Karambai S. Sebastian
Canonical legislation regulates the life and mission of the Church, the duties and rights of her members and all that is useful and necessary to her visible structure. As the Church is to be rooted in a “particular and indigenous” manner (AG, n.6), so also her laws would be able to touch the way people live and organize their lives, the very culture in which they express their values and beliefs.
Being fully aware of this need, the 1983 Code for the Latin Church and the 1990 Code for the Oriental Churches have, on several occasions, mandated local law-making taking into consideration particular conditions and circumstances. As a matter of fact, two of the ten guiding principles o he revision of the Latin Code emphasized the need for evolving particular laws. Principle n.4 affirms that the power of the diocesan bishop is to be placed in its proper light, reducing the number of issues reserved to universal authority and restoring the bishop as pastor serving a particular church with all the authority needed to do this. Related to this is the principle of subsidiarity (ple.n.5) which provided a further rationale for decentralizing the Church’s legal structure.1 After giving his approval t these guiding principles, Pope Paul VI stated: “We are very much ready to accede to the expressions of legitimate desires, that the local Churches may have power so that they are allowed to play a fuller role and that their own special traits, needs and demands are duly appreciated through the proper application of the so-called ‘principle of subsidiarity’. The principle surely needs to be both understood and explained in theory and fact”.2 The same principle of subidiarity has also exercised great influence in the revision of the Oriental Code of Canon Law. A part of the approved guiding principle reads as follows: “The new Code should limit itself to the codification of the discipline common to all the Oriental Churches, leaving to the competent authorities of these Churches the power to regulate by particular law all other matters not reserved to the Holy See”.3 Promulgating the same Code, Pope John Paul II in his apostolic constitution Sacri Canones intends that “those who enjoy legislative power in each of the Churches sui iuris take counsel as quickly as possible by issuing particular norms, keeping in mind the traditions of their own life as well as the teachings of the Second Vatican Council”. The Supreme legislator has therefore specifically intended to provide ample scope for ius particulare. Particular laws enacted by a diocesan/eparchial bishop for his territory are especially pertinent in complementing the common law and accommodating its provisions to distinctly diocesan pastoral needs and circumstances.
In this paper we first briefly explain the nature of the Episcopal office from which proceeds his legislative power and then we have attempted to show how this legislative power is concretely exercised within the provisions of the Code of Canon Law.
1. Cf. Communicationes, 1 (1969) 81-83).
2. AAS, 61 (1969) 728.
3. Nuntia 30 (1990) 53-54.
A: LEGISLATIVE POWER OF THE DIOCESAN BISHOP
a) The Nature of the Episcopal Office
The conciliar rediscovery of the Church as the Mystery of God and the consequent recognition of the many Churches within the one Church are fundamental to an understanding of the Episcopal office. A diocese in which the one, holy, Catholic and apostolic Church of Christ truly exists and functions (LG, 23, 26; Cd 11; c.369) is a portion of the People of God entrusted to a bishop. The diocesan bishop therefore participates in the inner mystery of the Church in a unique way (LG. 21). The diocesan Church is not to be seen as a mere administrative unit of the universal Church nor its bishop can be viewed as a mere vicar of the pope.
Bishops succeed the apostles by divine institution and are constituted pastors of the Church (LG 20). The Episcopal office is sacred in terms of its origin, content, finally and manner of conferral. Bishops are intimately related to the Pope and somewhat dependent on him as head of the Episcopal college, yet their pastoral governance power is derived ultimately no from him but from the Holy Spirit. It is this divine origin which sharply differentiates the source of ecclesial power from the human origins of power in secular societies.
Lumen Gentium n. 21 further articulates the fundamental and most important affirmation about the sacramental nature of the Episcopal office. The bishop’s munus of teaching and governing, like that of sanctifying, is conferred ontologically through the sacramental act of Episcopal ordination (c. 375).
Along with this sacred character, Episcopal office has also the characteristic of being personal in its actual exercise. The power of governance received ontologically by episcopal ordination needs to be actualized concretely through canonical mission (LG 22). Such a mission can be granted only by those with ultimate responsibility for the Church’s universal evangelization effort. i.e. the college of bishops or its head the pope. The bishop of the particular Church is in hierarchical communion with the pope, recognizes his authority and depends on him in the exercise of this pastoral ministry. In this way he strengthens the unity of the Church I faith, worship and communion of life.4 Nevertheless, he governs his diocese not a a representative or delegate of the pope, but as ambassador and vicar of Christ (LG 27). He serves as the visible head and foundation of the diocesan Church’s unity.
