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Transcript of The Participation of the Laity in the Governance of the Church
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4
r
tlat
an autbor1ty of the
'talure of Kuttner
beJ1,eves the
is5ue is
secondary to
egaJ &velopm.L11t
.
3
Ir1
t ~
prese
nt 5tudy
1 pr
o
pose to explore
a
compr
om
ise 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
fir
r t is to di sc1JSS the issue as it surfaced in the course of
rlr'1fting
the
new
c o d e ~
TI1e
second
is
to
indicate the comprom
ise
whi
ch
res lted trom this
deb'ate
and to explore tne possible involvement of
lay
persoru, in the power ofgovernance according to the new code. The third
stage will
be
to
sugge
st some issues which remain to be stud i
ed
.
DRAFTING
THE
NEW COD E
1.
Review
of
the D
ra
fts
a. The
involvement
of
lay pe
rsons ia the
gove
rnan
ce
of
the
Church
particularly at the Jevel of church office , was ruled out in the 1917 code.
Only
clergy
under
that
code could po
ssess
ecclesiastical
power,
whether of
o r d e r ~ or jurisdiction (c. 118); possess
io
n 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
ass
uming a greater role in the
inner
life
of
the
Church
fir
st appeared
in
the
drafting
pr
oces.5
for
the
Lex
Ecclesite Fundamental
is. The initial
vers
ions of this document affirmed that
lay persons
were 'habiles
7
' for
ecclesiastical functions munera congruous
with their oondition.
4
They could help the
bi
shop in
hi
s gove
rn
ance
3
See
Stephan KU1rNEk,
' 'Betrachtungen zur
Systematik
eines
neuen Codex
I
uris
C a n o n i c . i in
Ex
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PARf lCJP ION 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
ccetu
s
pe
c
ifi
ed that this participation
in
governance might include various
office
s
\Vhi
ch
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
1
and
is
now
in
the promulgated text
as
canon 228, l.
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420
STUDIA C ICA
It
may
be the text remained general enough and did not
a d d r ~ 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.
These provisions had themselves been criticized
already
s
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 matnmonial
es
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
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.
>
t
JlAJt11 tflA l1
0N
Of
'flfE LAITY
42
l) a11C>ll
96 of
the first draft
on General
Norms pro
vi
ded for
p:.i
r
ti
\i
1lati
o
t1
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
~ r c i s c
w
as
lirnited to th
c>se
situations in
which the supreme authority
of
tl1e l1urc
ll
pe
rmitted
it.
15
There i
no published report of
the
discll ions of
th
' '
-
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'
\ \
\
l
n
tis
19
.and the
full text
of
the
~ ' ~ u n d material for the commi
s.5ion
ti
. ter
) Prefect of
the Vatican
...
~
a 1 \ :
'11i\.ersit canon law faculty to
,,
..
....... . \ \& \ 'f
ll
C\V
ha
t re\
1
ised versions
of
th
ese
: .:
. h
ro
1nments
to.gether
with
a
\.\
'
\\
\ '\
\
..
\ \ ~
.
\\ .
\t,
\ \ \
n u
tfle
secretariat
were
distributed
..
'f tl1
I981
session
and
f
orrned the
:ussi l at the meet.
ng
.
\
'
'\..'ioO\
t :\ 11
t
admit that lay J>C'TSOns could
t'
tl
t \\
r
\.
t'
i"l
e m a n c e
but
to drop
th
e
..
. " it
t 13c
n,
l1I . f ttte po er
of
governance
\
' t
it
a pea.
r
ed The
pos.s
ibiiity of
~ \ t ;J .
\
\
\ ,'\ \
'"._1 "t.
he
canons in
question,
let
th" a . .meot.
~
ma.y help to
''
t
\ '
' ' t \
~ t
\ t
' '
\l t
..' - ~ -
'
, . .
'\
\ t ' \ ,, ,
c
.
