- I. The Notion of Institution in the Canonical System
- II. The Notion of Charism and its Juridical Implications
- III. The Doctrinal Foundations of the Canonical Norms Concerning Associations
After the Second Vatican Council, once the profound crisis of the 1960’s was over, the Church experienced “a new season of associations of the faithful,” as was justly observed by the Instrumentum Laboris of the Seventh Ordinary General Assembly of the Synod of Bishops. 1 Faced with this surprising phenomenon of ecclesial aggregation, the need was felt in various parts, “de iure condendo,” of its juridical regulation, based on foundations different from the traditional ones. 2 This demand was accentuated by the fact that, whereas the 1917 Code presupposed the existence of the right of association, without, however, giving an adequate individuation of its contents or the formulation of suitable instruments for its protection, this right had received an explicit dimension in two conciliar documents: that on the apostolate of the laity (AA 19) and that on the priestly ministry (PO 8).
If from the legislative point of view, can. 215-216 of the new Code of Canon Law amply guarantee the exercise of the right of association formulated by the Council, the problem still remains open, however, as to whether the new norms of the Code concerning associations of the faithful (can. 298-329) truly represent a juridical regulation that is substantially able to accommodate the variety of new forms of ecclesial aggregation that have flowered after the Council. Other canonists, in this international Congress itself, 3 will seek to give a precise and detailed response to this question. Elsewhere I have had the occasion 4 to emphasize the impossibility of placing the new ecclesial movements originating from the charism given to their founder under the juridical figure of association.
From the doctrinal perspective, however, another and much more important question is posed to the canon lawyer who wishes to remain faithful to the theological datum that is prior to the juridical order: What are the ecclesiological foundations of the juridical associative phenomenon within the canonical system? In order to respond to this question in a satisfactory way, it is necessary above all to free oneself from the temptation to consider the right of association of the faithful as a “ius nativum” founded exclusively on natural law, in harmony with the doctrine of the “Ius publicum ecclesiasticum. 5 It is also necessary to overcome the short-sighted doctrine, imposed by a certain philosophy of religion, which reduces the relationship between charism and institution to the dialectical opposition between the individual and authority. 6 If one gives in to the first temptation, any phenomenon of aggregation that is typically ecclesial because it is born from a listening to the Word, from the celebration of the sacraments and particularly of the Eucharist, as well as from following a charism, will inevitably be considered as a merely social phenomenon until the moment in which the authority confers an ecclesial significance on it with its approbation. If one conforms to the second scheme, on the other hand, in the end one will fail to recognize, or will at least diminish, the priority of theology over canon law. 7
The exact analysis of the ecclesiological foundations of the juridical associative phenomenon, and the development of a general theory on the basis of these foundations, therefore requires a twofold preliminary clarification. On the one hand, it is necessary to bring into focus the notion of Institution in the Church. On the other hand, it is necessary to shed light on the ecclesiological role and juridical implications of charism. Both clarifications cannot be completed in the absence of a third notion of great relevance for the whole of canon law, which will also be the object of the next work of Javier Hervada Xiberta: the Constitution of the Church. Both of these clarifications are furthermore far from being universally recognized by contemporary canon law, despite its undoubted efforts at methodological and epistemological renewal. 8
It would be rash to claim to give here a thorough response to preliminary questions of such vast import. However, I hope to offer some material and new ideas to the canonical research that is underway on these fundamental questions, 9approaching them from the specific perspective given by the first of the three themes of our Congress: the ecclesiological determination of associative structures.
I. The Notion of Institution in the Canonical System
In common language, the term “Institution” always indicates in some way – as Santi Romano observed – something lasting, a “firm and permanent unity, which does not lose its identity, at least always and necessarily, in the mutation of each of its elements…” 10 However, it has undergone a long semantic evolution, not only in sociology, but also at the level of the general theory of law. 11 The can be easily seen from its Latin etymology. 12
The Christian juridical and philosophical tradition also did not escape a theoretical reduction of the concept of Institution, above all within the “Ius publicum ecclesiasticum,” which exercised such an influence as to permit it to become, towards the end of the last century, the official orientation of the Holy See. In fact, in the textbooks of canon law of this school – almost all entitled “Institutiones Iuris Publici Ecclesiastici,” from that of Cardinal Soglia (1779-1856) to that of Cardinal Ottaviani – the notion of “Institution” is identified in its substance with that of “Constitution.” The latter, in its turn, is almost exclusively centered on the nature and organization of the ecclesiastical power, which is the fundamental constitutional question of a so-called “societas iuridice perfecta,” having for its definition a true “summum imperium” and therefore having all the juridical means necessary for the reaching of its proper goal.
Applying a juridical doctrine of this type to the Church, not only the juridical element ends up practically coinciding with the institutional element, but also the so-called “ius subiectivum” risks not finding an adequate place and of being totally absorbed by the “ius obiectivum.” 13 It is not by chance that within this perspective, even after Vatican II, there are still some who have recourse to natural law to justify the right of association of the faithful, or attempt to configure it as a faculty conceded by the hierarchy though a specific “mandate.” 14
On the other hand, the overlapping of the notion of “Institution” with that of “Constitution,” which is done by followers of the “Ius publicum ecclesiasticum,” ends up by generating the great confusion in not a few theologians and canonists, according to which the “Ius publicum ecclesiasticum” is made to coincide “tout court” with the constitutional law of the Church. 15 This last identification is false, however, for two reasons. First, because canon law, being a theological discipline, has an epistemological principle different from the natural law perspective of the “Ius publicum ecclesiasticum.” Secondly, because the object of the constitutional law of the Church, in contrast to that of the State, besides having a different dogmatic origin and another finality, is vaster than the questions regarding power and its organization, as will be seen below. Furthermore, following resolutely the methodological orientation indicated by Optatam totius in n. 16, it is necessary to conclude that the questions concerning the organization of ecclesial power are to be considered as secondary or derivative, given the fact that the primary elements of the constitutional structure of the Church are not only Word and Sacrament, but also Charism. Whereas the first two are considered to be that which generates the ecclesial Institution, 16 Charism – precisely because it is given as we shall see to the two poles of the Institution (that is, to the common and to the ministerial priesthood) – is the only non-institutional element of the constitution of the Church. In fact, all the structurally constitutive elements of the Church, both of divine law as well as of human law, are based on Word and Sacrament, or on Charism.
