Saturday, March 7, 2009

The Divine Right of Bishops and the Ordinary Executive Power to Dispense from Law

Elsewhere in the blogosphere (I decline to indicate where), a debate has ensued regarding the power of a local bishop ("Ordinary"; see can. 134.1) to dispense from a merely ecclesiastical law. The particular debate surrounds the viri selecti rubric of the Rite of Mandatum (Lotio pedum) on Holy Thursday, whether the local bishop is able to override the rubric which restricts the gender of those whose feet are washed to men (see Missale Romanum, "Missa in cena Domini", n. 6; cf. Paschales Solemnitatis, n. 51).

Does a diocesan bishop have the right to dispense from a merely ecclesiastical law?

In 1962, Karl Rahner and Josef Ratzinger co-authored a volume of the Quaestiones disputatae (vol. 4), titled The Episcopate and the Primacy, a study on the extent and limits of both papal and episcopal power. In the first section, "The Episcopate and the Primacy", Rahner asks whether the constitution of the Church which holds simultaneously that the pope has "supreme and full power of jurisdiction" that is "truly episcopal, ordinary, and immediate both over each and every church and over each and every pastor and faithful..." is internally inconsistent (16; cf. 1917 CIC, can. 218 and 329.1). Does not pontifical power encroach upon the individual bishop who possesses his episcopal office "by divine right"?

We cannot forget the doctrine of the bishop's power "by divine right"--it has been taught solemnly by the Council of Trent (Session 23, Chapter 4; Denzinger 1767) and again at the First Vatican Council:

The power of the Supreme Pontiff is far from standing in the way of the power of ordinary and immedite episcopal jurisdiction by which the bishops who, under appointment of the Holy Spirit, succeeded in the place of the apostles, feed and rule individually, as true shepherds, the particular flock assigned to them. Rather this latter power is asserted, confirmed and vindicated by this same supreme and universal shepherd, as in the words of St. Gregory the Great: "My honour is the honour of the whole church [sic]. My honour is the firm strength of my brothers. I am truly honoured when due honour is paid to each and every one" (Neuner and Dupuis 827; Denzinger 3061).

Ratzinger then calls attention to a pastoral letter issued by the German episcopate shortly after the close of Vatican I, the "Collective Statement of the German Episcopate Concerning the the Circular of the German Imperial Chancellor in Respect to the Coming Papal Election" in 1875. Among the theses of the "Collective Statement" identified by Dom Olivier Rousseau ("La vraie Valeur de l'Episcopat dans l'Eglise d'apres d'importants documents de 1875", in Irenikon 29 [1956], 121-150) is that "The pope cannot arrogate to himself the episcopal rights, nor substitute his power for that of bishops" and "the episcopal jurisdiction has not been absorbed in the papal jurisdiction." Ratzinger then points out that the "Collective Statement" received "the express and unqualified endorsement of Pius IX" (40). Thanks to the suggestion of then-Father Ratzinger, the "Collective Statement" has been installed in Denzinger (nn. 3112-3116). It reads thus in English:

It is in virtue of the same divine institution upon which the papacy rests that the episcopate also exists. It, too, has its rights and duties, because of the ordinance of God himself, and the Pope has neither the right nor the power to change them. Thus it is a complete misunderstanding of the Vatican decrees [e.g. Aeterni Patris] to believe that because of them "episcopal jurisdiction has been absorbed into the papal", that the Pope has "in principle taken the place of each individual bishop", that the bishops are now "no more than tools of the Pope, his officials, without responsibility of their own." According to the constant teaching of the Catholic Church, expressly declared at the [First] Vatican Council itself, the bishops are not mere tools of the Pope, nor papal officials without responsibility of their own, but, "under appointment of the Holy Spirit, they succeeded in the place of the apostles, and feed and rule individually as true shepherds, the particular flock assigned to them" (Neuner and Dupuis 841; cf. Denzinger 3115).

