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tlat an autbor1ty of the 'talure of Kuttner beJ1,eves the is5ue is secondary to

egaJ &velopm.L11t.3

Ir1 t~ present 5tudy 1 propose to explore a compromise reached in a

&pute &bated during the drafting of the code: the participation by lay
perwru, in the governance of the Church_. I propose to do this exploration in
three itage&. The firr,t is to di.sc1JSS the issue as it surfaced in the course of
rlr'1fting the new code~ TI1e second is to indicate the compromise which
res lted trom this deb'ate and to explore tne possible involvement of lay
persoru, in the power of governance according to the new code. The third
stage will be to suggest some issues which remain to be studied.
DRAFTING THE NEW COD E

1. Review of the Drafts

a. The involvement of lay persons ia the governance of the Church
particularly at the Jevel of church office, was ruled out in the 1917 code.
Only clergy under that code could possess ecclesiastical power, whether of
order~ or jurisdiction (c. 118); possession of such power was essential to
holding an ecclesiastical office in the sense commonly used in the code
(c. 145).

b. The possibility in law of lay persons assuming a greater role in the

inner life of the Church first appeared in the drafting proces.5 for the Lex
Ecclesite Fundamentalis. The initial versions of this document affirmed that
lay persons were "'habiles for ecclesiastical functions (munera) congruous
with their oondition.4 They could help the bishop in his governance
7

'

3 See Stephan KU1rNEk, '' Betrachtungen zur Systematik eines neuen Codex Iuris
Canonic.i.:~ in Ex <quo er bono: Willibald M Pwch/ zum 70. Geburtstag, ed. P. LEtSH tG~
et al, 15-21 (Innsbruck : Universitittsverlag, 1977). Other studies cited by Aymans include
Heribert SCHMJTZ, Die Geset.zes5ystematik des Codex Juris Canonic~ Liber /./II, Milncbencr
Theologische Studien, Kanonistische Abteilung 18 (Munich : 1963); Acta Comm~ionis, ''De
Ol'dinatlone systematic.a novi Codicis luris Canonici," CommunicaJiones, l (1969), 100-1 13;
Klaw Mo~"OOKf .. " Zur Neuordoung der Systematik des Codex luris Canonici,'' Arclriv far
kaJhllli.Jches Kir!:henrecht, 137 ( 1968), 3-38 ~ Peter KRAME~ Kritische Anmerkungen iur
S)'b1ematik eineh neuen kirchlicben Gesetzbuc.hes," ibid., 147 ( 1978 ), 463-470 ; Heribert
SCHMITZ. uR.eform des k.irchlichen Gesetzb11ches Codex Iuris Canonici 1963-1978.," in
CanontStit:a, Beitrage zum Kirchenrecht. ed. H. ScHMJTZ, vol. 1, 36 44 (Trier : 1979); 1DEM,
~0e ordinatione systematica novi Codicis luris Canonici recognit~ Periodica, 68 ( 1979),
J7 J-200 :. Win fried AYMANS, "Der strukturelle Aufbau des Gottesvolkes," A rchiv fiir
k.athtJIIs,he:, Kirlhenrelht, 148 ( J 979 ), 2 l-47.
4 Sc:hemo LegiJ Ecclesia FundamenJalis, Textus Emendatus (Vatican City: Typis

PAR'f lCJPATION OF THE LAITY

419

function, fulfilling what they were competent to do in accord with the

canon. .5 In developing a revised version of the LEF in 1976 the ccetus
pecified that this participation in governance might include various offices
\Vhich could be given lay persons according to the law, although a query
was sent to the Congregation for the Doctrine of the Faith to determine
what tl1ese might be. 6 The Congregation responded that given the present
state of doctrinal investigations on this question it did not want to give a
precise and exact response. Nevertheless, it did provide certain practical
cat1tions about drafting the code so that it would not foreclose legitimate
discussions. 7 Apparently the Code Commission felt the response from the
Congregation did not require any change in wording, for the proposed text
in 1980 was essentially the same as the 1976 version of this canon. 8

As you k11ow the LEF was never promulgated. What is interesting is

that, at least in the Communicationes reports, our issue does not seem to
have surfaced much discussion in the LEF cretus. The issue did come up as
to how much of the bishops' governance of a diocese could be delegated,
and whether it could be delegated to lay persons; but the reports do not
indicate a heated debate, nor do they indicate the response from the CDF
raised many concerns.
c. The 1977 schema De Populo Dei was similarly vague. It spoke of
lay persons being capable (habiles) of fulfilling those ecclesiastical offices
and munera which they are able to fulfill according to law. 9 The canon did
not go on to specify further what those might be. The same vagueness was
present in the revised version which appeared in the 1980 schema for the
code 10 and is now in the promulgated text as canon 228, l.

Ibid , c. 82 in the 1969 version, c. 83 in the 1971 emended version.

Cf. c. 78 and disclls.5ion in Communicationes, 9 ( 1977), 293.

7 So far as I can tell the response of the Congregation has not been published. However,
it is known there were three criteria presented to the Code Commission: (I) while dogmatically
lay persons are excluded only from offices which are intrinsically hierarchical for which the
reception of orders is required, the determination of what offices are involved here belongs to
the organisms established ad hoc by the Holy See ; (2) great caution must be observed to avoid
creating a lay pastoral ministry in competition with the ministry of clergy ; (3) whatever is
permitted to lay persons should be within the context of existing law, with no innovations in the
6

code.
Pontificia Commissio Codici Juris Canonici Recognoscendo, ''Lex Ecclesite Fundamentalis seu Ecclesite Catholica? Universa? Lex Canonica Fundamentalis, Romre, die 24 Aprilis,
1980," c. 80.
9 Schema Canonum Libri II De Populo Dei (Vatican City: Typis Polyglottis, 1977),
c. 528, 2.
IO Schema Codicis Juris Canonici (Vatican City: Libreria Editrice Vaticana, 1980),
8

420

STU DIA CA 0

ICA

It may be the text remained general enough and did not addr~ the
specific issue of what degree of participation in the governance of the
Church was involved in such offices. In any event, not much discussion is
reported. But once the drafters turned to specific offices which laity might
hold, and to the question of exercising the power of governance as such the
issue became more heated.
d. The debate began in earnest with the .Practical question of the
admission of lay men as judges in church tribunals. The 1976 schema on
procedures proposed to continue the provisions of the motu proprio Causas
matrimoniales. 11 These provisions had themselves been criticized already as
being contrary to the council. 12 So when the cretus met to discuss the
comments on the schema, doubts were expressed about the possibility of
conferring jurisdiction on lay persons and permitting them to serve as
judges. These were resolved for a majority of the cretus (7 voted in favor of
the canon, 2 against it) by arguments taken from history and from approved
theologians. The precedent of Ca.usas matnmoniales was clearly in mind as
well, both for permitting lay men to serve .as judges and for excluding
women from this office.13
A slightly stronger version of the canon, permitting lay men to be
constituted judges per1nanently rather than just for individual collegiate
tribunals, appeared in the 1980 schema (c. 1373 2). When this version
was submitted to the members of the Code Commission for their comments
several were pleased with it, although not happy with the exclusion of
women from this office; others objected because admission of lay persons to
the office of judge was giving them an exercise of ''sacred power 'and only
a person in sacred orders could do that. 14
e. The major objections to the canon on lay judges were made in the
context of a much larger intervention dealing with t\vo other canons. Th~e
were more theoretical in nature, but fundamental to our topic. The first
dealt with lay persons exercising the power of governance the second is a
canon on the offices restricted to clergy.
Schema Canonum de Modo Procedendi pro Tutela Iurium seu De Procc..~ihus (Vatican
City : Typis Polyglottis, 1976), c. 20, l . See PAUL VI, motu proprio Ca.usas manimorrial"s,
11

28 March 1971, V: AAS, 63 (1971), 442.

12 For example, see Winfried AYMANS, ''Laien als kirchliche Richter ?' Al'r'hi}' for
kaJholisches Kirchenrecht, 144 ( 1975), 3-20.
13 See Communicationes, 10 (1978), 230.
14 See P ONTlflClA COMMLSSIO CODICI IURIS CANONIC'I R ECOG OSC DO. Rl'lario

complectens synthesim animadversionum ad em.mis a1que exc.mis parribu.s rom.mis.sionis ad

novissimum schema codicis iuris canonici exhibiiarum, cum responsionibu.s a St>Cretorlo rt
consulloribus daJis (Vatican : Typis Pol yglottis, 1981 ), pp. 308-309.

,.'
>

JlAJt11 tfl)A'l10N Of 'flfE LAITY

421

l) a11C>ll 96 of the first draft on General Norms provided for

p:.irti '\i1latiot1 in the exercise o.f the power of governance by those who were
11ot ordai11ccl 1 in so far as that power was not based in sacred orders. Such
" ~rcisc was lirnited to thc>se situations in which the supreme authority of
tl1e l1urcll permitted it.15 There i no published report of the discll$ions of
th'"' <J'tus cl1arged witl1 reviewing the comments on this draft, but the 1980
s lleo1n has practically the arne canon, although its wording bad been
cltiri tied.16
2) Witl1 regard to offices reserved to clerics, the first schema 011 the
Pc ple of God'' r tricted to them those offices whose exercise required the
J)O\l 'r of orders or the power of ecclesiastical governance based on sacred
order (~ordi nc sacro innixa'.).1 7 The discussion on this canon has been
reported.1 One epi copa.l conference did object to the canon, not because it
refers t - l~iastical governance as rooted in sacred orders (a position it
held to be the only way to interpret the source of ecclesiastical governance),
but because it implied there is a power of ecclesiastical governance which is
not root d in creel orders and therefore offices whose exercise requires this
type of power are not limited to clergy. The conference proposed to remedy
ttlJ thi b imply using the ter.m ''sacra potestas'' instead of listing separately
the power of orders and the power of governance.
The

ultors discussed this idea, found it to have some merit (at least
in o far n. the meaning of ''sacra potestas'' was concerned); but also felt it
w uld only further complicate the situation to adopt the wording proposed
b the conference. They also feared the wording proposed by this
oonferen e would seem to close off what was considered a question still
11

open to debate.
f. The 1980 . hema reports the same text as the 1977 dra~ It is in
response to this ca11on and to the canon on lay participation in the exercise
of the po\ver of governance, that major objections were lodged prior to the

