the problem of ordinations extra communionem. The validity of ordinations “extra muros,” as for example in those of the Orthodox Churches, is explained by the theory according to which the Catholic Church, instead of taking away the power of jurisdiction – as she would be able to do – and thus of rendering Orthodox ordinations invalid, prefers from an ecumenical perspective to tolerate that it be used illegitimately.
However, since theology has abandoned the thesis that the power of jurisdiction is given to bishops directly by the Pope, in order to take up the more plausible theory according to which jurisdiction is conferred on them by God, whether passing through the mediation of the missio canonica conferred by the Pope, or directly in virtue of episcopal consecration, 17 this doctrine has had to have recourse to an atypical explanation with respect to its own system. This was necessary in order to save the principle which has been definitively affirmed in the Latin Church from the 12th century, according to which a bishop is always able to validly consecrate, even when he has lost his own office and hence the power of jurisdiction. 18
The decisive step in this matter was taken by Mörsdorf with the thesis according to which the bishop, in episcopal consecration, receives not only the power of Orders but also an indelible foundation of jurisdiction which he calls “Grundbestand an oberhirtlicher Gewalt.” 19 In order to become pastor of a particular Church, the newly consecrated bishop still needs to receive, together with the canonical office conferred on him by the missio, the part of jurisdiction which he is lacking. In virtue of the consecration, which confers a substrate of jurisdiction on him in any case, but which, if it is legitimate, also gives him the communio hierarchica (which is not identical with the missio canonica), the bishop enters to form a part of the college of bishops. This is true even if, for any reason, he is not invested with any particular ecclesiastical office, and, as a result, does not receive the totality of the power of jurisdiction with the missio.
The value of the innovation introduced by Mörsdorf lies in having introduced an objective element: the substrate (Grundbestand) of jurisdiction conferred on the bishop in his consecration. In addition to explaining the constitutional superiority of the bishop with respect to the presbyter, the existence of this substrate permits one to explain the validity of ordinations extra muros without the need to have recourse to voluntaristic solutions. Every bishop receives – independently of the will of the Pope – a sufficient measure of jurisdiction to enable him always to be able to validly consecrate, even when he does so extra communionem ecclesiasticam.
It is clear that the disharmonious aspect of this solution lies in introducing, with theGrundbestand, an exception to the system, precisely with regard to episcopal consecration, recognized by now by theology and the Magisterium as a fullness of the sacrament of Orders and therefore as a source of the inferior grades of Orders itself. Keeping in mind the fact that the celebration of the Eucharist probably also implies a jurisdictional dimension, since it is the sacrament in which the Church is realized, 20 one may ask why, according to this position, a simple presbyter can always validly celebrate the Eucharist, without receiving in ordination a Grundbestand of jurisdiction, similar – though inferior – to that of the bishop.
b) A second theory starts instead from the presupposition that all the potestas sacra is conferred by the sacrament of Orders. This position affirms that the Church has the power to loose and to bind the potestas sacra conferred by the sacrament and, if necessary, also to totally impede its efficacy. 21 This explains the invalidity of sacramental absolution given without “jurisdiction,” the system of relative ordination (in which the office is conferred simultaneously with consecration), the system of absolute ordination, priestly ordination done by presbyters, and the fact of the existence of different grades of the
However, since according to the hypothesis formulated by this position there does not exist a power of jurisdiction, understood as a separate part, having a material content of the potestas sacra, it follows that the power of the Church to loose and to bind has only a formal character. This second position is still more markedly voluntaristic with respect to the first, since the dynamic proper to the functioning of the sacrament of Orders is made to depend on the will of the Church. Furthermore, one must ask oneself how it is possible, without falling into an antinomy, to conceive the existence of a “power” (that of Orders), which can be totally neutralized by another (that of jurisdiction), without its formally ceasing to be a potestas. Even if this second position does not recognize, by definition, the power of jurisdiction as having any distinct and proper material content with respect to that of Orders, jurisdiction in practice becomes the only true power of the Church.
Taking the distinction between Orders and jurisdiction (accepted terminologically also by the second theory) as a point of reference, the substantial difference between the first and the second positions lies in the fact that whereas the first attributes a material content both to Orders and to jurisdiction, the second assigns a material content solely to the power of Orders, whereas a solely formal value is attributed to the power of jurisdiction.
If one were to deal with the problem of the transmission of the power of jurisdiction to members of the laity according to the logic of the two positions, it seems necessary to conclude that only the first position is able to give a plausible explanation. This prescinds, however, from the root problem: that of the capacity of the laity to receive a part of the potestas sacra. They could, in fact, have recourse to conferral of power by delegation. However, since Baptism (and Confirmation) do not confer on the laity the power of Orders, it cannot be understood how, according to the second position, the Church can loose and bind it.
3. Proposal of a New Solution: Unity and Oneness of the sacra potestas
a) It seems possible to hypothesize a third solution to the problem, under precise conditions. One must accept, on the one hand, the indications given by Vatican II on the unity of the potestas sacra which has led the majority of modern canonists and theologians to accept a rigorously sacramental solution of the origin of thesacra potestas. On the other hand, there is the opportunity or necessity of saving, at least on a conceptual level, the traditional distinction between Orders and jurisdiction, which in addition to being profoundly rooted in Latin theology, 22seems still today to be technically irreplaceable, so much so that the new Code has recourse to it without raising any difficulties.
Mörsdorf has seen that the distinction between Orders and jurisdiction has its ultimate root in the two constitutive elements of the Church itself: Sacrament and Word. 23 This intuition reveals a theological link capable of overcoming the connatural limits of the functional nature of juridical language (which thus is easily capable of being reductive). 24 The symbolic sign and the word are in effect the two human modalities of communication used by God already in the Old Testament to reveal Himself to man. In the economy of salvation, both the symbolic sign and the Word of God have assumed an eschatological definitive quality which gives them that objective sacramental efficacy which theology expresses by means of the idea of “ex opere operatum.” This is true, not only because the Word already has an actual efficaciousness in itself, 25 in the sense that it has a salvific value and is binding before – and not only after – it has been received “interius in corde” (as Protestant theology maintains), but also because the Word is structurally ordered towards the symbolic sign and is indispensable for the latter to receive a sacramental value. 26 The Word of God, in fact, is never pronounced in the economy of salvation in a way that is disconnected from the sacred sign. On the contrary, it has an integral salvific value (contrary to that which is presupposed in the doctrine of sola scriptura), only if it tends to be realized (or “become incarnate”) in the sacramental sign. This happens by analogy with the mystery of the Incarnation of the Word in the humanity of Christ. 27
Word and Sacrament are thus not only structurally reciprocal but are also inseparable between themselves. They are the two different formal modalities by means of which God manifests and communicates grace, that is salvation, which is not only a unified reality but also a reality which is unique and indivisible into parts. This is the ultimate reason why the potestas sacra, as a fundamental element of the structure of the Church connected with the transmission of sacramental grace, is also a reality which is not only unified but also unique and indivisible.
