Ecclesiological Bases of the Code

I. The Ecclesiology of ‘Societas’

The new Code of Canon Law contains two ecclesiologies, which can be defined as being of ‘societas’ and of ‘communio1 , which the consistent lines taken by its authors, faithful to the principle of abstract codification, manifest in all their unbridgeable separateness.
1. The very concept of codification stems from the ecclesiology of societas. 2Although codifications have taken different forms at different periods in history, there is no escaping the fact that doctrinally and methodologically they refer to a gnoseological experience – that of the Enlightenment – posited as a purely rational alternative to Christian theological culture. 3 The ecclesiology of society, through the Ius Publicum Ecclesiasticum (IPE), claims to demonstrate that the Church, even as “mysterium salutis”, takes on, both ad intra and ad extra, the same juridical and institutional aspects as any other perfect society, and in doing so inevitably plows canonical order into the soil of an almost atavistic “institutional hegemony” 4 , demanded by a secular notion of law, which exalts the concept of competence above the more ecclesiological one of participation. 5
Furthermore, this approach values, pragmatically and almost con-naturally, derivedinstitutional features (pope-college-universal Church, bishop-priest-local church relationships, ecumenical and local councils, parishes, etc.) at the expense of primarily constitutive features (sacrament, Word, charism…) thereby avoiding giving any ultimate rationale to juridical structures. 6 It should not, therefore, be surprising that this “societal” ecclesiology, still overshadowed as it is by the notion of the “societas perfecta”, provides the infrastructure of the four books (I, V, VI and VII) in which the Code of 1917 still survives substantially intact.
2. In Book I, the adoption of the technique of “general norms”, an expression typical of modern codifications, has led to the application of strictly legal rules to its contents, even where these are theological. For example:
a) The faithful, though singled out in Book II as the principal subject of canonical order, are not defined on the basis of their ecclesiological identity, but with the romanizing category of “physical persons”, deviating from their theological profile even in the understanding of meaning of the term “moral person”. In fact, the element that distinguishes the faithful from the moral person is not that of his natural physicality, but that of his sacramental status. In effect, the faithful does not pre-exist the Church, as the human person does the State, and the moral person (though distinguished from the juridical person in canons 113 and 114) cannot be an ecclesiological holder of sacra potestas. Neither the Catholic Church, nor the Holy See (nor the College of Bishops), exercise their potestas by virtue of the fact that they an conventionally be defined as moral persons which is furthermore a concept alien to divine law.
b) Connected with the notions of physical person and moral (and juridical) person are juridical actions and the distinction between public and private actions. The societal approach leaves out of account the fact that the most basic juridical acts, ecclesiologically speaking, are the sacraments, whose binding juridical power is soteriological rather than social, and so goes on to restate norms about their validity which are largely inapplicable to the sacraments (canons 113 and 114). The distinction between public and private, applied to associations, relegates the greater part of these to a virtually para-ecclesial sphere of existence. In State affairs it is impossible to distinguish between society and the public organization of power, i.e. the State. In Church affairs, however, the faithful as an association cannot be downgraded to the realm of the “private.” As holders of the common priesthood and of the sensus fidelium, they make up the first and irreplaceable pole of the institution of the Church. The other pole of this institution, the ministerial priesthood, cannot claim, as the State can, the exclusive function of representing the ecclesial institution.
c) Another central institution that suffers a marked theological reduction in a societal conception of the Church is that of “potestas regiminis, seu iurisdictionis”. The fact that the conciliar notion of “potestas sacra” has disappeared from the Code is already highly significant. Treated outside the ecclesiological context of the power of order and sacra potestas, the “potestas regiminis” appears to derive from the societal structure of the Church, rather than from the specific nature of a communio, which cannot be reduced to a human society “raised” to a supernatural level. Rather than taking on the aspect of a saving power, whose binding force derives from Word and Sacrament, it assumes a physiological make-up similar to that of State power. Despite the solid support for the organizational implications of the separation of powers (can. 135), stemming from the Synod of 1967 7 , the new Code still places the power of jurisdiction (can. 129ff) after the norms it establishes concerning laws (can. 7ff) and administrative actions (can. 29ff), even though these are only functions of the potestas regiminis. In this, the Code remains faithful to the systematic principle of the voluntarist tradition, in accordance with Suarez’s De Legibus, which antedates Montesquieux. This positivist approach, in the rulings on laws, customs and administrative acts (as indeed on juridical functions in Book VII), conserves the same earlier juridical-technical connotation, shorn of any ecclesiological evaluation. The norms guiding laws still have no reference to the sensus fidei of the faithful, as if the juridical function were an exclusive possession of the hierarchy. The participation of all the faithful (somewhat recovered in Book II through their presence in synodal structures, and in other Books), is reduced in this context to recognition of the active subjectivity of the “communitas fidelium” (can. 23) formed by custom and, very indirectly, to interpretation of the law through custom, “optima legum interpres” (can. 27).