"l
.::&t'Jt.A U J L u ~ a . be conside
red
to go
...
11
i
e fi_t;
prare
?
"'
~ l l ~ the
1
0
positions the
-
.
1
at
t
e outset
t h
~
~ ~ ' in
"
ous
pan of
the
:
..
erl in the C.ode
-. } re m GtmW>-
a plicitl)' by
he
WO
-
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23
he
Gemia1
1
Positio11
a. Funda1ner1tall
y, their point is
this.
Despite
a history
of the
oonfusi-On
f ; . u l a r and sacred
power
in
the
Church the Second Vatican
1
Comtcil has
brought the
hu
rcb
to a clear position of
rooting
all
eo::lesiasticaJ
pou-er
in
the sa
rame11ta
l n.ction of h r i s t
and specificall
.Y
n
the
sacrament
ofomen.
ince the
cour1cil
tl
ere
is
no
longer
a
u ~ t i o n
of
two distinct
poweJS
in
die
h u ~ h - t e 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.
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 u ~ do
~
the
pourg, Switzerland: Editions n i v ~ I l
);
J. kn:ttS
0.1NE0, The Po\\> er of Jurisdiction : Empowerment for Chun:b F u n c t i a t ? : ~
ar.d
~ c t from the Power of Orders. TM Juris. 39 (1979), 1 3-219; Join 1M. ff
l-a.
..Another Look at y Jurisdiction. The Juris/., 41 ( 1981 ), 5 9 - 8 0
Edwml
J. w ~
''
Lay
Participatioo in the Apostolate
of the Hierarchy, . The JJU'81, .;1
( I 1).
:Ml- ;
A.
MAR
Q
'
ES.
..
Funcion pastoral y poder en
la
Iglesia,
.
u s ~
15
( I'll)),.
159-1
;
rban
"v \RRErt.
..
Potestas
vica.ria
E c d e s i ~ Evo1utio historia oot'lC.'eplT..JS
:.:pc
attenra doctrina cooalii Vaticani II
," Periodica ,
60 (
1971 ).
414-486;
J J. RVA'- ...
f u
Separation of 'Ordo' an.d '1urisdictio' in
its
S:trucrural-Doariml
O a ~ r
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4 4
STUDIA CA 0 ICA
on the positions developed
in
Vatican II, particularly
concerning the so
u
rce
of a bishop s power. While the interventions themsel
ves
are
relati
vely 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 Ch
ur
ch . The
way
in
which that power has been understood has gone through a
remarkable history, one that marks our understanding of it today. To g
et
at
a true understanding of what power is in
the
Church, it
is necessa
,ry t 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
eginning
of the thirteenth century several major shifts took place. The
syste
m of
relative ordination gave way to the system
we
are familiar with toda
y,
absolute ordination. Debates over simoniacal clergy, lay investiture, and
heretical or schismatic bishops led to a distinction etween the po
wer 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 c e n t r l i ~ t i o n 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. Th
e
powers were different in their source.
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J
J t ' I I N
f
lf t It
J
t I '
2
} , t iltJt .
l
lt
t
1 , t,,,
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J tlfl g ' ll
r
b yond tho.
ijtl
i
ft1
t
r
11
,''1 ,.
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11 . t1t
l\
tl
, 1
t
tl1 R
n
tl1
p
r of
or
d
ers
is
t )tt
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1 11
tt11tlllll
t
f 1111
th
J1 w r f
L1ri
s
di
tion s
,., , ,1
t'l4( t-
1 t .
fl
1t1
'll
in ifs ' n nam .
~ tit 1 t7 ' t'c911 t d
J
O\l r in tl1r ...lturchw
hi
erarcl1ical
('' ~ ,t
l1 t l ~ t
'll \l1 , ) r ( j j J
g
1
t11 pc)"'
r
of
orders nn l the
power
c)f
t
\l
,
1
1\
l\
\l&
l l t ~ l t
l
Ill
1
)
I
(
'
llCJ
u r
di
tf
l)
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co
t1ld
be
he
ld
and
~ f
tlil
vt
1Jtt
,
Jltl
y
t) t' t rr
l
rH1
A n
ly nilmec
J bis
l1op,
for example,
'.;.