When we come to the Second Vatican Council, the teaching of Vatican I and the German episcopate are conjoined, first in Lumen gentium 27: "The bishops govern the churches entrusted to them as vicars and legates of Christ... This power which they exercise personally in the name of Christ is proper,ordinary and immediate, although its exercise is ultimately controlled by the supreme authority of the Church... " The decree continues, "By virtue of this power, bishops have the sacred right and duty before the Lord of making laws for their subjects, of passing judment on them and of directing everything that concerns the ordering of worship and the apostolate." In the decree Christus Dominus, 6, the supreme authority teaches: "As the legitimate successors of the apostles and members of the episcopal college, bishops should ever be conscious that they stand together and they should let it been seen that they are solicitious for the good of all the churches." In article 8a, the decree reads, "As successors of the apostles, the bishops in dioceses entrusted to them possess as of right the ordinary power necessary for the exercise of their pastoral office. This power belongs to them as bishops and rests in their own hands, always without prejudice to the universal power which, in virtue of his office, the Roman pontiff possesses of reserving cases to himself or to some other authority."

The supreme authority is clear on its teaching of the bishop's divine right. In fact, this is precisely what we mean by "bishop"--the Greek noun episkopos means "overseer" or "superintendent", which has unmistakable connotations of authority and jurisdiction (cf. B.D.A.G. 379-380). This is precisely why the cathedra is the primary symbol of the bishop's exercise of his office, since it is from the chair that he governs his see.

Then, with respect to the power of dispensing from an ecclesiastical law, the Council teaches: "By the general law of the Church all diocesan bishops are given the power of granting dispensations in particular cases to the faithful over whom they hold canonical authority, whenever they judge it to be for their spiritual good. This power does not extend to cases which have been specially reserved byt he supreme authority fo the Church" (Christus Dominus, 8b).

This authoritative doctrine on the divine right of bishops, as well as his power to dispense from a merely ecclesiastical law, is legislated in the 1983 Code of Canon Law which naturally follows the Second Vatican Council (cf. Sacra disciplinae leges).

In order to understand ecclesiastical jurisdiction, the three powers of governance must be distinguished, "legislative" power as the power to legislate laws; "executive" power as the power to execute laws, and "judicial" power as the power to judge (can. 135.1, 2, 3).

An Ordinary, being the diocesan bishop having "competant ecclesiastical authority" over his territory, possesses executive power (can. 134.1) as we have already seen from the Council of Trent, the "Circular Letter" of the German episcopate, and the Second Vatican Council. As such, the Ordinary, having this "ordinary executive power" thus has the power to dispense from a merely ecclesiastical law (can. 85). Even those laws issued by the supreme authority can be dispensed by the Ordinary (can. 87.1) insofar as it is not a procedural or penal law. Such a dispensation must have a "just and reasonable cause."

As Eduardo Baura, extraordinary professor of general canon law at the Pontifical University of the Holy Cross explains, "The power of a diocesan bishop to dispense universal laws is executive, ordinary and proper..." (A. Marzoa, J. Miras, and R. Rodriguez-Ocana, Exegetical Commentary on the Code of Canon Law, vol. 1 [Chicago, IL: Midwest Theological Forum, 2004], 656.) More specifically:

Since the CIC views dispensation as something proper to the administrative function, it establishes that it is conceded by an authority whith executive power (c. 85), without the obligation to identify himself with the author of the law. "Therefore, it can be affirmed that the power of the diocesan bishop to dispense universal laws--that are goverened by the rules of the executive power--is a part of the proper and immediate ordinary power that comes witht he government of the diocese" (656, emphasis added).

With respect to liturgical law, insofar as it is a merely ecclesiastical law, Pope Paul VI in his Apostolic Letter Sacram Liturgiam issued motu propio wrote,

Finally we wish to emphasize that—beyond what we in this apostolic letter on liturgical matters have either changed or have ordered carried out at the established time—regulation of the liturgy comes solely within the authority of the Church: that is, of this Apostolic See and, in accordance with the law, of the bishop. Consequently, absolutely no one else, not even a priest, can on his own initiative add or subtract or change anything in liturgical matter (art. 11, emphasis added).