4. Cf. J. HERRANZ, “The Personal Power of Governance of the Diocesan Bishop”, in proceedings of Canon Law Society of America, 49 (1987) 16-34.
For this reason the bishop possesses in himself all the power (potestas plena) necessary for the exercise of his pastoral ministry. This power is described in can. 381.1 (CCEO c.178) as ordinary, proper and immediate (LG. 27).
Episcopal power is ordinary. It pertains to the office by the law itself (c.131.1) and is not delegated by any higher human authority. Episcopal power is therefore a stable power, as the office attached to it is stable. And it is complete power, i.e., it extends to all the realm of competence in which the diocesan pastor is required to exercise his Episcopal ministry as a teacher of the faith, as a dispenser of the sacraments and as a head and leader of the diocesan community. Only by way of exception certain matters are reserved by law or papal decree to supreme church authority or to another authority (e.g. Episcopal conference, auxiliary bishop with special faculties etc.).
Episcopal authority is also proper. It is exercised in the bishop’s own name and not in the name of another, namely, the pope. Such “proper” power means a preeminently personal authority exercised by the bishop in his diocese, a participation in the power Christ conferred directly o the apostolic college, to which the Episcopal college under papal leadership had succeeded pari ratione (c. 330). Personal power does not mean independent power. Because the bishops exercise their power, as the Apostles already had done “together and under the authority” of Peter, whose successor “retains supreme ordinary power over the whole church” (CD 2).
Finally Episcopal power is immediate. It is exercised directly vis-à-vis the faithful of the diocese without any need of an intermediary figure. Nevertheless, the exigencies of good government and a respect for the gifts of all believers generally suggest utilizing the talents of vicars, pastors, and other diocesan and parish leadership figures in pursuing the Church’s mission.5
b) The threefold Division of the Diocesan Bishop’s Power of Governance.
Although ecclesial power is built up in a unified system, there is a genuine differentiation of functions somewhat reflecting civil law concepts. Accordingly, power of governance in the Church is distinguished into three categories such as legislative, judicial and executive (c. 135; CCEO c. 995). But there is no true separation of powers as in secular governments. In the democratic state, the threefold division of power is understood as mutual control and balance of social forces. The Houses of Parliament exercise legislative power in a collegial way, inasmuch as they represent the people from whom originates such power. Executive power resides in the administrative bureaucracy, while the court of law possesses judicial power at various levels. Both bureaucracy and the court act according to the norms and power that the people themselves have entrusted to them. In the Church, on the other hand, power comes not from the people but from God. As a result, concentration and exercise of power differ radically. In the diocesan church the diocesan bishop is endowed with all the three powers in his person. Can. 391 (CCEO c.191) tersely articulates this fact:
5. Cf. T. J. GREEN. “The Pastoral Governance Role of the Diocesan Bishop: Foundations, Scope and Limitations” in The Jurist, 49 (1989) 471-506.
“§1. The diocesan bishop is to rule the particular church committed to him with legislative, executive and judicial power in accord with the norm of law.
“§2. The bishop personally exercises legislative power; he exercises executive power either personally or through vicars general or Episcopal vicars in accord with the norms of law; he exercises judicial power wither personally or through a judicial vicar and judges in accord with the norm of law”.
As we are concerned only with the legislative power, let us briefly explain its meaning.
C) Legislative Power of the Diocesan Bishop
As we have stated earlier, the bishop’s legislative competence is a meaningful indicator of his legal-pastoral autonomy. In the diocesan church legislative power belongs solely to the person of the bishop; it cannot be validly delegated by him to another unless the law expressly provides otherwise (c. 135. §2). As the sole legislator for his Church, the diocesan bishop can issue norms binding his faithful. The only restriction is that he cannot validly pass legislation contradicting the universal law (c. 135.§2). In other words, he cannot permit something which is prohibited by the common law, nor prohibit something it permits.
The bishop’s legislative autonomy seems maximized also because of the more restricted legislative competence of particular councils (c. 445) and of the Episcopal conferences (c. 445).
Particular councils, which may be plenary or provincial (cc. 439-446) are greatly in disuse in the Latin Church. They are replaced by the Council of Bishops mostly on the regional basis. Although the Council of Bishops has legislative power, the entire regional Church represented by clerics and laity does not participate in it.
The Episcopal Conferences are not legislative bodies. But they have legislative competence on those matters specifically determined by law. There are twenty-nine instances in which an Episcopal Conference has to issue general decrees.6 Such decrees have binding force only if two-thirds of the members enjoying a deliberative voice approve them. Further, these decrees have to be reviewed by the Apostolic See before they are legitimately promulgated (c. 455, §§ 1-2). The general decrees that are promulgated by the diocesan bishop need not be reviewed by the Holy See.
