«Ius Universale» – «Ius Particulare»

I. Premise

The evaluation of the relationship between universal and particular law, as it results from the Code, can occur on the basis of different criteria. 1
A first criterion could be that of making a list of the canons of the Code which defer to particular law. 2
A second criterion could be that of evaluating, within the global canonical order, the ecclesiological and disciplinary density of the legislative sectors conceded by the Code to particular law.
A third possible approach is that of placing the examination of the relationship between universal and particular law within the larger doctrinal framework of the relationship between the universal and particular Church.
I am convinced that only this ecclesiological approach is able to offer an evaluation that transcends the limited horizon of the two preceding options.
Evidently, in all three cases, it could be interesting to complete the investigation with a comparison of the current Code with that of 1917 and with the Code of Canons of the Eastern Churches of 1990. However, the circumstances of this exposition and the limits of time lead me to restrict this paper to the third criterion of investigation.
A preliminary datum is the unquestionable prevalence of universal law over particular law. This is an inevitable result of the prevalence of the universal over the particular in Latin ecclesiology, and in the ecclesial practice of the last millennium. The Second Vatican Council has not eliminated this predominance, although it has attenuated it, thanks to some texts in which it has fully recuperated the theological value of the particular Church, at least in principle.
In effect, the structure of Lumen gentium is globally dictated by the Latin ecclesiology of the universal Church.
Therefore, it is necessary to pose the question as to whether this fact has roots and justifications that are solely of a historical nature, or whether, and in what measure, it is legitimately supported by clear and indispensable doctrinal premises.
In order to evaluate the relationship between universal law and particular law as it has been established by the canonical order codified ten years age in terms that are not merely qualitative or quantitative, but ecclesiological, the nucleus of the problem must be seen to be not primarily of a juridical but of an ecclesiological nature.
The nodal point of the question, on the one hand, is that of evaluating the ecclesiological force of the texts of Vatican II concerning the particular Church, in relation to the entire universalistic orientation of the Council itself. On the other hand, there is the question of the interpretation that has been given to these texts both in theological doctrine and in the subsequent Magisterium.

