Selected Legislative Structures in Service of Ecclesial Reform

SELECTED LEGISLATIVE STRUCTURES IN SERVICE OF ECCLESIAL REFORM Thomas J. Green* Introduction I Some general thoughts on legislative renewal in the Church. While reflecting on legislative renewal, Ladislas Orsy describes the Church as resilient in that it depends on God’s ongoing assistance, but as fragile in that it is human. Through the Spirit it will always be fundamentally faithful in proclaiming the gospel, yet it may not always be duly prudent in governing. Church law is created by fragile people who may not always serve the Church well. Accordingly church legislators need ongoing help in crafting wise laws; and theologians, canonists, and pastoral leaders play a special role here. They can evaluate proposed laws in terms of the theological values they should express and the concrete pastoral needs to which they should respond.1 If church authorities are to respond judiciously to such needs, they must regularly interact with other church members—a relevant principle in structuring all policy-setting bodies. The whole Church needs empowering by the renewing Spirit in making sound practical judgments. Legislators are morally obliged to elicit the wisdom of the community in determining the norms best serving it. Every legal system is historically conditioned culturally, socially, and politically; it is impossible to formulate laws that are always clear and responsive to pastoral contingencies. Regrettably, however, during the 1917 code period, canon law tended to become static and resistant to development .2 Interestingly enough, however, in promulgating it, Benedict XV saw a need to update it regularly. Accordingly, he envisioned a commission not simply interpreting it authentically but ensuring its orderly The Jurist 71 (2011) 422–449 422 * School of Canon Law, Catholic University of America 1 See Ladislas Orsy, “Sacrae Disciplinae Leges: Forty Years after the Council,” (Sacrae Disciplinae Leges) CLSA Proceedings (2005) 3–4. See also idem, Receiving the Council (Collegeville, MN: Liturgical Press, 2009) 55–90. Two chapters are especially pertinent to this discussion: chapter 5: “Reception of the Laws: an Exercise in Communio ” (55–73) and chapter 6; “Law for Life: Canon Law after the Council” (74–90). 2 See Orsy, Sacrae Disciplinae Leges, 10–11. revision to minimize confusion when the canons were changed.3 Unfortunately this did not happen; rather supplementary legislation proliferated ; and so the code did not long serve as the comprehensive and unitive legal source it was designed to be like the contemporary European civil codes.4 Hence, a major code revision was necessary after Vatican II, especially given notable theological developments5 and new pastoral challenges such as the Church’s ongoing engagement in the common search for Christian unity.6 Church law must provide legal certainty for the faithful if they are to know their basic rights and obligations and the corresponding rights and duties of officeholders. Yet such law must also be open to historical change if it is to serve the Church’s mission well. Balancing stability and flexibility is a continuing challenge, especially given rapid social development .Acode with well-chiseled rules seemingly intended for all times risks soon being an ecclesial dead letter in some areas without vital contact with ecclesial life; therefore ongoing canonical renewal is imperative at all levels. And this has become increasingly clear after a somewhat reform-oriented council such as Vatican II, which periodically highlighted the theme Ecclesia semper reformanda.7 Such an exigency is especially true at the universal level; for, without systematic legal aggiornamento, necessary institutional change comes SELECTED LEGISLATIVE STRUCTURE IN SERVICE OF ECCLESIAL REFORM 423 3 See Benedict XV, motu proprio Cum iuris canonici III, September 15, 1917, in Codex Iuris Canonici Pii X Pontificis Maximi iussu digestus Benedicti Papae auctoritate promulgatus (Typis Polyglottis Vaticanis, 1965) lxvi–lxvii. 4 John Alesandro, “The Code of Canon Law: Reflecting on the Past Twenty Five Years and Looking to the Future,” CLSA Proceedings (2007) 13. See also Ronny Jenkins, “Nulla Lex Satis Commoda Omnibus Est: The Implementation of the Penal Law of the 1983 Codex Iuris Canonici in Light of Four Principles of Modern Legal Codification,” The Jurist 69 (2009) 615–645 esp. 622–630. 5 On the continuing relevance of Vatican II to canonical reform, see Myriam Wijlens, “ ‘The Newness of the Council Constitutes...