' )\t.
-
7/24/2019 The Participation of the Laity in the Governance of the Church
10/32
t l ll I N N
IC 'J
\
I i r '( t
I
,.,,,,,, a i Jtt
ir
th
f -0
11
e
of
1
I
't,. 1t t. t
11
'litR 11 f
hurch .
I
ta
\411
,
11
1t
11t
l I
1
i
:
11
rt
#
mnti
'
und
n d
i n g
of
power
in
t
l1 \ l l 1 t, ~ 'l
v
1ta i
1
I",, r.
r
(1l d
i
11
.
a
ron1 nta
I con
secrati
on
l t l
lt
, l
n
111u11i
n. If 11
w
r t admit
anoth
er
l l i . >f , , 1\{ t i , 1 tltit tt t l i ti ., l p w r r rci ed by per ns
w
l1,
l1
,l
l>
t .,
'cl
,,
d.
tl1
,
t
m ,. uld
b
.) weak
e
ned
and
the
\\
'
l
ll I
tt
ly t i l l l
ir
t
u kir
1d
f ivil
under
tand
ng of its
w
l\
\,
lt
tt\ 111
tl1
l
ll
Jl .i" 11
r
l ti
v
whi h i pr
p r
to
the hur
ch
t l l t
la
.
1
}
l
n
I
.,,
,
J
J
h
l1 1 >I
)t
tl
u ,1
ut'
1r with a di ll r
- 11t
et
f presuppositi
on
s.
22
It h Id tilt t1 1
tw
() tlil' tll 1
w
i11 tt1 hurch distinct in o
rigin
,
pt1 1->
os t
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PA
Tl
CIPAT O OF THE LAITY
42
7
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
th
at o
nl
y cl
erics
are
ca
pa
ble
.of holding power in the Church,
3
some have been led by this chang.e n
what constitutes the clerical state to conclude that only those with sacred
orders are capable of the power of governance. This has enco
urag
ed the
confusion concerning
munera
and
potestas
b. Stickler faults the German approach on both its major
premi
ses,
history and the understanding of Vatican II.
As
an historian
he
r
eci
tes a
number of factual instances to prove
his
point. In reference to
the
council
be foc
uses
more on rebutting the assertions of the other
school than
n
developing a coherent position of his own.
l ) With regard to the tradition of the Church, Stickler readily admits
:
h
ere 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 theo ry 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
or
ders (the collatio officii and the collatio ordinis sacri ). But he argues
that there was a distinction between the designation for
an office
and
or
dination, 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
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ftl , ,
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titt\ s t >ltt tt\ti l>\ >li ti
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th
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bish
lp >r d n i n ~ n_l_ th li
d v l >p t h l positi t1 th
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-
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-
jt1risdi tio11 could not be ~ r c e r i C J oo tb ut the 'nest: ' mg
QA.
~ - -
(
otfi
;e
or de\egati
n).
Tt1' p )ition w
th
n th t n pers. n
uld retti
pow
T >f juri
dicti n that went
~ i t h
it.
~
t h
ut
t h e
~
orders;
but
that the po
n
f
the
ffi '
n
t
rompl enm ~
corr pondir1g r d e ~ ere received. The anal ID. vf the d i l l a e r ~
a
ratun1
tUld a rutum-et-c
n
u m m a t \ a m
mania2e \lt
t ~ ~
~
-
tickler \ises several papal
exan1plcs l
make bis
poinL
Gr. _
-
7/24/2019 The Participation of the Laity in the Governance of the Church
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adition of the Church, nor could it deny the divine plan
for
the Church
oreover, it never said what the other school claims it said concemini
acred
power. It did speak of the ''munera'' or
functions
of
teaching
nctifying
and ruling coming with episcopal ordination, but
it
specifica
ll)
ed the term
''munera'' rather than ''potestates''
to
indicate
they are
not tbt
.me.