B: THE EXERCISE OF THE BISHOP’S LEGISLATIVE POWER
a) Particular Laws
Laws that are enacted by a diocesan bishop are called particular laws. According to the definition of the Oriental Code included in the designation ‘particular law’ (nomine vero iuris particularis) “are all the laws, legitimate customs, statutes and other norms of law which are not common to the universal
6. Cf. J. H. PROVOST, “Title II. Groupings of Particular Churches”, in The Code of Canon Law, A Text and Commentary, (eds.) J. Coriden, -T. Green, -E. Heintschel, NY, 1985, p. 370.
Church nor to all the Eastern Churches” (c. 1493, §2). Within the framework of the common law of the Church, the diocesan bishop can exercise his legislative ministry by:
– Issuing general statutes
– Promulgating statutes
– Authentically interpreting laws
– Approving customs and
– Dispensing from the laws.
i) Issuing General Decrees
The Latin Code provides for various types of decrees. These include general decrees, general executory decrees, instructions and singular decrees. Of these, only general decrees are “true laws (proprie sunt leges) and are regulated by the provisions of the canons on laws” (c.29). they are issued by a competent legislator. Can. 30 states that a person with only an executive power cannot issue a general decree unless expressly authorized by the legislator in accord with the norm of law.
The Code done not define a general decree. However, in accordance with can. 29, two properties determine a general decree: first it should be a “common provision” and secondly it must be given to a “community capable of receiving a law”. It is not meant for an individual or group of individuals.
A general decree must be drawn up and promulgated according to the norms concerning laws. The manner of promulgation is determined by the diocesan bishop. He may use the diocesan news letter or another mode of communication. A general decree begins to oblige one month from the date of promulgation unless a different period is prescribed in the promulgation (c.8, §2).
A general decree is to be interpreted as a law. It can be further specified by a general executory decree, a decree which does not set a new law but which does specify how the existing decree is to be implemented. Instructions are another way in which general decrees are further specified. They are issued on behalf of those who have executive power and who are responsible to see to the implementation of the law and indicate specifics as to how the law is to be put into practice.
Issuance of general decrees by the bishop is an effective way of local law-making to address issues immediately, to change them without additional formalities and to provide for the specific adaptation of general Church law to conditions within a local diocese without much delay.7
However, general decrees are not intended just to be “emergency measures”. The Latin Code has prescribed the need for issuing general decrees by the diocesan bishop on several occasions on a long term basis. The following samples could be quoted here:
– Norms for the maintenance of the acts and documents of the diocesan archives (c. 491).
7. Cf. P.V. PINTO, (ed.), Commento al Codice di Diritto Canonico, Roma, 1985, p. 28.
– Catechetical norms for the diocese (cc. 775, §1: 777) with due regard for pertinent rescription of the Congregation for the Clergy (Pastor Bonus, art. 94).
– Liturgical regulations which are binding on all for the Church entrusted to the bishop’s care (c. 838. §4).
– To fix a different age for the sponsor at baptism (c. 874, §1, 2°).
– Norms for the notification of judicial acts (c. 1509, §1).
Besides, the CBCI in its Nagpur meeting held in Feb. 1984 dealt with 11 points for local adaptation and legislation. Out of these, the following are left to the legislative competence of the diocesan bishop:
– To entrust the functions of the College of Consultors to the Cathedral Chapter (c. 502, §3).
– To adapt limited tenure policies for parish priests (c. 522).
– To fix a later age for the reception of the sacrament of confirmation (c. 891).
– To entrust matrimonial cases to a sole clerical judge (c. 1425, §4).
The remaining adaptations are said to be at the table of the Holy See for its review.
Statutes are real laws and fall under the category of particular laws. They are also called by-laws. Concerning statutes can. 94. §3 specified: “The provisions of statutes which are established and promulgated by virtue of legislative power are regulated by the provisions of the canons concerning laws”. A promulgated statute binds all those members to whom it is directed. A statue is promulgated in accordance with can. 8. v
A statute is meant to regulate aggregates of persons or of things, whereby the purpose, constitution, governance and manner of acting of these bodies are defined (c. 94, §1). No aggregate of persons or of things seeking juridical personality in the diocese can acquire it unless its statutes are approved by the diocesan bishop (c. 117). The Code itself has mandated the diocesan bishop to provide for or to approve statutes in a number of instances like the following:
– Giving statutes for a diocesan seminary (c. 239, §3).