In the ecclesial reality, “Constitution” and “Institution” are therefore two fully distinct entities, even if they are not separate, nor still less in opposition with each other. The “Constitution” is a larger entity than the “Institution,” so much so that the theologian Hans Urs von Balthasar, in full harmony with a long dogmatic tradition, has come to define the ecclesial Institution as a sort of “kenotische Verfassung,” in other words, as a kenotic reduction of the mystery of the Church, apt to impede the privatization of the ecclesial experience through the logic of ecclesial obedience which guarantees the permanence of the “Memoria Christi.” 17This important and suggestive conclusion of the great Swiss theologian unfortunately must be modified, because it is evident that von Balthasar, like everyone else, still identifies the Institution with the hierarchical elements (Pope, council, bishops, etc.), that is, with the sacrament of Holy Orders. However, as we shall see in greater detail, every sacrament (and therefore also Baptism which confers the common priesthood) is an institutional element in the Church. Despite this evident reduction of the ecclesiological data on which the Institution of the Church rests, along the lines of von Balthasar and other dogmatic theologians, 18it can more easily be seen how both aspects of the ecclesial reality, that is the Constitution and the Institution, are subject to the constant intervention of the Holy Spirit, whose “opus proprium” is the construction of that dwelling – the “communio” – in which man can fully rediscover his liberty. Now, the “communio” as a specific work of the Holy Spirit is not only the central idea of the ecclesiology taught by the Second Vatican Council, but also constitutes, to use scholastic terminology, the “formal principle” of the whole of canon law. 19 For this reason, both entities in question, Constitution and Institution, have a juridical significance which should not be confused with that attributed to them by civil juridical science. Juridical is thus not a synonym of institutional and the two categories, “Institution” and “Constitution,” have a different sense in the Church from that which they have in the juridical order of the modern State.
The ample debate on the draft of a first “Lex Ecclesiae Fundamentalis,” and then on the systematization of the new Code, should have sufficiently clarified how the ecclesial Constitution, even in its juridical and formal aspects, is governed by principles that are quite diverse from those on which the constitution of the modern State normally rests. 20 In fact, the opinion of those who do not wish to attribute a constitutional character to all the elements of divine law or to the sacraments and the Word as such seems to us by now to have been surmounted. 21
Nevertheless, I have the impression that when one speaks of the Constitution of the Church, one thinks much too easily of the model of modern civil constitutions, which claim to formalize the totality of the material elements in which the entire juridical, sociological and political experience of the State is articulated in a given historical moment.
However, even these civil constitutions do not appear so complete as they claim to be, so much so that in formal constitutional codes there exist fundamental rights that are not written. If one reflects on this fact, it appears necessary to detach oneself from reference to civil models, in order to better understand the Constitution of the Church. In the same way, a further necessity will be felt of going beyond the material norms found in the Code which are held to be constitutional.
In fact, all those elements of divine law that constitute its nature and all those elements of positive law that historically specify it, belong to the Constitution of the Church in the material sense, and thus also potentially in a formal way. Now, as we have seen, the genetic elements of the Constitution, in its essence and in its historical articulation, are on the one hand Word and Sacrament, and on the other hand, Charism. The latter has its origin in Christ, as do Word and Sacrament, but through the Holy Spirit, which is the Spirit of Christ. The presence of the Holy Spirit in the Church, and thus of Charism, has been guaranteed by Christ Himself. Therefore, the Church does not exist without the presence of Charism, whatever its specific content may be.
The process of clarification of the sense acquired by the notion of Institution within the general theory of canon law is less advanced, however. Therefore, it is useful to dedicate more attention to it. I have already referred to the fact that the ecclesial Institution is not reducible to the ministerial priesthood. The common priesthood also belongs to it, which, together with the sensus fidei, constitutes the foundation of the participation of all the faithful in the mission of the Church in the world. An irrefutable proof of this is the fact that the sacrament of Baptism, always considered the “ianua sacramentorum,” constitutes the criterion of differentiation between the regime of Christian “religion” – proper to many sects and based exclusively on faith in Christ through the Word – and the regime of “ecclesiality,” which requires at least the sacramental density of Baptism. 22 This irreversible incorporation of a person in the Church which flows from the sacrament of Baptism reveals all the institutional significance of Sacrament and Word. In fact, Baptism is not only a soteriological event, whose effects might be irrelevant from the social point of view, but is also a constitutive juridical act that determines the belonging of a person to the Church and at the same time profoundly conditions the juridical structure of the canonical system. Thus Baptism paradigmatically exemplifies the juridical significance of all the sacraments, and thus also of the Word. Although not always announced in concomitance with the sacraments, the Word always converges, at least in the synthetic and definitive form of every sacrament, to produce the soteriological and socio-juridical effect of the symbolic sacramental sign.