As God manifests Himself in His totality and uniqueness both in Word and Sacrament, so the uniqueness of the potestas sacra is manifested through the two institutional modalities which canon law has referred to as the power of Orders and the power of jurisdiction. At an institutional level, Orders and jurisdiction are the instruments through which the entire potestas operates, and not just a part. They are a twofold modality of expression of the one potestas sacra.
In the power of Orders, the dominant element is the structure of communication proper to the symbolic sign, that is, the Sacrament; in the power of jurisdiction the prevailing element is the logic of communication proper to the spoken language, that is, the Word. The potestas sacra operates, therefore, according to two different formal modalities: that of the sign which the doctrine of canon law has defined as the power of Orders, and that of the word, which canon law has defined as the power of jurisdiction (“iuris dictio”). It follows that the distinction as such between Orders and jurisdiction is formal and not material, as the canon law theory of the 12th century had already justly recognized. It distinguished them not on the basis of the object to which they referred, but according to the diversity of their transmission, duration and function. Their material content is therefore identical. In fact, two different parts of the sacra potestas are not at work in Orders and jurisdiction, but rather all the power of the Church in the integrity of its content is operative in them. Whether he consecrates, or places an act of jurisdiction, such as a magisterial act, the bishop always operates in virtue of all of his “potestas,” even if it becomes operative and manifests itself according to different formal modalities.
b) Orders and jurisdiction, however, operate also in a relatively autonomous way, as Sacrament and Word. As the Word can be preached without a concomitant celebration of a sacrament, so it is possible for the Church to place acts of jurisdiction without establishing an immediate connection with the sacrament of Orders. The relationship with the sacrament exists nevertheless, both in virtue of the fundamental fact that the Word tends structurally to “become incarnate” in the celebration of the sacraments – as the sacraments tend to provoke the explicitation of the Word (Söhngen) – as well as in virtue of the fact that (in principle) the minister of jurisdiction is also minister
The entire juridical order of the Church, whose most obvious expression is “jurisdiction,” is for that matter conceived in the service of the celebration of the sacraments. 28 Since the structure of the economy of salvation has for its foundation and model the mystery of the Incarnation of the Word in Christ, it cannot be thought that the sacra potestas could be expressed only according to the modality of jurisdiction, without the existence of an indispensable connection with the power of Orders. This would be contrary to the entire Orthodox tradition, which has always conserved relative ordination as their only system. Although it has adopted the system of absolute ordination, the Catholic-Latin system also has always recognized – in the doctrine of “indelible” character – a structural priority of the sacramental element over the Word and of Orders over jurisdiction. A verification of this fact lies in the doctrine of Vatican II which attributes the qualification of “ecclesial” only to those Christian communities in which the Word has remained structurally tied at least to one of the sacraments: that of Baptism. The Word preached in a way that is disconnected from any sacramental reference loses its ecclesial dimension and efficacy. According to the Council, in fact, communitarian aggregations which arise only around the preaching of the Word, cannot be defined either as simple ecclesial communities, or still less as Churches in the strict sense. There is no Church or ecclesiality without Baptism, that is, without the Sacrament.
Unlike the Word, which does not contain in itself the specific material elements of the sacramental sign (even if there exists a symbolism proper to spoken language), sacraments, on the contrary, always imply the Word as an integral part of themselves. The symbolic sign, in fact, becomes a sacrament only on the condition that the Word make its supernatural significance explicit (at least through the sacramental formula). The liturgical reform has made this connection more evident by having every sacramental celebration preceded by an ample celebration of the Word, whose purpose is to make the significance of the material symbolic sign of the sacrament explicit, in a more organic and global way than the previous liturgy had done. Whereas the Word can render the potestas sacra operative in a relatively autonomous way with respect to the sacraments, the sacraments are not conceptually understandable without the Word. The concomitance in the sacraments of the supernatural symbolic sign and the Word explains why it is possible to accept the thesis according to which the entire potestas sacra is transmitted by the sacrament of Orders.
4. Implications of the Uniqueness of the Sacra Potestas
a) If one concedes that the unity of the potestas sacra signifies also the indivisibility of its content – that is, its oneness – and that therefore one must attribute a purely formal value not only to the distinction between Orders and jurisdiction as such, but also to their respective contents, then it seems possible also to resolve the incongruous elements of the previous attempted solutions. The first position, which attributes only a portion of the global content of the potestasto the power of Orders and a portion to that of jurisdiction, has failed to affirm its oneness. The second position, which assigns a material content to Orders and a solely formal content to jurisdiction, has recourse without necessity to an asymmetrical solution which is therefore also dualistic. Recognizing the solely formal value both of the content of the power of Orders as well as that of the power of jurisdiction (in so far as they are simple modalities of expression of the one potestas) it is possible to give an organic and homogenous solution to all the typical problems that the two preceding positions had to confront, without success and with frequent recourse to artificial voluntaristic solutions.
b) First of all, it seems indispensable to distinguish between the conferral of thepotestas sacra and the use of that power. The potestas can operate either according to the modality of the symbolic sign proper to all the sacraments, or according to the modality proper to the Word, in virtue of which the Church places jurisdictional acts at the level of teaching and government. However, the transmission of power, on the contrary, can occur only through the Sacrament (since the Word is also contained in it). According to Catholic doctrine, in fact, the possibility that the potestas sacra might be transmitted only through the Word is inadmissible. The apostolic succession is indissolubly tied, even if not in an exhaustive way, to the sacramental fact: that is, to the power of Orders.