1980 Code Commissjon meeting. The Commission's secretariat found the

~ue to be o complex and substantial that it listed it as the first of the six
special issues to be submitted to the full. meeting of the Commission in the
fall of 198 J. The Relcuio prepared for that meeting contains a carefuJ

is Schema Canonum Libri I De Normis Generalibus (Vatican : Typis Polyglottis, 1977),

c.. 96.
16 Schema Codicir Juris Canonici, ( 1980), c. 126.
J 7 Schema Canonum Libri II De Populo Dei, ( Vatican City : Typis Polyglottis, J977),
c. 128.
18 CommUJtioationes, 14 (1982), 71-73.

n
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.and the full text of the

material for the commis.5ion

ti . , ter) Prefect of the Vatican

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1 ised versions of these
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23
---~

11he Gemia11 Positio11

a. Funda1ner1tally, their point is this. Despite a history of the oonfusi-On

f ~;.ular and sacred power in the Church the Second Vatican Comtcil has
brought the hurcb to a clear position of rooting all eo::lesiasticaJ pou-er in
the sa rame11tal n.ction of Christ~ and specificall.Yin the sacrament of omen.
ince the cour1cil tl1ere is no longer a qu~tion of two distinct poweJS in die
hu~h - t11e po\ver of orders and the power of jurisdiciion. There is only
Otte power, ''sacred power,'' and that power is the power .of Cbrit p:resent
i1l the hurch through the sa.crament .of orders.
1

Tberefore it is nonsense to speak of a power which is oot rooted in

sacred orders, uch as the draft canon on lay participation in the pov.'"er of
,go emanQ! would have done. Moreover it is an .aberration to permit fa}'
pe ns to erve as judges in ecclesiastical trials, for such ju~ do a~
the p<)\\'er of governancel something restricted by the very nature of diis
power to those in orders.
The interventions to the Code Commission base their argument oo
both the history of the development of governing power in the Church an

notes ~ bibliography) in An Introduction lo the New Code of Camm lmi!, ed.~

Rom o , 6()..140 (Sydney : Canon Law Society of Australia and ~w Zedmd. I
;,
Gtorgio FarctA l, " I diritti fondamenta.li dei Cristiani e resercim dei "m~ doo.er:m d
regcndi," in Les droiJ.s fondamen.t aia du dtretie.n dans l'igfise e1 .tfmrs la ~ Cd. ~
CORECCO, et al, 221 -240 ( Fnl>ourg, Switzerland : Editions Univ~ I l ); J. kn:ttS
0.1NE0, " The Po\\>--er of Jurisdiction : Empowerment for Chun:b Functiat?:i~ ar.d "
~ct from the Power of Orders." TM Juris. 39 ( 1979), 1&3-219; Join 1
M. ffl-a.'
.. Another Look at lay Jurisdiction." The Juris/., 41 ( 1981 ), 59-80~ Edwml J.
w..~

''Lay Participatioo in the Apostolate of the Hierarchy,.. The JJU'81, .;1 ( I 1). :Ml- ; ~
A. MARQ 'ES. .. Funcion pastoral y poder en la Iglesia,.. /us~ 15 ( I'll)),. 159-1 ;

"v \RRE rt. .. Potestas vica.ria Ecdesi~ Evo1utio historia oot'lC.'eplT..JS :.:pc ~~
attenra doctrina cooalii Vaticani II," Periodica, 60 ( 1971 ). 414-486; J
J. RVA'- ...fu
Separation of 'Ordo' an.d ' 1lurisdictio' in its S:trucrural-Doariml Oa~rl
&xl~ologicaJ Significance." Munster in Westfalen, 1972 ; E. SAUR.AS. -a anc:a -
de
los poderes de la Iglesia," Ju.s Canonicu.m., I 5 ( 1975~ I S-43; .R rinboki Scmr.rn., D2
eigenberech1ige Ge...u/1 der Kirdte, Analer;ta Gregoriana. 196 (Rome: Uci\"CJ~m Gtq@ti:c:t
Editrice, 1974); IDEM. "De polestate propria ~ .. Periot!im., 63 ( 19 4). ~2945S;
Antonio da Silva PEREIRA , Sacramen.1.0 da On:Jem e ojiciD ~

.,
do sacramento e fX>der na lgreja, AnaJecta Gregoriana 17'.."" (Rome: Umia:s!t.i Gt1~ftm'!
Editrice, 1969); Nikolas TIMPE, Das kanonisclte X ildtaltbild i&"ft <Ad&
zum Beginn des Vaticanum Secundum. Eine hmori.sdrel
(~ :
St Beno Verlag, 1978); Marie Zr>.iMERMA.~N, Stru:ct:Ilff socillk l!I ~ a.\'e
1t=CntDtC~
1981).
STICKLER also provides a bibliography in .his recenr ~ oo
1u
' potestas regiminis': visione teologica," in fl nuovo cotlice di &.!irJtJ
: i1' f. .;
mofiwizione e significaro, 63-74 (Ro me : Libreria F.ditrice dell.a Pootffic:D L~~ ~.z:ra
t 983), especially. pp. 73-74.
rban

...

424

STUDIA CA 0

ICA

on the positions developed in Vatican II, particularly concerning the source

of a bishop's power. While the interventions themselves are relatively brief,
they draw on considerable research done since the council, some of it by
noted German-speaking canonists. Briefly, let me trace the main elements of
the argument.
b. It really comes down to the nature of power in the Church. The
way in which that power has been understood has gone through a
remarkable history, one that marks our understanding of it today. To get at
a true understanding of what power is in the Church, it is necessa,ry to free it
from some of the aberrations which have crept in during this history.

I) For the first millenium, power in the Church was one sacred reality,
conferred with the office for which one was ordained through the system of
relative ordination. The Church's power was distinct from that of the State,
although under the system of Christendom the power of both Church and
State were considered to derive ultimately from God. Around the beginning
of the thirteenth century several major shifts took place. The system of
relative ordination gave way to the system we are familiar with today,
absolute ordination. Debates over simoniacal clergy, lay investiture, and
heretical or schismatic bishops led to a distinction between the power of
orders (which inhered in the person and came with ordination), and the
power of jurisdiction (which was located in the office, came with the office,
and could be lost with the office).
2) The process of Roman centrali~tion gradually separated jurisdiction
from orders to such an extent that the power of jurisdiction was said to
derive from the pope, while that of orders came through ordination. The
powers were different in their source.
3) With the rise of nation states in Europe, individual nations began to
claim sovereignty over any other power in the temporal order. This claim to
sovereignty spread to the religious domain under the Refo,rmation. The
Church, it was said, should be responsible only for religious matters and
leave jurisdictional ones to the state. In response to the.5e claims Catholics
emphasized the visible, jurisdictional reality of the Chur,ch ~ the Church was
as much a sovereign in the spiritual realm as a government might claim to
be in the temporal sphere.
This had an effect on the understanding of power within the Church.
The distinction between power of orders and power of jurisdiction was now
applied to the object of those powers, not just their source. Jurisdiction in
the Church is the same kind of power as any sovereign state would have; it
is native or proper to the Church. Orders, on the other band, arise from a

J J tI'

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},, t iltJt . !llt t 1 , t,,, J)Jj2'J tlfl g ' ll

r. b yond tho.
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r of orders is
v i~..t )tt "t .. 1~' 1t11 tt11' tlllll t f 1, ri~t . 1111 th J1 w r f jL1risdi tion is
J>()~ ,., ,l~ ' ,1 t'l4( t-1 t . fl
"l1t1 'll in ifs ' n nam .
l\ lttt( )tt~l tit 1' t 7 ' ~t
t'c 911 't d JO\l r in tl1r ...lturch w hierarcl1ical
1

('' )t)~ ,ft

l1~t . tl~t-Ji 'll\l1 it

~' \~~,)r(jjJ\g 1 t11 pc)"' r of orders nn<l the power

c)f j llt l~~ilv~l t \l , 1\l\\l&\llt~lt l Ill
1t) I ( 'llCJ j urf~ di tfl)Jl cot1ld be held and
c~ ~ f~t~r;I ftlilvt 1-Jtt ,Jltly t) t' t rrl rH1 A n ly nilmecJ bisl1op, for example,
1

l1is Nr, ftttLi e ~ r 'is , tll pow rs of jurisdiction and

rll~\~i 1..1i111tt th f(~ < '' h r r~ l1is Jli coprI con1e rntior1. Sin1ilarly, a man
\V~l<) \\'il~i ll< )t it l1 11~ fl (tlr Jll) t e ~11 ii 'leri ') cottld be lectcd pope and
wc)111,1 i tl\ll,~,1 itl~ Jy l't\ tt t ltl ive r~tI JuriNdic!tJon even over all the bishops,
i1 1 tmJJflctl l i f t l1r. J)< lV r ~lf t)rtlerN.