II. Universal Church – Particular Church

The most complete “locus theologicus” for understanding the mystery of the relationship between the universal and the particular Church is the text of LG 23, 1, in which the Second Vatican Council has used the formula “in quibus et ex quibus.” 3
The other parallel texts, such as that of n. 26, 1 of LG itself, and n. 6, 3 of the Decree CD, put in evidence only the “in quibus,” although without denying the “ex quibus.”
The implications of this formula are manifold, since it means, first of all, that the universal Church does not exist in herself, as if she had a consistency and a proper place in which she is found, but she exists and is made concrete only there where she is realized in a particular Church. She exists only in concomitance with a particular Church.
Rome is not the see of the universal Church, but only of one of her organs: that of the Petrine ministry. The diocese of Rome, the “Ecclesia romana,” does not have a status comparable to Washington, D.C. in the United States of America.
Secondly, the formula “in quibus et ex quibus” means that the universal Church is formed from all the particular Churches, for which reason she is not an abstract reality, but historically concrete, coinciding in fact with all the particular Churches. She is a “corpus Ecclesiarum” (LG 23, 2, a notion not appearing in the Code), or a “communio Ecclesiarum.” The universal Church which is realized in the particular Churches is the selfsame reality which is constituted from all the particular Churches.
Thirdly, the ecclesiological formula of LG 23, 1, signifies that in every particular Church all the other particular Churches are present, through the mediation of the universal Church, of which they are the constitutive elements. The particular Church is the Church only in the measure in which she puts forth in herself the same values and all the essential and common elements proper to all the other particular Churches, whose communion with the Roman Church is “plena.”
The profound structure of the mystery of the Church is thus essentially a structure of immanence: reciprocal or total immanence of the universal Church in and from the particular Churches. Only when this immanence is realized in all its totality, is the note of “communio plena” also realized. This is a prerogative of the Roman Catholic Church, since in her, by definition, the one Church of Christ “subsists” in all her structural and constitutional truth, and in particular, according to the perfect immanence between the particular and the universal dimension which is realized in her.
The principle of the reciprocal immanence – and thus of the inseparability – of the constitutive elements of the structural constitution of the Church, as it emerges in a paradigmatic way in the immanence of the universal in the particular and of the particular in the universal, forms the very essence of the notion of the “communio.” 4 This is a principle which, although assuming many spiritual meanings, is first of all a structural principle, which can be found on many other levels of the ecclesial reality, up to the point of investing the anthropological dimension of the Christian faithful. 5
In fact, there exists a reciprocal immanence between Word and Sacrament, which are indivisible and are only two formally diverse manifestations, through which God communicates and transmits salvation to man. Likewise, there is reciprocal immanence between the Pope and the college of bishops, because the one does not exist except including the other. The same is true of the relationship between the bishop and the presbyterium, because the bishop does not exist by himself without a college of presbyters who participate in his ministry, and these latter do not exist without the bishop. There is a reciprocal immanence between the common and the ministerial priesthood, because the common priesthood subsists in the ministerial and the ministerial does not make sense, except in so far as it is oriented towards the realization of the common priesthood. There is reciprocal immanence between institution and charism; and finally, between the faithful himself and the Church and vice versa, since the baptized person is immanent in the Mystical Body of Christ, and the Mystical Body, which is the Church, is immanent in the faithful. The new anthropological identity of the faithful is determined precisely by the fact that all the other members of the faithful belong to him, through the one baptism and the one faith, as a constitutive element of his person as “homo novus.”
Outside of this dynamism of reciprocal immanence, all the other solutions of the relationship between the universal and the particular Church are ecclesiologically deviant, because they suppress either the first or second element: the “in quibus” or the “ex quibus.”
This occurs, for example, in the Orthodox tradition, which tends to conceive the universal Church in a Platonic way, according to the philosophical conception of “universalia ante res,” as a transcendent model or archetype, which does not exist concretely in itself, but is only realized in the individual particular Churches, and in a way that is always the same. Putting the emphasis on the “in quibus,” Eastern Orthodoxy is thus not able to conceive the unity of the “communio Ecclesiarum” around an institutional fact, such as the Petrine ministry, which is proper to a specific particular Church, that of Rome. Unity is guaranteed only by the transcendent model, common to all the autocephalous Churches.
The same can be said for the Protestant tradition, which, in the nominalist tradition of “universalia post res,” emphasizes the second element: the “ex quibus.” There only exist the particular Churches, not the universal Church. The unity among the individual particular Churches can be realized, along the lines of a voluntarist solution, only as a federation of particular Churches.
Considering these different ways of approaching the relationship between the universal and the particular Church, it can be seen that the principal obstacle to a correct conception of the ecclesiological formula of the “in quibus et ex quibus” lies in the fact of conceiving the universal and the particular Church as two materially distinct entities. Understood in this way, on account of their historical concreteness, they tend to be related to each other according to a dynamism of potential contraposition or reciprocal competition. In reality, they are not two material entities, but only two formal dimensions of one sole reality: that of the one Church of Christ.
It follows that the particular Church has a constitutional legitimacy that is as great as that of the universal Church, insofar as the particular Church is the indispensable local or concrete dimension of the one Church of Christ which is realized only there where Word and Sacrament are concretely realized in time and in space.
The universal Church does not coincide with its specific constitutional organ, which is the college of bishops with the Pope. The college, in fact, is indissolubly rooted in the particular Churches in virtue of two elements. This is because the bishops that compose it come from the particular Churches which they represent, and because the Pope himself, in his turn, is bishop of a particular Church: that of the Church of Rome. 6
If the one Church of Christ has a double dimension, universal and particular, as was affirmed also by the Supreme Pontiff in his homily at Lugano in 1984, 7 it seems problematic to me to affirm an ontological priority, and still less a temporal priority, of the universal over the particular Church.
By definition, the Church of Christ in its universal dimension is constituted of all the local Churches in which the Church of Christ is realized in its particular dimension. Without this realization in the particular, the universal Church could not come into being.
The image of the Church that was revealed on the day of Pentecost is understandable only if one keeps in mind that in the persons of the eleven Apostles there was already really present, although according to a potential historical development, all the future particular Churches. 8 A “metropolitan” interpretation of the Church of Pentecost would be as false as a “federative” interpretation of the particular Church, proposed by a certain current of contemporary theology.