A furthe
r juridical determination is needed
for
a ''munus''
to
becomt
''potestas. Finally, the council specifically affmned that it
did
not
want
tc
~ l v
issues
which
are
still
open to theological debate.
24
He
readily
admits the desirability of uniting orders and jurisdiction Hi
e exercise
of pastoral ministry, especially
by
bishops, but
this union
doo
t require the unity or unicity of these two powers, not does it require
nial
of
the
diversity
of their natures. Rather,
it
is
seeking
a unicity of
tht
tive subject of power, although that one subject may hold two pow.ers.
The debate then turns technical. Rather than bore you with the
d e t i l s
t
me
just sketch the key points. The first
is the
question of exercisin.
cred
power
without being an
office
holder; Stickler
faults
the other sch.
oo
>r failing to
recognize
the role of delegated power. As to the exercise o
by
lay
persons, or those not
in
sacred orders, he argues tha
cred
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
dination to
he
diaconate), the new code
is
merely proposing to continue
h t was formerly
possible
for persons who did not yet have sacred orders
me
tonsured and
some
(historically, at
least) not. He adduces
a number
oJ
amples
of
this,
ranging
from
religious superiors and
Abbesses
to
lay
vocates and defenders in the Church. There
is
also
a debate over the
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4 0
'tuli'\ l ' 1 U
o how
tl1
c
u r c \ol
l, ' ' ' t
w(
t
t
'
'l
t
jurisdic
ti
on, ev n thottgl1 tt1 s ar \ltl
1
~ l t t i ,\ ltlll\
no
rm
a
ll
y exerci '
d
by
the
sn
1n
~ l i c
h .., t f
Two
p o
rnauc by ll yrr l\ JC W
1
( )f j\it
The second point Bey r m
1
1k
"S
i
tt tn
{)
I
''''t'''\ c
Jtl
' ' '
't
l\ t
tt\At
tlh
power of
go
vernance
h
as
b
n '
nd
ti
ll
i,
x '
i
hy
v
t
tl\ \
''t'l
'''
t\h
Church wh o do not have the pow r
c>
I 1d as. 1t\ \ ~
t'
1
t l t t '
situations where sacred
mir1i
ster ' ar 11
ki
1
1
ligi ) -
''ll
' ' ' ' '
, (' V
t\ttt\
ordained (as
in
lay institut
es
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 l\ 'JI
t.l
\ ,,, ll\ \\t A&\tl
e
xt
ending to
th
e
fun
c
ti
ons
of
tea hin , ,
11
tit
yi
1l
g
~ 1 t\ t\ .'
1
4. Some Comme
nts
Let
me
co
mm
ent a moment
on
the tw
o J
>()Si
t
iun
s
l
v
.
'l,
t
\
First I want to point out the tw dif crent 1t1
e
r\tll1 ti wiii ''' \\ntl ltl tt\
two p
os
iti
ons; ne
xt
I would like
to su
gge
1
t
wh
at I
u11d
1. lstncl V tt t t\ lt '' l
say on
thi
s score.
a.
At Vati
can 11 several peo ple remarked
l)
t1 tll tw 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 s
ide
of every
issue and
others
c\
cr rly
(lll t \1c ( Pl 1 1l i l
PA.RTIClPATIO t OF THE
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LAITY
4 l
Bernard Lonergan. as classicist and b i s t o r i c a l m i n d e d n ~
9
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 s
way.
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 relat
es
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 c o r r e c t n ~ 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
so
me 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
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43
ri .
i
m.
fhe
Germa o .ect to
a .a
:g
v rning power
for it
would ma e
t l ~
tr
ul
lai
ty.
b.