'.;.' )\t.l<-1 l ~l~c\ Jl ~~ ~~1 tltl

'. i\t

V~llit;i\tl

t )f

II tl1is isst1

\Vll1~

tlno Clf tl1 major points i11 attempting to

)lr. (~~~ rt>){) <>I' tl1 f)i~. l)J)4\te i11 ti\ on~ti tution of the Church. Did the
l>}~llc)J)'~ Jl11 i~t1 i litlr1 ~l)Jll~ frq111 tll pop by means of canonical mission, so
tll"l 111 L>iHlllll1 t>ltltl l) (i11<~<)1'r tly) _~onsid rocl a vicar of the pope? Or
do $ ~\ l}i~lJ(>JJ gt1v r11 liR c:lio s in th~ 11nmc of l1rist, so that he, too, is a
Vf ?lf f)f (' ll ri~l ' l (tl ~ Wt\S l)l OlllffiOn O>eprcssion for the first millennium)?
'l'll<! u11Hw rl {tltlto\agll o '0111promis ~ did affirn1 tl1c sacramental nature of
ef>i8~<)Jlill ~)f'(li11ati~l11 t\n~l th granti11g i11 such ordination of the functions of
. ov rt1it1- tlll~J t(}f\ l1ing tlS w 11 ns tl1 sa.nctifyi11g f11nctioo. These functions
as pustt)fSor l t<) b ~x r"'is "d in hi rnrct1ical comrnunion for the good of the
' l1ur,11 tltlivcrsitl, l\tld in n sp cinl way for particular cl1urches committed to
lllc bisl1ops individually tJ1rougJ1 ll dcsig11ation given in canonical mission.
1

cfTecl, vati a11 JI did away with the distinction of a power of

j urisdi~tion whict1 is proper to tl1c
h11rch as a sovereign entity, and a
power of orders wl1ict1 it exercises vic11riou.sly for Christ; all power in the
hurcl1 is vicariot1s for all occlcsiastical power is from Christ. Yet all such
vicariot1s power is proper to the Cht1rch, so th~tt the Church is truly a
religious reality, not a sovcreig11 entity with a religious constituency. This is
tl1c "sacred power,' of the hurch, a power which comes with orders and is
intended for teaching, sanctifying and governing God's people.
111

'

In order to asst1re the unity of the Church which had been juridically
structured tt1rough the ce11tralized concept of a distinct power of jurisdiction,
the council turned to t.he age old notion of communion. Christians are
bonded together in a cornmt1nion of faith, sacraments and discipline. This
communion is a hierarchical communion lived in particular churches or
dioceses under the leadership of the bishop, and linked together through the

~'

Ii

'(

'tI

,.,,,,,, a i

Jtt

ir

t l ll I

(~

N NIC 'J\

f th ~ -011 e of
f hurch .

th

I 't,. 1t t. t11 'litR 11

'I ta \411, 11 1t 11t l I' 1 i1: 11 rt ~t mnti ' und r~tanding of power in
tl1 ~ 1 \ll 1, t, i t~ 'lv t1ta ~ i --1 I",, r. r (1l d i11 . a ron1 nta'I consecration
l
t l '' lt , l ~ n 111u11i n. If 11 w r t admit another
lli .! >f ,, 1\'{ t i , tltit tt t
' l i ti ., l p w r r
rci ed by per ns
wl1, l1 t ,l l> t ., 'cl,, d. tl1 , t m ,. uld b'.) weakened and the
1

ll I tt ~ ly ~till l,,
ir t u kir1d f ivil under tanding of its
w l\\,lt tt\ 111 tl1 ~ lll Jl .i" 11 r l tiv whi h i ' pr p r to the hurch

~1\~ t !\\ '

~llt !la.

t
1

}\

(Jffl (Jn

.,,,,J J/

'' 'l~h .~ ~ l1 1 >I )t tl u ,1t ut'1r with a dill r =-11t et f presuppositions. 22

It h Id tilt ~ t1 1 tw() tlil' 'tll 1 w r ~ i11 tt1
hurch distinct in origin,
pt1 1->os t<I lt1 ' t ,, ~ti "'S.
~ with nny ivil - ociety the Church has a
p w t<, ~<1Vt l it 'lf ( 1r ju1isdi tio11 wl1i h m from God through the
div in 11 a.t tJflll l w ta\ t1dditi t1. it l1n.. th' pow r of orders which comes
fr in (,.,lari~t ll )\t~{ll th i .. r L111 nt f rd ~rs. The organization of these
pow r~ llft,H l) ~ 11 [i 'U ir1 tl1 . 11\It 11 by its divi11e founder, and the Cb.urch
is "'stir tl it ,n11ot rr in n1 1tl
f such major importance as its own inner
pow 'f. Altl1 ) ll!(ll tl1 !S
w rs ur in them lves distinct, they are joined in
cxcrci~ t,t tl1 1,i l1 , t l v 'l f divin ly instituted hierarchy the pope and
bi. hc)11.
,-fhis I t1r a11d . 1111n r1ly accepted po ition has been subjected to
confu. i n du1i11, u11d fl ft r Va.ti an 11. Two special issues illustrate this: the
rclati<)nsl1ip of rdinati n t p wer in the hurch, and the abolition of the
levels of clcr i~tl hierarchy below diaconate.
I) At Vf1ti a.n II it wa taught that episcopal ordination confers the
three munera of teaching, sanctifying and governing, but the council did not
say these were powers in the Church. The Nota explicativa prtEvia for
Lumen G 'nllum 1nake this explicit pointing out the term potestas was
deliberately avoided. Yet since the council many people have ignored the
distinction and claim that orders are the only source for power in the
Church.
2) The abolition of all grades of the clerical hierarchy which were of
ecclesiastical institution has reduced the clerical state to only sacred orders.
Sri KLCR gives a clear exposition of these presuppositions in his commentary, "La
'potcstas regiminis': visione teologica,'' pp. 63-66.
22

PARTlCIPATIO

OF THE LAITY

427

o longer is it enough to have received an office o.f jurisdiction or the

power of governance to be a cleric ; one must now also have been ordained
at least a deacon. Given the traditional doctrine that only clerics are capable
.of holding power in the Church,23 some have been led by this chang.e in
what constitutes the clerical state to conclude that only those with sacred
orders are capable of the power of governance. This has encouraged the
confusion concerning munera and potestas.
b. Stickler faults the German approach on both its major premises,
history and the understanding of Vatican II. As an historian he recites a
number of factual instances to prove his point. In reference to the council,
be focuses more on rebutting the assertions of the other school than in
developing a coherent position of his own.
l ) With regard to the tradition of the Church, Stickler readily admits
:there was no developed doctrine on the natu.re and immediate source of
sacred power, or even a clear terminology to talk about this. Even Saint
Augustine, faced with problems of schismatic and heretical clergy or
unworthy ministers in the Church, did not develop a consistent theory but
distinguished between the existence of the sacrament of orders and its
exerctSe.
a. Stickler also readily admits that in the early Church there was no
distinction between the granting of an office and the granting of sacred
orders (the ''collatio officii'' and the ''collatio ordinis sacri''). But he argues
that there was a distinction between the designation for an office and
ordination, the frrst often being provided by election. In effect, there was
already in practice a distinction between orders and ju.risdiction.

For example, even with relative ordination, a person could be named

to an office, take possession of it, and even exercise the jurisdiction that
went with it before ever being ordained to the necessary order. Gregory the
Great was elected pope in February of 590, but not ordained a bishop until
September 3rd of that year. Indeed, not until 882 AD was a bishop elected
pope, yet the newly elected popes exercised the authority of the office even
prior to their ordination as bishop of Rome.
He also argues that different powers were attached to various offices,
~even though each of these offices required the same power of orders. Thus
while all were bishops, the early Church recognized metropolitans,
1

23

See 1917~ CIC, c. 118 ; 1983, CIC, c. 129, l .

[' ftl ,,

l '

1i )\ ){) ~
>ti~-~

l t \ '
l1tl {'I\ .
\1 \

''"ll'

''t

lt ' l '

\ t \ ',; ..

itlll >t \
t .,, ~ 1 . ~~ti)
\tl\l 'tti u\ >\\ ~.. \t\ lu

t ) ll \v

l ..

\Jtl'.

-'JUl\ il~..

~ .. ' l\\

..

'( i,

\. . . .- . ~ ~""

-~

1 -.

..