It follows that the sacra potestas can operate in a relatively autonomous way either according to the typical dynamics of the Word, or power of jurisdiction; or according to that of the Sacrament, or power of Orders. However, it can be transferred from one person to another only through the power of Orders: that is, the Sacrament.
c) At this point there evidently arises the problem of whether the Church can exercise a control over the transmission and exercise of the potestas sacra (and in what measure). The first position resolves this problem by quantitatively dividing the potestas into Orders and jurisdiction. Conferring or withdrawing jurisdiction, the Church can provoke the validity or invalidity not only of the other sacraments, but also of the power of Orders. The second position proceeds along the same lines but according to the technical solution of loosing and binding the power of Orders.
If, on the contrary, one holds that all of the potestas is conferred with the sacrament of Orders and that it is exercised in its totality, both in the sacrament and in jurisdiction, then it is necessary to admit that the potestas is able to regulate itself: the potestas, in its oneness, can exercise a control over itself. However, it cannot control its own proper effects beyond the limits established by the ius divinum itself, which are the limits placed by the “substantia sacramenti” and by the “substantia Verbi.” When the Sacrament is celebrated within the limits of its essential elements and when the Word is preached with respect to its essential Christian content, they are always efficacious, in the sense that their celebration is objectively valid so as to generate the Church of Christ. The doctrine of Vatican II, according to which the Church of Christ is unique and subsists in the Catholic Church, but is realized also outside of its boundaries according to different grades of communion, goes in this direction.
d) In virtue of the potestas sacra with which she is invested, the Church can state what are the essential elements required by the ius divinum for a sacrament to be a sacrament, and for the Word (that is, the Word of God) to be sufficiently complete to remain Christian (problem of orthodoxy). If these essential elements are realized, the Church cannot impede the sacraments and the Word from efficaciously operating also outside the “communio plena.” Their salvific efficacy, however, will be proportional to the degree of integrity of their content and therefore to the grade of communion with the Catholic Church.
The recognition of the existence of other Churches (separated) or of simple ecclesial communities presupposes that the sacraments and the Word celebrated outside of “communio plena” with the Catholic Church are valid, even when their sacramental and doctrinal density is reduced to a few essential elements (Baptism, the Supper, the divinity of Christ).
As the Church of Christ is realized according to different grades of content and communion, so also the sacra potestas (through which the binding salvific force of the Church is expressed), is realized according to different grades of efficacy in the individual separated Churches and in the individual ecclesial communities. Its efficacy is reduced both by impoverishment on the sacramental level, as well as on the doctrinal level: that is, of the Word.
If Word and Sacrament are not integral from the point of view of their content, they create an ecclesial reality whose communion is not full. By divine law, the college of bishops and the Pope have received the function of being the point of reference for the communion, seeing that, by definition, they are invested with the fullness itself of the potestas sacra. This does not mean that the potestas of the college and of the Pope is “quantitatively” different from that of the other bishops, since the sacraments and the Word celebrated by individual bishops have the same content as the sacraments and the Word celebrated by the Pope (or by the college as such). The difference is “qualitative,” that is, formal, in the sense that only the college of bishops or the Pope represent the ultimate authority, called in virtue of their constitutional function to judge in the final appeal whether the sacraments or the Word celebrated by the individual bishops are complete so as to be able to realize the communio plena. This derives from the fact that only the college as such and the Pope are organs which represent the universal Church. 29
e) Communion, as a fundamental reality of the ecclesial constitution, does not pertain to the ontological order of the potestas sacra, but is a datum of fact. It is an ecclesial reality which either exists or does not exist, but which can be ascertained and judged in its authenticity only by someone invested with the fullness of the potestas sacra. As an objective fact, the communio hierarchicadoes not depend on the caprice of the authority. It is the structure of the Church in virtue of which the potestas sacra itself exists.<
In ascertaining the existence of communion in virtue of his potestas sacra, the Pope expresses himself above all according to the modality proper to the Word: that is, according to the modality proper to the “power” of jurisdiction. This means that the potestas sacra and the communio are not identical realities. Thecommunio is, on the one hand, the ontological ecclesial reality within which thepotestas sacra must act to be integrally efficacious. On the other hand, it is a reality that the potestas sacra itself helps to generate. It therefore proceeds and follows the “power” as such.
5. Solution of the Typical Problems of the Doctrinal Discussion
Having made these premises, it is possible to give a homogenous solution to the problems that the preceding theories have had to confront.
a) The existence of two different systems of ordination does not pose a problem, because both are theologically interchangeable. Rigorously speaking, the return to the system of relative ordination could be desirable since all the potestas sacra is conferred (by hypothesis) with the sacrament of Orders. The practice of the Latin Church to confer jurisdiction with the missio, separately from ordination, can be interpreted as an act with which the legitimate authority assigns, in virtue of thepotestas sacra (which in the case in point is expressed according to the modality of the Word or of jurisdiction), the area within which a bishop or other minister must exercise his proper potestas to remain organically inserted in the communio hierarchica.
b) When a minister exceeds in the use of the proper authority imposed on him by canon law, the sacramental and jurisdictional acts posed by him cease to be acts capable of realizing the communio plena, and it follows that they cease to be binding for the Catholic Church. This does not mean, however, that these acts are necessarily null or invalid, in the same sense in which this is said of purely juridical acts. Given the fact that both in the Sacrament as well as in the Word (jurisdiction), the one unique sacra potestas is operating, there is no compelling reason to evaluate in a different way the nullity and the illegitimacy of the power of Orders and the power of jurisdiction. In both cases, nullity or invalidity in the juridical sense of these words should be declared in principle only when thesubstantia Sacramenti or the substantia Verbi is not respected.
c) The problem of jurisdictional acts seems at first sight more difficult to resolve than that of sacramental acts. This depends in the first place on the dominant mentality, according to which only jurisdictional acts, and not sacramental ones, have a juridical character. In this way of thinking, the ancient dichotomy between Orders and jurisdiction reappears, according to which a different material area of the Church had been assigned to the one and to the other. The power of Orders was assigned the sacramental province or that of sanctification, and the power of jurisdiction was assigned the juridical province or that of ecclesial government. In reality, it is impossible to attribute binding juridical character solely to the power of jurisdiction (or that of the Word), since the sacrament is also formally – that is, juridically – binding.