Per
mit
me three
personal OOu
U,..l.M..U.
r lly did y. First, the council
papal
-e
p
iscopal
relations. Jo terms
rea
ll
y
d
ea
lin
g
wi
th
the
source of
emphasize
that
the b hop
is
no a .
hrist
(
LG
27
). Therefore
it
rooled
d i r ~ c
sacramental relationship with
_,,_
muruon.
It seems to me to be carrying the
council
itself
went,
if
one were
to
make a
to all power in the Church unless one
power. That would
be
to
ignore the
o o ~ ~ a a
are themselv
es
a so.urce of
obligatioL...
meaning of the term, pow.er) io l
Second, the council presented a
ur.s, :
only
a
typological
description .of
la
what a lay
person
does typically
n
..
. L E
.
cleric does typically (inv.olvement in
claiming
these
were
hard
and .fast
typological
understanding
t
he b y
the council did provide for
partioipati
Church
, whether s
upp
lying here
-
..
-
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PARTICIPAT ION OF Ti ff lAJTY
4
PROVISIONS OF THE
NEW
CODE
The
issue was c
learly joined for the Code Commiss ion. It 1w been
reported
inf
o
rmally
that
by
a
vote
of 52 out
of 63 the commiss
ion me
mber
voted
to
permit
the exercise
of
th
e power
of
governance by
J
ay
per
so
ns
,
including lay judges. The only chan
ge
in
the dis
put
ed canons was the
deletion
of reference to
''power
of governance
r
ooted in sacred o
rde
.rs,''
itself
a
novel concept and
one
which
was
difficu
lt
to
define in
practice.
1.
Canons 1421
2
and
274
The
final texts s
how
some
intere
sting changes as a
re
s
ult of
the
review
of
the canons by the pope
with
the
team
of
advisors
he
put together
for th
is
purpose.
The canon
on lay
judges
(c. 1421 ,
2)
has
dro
pp
ed
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
disc
uss
ion.
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
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witl1
1
ll ( hr '
tiar1
,
atholic o,r not, while
canon 205 provides
the
crjter
ia
w
J r by
1t1
c Chri
ianb
who are Roman Catho
li
cs can
be
determined.
c dis
tin -11.ion becomes
interesting
when qualification
s
for o
ffi
ce are
examined . anon 149, 1 requires that an
office
holder be '' in EccJesire
oomm n i < J n ~ : 0 001;
tbi mean
full co
mmunion? The provisions concernin
g
the los ot
office do
not
reso
,lve this
questions; loss
can occur because of
lap:;e from the C
atholic
faith
or
aut) the
communion of the
Church (c. 9
1, 2).
At
times, the canons specify
full communion as
a
definit
e
qualification.; e,
g,, or member
s of
diocesa
n
pastoral
councils (c.
512,
1
,
r
o b.e an
advocate in
chur
ch
courts
unless the
bishop
makes an exception
in
individual
c ~ e s
(c.
1483
),
Does this mean
that
in other
s
ituation
s
a
b.
aptized n o n ~ t h o l i c might be given an office if the person had all the
requisites for
the pom7
This
might apply, for example,
to the
diocesa
n
fin 1nce
o c e wh
om
the law requires to be skilled in
financial
affairs nd
h
ones
t, but
n,ot
necessarily
in full communion
(c
. 494,
1
.
However
,
her
e
we
arc
touching on,
a very complicated
question,
namely
the
extent to whi
ch
non ..,Cath
o
lics,
though n
1
ot bound
by the code
(
c.
11
), may benefit from it,
and the extent to which this permits church autorities
the
discretion to
inv
olve
them in various church activities. That is a topic for another
study
altogetht:r
,
and
we must
return to our theme.
b, ' Cooperate in the exercise of the power of governance'' is the key
element. What
does
~
c o o p e r
t e ~
mean
here? In the code, ~ c o o p e r a t i o n is
sometimes
used
to refer to coordination of efforts.