It should be noted also that the irreversible sacramental and juridical incorporation of a person in the Church in virtue of Baptism does not occur either on the level of the particular Church or on that of the universal Church, but rather in the one Church of Christ. 9
It does not occur on the level of the particular Church, because this membership is subject to changes on account of changes of domicile, rite or confession. Nor on the level of the universal, because it does not exist as such, but only as a result of the aggregation of all the particular Churches, in a relationship of full communion with the Church of Rome.
The dynamism of immanence between universality and particularity has a specific ecumenical implication. In fact, the note of universality is attributable only to the Catholic Church, because she is the one Church which realizes all the sacraments and the fullness of the Word, as elements that are simultaneously constitutive, however, also of the particular Churches. In virtue of the fact that the attribute of universality – which can be predicated only of the one Church of Christ – is realized in the (Roman) Catholic Church, it is possible to affirm that the Church of Christ subsists in her (can. 204 § 2).
The (particular) Churches and the separated ecclesial communities, on the other hand, realize the one Church of Christ in a measure that is limited in various ways, because they are lacking on the universal or on the particular level.
From the foregoing considerations, it is necessary to conclude that the essential and constitutive material elements of the Church, that is the Word and the sacraments, are common both to the universal and to the particular dimension of the Church, since, as such, they belong to the Church of Christ herself.
The peculiarity of the particular Churches (Catholic) is, in fact, beautifully summarized in Lumen gentium, n. 26, 1, where it is affirmed that “the Church of Christ is really present in all legitimately organized local groups of the faithful, in which… though they may often be small and poor, or existing in the diaspora, Christ is present, through whose power and influence the One Holy, Catholic, and Apostolic Church is constituted.” Christ, in fact, as the unique Son of God, is universal, and yet as man, also particular. The Word is incarnate in the particularity of an individual man.
For this local and particular realization of the Church of Christ to occur, the formal element of legitimacy or recognition of the existence of communion on the part of the Pope or the college of bishops is necessary. This does not create communion, but simply ascertains its existence.
Recognition of the existence of communion is a formal fact, adding nothing to the contents of the Sacraments and the Word, celebrated or proclaimed by the bishop in a particular Church.
From the material point of view, or in terms of its salvific contents, the sacraments celebrated by the bishop, by the Pope, or by the college of bishops concelebrating, are perfectly equal. Furthermore, the contents of the magisterium of the bishop may be exactly the same as that of the Pope when he speaks “ex cathedra,” or of an ecumenical council. That which is different is the formal binding force of the papal or conciliar Magisterium, because it is the only one which can definitively bind the faithful, in contrast to the episcopal magisterium.
The same formal value is to be attributed to the particular dimension of the Church. The cultural plurality present in the particular Churches is not a substantial factor with regard to their salvific content, but is purely extrinsic. The particular Church is not defined on the basis of her capacity for inculturation in a given historical and social context, but rather only on the basis of the Sacraments and the Word which she celebrates and proclaims locally. 10
The different cultural modulations in the celebration of the sacraments and the understanding of the faith – although they might be able to help the entire universal Church to formulate the truths of the faith in a more profound way, thanks to the phenomenon of reception – are purely formal elements, with respect to the salvific contents proposed by the particular Church in a given place and time.
If the particular Church is not able to give herself the guarantee of living in perfect communion with the one Church of Christ, the universal Church, as a formal element of the Church of Christ, it is not able to exist in and of herself except through being incarnate in a multiplicity of particular Churches which guarantee the plurality of cultural expressions.
The Church of Christ could never coincide with one sole bishop and one sole diocese, even if it were that of Rome, because it would lack the essential element of plurality, which is the presupposition for communion.
The considerations expounded up to this point introduce a further reflection which concerns that of the four notes of the Church, professed in the Nicene-Constantinopolitan Creed. They grasp the mystery of the Church at different levels and are not formulated in a systematic and complete way. In fact, it is conceivable to attribute other notes to the Church which are equally significant.
After Vatican II, for example, it would be legitimate to add to the Creed that we believe that the Catholic Church, that is the universal Church, is realized in and from the particular Churches.
It follows, therefore, that the preeminence of value given to universality over particularity, or vice versa, is born from an equivocation deriving from an infrastructure of thought, more philosophical than theological, which tends, according to the case, to attribute a priority to the universal over the particular, or to the particular over the universal.
Thus, the preeminence or ontological priority given to universality over particularity presupposes accepting the Platonic principle of “universalia ante res.” More or less consciously, this was the cultural or philosophical infrastructure on which the Latin theology of the universal Church was based.
On the contrary, the ontological preeminence attributed by a certain school of contemporary ecclesiology to the particular Church, goes back, as we have seen, to the nominalist principle of the “universalia post res,” which also inspired Protestantism.
The philosophical principle that is closest to and connatural to the understanding of the ecclesial mystery of the immanence of the constitutive elements of the Church is the hylomorphic principle of “universalia in rebus.”
The universal is present in the thing. The form is incarnate in the matter. The analogy with the mystery of the Incarnation has also been used by Lumen gentium, n. 8, 1, in the attempt to join the divine and the human element, the invisible and visible element of the Church. This evidently serves also to understand the relationship between the universal and the particular Church.
However, even this Thomistic philosophical principle, although it helps to understand how the universal Church is realized or incarnate necessarily in the particular Church, also reveals its own limitations. Although it helps to understand the “in quibus,” it does not succeed in explaining the “ex quibus,” because it does not succeed in expressing the fact, which can be known only by faith, that the universal Church which is realized in the particular Churches, is not a monistic and universal reality that ontologically preexists, like the form with respect to the matter, but a reality that is already pluralistic in itself, materially constituted by all the other particular Churches.
The “ex quibus” of LG 23, 1, on the other hand, is not the fruit of a syncretist concession made by the Council to nominalism, since the universal Church, from the theological point of view, is not simply the sum of the particular Churches, nor is it “composed” of them, as is said by Mystici Corporis in a somewhat approximate way.
Also the “ex quibus” expresses a reality of faith that cannot be reduced to a human philosophical category. It has its origin in the mystery of the divine plan, in obedience to which Christ did not choose one Apostle, but rather a body of Apostles, in which the element of plurality is already present as something essential. The oneness of God can be known, in fact, only through plurality, as the universality of the Church can be realized only through the plurality of the particular Churches.