'b. 'l t\ . tllt' l\ ~ti . ,,

'
t tw ~ .,\ t>rtll~1.: \ttd ju1isw ti t ~ thei-:ero

titt\ s. t'>ltt tt\ti l>\'>li ti 1t\ ot~ th t ii

"'
{lf ttict. Wl t:t1 th t1\ 'di
nn ..:.. ~..;;~lWl
l"'-~. "m~ ~""'
ltt lt\V ~tit Ul ' X>l\tt >V ~ .
. th
t1 "f "tictll bi"tlt>p~.. th ~ h d th
ti n uen
su 11 bish lp ~ >r d n in~ n_l_ th li
d v l >p thl~ positi t1 th t th
~~~
pt;fS)O nod ulw1
cnnin~,. Th
to th otli \11d uld
"'"'tri~~
ab \ut ordi11ttti n c m1 t
e<.1uld be grt1ntoo wit11 ut n ffi :e. and ""''""'~,>on, '.,.'*""
jt1risdi 'tio11 could not be ~rceriCJ oo tb ut the """'nest: "'" mg ~"' ~--
(otfi ;e or de\egati n).
~

QA.
.

Tt1' p ) ition w ~ th n th t n pers. n uld retti

pow "T >f juri dicti n that went ~ith it. ~ ~th ut the ~
orders; but that the po ~ n f the ffi ' ~ n t rompl& enm ~
corr pondir1g rde~ ~ ere received. The anal ID. vf the dillaer~
a ratun1 tUld a rutum-et-c n ~ummat\am mania2e \lt ~ to~~ ~

tickler \ises several papal exan1plcs l make bis poinL Gr. _

was elected on April _..... l 07 . but v.as not ordained a priest until "' l~~
later~ and bi hop in the following month. Like\\ise) in l 198 Inn
lll
was elected while a deacon. and was not ordained priest until :o ~ii:i
later. und bishop a month after that A canonical distinctioo
concerning acts done by newly elected popes by which theit bulk ~
-~~
prior to coronation were called ~'bulla dimidia - . not full-fledged ~~ n~~
Yet Stickler argues these are in reference not to ordination. bot to ~1~
possession of the office (coronation). which often preceded o
o
episcopate by some time.

Tl1ese historical arguments are presented to show the ChUJl~

always had a consciot-isness ot having two kinds of po ~er one n deri
from the other. Stickler then turns to the question of the teaching of\..ancan IL
1.l'ol'

adition of the Church, nor could it deny the divine plan for the Church
loreover, it never said what the other school claims it said concemini
sacred power." It did speak of the ''munera'' or functions of teaching
tnctifying and ruling coming with episcopal ordination, but it specificall)
sed the term ''munera'' rather than ''potestates'' to indicate they are not tbt
l.me. A further juridical determination is needed for a ''munus'' to becomt
''potestas." Finally, the council specifically affmned that it did not want tc
~lve issues which are still open to theological debate. 24

He readily admits the desirability of uniting orders and jurisdiction Hi

ie exercise of pastoral ministry, especially by bishops, but this union doo
ot require the unity or unicity of these two powers, not does it require a
enial of the diversity of their natures. Rather, it is seeking a unicity of tht
ctive subject of power, although that one subject may hold two pow.ers.

The debate then turns technical. Rather than bore you with the details~
!t me just sketch the key points. The first is the question of exercisin.g
icred power without being an office holder; Stickler faults the other sch.ool
:>r failing to recognize the role of delegated power. As to the exercise ot
1risdiction by lay persons, or those not in sacred orders, he argues that
acred orders has not been required in the past, but clerical state was. Now
~t sacred orders and clerical state are the same (clerical status coming witb
1rdination to he diaconate ), the new code is merely proposing to continue
~hat was formerly possible for persons who did not yet have sacred orders,
Dme tonsured and some (historically, at least) not. He adduces a number oJ
xamples of this, ranging from religious superiors and Abbesses to lay
dvocates and defenders in the Church. There is also a debate over the
osition of Schmalzgrueber whom the Ger111ans cite as opposed to lay
idges, but whom Stickler claims actually is in favor of the possibility if one
~ the cited passage correctly.2s

3) Stickler's brief to the Code Commission is supplemented by Father

:eyer's, which approaches the question more traditionally. He argues from
ie common teaching prior to Vatican II, the specific teaching of Pope Pius
:11 and John XXIII, and the development of the conciliar teaching in order

As indicated earlier, STICKLER cites the Nota explicativa prtEvia to the handling of the
odi for Chapter III of Lumen gentium to prove his point. This Nota, by decision of higher
1thority, is always to be printed with Lumen gentium as expressing the proper interpretation
24

these

noint~

40
to how l~)al tl1c (_'~\urct1 \ol l, ''' t w( t t ''l t
jurisdiction, ev n thottgl1 tt1 s ar \ltl1 ~lt't i ,\ ltlll\
normally exerci' d by the sn1n ~ ~ltl lic ~, .

'tuli'\ l

'

l~I ~1 1

''U

'h .,., ' t

Two poinl~ rnauc by ll 'yrr l\ JC <:lt I ' ir1l itl\J)4 t1t .,, ,,, , ' r ' .,,\ \l\t
school of thought. l 'h first i ' t 1tll tl1r . ll\.' l; ll' 11t11l1ty t tl1~ J' 'l\l '' ,1,
not appear, in Vatican II, as th S\>l ~>tlNi <)I n li' tJ()ll' ,,. w a
tun
to the episcopate docs co11~ r the tl1t '''''''~"'' ,,,,t lit '''' '''''''' ~'''''''''J"i\t\
is needed to put those in u11crR i11l(J n 'l t() ll . 1,c ' iti'' l1ta \nei1IA'
t~,~ \
study,26 equates hierar hical corntrt ltt) i ~ > ~1 witt1 t \,<~l ll i~lt l ~I'' ~,, t\t)t\h ttl
mission, and so with receiving th 1>>W 1 ( )f j\it i~ ~Ii ~i ' ''
1

'l''''

' t"

''''t''''\

The second point Bey r m 1k "S i tt tn{)I

cJtl ''''tl\ t tt\At tlh
power of governance has b n ' nd till i, x ' i '' hy vt tl\ \ ''t'l ''' t\h
Church who do not have the pow r c>I 1d as. --1t\ '' >''''ti\' ''''~ \ t' 1 tltt~ '"
situations where sacred mir1ister ' ar 1'1 ki1 1 ligi' )''' -''ll ''''' , (' V '' t\ttt\
ordained (as in lay institutes of in r1 c>r W(>tt' '' ) $i t t)()W ' i't ~'' ''' ,\ ''
exercising an authority rising from the I si'' 1 111 i i' ll\ 'JI t.l\ ,,, ll\ \\t A&\tl
extending to the functions of tea hin , , ' 11 tit yi1lg ;.a 1~ t ~l)V 1tt\t\ .' 1
1

4. Some Comments

Let me comment a moment on the two J>()Sitiuns l ~lt\ v jtt~\ . 'l,\t \

First I want to point out the tw diffcrent 1t1e r\tll1 ti ~ wiii ''' \\ntl 'ltl' tt\
two positions; next I would like to sugge t what I u11d 1. lstncl V tt 't t\ lt '' l
say on this score.
1

a. At Vatican 11 several people remarked l)t1 tll t w 11 \ lllnlilt

,,., \\
were at work. It was not so much tt qlte til)t1 (>t l Wf> c:,Jt\p. )t t\\ \ '\l\
clearly on one side of every issue and others c\cr rly (lll t \1c ( Pl 1 1l i l
Rather, two mentalities were at work, and p (>pl '\)U\d Wt\1 l lt' '''
differing sides of various issues depending ( >11 whi h t1\ 1\l~l\ t , lt' 11
work.28 Since the council these ways of thir1king h~\V b n ,!\,, 1 \ \\\'

,\ 'lnncflr rJtr> 1/1>//,, fr HU/11 ~I*

'Lume11 Gen1iu1n '. Analecta Grcgoriana 216 ( l{,,n,l: U1li vct-.ttn <Jr~~,it lJttltt I ,\1t1 .. , I 'J 11)
21 Sacred Congregations for Bishops and fo1 Rcl1 icJUHt111d S ulnr ltl'iti,l\\ , I ,,, . 11 fut
the Mutual Relatioru Between BiJhops and RellKious i11 tli<' 'lftlr h ( Mutu \ t ln1111 11 ) \ \ ~
14, 1978, n. 13.
28 See, for example, Gerard PHILIPS, '' l) U>l l nda1'
\I tl l lll \('l\l \ ''''" n1i 11 1111
Nouvelle revue theologique, 85 ( 1963), 22~-238 ~ A11totlit1 A( t 1t111 , IJtt" , , /, '' 1.1 11
ecclesiologia giuridica ed ecc/eJiologia di c'<>munir>rw nellu " / ,1lrtlett <,,,,, ttun
11,
Edizione Dehoniane, 1975).
26

Gianfranco

G111Rl.ANDA, ''Hierarcliica (~<Jffl'1ftl11lr> " :

''" ' ' '

PA.RTIClPATIO

OF THE LAITY

4 l

Bernard Lonergan. as ''classicist"' and ''bistorical-mindedn~~ 29 I think the

two positions on our is.5ue give a good illustration of these diffe1ent outlooks
at work.
For example, in the app.roacb to history, there are two different
mentalities being expressed. The Gern1ans are attempting to discover the
underlying concepts which emerged in the flow of history, became lost for
various reasons, and now have emerged again. The Roman school appears
to begin with a sense that certain timeless, correct concepts are always
present, and then goes on to uncover evidence of them in every age even
though the people at that time were not conscious of these truths.
Again, the German position admits growth and change within the
Church, and even the fact that for long periods of church history, for very
practical reasons, the true understanding of power in the Church was lost
from mind and a civil rather than religious concept held sway. The Roman.
position cannot accept that the Church would have erred in what they
consider so essential a matter, and point to the assurance of the continued
help of the Holy Spirit as justification for their view.
A final point on how they see history relates to the papal role in
jurisdiction. The Roman school sees from the earliest ages the granting of
jurisdiction by the pope, at least tacitly, and therefore the correctn~ of their
theory that jurisdiction devolves ultimately through the pope. The Germans
discern a variety of approaches, only gradually resulting in the centralization
whereby jurisdiction descends from the papacy.
These two mentalities are also evident in how they evaluate Vatican II.
The council was a ''pastoral'' council, by which some meant it dealt with
the core of what the Church is about and others meant a momentary
concession to the evils of our times but not any sort of theologically or
canonically significant new statement. The German school appears to see in
Vatican II a major policy statement about sacred power, whereas the
Roman school continues to insist the council changed nothing, merely
adapted the expression of timeless truths to contemporary needs.
Interestingly enough, both sides accuse the other of a clericalization of
the Church. The Romans think the
. Germans' insistence on the exclusive
exercise of sacred power by the ordained, who are clerics, is a reinforced

''The Transition from a Cl~icist World View to Historical

Miodednes.s," in Law for Liberty, ed. James A. CoRIDEN, 126-136 (Baltimore : Helicon Press
1967); see also John A . ALESANORO, ''The Revision of Church Law: Conflict and
Resolution," The Jurist, 40 ( 1980), l-26.
29

Bernard

L ONERGAN,

43

ri . i m. fhe Germa o .ect to

:g v rning power for it would ma e ~ tl~
trul laity.
b. Permit me three personal OOu
r lly did . y. First, the council
papal-episcopal relations. Jo terms
really dealin,g with the source of
~1-

a .a .

U,..l.M..U.

..

emphasize that the b hop is no a .

hrist (LG 27). Therefore it rooled
dir~ct sacramental relationship with _,,_

muruon.

It seems to me to be carrying the ~

council itself went, if one were to make a 11~
to all power in the Church, unless one
power. That would be to ignore the oo~ ~aa
are themselves a so.urce of obligatioL...,
meaning of the term, pow.er) io 1l

..

Second, the council presented a ur.s,:

only a typological description .of la
what a lay person does typically (n . .... .