In analogy with the teaching of fundamental theology with regard to the Word, the Sacrament is also a “locutio Dei (per signum) attestans,” which is not binding either on account of its contents as such, or still less on account of its being subjectively understood by man, as the Protestant tradition has maintained (“interius in corde”). Instead, its binding character is due solely to the fact that it is God who is speaking. The problem is therefore that of knowing in what measure the Church can make the validity of a jurisdictional act depend on invalidating or incapacitating clauses, if they should go beyond the limits posed by the ius divinum.
The examination of this problem implies a series of considerations that would take us too far away, touching on the theme of the applicability of the principle of juridical certainty in canon law. However, it is evident how important it is to be aware that the juridical nature of canon law is different from that of civil law, and that the problem of juridical certainty cannot be resolved without consideration of the theological-juridical value which should be attributed to the communio, in so far as it is an ontological reality, constitutive of the constitutional structure of the Church. 30
The other problems should also be confronted along the same lines: that of the validity of ordinations extra communionem; of sacramental ordinations by a presbyter equipped with a papal indult (or also episcopal?); and of sacramental absolution imparted without jurisdiction.
d) Recognizing the existence of non-Catholic Churches, Vatican II has done nothing more than confirm the doctrine and practice of the Latin Church which, from the twelfth century onwards, has recognized the validity of sacraments celebrated extra muros. This fact implies also the recognition that these Churches are able to produce a proper juridical order which, if they respect the fundamental norms of the ius divinum, create a valid ecclesial reality, even if it is diminished in its authenticity and in its capacity to guarantee salvation objectively and with absolute certainty.
e) For that which regards ordinations realized by a presbyter furnished with a papal indult (or possibly only an episcopal indult), and sacramental absolutions given without jurisdiction, the problem must be resolved on the basis of the element which is already common to the two preceding positions. According to these, the presbyter possesses, on account of ordination, all the power necessary to consecrate and absolve. According to the hypothesis that all the potestas sacracomes from the sacrament of Orders, however, in contrast with both the first and the second theories, it is no longer necessary to maintain that the power of jurisdiction still lacking be conferred on the presbyter with the “missio canonica.” Nor is it necessary to have recourse to the solution which attributes to the Church the faculty of loosing and binding the power of Orders. It is simply a matter of admitting and recognizing that these sacramental acts, if they are completed in the area of the “communio plena,” are also capable of originating it. They are acts of the Church, understood not only as the sole Church of Christ, but as the Catholic Church, in which the sole Church of Christ subsists. These sacraments are valid and legitimate by the very fact that they are realized within the “communio plena.”
Admitting that there do not exist compelling theological reasons to deny the solidity of the “opinio Hieronimi,” according to which a presbyter can always validly ordain another presbyter, such an ordination – as long as its substantia sacramenti is assured – would have to be evaluated from the perspective of validity or licitness only in relation to the fact of whether it is realized in the area of the communio ecclesialis. The lack of a papal indult impedes only the insertion of the newly consecrated in the communio hierarchica, but does not invalidate the sacrament as such. Such an ordination could provoke a formal excommunicatio, which does not deprive, however, either the person consecrating or the person consecrated from the status of belonging to the one Church of Christ. It only deprives him of the exercise of some fundamental rights within the Catholic Church, or within a non-Catholic Church, if it is that to which he happens to belong.
f) For that which concerns sacramental absolution, it is necessary also to keep in mind the fact that the Catholic Church always holds it to be valid if it is imparted in “articulo mortis.” The fact that juridical science has interpreted this norm making use of technical instruments at its disposition, such as the institution of “a iure,” does not necessarily mean that it is the juridical order as such that confers the power of jurisdiction that is lacking, or unbinds the power of Orders. Rather, it means that the Church recognizes, as a datum of fact, that sacramental absolution given in this extreme circumstance possesses in itself the legitimacy necessary to realize the communio plena, even if it should be imparted by a minister who does not live in communion with the Catholic Church. Sacramental absolutions, on the other hand, imparted without the necessary “jurisdiction”, that is in conditions in which hierarchical communion of the minister with his bishop is lacking – which conditions are fixed in a disciplinary way by canon law – are not invalid on account of the fact that the presbyter lacks a part of the potestas sacraor because his power of Orders is not loosed for exercise. On the contrary, it is because the priest, finding himself outside of full communion, is not able to realize the reconciliation of the penitent with the Catholic Church as such.
The Church is competent to determine, in each individual case or in general, the grade of communion necessary for the valid administration of the sacrament of penance. However, it becomes necessary to distinguish between the case of an individual priest who breaks with the communio, leaving his proper ministry or abusing it, and the case of a minister who belongs to a separated Church where the apostolic succession and the sacraments are objectively guaranteed. It is possible that in the former case the ecclesial unity could be broken in such a grave way so as to remove from the minister all legitimacy or competence to still be able to represent the Catholic Church, and in consequence to still be able to reconcile the penitent with the Church herself. In the second case, however, the communio,although imperfect, still maintains an ecclesial density such as to be able to justify a recognition, reciprocal between the Churches, of the validity of their respective sacraments. In effect, the defection of an individual person cannot by itself create a valid ecclesial alternative, such as that which exists in the separated Churches. This explains why the Catholic Church not only recognizes the validity of sacramental absolutions given by an Orthodox minister to Orthodox faithful, but also to Catholic faithful. 31
6. The Communio as the Context of the Validity and Invalidity of the Acts of the Sacra Potestas
a) The validity (and invalidity) of sacramental and jurisdictional acts, since it is based on the existence of the sacra potestas, cannot be determined according to the caprice of the Church. It depends on the ontological truth according to which the Church herself is realized (or is not realized). There exists, in fact, a relationship of identity – even if not adequate – between the Church and thepotestas sacra. To what measure the Church, besides being able to determine and fix the limits imposed by the ius divinum for the validity of the sacraments and of the Word, can also provide for invalidating or incapacitating clauses of merely human law, remains a problem open to discussion.