III. Universal and Particular Law

The discourse concerning the formal value of the universal and particular dimension of the one Church of Christ must be kept present and applied in order to treat correctly the problem of the relationship between “ius universale” and “ius particulare.”
Dealing with this problem using political, constitutional and sociological categories such as centralization or decentralization of power would be methodologically mistaken, just as it would be inadequate to have recourse to the principle of subsidiarity, which has become fashionable. 11 These categories are not able to define the relationship of communion – of that reciprocal immanence that is sacramental and ecclesiological, belonging to the universal and the particular Church, as well as to universal and particular canon law.
The Latin tradition, which has given a privileged place to the universal Church, has inevitably also influenced the Codes of 1917 and 1983, strengthening, although in a different way, universal law at the expense of particular law.
In effect, the natural law idea of the “societas perfecta,” which has dominated post-Tridentine ecclesiology, making juridical methodology prevail over theological method in legislation and in canon law, has extended its shadow also over the Code of 1983. It continues de facto the predominance of the typically juridical criterion of the prevailing importance of universal over particular law. This is true despite can. 20, which in principle affirms (as is affirmed, for that matter, in the Code of 1917): “lex universalis minime derogat iuri particulari.”
In reality, however, the saving clause placed at the end of can. 20 prevails de facto: “nisi aliud in iure expresse caveatur.” For that matter, the abrogating intention of the Code with regard to particular law appears clearly in can. 6 § 1 n. 2.
Universal law is prevalent also in the new Code, although the epistemological turn which has occurred in it is evident. In the “General Norms,” in “Patrimonial Law,” “Penal Law,” and “Procedural Law,” the rational epistemological principle underlying the Romanist systematic orientation of the old Code still appears without attenuation. However, the books concerning the People of God, the “munus docendi” and the “munus sanctificandi,” are clearly determined by the epistemological principle proper to faith.
The degree to which the logic of the universal Church still prevails in the Code can be measured by evaluating the consequences of the application of two key texts of Vatican II.
In n. 8a of the Decree Christus Dominus, the Council recognizes, with a fundamental declaration, that the diocesan bishops, as direct vicars and successors of the Apostles, that is, as representatives not of the Pope but of Christ, in whose name they act (LG 27, 1 and 2), are holders of all the power necessary for the exercise of their pastoral ministry: ordinary, proper and immediate.
In virtue of his office, the Pope can reserve only some cases to himself or to other authority (which is true also for the college of bishops as such) for the sake of the good of the Church or of the faithful, thus limiting, within certain bounds, the exercise of the power of the bishops (LG 27, 1). In this context, the “sacra potestas” is clearly understood not as the power of Orders, but as power of jurisdiction.
This recognition of the fundamental power proper to bishops in their diocese, where Christ and His One, Holy, Catholic and Apostolic Church are present (LG26, 1), includes both the legislative as well as the judicial and administrative functions, as is clear from n. 27 of LG itself.
In particular, n. 27, 1 of LG emphasizes the power and the fundamental duty of bishops to provide for the good of their faithful through laws.
It is well-known that the Council, with the affirmation of CD n. 8a, has implicitly recognized the bishop’s power of ordinary, proper, and immediate jurisdiction according to the legislative, judicial, and administrative functions as belonging to the bishop “ex iure divino.” This has reversed the situation with respect to Trent, for whom the bishop was considered only “tamquam Sedis Apostolicae delegatus.”
Abolishing the old system of the concession of power to the bishops, Vatican II has introduced that of reservation of power in favor of the Pope, marking a return to the ecclesial regime of the first millenium, and establishing a clear presumption of competence of power in favor of the bishops.
However, it is necessary to note that, whereas paragraph (b) of n. 8 of the Decree CD concedes to the bishop a very broad faculty of exercise of the administrative power, enabling him also to dispense from laws of the universal Church, paragraph (a) binds the legislative power of the bishop more strictly. 12This follows from two facts.
First of all, it can be seen that paragraph (a) attributes to the Pope a power of reservation, not subject to the declaratory clause, that is more global than the power concerning dispensations, which is regulated instead by paragraph (b). 13
Secondly, this is because n. 26, 2 of LG affirms in a general way that in the exercise of legislative power, the bishop must abide not only by the precepts of the Lord, but also by the laws of the Church. The laws of the Church, in this context, are both universal laws, as well as the infra-universal laws of provincial and plenary councils and episcopal conferences.
The faculty of dispensation, conceded by n. 8b, could by its nature have been used by bishops even immediately after the Council. However, the more general principle of n. 8a, including in particular also the legislative power of bishops, although of fundamental importance, could not have the force of law because of its too general character. It required a law of application to make it concrete.
From the technical-juridical point of view, reservation to the Pope, formulated in n. 8a, could have been set in concrete legislative form by adopting the same method applied to dispensation and to the competencies of the conferences of bishops: the development of a catalogue.
The advantage of this solution would be that of emphasizing with greater evidence how the legislative power of bishops is rooted in the “ius divinum.” As a result, it would have brought out the ecclesiological density of the particular Church.
The technical difficulty in fixing the legislative competencies reserved to the Supreme Pontiff are evident. This solution, in addition to breaking with the entire preceding legislative practice of the Latin Church, would probably have rendered it impossible to proceed with the project of a new codification, which had been cultivated for decades.
Nevertheless, it is evident that the cultural weight of the very long tradition of Latin ecclesiology – also operative in the codification of the canons of Eastern law 14 – has been so decisive as not to permit even the surfacing of the idea of a catalogue of the legislative competencies of the Pope.
Whereas n. 8a of the Decree CD introduces the system of reservation, the Code offers instead a comprehensive image that is different, if not directly contrary. Instead of reserving some proper sectors, universal legislation here opens up only some almost residual spaces to particular legislation, which, concretely, number only about sixty.
As we shall see below, neither the general competence of particular councils, nor the eighty competencies attributed to the conferences of bishops (of which only about half are of a legislative nature), can properly be assimilated to these cases of legislation conceded to particular law. 15
From the juridical point of view, the competencies attributed by the Code to the conferences have a double character. On the one hand, they are a concession made to the conferences by the universal legislator. On the other hand, they are a reservation made by the legislator himself, not for himself, but rather in favor of the conferences at the expense of the diocesan bishops.
The great statutory autonomy attributed by the universal law of the Code to the institutes of consecrated life likewise cannot be considered to be an opening in favor of the “ius particular” in the true sense. Actually, it is a matter of a “ius speciale,” whose foundation is more of a charismatic than of a corporative nature. In any case, it does not derive immediately from the episcopal sacra potestas.