34
At
other times, it
refer
s
to
d.irect
participation in
the
wo
Tk
of
another.
This
can
be
the
s
exual
o o o p t . ~ a
o
n
needed
to procreate
children (c. l
096,
I)
or the criminal
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\
\
\
.
...
I
.
J
1
PARTICIPATlO
OF THE
LAITY
members of the Church cooperate in the works proper t ~
~ 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 l
er
specific works
in
the Church.
35
Cooperation takes on an
evaJ
~ ~
technical sense when used of works
in
a diocese in support
of
me
(c.
791
), works which are ultimately subj:ect tosupervisiun by the pope , - r 'd
college
of bishops (
c.
782,
I
).
What it means to 'cooperate , therefor
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r u
li\
C'Ai ICA
of a11oth r (vicarious) or it can be
delegated (granted
to a p r s o ~
but
n
ot
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
t
Delegation, on the ot
he
r
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 whatev
er
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 distinguish
ed
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
ordinari
es
(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
c o o p e r a t i o n , ~
in
the
power
of
governance means according to this scheme
of
things, especially for la
y
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I
PARTICIPATION OF
TH
E 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) s
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
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.
4
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 bod
y?
If
so, this could be
an
example of
lay
persons holding
an office which
invol
ves
the
exercise
of the power of governance with at least a consultative vote, a
possible contradiction with c. 274, 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
38
All
of these are
li
sted as legisla tive bodies in the law : cc. 337,
l and 341
>
l for
an
438
STUDJ CA 0 I
CA
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acts
preparatory to a decree or decision
(c. 135 3)
. Lay persons
wh
o 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
wh
ose
exercise the power of governance
is
required. This is
in evident
co
ntradiction
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
e
through
this office. w
executive power of governance can
be
delegated, and
this
can be either for
all acts or
for
single acts. Delegated executive power
is
not
attac
hed
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
b
as
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
whi
ch 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
pe
rso
n
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
virtu
e of
their
offi '
The office of chancellor itself does not require the exercise of these p\vers ;
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P RTICIP TION OF TH E LA JTY
439
he
wishes
,
respecting the rather bare minimum establ
ished
in
the
code.
44
If
he organ izes 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
go
vernance. 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 se rve
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. 277 on acts of
extraordinary administration and
1292
on alienation).
3)
In
addition to the code s explicit tripartite division of the power of
overnance into legislative, judicial and executive, there seems to be a
urther distinction regarding power which is implicit in the code. It is the
uestion
of administrative power, which may be executive (that is, a fo r of
gover
11ance)
or non-executive.
The distinction can be most clearly seen
in
terms of canon
1400,
the
440
STUDIA CA NONICA
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party may be cited, a tribunal is said to be com t .
d
. . .
( .
. pe
ent
in
cases h'
concern a ministration 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'
~ ~ n t u r
)
ta
t ) I d u
1
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
1
f . . .
Y
1nvo
ves
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
elm
. . . .
ncepts
on
a 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
1
. . ed
h h .
are
im1t
to t ose w o exercise the power of governance, at
least
in
its
form
of
executive power. These are the actus potestatis
a d m i n i s t r a t i v ~
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 s
uch
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 bun
(c. 1276, 1 , but they act in the name of the juridic person they administer,
not in the
name
of the bishop. This kind
of
good stewardship seems .
10
the ''admi
ni
stratio'' of canon
1413,
1. It
seems
to
be
a
power
which
is
no
strictly a power of governance.
ed
as
an
\ Tt 1P
no
.
Of
TUE l
ITV
441
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t J
duti
.. th
e.
erase 0 e .
hop
' mpervisory
...
........
t ~ u r i i u ea
to
him c 1276 I
.
This
is
an
tltiti
il
:ati
m
he n
n,
-e;
.
ecuti
sense
.