In the field of administrative function, structured with the same rigorously juridical criteria as legislative function, there is nevertheless a substantial ecclesiological gain in Book I itself. This is that the criterion whereby dispensation from a law can only be given by the author of that law has been replaced by the criterion that the diocesan bishop by virtue of his office itself, possesses all the faculties necessary for the well-being of his faithful (can. 87).
3. The societal approach surfaces again in the way in which the Code conceives the exercise of potestas regiminis in the sacramental and extrasacramental fields. In the first, the power of jurisdiction, which terminologically assumes the guise of a simple “faculty” devoid of its own content, intervenes in an extrinsic manner, in regard to the power of order, in producing the sacramental effect (penance, can. 966ff; confirmation, can. 882ff; matrimony, can. 1111, 2; sacramentals, can. 1168). In the extra-sacramental field, where it takes on the guise of a true and proper potestas, it is considered a power with its own material content, different from the power of order: thus in dispensations (from vows, can. 1196; from oaths, can. 1203; from matrimonial impediments, can. 1079, 2-4; in remission of penances in foro externo (can. 1354ff); and in granting of indulgences (can. 955). This double dualism, in the rigid separation of order from jurisdiction, as though they were two different powers instead of two purely formal functions of the one sacra potestas, and in the different causal role attributed to jurisdiction in sacramental and extra-sacramental fields, is already contained “in nuce” in canon 131 in which, in the wake of the 1967 Synod, it is still established that the power of jurisdiction should operate in the foro interno only in an exceptional way.
4. The same societal inspiration governs the ground plan of Book VII. Typically canonical procedures for the canonization of saints and teaching the faithful are upheld in the new Code. Those concerning the constitutional status of the faithful (marriage, orders, belonging to the communio, that is, “penal” processes), are, however, relegated, by virtue of purely juridical theoretical presuppositions, to simple “special” procedures grafted onto the ordinary courts, despite the fact that these, through their affinity to civil courts, are judged in canon 1446 to be supplementary procedures. Canon 1446’s indication that trials are to be avoided by resolving disputes when no great legal issues are involved shows traces of the ecclesiology of communion, even though insufficiently to overturn the general thrust of Book VII. In fact, it is only within the confines of the modern State system that judicial procedures exist as institutional projections essential to and constitutive of the very being of judicial power, which is autonomous and separate from other arms of authority. In canonical ordering the existence of the judicial function doesn’t depend on the existence of procedures. Potestas sacra, as the power of loosing and binding, can operate even outside procedures. These, as historically unrenounceable and definitively imposed, for the sake of greater juridical certainty and equality before the law (generally non-absolute socio-juridical principles), remain superstructures added on to the potestas sacra.
5. In Book V too, the overall juridical plan remains within the parameters of the IPE. The key to the whole system is found in canons 1245, 1 and 1260, with their peremptory confirmation of the Church’s right to possess inherited goods, independent of the civil power, or its right to require from the faithful the financial contributions needed to carry out its purposes. In the duty of the faithful to contribute to the needs of the Church (canons 222, 1 and 1262), there is not the merest hint that they might also, in however small a measure, be called on also to practice communion on the level of material goods. This idea does emerge, however, though implicitly and without affecting the legislative basis, in the redefinition of the purposes of the Church’s possessions (can. 1242, 2), thanks to the greater attention paid there to the earliest tradition, in which the connection with the Eucharistic community was clear, and in the recognition of conciliar institutes in canon 1274, which defines the structure of the presbyterate as a communion. So the Church overall continues to appear hypostasized in the hierarchy, which, like the State, sets itself in a relationship of otherness to the faithful, responsible for carrying out by itself, on the basis of semi-inquisitorial considerations, tasks which the faithful have to acquiesce in without being truly protagonists of them. 8
6. The juridical-formal framework of Book VI also reflects that of modern codes of criminal law. Its whole theoretical and epistemological thrust is not towards communio, to which excommunicatio is related, but to natural law principles of restoration (can. 1341) and of the power of coercion can. 1311). This despite the fact that excommunication cannot theoretically be included under the notion of punishment, which belongs to the general theory of law. 9 This fact undermines the whole theoretical and epistemological construct of the Book, with its expansive treatment of other minor sanctions. The very preferential option for ferendaesentences rather than latae sententiae is not based on the logic of communio(allowing authorities to approach faithful in difficulties in a more personal way), but, as the 1967 Synod explicitly suggested, on that of bringing about a vision of asocietas perfecta that is more in keeping with the sensibilities of modern juridical thinking. But in this Book too, in canon 1341, there is a hint of the ecclesiology ofcommunio; this canon confers, despite its marginal systematic placing, supplementary status on the whole sanctions apparatus. This canon, like those dealing with imputability (1312-30) and on the specific application of punishments (1345-63), together with the general principle underlying canon 1339 and the nature of excommunication, voids the whole argument of Book VI of any real and specific content, creating an unbridgeable gap between its material and formal content.

