by Antonio Viana Ordinary Professor of Ecclesiastical Organization, Faculty of Canon Law, University of Navarre. [This is a translation of an article originally appearing in Spanish in “Ius Canonicum” 52 (2012) 481-520].
1. Reception of the new norms on Catholics coming from Anglicanism
The year 2009 saw the official publication and promulgation of Benedict XVI’s apostolic constitution Anglicanorum coetibus, accompanied by a set of Complementary norms issued by the Congregation for the Doctrine of the Faith.1 These dispositions provide for the establishment of personal ordinariates for the purpose of organizing, in different countries, the reception into the Catholic Church of communities of pastors and faithful coming from the Anglican Communion. At present three such ordinariates have been erected: one for England and Wales, one for the United States of America, and a third in Australia.2
These important events have naturally aroused a great deal of interest in international public opinion as well as among canonists.3 In general terms it can be stated that the pontifical document has been received not only with interest but also with joy, now that many faithful have the possibility, after many years, of seeing their desires for full communion with the Roman Apostolic See fulfilled.
However, a certain amount of dissatisfaction has been expressed by some who consider that Anglicanorum coetibus does not represent a true advance in ecumenism: a judgment which appears exaggerated bearing in mind the positive reactions within the sphere of Anglicanism.4 Similarly, the criticism put forward by certain authors who see Anglicanorum coetibus and the Complementary norms as another step along the path to the consolidation of personal jurisdictions in the Church (personal ordinariates, personal prelatures, personal apostolic administrations, and now personal ordinariates for former Anglicans) at the expense of the bishops’ territorial jurisdiction, also seems overstated,5 since anyone making such a claim would have to prove that the local bishop’s power is really jeopardized or limited by the personal circumscriptions. In any event, the correct relationship between territorial jurisdiction and personal jurisdiction is certainly a topic of the greatest importance and will merit some reference on our part.
What is most frequent however is to find reviews and commentaries which complain not so much at the solution which has been found, but rather at aspects of the new legislation which are considered to be unclear. >From the formal perspective the very publication of the Complementary norms of Anglicanorum coetibus has given rise to uncertainties. The official promulgation of the documents was accompanied by actions which might benevolently be classed as informal and which have confused quite a number of commentators, in a matter as important as that of determining the precise wording of the text of the norms, quite apart from the various versions issued in different languages from the very outset.6
Furthermore, although the Complementary norms develop important aspects of Anglicanorum coetibus, nevertheless they were published by the Congregation for the Doctrine of the Faith with a simple approval in forma communi from the Pope, whereas their scope and content would have advised the use of something more akin to a law such as a pontifical delegation under c. 30 of the CIC, or even a pontifical approval in forma specifica. The juridical nature of this complementary legislation remains obscure, although it could be regarded as a general decree, issued by one who has executive power, that defines the pontifical legislation more precisely (cf. cc. 31-33 of the CIC). In my opinion this is the least inadequate solution, since a Congregation of the Roman Curia may not publish laws or general legislative decrees except by pontifical delegation or with a pontifical approval in forma specifica – requirements that were not fulfilled in the case of the Complementary norms.7
In this connection, Georg Bier laments the vagueness of the Complementary norms, and correctly states that it would have been better to publish a single consolidated text containing all the relevant provisions, since some of the dispositions in the Complementary norms are of great importance and it is unclear why they were not included in Benedict XVI’s apostolic constitution.8 The end result is a strange arrangement of matters between Anglicanorum coetibus and its Complementary norms.
Apart from these matters of a more formal nature, canonists have also offered observations on substantive aspects of the new provisions. Some of these aspects relate to matters that are rather uncertain, such as the scope of the power of the ordinary who governs the ordinariates with vicarious power from the Pope, or the implications of the autonomy of the ordinariate in relation to the Catholic dioceses, or the significance of the structural organization of the new figure, which in some respects is rather precarious.
One truly important question is, of course, that of the nature of the personal ordinariate. If this question is not clarified, it contaminates, so to speak, the perception of other derived and connected questions. In canonical literature it is frequently stated that the ordinariate for new Catholics coming from Anglicanism is a personal circumscription juridically equivalent to dioceses (cf. Anglicanorum coetibus, art. I § 3), but at the same time there needs to be clarity as to what such a description means, not only in respect of the ordinariate itself, but also within the systematic context of the Church’s pastoral organization. Does the figure of the ordinariate for former Anglicans express the reality of the particular Church – specifically a Church sui iuris along the lines of the Eastern Catholic Churches? How relevant is it in this regard that the Anglican tradition, which the new legislation wishes to respect as far as its liturgical, spiritual and pastoral aspects are concerned, is to be considered in its turn as being within the Latin tradition? Also, to adopt properly canonical terminology, what is to be said concerning the comparison between ordinariates for former Anglicans and other ecclesiastical circumscriptions that do not have a proper territory, such as military ordinariates and personal prelatures?
Coinciding with the commentaries published on the provisions governing the new personal ordinariates, opinions have been expressed as to the nature of these structures as compared with personal prelatures. In these pages I propose to comment on these opinions, since I sincerely believe that to examine them more deeply, avoiding sterile polemics, can help bring about a better understanding of certain aspects of the system of pastoral structures in the contemporary Church.
2. Opinions obiter dicta on ordinariates and prelatures
The abovementioned opinions on personal prelatures in the context of the new ordinariates have been expressed incidentally and summarily, except in one instance to which I shall refer below. Furthermore, they are not really opinions accompanied by new arguments; rather they repeat opinions already published many years ago.
One feature of note is the process of reception and transmission of arguments. The theory according to which a personal prelature is an institution of a clerical nature, in virtue of its composition and aims, is well known. At times this theory has gone so far as to affirm that the personal prelature, as such, belongs to the genre of associative structures in the Church, although what is more common is to hold that it is an institutional structure of an administrative nature. Within the clerical theory there is little else to say, since its proponents have not been very concerned to state what a personal prelature positively ought to be and what characteristics it ought to have within the ecclesial communion; instead, this associative-clerical theory has dedicated more time and space to denying that the personal prelature is an ecclesiastical circumscription made up of clerics and laity, under the governance of a prelate as its proper ordinary.
The claim that the personal prelature is an institution consisting exclusively of clerics, not pertaining to the system of communities with clergy and people within the hierarchical organization of the Church, is found in manuals, dictionaries and above all brief commentaries on cc. 294-297 of the 1983 CIC. It sometimes happens that, from such publications, the same assertion is passed on uncritically through a process of popularization and dissemination of opinions. In this way the question of the nature of the personal prelature is swept aside in a few words, in doctrinal contexts that call for greater reflection.
We can provide a few examples of this way of proceeding. The publication of the documents that facilitate the corporate insertion of former Anglicans into full communio has been made possible after several years of approaches to and conversations with the Holy See. On a number of occasions the possibility was raised that the canonical instrument to facilitate that goal might be the personal prelature. This possibility did not always find acceptance; objections were presented even by one eminent canonist who in fact defends the “communitarian” nature of the personal prelature – that is, its possible composition of clerics and laity.9 However, these opinions aside, what is reprehensible is that the possibility of a prelature for former members of the Anglican Communion should be rejected through the prejudice of considering it to be a clerical or associative-clerical institution.
Thus Anthony Jeremy writes that the possible application of the model of the personal prelature as an “ecclesial association of the faithful” to the former members of the Anglican Communion had the disadvantage that the lay people could only cooperate with the prelature, without forming its proper people.10 The author does not explain this assertion other than by a vague reference to cc. 295 and 296 of the CIC, which in no way confirm that a personal prelature (or any prelature for that matter) could be an association of the faithful. From the canons of the 1983 CIC alone it can be seen that personal prelatures are not regulated among the associations of the faithful, nor by the norms on associative consecrated life; an association of the faithful is not erected after a consultation of the episcopal conference concerned, nor does it depend on the Congregation for Bishops, nor is it headed by a proper ordinary with power of governance and ordinary capacity to incardinate clergy, as is however the case with any personal prelature.11
Another incidental reference to the nature of personal prelatures in the context of the new norms for former Anglicans is contained in an article by Christopher Hill who considers them as “essentially clerical institutions or societies”.12 Once again there are no further explanations, as though such a conclusion were incontrovertible. Of course, from this sort of starting point it would be impossible for a personal prelature to be suitable for providing a corporate welcome to former Anglicans, who attach such importance to the participation of the laity in the Church’s life and institutions.
This doctrinal attitude is excusable when it results from information which cannot be properly verified. That it should appear in the interesting, extensive and well-documented article on Anglicanorum coetibus in which Georg Bier deals with the comparison between ordinariates and personal prelatures is harder to understand. Such a comparison Is perfectly logical, since at the very least what are involved are two ecclesiastical institutions with personal, non-territorial jurisdiction. But Bier simply consigns the matter to a footnote, in which, apart from asserting that personal prelatures are clerical groupings which do not differ radically from institutes of consecrated life and societies of apostolic life and which are not even structures of the Church (sic), even though they are in the Church, he maintains that to liken and compare ordinariates and personal prelatures is a matter of ecclesiastical politics, aimed at a re-evaluation of the personal prelature as a particular Church. He even goes so far as to personalize this political attitude by referring to the biography of Bishop Juan Ignacio Arrieta.13 But in doing so, apart from comfortably distancing himself from the doctrinal question which he ought to have tackled, the German canonist commits the grave error of polluting the atmosphere of healthy discussion with the black smoke of an ad hominem rebuke. Anyone who has studied the specialist literature during these years knows that there are authors who put forward respectable arguments in favour of the possible juridical comparison of the personal prelature with the diocese, within certain limits and always on the basis of what is laid down by the statutes of each prelature; but he will also be aware that there is no known canonist or theologian who has argued that the personal prelature is or could be considered a particular Church. What is needed is to analyse these respectable arguments, and not, like Don Quixote, to tilt at windmills.