The function of Baptism as a supporting element not only of the ecclesial Constitution, but also of the ecclesial Institution, gives the measure of the way in which the relationship of the faithful to the Church is not identical, or homologous, with the relationship of the citizen to the State. In the Church as a reality of communion, all inter-ecclesial relationships are realized not according to the dialectic of person-Institution, as occurs in the modern State, but rather according to the relationship between Institution and Institution, that is between person and person. In fact, the Sacraments and the ministers do not exist as realities in themselves, that is, as institutional abstractions as in the hypostatization which characterizes offices in the civil context. On the contrary, they exist as the ontological component of baptized persons and persons ordained with the sacrament of Orders. If by Institution one understands the stable and constitutive structures of a social reality, it is necessary to agree that this structure is conferred on the Church by Sacrament and Word, which penetrate each other giving rise, among other things, to the figure of the canonical subject: the “Christifidelis,” which underlies and is immanent in all three states of ecclesial life and therefore in persons of the laity, of priests, and of religious. The Church as Institution therefore does not coincide simply with the organization of public powers, that is, of authority. The ecclesial Institution is found always around the two poles of Baptism and Holy Orders, which converge with the other sacraments in the Eucharist. In effect, the Eucharist is the representation of the whole Church, because it is at the same time the “fons et origo” as well as the “culmen” of the entire life of the Church, as Vatican II affirms (SC 10).
In other words, the Institution substantially consists in the juridical and structural developments historically conferred by the Church both on the common priesthood and on the ministerial priesthood. In the common priesthood, which also includes the “sensus fidei,” the participation of every member of the faithful in the subjective dimension of Christ’s priesthood is realized “suo modo e pro sua parte” (LG 31, 1). In the ministerial priesthood, on the other hand, which also includes the Word in its magisterial form, the participation of clerics in the objective dimension of Christ’s priesthood is realized. This ministerial participation is realized in the conferral of the sacra potestas. 23 Since these two forms of priesthood, although essentially diverse (LG 10, 1), consist in a participation in the one priesthood of Christ, they cannot be either separated or counterposed, but in their reciprocity and interaction they constitute the two indispensable elements of the Institution of the Church: laity and clergy.
The element in the Church which makes it impossible to identify the Constitution with the institutional dimension is Charism. This also belongs to the Constitution as one of its primary elements, even if it is freely raised up by the Holy Spirit in the two poles or principal elements of the Institution – clerics and laity. From this perspective, there is no doubt about the great juridical relevance of Charism. In fact, if it is true that the existence of canon law does not derive from the social dimension inherent in the nature of man and from the human social behavior that is realized in the Church, but rather from the juridically binding force that is inherent in the sacraments and the Word (elements generating the social aggregation specific to the ecclesial communion), then also Charism is a source of fraternity and of communion. This can be seen especially in its most complete forms which come out for example in the charisms of founders, defined as the “original charism” 24 which stands at the origin of the religious orders, of the many associative typologies, and of the new ecclesial movements. Therefore, charism is an ontological element, and as such it is typically constitutional. In fact, the Church does not exist without the constituent and constitutional presence of charism. Unfortunately, this central truth of the ecclesiology of communion, clearly taught by the Second Vatican Council, has not yet been liberated from certain ideological manipulations of various kinds which have so embarrassed the ecclesiastical legislator as to motivate the complete elimination of the term “charism” from the Code.
For these reasons, in order to better understand the role played by Charism at the level of the so-called right of association, it is worthwhile keeping in mind, in addition to what has been said above, the fact that notwithstanding the theories that have been proposed in the course of history, the real constitutional tension manifested in the historical experience of the Church is not between Charism and Institution – considered reductively as coinciding with the ministerial or hierarchical priesthood – but between the laity and the clergy, between the common priesthood and the ministerial priesthood, that is, between the two poles of the ecclesial Institution itself. 25 If they have been conceived to be antithetical, this is because there has always been a tacit and never sufficiently verified presupposition, going back to Montanism, that charism is the almost exclusive privilege of the laity, understood not in the ecclesiological sense of the laity as expressed by Vatican II, but as a sociological element in which the “base” of the Church is manifested. In reality, even the Protestant Reformation, in which the ideas of the ancient and medieval spiritualist movements in the Church converged, counterposed the common priesthood of the laity, undervalued during the entire Middle Ages, with the ministerial priesthood of clerics, always in a position of hegemony in the Church. This opposition was theologically conceived as a contraposition between Charism and Institution. Vatican II, in teaching that charisms are given by the Holy Spirit to the “faithful of every order” (LG 12, 2) has overcome this antinomy, without denying the existence of charisms specific to the priestly order, such as that of the infallibility of the Pope (LG 25, 3). In reality, this is not to deny that there also exists a tension between charism and institution, beyond the tension between clergy and laity. The historical manifestations of this tension, however, have provoked the elimination of both poles of the ecclesial Institution: clerics and laity. This has occurred, for example, in those self-styled sects which, basing themselves exclusively on the Word, have also eliminated the sacrament of Baptism because it was considered in itself to be an institutional fact contrasting with the absolute liberty of the Spirit and of Charism.
Charismatic gifts, always given to both poles of the institutional dimension (the common and the ministerial priesthood), have the task of provoking the ministerial priesthood towards a greater purity of values and of relativizing any possible claim it may make to set itself up as an autonomously exclusive guide of the Church with respect to the intervention of the Holy Spirit. The structural problem of the Church is thus not that of realizing the unity between the charismatic and institutional dimensions, supplanting the constitutive function of Sacrament and Word so as to derive the Institution directly from Charism, as is done by some. Instead, the structural problem is that of realizing the unity of the common and ministerial priesthood. They are related to each other above all according to a relation of reciprocal immanence (a structural principle which, as indicated above, is specific to the communion “Ecclesiae et Ecclesiarum”), since the common priesthood continues to subsist in the ministerial priesthood and the ministerial priesthood exists and has its reason for being only for the sake of service to the common priesthood. Charism is always given within the institutional dimension to aid it to realize the equilibrium intrinsic to its own bipolarity. 26 Recalling to the institutional element the absolute priority of the Spirit and relativizing its power so that it does not become autarchic and absolute, charism vivifies it, helping it to overcome the danger of competition proper to every form of power, which has always been translated in the Church into a preeminence either of the hierarchy over the laity or of the laity over the hierarchy.
But what exactly is Charism? What significance does the ecclesiological role of Charism, in its role as a hinge between the constitutional and institutional dimensions, have for associative canon law? We will begin by giving a clear, although not complete, response to the first question.