– Recognizing the statutes of the associations of the diocesan clergy (c. 278, §2).
– Receiving the statutes of the private associations (c. 299, §3);
– Approving the statutes of the diocesan public associations (c. 314);
– Approving the statutes of the diocesan private associations (c. 322, §2);
– Approving the statutes of the priests’ council (c. 496);
– Approving the statutes of the cathedral chapters (c. 505);
– Providing statutes for the diocesan pastoral council (c.513, §1);
– Providing statutes for the parish pastoral council (c. 536);
– Providing statutes for the parish financial council (c. 537);
– Giving statutes defining he obligations and rights of assistant priests (c. 548, §1);
– Approving the statutes of a diocesan shrine (c. 1232, §1); and – Providing statutes for the administration of temporal goods of a juridical body (like schools, hospitals, orphanages, hostels) subject to the diocesan bishop (c. 1280).
iii) Interpretation of Laws
Interpretation of laws are necessary in order to clear doubts and misunderstandings and to explain the meaning of certain technical legal terms. It is natural that an interpretation comes from the legislator himself as an ancient maxim says, unde ius prodiit, inde interpretatio procedit. Can. 16, §2 states that “an authentic interpretation which is presented by way of a law has the same force as the law itself, and must be promulgated”. The diocesan bishop exercises his legislative power when he authentically interprets laws that are issued by him. This power can also be granted to someone who is not a legislative authority (c. 16, §1). As authentic interpretations are laws, they must be promulgated in accordance with can. 8. Without promulgation, interpretation of laws, even if they emanate from the legislator, is not authentic.
iv) Approval of Customs
Another area where the diocesan bishop uses his legislative competency is by giving legal force to customs. Customs become laws under certain juridical conditions. According to the Latin Code a custom introduced by a community of the faithful has the force of law only if it has been approved by the legislator (c. 23) in accordance with canons 24-28. In the Oriental Code, however, their requirement does not seem to be necessary. Can. 1506, §1 states: “The custom of the Christian community, insofar as it responds to the action of the Holy Spirit in the ecclesial body, can have the force of law”.
v) Dispensation form laws
Christus Dominus declares that from the diocesan bishop’s legislative power proceeds the power to dispense from the general and particular laws of the Church (CD, 8b). This is restated in can. 87, §1 of the Latin Code. Dispensations are applicable only to ecclesiastical disciplinary laws, not to natural or positive laws. Similarly, constitutive and procedural laws are not subject to dispensation. The diocesan bishop cannot also dispense from those laws that are specifically reserved to the Holy See or some other authority.
Power to dispense from laws can also be exercised by those who are only executive authorities such as the vicars general and Episcopal vicars (c. 85). However, this is not permitted in the 1990 Oriental Code where dispensation from ecclesiastical laws can be validly given only be the legislator or by an authority superior to him (c. 1536, §1). The 1917 Latin Code had similar legislation (c. 80).
b) Drafting of Particular Laws
In the tradition of the Church drafting of particular laws bas taken place in particular councils and diocesan synods. The synod (cc. 460-468) is a gathering of priests and Christina faithful within a particular Church to address the good of the whole diocesan community and to provide assistance to the bishop in making decisions in order to regulate the entire pastoral activity of the diocese. In particular it is the most effective instrument for developing long term policies and norms which have the force of law. The Canons do not explicitly speak of the synod as the locus for law making. However, we can presume such competence from the references made in can. 466 where it is stated that “the diocesan bishop is the sole legislator in the diocesan synod”. Moreover, already during the revision process, the Code Commission had observed that the synod is “the normal institute for the updating of the diocese’s particular legislation”.8 This attribution should have been derived from the Directory to the Bishops (Ecclesiae Imago), where the following are mentioned as the main synodal activities:
a) synod must adapt the laws and norms of the universal Church to local conditions; and
b) it must point out the policy and programmes of pastoral work in the diocese, resolving problems encountered in the apostolate and administration (n. 163).
The 1990 Oriental Code which calls the diocesan synod “the eparchial assembly” explicitly states that the decisions taken at the eparchial assembly are “the text of the laws (testum legume), declarations and decrees” (c. 242) which, when promulgated, “being to oblige immediately unless expressly provided otherwise” (c. 241).
Paradoxically, however, in both the Latin and Oriental Codes, the diocesan synod is not a permanent institute; its celebration is not made obligatory. It is left completely to the discretion of the diocesan bishop who has to convoke it “when circumstances warrant it” (c. 461, §1; CCEO c,236). It is interesting to note here that the 4th Lateran Council (1215) and the Council to Trent (1563) legislated that diocesan synod were to be held every year.