II. The Ecclesiology of Communio

The essence of the principle of communio consists in the fact of postulating thetotal immanence, and the inseparability, of all the elements that make up the Church. This is seen, for example, in the structural relationship of reciprocitybetween Sacrament and Word, between the common and the ministerial priesthood, between the faithful and the Church, between duties and rights, between universal and local Church, between the Pope and the college of bishops, between the bishop and his priests. This ecclesiology, which underlies Books II, III and IV of the new Code, is not always expressed with the coherence one would like.
1. The basic obstacle to its expression is the fact that the Code displays an ecclesiological approach suffering from an excess of pragmatism. This stems from several causes:
a) The first of these is its adoption of the ecclesiological principle ‘Sacramenta (et Verbum) ab Ecclesia’ instead of the principle ‘Ecclesia a Sacramentis (et Verbo)’.10 Word and Sacrament thereby become elements that derive from, instead of being generative of, the Constitution of the Church, the nucleus of which, according to the intention of the Code at least, is contained in its Book II on “The People of God”. The sacrament of baptism alone, in canons 96 and 204, is placed as an element that generates a specific and corresponding set of rules: those dealing with the physical person, and those dealing with the rights and duties of the faithful. The rules for clerics, on the other hand, are divorced from the context of orders, just as those on sanctions are taken out of the sacramental context of penitence; the norms concerning the universal and the local Church have no immediate connection with the Eucharist, and the family does not appear as the social embodiment of the sacrament of matrimony. The canons on the Eucharist and penance are rich in definitions with ecclesiological resonances, but these are still not sufficient to prevent the sacraments being treated as they were in the Code of 1917, from a functional rather than constitutive standpoint.
b) This approach is also responsible for the minimal utilization of the sensus fidei of the faithful (taken up in canon 750 in a seriously mutilated form when compared to Lumen gentium 12, 1) and of the common priesthood (can. 836). 11 These concepts exercise absolutely no influence on the overall systematic organization of the legislative material. If the Code had dug to the very depths of ecclesiology and defined the faithful primarily as titular subjects of the common priesthood and thesensus fidei, it would have been able to bring out, in a systematic way, thestructural immanence of all the faithful both in Sacrament and Word, and in the sacred ministries, showing that the formal distinction between order and jurisdiction, in which their potestas sacra is situated, has its roots in their various forms of participation in the same Sacrament and the same Word, which affect the whole of the faithful.
c) A further obstacle to a full exposition of the ecclesiology of communio was the adoption by the three central Books of the arguments of Lumen gentiumconcerning the participation of the whole People of God in the ‘tria munera’ of Christ. The inadequacy of this for grasping the mystery of the Church is shown by the fact that the new Code is unable to find theoretical and scientific arguments to develop the practical consequences of the munus regendi. This leads to an opposition between the People of God and one of their functions and a subtle process of ‘reduction ad unum’ of the ‘munus regendi’ of the laity into that of the hierarchy.
d) Another obstacle, which can be attributed either to Vatican II or to contemporary ecclesiology, standing in the way of a fully developed exposition of the communal principle of immanence, is the fact that the universal Church and the local Church are unconsciously treated as though they were two materially separate entities, and therefore potentially in competition with each other, rather than two merely formally distinct dimensions of the one Church of Christ, set out in all its uniqueness in the central norms of canons 96 and 369. The principle of immanence in both universal and local Church is clearly stated in the formula ‘in quibus et ex quibus’ in canon 368 – so much so that it can be considered as an ontological and gnoseological paradigm of the very structure of communio. But if this principle had been placed at the beginning of Part II of Book II and referred directly to the Church of Christ, it would have had a stronger and wider influence on the whole of the Code.