Greater importance is given to the relationship between ordinariates and prelatures in a study by Vittorio Parlato, published shortly after Anglicanorum coetibus.14 His article raises in general terms, albeit briefly, the question of complementarity with the particular Churches and refers to an address by John Paul II read in 2001. We will deal with both these matters later on in these pages.
But the one who has certainly dedicated most space to the argument which we are concerned with here is Gianfranco Ghirlanda, in an article which was published shortly after the pontifical documents on the reception of Anglicans into the Catholic communion. The pages which the influential professor from the Gregorian University in Rome dedicates to the relationship between ordinariates and prelatures contain few novelties as regards what he had previously written.15 Furthermore, he insists in a categorical and somewhat polemical fashion on his well-known opinions concerning the nature of the personal prelature. I write that he does so polemically, not because he opens up a dialogue with opinions differing from his own (since he simply fails to cite them), but in the sense that his argumentation is negative. Father Ghirlanda insists on what the personal prelature is not. He writes that it is not an ecclesiastical circumscription comparable to the dioceses and that lay faithful cannot be incorporated in it so as to cooperate organically with the priests, since otherwise we would be faced with a hierarchical structure with clergy and people, which was a model rejected during the preparatory work on the CIC. He bases himself, for this negative argumentation, on a particular reading of the preparatory work for the 1983 CIC, and, by way of novelty, he also relies on some notes on the particular law applicable to the only personal prelature existing up to now, that is, Opus Dei.
These pages are not aimed at repeating well-known arguments on the nature of personal prelatures. But there are certain matters which I would like to explore once again, more than anything because of the importance they present in themselves. Perhaps by means of similar doctrinal endeavours it might be possible to encourage a greater development of the figure of the personal prelature for the benefit of the Church, to help improve upon the hitherto very limited application of this canonical and pastoral figure.16
3. Revisiting the Second Vatican Council concerning the laity in personal prelatures
3.1. The instituting text and its interpretation
The figure of the personal prelature is mentioned in three places by the Second Vatican Council: the decree Presbyterorum ordinis, no. 10, and the decree Ad gentes, nos. 20 and 27. In reality the first of these references is the one of greatest interest, since Ad gentes refers back to the decree on priests.17
First of all we can recall the literal text of Presbyterorum ordinis, no. 10, which instituted personal prelatures: “Present norms of incardination and excardination should be so revised that, while this ancient institution still remains intact, they will better correspond to today’s pastoral needs. Where a real apostolic spirit requires it, not only should a better distribution of priests be brought about but there should also be favoured such particular pastoral works for different social groups as are necessary in any region or nation anywhere on earth. To accomplish this purpose there should be set up international seminaries, special dioceses or personal prelatures, and so forth, by means of which, according to their particular statutes and always saving the right of bishops, priests may be trained and incardinated for the good of the whole Church.”18 19
This text has of course been studied and commented on many times by authors dealing with personal prelatures. At first sight it seems to limit itself to setting out the new figure of the personal prelature, in the context of a desired renewal of the norms on incardination and excardination. The text specifies the purpose of the envisaged new institutions, which is not limited exclusively to the geographical distribution of clergy, but includes the sphere in which personal prelatures may operate, their capacity to incardinate clergy and the necessary respect for the rights of the local ordinaries when the norms applicable to each prelature are established. In the conciliar decree on priests, mention is also made of other entities which are well known in canon law, such as dioceses and seminaries, such mention being accompanied in each case by qualifying descriptions that express their novelty: international seminaries, personal prelatures, special dioceses.
A study of the preparatory work for Presbyterorum ordinis, no. 10, confirms the concern of the bishops to facilitate a better distribution and mobility of clergy, as well as the desire to facilitate pastoral works for the benefit of specific social groups, and the inclination towards non-territorial hierarchical structures respectful of the power of the bishops in their dioceses. The same occurred during the preparation of other Council documents, such as the decree Christus Dominus on the pastoral office of bishops in the Church, which in its no. 18 refers to the necessary spiritual attention to be given to groups of faithful who by reason of circumstances of social mobility cannot adequately receive ordinary pastoral care (above all, emigrants and the like). Such pastoral concerns, joined with the tendency towards and the practical reality of a flexible use of the former prelatures nullius dioecesis, led to express provision in the decree on priests for personal prelatures, for the first time in the history of canon law.
In other words, in making provision for personal prelatures two elements were at play: on the one hand, the new social circumstances which a predominantly pastoral council such as Vatican II could not fail to regard as an opportunity and call for a renewal of ecclesiastical structures; and on the other, the reform or broadening of already existing structures, such as dioceses and prelatures, so that, without ceasing to be true dioceses and prelatures, they could be rendered more suitable to the challenges of modern evangelization.
It is natural that in interpreting the text quoted from Presbyterorum ordinis, no. 10, authors should have dwelt on the significance of the specific kind of structure it expressly mentions. These studies have made it possible to go more deeply into the meaning of prelatures in canon law. The Council wanted the new figure to belong to a category already known by the Church’s law, so that its definition as “personal” should not exclude it from the category of “prelature”. There is no information in the quoted text that allows one to talk of an association of the faithful or of priests, and the proper context of the text in question prevents any interpretation of this kind. Nor does Presbyterorum ordinis, no. 10, allow the composition of the personal prelature to be exclusively clerical: the fact that this text is included in a document dedicated to priests does not mean that it is only priests who may belong to personal prelatures; moreover, in the text there is mention of special dioceses, which by definition, as dioceses, include lay faithful. Looking at a broader context within Vatican II, when the decree Christus Dominus deals in its no. 43 with the former military vicariates it does not mention the laity as possible members of the vicariate, but only the military vicar and chaplains; but since it is a well-known figure it would not occur to anyone to deny that the laity could belong to such circumscriptions.
For these and for other reasons that might be mentioned, it is not possible to accept the statement of Ghirlanda when he maintains, without any reference to prove it, that “the Council does not take into consideration the possibility of a collaboration of the laity in the activities of a personal prelature and much less of their incorporation into it. Hence the Council does not envisage personal prelatures being instituted for the ordinary pastoral care of faithful who belong to the prelature”.21 Even though this is an assertion written in a footnote to the principal text, what is stated here is too important to be passed over without comment, since if the conciliar basis for personal prelatures is obscured it is inevitable that subsequent conclusions will be contaminated on account of the original error.
As has already been said, the Second Vatican Council did not concern itself directly with the mechanism of the incorporation of the lay faithful into the new prelatures, since this and other matters were left for later norms to develop. This was completely reasonable, since the Second Vatican Council was not the suitable forum for detailed legislation.22 But to deduce from this natural silence the impossibility of lay participation is to go too far, implying as it does that the instituting text ought to have set out detailed regulations which at that moment it was not its mission to provide.
A good study on personal prelatures in the Second Vatican Council was published by Javier Martínez Torrón in 1986. One of the author’s conclusions in relation to the communitarian basis of the envisaged new prelatures is that “the mind of the Second Vatican Council was favourable to the active intervention of lay people in those apostolic initiatives …, in accordance with the specific role they have in the Church”.23 Indeed, from November 1963 on, with the Schema decreti de sacerdotibus, none of the drafts of Presbyterorum ordinis referred to personal prelatures as entities formed exclusively by priests, because from that moment the model of the Mission de France ceased to be the exclusive reference for the inspiration of personal prelatures.24 Later on Martínez Torrón states with good reason that the cooperation of lay faithful in personal prelatures, explicitly foreseen in the m.p. Ecclesiae Sanctae, I, 4, was not a “radical innovation” as regards what the Council had already approved.25 This law of Paul VI was published on 6 August 1966, barely eight months after the definitive vote on the decree Presbyterorum ordinis.26
Notable also is the conclusion which Ciro Tammaro draws after studying the process of formation of Presbyterorum ordinis: “From an examination of the drafts of the Decree Presbyterorum ordinis it is clear, therefore, that the intentions of the Council Fathers did not include the objective of excluding the laity from such structures [personal prelatures], but rather that of fostering their participation, so that the postconciliar legislation would simply develop and give suitable juridical form to this objective”.27 For my own part, several years ago I studied the evolution of personal (or “special”) dioceses in the preparatory work for the decree Christus Dominus and for Presbyterorum ordinis, no. 10. To my mind it is significant that in that preparatory work on the decree on priests there took place an evolution ad maiorem. Up to the Schema propositionum de sacerdotibus of April 1964 there were allusions only to what would later be personal prelatures and international seminaries; but from the time of that draft and in the definitive text there was mention also of personal dioceses alongside the other two institutions referred to. One could conclude from this that Presbyterorum ordinis, no. 10, did not limit itself to talking about clerical institutions.28
In summary, the Second Vatican Council did not break up the unity of the notion of prelature, but rather for pastoral reasons, on the basis of what already existed (the old prelature nullius dioecesis), it brought in a new form of prelature not having its own territory. This is the main conclusion, elementary if you will, but of great importance, which is to be drawn from the Council texts.29
3.2. Presumption “iuris tantum” in favour of the participation of the laity in Church communities
But it is not only the texts of Vatican II on personal prelatures that we need to look at anew. When dealing with personal prelatures, just as with any other ecclesial institution, it is also advisable, indeed necessary, to have very much in mind the teaching of Vatican II on the vocation of the laity in the Church. The texts of Lumen gentium, the decree Apostolicam actuositatem and other Council documents contain a teaching which has contributed to a re-evaluation of the calling of all the faithful to holiness and apostolate. Apostolate and service to the Church are not reserved to the hierarchy, but are the task of all, because they are based on the sacraments of baptism and confirmation. As the Council taught, “all share a true equality with regard to the dignity and to the activity common to all the faithful for the building up of the Body of Christ”.30
The co-responsibility and participation of the laity in the life of the Church is a principle, a foundational criterion, which is nowadays peacefully accepted as a consequence both of the conciliar teaching and also of the impulse given to it by the Popes from Paul VI to Benedict XVI, and in particular the commitment of Blessed John Paul II, as manifested on several occasions and in a very significant manner in the apostolic exhortation Christifideles laici of 30 December 1988. This document was the fruit of the Synod of Bishops held in 1987, dedicated precisely to the vocation and mission of the laity in the world.