The term “charism” – held by the more rigorous literary criticism to be extraneous to the extra-biblical vocabulary – has been coined by the Apostle Paul as an alternative semantic expression to elucidate to the Christians of Corinth the nature of the extraordinary phenomena of the Spirit experienced in their Church and described by them with the Hellenistic term “pneumatika.” 27 St. Paul attributes a clear Christological and ecclesiological value to charism. It is quite clear that in Pauline ecclesiology, the charismatic element belongs to the essence of the mystery of the Church and of Christian experience, like ministry (or ecclesial office) and the sacraments. Nevertheless, theology has continually posed the question of whether St. Paul simply used the doctrine of charisms to express the idea of an operation of the Holy Spirit within the Church which arouses Christians to an ethical behavior, or whether he also held, as in the two pastoral letters, that charism is a constitutive element of the ordained ministry as such, and thus a constitutional element. Did the Apostle of the Gentiles intend to present Charism as an element of the moral and spiritual life of the Christian, or as a valid model for the organization of the Christian community?
The Protestant and the Catholic traditions are divided over this interpretation of the intentions of St. Paul. 28 Whereas the propensity of Protestant theology has always been that of defining the ordained ministry with Charism, so as to exclude its sacramental origin, Catholic doctrine has generally regarded Charism in a mystical-spiritual perspective, unilaterally emphasizing the sacramental-institutional structure of the Constitution of the Church. A convergence of these two conceptions, now underway, is occurring in the Protestant camp on the basis of the reappraisal of ministry, and in the Catholic camp with the recovery of Charism as a fundamental element of the Constitution of the Church. The Magisterium itself has given a very important contribution with Mystici Corporis and above all with Vatican II, whose texts on charisms reveal an extraordinary richness. 29 This concordance converges towards a progressive emptying of the antinomy proclaimed to exist between nature and the supernatural, between faith and reason, charity and the law, Charism and Institution. 30
Now, if we leave aside the predominantly sociological sense assumed by the term charism in modern literature, following Max Weber, 31 in which charism and charismatic signify any spiritual and cultural force capable of creating any type of “leadership,” it should be emphasized that the term has assumed an ever more intense Christological and ecclesiological significance in modern theological terminology. This has occurred, on the one hand, by returning to conceptual developments passed on to us above all by scholasticism. This has made it possible for a distinction to be made between Charism and other forms of intervention of the Holy Spirit (such as created grace, the gifts of the Spirit conferred in Baptism, the infused supernatural virtues and the grace of office), poured out for personal salvation or for the building up of the Church through the ordinary sacramental economy of the Church. It has also come about, on the other hand, by reflecting on the charismatic experience of ancient and recent ecclesial forms of aggregation.
A proposal has been advanced by some today to eliminate the supposed antinomy between Charism and Institution by using a fundamental notion of Charism and a evolutionary sense of Sacrament, as if the sacraments were a derivation from Charism. However, the substance of the scholastic distinctions, confirmed by Vatican II, 32 reveals that this proposal is theologically open to question and inadequate in any case to develop an ecclesiology of communion. Furthermore, having recourse to these two notions is insufficient to take away the doctrinal tension historically created between charism and institution. This is because the fact remains that Baptism and Holy Orders, as well as the other sacraments, although they ultimately have their origin in a gift or charism made to men by the Spirit of God through the vocation or calling of Christ, remain institutional elements which have their immediate or mediate genesis in the Incarnation of Christ. The Church can only intervene in a limited way with regard to their existence and nature. Therefore, it does not seem theologically justifiable to hold that the Church can institutionalize Charisms by giving them a properly sacramental structure, 33as is maintained by Küng in Germany and Sartori in Italy. Even assuming that Christ’s call to salvation could be defined as a Charism given in the Holy Spirit, it is still necessary to distinguish theological concepts. Word and Sacrament, in fact, are an ontological participation in the person of Christ, the Word made flesh. The charisms of the Holy Spirit, on the other hand, postulate the existence of the institutional structure of the Church, founded, as we have seen, in the Word and Sacrament. In the ordinary economy of salvation, the Holy Spirit does not intervene prescinding from the institutional structure conferred on the Church by Christ. In fact, the Church is “Ecclesia Christi” and not the Church of the Holy Spirit. The Church cannot be attributed to Christ and to the Holy Spirit in the same way. If these attributions are confused, the essence of the trinitarian mystery itself is affected.
To overcome the tension that has historically emerged from the bipolar relationship between charism and institution, theorized by Luther as the antinomy “Law and Gospel” (which leads to the doctrine of the two Churches: visible and invisible), and further radicalized by the antijuridical manifesto of R. Sohm on the existence of an absolute contradiction between law and the Church, 34 it is not necessary to attribute to the Church a fundamental structure that is solely charismatic. Rather, it is necessary, on the one hand, to recover the ecclesiological significance of the institutional dimension in the sense indicated above. On the other hand, it is necessary to explore the canonical significance of Charism, analyzing its juridical implications more closely. Paradoxically, this last operation finds greater support in the charismatic experience of the new ecclesial forms of aggregation than in the new Code of Canon Law.
In fact, giving in to the recurrent objection, according to which Charism cannot be measured from the juridical perspective, the Code has abdicated its responsibility of penetrating up to the heart of the constitutional structure of the Church through a treatment of the problem of charism. In this way, the ecclesiastical legislator has forgotten that a member of the faithful is not constituted solely by his sacramental baptismal structure, on account of which he is invested with the common priesthood and the sensus fidei, but also by the possibility of becoming the holder of a charism. Without this potential charismatic dimension, the faithful (and consequently the entire People of God) would remain gravely mortified in their ecclesial and juridical identity. Precisely for this reason, Vatican II, as we have seen, does not hesitate to recognize among the principle rights of the faithful, that of exercising their charisms (AA 3, 4). In the Code, on the other hand, although references to the Holy Spirit are not lacking, 35 the term “Charism” has been unexpectedly eliminated. It appeared seven times in the Preparatory Scheme of 1982. In that scheme, however, charisms were exclusively reserved to members of the institutes of consecrated life, contrary to Vatican II, where charisms are always attributed to all the faithful as such. The embarrassment of the legislator with regard to the reality of charisms is thus doubly evident. 36
The notion of Charism brought to light by the new ecclesial movements is very different, and should be reflected on by the canon lawyer. It is not by chance that the ecclesial function of these movements has been recognized as irreplaceable by Pope John Paul II on account of their charismatic origin. 37 This confirms the fact that every type of ecclesial aggregation born from the following of the “original charism” of the founder is constantly characterized by a strong experience of the “communio fidelium,” as if it were a familiar concrete reality.