e) A further consequence of the pragmatic and institutional approach in the legislative content of the Code is the obliteration of charism, as though this were not an essential element in the Constitution of the Church. 12 The faithful are definable not only through the sacramentality of their being and lives, but also through the possibility of their becoming the rightful subjects of charisms. Without this potential charismatic dimension the faithful and, consequently, the People of God, are prevented from reaching the fullness of their true identity in the Church and its juridical structures. There are certain references to the action of the Holy Spirit, which nevertheless do not necessarily coincide with the specific action of charism (as, for example, in canons 369, 375, 1, 573, 1, 747, 1, and 879), and to the gifts of the Spirit (can. 577 and 605). Yet the Code, giving in to the recurrent objection that charism is not a juridical fact, has not gone to the heart of the constitutional structure of the Church. Charism does not exist autonomously. It isalways conferred on the two basic elements that make up the institution of the Church; the common priesthood (with its sensus fidei) and the ministerial priesthood. While by definition not belonging to the sphere of juridical reality and institution, it does belong to the Constitution of the Church and has a very precise juridical validity, either because it should underlie the judgments of pastors, or because, along with baptism, charismatic gifts serve as the basis of the rights and duties of the faithful in their work of spreading the gospel (Ad gentes 28, 1). The Spirit is not to be extinguished (LG 12, 3), but sets (like rights and duties) non-transgressible limits to the exercise of sacra potestas. Unlike what happens in the sphere of public organization of State power, the institution of the Church is not the same thing as its Constitution, but only one element of it. The inseparability and mutual immanence of institution and charism are a further specific implication of the principle of communio. It is only on the basis of an ideological misunderstanding that their relationship has been seen as one of opposition; this derives from a supposed opposition between charity and the law.
f) A final aspect of the pragmatic approach to ecclesiology is the elimination from canon 205 of the conciliar phrase ‘possessing the Spirit of Christ’ (LG 14, 2). The reduction of the criteria for accepting the faithful as ‘fully incorporated’ into the Church to the three classic elements in Bellarmine’s definition shows a conception in which grace is not considered as an element necessarily immanent in the institution. That grace, like charism, possesses an independent juridical value, regardless of where it surfaces (as with the ‘tria vincula’) or, to a lesser extent, through recognizable institutional aspects, is clear from canon 916. Non-possession of grace affects incorporation into full communion and the exercise of the rights of the faithful.
2. Despite these limitations, the ecclesiology of communio lies at the roots of all three levels on which the Church exists: the ‘communio fidelium, Ecclesiarum et ministeriorum. 13 On the level of communio Ecclesiarum, it is recognized that the immanence of the universal and local dimension of the one Church of Christ is unhesitatingly affirmed in the formula ‘in quibus et ex quibus’ in canon 368. The universal Church, made up of all the local Churches, is realized in each local Church. This means that all local Churches are ontologically immanent in each local Church. Communio, therefore, does not arise only from the constitutive and hierarchical relationship of each local Church to the Roman Church (e.g. canons 331, 349, 3), but also from the reciprocal relationship between individual local Churches. Though this derives from the first, it is no less essential for understanding the communio Ecclesiarum, the ontological and gnoseological basis of the communio ministeriorum, which binds bishops, priests and perhaps even deacons together reciprocally and specifically. Following Vatican II the Code expresses the specific nature of the communio ministeriorum in the term ‘communio hierarchica’ (canons 336, 375, 2; PO 15, 2), which is really a broader term, since all levels of communio are included in the hierarchical dimension can. 212, 1).