All this rediscovery by the Church, assisted by the Holy Spirit, of the importance and participation of the laity would be ineffective if it did not bring with it a personal and communitarian commitment on the laity’s part, not only in the world, but also and inseparably in the life of the Church and its institutions. This is certainly an aspect that demands discernment, so as to avoid, on the one hand, the clericalization of the laity, that is, the danger of reducing the lay vocation to the promotion of lay people in tasks properly or traditionally exercised by the clergy; while on the other hand it is necessary to avoid the danger of a false egalitarianism which distorts the different functions and the very real distinction between the common priesthood and the ministerial priesthood. However, those dangers should not detract from the fundamental question: the laity have duties but also rights, and are called to participate actively in the life of the Church.
One might ask what this has to do with the nature of personal prelatures. Suffice it to recall what Pope Paul VI established in the m.p. Ecclesiae Sanctae, referred to earlier: “nothing impedes” the laity from participating in personal prelatures.31 There is no obstacle to their taking part or even running the apostolates of those prelatures and possibly being involved in their governance. Nothing impedes their being taken seriously and their role not being reduced to that of mere assistants to the priests, but rather organic cooperators with them. Lay people can be members of personal prelatures and take an active part in them. As we shall recall, this aspect was recalled with great clarity by Pope John Paul II.
Such is the strength of the theology of the laity based on the Second Vatican Council that in order to deny that the laity can be members of the Church’s institutions, and specifically of a personal prelature, it would be necessary to prove and justify such an exception. It is obvious that the laity cannot take part, for example, in a council of priests, which is an institution envisaged by Vatican II, but this is not discrimination against them because that organism is, by its specific nature, representative of the presbyterium of the diocese.32 That is not the case with the personal prelature, which is instituted not only for the distribution of clergy, but also and inseparably to carry out “such particular pastoral works for different social groups as are necessary in any region or nation anywhere on earth”.
In summary, there appears to me to be sufficient justification for establishing in general terms a presumption in favour of the possible participation of the laity in Church institutions, unless it is proved (presumption iuris tantum) that the nature of things or some specific norm excludes such participation. The doctrine excluding the laity from being members of personal prelatures reverses the burden of proof without any justification. There would be little point in recognizing the adulthood of the laity, promoted by the contemporary Church, if in practice such participation were limited, ignored or rejected without justifying reasons.
4. Interpretation of the preparatory work for the 1983 CIC on personal prelatures
4.1. Difficulties over definitive conclusions
The question of how the regulation of personal prelatures was envisaged during the preparatory work on the CIC has been very well studied, even though the conclusions drawn from the known data vary from one author to another.
It is not now a question of tiring the reader with a detailed description of the whole process of the elaboration of the drafts up to the promulgation of the definitive text. To summarize the most significant aspects of that work, we can recall that in the 1977 Schema de Populo Dei and also in the 1980 Schema Codicis, personal prelatures were regulated in a brief manner among the canons dedicated to ecclesiastical circumscriptions. In the 1977 draft the personal prelature was made equivalent in iure, that is, in certain aspects of its juridical regulation, to the particular Churches, a notion within which were simultaneously included dioceses, territorial prelatures and other figures. Mention was also made there of “military prelatures”, which up to that time were called vicariates and were considered as examples of the model of the personal prelature.33 For its part the 1980 Schema Codicis nuanced still further the equivalence of personal prelatures to dioceses, establishing that this should take place in accordance with the statutes of each prelature and so long as the nature of things or the law did not impede it.34 This draft retained the reference to military prelatures as a type of personal prelature.
The wording changed in the 1982 Schema Codicis, which ceased to regulate personal prelatures by means of equivalence. This 1982 draft made use of the norms in the m.p. Ecclesiae Sanctae and incorporated them substantially in the new cc. 573-576, in the book of the CIC dealing with the hierarchical constitution of the Church. The 1982 draft passed substantially to the definitive text of the 1983 CIC, but with two changes: in the first place, the canons on personal prelatures were transferred to the place now corresponding to them in book II of the CIC, and in the second place the norm that envisaged the incorporation of lay people in personal prelatures was replaced by another text which broadened the possibilities of the laity’s participation in prelatures, without limiting them always and in every case to incorporation; hence the definitive c. 296 speaks of the “organic cooperation” between clergy and laity as compared with the stricter modality of “incorporation” in the prelature which was provided for in the 1982 draft.35
Naturally the changes in the text of the drafts were accompanied by opinions from the consultors who took part in the Commission for the reform of the CIC. But the most interesting moment in the discussion took place during the plenary session which the pontifical Commission held, by mandate of the Pope, from 20 to 28 October 1981 in Rome.36 As a result of the debates at that plenary meeting, personal prelatures were regulated in the 1982 draft in a different way from that previously envisaged. It was feared that the juridical equivalence of personal prelatures to dioceses could be understood as a theological consideration of such prelatures as particular Churches, although in fact some of the opinions expressed on that occasion confused juridical equivalence with theological assimilation, which in reality was not what the texts of the schema Codicis in question were suggesting. As a consequence of those debates, personal prelatures ceased to be regulated along with dioceses and other ecclesiastical circumscriptions, although in the 1982 draft they were retained in the canons on the hierarchical organization of the Church.
But the arguments expressed in the plenary session were not only of a theological or canonical nature; considerations of a pastoral nature were also expressed. Something had happened which influenced those debates in some way.
In those years when the preparatory work for the CIC was being carried out, the Holy See was also studying the possible juridical configuration of Opus Dei as a personal prelature. The simultaneous preparation of the norms on personal prelatures in the CIC and the documents of the first personal prelature should not in itself have created major problems, above all because the criteria of the Second Vatican Council and the norms of the m.p. Ecclesiae Sanctae, in force since 1966, were already in existence and provided a point of reference. Indeed the studies were proceeding without special difficulties or arguments.
But in October 1979 there took place an unlawful attempt to obstruct the erection of Opus Dei as a personal prelature. By means of a press campaign, and by sending several bishops an incomplete dossier put together in an insidious fashion, certain people tried to give the impression that in reality Opus Dei was seeking exemption or separation from the power of the bishops. The idea of those promoting that campaign was to arouse suspicion and distrust in the bishops and in the organs of public opinion regarding the true intentions of Opus Dei in seeking the transformation of its status as a secular institute into a personal prelature. The same thing occurred in August 1981.37
Those attempts did not impede the development of the procedure for constituting Opus Dei as a personal prelature. In fact, they served to ensure that the whole process was carried out with greater rigour and exactness, and on 28 November 1982 the institution founded by St Josemaría Escrivá was erected as the first personal prelature in the Church. However, the events of 1979 and 1981 produced a certain degree of confusion in the preparatory Commission for the CIC, as can be seen from a reading of the proceedings of the plenary session of October 1981, referred to above. Together with questions and aspects to be clarified, there were opinions expressed which indeed revealed distrust and suspicion regarding the possibility of “parallel Churches” or Churches independent of the bishops; in other cases the feelings were rather of confusion in the face of a situation which was not properly understood; strong reactions were also shown to what had been an insidious campaign or manipulation.38
For the reasons given it is difficult to draw definitive conclusions from the opinions put forward in the 1981 plenary session; at least, not unless there is the possibility of revising and criticizing such opinions. The result was not a formal opinion on the nature of the personal prelature, but rather a series of respectable opinions on a legislative draft, and furthermore, in some cases, those opinions were psychologically conditioned by the situation we have mentioned.
4.2. New elements of interpretation
In this regard I consider the observation by Juan Ignacio Arrieta in his article on Anglicanorum coetibus, when he makes a brief reference to the preparatory work of the CIC on personal prelatures and military vicariates, to be very timely. Bishop Arrieta writes that the system of territorial and personal ecclesiastical circumscriptions, as we know it today, was not sufficiently clear at the moment of the promulgation of the 1983 CIC. At that time, “on account of language that was not at all suitable, as can be seen from the writings of the period, there was an inability to understand the way in which the idea of particular Church, around which the ecclesiology of Vatican II had been formulated, was or was not to be applied to such personal circumscriptions; there was a failure to understand what these categories had in common, and in what respects they differed …. However, since that time, the doctrinal framework has changed greatly, and in various ways the relevant conciliar magisterium has been examined more deeply. It now seems clear that not all hierarchical structures which serve to group the faithful around their proper pastors are the same; and that the grouping of faithful does not take place in the same way in all the structures, nor for the same reasons, and that not all of them correspond to the theological idea of a particular Church”.39
This observation is correct, because we now know more about the system of pastoral structures in the Church than we did thirty years ago, as a result of new legislation, greater development of the personal jurisdictions, a deeper doctrinal understanding of the ecclesial magisterium with documents such as the 1992 letter Communionis notio (which we shall comment on below), and the pastoral and canonical bedding-in of the first personal prelature to be erected.