The “original charism,” the complete expression of Charism in general, is thus a particular gift of the Holy Spirit that raises a concrete fraternity whose reason for being coincides in fact with the so-called “broad apostolic purpose of the Church” (AA 19, 1), which is essentially missionary by nature. This identity, on the one hand, makes it impossible to apply the classical scheme of association borrowed from civil juridical science to these forms of ecclesial aggregation, whose significance will be analyzed below. However, for the same reason, it makes evident the dimension of the charismatic event.
Two texts of Vatican II are sufficient to provide a precise confirmation of the constitutional significance of Charism: that of LG 12, 2 in which it is affirmed, along the lines of the Pauline tradition, that charisms must be submitted to the judgment of Pastors, who are not to extinguish the gifts of the Spirit; and that ofAG 28, 1, in which charism is considered to be a foundation of the duty-right of the faithful to collaborate in the spreading of the Gospel. The juridical significance of charisms is clearly revealed in the fact that – parallel with the duties and rights of the faithful as such – they set up an inviolable limit to the exercise of the sacra potestas of the Pastors, 38 who have the responsibility not only to judge the authenticity of charisms, but also and above all to respect their existence and effective possibility of being practiced.
This discourse concerning the constitutional relevance of Charism can be summarized in three affirmations: it is a particular gift that the Spirit bestows for the construction of the ecclesial community; when it exists, it is one of the ecclesiological foundations of the duty and right of the faithful to collaborate in the mission of the Church; and finally it constitutes a precise limit on the exercise of the sacra potestas. What is the significance of these three assertions in reference to the doctrinal foundations of the norms which regulate the associative phenomenon of the Church?
The analysis of the debates on the systematization of the new Code of Canon Law has permitted Winfried Aymans to formulate an interesting doctrinal synthesis on the difficult distinction between “Verfassungsrecht” and “Vereinigungsrecht,” that is, between constitutional and associative law. 39 Whereas constitutional law finds its key concept in the conciliar notion of communio, the law of associations seems to be developed entirely around the notion of “consociatio.” According to Aymans, there are two constitutive elements of a “consociatio” which thus characterize all of associative law. First of all, there is the fact that a “consociatio” is recognized by the free and common will to associate (the so-called “Vereinigungswille”), expressed with regard to the act of foundation on the part of the future members. Secondly there is the fact that this common will fixes one or more specific goals that in some way enter into the mission of the Church, but do not ever coincide with its global mission. 40
Now, it is true that this way of distinguishing canonical constitutional law from that of associations has the merit of making it clear that the living of the “communio” is a necessary condition for salvation, contrary to the choice of participating in the life of a “consociatio.” Nevertheless, the same distinction does not give enough attention to the fact that many ecclesial aggregations, whether ancient (as, for example, that of orders and confraternities) or recent (such as the ecclesial movements), are not born from a purely human desire to associate, but from the aggregative force acquired by their founder through the gift of an “original charism.” Secondly, this overlooks the fact that these forms of ecclesial life, in conformity with the teaching of Vatican II, frequently do not have specific or particular purposes, but rather they “set before themselves the broad apostolic purpose of the Church” (AA 19, 1). If this is true, it is necessary to seek a new definition of the canonical law of associations, capable of fully respecting the ecclesiological data that emerge from the “new associative season of the faithful.” All of this must be done in the light of the preceding clarifications regarding the notion of Charism, Constitution and Institution.
This definition could be formulated as follows: the right of association in the Church is the representation in juridical schemes and formulas – and thus the functional regulation – of the constitutional element of charism. It follows that the canonical norms not concerning associations juridically structure the other two constitutional elements: Word and Sacrament. Both of these normative “sets” have a constitutional character. In civil law, the constitution and the activity of an association depend exclusively on the free voluntarist choice of those who intend to associate, and thus the association itself is a phenomenon of private autonomy (subsisting within the formal limits fixed by positive legislation). In the canonical system, instead, an association assumes ecclesial relevance not so much because it is born of a voluntaristic process of the faithful, in the exercise of a right to autonomously decide, but rather because it arises from an impulse of the Holy Spirit and therefore of the manifestation of a charism. It follows that, beyond the founding will – or, in juridical terms, the affair of foundation – in the Church there always exists an impulse from above, a charism which makes it impossible to situate the associative phenomenon within the mere limits of private autonomy. Indeed, the existence of this impulse even implies the overcoming of the juridical-conceptual category of “private,” and therefore, the transcending of the opposition of public and private. The weakness of this distinction is recognized even in several sectors of civil juridical experience, and in the canonical system it is completely inconceivable, because it does not exist from the ecclesiological perspective.