On the level of communio fidelium it is worth analyzing the emergence of the ecclesiology of communion in more detail. Canon 209, 1 shows that communion invests the ontological structure of the faithful, delineating their anthropological and ecclesial identity. Effectively, the duties and rights of living in communion with God and the Church form the ontological basis and immanent logic of a series of duties and rights, derived not from natural law but from divine law, such as those formulated in canons 209, 2, 210, 211, which in turn become the starting points for other cases which build up the juridical heritage of the faithful (e.g. canons 212-3, 215, 217).
a) The principle of immanence in communio surfaces in other aspects of the question. The new Code, distancing itself from the LEF (Lex ecclesiae fundamentalis) (in accordance with the tendencies of modern constitutionalism), does not attribute the constitutional qualification of ‘fundamentality’ to the duties and rights of the faithful and the laity, which are divided into their respective categories. This brings about a structure conflict situation (given that this is possible and exists) in the relationship between faithful and hierarchy, which is nevertheless subordinate to the citizen-State relationship, determined as this is by the pre-existence of the human subject and by the need to guarantee a sphere of autonomy to the individual. Since the duties and rights of the faithful are, on the other hand, conferred by the Church (or recognized in order when they originate in natural law), through the sacraments, the concept of autonomy cannot be applied to the juridical situation of the faithful on the same theoretical bases. Both faithful and hierarchy, in effect, belong to the institution of the Church, which means that the relationship is not set up between person and institution, but between person and person.
b) The second aspect consists in the fact that the system employed by the Code gives ontological preference to the notion of duty over that of right. In effect, almost half the cases catalogued, stated as rights, are in fact derivations of duties. It is symptomatic that wherever the Code introduces cases drawn more or less directly from natural law (e.g. canons 218-222, 2, 231, 2), the notion of right prevails over that of duty. The result is that in these cases right can be transferred to third parties (hierarchy), while the duties deriving from ius divinumremain inherent in first parties and are transferable only in so far as they become rights. This priority of duty is not philosophical-voluntarist in origin, but ecclesiological. It stems from the dependence of all the faithful on Christ who calls them to communion with the Father and the Church, as canon 209, 1 affirms.
c) The third aspect of the communio fidelium lies in the fact that the faithful do not exist as such, but as an ecclesiological reality immanent in all the other states in which the faithful live their lives. This immanence is assured by the principle of equality proclaimed in canon 208. This creates a deep and reciprocal immanence of the three states, which cannot be reduced to superstructures inherited from the Middle Ages, since they are brought about by the sacraments (of Baptism and Orders) or by charism (the evangelical counsels). The status of the evangelical counsels is not simply set above the other two, as a wrong reading of canon 207, I might suggest; it has its own constitutional priority: that of making prophecy present, just as the lay state has its priority in the field of secular responsibility and the clerical state has its responsibility for the unity of the ‘communio Ecclesiae et Ecclesiarum.’14