One new piece of information which has been published recently is that contained in the letter sent by the Prefect of the Congregation for Bishops to the first Prelate of Opus Dei, Bishop Álvaro del Portillo, dated 17 January 1983. On that date, eight days before the promulgation of the CIC, Cardinal Baggio made known the mind of the Roman Pontiff concerning the definitive regulation of personal prelatures in the CIC, which had been communicated to him by the Pope in an official audience. Specifically, Cardinal Baggio wrote that John Paul II had confirmed that “the placing in pars I of liber II does not alter the content of the canons which refer to personal prelatures, which accordingly, even though they are not particular Churches, continue to be jurisdictional structures, of a secular and hierarchical nature, erected by the Holy See for the carrying out of particular pastoral activities, such as were sanctioned by the Second Vatican Council”. Baggio added that the documents of the Holy See constituting Opus Dei as a personal prelature would be “fully valid for all effects”, once the CIC was promulgated.40
Apart from the information which this letter contains on the law applicable to Opus Dei, it also confirms something which had been noted by canonical doctrine after the promulgation of the CIC. That is, the place which personal prelatures occupy in the definitive systematic arrangement of the 1983 CIC does not in itself determine the nature of these entities, since it is only by reference to other criteria that a juridical institution can be interpreted on the basis of the place which it occupies in a body of laws. The systematic arrangement of the CIC expresses only that personal prelatures are not associations or institutes of consecrated life or particular Churches, but it does not provide information to affirm positively what a personal prelature is. Some have interpreted the final change to the 1982 draft as tantamount to the will of the legislator to the effect that personal prelatures should not belong to the hierarchical organization of the Church; however, such a conclusion is not in accordance with the mind of the legislator himself, as can be seen from the letter quoted, and as we shall also see below. In summary, the preparatory work on the CIC should not be interpreted as though the problem of the nature of personal prelatures had already been resolved and as though there had been no doctrinal advances since 1983. In my humble opinion, it is not canonically possible to attribute such force to opinions concerning a legislative draft, without altering the interpretative dynamism provided for in c. 17 of the CIC.
5. The importance of John Paul II’s address of 17 March 2001
It is surprising to note how little importance is given by some authors to one event that is relevant for the study of the nature of personal prelatures. I refer to a speech read by Blessed John Paul II on 17 March 2001, addressed to the participants in a meeting promoted by the Prelature of Opus Dei on the apostolic letter Novo millennio ineunte.41
The silence of those authors perhaps indicates that they consider this pontifical speech to be a matter of protocol and of an informal character. But that would require them to show that there are univocal canonical forms for issuing pontifical interpretations. The reality is that one cannot say that a statement of the Pope is a matter of protocol if in substance it is not so, since no known written norm or custom requires the Pope to make his declarations conform to specific forms and channels of expression.42
The 2001 address had a quite specific content, as is clear from the words used by John Paul II on that occasion. We can recall them in part now. Almost at the beginning of his speech, after the customary greetings, John Paul read the following text: “You are here representing the components by which the Prelature is organically structured, that is, priests and lay faithful, men and women, headed by their own Prelate. This hierarchical nature of Opus Dei, established with the Apostolic Constitution by which I erected the Prelature (cf. Apos. Const. Ut sit, 28 Nov. 1982), offers a starting point for pastoral considerations full of practical applications. First of all, I wish to emphasize that the membership of the lay faithful in their own particular Churches and in the Prelature, into which they are incorporated, enables the special mission of the Prelature to converge with the evangelizing efforts of each particular Church, as envisaged by the Second Vatican Council in desiring the figure of personal prelatures.”43
Pope John Paul II’s words are relevant of course for Opus Dei, but also for prelatures in general. For Opus Dei they are important as a sign of appreciation on the part of the common father, the successor of Peter, and as confirmation of a spiritual and apostolic pathway in the Church. But in addition, these words of Blessed John Paul II publicly expressed what the mind of the legislator was, in simultaneously promulgating the 1983 CIC and the norms on the first personal prelature: a personal prelature made up of priests and also lay people incorporated in it, hierarchically structured but without forming a particular Church, and all this in accordance with the mind of the Council on personal prelatures. Here we see a clear continuity between the mind of John Paul II, as evidenced by Cardinal Baggio’s letter of 17 January 1983 referred to earlier, and the pontifical address of 17 March 2001.
It is well known that some years ago a number of canonists claimed that there was a conflict between the norms of the CIC on personal prelatures and those applicable to Opus Dei as the first personal prelature. According to these authors the CIC regulated an institution of clerical composition aimed at the incardination and distribution of clergy, while the norms applicable to Opus Dei gave configuration to this prelature made up of priests and lay people under the jurisdiction of a prelate, as a result of which it was taken out of the scope of the norms of the CIC and was brought closer to the model of personal circumscriptions having their own people.44
The basis for this claim regarding a supposed conflict was a formal chronological consideration: the Prelature of Opus Dei followed the model of personal circumscriptions because it was erected on 28 November 1982, i.e. before the 1983 CIC corrected the idea of personal prelature as it had been expressed in the 1977 and 1980 drafts. However, this interpretation lacks an adequate canonical foundation, since this prelature was not erected according to the drafts of the CIC, but through an administrative and legislative process on the basis of the Second Vatican Council and the m.p. Ecclesiae Sanctae: a process which ended when the norms on the first personal prelature were canonically promulgated, after the official promulgation of the CIC.45
But apart from the formal chronological question concerning the promulgation and entry into force of these texts, there is a seriously flawed methodological presupposition in attempting to separate the personal prelature of the CIC from the Prelature of Opus Dei. The error was acutely identified by Professor Gaetano Lo Castro several years ago, and it is none other than accusing the legislator of contradicting himself.46 Indeed, if the same legislator promulgates the canons on personal prelatures in the 1983 CIC, and at virtually the same time personally sanctions a set of norms on the first personal prelature that contradict those canons, the conclusion has to be that there is an irrationality in the contradiction, which needs to be explained away by proving a “corrective” intention on the part of the legislator – something which it has not been possible to do, since no such double contradictory intention ever existed.
The 2001 pontifical address proves the opposite: namely that, as we have just recalled, on that occasion the legislator of the CIC and of the first personal prelature openly expressed the conformity between the Council, the CIC and the particular law of the Prelature of Opus Dei, without any contradiction – which does not mean that there are no questions to be explained or interpreted in harmony with the canonical legal order as a whole. But the necessary interpretation and normative harmonization have nothing to do with the methodological presumption of a supposed legislative schizophrenia, such as would arise from simultaneously issuing two sets of mutually irreconcilable norms on the same matter.
Returning to the pontifical address which we are commenting on here, the statements it contains also mean that the study and interpretation of the particular law of Opus Dei is relevant for a better knowledge of the nature and the characteristics of personal prelatures.47
6. Instruments for the linking of the faithful to personal circumscriptions
6.1. The difference between assignment “ipso iure” and voluntary assignment
Pope John Paul II’s 2001 address which we have just commented on also indirectly clarified one matter which has taken on a certain importance in studies on the Church’s hierarchical structures. I refer to the problem of the assignment or canonical linking of the lay faithful – and also, where applicable, that of the members of institutes of consecrated life – to personal circumscriptions. This problem has given rise to discussions among canonists, although the question is gradually being clarified in parallel with the development of the canonical system of personal circumscriptions following the 1983 CIC and the introduction of military ordinariates, the figure of the personal apostolic administration and the personal ordinariates for former members of the Anglican Communion.
In that address, John Paul II explained that both laity and priests were essential components of Opus Dei. The Pope spoke of the “organic way that priests and laity work together” in the aim of the prelature. Starting out from that consideration he explained in a simple manner the functions proper to both priests and lay people in Opus Dei.48
The address in question is important in that it represents a public clarification, although in reality it does not contain any novelty regarding the “personal” aspect that has been a characteristic of Opus Dei for many years. The pontifical recognition is in accordance with the texts of the Prelature’s particular law, namely the ap. const. Ut sit and the Statutes of Opus Dei sanctioned along with it.49 And as far as general Church law is concerned, the possibility of lay people being incorporated in a personal prelature is admissible according to c. 296 of the CIC, since the organic cooperation between clergy and laity to which that canon refers is a general aspect which needs to be specifically developed in the statutes of each personal prelature.
It is precisely c. 296 of the CIC that tries to resolve the problem of the manner of the faithful’s assignment or relationship to a personal circumscription. This problem does not arise as acutely in territorial circumscriptions as it does in personal circumscriptions. In the former the matter is easily resolved by means of the canonical institute of domicile: all the faithful belong to the parish and diocese in which they have their canonical domicile; that is, in the place where they reside with the intention of remaining there permanently, or where they have actually resided for five complete years. Through domicile each person acquires his or her proper parish priest and ordinary (CIC, cc. 102 and 107). By contrast, in personal circumscriptions, which lack their own territory, domicile cannot be considered a basic criterion for membership.