This does not prevent an association from existing in fact, even when it is not born from an impulse of the Holy Spirit, as actually occurs in the Church. It is evident, however, that such an association does not have an appreciable ecclesiological – and therefore salvific – relevance. The distinction between public and private, introduced in the new Code, is only a didactic categorization by which the legislator distinguishes the different grades of ecclesial quality proper to a given association or movement. Canonical associations which are defined as private, if they realize the principle of communion, are always an ecclesial reality, that is, a phenomenon in which the Church is realized. If they realize the principle of communion, they are always an ecclesiological fact, and thus they are never a merely private fact in the terms of secular juridical theory. This is true even before the ecclesiastical authority intervenes to praise or recommend them according to the norm of can. 299 § 2. A confirmation of this is the fact that, although the purpose of a canonical association may be particular, not explicitly including all the finalities of the Church, this specific purpose implies, nevertheless, the entire content of Christian life “in nuce,” and thus the universal experience of the Church. Otherwise, such an association would not even be ecclesial. The whole would not be realized in the fragment. The principle of communio would not be present, which is the principle of the immanence of the universal in the particular, as taught by n. 23 of Lumen gentium.
Obviously, this should not lead to the conclusion that Charism is the only constitutional factor that makes new associative ecclesial structures arise. With it and before it, in fact, the other two constitutional factors of an institutional nature (that is, Word and Sacrament) are also eminently factors leading to aggregation. This is true in a primary and indispensable way of the Eucharist: “fons et origo” of the Church as “aggregatio fidelium.” The Eucharist, however, has given life to a paradigm of ecclesial aggregation which assumed a stable character in the juridical structure of the parish only after the third and fourth centuries. The parish, therefore, in contrast with the Eucharistic community, is not a theological, but a historical juridical entity. No matter how important it is from the pastoral level, it cannot be considered, from the theological perspective, to be a reality constituting the particular Church. In fact, whereas the universal Church is born from the particular Churches (“ex quibus”) and is realized in them (“in quibus”), the particular Church is not born from the parishes. The principle of “in quibus et ex quibus” ofLG is not applicable except by analogy within the particular Church. This can be seen, among other things, also by the fact that there does not exist a structural identity between the college of bishops and the presbyterium of a particular Church.
The parish, therefore, is not a necessary juridical entity from the ecclesiological point of view. In fact, the principle “in quibus et ex quibus” works with greater intensity, although only analogically, between the particular Church and the legitimate Eucharistic communities existing in it, than between the particular Church and the parishes. However, it should be observed that these Eucharistic communities can assume different juridical forms: a fixed form, which is precisely that of the parish, and the variable form of the associations or movements. When an association or movement celebrates the Eucharist, the point of convergence or hinge between the institutional element of Word and Sacrament and the charismatic element which gave rise to the fact of association is realized. In this point of convergence the institutional and charismatic elements are joined. This explains why associative experiences in the Church are frequently richer and more intense than those lived in the parish. In virtue of following the “original charism,” the faithful are stimulated to live the ecclesial communion in a more conscious way. In effect, charism, as we have already seen, has the function of vivifying the institutional dimension.
The convergence between charism and institution can clearly occur, with identical intensity, also within the parish. However, it should be noted that charism is not born in the parish on the basis of its juridical-territorial structure, but rather in virtue of the fact that the parish is a Eucharistic community. As such it is equally open – as are the Movements – to the impact of the charismatic event.
That this impact appears less frequently, at least statistically with respect to the very high number of parishes, is due precisely to the role played by the fixed structure with regard to a phenomenon so free and unpredictable as the flowing of faith in its creativity in virtue of a breath of the Holy Spirit.
Keeping this action of Charism as a point of reference, it is natural to emphasize a further distinction, this time regarding the juridical forms of those Eucharistic communities (that is, the associations and movements) which have conventionally been called “not fixed” with regard to the unfolding of Charism. Whereas the law of associations follows corporate criteria applying the principle of assembly and of majority rule, the ecclesial movements, instead, generally petition for a cooptative system, similar to the hierarchical structure of the Church itself. Another difference lies also in the fact that in associations a greater control is exercised on the relationships between the individual and the structure, as for example by means of a formalization of the criteria of admission and resignation, as well as on the rights and duties of the associate. The absence of these formalizations in the Movements partly explains why the hierarchy has had difficulty in integrating them, from the organizational-pastoral point of view, into the context of ecclesial life. Perhaps it is for this reason that the Code of 1983 has not been able to offer a regulation of the movements, preferring the juridically easier – but certainly dogmatically less satisfying – path of not guaranteeing them a normative frame of reference, thus treating them differently from associations.
From the theoretical point of view, it seems to me that the following conclusion could be proposed on the basis of this analysis: However one might evaluate the particular norms of the Code on associations, it would be erroneous to tie them to an expression of the private autonomy of the faithful in the same way as in civil codes. The law which governs associations, like that which should regulate the movements “de iure condendo,” has a constitutional character because it is the historical and positive product of a fundamental element of the Constitution of the Church: Charism. It differs from the other sectors of the canonical system which derive from the elements of Word and Sacrament, not because it is not constitutional, but rather because it is not institutional.
* First published: “Istituzione e carisma in riferimento alle strutture associative,” in: Das konsoziative Element in der Kirche. Akten des VI. Internationalen Kongresses für kanonisches Recht (Munich, 14-19 September 1987), ed. by W. Aymans, K.-T. Geringer, H. Schmitz (St. Ottilien 1989), pp. 79-98.
2 In this regard, for example, one may refer, above all for that which concerns relevant bibliography (ordered, however, according to different perspectives), to: B. Primetshofer, “Il principio del diritto di associazione nel Diritto Canonico,” Concilium 5 (1969), 112; M. Tedeschi, Preliminari per uno studio dell’associazionismo spontaneo nella Chiesa (Milan 1974), above all pp. 1-13.
3 In particular, see the communication of the Congress by P. Krämer, Kein neuer kirchlicher Verein? Zur Ordnung für die charismatische Erneuerung im Bereich der deutschen Bischofskonferenz, above all where the author emphasizes how this movement, although it is configured as a concentration of the liberties sanctioned by can. 214, 215 and 216, does not posses any of the fundamental characteristics of the juridical figure of association. By the same author, cf. “Charismatische Erneuerung der Kirche als Anfrage an das Kirchenrecht,” in: P. Krämer-J. Mohr, Charismatische Erneuerung der Kirche. Chancen und Gefahren (Trier 1980), pp. 79-133.