d) In the course of its central evaluation of faith, the new Code has also revalued the laity, both in its methodology – considering them before the clergy – and in its substance (though not without gaps) – concerning their participation in all threemunera, to the point where they can hardly be distinguished from deacons. A more decisive evaluation of their ‘indolis saecularis’ (a conciliar concept not taken up in the Code), which emerges only in four norms (or groups of norms: canons 225, 2, 227, 237, 226, 793, 796-9), would have avoided the dualistic error of suggesting that the secular responsibility which is the special province of the laity is expressed as such solely in their encounter with the world and not also in their internal encounters with Church structures. Only this double application enables the laity to be the point of contact between Church and world and the point of immanence between the economy of redemption and that of creation, two economies which are found indissolubly immanent in the sacrament of Matrimony, which is precisely the highest expression of secularity. The prevalence of the sacramental definition of the laity in the new Code (LG 31, 1), contrary to the overall emphasis in the conciliar texts, over a definition that lays greater stress on their secularity (LG 31, 2), leads to an overall clericalised picture of the laity.

*  First published in English in Concilium (GB) 185 (1986) 3-13, translated by Paul Burns.

1  See A. Acerbi, Due ecclesiologie; ecclesiologia giuridica e ecclesiologia di comunione nella ‘Lumen Gentium’ (Bologna 1975).

2 For the works of the writer on the new Code, see the articles mentioned in the biographical note.

3  For the canonical understanding of law, see E. Corecco, “‘Ordinatio rationis’ o ‘ordinatio fidei’? Appunti sulla definizione della legge canonica,”in Communio 36 (1977), 48-69 (Ital.); 3 (1978), 22-39 (Fr.).

4  See R. Sobánski “Rechtstheologische Vorüberlegungen zum neuen kirchlichen Gesetzbuch,” in Theol. Quart. 163 (1983), 178-88.

5  See G. Alberigo, “Egemonia dell’instituzione nella cristianità?,” in Cristianesimo nella storia 5 (1984), 49-68.

6  See G. Colombo, “La teologia della Chiesa particolare,” in La Chiesa locale, ed. A. Tessarolo (Bologna 1970), pp. 17-38.

7  The ten principles laid down by the 1967 Synod for the revision of the Code, read 20 years later, reveal a very serious ecclesiological deficiency, despite their apparent modernity.

8  See E. Corecco “La Sortie de l’Église pour raison fiscale: Le problème canonique,” in Sortir de l’Église (Fribourg 1982), pp. 11-67.

9  On this point, see the article by L. Gerosa in this issue (the third issue of Concilium [1986], 83-95).

10 It would be enough to substitute the title of Books III and IV with “De verbo Dei” and “De sacramentis” for this ecclesiological plan to appear in all its clarity.

11 See E. Corecco, “Riflessione giuridico-istituzionale su sacerdozio comune e sacerdozio ministeriale,” in Atti del IX Congresso Nazionale dell’Associazione teologica italiana (Cascia 14-18 settembre 1981), Padua 1983, pp. 80-129.

12  See J. Komonchak, “The Status of the Faithful in the New Code,” in Concilium 147 (7/1981), 37-44.

13 On these three levels of communio, see W. Aymans, “Einführung in das neue Gesetz der lateinischen Kirche,” in Arbeitshilfen no. 31 of the Secretariat of the German bishops’ conference (Bonn 1983).

14  On the ‘circular’ relationship of the three states of life, see H. Urs von Balthasar, Christlicher Stand (Einsiedeln 1977), esp. pp. 294-314.