In theory two systems of assignment to a personal prelature are possible, although c. 296 considers only one of them. In the first place, it is possible for assignment to a prelature to be determined by the law itself (ipso iure), on the basis of the fulfilment of the conditions laid down by the law. Using the example of the military ordinariates – institutions similar to personal prelatures – the predominant (but not exclusive) criterion of assignment is the military profession. The pontifical law which regulates the ordinariates provides that those who belong to the military ordinariate are primarily Catholics who are military by profession.50 In such cases there is no need for any declaration or special initiative on the part of the faithful to be incorporated in this ecclesiastical structure for military personnel and to become subject to the proper chaplain and the military ordinary.
In the second place there is the system of assignment envisaged by the previously mentioned c. 296, which is of particular interest as it relies on the voluntary participation of the faithful, who freely manifest their desire to cooperate or even be incorporated in the prelature.51
6.2. Examples and scope of voluntary assignment
This second system of assignment is not limited to the provision in c. 296 of the CIC and the particular law of the first personal prelature, but is also similar to what was applied in the year 2002 to the figure of the personal apostolic administration. In that year the Personal Apostolic Administration of St John Mary Vianney was established in Campos, Brazil. The decree of erection of this administration was published on 18 January 2002 by the Congregation for Bishops, which had received a special delegation from Pope John Paul II for that purpose.52
The establishment of a personal apostolic administration is an act of governance whose significance for canonical constitutional law should not pass unnoticed. There now exist territorial and personal administrations, and the system of circumscriptions envisaged by the law of the Church has been broadened, albeit that at present there has only been one personal apostolic administration established and furthermore it is circumscribed within a limited local area.
Apart from other aspects, such as the confirmation of cumulative power with the local Church, one interesting consequence of the regulation of the first personal apostolic administration has been precisely the manner of assignment of the faithful. In art. IX of the 2002 decree three ways of incorporation of the laity in the Personal Apostolic Administration of St John Mary are established. First, those who already belonged to the institution are assigned to it ipso iure; second, there are those who are baptized and registered in it; third, those lay faithful who identify or recognize themselves in the special features of the new apostolic administration can become members by manifesting in writing their desire to be incorporated, which is to be recorded in a special register.53
It is interesting therefore that the norms on the personal apostolic administration should have envisaged the incorporation of the laity in this community. This acknowledgement of the voluntariness of the faithful is also to be found in the norms of the ordinariates for former Anglicans. According to the ap. const. Anglicanorum coetibus and its Complementary norms, the lay faithful of the personal ordinariate may be former members of the Anglican Communion who have been received into full Catholic communion, or they may be faithful who receive the sacraments of Christian initiation under the jurisdiction of the ordinariate itself. There is also the exceptional possibility of membership of the ordinariate extending to faithful who have been baptized as Catholics and who later join the ordinariate, if they are members of a family which belongs to it. For the first of these three situations, that is, laity who come from Anglicanism and are received into the Catholic Church, it is expressly required that they manifest in writing their desire to join the ordinariate after making the profession of faith, a desire which is registered in the ordinariate if there is nothing to impede this.54
Hence both in the juridical governance of personal prelatures and in that of personal apostolic administrations and personal ordinariates, there is provision for the voluntary assignment of lay faithful. These types of agreement based on the free declaration of will on the part of the faithful can vary in their effects and scope according to particular cases. But it is clear that they do not give rise to the circumscription in question, since an ecclesiastical circumscription is a hierarchically structured community which does not arise from the will of its members, as is the case with associations of faithful in which the original force of the associative agreement is in itself creative of the association.55 By means of the declaration of the faithful and its acceptance on the part of the corresponding authority, the linking of the faithful to an entity which has already been instituted by the Apostolic See is confirmed (the clerics, for their part, follow the systems of incardination or attachment which apply to them, in accordance with universal law and the norms of each circumscription).
The agreement which the faithful establish with the personal prelature, or with the personal apostolic administration or personal ordinariate, is not therefore a mere labour contract, nor is it a simple external cooperation in the apostolic or pastoral tasks of the community without belonging to it or being under the jurisdiction of the relevant ordinary. Any personal circumscription may admit within itself associations of cooperators which allow such external cooperation. But the agreements regulated by the norms of those circumscriptions presuppose something more, since they allow the faithful to dedicate themselves to the apostolate carried out in the personal circumscription, and to cooperate with the priests for that purpose. It is a religious and apostolic dedication, which may even be the result of a special charism or vocation which the person feels moved to fulfil in the Church precisely through his or her incorporation and work in the personal circumscription. In this case the contract or agreement between the lay person and the prelature or ordinariate is the juridical expression of a spiritual charism, which may involve a serious commitment to holiness and apostolate as a result of that divine calling.56
7. Systematic questions on ordinariates and prelatures
7.1 Broadening of the system of pastoral structures
As we have recalled in these pages, in the years following the 1983 CIC there has been a broadening of the system of hierarchical communities in the Church by means of the regulation of new personal circumscriptions. In 1986 the military ordinariates were introduced, in 2002 the figure of the personal apostolic administration was established for the first time and in 2009 Benedict XVI established the figure of the personal ordinariates for former Anglicans received into the Catholic Church.
A suitable ecclesiological framework for these canonical figures may be the one set out in 1992 in the Congregation for the Doctrine of the Faith’s letter Communionis notio.57 That magisterial document laid the foundation for interdiocesan hierarchical institutions distinct from the particular Churches, but at their service. In particular, no. 16 of Communionis notio, in the context of the teaching on unity and diversity in ecclesial communion, says the following: “For a more complete vision of this aspect of ecclesial communion – unity in diversity – one needs to bear in mind that there are institutions and communities established by the Apostolic Authority for specific pastoral tasks. They belong as such to the universal Church, though their members are also members of the particular Churches where they live and work. The manner of belonging to the particular Churches, with its own particular flexibility, takes different juridical forms. But it does not erode the unity of the particular Church founded on the Bishop; rather, it helps endow this unity with the interior diversification which is a feature of communion.”58
Already prior to the publication of Communionis notio, but even more so following its doctrinal stance and in particular its no. 16, it was possible for the distinction to develop between particular Churches and complementary institutions. The notion of particular Church, expressed in the Second Vatican Council and developed by contemporary ecclesiology, was thus enriched by the opening up of doctrine to hierarchically structured communities which are not particular Churches but are at their service; these complementary hierarchical structures take on pastoral tasks which in view of their special nature, broad characteristics and organizational demands cannot in practice be stably taken on by the dioceses. A military ordinariate, for example, through its pastoral tasks serves the particular Churches in the country in which it is erected; it complements the diocesan work in the specific area of the religious care of Catholic military personnel and their relatives. The ordinariate is thus an institution of the universal Church at the service of the particular Churches; and the same could be said of the particular tasks which a personal prelature develops in the service of the diocese.59
When attempting to express in canonical terms this communion and interrelationship between the particular Churches and complementary hierarchical communities, it has proved very useful that the relatively traditional term circumscription has become settled in the language of the Church’s constitutional law. This brings about a clarification, or rather completion, of the terminology of the CIC, which had attempted with not totally satisfactory results to make the classification of hierarchical structures dependent upon the use of the notion of particular Church. But the notion of particular Church is clearly inadequate in the pastoral organization of the Church if it is used in an exclusive way, because, as Communionis notio has made clear, there are personal hierarchical communities (personal prelatures, ordinariates) that are not particular Churches.60
In 1986 the ap. const. Spirituali militum curae provided a good solution to this dilemma when it provided in its art. I § 1 that military ordinariates are special circumscriptions juridically equivalent to dioceses. From that moment it became clearer that a non-territorial hierarchical structure such as the military ordinariate could be classified as a circumscription, thereby diminishing the traditionally strong territorial overtones of this term, which was now considered doctrinally suitable to include both particular Churches and other institutions not strictly corresponding to the theological category of particular Church.
7.2 The importance of cumulative power
Another canonical expression typical of this distinction between particular Churches and circumscriptions that complement them is “cumulative power”. The canonical institution of cumulative power means that either the diocesan jurisdiction or the jurisdiction of the personal circumscription may act in the service of the faithful of an ordinariate or a personal prelature. This is made specific in certain rules, in which it is usually specified that in the places proper to the personal circumscription (for example, its proper see, its curia, its principal establishments), it is primarily the personal ordinary and the chaplains of that jurisdiction who act; and secondarily, but by proper law – that is, without the need to receive any delegation – the bishop and parish priests of the local Church.
This figure of cumulative power has a strong communitarian ecclesiological meaning and is not merely a canonical instrument for organizing relations between the diocesan jurisdiction and the personal jurisdiction. Indeed, cumulative power involves recognizing the double membership of the faithful in the personal circumscription of which they form part and also, inseparably, of the local Church and territorial parish where they live. This interesting and fruitful canonical institution makes it possible to express the fact that a member of the faithful is not obliged to choose between territoriality and personality, since his incorporation in the personal circumscription does not separate him from the particular Church. One can thus understand the consistency of this canonical figure with the broadly developed ecclesiology of communion in the contemporary Church.