Can a diocesan bishop who is an Ordinary dispense from a liturgical law in his own territory? Yes, insofar as it is a merely ecclesiastical law. Divine law remains intact; no bishop--not even the Bishop of Rome--for example, can change the Words of Institution, since that has been established by Divine Revelation. He can, however, change a law that is purely human--such as the size of sacramental bread, whether certain liturgical texts can be sung, and the derestriction of the Mandatum to men alone. The burden of proof lies with those who insist that the "viri selecti" rubric is a matter of positive divine law (cf. Summa theologiae, Ia IIae, q. 91). Father John Huels JCD, the incontestable English-speaking expert in canon law and professor of the same at Saint Paul University in Ottawa, Ontario:

The diocesan bishop is the principal authority for the oversight and regulation of the liturgyin his diocese (canons 381; 391; 391; 835.1; 838.4). He has authority over the public exercise of the liturgy by all, including members of pontifical religious institutes (canon 678.1). He can enact liturgical laws, provided they are not contrary to universal laws (canon 135.2). He can grant dispensations from universal law, including dispensations from universal liturgical laws (canon 87). The universal law entrusts to the bishop authority to decide whether it is appropriate to use certain approved rites or practices, such as general absolution (canon 961.2) and eucharistic processions (canon 944). He also regulates non-liturgical prayers and devotions (canon 839.2). (More Disputed Questions in the Liturgy [Chicago, IL: Liturgy Training Publications, 1996] 11).

Therefore, with reference to the bishop's divine right, the teaching of Trent, Vatican I, the German Episcopate (and approved by Pius IX), and Vatican II, as well as the Code of Canon Law, a bishop can dispense from a universal law, including a universal liturgical law.

Returning to our earlier discussion on the joint work of Rahner and Ratzinger, it is important to point out that not only is "episcopalism" an heresy--the notion that each bishop can exercise his authority freely without reference to the College of Bishops--but also "papalism" is likewise an heretical notion. As Ratzinger wrote, "In fact, according to the [First] Vatican Council, not only episcopalism but also papalism in the narrower sense must be regarded as a condemned doctrine, must be impressed much more efficaciously on the Christian consciousness than has been done to date" (44, emphasis added). Thus the attitude of "papalism," more popularly known as Ultramontanism, carries with it the attitude that bishops are not able to exercise their divine right--including the right to grant dispensations from a merely ecclesiastical law--and that only the Bishop of Rome can exercise the executive power of governance as a bishop. The blogger in question (cf. above) appears to espouse the heresy of papalism. As we have shown, the decrees of the ecumenical Councils and the Code of Canon Law fails to support his position.

In closing, I would like to share a story told twice by my professor of canon law, first in a course "Introduction to Church Law" and again in "Liturgical Law and Pastoral Practise." It deals precisely with the diocesan bishop's right to dispense from law.

When the late John Paul II came to Canada for his Apostolic Journey in 1984, he joined one of the bishops in an aerial trip across one of the northernmost dioceses. Northern Canada is desolate and often trips have to be made via helicopter or a small airplane.

The Ordinary who was accompanying the Holy Father was proudly "bragging" about the dedication of his presbyterate--how busy they are, how many of the faithful they serve, and how much they give without complaining. "Holy Father," the Ordinary said, "sometimes our priests celebrate four, even five Masses a day!"

"No, no, no" John Paul II interrupted, with his thick Slavic accent. "Canon law says a priest may celebrate Mass only at most twice a day," he corrected, referring to the law of bination (can. 905.2)

"But..." the Holy Father continued, tipping his white zucchetto to the Ordinary, "you are the bishop!"

This anecdote, our canon law professor said, serves to show that even the Bishop of Rome and the Pastor of the universal Church recognised and accepted the divine right of bishops to govern his own diocese and to dispense from a merely ecclesiastical law.

This posting is dedicated to His Eminence Cardinal +Roger MAHONY, Metropolitan Archbishop of Los Angeles. Ad multos annos!

Sources:

Aquinas, St Thomas. Summa theologiae, trans. Fathers of the English Dominican Province. New York, NY: Benzinger Brothers, Inc., 1947.