4 Cf. E. Corecco, “Profili istituzionali di Movimenti nella Chiesa,” in: I Movimenti nella Chiesa. Atti del 1º Convegno Internazionale (Rome, September 23-27, 1981), ed. by M. Camisasca and M. Vitali, (Milan 1982), pp. 203-234.
5 Among the essays which seem to pose the problem still in these terms, in addition to that already cited by Tedeschi (see above in note 2 and in particular pp. 3-5 and 60-62), there should also be mentioned: A. del Portillo, “Ius associationis et associationes fidelium iuxta Concilii Vaticani II doctrinam,” IusCan 8 (1968), 5-28.
7 In fact, as was justly observed more than ten years ago by Pedro Lombardía, the canon lawyer is equally concerned “…both by the position that denies or undervalues the ecclesial function of canon law in order to emphasize the importance of charisms, as well as by that which exalts the juridical element, because both one and the other… seem unilateral. Both coincide, in the end, in conceiving the law of the Church as something that makes sense only in the light of the institutional datum and in seeing the charismatic dynamism as something that remains on the margins of law because of its vitality” (“Carismi e Chiesa istituzionale,” in: Studi in onore di Pietro Agostino D’Avack, II [Milan 1976], pp. 957-988, 965).
8 For a detailed study of this renewal, see my book: Theologie des Kirchenrechts (Trier 1980). The principal stages of the doctrinal development that has led canon law to this renewal are summarized in the final presentation of the Fourth International Congress of Canon Law: E. Corecco, “Considerazioni sul problema dei diritti fondamentali del cristiano nella Chiesa e nella Società. Aspetti metodologici della questione,” in: I Diritti Fondamentali del Cristiano nella Chiesa e nella Società. Atti del IV Congresso Internazionale di Diritto Canonico, Fribourg (Switzerland) 6-11 ottobre 1980, ed. by E. Corecco, N. Herzog, and A. Scola (Fribourg [Switzerland]/Freiburg i. Br./Milan 1981), pp. 1207-1234, esp. pp. 1210-1213.
9 I refer in particular to the Thesis presented by L. Gerosa to the Faculty of Theology of the Catholic University of Eichstätt (BRD) and which I have kept constantly present in preparing this presentation. (The German edition has since been come out, during the preparation for publication: L. Gerosa, Charisma und Recht. Kirchenrechtliche Überlegungen zum «Urcharisma» der neuen Vereinigungsformen in der Kirche [Einsiedeln-Trier 1989]). Some points of this work, although according to a different and particular perspective, are taken up in a communication regarding the first Session of this Congress; cf. L. Gerosa, “La consacrazione episcopale: punto sorgivo dell’unità fra Istituzione e Carisma nella Chiesa?”
12 In Roman law, in fact, by a derivation of one of the common senses of “Institutio” (the teaching of a given discipline, as for example the “Institutio Oratoria” of Quintilian), “Institutiones” from the time of Gaius onward signified the propaedeutic teaching for law. In a more recent period the same term arrived, under the influence of modern institutionalism, to indicate the “production of law” or the posing of a juridical order. In consequence, even on the theoretical level, juridical investigation was arbitrarily reduced to the study of the so-called “Institution” understood as a unitary reality, fixed and lasting, as if that were the only form in which law could directly manifest itself (cf. F. Modugno, “Istituzione,” loc. cit., pp. 70-71).
13 In this regard, cf. G. Gundlach, “Institution. I. Die Institution in sozialphilosophischer Sicht,” in Staatslexikon. Recht-Wirtschaft-Gesellschaft, ed. by Görres-Gesellschaft, IV (19596), pp. 324-327.
14 Cf. M. Tedeschi, Preliminari per uno studio dell’associazionismo (see above in note 2), p. 60. The same author (Preliminari, pp. 84ff.) regards positively the attempt of certain Spanish canonists such as Díaz (cf. Derecho Fundamental de asociación en la Iglesia, Pamplona 1972), who, attempting to offer a juridical status to the new forms of ecclesial aggregation, develop from the canonical point of view the notion of the “collective non-personified subject,” today widely accepted in the civil context. However, the methodological error is analogous, given that civil law can never be considered to be the “analogatum princeps” of the canonical system.
18 In this regard, the essay by J. Ratzinger is truly illuminating: “Der Heilige Geist als «communio». Zum Verhältnis von Pneumatologie und Spiritualität bei Augustinus,” in: C. Heitmann-H. Mühlen, Erfahrung und Theologie des Heiligen Geistes (Munich 1974), pp. 225-238.
20 For a more detailed analysis of this diversity, see E. Corecco, “Prospettive per la Lex Ecclesiae Fundamentalis e la revisione del Diritto Canonico nel documento di Puebla,” DirEccl 1 (1980), 3-23.
21 he many juridical implications of this truth, which cannot all be listed here, all converge in making clear that the profound structure of the mystery of the Church is essentially that of being a “communio Ecclesiarum.” For the principal consequences of this truth which finds its synthesis in the ecclesiological formula of LG 23, 1 (according to which the universal Church is realized in and from the particular Churches: “in quibus et ex quibus una et unica Ecclesia catholica exsistit”), see W. Aymans, Das synodale Element in der Kirchenverfassung (Munich 1970), pp. 318-330; as well as my more recent essay: “Chiesa particolare,” in Digesto, Turin (forthcoming).
23 For a broad analysis of the theories regarding the sacra potestas, cf. E. Corecco, “Natur und Struktur der “sacra potestas” in der kanonistischen Doktrin und im neuem CIC,” AfkKR 153 (1984), 354-383.
24 We prefer this expression to that of “foundational charism” because, as Hans Urs von Balthasar has rightly observed, even historically it has frequently happened that the original charism of the founder, although giving rise to an order, to an association or to a movement, was not necessarily ordered to that particular foundation, but rather to a renewal of the ecclesial spirit in general (cf. “Riflessioni per un lavoro sui movimenti laicali nella Chiesa,” in I laici e la missione della Chiesa (Milan 1987), pp. 85-106 and in particular p. 87).