Historically, too, the development of the notion of cumulative power represented a step forward in the juridical governance of the old military vicariates, since it replaced the system of exemption, that is, the separation between the diocesan jurisdiction and the jurisdiction of the vicariate, whereby the military personnel belonged exclusively to the latter, but not to the local diocese. This system of exemption or separation of jurisdictions brought about not a few practical problems in the history of military ecclesiastical jurisdiction, above all through nullities of marriages and other juridical acts when the parochial or diocesan jurisdiction intervened; hence it was superseded by the instruction Sollemne semper, which in the year 1951 recognized, in a general manner, cumulative power for military pastoral care, a recognition also confirmed by the ap. const. Spirituali militum curae for military ordinariates and by the norms for the first personal apostolic administration.61
For all these reasons it is a pity that this recent tradition of cumulative power should have been interrupted with the ordinariates for former Anglicans. According to the new norms it does not appear that the ordinary’s power is cumulative with that of the diocesan bishops, despite some uncertain expressions.62 In these dispositions it is not clear that the former members of the Anglican Communion are faithful of the diocese once they are received into the Catholic Church. Rather it appears that the pontifical vicar who governs the ordinariate does so with exclusive power over those faithful.
Furthermore, in the three ordinariates already erected, those of Our Lady of Walsingham (England and Wales), the Chair of St Peter (USA), and Our Lady of the Southern Cross (Australia), there are two norms which seem at odds with cumulative power: on the one hand, for a cleric not incardinated in the ordinariate to assist at the marriage of a faithful belonging to the same, he should be delegated by the ordinary or quasi-parish priest of the ordinariate, which would not make sense if power were cumulative;63 and on the other, if someone wished to leave the ordinariate, it is established that he would become a member of the diocese in which he resided, which confirms the hypothesis that while he belongs to the ordinariate he is not a member of the diocese.64
This whole approach has given rise to doubts and serious questions concerning the nature of ordinariates. Some authors have gone so far as to say that the ordinariates for former Anglicans are particular Churches, which contradicts the stated intention that they should not be regulated along the lines of the ritual Churches sui iuris.65 Other authors, more accurately in our view, deny that the ordinariate corresponds to the features of the particular Church, even though under certain aspects it is treated as canonically equivalent to dioceses.66 Indeed it is very difficult to classify as a particular Church an organization as dependent on the Holy See and as canonically precarious as the ordinariate: a particular Church governed by a vicar appointed ad nutum Sanctae Sedis, dependent on the Congregation for the Doctrine of the Faith, in many cases without episcopal status, with power of limited scope, so much so that some authors have even questioned his legislative power.67 Would it not be more appropriate to consider the new ordinariates that are erected as coming within the framework of the institutions envisaged by no. 16 of Communionis notio, referred to earlier?
One of the serious underlying problems present in the new norms on these personal ordinariates is that instead of cumulative power, there has been the desire to organize the relationship with dioceses practically according to the old model of exemption.68 It is paradoxical and even self-contradictory that, on the one hand, the norms on the former members of the Anglican Communion should have been inspired by the discipline governing military ordinariates,69 while on the other hand, use is not made of the rules on cumulative power, which is precisely the most important juridical characteristic of these circumscriptions. Systematic problems therefore arise which could perhaps have been dealt with better.
In any event, the new regulation of personal ordinariates for former Anglicans has helped resolve the complex canonical problem involved in the corporate insertion of such persons into full communion with the Church. It constitutes further proof that the ecclesiastical structure of governance and pastoral activity is capable of integrating communitarian solutions compatible with the ordinary territorial system. Thus, over the last thirty years a system of pastoral structures, territorial and personal, has been developing which now goes beyond what was laid down by the 1983 CIC. Apart from the already-mentioned classification of original circumscriptions (the particular Churches) and complementary circumscriptions, the distinction between circumscriptions of ordinary governance and missionary circumscriptions, as well as that between territorial and personal circumscriptions, has become widespread. And so a whole systematic panorama has been opened up, going beyond the insufficient norms of the 1983 CIC on the matter.70
If I may be allowed a current-day classification, it would also be necessary to recognize, in addition to the dioceses, two types of prelature, territorial and personal; two types of apostolic administration, territorial and personal; the three missionary circumscriptions envisaged by missionary law (missions sui iuris, apostolic prefectures and apostolic vicariates); the residual figure of territorial abbacies; and – last but not least – the three kinds of personal ordinariate which the Latin Church recognizes today: military ordinariates, personal ordinariates for former Anglicans and ordinariates for Eastern faithful in Latin-rite territories.71
To conclude, the 1983 CIC should not be considered as a double-locking key preventing the door from being opened with a simple key, but rather as a “stop-cock” which suitably regulates the flow of water, because the important thing is that the water should flow and not become stagnant. Through this simple image what I want to say is that canonical constitutional law should be open to new developments that suitably integrate territoriality and personality in matters to do with the proper organization of the particular Churches.
Aymans, W., Das konsoziative Element in der Kirche, in W. Aymans, K. T. Geringer and H. Schmitz, Das konsoziative Element in der Kirche. Akten des VI. internationalen Kongresses für kanonisches Recht, München 1989, 1029-1057.
Arrieta, J. I., Gli ordinariati personali, Ius Ecclesiae 22 (2010) 151-172 (English translation available at ordinariateportal.wordpress.com/canon-law).
–Ordinariato personal para fieles anglicanos recibidos en la Iglesia católica, in J. Otaduy, A. Viana and J. Sedano (eds.), Diccionario general de derecho canónico, vol. 5, pro manuscripto.
Baura, E., Las circunscripciones eclesiásticas personales. El caso de los ordinariatos personales para fieles provenientes del anglicanismo, Ius Canonicum 50 (2010) 165-200 (English translation Personal Ecclesiastical Circumscriptions. The Personal Ordinariates for Faithful from the Anglican Communion, Philippine Canonical Forum XII  101-130).
–Los ordinariatos personales para antiguos anglicanos. Aspectos canónicos de la respuesta a los grupos de anglicanos que quieren incorporarse a la Iglesia católica, in C. Peña García (ed.), Retos del derecho canónico en la sociedad actual, Actas de las XXXI Jornadas de la Asociación Española de Canonistas, Madrid 2012, 239-267 (Italian version in Ius Ecclesiae 24  13-50).
Benedict XVI, Address to the Tribunal of the Roman Rota, 26 January 2008, AAS 100 (2008) 87.
Bier, G., Die apostolische Konstitution Anglicanorum coetibus und die Ergänzenden Normen der Kongregation für die Glaubenslehre. Eine kanonistische Analyse, Cristianesimo nella storia 32 (2011) 443-478.
de Fuenmayor, A., Gómez-Iglesias, V. and Illanes, J.L., El itinerario jurídico del Opus Dei. Historia y defensa de un carisma, Pamplona 41990, 431-432 (English translation The Canonical Path of Opus Dei, Princeton-Chicago 1994, 404-405).
Díaz Moreno, J. M., Constitución apostólica Anglicanorum coetibus sobre la institución de ordinariatos personales para los anglicanos que ingresan en plena communion con la Iglesia. Texto castellano y comentario, Revista española de derecho canónico 67 (2010) 415-436.
Doe, N., La constitución apostólica Anglicanorum coetibus. Un análisis jurídico desde la perspectiva anglicana, Revista general de derecho canónico y derecho eclesiástico del Estado 26 (2011) www.iustel.com (original English version The Apostolic Constitution Anglicanorum Coetibus: An Anglican Juridical Perspective, Ecclesiastical Law Journal 12 (2010), 304-323).
Galles, Duane L. C. M., Anglicanorum coetibus. Some canonical investigations on the recent apostolic constitution, The Jurist 71 (2011) 201-233.
Ghirlanda, G., La costituzione apostolica Anglicanorum coetibus, Periodica 99 (2010) 373-430.
Hervada, J., Elementos de derecho constitucional canónico, Navarra Gráfica Ediciones, Pamplona 22001, 283-303.
Herranz, J., I lavori preparatori della costituzione apostolica Ut sit, in Idem, Giustizia e pastoralità nella missione della Chiesa, Milan 2011, 384.
–En las afueras de Jericó. Recuerdos de los años con san Josemaría y Juan Pablo II, Spanish translation, Rialp, Madrid 2007.
Hill, C., An evaluation of the apostolic constitution Anglicanorum coetibus in the current ecumenical situation, Cristianesimo nella storia 32 (2011) 489-500.
Huels, J. M., Anglicanorum coetibus. Text and commentary, Studia canonica 43 (2009) 389-415.
Jeremy, A., Apostolic Constitution Anglicanorum coetibus and the personal ordinariate of Our Lady of Walsingham, Cristianesimo nella storia 32 (2011) 425-442.
Legrand, H., Épiscopat, episcopè, Église locale et communion des Églises dans la constitution apostolique Anglicanorum coetibus, Cristianesimo nella storia 32 (2011) 405-423.
Lo Castro, G., Verso un riconoscimento della Chiesa anglicana come prelatura personale? Commento ad una proposta di Graham Leonard, Quaderni di diritto e politica ecclesiastica 1 (1993) 219-227.
–Las prelaturas personales. Perfiles jurídicos, Spanish translation, Pamplona 1991, 87-137 (original Italian title Le prelature personali. Profili giuridici, Milan 1988).
Lombardía, P. and Hervada, J., Sobre prelaturas personales, Ius Canonicum 27 (1987) 11-76.
Martínez-Torrón, J., La configuración jurídica de las prelaturas personales en el Concilio Vaticano II, Pamplona 1986.
Miras, J., Notas sobre la naturaleza de las prelaturas personales. A propósito de un discurso de Juan Pablo II, Ius Canonicum 42 (2002) 363-388.
–Objetividad de los criterios canónicos de delimitación de circunscripciones eclesiásticas, in P. Erdö and P. Szabó (eds.), Territorialità e personalità nel diritto canonico ed ecclesiastico, Atti dell’XI Congresso internazionale di diritto canonico e del XV Congresso internazionale della Società per il diritto delle Chiese orientali, Budapest 2002, 477-488.