H
owever
.
a110t1
\ \ ~ ~ ~ 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
u b
t
t ttttt\.. uld
th i
h
p
delegate the econome to issue such
\\\st u)ti
)\
F
X}
\\ital A i earlier on the
ahitity
to
delegate
executive
U:
\lt\\
>1
it
~
ul
l
ll
tt,d, and
j f
dre
eco.nome
is
,a
lay
person
'this
~
u\ .t\ tl\ 'J
tli
t . f
I.a pefS-0 ,
cooperating io the exercise
of
the
4 .tttul n I ~ .nt t menti .n hriefl on lay c o o p e r a ~ i o n in
the
' 'nil\-
religious.
C21non
606
.
app
l i
es
the
law
equally
_
tt1e.t1
tt men w i l ~ tbe contrary is apparent from the
\ \ ~ 1 t u :
f th .
nriatter
. In
1
delermiffi.ng
the authority .of superiors
\V
it
l1i11
i t l ~ t i t u ~ s
f n ~ .
3;ted
life, the con.text does not seem to
require
a
distil\
:\ 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 n t e m a l forum
v v v t ~ ~ i a ; ti. l .. Y' t l l i l t .
tfl cried
reiigiuus ins:titutes .
of
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.
th - .e is
appt .og to la
per.sons
ho are
s11periors
in
in tituw m .. ~ i . t e d life th canon;
n
the po .er
.of
governance.
They
.
er
it\
virtue
f
the office die
hold
,as
superior.
This
w,ould
_ 11trnry
t t.
he
provt
'
i ns of .
7 4
l as it
nDw
stands, but
V P. mad sen under its former ording in , hich ~ h e
JX>Wer
of
th
e Church
co
nc
eded
to
them
in each instance ( singulis pro
causis
).
47
Th
e
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German
s were
up
s
et
with the concept that some exercise of the power of
governance
would
not be rooted in sacred orders, the Romans pointed to
the power 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 s
pecify on
w hat basis such cooperation takes place, nor does it restrict such
cooperation to those instances when the supreme authority itself grants
it
.
In
ste
ad
, the
canon
refers to the provisions of the law. At times the law cal
ls
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 i
ts
elf
specifies this participation.
49
Here
is
where it seems to me the compromise
h
as
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
hav
e more on that shortly.
3.
Summary
The new c
ode doe
s provide for lay persons to cooperate in the exer
cise
of the power of governance. While c. 274, 1 restricts to clergy those offices
for whose exercise the
power
of governance is required, in practice
th
is
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 of
fi
ces
who
se exercise
may not
even require the exercise of the
power of governance 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
cod
e
were written when a different distinction was presumed, namely the
distinction between the power of governance which required the use
of
sacred order
s, and
power of governance which did not require sacred
ord
ers.
That
d
is
tinction was expressed in c. 274,
I
but not in direct terms of
usin
g
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PARTlClPATIO OF
TH L
I
TY
443
the power of orders, but rather
in
the more theo
reticaJ
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
co
uld
hold
without
an
adequate theoretical foundation
so
that
they may
now
see
m
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
invo
lved).
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
ST
DI CA 0 lC
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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 tim
es
their cooperation is n
ot
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 eccl
es
iastical governance
is
required.
REMAINING ISSUES
Let me conclude by noting three i
ss
ues
in
need
of
resolution b e ~
re th
compromise formula in the code will be a welcome one in our
canon
ical
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
Chu
rc
h?
And
third, how indeed should ministry be organized in the
C
hurch?
I
d
not pretend to have answers to the
se
qu
es
tion
s,
but let me
sk t
h
som of
the
elements involved.
1.
Resolving the Contradiction
Some attempt to resolve the contradiction by readi
11g
canon
in wa
that do not
seem
in
keeping with the texts. For exa
mpl
e
Ghirlanda
proposes to resolve it by giving a different reading to canon
27
4,
l
than
the words ''soli clerici possunt'' would seem to impl
y.