cleric does typically (inv.olvement in
claiming these were hard and .fast
typological understanding the b y
the council did provide for partioipati
Church, whether supplying here
situations. 32
Finally, there is the question of e , ,. ,.
of all the baptized, and the priesth
-~
kind and not just d~gree. But the ronno ~
is that differentiates them "'in . ~n
discussed today. To hold that the dj,, ~.. ~~~ "'"'""
exercise sacred power is one vie
..
po~ible interpretation of the .oonaliar te--.a~t
'L.E.

-h

Giorgio Fatc lANl develops this oo:_ ocpt ...,

tesercirio dei 'munera docendi et regendi',... L& ..41:.~
et dans la socieri. pp. 222-225.
31 See Joseph A. K OMO
A ' .. ...Qea:g,,,
The Jurist, 4 1 ( 198 l ), 422-44 7 ~ be an 'W
develop a more thorough understandiGg
ts"
, , ....._."""'
32. Sec LG 32, 37 ; AA \0, 24 ~ .AG I .
30

\U , .

...,.""

t . ;s

PARTICIPATION OF Ti ff! l.AJTY

433

PROVISIONS OF THE NEW CODE

The issue was clearly joined for the Code Commission. It 1w been
reported informally that by a vote of 52 out of 63 the commission member
voted to permit the exercise of the power of governance by Jay persons,
including lay judges. The only change in the disputed canons was the
deletion of reference to ''power of governance rooted in sacred orde.rs,''
itself a novel concept and one which was difficult to define in practice.

1. Canons 1421, 2 and 274, 1

The final texts show some interesting changes as a result of the review
of the canons by the pope with the team of advisors he put together for this
purpose. The canon on lay judges (c. 1421, 2) has dropped the restriction
to males, so that any competent lay person, man or woman, may be
considered. The canon on offices restricted to clerics (c. 274, 1) remains
the same, with the deletion of the phrase ''ordine sacro innixa'' which
qualified the power of governance.
2. Canon 129, 2

The canon on the power of governance shows quite clearly the effects
of compromise (c. 129). It now consists in two sections. The frrst deals with
clergy; the second addresses the involvement of laity. Prescinding from
some of the fascinating issues touched on in the first section, let me
concentrate on the second, which is to the point of our discussion.
Lay members of Christ's faithful, it is said, can cooperate in the
exercise of this power in accordance with the provisions of law. What do
the.5e phrases mean?
a. "Lay Christian faithful'' is normally understood in the code to refer
to Catholic lay persons, even though any baptized person is a ''christifidelis"
(c. 204, 1). At least in virtue of c. 11, baptized non-Catholie5 are not
bound by our laws, although it could be argued that for sufficient reason
they could be permitted to benefit from them. 33 Canon 204, however, deals

This is done by the law itself in several instances ; for example, the reception of the
sacraments of penance, Eucharist and anointing under certain conditions (c. 844); the
celebration of marriage with a Catholic when permis.5ion bas been given (c. l 124); introd.ucing
a case before a church tribunal, which even the nonbaptized may do (c. 1476); serve as a
procurator or, with permis.5ion, even as an advocate before a church court (c. 1483~
33

witl1 ll (,,hr' tiar1 , atholic o,r not, while canon 205 provides the crjteria
w}J r by 1t1 " c Chri ianb who are Roman Catholics can be determined.
1

"J~.c

distin'-11.ion becomes interesting when qualifications for office are

examined. anon 149, 1 requires that an office holder be ''in EccJesire
oomm uni.<'Jn~: 0 001; tbi& mean full communion? The provisions concerning
the los ot office do not reso,lve this questions; loss can occur because of
lap:;e from the Catholic faith or (aut) the communion of the Church (c. 194,
1, 2). At times, the canons specify full communion as a definite
qualification.; e,g,, (or members of diocesan pastoral councils (c. 512, 1),
r to b.e an advocate in church courts unless the bishop makes an exception
in individual c~es (c. 1483), Does this mean that in other situations a
b.aptized non~atholic might be given an office if the person had all the
requisites for the pom7 This might apply, for example, to the diocesan
fin'1nce officer~ whom the law requires to be skilled in financial affairs and
honest, but n,ot necessarily in full communion (c. 494, 1). However, here
w,e arc touching on, a very complicated question, namely the extent to which
non..,Catholics, though not bound by the code (c. 11 ), may benefit from it,
and the extent to which this permits church autorities the discretion to
involve them in various church activities. That is a topic for another study
altogetht:r, and we must return to our theme.
1

b, '"Cooperate in the exercise of the power of governance'' is the key

element. What does ~.cooperate~ mean here? In the code, '~cooperation '' is
sometimes used to refer to coordination of efforts. 34 At other times, it refers
to d.irect participation in the woTk of another. This can be the sexual
ooopt.~ati on needed to procreate children (c. l 096, I) or the criminal
oooperat1oo. in voluntary homicide or abortion that results in an irregularity
for ordero> (c; 1041, 4); It can be the working together of parents and
teachers (c. 796, 2), or of various members of a religious community with
the director of novices for the for111ation of new members (cc. 651 , 2 and
652, 1 and 4}#More fundamentally, all the baptized are called by the fact
of tb~ir baptU;m to cooperate in the work of building up the Body of Christ
(c. 208).
Coc:>peration is also used to refer to situations where one person is the
princivat agoot and others are co-worke,rs. The code specifies how various
U ~ cc, 2751 ~ I (where it can be imposed on clergy by particular law), 328
(~>eiatU)J~ with <me an.o tho}, 434 (meetings of bishops in an ecclesiasticaJ regjon), 680
CatruJng rd~ in.~:tit11us and betwem them and the secular clergy), 708 (major religious

r;opeti'''" with
f'acul~),

b$~

aoo conferences of bishops), 820 (ecclesiastical faculties with other

and 1274 O 4 (~ financial, institutions with each other).
1

PARTICIPATlO

members of the Church cooperate in the works proper to~ ~i ett

bishops cooperating with the Roman Pontiff, or priests and
cooperating with the diocesa.n bishop, with the parish p1iest, or \iM-..i
otl!ler
specific works in the Church. 35 Cooperation takes on an evaJ ~~
technical sense when used of works in a diocese in support of me mm~
(c. 791 ), works which are ultimately subj:ect tosupervisiun by the pope .,-r"'d
college of bishops (c. 782, I).

'
.,,
\

'\

'~
t~..

.....,

:: J

~1

....

OF THE LAITY

What it means to "'cooperate", therefor<;. can nm the ga.mm: oorn

simple good will and support, to active involvement in the I005t iirljXlltant
functions of the Church (whether preaching the word or running the ceobal
government of the Church). To say that lay pelSODS can "'
" in tire
exercise of the power of governance on one hand avoids the debare abom
whether they can '' possess'' this power without having sacred cmkls,
the other hand leaves open the poss1bility for considerable mvolventmt o
lay persons in the exercise of the po,wer of g.ovemanre..
Does this formula resolve or even address the dispute we ha\~ been
discussing? I propose that it has all the marks of a oompromise tet111,, ,.,.ith
the strengths and inconsistencies that go with such a comp:rom:ise Let me
explain this by exploring how cooperation applies in the. treat11rent of tire
power of governance in this code.
c. The code deliberately equates ''power of governance" l\itb
''jurisdiction'' (c. 129, I), to make clear to those of us bained in an ea.rtrer
way of naming these things what it is treating. However, white it maintains
much of the canonical tradition on jurisdiction, the new code also
introduces some new concepts.36
1) As before, the power of governance can be ordinary (connected

with an office), to be exercised in one's own name (proper) or in the name

Bishops cooperate in the work of the Roman Pontiff through the synod fL serving as cardinals or in va.rious other institutes (c 334). Presbyters cooperate with Ille
in pastoring the diocese (c. 369), training for this in seminaries (c.. 245, 2) and C'dil)lng i! oct
especially as parish priests (c. 529, 2). Presbyters are called on to coope.rate in the s
function of preaching the Word (c. 757), and lay persons can also be called tn cooperare mn-:is
work (c. 759). Parish priests receive the cooperation of parocb.ial Yicars (c.. 54- J ) arxi of
other priests and deacons (c. 519), although lay persons are said to provide ~ rath.Y
than cooperation in these pastoring functions (c. 519). Lay persons ran be ID\U \W
organic cooperation with the works of a personal prelature {c. 296) and. memhefs of S:.'l
~ w
institutes cooperate with the local ecclesial communities (c. 713, ~ 2)36 If we find some difficulties in the concept of jurisdiction, that should oot be a ~:
it is, after all, an ambiguous term. See Gi useppe ALBE.RIGO. " La juridic.tion : reman}tJ.eS terme ambigu," Jrenikon, 49 (1976), 167-1 80.
35

r u Dli\ C'Ai 0 IC A

of a11oth r (vicarious) or it can be delegated (granted to a

perso~

but not

by means of an office) (c. 131 ).

An ordinary is presumed. to have all the power of the office ; for each
office the obligations and rights proper to that office ar.e to be clearly set
fortl1 (c. 145, 2). The law presumes that when people do something in
virtue of their office, they are entitled to do it Delegation, on the other
hand does not have such a presumption with it; the person who has been
delegated must prove the delegation (c. 131 , 3) and is limited to the
mandate for the validity of what is done in virtue of delegation (c. 133).
Delegation can be for all cases and then. it is interpreted broadly the way
ordinary power is to be interpreted. Otherwise it must be interpreted strictly,
although such strict interpretation must always include as well whatever is
nece$ary to exercise the power (c. 138).
''Cooperation'' in the power of governance, it appears, can be the
cooperation of a vicar with the proper ordinary, or that of a delegate with
any kind of ordinary.
2) The new code indicates the power of governance is distinguished
into legislative, executive and judicial (c. 135, I ). Normally all of this is
exercised by the same agents, whether it be the pope or college of bishops
for the Church universal, or the diocesan bishop within the diocese. Usually
they do this with the cooperation of others, some of whom are ordinaries
(vicars) and others of whom are delegates. Not all of this. governing power
can be shared, however, for the code makes specific provision for each type
of power of governance. To determine what ''cooperation,~ in the power of