From the formal point of view, in fact, the law of the “Institutes of Consecrated Life” assumes the connotation of a concession rather than that of a reservation. It is a matter of a law which needs the constitutive approval either of the bishop or of the Holy See from the beginning in order to exist.
Faced with these facts, the question which spontaneously arises is the following: Has the Code betrayed the fundamental insight of the Council, formulated in n. 8a of the Decree on the bishops?
The response is more complex than it might appear at first sight.
It must be formulated, however, taking into account not so much quantitative or qualitative criteria in terms of contents, but rather by keeping in mind the ecclesiological evaluations developed above with regard to the relation of the universal and particular Church.
We have seen that the universal and particular dimensions are not two materially distinct realities, but only two formal dimensions of the one Church of Christ, to which all the constitutive elements in which salvation is realized through Word and Sacrament belong as such. It follows, therefore, that also the canonical norms in which these contents common to the Church of Christ are made explicit, do not belong in and of themselves either to the universal or to the particular dimension of the Church.
These are common norms which have their “locus theologicus” in the Church of Christ as such.
In reality, all the norms which formulate or make explicit divine positive law (and, although only in a supplementary or provisional way, divine natural law), are not norms specifically either of the universal Church or of the particular Church. They are norms common to both of these two formally diverse realities. The Word and the Sacraments belong, in fact, to the Church of Christ as such, and therefore, equally to the universal and the particular Church.
To these norms of divine positive law there must be added, in my opinion, also all those disciplinary regulations which, in the course of the centuries, have peacefully become the common patrimony of the entire Church as such. They must be considered, on account of their being received from the universal Church to the particular and vice versa, as belonging by now to the ordinary and common “munus regendi” of the Church of Christ. In the same way that there exists a common “munus docendi,” there also exists a common “munus regendi.”
Therefore, there exists a legislative “corpus” in the Code which belongs to the one Church of Christ as such. The fact that these norms have been formulated by the Holy See or by bishops becomes irrelevant, from the distance of time and in the last analysis.
Rigorously speaking, they can be considered to be equivalent to norms which could have been formulated also by an ecumenical council, in which the immanence of the universal Church in the particular is expressed in a perfect way, thanks to the presence of the Petrine ministry and of all the bishops representing their particular Churches.
In a council, in fact, there operates not only the “potestas episcopalis ordinaria, propria et immediata” of the Pope, which can also be the source of particular law, but also the “potestas propria ordinaria et immediata” of all the individual bishops. This is that which is recognized as belonging to the bishops by n. 8a of the DecreeCD.
The distinction between universal and particular law is applicable, therefore, only to human law, although with the reservation made above with regard to norms which have already entered into the common patrimony of the Church. However, the fact must always be borne in mind that human law, by definition, always remains reformable.
The recognition of the existence of a legislative corpus common to the entire Church of Christ, although difficult to evaluate quantitatively and qualitatively, puts the disparity between universal and particular law, still evident in the Code of 1983, in a considerably new light.
This new formulation of the problem does not intend to hide the difficulty in distinguishing with exactitude and without uncertainty, on the one hand, between divine and human law, and within the realm of human law on the other hand, of identifying that law which has already become the patrimony traditionally common to the identity of all the particular Churches.
The Lex Ecclesiae Fundamentalis has had to be abandoned precisely because, more than the idea of encapsulating the “corpus legum commune,” there was an attempt underlying it to apply to the canonical order the concept and the juridical constitutional technique proper to the modern constitutional State.
Human-positive universal and particular legislation have, therefore, in the last analysis, formal functions which are equivalent. They have the function of guaranteeing unity, on the one hand, and plurality on the other hand, according to the principle of “in quibus et ex quibus.” It should be emphasized that “formal” does not signify something that is not real. Unity, in fact, either exists or does not exist as a concrete fact. It must be guaranteed, because it is the goal itself of Salvation. However, it adds nothing to the contents of salvation, revealed and transmitted in an efficacious and total way to man, through Word and Sacrament.
The ecclesial unity, by definition, cannot be realized except in a plurality of expression. Even plurality adds nothing to the contents of the Word and the Sacrament. It is a datum of fact that exists or does not exist. However, it must be guaranteed by the particular Churches, which have the task of assuming, in the context of Salvation, all the multiple socio-cultural expressions of humanity. Man, in fact, must be saved in the fullness of his most authentic cultural expressions.
The task of universal and particular human law is thus that of guaranteeing, time after time in the course of history, both the unity and the plurality of the one Church of Christ, realizing the ecclesiological principle of the “in quibus” and “ex quibus” in the best way that is humanly possible.
This requires, on the one hand, that universal human-positive canon law must be applicable in the individual particular Churches without constriction, avoiding the confusion of unity with uniformity. On the other hand, particular human canon law should not turn out to be heterogeneous – by an incorrect process of inculturation – with the law of other particular Churches which constitute the universal dimension of the Church of Christ and which thus also constitute universal law.
The point of reference of both can only be the legislative common corpus in which the one Church of Christ is institutionally manifested.
This necessary correspondence of human law with the corpus of divine law and with human law peacefully acquired by the entire Church as a common patrimony, has been negatively formulated by the canonical tradition, in particular with Gratian and St. Thomas, according to the aphorism: “lex humana, legi divinae et naturali contraria, irrita est.”
This brings out the fundamental problem underlying the whole universal and particular legislative process: the problem of the nature of the canonical law and of the method of canonical science.
The simple “rationabilitas” of the canonical law and of juridical method as such, is not able to guarantee the correspondence of the canonical order with the mystery of the Church.
A perfect reciprocal immanence between universal and particular human law can be guaranteed only in the measure in which the fact is respected, with all its inevitable methodological consequences for canonical science, that the canonical law is not an “ordinatio rationis,” but rather an “ordinatio fidei.” Both universal and particular human law have to be formulated on the basis of an epistemology which is not rational-philosophical, and hence purely juridical, but rather theological. 16
If this had been the case, many entanglements of the past on the universal and particular levels could have been avoided.