He tak
es
th
en1
to
mean
that
in
virtue of ordination, only cle
rics
are
fpso
facto
able
to recei
offices which involve the exercise of the power of governance,
in
k ~ p i n g
with
the ''habiles''
for
clergy in canon 129,
I. The capacity of l
ay
person
for
office
is
affirmed only generically
in
canon
228,
l ,
a
rld
in
particularly under the new definition of office
in
the code th.er
ca11
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l
445
wl1I i Juil tll
p ~ J W f
gf
gov
rnn11 , So far as
these
auth
ors
,
ar
e
oon
ce
rtted,
Ja
y J f)
Jl tl Ip Ir, tl1 r
is. of th
e pow
er
of g
overn
an
ce, but
do
tJ{)
l x
rciu
it
Ll
in
Iv ;
tl1
p
rov
lRo
for Jay
p
erson
s
to s
erve
as jud
ges
i b ~ c n
w cv
tJtrf
l< f l fl t
lJflJ
, must b r
so
lv d, po
ssib
ly by
an
authentic
~ r p t e a o of
tll'
-oll In tJ1 m ai1tim
e,
tl1ey
give
a diff
ere
nt reading
to
the terrrJ of tt1c
'an
t>
l
tllan tll obv
io
t s se11se of the words, taking
th
e
ca11on
filj
pt
viuir
B
tr
a
J
ay
j
Ulg in tile
se
n
se
of
a
{;
t
ing
as
an
assesso
r
rather
t
1ar1 a j u
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30/32
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
relationsh
ip
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 ' - ~ o the
teaching
o
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 'b
ri
Rt
that
it loses
the perspective of the action of
the
Spir
it
throlJgh charism and
grace. It calls f'or a
m()re trinitarian
view of .
od
1
action
in
the
C
hurch
, and
locates the
contact with the
Lord
in
more
than the sacrament
of orders,
Whether any of t h t approaches is
adequate
to explain.11g power in
the Church can be q u e s t i o n e d We are dealing here with a m.ystery, tbe
my
stery
of
the
Church and
the
m y
u . , , ~
of God action
in
' '
ur
midst
.
We
are
.also dealing with a very compfe'x concept,
that
o p o w e r Power is the
ability
to
produce an effect. B
ut
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 mi
ss
the
mo
re
fundam;ental
questi
on,
the pur
f)Offe
for
Huc
h
power
. Would taking a
dlffer
e-nt apprO'deh
w
understanding the relat
ions
h
ip
o
Church an,d world
, of
m i
~ i o n and g
'Vernance,
prov
ide
a
mc
lr
e
effective
per
spective for a d d r ~ tbe se
'I
3,
Organi
z
ation
o
Mln
/JJ
try
f ha
ve
not
m ~ n t i o n e d
itt
a11
t h ~ rathtr i a r t J i n g lnn
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p RTlClPAT I
ON OF
THE LATTY
44
7
l1t1
rc.ll
thro
\
.
l th
thre
e
z n
r
of teaching, s
anctifying and
governing
.
La r s ' ho take on these pastoral
roles
may
be
considered
to
be
pernt\n
i11
po\ver of governance in a broad
sense, and
even strictly
lO
tll
xtent they are given fact1lties or delegation. However, their pastoral
in
vo
l un1 tlt rai
s
eri
ot1s questions about the organization of ministry in
th
e
l\Urcll.
Fi
rst,
if
ln
y
persons are admitted to such central roles
in
Catholic life
ev
t be
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32/32
I
J
ulv t tf 1.
I
t .
ddr .. 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 y 1, v r Iv d But
th
resolution of these issues will c l l not
y t 1 t
< i
l r
h
and
dis
u ion, but for the collaboration of
1 (
t irt
.
1
s
n J xp ri n d .
hristia11
lay people if we are to achieve an
ff iv i11
rti
: ti
d
in th lif of
the
Church.
Rev. James H. PRovosT
Department of Canon
aw
Catholic University of America
Washington
D ~ C
20064