The teaching of Vatican II on the gradations of the “communio ecclesiarum” makes it necessary, in any case, to review the way in which the problem of the validity of sacraments needs to be approached, which has been largely determined by the mentality proper to juridical science. The Church cannot proceed in the same way as a state institution which confronts the problem of the efficaciousness of its own power in rigorously positivistic terms, cut off from the ontological objectivity proper to the nature of things. The validity of the exercise of the potestas sacra in its sacramental as well as jurisdictional expression, cannot be resolved with clauses of human law except in so far as an ontological solution is reflected in them.
b) The distinction between invalid and illicit acts, which today is ever more frequently being challenged, has again become a question of current interest. Both invalidity and illicitness are measured according to the grade of communion. In fact, at least for that which concerns this problem, it is not the communion which is determined by the sacra potestas, but vice versa. The thesis that the distinction between an invalid and an illicit act was introduced into the doctrine of canon law – as maintained by Sohm – in the 12th century, following the secularization of ecclesial law resulting from its contact with medieval corporate law, has not been historically proven. However, it is true that the distinction has been used by the Church according to criteria frequently too heavily marked by a secular juridical mentality. On the one hand, it is not possible to abolish the concept of invalidity from canon law, which, as Sohm has justly noted, is structurally tied to sacramental law. On the other hand, however, it is urgently necessary to rigorously make it commensurate it with the substantial reality of the Church, by means of the exercise of the potestas sacra.
The exercise of the sacra potestas, both in the sacramental and jurisdictional expression, can be held to be invalid only in the measure in which it is realized outside of the minimum grade of communion which guarantees the existence of a reality still capable of being defined as an ecclesial reality. Only the absence of the objective elements of the communio renders the potestas inefficacious, that is, invalid. If these conditions are realized, ordinations “extra communionem” can be considered to be invalid because they would be placed within a reality that no longer has the specific structure of the Church in the minimum degree. If the lack of communion, on the other hand, means “extra communionem plenam,” the problem of validity is transformed into the problem of licitness.
The reappraisal of the notion of “illicitness” is required by the fact that Vatican II, recognizing the existence of Churches and separated ecclesial communities, has also recognized that the one Church of Christ can be realized according to different grades of communion. It follows that the validity of sacraments and the Word cannot be manipulated with norms of a positivistic nature that aim at regulating the exercise of the sacra potestas. Invalidity can only be ascertained, since it is rigorously connected with the very substance of the ecclesial reality. Illicitness, on the other hand, can be determined also by criteria of a solely disciplinary nature.
c) If the potestas sacra is one and unique, and if in Orders and in jurisdiction it operates “in totum,” it follows that the same criteria used to judge the validity or invalidity of sacraments should also be applied to the “power” of jurisdiction. Jurisdiction, as an expression of the one potestas sacra, cannot be treated from the theological and juridical perspective with different criteria from those used for the power of Orders.
It follows as a consequence, that if it is not possible theologically to delegate the power of Orders, neither can it be possible to delegate the power of jurisdiction. This is true even if canon law, for technical terminological reasons, should continue to make use of the institution of delegation. If it is true that the potestas sacracan be transmitted only through the sacrament of Orders, it follows that it cannot be transmitted in another way even when it is manifested according to the logic of the power of jurisdiction.
1. Sacra Potestas in the Sacramental Context
The examination of some aspects of the sacra potestas in the Code of 1983, conducted along the line of the preceding theoretical considerations, permits us to make some considerations.
In the sacramental context of the exercise of the “potestas,” the new Code, in contrast to that of 1917, avoids the term potestas (“iurisdictionis”), substituting it with “facultas.”
a) The most significant context in this regard is undoubtedly that of the sacrament of penance, traditionally held to be the most eloquent example of the collaboration of the power of Orders and jurisdiction to produce the same sacramental effect: reconciliation with God (to which primarily the power of Orders is referred) and reconciliation with the Church (to which primarily the power of jurisdiction is referred).
Contrary to the Code of 1917 in canons 872 ff. (penance in general), 401 § 1 (canon penitentiary), and 518 § 1 and 2 (confessor and superior of religious), the new Code does not use the term “potestas iurisdictionis” (respectively “absolvendi” or “audiendi confessiones”), regularly substituting it with the term “facultas” (can. 966 ff., 508 § 1 and 566), whose significance is clearly closer to that of authorization than to that of power. 32
Moreover, in can. 966 the legislator seems to explicitly suggest that absolution of sins is imparted in virtue only of the “potestas ordinis”: “Ad validam peccatorum absolutionem requiritur ut minister, praeterquam potestate ordinis, facultatem gaudeat eandem in fideles, quibus absolutionem impertitur, exercendi.”
Certainly it does not seem relevant that, referring to the ordinary confessor of nuns (can. 630 § 3) and to the confessor present in “periculo mortis” (can. 976), the new Code uses the same terms, “probatus/approbatus,” found in the Code of 1917 (can. 519 and 882), where this signified “sive ordinaria, sive delegata iurisdictione instructus” (can. 881 § 1). It seems evident in the context of the new Code that these terms are simply equivalent to “designated” or “authorized.”
Therefore, it is difficult to interpret the expression “facultas in fideles” as if it had the same meaning as “potestas.” 33
It follows that, in the context of the sacrament of penance, the term “facultas” should be understood not in a material but only in a formal sense. Conceding or withdrawing the “facultas,” the competent authority controls the validity of the exercise of the “potestas ordinis” and of sacramental absolution.
Thus one must recognize that, if the new legislator has intended to choose between one of the two positions developed by canon law, then the second theory has been chosen, according to which the content of the sacra potestas is conferred by the sacrament of Orders, whereas its exercise ad validitatem is regulated by iurisdictio, understood as a formal power, without a proper material content.
In harmony with this option, the new Code has carefully avoided, in the entire chapter reserved to the minister of the sacrament of penance (can. 965-986), to have recourse to the institution of “delegatio,” traditionally used to designate the transmission of a power, understood materially in terms of contents. In fact, “delegatio” was used in the same context in the old Code (can. 872, 875 § 1, 881 §
a), in harmony with its leaning towards the first of the two theories presented above.
Following the doctrinal conception, according to which the absolution of sins is solely imparted in virtue of the power of Orders, without an intrinsic collaboration of the power of jurisdiction, the new Code establishes that the bishop, on account of Orders, possesses ipso iure and in the entire Church, the facultas absolvendi, even if he does not hold the title of any office (can. 967 § 1).