Musselli, L., La costituzione apostolica Anglicanorum coetibus, in M. Ferraresi and C. E. Varalda (eds.), Benedetto XVI legislatore, Siena 2011, 25-41.
Parlato, V., Note sulla costituzione apostolica Anglicanorum coetibus, Stato, Chiese e pluralismo confessionale. Rivista telematica (www.statochiese.it), January 2010, 16 p.
Pelletier, D., La plene communion, le genre et la générosité. Un regard d’historien sur la constitution apostolique Anglicanorum coetibus, Cristianesimo nella storia 32 (2011) 363-381.
Pontificum Consilium de Legum Textibus Interpretandis, Acta et Documenta Pontificiae Commissionis Codici Iuris Canonici Recognoscendo: Congregatio Plenaria diebus 20-29 octobris 1981 habita, Typis Polyglottis Vaticanis 1991, 376-417.
Pulte, M., Von Summorum pontificum bis Anglicanorum coetibus. Gesetzgebungstendenzen im Pontifikat Benedikts XVI. Archiv für katholisches Kirchenrecht 179 (2010) 3-19.
Renken, J. A., The personal ordinariate of the Chair of Saint Peter: canonical reflections, Studia canonica 46 (2012) 5-50.
Rodríguez, P., Iglesias particulares y prelaturas personales, Eunsa, Pamplona 21986 (English translation Particular Churches and Personal Prelatures, Dublin 1986).
Rubio, J. I., Tradición anglicana en la Iglesia de Roma. Ordinariatos personales para antiguos fieles anglicanos, Revista general de derecho canónico y derecho eclesiástico del Estado 26 (2011) www.iustel.com.
Schouppe, J. P., Les circunscriptions ecclésiastiques ou communautés hiérarchiques de l’Église catholique, Ephemerides Theologicae Lovanienses 81/4 (2005) 435-467.
Stankiewicz, A., Le prelature personali e i fenomeni associativi, in S. Gherro (ed.), Le prelature personali nella normativa e nella vita della Chiesa, Padova 2002, 139-163.
Szabó, P., L’abbazia nullius dioecesis ed il monastero stauropegiaco. Comparazione storico-giuridica, Kanon 31 (2010) 267-286.
Tammaro, C., La posizione giuridica dei fedeli laici nelle prelature personali, Roma 2004.
Van Parys, M., La constitution apostolique Anglicanorum coetibus: l’évaluation d’un oecuméniste catholique, Cristianesimo nella storia 32 (2011) 479-487.
Varalda, C. E., Nuove forme di esercizio del ministero ordinato: un confronto fra la constitutio apostolica Anglicanorum coetibus e la constitutio apostolica Spirituali militum curae, in M. Ferraresi and C. E. Varalda (eds.), Benedetto XVI legislatore, Siena 2011, 121-139.
Viana, A., Territorialidad y personalidad en la organización eclesiástica. El caso de los ordinariatos militares, Servicio de Publicaciones de la Universidad de Navarra, Pamplona 1992 (now also available at http://dspace.unav.es/dspace/handle/10171/23079).
–Derecho canónico territorial. Historia y doctrina del territorio diocesano, Navarra Gráfica Ediciones, Pamplona 2002, 171 ff. The text may now also be viewed at http://dspace.si.unav.es/dspace/bitstream/10171/5586/1/DerechoCanonicoTerritorial.pdf
–Introducción al estudio de las prelaturas, Eunsa, Pamplona 2006.
–Organización del gobierno en la Iglesia, Eunsa, Pamplona 32010, 129-146.
1 Cf. Benedict XVI, ap. const. Anglicanorum coetibus, 4 November 2009, AAS 101 (2009) 985-990 (where the pontifical text is published in Latin) and Congregation for the Doctrine of the Faith, Complementary Norms, 4 November 2009, ibidem, 991-996 (with the English text of the Norms). On possible problems in locating the official text of these Norms, see footnote 6, below.
2 See the references in footnote 6, below.
3 Cf. E. Baura, Las circunscripciones eclesiásticas personales. El caso de los ordinariatos personales para fieles provenientes del anglicanismo, Ius Canonicum 50 (2010) 165-200 (English translation Personal Ecclesiastical Circumscriptions. The Personal Ordinariates for Faithful from the Anglican Communion, Philippine Canonical Forum XII  101-130); Idem, Los ordinariatos personales para antiguos anglicanos. Aspectos canónicos de la respuesta a los grupos de anglicanos que quieren incorporarse a la Iglesia católica, in C. Peña García (ed.), Retos del derecho canónico en la sociedad actual, Proceedings of the XXXI Study Day of the Spanish Association of Canonists, Madrid 2012, 239-267 (Italian version in Ius Ecclesiae 24  13-50); J. M. Díaz Moreno, Constitución apostólica Anglicanorum coetibus sobre la institución de ordinariatos personales para los anglicanos que ingresan en plena comunión con la Iglesia. Texto castellano y comentario, Revista española de derecho canónico 67 (2010) 415-436; V. Parlato, Note sulla costituzione apostolica Anglicanorum coetibus, Stato, Chiese e pluralismo confessionale. Rivista telematica (www.statochiese.it), January 2010, pp. 16; J. M. Huels, Anglicanorum coetibus. Text and commentary, Studia canonica 43 (2009) 389-415; M. Pulte, Von Summorum pontificum bis Anglicanorum coetibus. Gesetzgebungstendenzen im Pontifikat Benedikts XVI, Archiv für katholisches Kirchenrecht 179 (2010) 3-19; G. Ghirlanda, La costituzione apostolica Anglicanorum coetibus, Periodica 99 (2010) 373-430; J. I. Arrieta, Gli ordinariati personali, Ius Ecclesiae 22 (2010) 151-172 (English translation available at ordinariateportal.wordpress.com/canon-law); Idem, Ordinariato personal para fieles anglicanos recibidos en la Iglesia católica, in J. Otaduy, A. Viana and J. Sedano (eds.), Diccionario general de derecho canónico, vol. 5, Pamplona 2012, pro manuscripto; J. I. Rubio, Tradición anglicana en la Iglesia de Roma. Ordinariatos personales para antiguos fieles anglicanos, www.iustel.com. Revista general de derecho canónico y derecho eclesiástico del Estado 26 (2011) pp. 29; N. Doe, La constitución apostólica Anglicanorum coetibus. Un análisis jurídico desde la perspectiva anglicana, Ibidem, pp. 24 (original English version The Apostolic Constitution Anglicanorum Coetibus: An Anglican Juridical Perspective, Ecclesiastical Law Journal 12 (2010), 304-323); J. A. Renken, The personal ordinariate of the Chair of Saint Peter: canonical reflections, Studia canonica 46 (2012) 5-50; Duane L. C. M. Galles, Anglicanorum coetibus. Some canonical investigations on the recent apostolic constitution, The Jurist 71 (2011) 201-233; L. Musselli, La costituzione apostolica Anglicanorum coetibus, in M. Ferraresi and C. E. Varalda (eds.), Benedetto XVI legislatore, Siena 2011, 25-41; C. E. Varalda, Nuove forme di esercizio del ministero ordinato: un confronto fra la constitutio apostolica Anglicanorum coetibus e la constitutio apostolica Spirituali militum curae, Ibidem, 121-139, D. Pelletier, La plene communion, le genre et la générosité. Un regard d’historien sur la constitution apostolique Anglicanorum coetibus, Cristianesimo nella storia 32 (2011) 363-381; H. Legrand, Épiscopat, episcopè, Église locale et communion des Églises dans la constitution apostolique Anglicanorum coetibus, Ibidem, 405-423; A. Jeremy, Apostolic Constitution Anglicanorum coetibus and the personal ordinariate of Our Lady of Walsingham, Ibidem, 425-442; G. Bier, Die apostolische Konstitution Anglicanorum coetibus und die Ergänzenden Normen der Kongregation für die Glaubenslehre. Eine kanonistische Analyse, Ibidem, 443-478; M. Van Parys, La constitution apostolique Anglicanorum coetibus: l’évaluation d’un oecuméniste catholique, Ibidem, 479-487; C. Hill, An evaluation of the apostolic constitution Anglicanorum coetibus in the current ecumenical situation, Ibidem, 489-500.
4 Cf. M. Van Parys, La constitution apostolique (footnote 3), 479-487.
5 Cf. H. Legrand, Épiscopat, episcopè (footnote 3), 419-421; also M. Van Parys, La constitution apostolique (footnote 3), 483.
6 As Baura points out, “in the promulgation of these norms [Anglicanorum Coetibus and its Complementary Norms] there was an anomaly: the corresponding issue of Acta was published and distributed with the text of the apostolic constitution, but without that of the complementary norms. Subsequently there was an informal request to replace that particular issue with another in which the complementary norms appeared. From the formal standpoint this procedure contradicts the principles for the promulgation and abrogation of laws”: E. Baura, Los ordinariatos personales (footnote 3), 243, footnote 17. Because of this atypical situation it is possible that the complementary norms are not to be found in all versions of Acta Apostolicae Sedis, as has been the case up to now (5 June 2012) with the version available on www.vatican.va. Most surprisingly, it even transpires that the very norms of the Holy See erecting the first three ordinariates do not quote the Complementary norms of Anglicanorum coetibus according to AAS, but rather as they appear in L’Osservatore Romano (cf. the decrees of the Congregation for the Doctrine of the Faith erecting the Personal Ordinariate of Our Lady of Walsingham, 15 January 2011, for England and Wales (AAS 103  129-132, footnote 2), the Personal Ordinariate of the Chair of Saint Peter, erected on 1 January 2012 for the USA (L’Osservatore Romano, 4 January 2012 and the Congregation’s website on www.vatican.va, footnote 2 of the decree) and lastly the Personal Ordinariate of Our Lady of the Southern Cross (footnote 2 of the text which I am using in this paper, in expectation of the official text for this last ordinariate). Such scant respect for the formal aspects of the new legislation deserves to be criticized, since the text of the law should be fixed by its official promulgation in one single place; furthermore, promulgation should not be confused with the mere making public of the law. What matters is not simply that the different textual versions should of course coincide, but that it is necessary to know where to find the exact legal text whose fulfilment is being ordered.