26 Cf. E. Corecco, “Il catalogo dei doveri-diritti del fedele nel CIC,” in I Diritti fondamentali della persona umana e la libertà religiosa. Atti del V Colloquio Giuridico (8-10 March 1984), (Rome 1985), pp. 101-121.
27 All of the 17 New Testament texts in which the word charism is used belong, in fact, to the Pauline writings, with the exception of 1 Pt 4:10. That the term was not used in the Gospels and in the other New Testament writings, and that its frequency is negligible even in the Apostolic Fathers, is an indication that the question of charisms emerged only rarely in the primitive preaching. For a more detailed study of all the Biblical data regarding Charism, in addition to the thesis of L. Gerosa (see above, note 9), see also my recent essay: “Carisma,” in Digesto, Turin (in process of publication).
29 For an analysis of these texts I refer to paragraph 3 of the Communication to the Congress by L. Gerosa (see above, note 9) and to the article of G. Rambaldi, “Uso e significato di ‘Carisma’ nel Vaticano II. Analisi e confronto di due passi conciliari sui carismi,” Gregorianum 66 (1975), 141-162.
30 The most radical attempt underway in the Catholic camp is that of turning the terms of the problem upside down. It is not just a matter of recognizing that there is no structural contradiction between Charism and Institution, since both come from God and from His Spirit as from one source, but of affirming that sacramentality itself and ministries themselves have a charismatic origin and are of a charismatic nature. This thesis, first sketched out by H. Küng (cf. “Die charismatische Struktur der Kirche,” Concilium 1  282-290) under the strong influence of the Protestant exegete Ernst Käsemann, was developed in an ecclesiological way by a disciple of the theologian from Tübingen (cf. G. Hasenhüttl, Charisma. Ordnungsprinzip der Kirche [Freiburg/Basel/Vienna 1969]) and later in the perspective of the sociology of religion, by a famous representative of the Theology of Liberation (cf. L. Boff, Igreja: Carisma e Poder [Petropolis 1981]). For a critical analysis of all of these works, see the already cited thesis of L. Gerosa (cf. above, note 9). It is sufficient here to observe that in the theological perspective mentioned above, sacramental ministries would only be the outcome of the official and historical authentication made a posteriori by the Church, which would sanction by her authority, in a more or less definitive way, the charisms which have proven themselves to be of greater service in the building up and management of the Church. This thesis presupposes the existence of a fundamentally charismatic structure of the Church. That the dynamics of this process of reappraisal coincide exactly with the current theology and practice of a certain type of contemporary Protestantism with regard to ministries should be verified. In any case, examples of this progressive institutionalization of charisms can be found: in the past in the institution of minor orders, as well as, for example, in that of exorcists, and in the future this could take place with the recognition of new ecclesial clerical and lay ministries, of a more or less avowedly sacramental character (cf. K. Rahner, “Das Charismatische in der Kirche,” in: LThK², II,1958, 1027-1030). It should not be forgotten that the notion of charism is used, according to this thesis, in a way that is fundamentally applicable to all the forms assumed by the operations and gifts of the Holy Spirit, so as to be applicable to Christ Himself and the Church, without taking into account the formal and material specifications already discerned by theology.
33 On the other hand, it is not possible to prescind from the fact that the institution of the sacraments (even if this has occurred through the mediation of the Apostles) is not attributed directly to the Holy Spirit, in the same way as the charisms. It is true that Christ is the total epiphany of the Spirit of God in history, for which reason it is not possible to contrast the Holy Spirit with Christ, supreme expression of the very notion of unity. However, it is equally true that if one does not distinguish the different operations of each Person, the very notion of the Trinity is put in jeopardy.
35 Thus, for example, in can. 879 with regard to the sacrament of Confirmation; in can. 369 as the unifying force of the particular Church; in can. 375 § 1 as the constitutive element of apostolic succession, or in can. 747 § 1 in relation to the assistance of the Holy Spirit to the Magisterium of the Church. A clear reference to the “gifts of the Holy Spirit” appears in the norms for the Institutes of Consecrated Life (can. 573-746). However, it is necessary to keep in mind the fact that this expression (can. 605) together with others, such as “donationes” (can. 577), or “patrimonium instituti” (can. 631 § 1) – evidently held by the legislator to be more anodyne, if not indeed totally different – were purposely chosen to substitute for the term “Charism.” However, precisely due to these repeated references to the action of the Holy Spirit, it is possible to conclude that the unfortunate drastic suppression of the term “Charism” has not succeeded in completely eliminating the “charismatic principle” from the canonical system (cf. G. Chantraine, “La Chiesa come comunicazione e movimento,” in: I laici e la missione della Chiesa [see above, note 24], pp. 27-46 and especially 32-37).
36 This negative judgment on the elimination of charisms from the canonical order is attenuated by the fact that the Code, contrary to the Preparatory Projects up to 1980, has recognized that the institutes of consecrated life have a constitutional and not simply associative character. The Code, in the footsteps of Vatican II, has sought to reinforce their ecclesiological and constitutional density, without wishing to resolve the old quaestio disputata with regard to whether the evangelical counsels have their origin in the ius divinum; although in any case they represent an institutionalized form of charism. Thus it not only declares them to belong to the “life and sanctity of the Church” (can. 207 § 2), but clearly underlines the fact that they are a “divine gift that the Church has received from the Lord” (can. 575).
40 “Der Zweck einer kirchlichen Vereinigung ist stets ein spezifischer Ausschnitt aus der Gesamtsendung der Kirche, nie die Sendung als Ganze” (W. Aymans, “Kirchliches Verfassungsrecht und Vereinigungsrecht in der Kirche,” loc. cit., p. 92).