IV. Considerations on the Code and on the Conferences of Bishops

Given these premises of a fundamental character, I would like to make two more particular considerations. The first regards the current system of the Code, the second the conferences of bishops.
1) The Code of 1983 is a work of transition. This was also inevitably true of that of 1917, but only in fact, because an intention of being definitive was attributed to it. The new Code, however, is a work of transition for two reasons that are inherent in it, which can already be recognized. 17
In the first place, because only the three central books, II, III, and IV, have an intrinsically theological structure, whereas the others are still tied to the Roman rational tradition. Indeed, the very idea of codification remains open in the future to other developments, given its Enlightenment cultural context.18
Secondly, because only the future will tell if the Latin Church can definitively absorb in its area also those new particular Churches, which do not have common roots with the cultural tradition of the Latin-Western Patriarchate.
Already the recent Code of the Canons of the Eastern Churches is significant from this point of view. In reality, it is a matter of realizing in the future, in an ever more complete way, the ecclesiological principle of the “in quibus et ex quibus.”
The formula according to which the particular Churches “are born in and from the Church” (“Ecclesiae in et ex Ecclesia”), 19 risks subverting the principle of “in quibus et ex quibus,” if the term “Ecclesia” were to be used not as a synonym of the “Ecclesia Christi,” but rather of the “Ecclesia universalis.”20 Therefore, it cannot be used for the universal Church; nor can it be used in reference to the Latin Church with regard to the particular Churches which historically belong to her. The universal Church is not the mother of the particular Churches.
2) The second observation concerns the conferences of bishops.
There should be no doubts that the episcopal conferences, like particular councils, are an expression of the synodality inherent in the episcopal ministry. 21
The episcopal ministry is constituted from two formally diverse elements which are indivisible, since the episcopal ministry also realizes the principle of communio, that is, the reciprocal immanence of the elements that constitute it.
The sacrament of Orders, besides being able to be exercised personally by the bishop, requires by its nature to be exercised also synodally, since the sacrament as such is one. All the bishops are invested with the one sacrament.
Synodality is born from the fact that the sacrament of Orders is necessarily conferred on several persons, since the plurality of episcopal ministries is ontologically necessary, in that it is an historical-institutional reflection of the unity and plurality inherent in the Trinitarian mystery.
Synodality is not posed as an alternative to the personal dimension of the exercise of the sacrament of Orders and of the sacra potestas. It does not restrict the area of the episcopal ministry, but confers on it a vaster extension, since it develops the ontological relation existing in every bishop with the other bishops. It extends beyond the territorial boundaries which determine the activity of the bishop when he acts by himself.
In fact, as is affirmed in LG n. 23, 2, the individual bishop by himself, although he cannot exercise acts of jurisdiction over other Churches or over the universal Church, is nevertheless bound to have a solicitude for the entire Church. This solicitude is transformed into a true exercise of the jurisdictional aspect of thesacra potestas when it operates in synodal form.
Synodality is not born from the plurality of the particular Churches, but rather from the profound structure of the episcopal ministry as such, since, in my opinion, the only ecclesiologically correct option is that expressed by the principle “Ecclesia a sacramentis” and not instead “Sacramenta ab Ecclesia.”
If synodality were born from the plurality of the Churches, 22 the logical consequence would be that of having to deny both the synodal character of the synod of bishops, 23 since it represents the particular Churches in a prevalently sociological way, as well as the synodal character of the presbyterium, since it does not represent other particular Churches at all. It is a synodal structure, although different from that of the college of bishops, within a particular Church and deriving from the synodal dimension inherent in the sacrament of Orders, that is, from the reciprocal immanence between the grade of the episcopate and that of the presbyterate.
However, the episcopal sacra potestas, when it is exercised synodally by the bishops in the area of the particular synodal structures (of the conferences and of the particular councils), is never binding on the individual bishop “ex iure divino.” The individual bishop can be bound “ex iure humano” and in virtue of the principle of communion, but never in a definitive way.
The individual bishop can always make appeal to the Pope. His appeal against a jurisidictional decision of a particular council or of the conference of bishops is of a completely different nature from the “ius remonstrandi” with regard to the Pope,24 since it is a true right of recourse, even if it has not yet been codified.
It is evident, in fact, that, even admitting the existence of a magisterial power of the conferences of bishops which is particular, provisional, and subordinated to that of the Pope, an individual bishop is never bound in conscience by this particular magisterium.
In the exercise of the power of jurisdiction in the legislative, administrative and judicial functions, the individual bishops can be bound by universal law in terms of discipline. However, also in this case, in my opinion, they should be recognized to have the right to have recourse to the Holy See.
This means that although the conferences of bishops are rooted in divine law – that is, in the formal synodal element inherent in the episcopal ministry – their binding force, like that of the lesser councils, is not a necessity inherent in the divine law, but a juridical solution that is only of a positive and human nature.
Therefore, the conferences do not have power “ex iure divino,” either ordinary or proper. 25 Positive law can consider them to possess it, as is the case, for example, for parish pastors, but this is a juridical solution dictated by purely functional criteria.
Thus it is erroneous to define the conferences of bishops – like metropolitans and particular councils, for that matter – as intermediate levels between the universal Church and the particu lar Churches. 26
They are not intermediate levels “ex iure divino.” In fact, “non datur medium.” There is no intermediate level between the universal and particular dimension of the Church of Christ, between the college of bishops with the Pope and the individual bishops. This is true also for the Eastern Churches.
We are dealing here simply with ecclesial morphologies of a socio-cultural and therefore historical nature, profoundly rooted in the tradition of the Church, but of a non-ontological nature, even though they carry out a collective function whose value no one intends to put into doubt.
Ecclesiologically, there does not exist an intermediate level, because, despite the terminology that has always prevailed, the grouping of the particular Churches around the conferences of bishops are not Churches in the true sense of the term. In fact, it is not possible to apply to them the principle of “in quibus et ex quibus.”
It is not applicable with regard to the universal Church, because she is not ontologically in and from the provincial Church, or in and from the territorial grouping of the episcopal conferences. It is not applicable either with regard to the particular Churches, because the provinces or groupings of the episcopal conferences are not realized in and from the particular Churches.
Given these observations, one cannot fail to conclude that at the level of the conferences of bishops – to which the Code significantly does not attribute the character of moral person, but only that of juridical person (can. 449 § 2) – today in fact the same itinerary is being repeated that has guided the development and predominance of the universal over the particular Church in Latin ecclesiology, and of universal over particular law, on bases more openly democratic than in the ancient institution of the particular councils.
Widening this phenomenon, the conferences have extended their own territorial dimension from the national level to the supra-national dimension, thus enlarging the area of their own prerogatives, making the role and the spaces available to particular law fall ever more out of view.
In fact, the sole true source of particular law which risks being eroded is that of the sacra potestas of the bishops, despite its amplification in the new Code with respect to that of 1917.
The intensification of the presence and activity of the episcopal conferences marks, in my view, a phenomenon which is a mutation, both of the universal vision and of the particular vision of the Church, in favor of an “intermediate” federative figure of the Church. The law produced by the episcopal conferences, more than particular, is infra-universal and supra-particular, and the image which it offers to the Church is that of a confederated collectivity.