governance means according to this scheme of things, especially for lay
members of Christ's faith.ful, we have to examine each form of governing
power individually.
a. Legislative power of governance cannot be delegated by a legislator
below the highest authority unless the law specifically provides for this
(c. 135, 2). 37 However, legislative authority is exercised through two types
of ''votes'' - consultative and deliberative. .All \vho are to be called to a
legislative session, whether it be an ecumenical or particular councill or a

An example of this could be the legislative activity of a conference of bishops.

itself is more of an executive body and can issue general decrees (la'N"S - c. 29) onl}i in cat>in
circumstances (c. 455, an application of c. 30), some of which are specified in the oode. Oor
way of understanding this legislative activity of a conference of~ "\\'OUld be shat tbt
itself has delegated legislative authority in these cases.
37

PARTICIPATION OF THE LAITY

437

diocesan synod, 38 have the right to speak there. This is consultative vote or
''voice." The final decision of the legislative body (the deliberative vote) is
reserved by law to bishops in particular councils and synods ; it is left to the
determination of supreme authority to decide who in addition to bishops
may exercise deliberative vote in ecumenical council. 39
I
'

Clearly the lay persons called to these legislative bodies ''cooperate'' in

the exercise of the power of governance, at least by the exercise of a
consultative vote. Those with deliberative vote remain the principal agents.
Having a consultative vote, however, is no mean role, for the process of
decision making relies heavily on the consultative process for effectiveness.40
The new code even highlights the possibility for lay involvement in these
bodies as one of the obligations and rights of Christian lay persons (c. 228, 2).
Do they also exercise an office at such events? An ecclesiastical office
in the new code is much the same as an office in the wide sense in the old
code (c. 145 in both codes). It is any ''munus'' which by divine or
ecclesiastical disposition is established in a stable manner to further a
spiritual purpose.41 The function of those invited to a council is constituted
in a stable manner by law,42 even though it is not exercised in an ongoing
fashion but only when the councils meet. If the position of a diocesan
administrator is an office, however, and is filled and exercised only for those
rare times when the diocesan see is vacant (cc. 421-430), could it not also
be true that members of an ecumenical or particular council, or of a
diocesan synod, hold an ecclesiastical office for the duration of that body? If
so, this could be an example of lay persons holding an office which involves
the exercise of the power of governance with at least a consultative vote, a
possible contradiction with c. 27 4, 1.
b. Judicial authority is exercised in virtue of office by the judicial
vicar, his adjutant, and the judges. It cannot be delegated except to carry out
All of these are listed as legislative bodies in the law : cc. 337, l and 341 > l for an
ecumenical council ; c. 445 for particular councils; c. 466 for diocesan synods ; others besides
bishops can be called to an ecumenical council (c. 339, 2) and must be called to particular
councils (c. 443) and diocesan synods (c. 463 ).
39 See cc. 443, I and 2 for particular councils, 466 for diocesan synods, and 339, 2
for ecumenical councils.
40 See Robert KENNEDY, "Shared Responsibility in Ecclesial Decision-Making," Studia
Canonica, 14 ( 1980), 5-23.
41 This is in keeping with the position adopted by Vatican Il in PO 20. See an analysis of
the implications of the conciJiar positjon in Frans D ANELS, De subiecto Officli Ecclesi.astici
attenta doctrina Concilii Vaiicani II: Suntne /aici officii ecclesiastid capaces? Analecta
Gregoriana 192 (Rome : Universita Gregoriana Editrice, I 973).
38

438

STUDJ

CA (0 ICA

acts preparatory to a decree or decision (c. 135 3). Lay persons who are
appointed to the office of judge (c. 1421, 2) cooperate in the e er ise of
judicial power not through delegation, but in virtue of an office for whose
exercise the power of governance is required. This is in evident contradiction
with c. 274, 1 as it now stands.
c. Executive power is exercised by ordinaries in their own nrun
through vicars, or through delegation. Vicars general and episcopal vic.ars
are to be priests (c. 478, 1); the cooperation of lay Christi,an faithfuJ in
executive power of governance cannot be through this office. Howe\~er.
executive power of governance can be delegated, and this can be either for
all acts or for single acts. Delegated executive power is not attached to an
office, but is given to a determined person (c. 131 , 1). It is an example of
how lay persons clearly can cooperate in the exercise of the power of
governance, for the office holder who issues the delegation remains the
principal agent.
Let me explore this example in greater detail, for it bas som
interesting possibilities. The identity of the person who receives delegated
power can be established in several ways, including the post which on
holds in the Church. So, an office could be established which has attached
to it, in addition to the powers of the office, other delegated powers, even in
the form of habitual faculties which will be passed o.n to the ne t person
who holds that office (c. 132). In North America this has been the usual
arrangement for diocesan chancellors who, in law, are notari and
archivists. In our practice, however, they have enjoyed by habitual faculties
the powers which the law gives to vicars general in virtue of their offi"""""'
The office of chancellor itself does not require the exercise of these p<>\vers;
under the new code it seems to be an office which lay persons n1ay hold as
notaries and archivists. 43 It may be asked whether such persons n1a
cooperate in the exercise of the power of governa.nce through delegated
power, including the habitual faculties usually given to chancellors in m
part of the world. Such cooperation is not in virtue of the office, bt1t of th "
habitual faculties attached to the office.
A similar question could be asked concerning those who hclld th r
offices in the diocesan curia. The bishop is now free to organize the urin

43 I 9 J 7, CIC, c. 372. l required that the chancellor be a priest ; fl<\ $&111ilar r !'ltri\'.t
appears in the new code, except for notaries in cases when the reputation t>f pri~t n\a be tt
stake (c. 483, 2).

PARTICIPATI ON OF THE LA JTY

439

he wishes, respecting the rather bare minimum established in the code.44 If

he organizes the offices on some basis other than episcopal vicars, and gives
by habitual faculties to the various offices the delegated power to carry on
the daily work of the diocese, could these offices be filled by lay persons?
While vicars general and episcopal must be priests (c. 478, I) and are
local ordinaries (c. 134, 2), and so the power they exercise is in virtue of
their office, others as delegates could exercise similar power not in virtue of
their office but in virtue of faculties. Technically this would not be in
coollict with c. 274, I, which considers only ordinary power (that which
comes with an office), not delegated power.

The code also recognizes a variety of consultative bodies in the exercise

of executive power. Some of these may, or even must, involve lay persons
who thereby are cooperating in the exercise of executive power of
governance. For example, diocesan bishops are required to have finance
councils which may include lay persons expert in financial matters and civil
law (c. 492). In so far as pastoral circumstances suggest it, each diocese is to
have a diocesan pastoral council on which, among others, lay persons serve
(cc. 511-512). While these are not legislative bodies, they do exercise
important roles in the executive functions of planning and financial
management, the finance council having such authority as to restrict the
initiative of the executive without its consent (e.g., cc. 1277 on acts of
.extraordinary administration and 1292 on alienation).

3) In addition to the code's explicit tripartite division of the power of

governance into legislative, judicial and executive, there seems to be a
further distinction regarding power which is implicit in the code. It is the
question of administrative power, which may be executive (that is, a fo11r1 of
gover 11ance) or non-executive.

The distinction can be most clearly seen in terms of canon 1400, the
first canon in Book Seven on procedures. The second section of that canon
restricts the bearing of controversies which arise from an act of administrative
power (" ex actu potestatis administrativre'') to hierarchical recourse or to
tn administrative tribunal. Hence, the diocesan tribunal is not competent to
iear such 'cases. Yet in canon 1413, which deals with the tribunal where a

Canons 469-494 require a vicar general, chancellor, finance council and flSCal officer ;
11 other positions mentioned in the code - episcopal vicars, moderator of the curia, and other
IOtarics - are optional. Moreover, the bishop is given the responsibility for organizing and
raming persons lO the curia (cc. 469-473), so has the authority to develop whatever
!fP 0 ization is needed for his diocese so long as be respects the bare minimum required in the
44

ode.

440

STUDIA CANONICA

party may be cited, a tribunal is said to be com t

.
(''.
.
pe
ent
in
cases
h'
.
.
.
concern a dministration in causis qure circa admin t .
w tch
'f . . h
. .
.
is rat1onem ve
,,
i it is t e place where the administration was conducted ('' b' ~~ntur )
1
ta t'') I '' d

u admmistr t'
ges. es . s. a min1stratio'' the same as an ''actus potestatis ad .a.1
trativce''? I think not.
mmis..
We have here another evidence of compromise It reall

f
. .
.

Y 1nvo1ves the
vestiges o the schema on adm1n1strat1ve procedure.4s What is left f
h
t

f
d

o
that
sc ema are _wo mentions o a m1nistrative tribunals,46 and the co
. .
.
.
ncepts on
a elm ini.strat1ve acts in Book One. Such acts can be issued by a person with
executive power (c. 35). Hence, some administrative acts in the Church
ed
h
h
.
are
.
.
1im1t to t ose w o exercise the power of governance, at least in its form of
executive power. These are the ''actus potestatis administrativ~'' of c. 1400,
as is evident from the mention of administrative tribunals in that context.
They are clearly acts of the power of governance.
The other form of '' administratio '' appears in Book Five on the
temporal goods of the Church. Title Two of that Book concerns the