Similarly the 1917 Code in can. 356, §1 gravely obliged the diocesan bishop to celebrate the synod every ten years.
Nevertheless, in the post-conciliar period many other consultative bodies play a vital role in assisting the diocesan bishops in the exercise of their legislative ministry. Can. 469 states that “the diocesan curia is composed of those persons and institutes who assist the bishop in governing the entire diocese”. The institutes mentioned in this canon obviously refer to the various councils and committees which are commonly called “consultative bodies”. The bishop may consult these bodies in order to make his legislation truly ecclesial. Failure to consult these bodies in most instances would not result in the invalidating of his legislation, but it would not reflect the true nature of the Church as the People of God endowed with different charisms and having the fundamental right to express their opinions (c.212). besides, the bishop must take into account the collegial nature of his ministry which is exercised in union with his co-workers, the presbyters (PO, 4), and with lay members of the Christian faithful who, by virtue of baptism, share in the prophetic, priestly and royal offices of Christ (LG 31).
8. Communicationes, 12 (1980) 301.
c) Legislative Activity in the Oriental Churches
Legislative power in the Oriental Churches is exercised differently from that of the Latin tradition. In the Patriarchal and Major Archiepiscopal sui iuris Churches much of the particular laws are made not in the individual dioceses but in the Synod of Bishops.
The Synod of Bishops is the assembly of all the ordained bishops of a particular sui iuris Church headed by the Patriarch/Major Archbishop. It is exclusively competent to make laws for the entire Church which obtain force according to the norm of can. 150. §§2-3 (c. 110, §1). §2 of can. 150 states:
“Laws enacted by the synod of bishops of the patriarchal Church (also Major Archiepiscopal) and promulgated by the patriarch, if they are liturgical, have the force of law everywhere in the world; if, however, they are disciplinary laws or concern other decisions of the synod, they have the force of law inside the territorial boundaries of the patriarchal Church”.
By comparison, the Synod enjoys by law far more powers than the Conference of Bishops in the Latin Church. In the Synod, the bishops collegially exercise a jurisdiction distinct from the jurisdiction of the individual eparchial bishop. Synodal laws are therefore strictly speaking particular laws and each bishop is bound by these laws.
It is not within the scope of this paper to go into the theological reasons for the concentration of legislative power at an intermediary level between the pope and the eparchial bishop. According to J.D. Faris, “Synodal governance reminds us that God entrusted the Gospel to a collective body, the Church; it is a treasure too valuable to be entrusted to any individual. Therefore, from the very beginning, it has been as a collective body that the authorities in the Church made decisions about how the Gospel should be lived”.9
However, the Metropolitan and the other autonomous Churches in the Oriental Code do not have the synodal structure. The Metropolitan Churches in particulars are similar to the Episcopal Conferences of the Latin Church. The Metropolitan is assisted in the governance of the autonomous church by the Council of Hierarch. All the eparchial bishops of the metropolitan church exclusively comprise the Council of Hierarch and each has a deliberative vote. This council has the power to legislate in those cases which common law allocates to the particular law of an autonomous church (c. 167, §1), but this legislation does not automatically acquire the force of law. It can be validly promulgated only after the Metropolitan has written notification from the Holy See of the reception of the acts of the council (c. 167, §2).
9. Cf. J.D. RARIS. “Synodal Governance in the Eastern Catholic Churches”, in Proceedings of the Forty-Ninth Annual Convention, Canon Law Society of America Oct. 12-15, 1987, pp. 212-226, at p. 216.
Generally speaking, bishops in the Latin dioceses in India issue general executive decrees and instructions rather than laws either to apply the universal law or to execute the decisions taken at the Episcopal Conferences and Regional Councils. Sometimes bishops say that they follow their “own policies”. But often these “own policies” are neither formulated nor promulgated according to law. What is necessary for the renewal and growth of the local Church is the evolution of long term policies and norms with the force of law. Local law-making is all the more felt urgent in the context of Pope John Paul’s observation made during the International Canon Law Symposium celebrated to mark the 10th anniversary of the promulgation of the Latin Code: “In the Church’s renewed effort for the New Evangelization in view of the Third Christian Millennium, canon law, as a specific, indispensable institution of the Church’s structure, will not fail to make its effective contribution to the Church’s life and mission in the world if all the Church’s members know wisely how to interpret it and faithfully apply it”.10
10. L’ Osservatore Romano, Eng. Ed., 28 April 1993, p.6.