V. Conclusions

The result of this investigation permits some considerations. The first lies in the necessity of relativizing the existence of that tension usually held to be structural, and immanent to the relationship between universal and particular law.
In fact, there exists a legislative corpus, however difficult it may to identify, common to the Church of Christ, which has grown enormously in the course of two millennia, which should not properly be classified either as universal or as particular, because it has both of these dimensions simultaneously.
In fact, the criterion to evaluate the relationship between universal and particular law cannot be only that eminently juridical relationship of the subjects which in fact have produced the norms: the Pope or the bishops. This is a secular juridical criterion which tends to oppose the two subjects of legislative imputation one against the other. A proof of this is the fact that a bishop can regulate very well the object over which he intends to legislate, grasping all its universal ecclesial significance.
This has permitted many norms promulgated by particular councils of the first centuries to be received by the universal Church.
The juridical criterion, according to which the legislator would be the exclusive point of imputation to decide the universality or particularity of the law, is ecclesiologically erroneous. In fact, every legislative subject is always rooted both in the universal and in the particular Church: the Pope in the particular, because he is interior to her; the bishop in the universal, because he becomes a member of the college of bishops on account of Holy Orders and the communion.
The second observation is that, from the quantitative and qualitative points of view, the disproportion existing in the Code between the norms of particular law and that of universal law still remains large.
In effect, the norms which open a space to particular law are only 56, if I am not mistaken. A small number, it may be thought, although larger than that of the Code of 1917. The fact is significant that neither the index of Gaspari, nor the dictionary of Kostler offer a list of the references to particular law contained in the Code of 1917, whereas Prof. Ochoa, of venerable memory, has felt the need to do so for the Code of 1983.
From the qualitative point of view, the legislative sectors left to the competence of the bishop may seem to be of secondary importance, even if not without local interest. They concern the formation of the clergy, the pastors, vicars forane, the care of books and archives, funerals, ecclesiastical goods, judicial taxes, etc. Very few norms concern the Word of God (except one on preaching and two on catechesis) and the sacraments (deferment of Baptism, the custody of the Eucharist and extraordinary eucharistic ministers). It is possible, therefore, to affirm that the preoccupation to guarantee plurality is less evident in the Code than that of safeguarding the unity of the Church.
Although the implications of the theology of the universal Church still remain with us, it must also be kept in mind that there are other reasons that can make the preoccupation to guarantee the unity of the Church a prevailing concern still today. These reasons include both the enormous expansion of the Church, with the corresponding increase of the number of bishops, beyond the cultural boundaries of the West, as well as the persistence of centrifugal tendencies everywhere to some degree. However, true ecclesial unity cannot ontologically abstract from plurality.
Since the perfect equilibrium between the two dimensions of the Church may be historically impossible to reach, it should not be surprising that in various moments of the history of the Church, particular law has prevailed over universal law or vice versa.
It is evident, for that matter, that a return to the regime of the first millennium would not be conceivable, precisely because the model of the relationship between the universal and the particular Church, realized in the ancient Church of the first millennium, is not an absolute model, but a historical model like that of the second millennium developed by the Latin ecclesiology of the universal Church.
In conclusion, we hope that the internal situation of the contemporary Church will become less tormented, so as to permit a more proportionate development of particular law in the future. However, the condition of obtaining this equilibrium, is that the law of the conferences of bishops, which is below the universal and above the particular level, does not become the greatest obstacle.



* First published in: Ius in vita et in missione Ecclesiae. Acta Symposii Internationalis Iuris Canonici occurente X anniversario promulgationis Codicis Iuris Canonici (19-24 April 1993) (Rome 1994), pp. 553-574.

1  The literature on the subject is is quite scarce. Cf., however, Aymans-Mörsdorf, Kanonisches Recht. Lehrbuch aufgrund dese Codex Iuris Canonici, Bd. I (Paderborn/Munich/Vienna/Zurich 13/1991), pp. 191-192; L.M. De Bernardis, “Il diritto canonico territoriale tra il Concilio Vaticano II e la riforma del Codice,” in: Ius populi Dei. Miscellanea in honorem Raymundi Bidagor, Bd. II (Rome 1972), pp. 27-42; F. Campo del Pozo, “Il Derecho particular de la Iglesia según el Código de 1983,” Estudio Agustiniano (1985), 473-528; H. Eisenhofer, Die kirchlichen Gesetzgeber. Technik und Form ihrer Gesetzgebung (Munich 1954), pp. 1-45; G. May, “Vershiedene Arten des Partikularrechtes,” AfkKR 152 (1983), 31-45; M. Pesendorfer, Partikulares Gesetz und Partikularer Gesetzgeber im System des geltenden lateinischen Kirchenrechts, Vienna 1975 (Kirche und Recht 12); W. M. Plöchl, “Über den Regionalismus im Kirchenrecht. Ein Rückblick auf den alten und ein Ausblick auf den neuen CIC,” in: Diritto, persona e vita sociale. Scritti in memoria di Orio Giacchi, I (Milan 1984), pp. 692-701; R. Puza, “Die Teilkirche und ihr Recht im neuen Codex,” ThQ 164 (1984), 34-51; J.-C. Rochet, “Le droit particulier a-t-il retrouvé sa place? L’exemple de la France,” L’Année Canonique 27 (1983), 165-169; J. Traserra Cunillera, “La legislación particular ‘contra ius’,” Revista Catalana de Teología 12 (1987), 165-194.

2  The most useful instrument is the Index Verborum ac Locutionum Codicis Iuris Canonici, by X. Ochoa (Vatican City 1984²), using the terms: Ius particulare, Ius proprium, Ius universale, Norma (ae), Servatis normis, Servatis praescriptis, Servatur praescriptum canonis, Servatus (a, um), Servo (are).

3  On this subject, cf. K. Mörsdorf, Konzil II, LThK, p. 151, n. 4; and especially W. Aymans, Das Synodale Element der Kirchenverfassung (Munich 1970), pp. 318-366.

4  Among the innumerable inexactitudes and arbitrary reductions committed by Eva M. Maier in the exposition of the writings and thought of the so-called “School of Munich of Bavaria” in the article, “Zum Zusammenhang von ‘Theologisierung’ und Positivismus im kirchlichen Recht. Aktuelle Tendenzen kirchenrechtlicher Lehre und Entscheidungspraxis,” ÖAfKR 38 (1989), 37-51, I cannot fail to clarify that the principle of immanence of the elements, even if this immanence were perfect, does not in any way imply the identification of these elements. The very notion of immanence by its nature presupposes a distinction. For a precise and critical comment on the article of Maier, cf. L. Müller, “Theologisierung des Kirchenrechtes?,” AfkKR 160/2 (1991), 441-463.

5  Cf. 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 October 1980, (Milan 1981), pp. 1222-1225.

6  For a justification of the primacy that is not primarily Biblical or historical, but ecclesiological, cf. A. Carrasco Rouco, Le Primat de L’Évêque de Rome. Etude sur la cohérence ecclésiologique et canonique du Primat de juridiction (Fribourg [CH] 1990).

7  “The Church in its universal and local dimension is the context of the new dimension of man,” June 12, 1984, in: Insegnamenti di Giovanni Paolo II (Vatican City 1984), VII/I, pp. 1676-1683.