administration of such goods, a responsibility which pertains to the
individual who immediately governs the person to whom the goods belong
(c. 1279, 1). These administrators may be either clerical or lay (c.1282),
and their responsibilities are spelled out in law. They are subject to t~e
supervision of the diocesan bishop if their juridic person is subject ~o . bun
(c. 1276, 1), but they act in the name of the juridic person they administer,
10
not in the name of the bishop. This kind of "good stewardship" seems . ~
the ''administratio'' of canon 1413, 1. It seems to be a power which is no
strictly a power of governance.
ed as an
However this kind of administration now can be organtz
. oc
'
.
.fi
I0 nger requ1rw
ecclesiastical office. The revised defin1t1on of of tee no
be
anfid caanncial
Participation in the ecclesiastical powers of orders or jurisdiction,
Th d.1ocesan in
composed of non-executive administrative power.
e
hich each
administrator or econome is a good example of s~ch an

~.ce :ntion not

diocese is required to have, an office which receives ex~licit ~canons on

only in the canons on the diocesan curia (c. 494) but also in t~es additional
the administration of goods, where the econome can be given
duties by the bishop (c. 1278).
.

45

Genere (Vatican
Schema Canonum De Procedura Administratzva in

City: Typis

Polyglottis, 1972).
escinding the ap
0
46 One mention is here in c. 1400, the other in c. I 49, ~ 2
r
' - -Ir. -- ~ ' " "'"",..,"'" t11 hA 1~rli-Pti thP nPr~TV aualificatlOflS.

. ~eot

pDJ01.1''

\ Tt 1P
...~.n

t:

J duti

. .........t ~uri

:ati ~ ,

no . Of

441

TUE l ITV

erase

.. th e.
0
e . hop"' mpervisory
u "ea to him (c 1276 I ). This is an

m the

sense. However. a110t1

\ \ ~
~~
~t
the . ecuti e aulhori nf the bishop to issue
iu t. 't\ l :' t tt in t i\ 1tati n f the ta which bmds admioislrators
. ~ub~ t t ttttt\..
uld th i h p delegate the econome to issue such
\\\st u )ti )\ ~ F X} \\ital
id earlier on the ahitity to delegate executive
U:\lt\\ >1~t ~, it ~ ul " l\ ll
tt,d, and jf dre eco.nome is ,a lay person 'this
~ u\
.t\ tl\ ~ 'Jtli t . f I.a pefS-0 , cooperating io the exercise of the
""

tltitiil"

n n,-e; .ecuti

.nt t menti .n hriefl on lay coopera~ion in the

"'""'nil\- religious. C21non 606 .applies the law equally
. ._. . . . tt1e.t1 tt
men wil~ tbe contrary is apparent from the
\\~1tu:
f th . nriatter. In delermiffi.ng the authority .of superiors
\Vitl1i11 itl~titu~s f n~ .3;ted life, the con.text does not seem to require a
distil\ ~ti :\ ~ , t~ 1 tl\ . l rutd '1V men, and the (}n{y distin:ction the canon
tll ~:;, i; , ~t\
. "cal and la . incstirutes pr-o ding for ~ntemal forum
vvv~t~~ia; ti . l .. Y' tllfilt . tfl
cried reiigiuus ins:titutes .o f pontifical right
-
.
tt1er\N _ ult reijg\.ous su,peri.ors are to follow the
pre '. ti 11' ~ . \1 iing e. tern.al forum gov-emaooe found in oc. l 31, 13.3.,
l --144 . ..
, ~. - th:it i , the canons discUS'Sed earlier about ordinary
ani d ~ ttOO
'~ r, and the e. eroise of exeouti e power.
4

. tttul

n I

.e is appt .og to la per.sons ho are s11periors in

m ~ . ~i.ted life th canon; n the po .er .o f governance. They
. er it\ virtue f the office die hold ,as superior. This w,ould
_"11trnry t t.h e provt"'i ns of . 274.~ l as it nDw stands, but
mad sen under its former ording in , hich ~he JX>Wer of
. 11 t
~ itt sacred rder was nm restricted to clergy.
th -

in tituw

V,P.

d. '' I.tl a tdan \~ mth pro . ions of law ' is another compromise
ph~~ ~ lli 1 .appears n t
nl~ in atn ,n 129, but frequently in the
d \Ul1ents f ,tticnn I(.. he council resorted to this or similar ph~ in
Q\~

re of situati . . v here further . pecifiration was left to others. So

here~ the ~pecifi(S of h v ltt .;
n. perate in the po er of governance
i n t "pclled ut,,. &rld in eed it seems that neither ttbe German nor the
Ron1ru:1 sch
iinn.t.ed ir1 tire final nr1promise.
ns

Previ us drttlls
exc.r i.~ f tll PQ\~
_._..ri tiai1 ltt . pers n'. ~

~th~

ca.tl: tl had peoified that to the extent that the

, f . vemance did oot rest upon sacred orders,
uld ha. that ~ e 'Which the \upreme authority of

'

the Church conceded to them in each instance (''singulis pro causis''). 47 The
Germans were upset with the concept that some exercise of the power of
governance would not be rooted in sacred orders, the Romans pointed to
the po wer of the supreme authority, especially as exercised by the pope, to
do this.
T he final version of the canon is much simpler. It does not specify on
w hat basis such cooperation takes place, nor does it restrict such
cooperation to those instances when the supreme authority itself grants it.
Instead, the canon refers to the provisions of the law. At times the law calls
for specific authorities to intervene in order for lay persons to cooperate in
the exercise of the power of governance ;48 at other times the law itself
specifies this participation. 49 Here is where it seems to me the compromise
has gone beyond what either side in our debate anticipated, and may point
to the need for a rethinking of the basic categories of their discussion ; I will
have more on that shortly.

3. Summary
The new code does provide for lay persons to cooperate in the exercise
of the power of governance. While c. 27 4, 1 restricts to clergy those offices
for whose exercise the power of governance is required, in practice this
restriction has not been observed elsewhere in the code (e.g., on judges,
c. 1421 , 2). Moreover, given the new definition of office (c. 145) there are
vari.ous offices whose exercise may not even require the exercise of the
po wer of go vernance and which lay persons can be given without question.
To such offices could also be attached habitual faculties whereby such lay
persons would be cooperating in the power of governance as delegates.
The application of this new technical meaning to various situations in
the Church is goin.g to take some careful work. The provisions of the code
were written when a different distinction was presumed, namely the
distinction between the power of governance which required the use of
sacred orders, and power of governance which did not require sacred orders.
That distinction was expressed in c. 274, I, but not in direct terms of using

1977 Schema on General Norms, c.an. 96 and 1980 Schema, can. 126.
For example, the supreme authority is c.alled on to determine whom else to invite to an
ecumenical council ; the conference of bishops and diocesan bishop must act before a lay
person can be named as judge on a tribunal.
.
.
49 For example, the law itself grants the cooperation with consultative vote 10 partic~ar
councils and diocesan synods once the decision is taken to convene such bodies. By elecuon,
religious superiors enjoy the power of governance appropriate to their office.
47
48

PARTlClPATIO

OF TH

LAITY

443

the power of orders, but rather in the more theoreticaJ terms of rooting the
exercise of some power of governance in sacred orders. When this wording
was attacked, a.nd in a compromise was dropped, it left the rest of the
provisions of the law about offices which lay persons could hold without an
adequate theoretical foundation so that they may now seem to be contrary
to the current restrictive wording of c. 274, l.
For example, here are places in the code where lay participation in the
governing function of the Church is possible, and seemingly in virtue of
office:
1. As members of consultative bodies (c. 228, 2), specifically at
plenary and provincial councils (c. 443), the diocesan synod (c. 463)
diocesan pastoral council (c. 512), parish councils (c. 536), the finance
councils of the diocese (c. 492) and of the parish (c. 537), and other
finance councils (c. 1280), councillors in religious institutes (c. 622)
and members of general chapters (c. 631, I - although here
deliberative rather than consultative vote is involved).
2. Holding various administrative offices: diocesan chancellor
(c. 483, 2), notary (c. 483, 2), fiscal officer or econome of a diocese
(c. 494, 1) or of a religious institute (c. 636), general secretary of a
conference of bishops (c. 451) and, according to some, papal legate
(c. 363).50
3. Holding executive offices as superiors in institutes of consecrated
life (cc. 617, 717) or as novice director (c. 651 ).
4. Holding judicial offices: judge (c. 1421, 2), ponens (c. 1429),
auditor (c. 1428), asses5or (c. 1424), promoter of justice (c. 1435) and
defender of the bond (c. 1435).
The question was raised earlier whether the compromise formula in the
new code resolves the dispute between the German and Roman schools. As
a matter of fact, it seems to me to have left us in a state of some
contradiction. There is clearly a contradiction between on the one hand
canon 274, 1 which says that only clerics (''soli clerici'') can obtain offices
for whose exercise the power of ecclesiastical governance is required, and on
so PAUl Vl in his motu proprio Solliciludo omnium Ecclesiarum, 24 June 1969: AAS,
61 ( 1969) 473-484, restricted the appointement as legates to a church to clerics, but permitted
lay men to serve as legates to international organizations and meetings. If the motu proprio
~ses now that the law on legates has been reorganized in the new code (c. 6, I , 4), the
restriction would no longer apply and lay persons could also be appointed legates. Giuseppe
Dalla Torre seems to lean toward this opinion in Considerazioni prelin1inari sui laici in diriftf)
Ctlltonico (Modena : Mucchi Editore, 1983), p. 78. Personally I am of the opinion the motu
proprio remains i.n effect as particular law for legates of the Roman Pontiff.

444

ST DI

CA 0

lC

the other hand canons 129 and 228 which pro ide for the p ibilit t' I
persons holding office and cooperating in the exerci e f th power f
governance. At times their cooperation is not in virtue of an ffi . but du
to delegation; but at other times the ''provisions of law,, mentj ned in n.
228, l do permit lay persons to hold offices for whose e er i th po\ver
of ecclesiastical governance is required.
REMAINING ISSUES

Let me conclude by noting three issues in need of resolution be~ re th

compromise formula in the code will be a welcome one in our canonical
tradition. The issues are these: first, how can the contradiction I ha e ju t
noted be resolved? Second, what is the source of power in the Church?
And third, how indeed should ministry be organized in the Church? I d
not pretend to have answers to these questions, but let me sk t h som of
the elements involved.

1. Resolving the Contradiction

Some attempt to resolve the contradiction by readi11g canon in wa
that do not seem in keeping with the texts. For example.. Ghirlanda
proposes to resolve it by giving a different reading to canon 274, l than