Parallel to this norm is that of can. 1355 § 2, in which the power of every bishop is recognized to remit penalties latae sententiae not yet declared and not reserved to the Holy See, “in actu sacramentalis confessionis.” 34
These dispositions should not be interpreted in a voluntaristic sense, as if they were benevolent concessions of the new legislator, but rather as inevitable constitutional consequences of the general reevaluation of the autonomy of the particular Church and of the episcopal office, accomplished by Vatican II (cf., for example, CD 8 a-b). This reappraisal has been realized in a very clear way in can. 381 § 1 and 87 § 1, in which the almost Copernican passage from the system of concession to that of reservation has occurred in a normative way, not only in terms of dispensation, but even on the level of a general juridical presumption in favor of the original and proper right of the bishop, with respect to that of the Pope.
Therefore, it is legitimate to conclude that the “facultas” recognized “ipso iure” by can. 967 § 1, being equivalent to “potestas ordinis,” can never be taken from the bishop and that an excommunication or suspension cannot have an invalidating character in his regard. 35 In this perspective, the notion of “ordinarius loci” of can. 968 § 1 – in relation to the disposition of can. 975 in which it is stipulated that the “facultas confessiones excipiendi… cessat amissione officii” – must be interpreted exclusively with reference to an “ordinarius loci” who is not a bishop (cf. can. 134 § 1 and 2).
The withdrawal ad validitatem of the facultas, so as to render the absolution of sins invalid, still remains possible for presbyters, also according to the new Code (can. 966 § 1). The different treatment of bishops and presbyters can be explained, as in the Code of 1917, on the basis of the fact that the presbyter does not possess the fullness of the power of Orders. 36
b) The second context in which there appears the same phenomenon as that found with the sacrament of Penance is that of Confirmation.
In continuity with the Code of 1917 (can. 782 § 2 and 5), the new Code resolves the problem of the administration of Confirmation on the part of a presbyter with recourse to the institution of the “concessio facultatis,” instead of that of the “delegatio potestatis” (can. 882-885). In any case, it is noteworthy that the old Code in this case, contrary to the new, adopted a solution that is different from the terminological point of view from that adopted for the sacrament of penance, as noted above.
c) The third context is that of the sacrament of marriage. Also in this case the new Code remains faithful to the term “facultas” (“assistendi”) (can. 1111 § 2). However, it falls into the same terminological contradiction as the old Code (can. 1094 and 1096 § 1 and 2), 37 of pairing the term “facultas” with that of “delegatio” (can. 1111-1114). As we have already had the occasion to observe, this latter term is more appropriate for the transmission of the contents of a power, than to signify the concession of an authorization or of a “licentia.”
The use of the verb “delegate” should not be given too much importance, even if the norms stipulated by can. 144 § 1 in regard to the “potestas regiminis executiva” in the case of the institution of “supplet Ecclesia,” are applied by § 2 of the same canon also to “facultates.” In fact, it is precisely this canon which introduces the clear distinction between “potestas” and “facultates,” making explicit reference to the sacraments of penance, confirmation and marriage, in whose specific norms the term “facultas” occurs instead of “potestas.” This means that the term “delegare” is applied in § 2 only in an analogous way. In fact, the “facultates” that are referred to do not coincide with the “facultates habituales” of can. 132 § 1, which are a typical expression of the “potestas regiminis delegata” (can. 131 § 1).
If the term “facultas” does not mean “potestas,” it follows that a lay person authorized to assist at marriages (can. 1112 § 1), can be evaluated juridically only as a “testis qualificatus” and not as a subject invested with a certain “potestas jurisdictionis,” inasmuch as that is an expression of the potestas sacra which is manifested according to the logic of communication proper to the Word.
d) A final aspect of the relationship between the power of Orders and that of jurisdiction in the context of the celebration of the sacraments, is that of sacramentals.
Parallel with the Code of 1917 (can. 1146 and 1147 § 1), the new Code uses the term potestas in the context of sacramentals (can. 1168), some of which now can be conferred also by lay persons. 38 It has recourse instead to the term “concessio” (which in itself presupposes the institution of the “facultas”), in the context of consecrations. These latter are distinguished from other sacramentals because they necessarily presuppose the possession of Holy Orders (can. 1169 § 1).
This leads one to hold that in the case of simple sacramentals, the Code considers the act of conferral as deriving from the power of jurisdiction, whereas in that of consecrations, it considers it as deriving from the power of Orders, regulated in an extrinsic and formal way through the institution of the “concessio” (“facultas”).
e) From an analysis of these four examples, and leaving open the question concerning the Code of 1917, it is necessary to conclude that in the new Code, the administration of sacraments is not considered to be a joint act of the power of Orders and of jurisdiction, but rather as an effect exclusively of the power of Orders. By having systematic recourse to the term “facultas,” instead of that ofpotestas (much more frequent, on the contrary, in the old Code, even if not in an exclusive way), the new Code conveys the implication that the “potestas iurisdictionis” does not operate intrinsically in the realization of the sacraments, but only extrinsically. It is not a power that operates alongside the power of Orders, having its own proper material content as an efficient cause of the sacraments. Rather, jurisdiction is only an extrinsic formal power, whose presence is required for the correct administration of the sacraments.
It seems evident, therefore, that the Code has adopted, from the doctrinal perspective, the same solution underlying the Nota Explicativa praevia (n. 2), inspired in turn not by the first, but by the second theory, according to which one power is considered as having a material content (Orders), whereas the other is considered to have a solely formal function (jurisdiction). Neither the Nota Explicativa nor the new Code, however, give a plausible explanation of how the “potestas iurisdictionis,” understood in formal terms, in certain circumstances can annul the efficacy of the power of Orders itself, without making the latter conceptually cease from being a true “potestas.” Therefore, we are dealing with a system which ultimately attributes an ecclesiological priority to jurisdiction over the power of Orders.