8  Cf., instead, the Letter of the Congregation for the Doctrine of the Faith, of May 22, 1992, To the Bishops of the Catholic Church on some Aspects of the Church Understood as Communion (Vatican City 1992), especially 8-10. On this problem, the pertinent observations of A. Cattaneo deserve to be cited, in the article: “Teología de la Iglesia particular. Reflexiones a proposito de un libro reciente” (Bibliographical Note on J. R. Villar, Teología de la Iglesia particular, Pamplona 1989), Scripta Theologica 23 (1991), 287-309, esp. p. 304.

9  Cf. E. Corecco, “Battesimo,” in: Digesto, Discipline Pubblicistiche II/4, Turin 1987, pp. 213-216; Id., “Chiesa particolare,” in: ibid., IV/4, 3-4.

10  Cf. G. Colombo, “La teologia della Chiesa locale,” in: La Chiesa locale, ed. by A. Tessarolo (Bologna 1970), pp. 17-38.

11 On this problem, cf., for example, J. Beyer, “Principe de subsidiarité ou ‘juste autonomie’ dans l’Église,” NRT 108 (1986), 801-822; F.-X Kaufmann, “The principle of subsidiarity viewed by the sociology of organisations,” The Jurist 48 (1988), 275-291; J.A. Komonchak, “Subsidiarity in the Church: The state of the question,” ibidem, 298-349; E. Corecco, “Dalla sussidiarietà alla comunione,” Rivista Internazionale di Teologia e Cultura: Commnio 127 (1993), 90-105.

12  For an interpretation of the faculty of bishops to dispense from universal norms, cf. J. Herranz, Studi sulla nuova legislazione della Chiesa (Milan 1990), pp. 190-194.

13 Cf. K. Mörsdorf, LThK, loc. cit., pp. 158-161.

14  On the codification of the canons of the Eastern Churches with regard to particular law, cf. I. ­Zuzek, “Particular Law in the code of canons of the Eastern Churches,” in: The Code of Canons of the Eastern Churches. A Study and Interpretation. Essays in honor of Joseph Cardinal Pareccattil (Alwaye [India] 1992), 39-56.

15  Cf. J. Listl, “Plenarkonzil und Bischofskonferenz,” in: Handbuch des katholischen Kirchenrechts, ed. by J. Listl – H. Müller – H. Schmitz (Regensburg 1983), pp. 314-320.

16  A more nuanced position in this regard is that of W. Aymans, which, however, remains faithful to the formula of Mörsdorf, according to which canonical science is a “Theologische Disziplin mit juristischer Methode.” Cf. Aymans-Mörsdorf, Kanonisches Recht. Lehrbuch aufgrund des CIC, I (Paderborn 1991), pp. 142-152. On this subject, the misunderstanding frequently remains, according to which the principle of the “ordinatio fidei” mortifies the function of human rationality, and therefore, of juridical method. Cf., for example, L. Örsy, Theology and Canon Law. New Horizons for Legislation and Interpretation (Collegeville [USA] 1992), pp. 176-177. Characterized by scarce openness to understanding the thought of others is the doctoral thesis – which evidently also touches on the relationship between faith and reason – of M. Wijlens, Theology and Canon Law. The Theories of Klaus Mörsdorf and Eugenio Corecco (Lahnam – NY – London 1992), especially pp. 116-206.

17  Cf. H. Schmitz, “Tendenzen nachkonziliarer Gesetzgebung,” AfkKR 126/2 (1977), 381-419, Id., “Der Codex Iuris Canonici von 1983,” in: Handbuch des katholischen Kirchenrechts, loc. cit., pp. 33-57.

18  Cf. E. Corecco, “Aspetti della ricezione del Vaticano II nel Codice di Diritto Canonico,” in Il Vaticano II e la Chiesa, ed. by G. Alberigo and J.P. Jossua (Brescia 1985), pp. 333-397.

19  Cf. the Letter of the Congregation for the Doctrine of the Faith, of May 22, 1992, to the Bishops, loc. cit., 10.

20  Cf. the more open position of P. Rodríguez, “La comunione nella Chiesa,” Studi Cattolici 7 (1992), 496. For its ecclesiological vision which is also valid in this context, see the important work of the same author, translated in several languages: Chiese particolari e prelature personali. Considerazioni teologiche su una nuova istituzione canonica (Milan 1985).

21  Cf. E. Corecco, “Articolazioni della sinodalità nelle Chiese particulari,” in: La synodalité. La participation du gouvernement dans l’Église. Actes du VII Congrès International de Droit Canonique, Paris, 21-28 September 1990 (Année Canonique, hors série I-II), I, pp. 861-868.

22  Cf., among others, J.H. Provost, “Episcopal Conferences as an Expression of the Communion of Church,” in: Episcopal Conferences. Historical, Canonical and Theological Studies, ed. by Th. J. Reese, (Georgetown, University Press, 1989), pp. 267-289; W. Aymans, “Wesenverständnis und Zuständigkeiten der Bischofskonferenz im Codex Iuris Canonici von 1983,” AfkKR 152/1 (1983), 46-61; Id., “Synodalität – ordentliche oder ausserordentliche Leitungsform in der Kirche,” in: Actes du VII Congrès International de Droit Canonique (Paris 1990), loc. cit., pp. 123-67.

23  On the nature of the synod of bishops, cf. the analytical and particularly searching study of G.P. Milano, Il Sinodo dei Vescovi (Milan 1985).

24  Cf. E. Labandeira, “La ‘remonstratio’ y la aplicación de las leyes universales en la Iglesia particular,” Ius Canonicum 24 (1984), 711-740.

25  As is affirmed instead by A. Antón, “Lo statuto teologico delle Conferenze Episcopali,” in: Natura e Futuro delle Conferenze Episcopali, Atti del Colloquio Internazionale di Salamanca (3-8 January 1988), ed. by H. Legrand, J. Manzanares, A. García y García (Bologna 1988), pp. 201-235, esp. p. 220.

26  Cf., for example, G. Greshake, “«Zwischeninstanzen» zwischen Papst und Ortsbischöfen. Notwendige Voraussetzung für die Verwirklichung der Kirche als «Communio Ecclesiarum»,” in: Die Bischofskonferenzen. Theologischer und juristischer Status (Düsseldorf 1989), 88-115.