the words ''soli clerici ... possunt'' would seem to imply. He takes then1 to
mean that in virtue of ordination, only clerics are fpso facto able to recei
offices which involve the exercise of the power of governance, in k ~ping
with the ''habiles'' for clergy in canon 129, I. The capacity of lay personfor office is affirmed only generically in canon 228, l , arld in . ~
particularly under the new definition of office in the code th.er ca11 ~
offices which do not entail the exercise of the power of gover11ance this
generic statement applies broadly. However, it also includes th pas it)i\it
of lay persons receiving offices which include the power of g()VCl'tll\O"'v.
provided the exercise of sacred orders is not required to impt n1e11t th
office. 51 On the other hand, the impressive com1ncntary whicl1 tlppcared ln"t
year in German makes it clear that the co.mpromise forn1t1lEl in ca11on 1 9,
2 is not a doctrinal statement and doe.<; 11ot close off the positiot1 thl\t onl
those in sacred orders could exercise the single sacred power of tl1c Cl1t1r h,
See Piero Antonio B ONNET and Gianfranco GHtRLAN t)A, De (.'hri.~t(fidelil111.,: lJt{'flftlttl
iuribus, de laicis, de consociationibus, Adnotationes in Codicco1 (Romo : 1' i(\()f{ftlt11l l'.U. l.,
1983), pp. 63-66. A similar position is taken by Jlaan lgnttcio ARR IEl'1\, i1\ the C<"\Jllitlt' lllllfY b'
the University of Navarre, Codigo de derelho ct111onlco. eclic/011 a11otMlo, ed. llcdr\) l t ~ll ftlllA
and Juan Ignacio ARRIETA, p. 130 (Pamplona : EU NSA, 1983).
s1

445

wl1I 11 i11 Juil tll p~JW f gf gov rnn11 ,~2 So far as these authors ,are
ooncer'tted, Jay ' J f)Jl' tl Ip Ir, tl1 " r is. of the power of governance, but
do tJ{)l x rciu it Lil in Iv ; tl1 provlRlo for Jay persons to serve as judges
i b~cn w cvtJtrf-l<1f l fl tlJflJ, must b r solv d, possibly by an authentic
in t~rpteta lio11 of tll' -oll .~ In tJ1 m ai1time, tl1ey give a different reading to
the terrrJ of tt1c 'ant>l tllan tll obviot1s se11se of the words, taking the
ca11on filj ptfJviuirJB ft)r a Jay j U(lg in tile sense of a{;ting as an assessor rather
t!1ar1 a j u<.lgc trictly Hp akit1A,
Anotl1cr wuy to r solv t11e contr1tdiction is to faJI back on the
principlca for tJ1e interpretation of la.w) particularly canon 17, a.nd begin to
work a variety of (}xplu.11atio11s, But I think it would be healthier to admit
that as u result of a compromi~e, we l1ave a contradiction in the law. This is
not unknown in tile: p.rcscnt code. Consider the plight of permanent deacons.
As a result of otJ1er ltlflt rnirJutc char1ges w'hich deleted the mention of
remarriage for wido,woo deacons, the norm on continence for the clergy was
modified to oblige even tJ1em (c. 277, 1). Theoretically, married deacons
break the law every time t~1cy tnake use of their marital rights I Of course,
the code d(Jes not Lttkc away acquired rights (c. 4), so the solution to that
prt,blem has not 'been so difficult a..'i our present one.

Jn eff~1, J am su.ggcRting that in regard to the participation by lay

pers,,ns in the power of governance there is a dubium iuris as a result of our
compromise, such that disqualifying laws do not bind (c. 14) and canon
274, 1 docs n.ot impede lay persons from cooperating in the power of
govern~incc even by holding offices such as that of judge.
2. Source of Power In the Church
1n effect, we are back at square one. The source of power remains the
underlying problem, and that jssuc is tied up with even more complex
ones on lh.e understandjng of the Church itself. There seem to be three
positir)ns currently competing with one another.54
"rhe first is an institutional emphasis which continues to derive all
jurisdiction from the pope through canonical mission. This is clearly evident
in the studies 'by Stickler and Beyer. Orders an.d jurisdiction are separate
See Jo,cph l..181 t , et al., l l andbuch des katholl'ichen Kirchenrechts (Regensburg : Pustet,
J91S3). article,., by Peter K RA M ~H, 11 , Die gcistlichc Voll macht," p. 127, and Winfried
A YIAANf;, ~ 18. Die Tr!1.gcr kirchlichcr Dienste," pp. l 93 195.
53 (Jeinrich FLA'Ff!N, ibid , p. 986.
'4 Sec Edward .J. K tJ_,MAR'fJN, Lay Participation in the Apostolate of the Hierarchy," The
Jur!Bt. 41 ( 198 J ), 343-370.
:JZ

I)

powers, but the unity of the Churoh is maintained 'because these power
come from Christ through the mediation of the 83(,~ament of order and the
granting of hierarchical communion by the pope*

The second approach attempts to locate the source of power in hritt

and to relate more immediately th,e one who holds power with hr'i.trt. That
relationship is assured through sacramental otdination1 and there is no
power in the Church except that sacred power which comes through
ordination.
A third approach criticizes the first as failing to take 8'-~io'1~ly the
teaching of Vatican II on the essentially religioltS nature of the C1lurch and
its power, and criticius the second view for being so focused in on C"'briRt
that it loses the perspective of the action of the Spirit t'hrolJgh charism and
1
grace. It calls f'or a m()re trinitarian view of '. od action in the Church, and
locates the contact with the Lord in more than the sacrament of orders,

Whether any of tht~ approaches is adequate to explain.i11g power in

the Church can be questioned~ We are dealing here with a m.ystery, tbe
mystery of the Church and the mysu.,,~ of God' action in ''ur midst. We
are. also dealing with a very compfe'x concept, that of ~power." Power is the
ability to produce an effect. But i:$ power a thing which HOmcc,ne poo;esse ,
or is it a relationship am ng person in a group '/ff It oouJd well be that by
focusing on such power que9tions, and pccifically '>n tbeffe w; internal to the
Church, we miss the more fundam;ental question, the purf)Offe for Huch
power. Would taking a dlffere-nt apprO'deh w understanding the relationship
of Church an,d world, of mi!~ion and g 'Vernance, provide a mclre effective
perspective for addrM~ tbe!se . 1 ~ 'I

3, Organization of Mln/JJtry
f have not m~ntioned itt a11 th~ rathtr ~iartJing lnn<;vatj0118 in the rode
relative to fay ir~v<)lverocnt Jt1 JYar' h and ~umental mini ~ry.~ -~undamen
tafJy aJ1 power ir1 tJ'Jt? nutC . f, ~ k>raJ, fi)f it J t.;tJrj ,t Wh() pW)torS the

s1 Bven the rt.it te <A W-...ttrlt~I p<> r1 1 ~ '11tJYdtPA ~1rJt1n~ phy ~ ~t~. wMiher ,,f t,h.e '4wave..

01 olthe "'p~rtfcl~ff 0t<Jt'> ; a11'J l~~tl11tv

i1~.l1ffJ"~ t111/t1t; ~~j t t1 ~ lfl1JJ vet ,; d ff.erwt pet~~ve.

Ori P<.>~11eJ atn1-,1tg t111111~ ;:,, (i'lgfllt ratttlft~ V.)j tJy., ,~JfAJt W"-1/ t>; ,lt1h,11 K.t1tneth fiAt.ff~Aml,
11te A11a11.Jmy o_/ / i11Wet (l'AAitf/1 : ff1,.~,-t1ni }'(A~fttl11 t .J1111r1MJ-y, 1'1~3J.
~'6 See~
t:za~11p11;~ Ut. ~, ..! , ~ 2 'vtt~YJl.#1
, , tA '11f1n1u1;'- ir,:, ~1lthl1ut ~ f}lrjsb priect);
230;' 3 (V&IW>tJ~ o/.!.Aaf rt1tt1 ~llJ'A. #ltl;,1 ;111#-N~ ffjlj lhifl . !I ,.,, tW: V/,11'1 1 JlltAUftft-8 ir1ei liturgjal
prayer; t<rt1ft,,r1it1g tn.ptJs:r11', (ti~ 1t-J, 11111~ tt~ l 1Alli1#J "} , JI j (11~1tJlne at roarrJJtg~J ; 1168

f,,,

( :t1f1r1i~f.-,ttttN e~t ,1:.111nJ11k

t1t.'1:ttlfitt~ l1J1tk;1~k., Y

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p, RTlClPATION OF THE LATTY

447

l1t1rc.ll thro\1 . ll th" three mz1nera of teaching, sanctifying and governing.

La ~ rson. ' ho take on these pastoral roles may be considered to be
pernt\n, i11 t,h ~ po\ver of governance in a broad sense, and even strictly
l'O tll xtent they are given fact1lties or delegation. However, their pastoral
invol un1 tlt rai" ~ seriot1s questions about the organization of ministry in

the

l\Urcll.

First, if lny persons are admitted to such central roles in Catholic life
ev tl be<; \tlS of e111ergency sitt1ations, will it ever be possible to draw the
line a11d d "O)l them an active voice in church governance? The problem is
ito t so 111u 11 their inclt1sion in councils and synods, their involvement in the
adt11i11istration of goods or the decision of tribunal cases. The issue will be
\V11ether the Cl1t1rch can rely so heavily, as it already does, on lay persons to
contint1' its life at the parish and diocesan levels, and expect to deny them
nn effective say i11 policies that govern that life.
..
Seco11d, given tJ1e increasing shortage of clergy in relationship to the
.nt111tbers of Catholics, wl1at ought to be the proper involvement of clergy
ru1d of ltiy persons in tl1e governi11g functions of the Church? There are
three co1npeting tensions here. On one hand, there is a move to increase the
freedom of priests for sacramental ministry and so to involve lay persons in
positior1s which were formerly exclusively clerical domains. On the other
hand, there is a resistance to isolating the clergy in sacristies, so to speak,
and tl1erefore a desire to spread the sacramental work out as well. Finally,
there is the pressure, especially in the new code, to involve priests in key
administrative and judicial tasks (e.g., vicars general, episcopal and judicial)
which could produce a bureaucratic kind of clergy, leaving pastoral work
to lay persons. If we are to be realistic about the ministerial situation in the
future, ought we not to begin now with serious planning as to the relative
placement of clergy and lay persons in these various positions?
Finally, there is the question of adequate preparation of lay persons for
such roles. To cooperate in the power of governance means people should
know something of what they are doing. The code calls for adequate
preparation before a lay person undertakes church service (c. 231, I). Most
resources for preparation of persons for involvement in the inner life of the
Church have been concentrated in seminaries and novitiates. That is where
.major commitments of person.nel and financial resources have been made. If
lay persons are to cooperate more actively in church governance, even in a
consultative role, the Church will have to be prepared to provide them with
adequate preparation. We will also have to face the question of financial
support (c. 231 , 2), but that is a question for another day.

t,f 1. ~lf

th participation of the laity in the

f ti
11 by . pl ring the issues which were raised
~- urL of d.rafting the code, examining how the
qt1 sti n nd th n proposing some of the issues which
r tin t< I : tld
d. I ly th cod has opened as many are.as of
.taJtly . it i 'y 1, v r Iv d. But th resolution of these issues will ~call not
' Jy t( 1 t < i ~ l
i r h and dis u ion, but for the collaboration of
11 ( Jt irt.r1s ~ n J, xp ri n d . hristia11 lay people if we are to achieve an
ff iv i11 ~ rti
:t ti
d in th lif of the Church.
I J ulv

I t

. ddr ..

Rev. James H. PRovosT

Department of Canon Law
Catholic University of America
Washington, D~C, 20064