2. Sacra Potestas in the Extra-Sacramental Context
Outside the sacramental context, the new Code seems to consider, at least from the terminological perspective, the “potestas iurisdictionis” as a power which possesses its own material content, distinct from that of the “potestas ordinis.”
a) As in the 1917 Code, the new Code rigorously uses the term “potestas” (“iurisdictionis”) in relation to those acts of the authority of the Church, traditionally held to be clearly deriving from the power of jurisdiction. Thus, for the concession of indulgences, in can. 995 (Code of 1917, can. 912), there is no doubt that “potestas” is to be understood as the power of jurisdiction. In fact, indulgences can be conceded also by the college of bishops as such, which cannot express itself collegially according to the logic of the communication of the sacramental sign, but only according to that of the Word: that is, of jurisdiction. The “suprema Ecclesiae potestas” spoken of in can. 995 § 1 refers not only to the Pope, but also to the college of bishops. The same solution can be seen with regard to the “potestas dispensandi” from vows in can. 1196, and from oaths in can. 1203 (in the 1917 Code, respectively can. 1314 and 1320), as well as the “potestas dispensandi” from matrimonial impediments in can. 1079 § 2, 3 and 4 (1917 Code, can. 1051; cf. however, the use of the term “facultas” in can. 1044 and 1045 § 2).
b) In the case of dispensation from irregularities, on the other hand, the new Code (can. 1047), like that of 1917 (can. 990), does not have recourse to the term “potestas.” However, it is clear, also in this case, that dispensation should be considered, according to the norm of can. 85, as a typical act of the “potestas regiminis executiva.”
However, it should be noted that in the particular case of dispensation in “foro sacramentale,” the old Code (can. 990 § 2) surprisingly, but also significantly, used the term “facultas.” The new Code succeeds, on the contrary, in regulating the matter without having to have recourse either to the term “facultas,” or to that of “potestas” (can. 1047).
c) There is an analogous discourse in the area of the remission of canonical penalties, even if a definitive judgment in this sector must include a more detailed examination of the texts than is possible here.
Given this reservation, it can be ascertained that the new Code generally uses the term potestas in the context of the remission of penalties in the “foro externo” (can. 1354 § 2). 39 An exception appears, however, in can. 1357 § 2, in relation to the priest to whom a confessor can send a penitent, to be absolved also in the non-sacramental forum. Here the Code, instead of having recourse to the term “potestas” as one might have expected, uses “facultate praeditum.” However, this is an exception which seems to be attributable only to a terminological inconsistency.
Although the Code regulates the problem of the remission of penalties in the “foro sacramentale” without recourse either to the term “facultas” or to that of “potestas,” it seems clear that the sacramental act is regarded as an act which derives solely from the “potestas ordinis.”
3. Reform Marked by Juridical Positivism
a) The analysis of the cases we have seen above permits us to reach the conclusion that the new Code not only rigidly distinguishes the two “potestates,” order and jurisdiction, but also ventures to separate them one from the other. In fact, it inclines to the theoretical solution according to which one sole potestas(that of Orders), works causally in the celebration of the sacraments, whereas the other (that of jurisdiction) regulates the former in an extrinsic way, assuming a solely formal disciplinary function in the administration of the sacraments.
Furthermore, by using the term “facultas” in the sacramental context, and “potestas” in the extra-sacramental context, the new Code seems to give two different meanings to the same power of jurisdiction, one formal and the other material, according to whether it operates in the first or second context.
The “potestas regiminis” thus turns out to be practically irrelevant in the context of the internal sacramental forum. This position appears already in can. 130, where the principle is established, according to which the “potestas regiminis” is normally exercised in the external forum and only in an exceptional way in the internal forum, analogously, for that matter, to what had already been established in can. 202 of the 1917 Code.
The rigidity of the distinction between Orders and jurisdiction appears distinctly, for example, in can. 274 and 1333 § 1, n. 2 and 3, as in can. 129, in which there is a manifest embarrassment in the face of the necessity of formulating a clear theological solution. However, it comes out especially in the fact that the “potestas regiminis” is regulated by the Code normatively, in Book II, in the “General Norms,” as if it were a predominantly juridical-technical problem and not primarily a theological and therefore constitutional one.
This positivistic conception is manifested, furthermore, in a clamorous way in the fact that the Code has consciously clipped the conciliar expression sacra potestas,through which Vatican II had given a precise indication of the unity and oneness of the power of the Church. In the draft of 1982, the expression sacra potestasrecurs at least one more time, although in the irrelevant context of sacred places (can. 1213). It was substituted with the most ambiguous expression possible, using the plural form: “potestates suas et munera.”
b) A further proof of the positivistic approach to the problem of the potestas sacra, which reveals the absence of any concern in the Code to give a minimum theological orientation to a matter which is so central for ecclesiology and for the canonical order, is given by the massive introduction of juridical terminology with a civil flavor. The sacra potestas is articulated, in fact, not only in “potestas ordinis et iurisdictionis” but in “potestas legislativa, executiva, iudiciaria” and even in “potestas interpretandi” (can. 129 ff. and 16 § 1).
If the purpose were to emphasize the different sectors and the criteria of the exercise of power in the Church with greater clarity than in the 1917 Code, the result has definitely been that of leading the reader to believe that instead of different functions of the same potestas sacra, we are faced with truly separated powers, as in the secular State. This could be misleading, and not only to those most lacking in canonical formation, such as a typical member of the faithful – who, however, is the subject which ultimately counts most in the Church.
In the name of technical and juridical efficiency, inspired by a criterion of modernity, the Code has unfortunately manifested a deplorable theological regression in such a vital ecclesiological sector as the “potestas.”
1 For this entire first theoretical part we refer the reader to our article: “La ‘sacra potestas’ e i laici,” Studi parmensi 28 (1980), 3-36, esp. 5-26; or “Die ‘sacra potestas’ und die Laien,” FZPhTh 27 (1980), 120-154.
2 On this problem, cf. A.M. Stickler, “La bipartición de la potestad eclesiástica en su perspectiva histórica,” Ius Canonicum 15 (1975), 45ff.; idem, “Die Zweigliedrigkeit der Kirchengewalt bei Laurentius Hispanus,” in Ius Sacrum, Klaus Mörsdorf zum 60. Geburtstag, ed. by A. Scheuermann and G. May (Munich/Paderborn/Vienna 1969), 181ff.