Catholic Church. Code of Canon Law, Latin-English Edition: New English Translation, trans. Canon Law Society of America. Washington, D.C: Canon Law Society of America, 1998.

Danker, Frederick William, ed. A Greek-English Lexicon of the New Testament and Other Early Christian Literature. Chicago, IL: University of Chicago Press, 2000.

Denzinger, Henrici. Enchiridion symbolorum definitonum et declarationum de rebus fidei et morum, 38th Ed. Paris: Editions du Cerf, 2001.

Huels, John M. Liturgy and Law: Liturgical Law in the System of Roman Catholic Canon Law. Woodridge, IL: Midwest Theological Forum, 2006.

__________. More Disputed Questions in the Liturgy. Chicago, IL: Liturgy Training Publications, 1996.

Neuner, Jacques, and Jacques Dupuis. The Christian Faith in the Doctrinal Documents of the Catholic Church, 7th rev. ed. Staten Island, NY: Alba House, 2001.

Paul VI, P.P. Apostolic Letter motu proprio "Sacram Liturgiam." Citta del Vaticano: Libreria Editrice Vaticana, 1964.

Peters, Edward. The 1917 Pio-Benedictine Code of Canon Law. San Francisco, CA: Ignatius Press, 2001.

Tanner, Norman. Decrees of the Ecumenical Councils, vol. 2. Washington, D.C.: Georgetown University Press, 1990.

Rahner, Karl, and Josef Ratzinger. The Episcopacy and the Primacy. Montreal, QC: Palm Publishers, 1962.

8 comments:

  1. Well being an ordinary Catholic, this is all quite extraordinary information for me. My guess is that the point of the lesson is on the various powers granted to Bishops in each area where they govern. Meaning some can say only men may do this and others can say, all people can do this (washing of the feet). My question then is, how does this allowance, keep the church from imploding over various quibbles on the exact proper dispensing of various laws vs interpretation of the same?

    Just a thought...
    Nancy Louise

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  2. The Church does not "implode" precisely because of Christ's solicitude for His Church. The vocation to the episcopal office comes directly from Christ, and those who are involved with the election of bishops are, for the most part, attuned to the will of God to appoint certain people to the office of bishop.

    It is precisely the job of the pope to ensure the unity of the Church, and of the bishop to understand that he does not exercise the episcopal office alone, but within a College, i.e., the "College of Bishops."

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  3. The end of your argument is very weak - based on an apocrophal story about a bishop in a helicopter with the Pope.

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  4. You're welcome to call it "apocryphal." It was told by a canon lawyer who received this story from the very same bishop mentioned in the story.

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  5. Mr Hysell,

    Would you then also agree that a bishop would be within his rights to dispense a parish community which used the Extraordinary Form from the requirement of using the Holy Week revisions promulgated under Pope Pius XII, and permit them to use the older texts in their place?

    Paul Goings

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  6. I think that's a fair question.

    The bishop's divine right is not a question of a gratuitous use of these rights--as Americans understand it--but a power ordered to the good of the local Church.

    He probably be able to dispense, but it would depend on whether the decree instituting the Holy Week reform ends with the clause "Anything to the contrary notwithstanding."

    The question is complicated by the dignity and paramount importance of the Paschal Vigil in the Church's liturgical life--what bishop would want to dispense with so venerable a liturgical tradition?

    I would also be interested in the intention of the bishop in dispensing with the reforms of Pius XII because a bishop ought to do everything within his power to remain in hierarchical communion with the Successor of Peter. Such a dispensation, at least during the time of Pius XII might be taken to be an act of rebellion, however mild.

    Moreover, such a bishop would be resisting two reforms, first "tolerating" the Extraordinary Form and second, allowing that instance of the Extraordinary Form to be immune to the decrees of the Second Vatican Council.

    Every dispensation issued by a bishop ideally has a sound pastoral reason. And a good bishop, in communion with the rest of the College, is in consultation with his brother bishops and peers.

    Your question pertains more to canon law than the doctrine of the divine right of bishops. I will ask my friend, who is a canon lawyer, for his opinion.

    The watchword, I would suggest, is hierarchical communion within the College of Bishops. That should tend towards an answer to your question.