10 Cf. J. Fuchs, Vom Wesen der kirchlichen Lehrgewalt. Eine Kontroverse des 19 Jahrhunderts: historischer Beitrag und systematischer Versuch, Theol. Diss. (Münster i. W. 1946), passim. The results of this research have been used by the author in other publications, such as: Magisterium, Ministerium, Regimen. Von Ursprung einer ekklesiologischen Trilogie (Bonn 1941); or: “Weihesakramentale Grundlegung kirchlicher Rechtsgewalt,” Scholastik 16 (1941), 496ff. Cf. also K. Nasilowski, “Distinzione tra potestà di giurisdizione dai primi secoli della Chiesa sino alla fine del periodo dei decretisti,” in Potere di ordine e di giurisdizione. Nuove prospettive (Rome 1971), pp. 89ff.
12 Cf. idem, De sacra Potestate. Quinquagesimo volvente anniversario a Codice Iuris Canonici promulgato. Miscellanea in honorem Dini Staffa et Periclis Felici S.R.E. Cardinalium, I (Rome 1967), 41ff. For a critical analysis of this threefold division, cf. Ch. Journet, L’Église du Verbe Incarné, I, (s.l.) 1955, 203-215.
13 Letter Ad universos Ecclesiae Sacerdotes, adveniente Feria V in Coena Domini, AAS (1979), 393ff., n. 3 (our translation). Cf. also W. Kasper, Die Heilsendung der Kirche in der Gegenwart (Mainz 1970), p. 61.
15 Cf. for example, E. Doronzo, Tractatus Dogmaticus De Ordine, III (Milwaukee, Wisconsin 1962), pp. 324-370. Notwithstanding the fact that his formulations are not always clear, we hold that Corrado Baisi in his volume Il ministro straordinario degli ordini sacramentali (Rome 1935, 136, 153-158) follows this first theory and is not, along the lines of Johannes Morinus (Commentarius de sacris Ecclesiae ordinationibus, Parisiis 1655, 104-107), a supporter of the second theory, as Doronzo maintains (ibid, pp. 362-363).
16 With regard to these cases, which date to the end of the 15th century, cf. C. Baisi, Il ministro straordinario, loc. cit., pp. 7-28. There exist a whole series of problems of a historical and doctrinal nature tied to the exercise of the power of jurisdiction on the part of the laity, which, however, we cannot deal with here. On this matter, see for example, A. Szentirmai, “Jurisdiktion für Laien?,” ThQ 140 (1960), 410ff.; U. Mosiek, Verfassungsrecht der lateinischen Kirche, Band I: Grundfragen (Freiburg i. Br. 1975), pp. 217-229; A. Doglio, De capacitate laicorum ad potestatem ecclesiasticam, praesertim iudicialem (Rome 1962), pp. 33ff.
18 Cf. E. Doronzo, De Ordine, loc. cit., p. 359; cf. also C. Vagaggini, “Possibilità e limiti del riconoscimento dei ministeri non cattolici. Riflessioni a partire dalla prassi della «economia» e dalla dottrina del «carattere»,” in: Ministères et célébration de l’Eucharistie. Sacramentum I, Studia Anselmiana 61 (1973), 254, 271.
20 Cf. K. Mörsdorf, “Der Träger der eucharistischen Feier,” in: Pro Vita Mundi, Festschrift zum Eucharistischen Weltkongress 1960, hrsg. von der Theologische Fakultät der Ludwig-Maximilian-Universität München (Munich 1960), pp. 223ff.
21 Cf. E. Doronzo, De Ordine, loc. cit., pp. 362ff.; cf. also W. Bertrams, Il potere pastorale del papa e del collegio dei vescovi. Premesse e conclusioni teologico-giuridiche, Rome 1967, pp. 1-61; idem, “De potestatis episcopalis exercitio personali et collegiali,” PRMCL 53 (1964), 455ff.
24 This is true first of all for the notion of “iurisdictio,” developed in strict dependence on secular juridical doctrine; cf. E. Corecco, “L’origine del potere di giurisdizione…,” loc. cit., pp. 9-10, n. 29.
26 G. Söhngen in his book Symbol und Wirklichkeit im Kultmysterium (Bonn 1937, p. 18) has expressed the problem with this significant formulation: “Vom Worte wird das Sakrament mit der Fülle mächtiger Geistlichkeit und vom Sakrament wird das Wort mit der Fülle geistlicher Wirklichkeit erfüllt.”
29 It is relatively easy from the doctrinal and systematic point of view to render plausible the fact that the college of bishops with the Pope is invested with “plena et suprema potestas,” so as to be the point of reference of the “communio.” However, it is not so easy to find the ecclesiological reason for the same fact with regard to the Pope, without the college. In fact, whereas it is possible to derive the hierarchical structure of the particular Church from the hierarchical structure of the Eucharist, at the summit of which there is the bishop, it is not possible to operate in the same way for the Pope – as holder of the primacy of jurisdiction – since the sacrament of the Eucharist is always realized in an equal way for all bishops. Recourse to the primatial texts of the NT resolves, clearly, the substance of the question. This cannot, however, suppress the fact that, as long as theology is not able to develop a doctrine of primacy, organically deriving it from the “nexus mysteriorum” of the other ecclesiological data, the unsatisfactory necessity of having to have to recourse to a voluntaristic solution will remain: that is, of having to appeal to the will of Christ.
33 This is confirmed by the fact that according to the new Code, this “facultas” can be conceded also by the superior of a clerical institute or society of pontifical right, who, not being a bishop, possesses only the “potestas regiminis executiva” (can. 968 § 2).
34 Rigorously speaking, can. 967 § 1 should not have used the term “facultas” for the bishop (as for the Pope), but rather that of “potestas.” In fact, a bishop, from the moment that he lives in the hierarchical communion, does not need any papal “authorization” to hear confessions, since he possesses the power and the legitimacy to exercise it in virtue of ordination itself. The Pope can intervene only negatively, taking the “facultas” away from him with an ecclesiastical censure.
39 If one prescinds from the clearly divergent use of the term “facultas” in can. 2254 § 1, then it is also possible to make the same affirmation for the 1917 Code: that is, the “potestas” is exercised both in the external forum, as well as in the internal non-sacramental forum (cf. can. 2252 and 2254 § 2).