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  7. Mr Hysell,

    Thank you for your considered response. I have in mind one of the independent schismatic bodies (former sedevacantists in this instance). They are accustomed to this particular form of the liturgy, and I would see this as a primarily pastoral measure in aid of their reconciliation.

    I'm not sure why you would say that tolerating the Extraordinary Form (either in its absolutely approved version of 1962, or in the older version that I am supposing) would be an example of the bishop's jus liturgicum, similar to the issue of washing women's feet. The latter is--currently--a strictly contra legem custom being introduced, whereas the former is not.

    I do understand from your previous post that you believe that the Extraordinary Form does not meet the requirements set forth in the decrees of the Second Vatican Council. While I understand this, I'm not sure what the conclusion that I'm supposed to draw is. Are you proposing that the motu proprio authorizing its use was an ultra vires act on the part of the Holy Father? If not that, then what? This, I suppose, will help in answering my previous question, or at least indicate whether it is answerable in terms of the ecclesiology that you are asserting. (Or not, as the case may be.)

    In any event, I am uncertain what a consideration of proper hierarchical communion within the bishops in their relationship to the Holy Father is supposed to indicate. You suggest that it will go a ways toward answering my question; I can't see that it does.

    Paul Goings

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  8. Mr Goings,

    With regard to my post concerning the Extraordinary Form and the supreme authority of the Church, my point is that--as one of the commentators rightly pointed out--the motu proprio Summorum Pontificum cannot be considered to be anything but a provisional allowance. The fact remains, despite the Holy Father's rightful jurisdiction in issuing the motu proprio, people who insist on adhering to the Extraordinary Form need to take stock of the explicit commands issued by the Second Vatican Council. I would take this a step further and argue that the very phrase "Extraordinary Form" proposes that the use of the 1962 Missal is "out-of-the-ordinary", i.e., does not represent a regularity in the Church's liturgical life. We cannot persist in disobedience to the Second Vatican Council. Where is the catechumenate? Where are the vernacular readings, or even the "richer fare" of the revised lectionary? Where is the noble simplicity? My concern is that those who adhere to the 1962 Missal aren't realistic about what the motu proprio means.

    With regards to whether a bishop would be within his rights to authorize the Holy Week liturgies in use prior to 1955, again I must insist that we are not talking about "rights" in the sense of American civil liberties. Rather, it refers to the bishop's lawful jurisdiction over his own subjects, which Ratzinger and Rahner reminded us was actually taught by the First Vatican Council and reiterated by the German episcopate with the approval of Pius IX.

    A "yes" or "no" answer to your question cannot be given without the circumstnaces. A bishop would need to take into account all of the pastoral considerations. An exercise of episcopal jurisdiction would necessarily take into account the that salus animarum suprema lex. This would mean asking whether a dispensation or an enforcement of law would be conductive to salvation, not to make an ecclesiopolitical statement that uses the sacred liturgy as a way to earmark our self-identification on the spectrum.

    The sedevacanist group you mentioned, I would suggest, adhere de facto to the heresy of the Church's defectability. I would even borrow from Tertullian who said that heretics do not have a right to the Bible: schismatics do not have a right to the sacred liturgy.

    But a bishop--and here I am giving him the benefit of the doubt--very probably has the right to permit the use of the pre-1955 Holy Week liturgies. But I honestly cannot imagine that it would be anything but a provisional dispensation, especially considering the fact that, as is often the case among Traditionalists, the externals of Catholic culture is often confused with the substance of Catholic doctrine and ethos.

    For the sake of clarity, I want to close by reiterating that the Holy Father was completely within the lawful exercise of his authority to issue Summorum Pontificum. But we cannot imagine that this provisional measure can be expected to be in force indefinitely.

    A colleauge of mine has even suggested that we may even witness an hybrid of the 1962 and the 1970 missals, meaning that some--not all--of the acts of the Concilium would be reversed and yield for a liturgy that was reformed organically, not only juridically.

    I hope this satisfactorily answers your questions.

    Respectfully,
    M. G. Hysell

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