7 Cf. John Paul II, Ap. Const. Pastor Bonus, 28 June 1988, in AAS 80 (1988) 841-912, art. 18; cf. also J. M. Huels, Anglicanorum coetibus (footnote 3). Bier, Die apostolische Konstitution (footnote 3), 452, inclines more towards the figure of an administrative instruction, but there does not appear to be much basis for this, given that the content of instructions is theoretically still more modest than that of the general administrative decrees, at least if one takes into account the content of c. 34 of the CIC as compared with cc. 31-33.
8 Cfr. G. Bier, Die apostolische Konstitution (footnote 3), 452.
9 Cf. G. Lo Castro, Verso un riconoscimento della Chiesa anglicana come prelatura personale? Commento ad una proposta di Graham Leonard, Quaderni di diritto e politica ecclesiastica 1 (1993) 219-227.
10 “Apart from creating a sui iuris particular Church, which may not have met the aspirations of Anglicans petitioning to enter into Communion with the Catholic Church, the ecclesial association of the faithful which might have fitted the requirements both of the petitioners and of the Catholic Church is that of a Personal Prelature …. The problem, however, is in the composition of the prelature in that lay persons can only share in its apostolic work and are not therefore ‘proper people’ of the prelature”: A. Jeremy, Apostolic Constitution (footnote 3), 427.
11 Cf. cc. 294-297 of the 1983 CIC and const. Pastor Bonus, art. 80. On the distinction between prelatures and associations I would refer to the clear study by A. Stankiewicz, Le prelature personali e i fenomeni associativi, in S. Gherro (ed.), Le prelature personali nella normativa e nella vita della Chiesa, Padua 2002, 139-163.
12 “Though the term ‘personal’ also occurs in the Code of Canon Law in relation to Personal Prelatures (canons 294-297), these are essentially clerical institutions or societies and this model was not followed, though there are indications that it was considered”: C. Hill, An evaluation (footnote 3), 491.
13 “Von Teilkirchen im Allgemeinen und Personalordinariaten im Besonderen zu unterscheiden sind Personalprälaturen. Eine Personalprälatur gemäß can. 294 ist ein aus Priestern und Diakonen bestehender klerikaler Zweckverband, also nicht eine Struktur oder Organisationsform der Kirche, sondern eine verbandliche Struktur in der Kirche und als solche kanonischen Lebensverbänden (Ordensinstitute, Säkularinstitute, Gesellschaften des Apostolischen Lebens) nicht unähnlich. Bestrebungen, die Personalordinariate in die Nähe von Personalprälaturen zu rücken … sind kirchenpolitisch motiviert und entbehren einer kirchenrechtlichen Grundlage. Dahinter steht das Bemühen, die Personalprälatur rechtlich zu einer Teilkirche aufzuwerten. In der Tendenz ähnlich Arrieta …. Bischof Arrieta wurde für die Personalprälatur Opus Dei zum Priester geweiht, war Professor der Päpstlichen Universität Santa Croce in Rom und ist derzeit Sekretär des Päpstlichen Rates für die Gesetzestexte”: G. Bier, Die apostolische Konstitution (footnote 3), 455, footnote 53.
14 Cf. V. Parlato, Note sulla costituzione (footnote 3), especially 5 and 6.
15 Cf. especially pp. 389-413 of the article by G. Ghirlanda, La costituzione apostolica (footnote 3).
16 What Duane L. C. M. Galles writes in Anglicanorum coetibus (footnote 3), 207, is significant. He comments that in considering the personal ordinariates for former Anglicans this figure was preferred to the personal prelature in order to avoid the arguments which arose over personal prelatures during the preparatory work for the CIC (which we will study below). The argument does not seem convincing, since the constitution of a prelature depends on the assessment made by the episcopal conference concerned and by the Holy See as to the pastoral needs which can or should be resolved through it, and not on the doctrinal opinions of canonists; although one can at the same time understand that the Apostolic See should call for sufficient clarity, so as to allow the canonical form to be harmonized with the pastoral reality to which it is being applied.
17 Cf. footnotes 4 and 28 to nos. 20 and 27, respectively, of the decree Ad gentes.
18 The Latin text speaks of peculiares dioeceses, which is here translated as “special dioceses”, to convey the idea that such dioceses have particular features that distinguish them from common territorial dioceses.
19 Translator’s note: in the second sentence of the above quote from Presbyterorum ordinis, no. 10, the English version of the document which appears on the Vatican website omits the phrase “for different social groups” corresponding to the phrase “pro diversis coetibus socialibus” in the Latin text.
Christus Dominus, no. 43 states: “Since, because of the unique conditions of their way of life, the spiritual care of military personnel requires special consideration, there should be established in every nation, if possible, a military vicariate. Both the military vicar and the chaplains should devote themselves unsparingly to this difficult work in complete cooperation with the diocesan bishops. Diocesan bishops should release to the military vicar a sufficient number of priests who are qualified for this serious work. At the same time they should promote all endeavours which will improve the spiritual welfare of military personnel.”
21 “Il Concilio non prende in considerazione la possibilità di una collaborazione dei laici con le opere di una prelatura personale e tanto meno di una loro incorporazione in essa. Quindi, il Concilio non prevede che le prelature personali siano istituite per la cura pastorale ordinaria di fedeli che appartengano alla prelature”: G. Ghirlanda, La costituzione apostolica (footnote 3), 400, footnote 45.
22 Cf. in this sense, C. Tammaro, La posizione giuridica dei fedeli laici nelle prelature personali, Roma 2004, 67 ff.
23 “[L]a mente del Concilio Vaticano II era partidaria de la intervención activa de los seglares en esas iniciativas apostólicas …, según el papel específico que les corresponde en la vida de la Iglesia”: J. Martínez Torrón, La configuración jurídica de las prelaturas personales en el Concilio Vaticano II, Pamplona 1986, 277.
24 Cf. Ibidem, 277, footnotes 387 and 230. On the laity in personal prelatures in the preparatory work on Presbyterorum ordinis, no. 10, cf. Ibidem, 118 and 119, in the antepreparatory phase of the Council; and also 304 and 305, in connection with the drafts of De distributione cleri and De cura animarum. On the question of the Mission de France as the initial model for the personal prelature until the Schema de clericis of 1963, see the excellent article by P. Lombardía – J. Hervada, Sobre prelaturas personales, Ius Canonicum 27 (1987) 11-76, especially 20-38.
25 Cf. J. Martínez Torrón, La configuración (footnote 22), 305.
26 The text of the m.p. Ecclesiae Sanctae can be found in AAS 58 (1966) 757-787.
27 C. Tammaro, La posizione giuridica (footnote 21), 80.
28 Cf. A. Viana, Derecho canónico territorial. Historia y doctrina del territorio diocesano, Pamplona 2002, 171 ff. The text may now also be viewed at http://dspace.si.unav.es/dspace/bitstream/10171/5586/1/DerechoCanonicoTerritorial.pdf.
29 The new form of prelature, that is, the personal prelature, had certain historical precedents in which the form of the prelature nullius dioecesis had been applied to ecclesiastical jurisdictional structures that were personal rather than territorial: cf. A. Viana, Introducción al estudio de las prelaturas, Pamplona 2006, 36-42.
30 Constitution Lumen gentium, no. 32. Cf. also Ibidem, no. 30 and decree Apostolicam actuositatem, nos. 2 and 3.
31 “Nihil impedit quominus laici, sive caelibes sive matrimonio iuncti, conventionibus cum praelatura initis, huius operum et inceptorum servitio, sua peritia professionali, sese dedicent”: m.p. Ecclesiae Sanctae, I, 4.
32 Cf. decree Presbyterorum ordinis, no. 7; CIC, cc. 495 ff.
33 For all that follows, cf. Schema canonum Libri II, de Populo Dei, Typis Polyglottis Vaticanis, 1977, cc. 217 § 2, 219 § 2, 221 § 2; Schema Codicis Iuris Canonici, Typis Polyglottis Vaticanis, 1980, cc. 335 § 2, 337 § 2, 339 § 2; Codex Iuris Canonici, Schema novissimum, Typis Polyglottis Vaticanis, 1982, cc. 573-576. The Latin text of those drafts can be found in the appendices to the book by P. Rodríguez, Iglesias particulares y prelaturas personales, Pamplona 21986 (English translation Particular Churches and Personal Prelatures, Dublin 1986).
34 C. 335 § 2 of the 1980 draft in fact said: “Ecclesiae particulari in iure aequiparatur, nisi ex rei natura aut iuris praescripto aliud appareat, et iuxta statuta a Sede apostolica condita, praelatura personalis”. The three limits established in the text (the nature of the matter, the provisions of law and those of the statutes) are sometimes forgotten in the description of the preparatory work on the CIC, e.g. when it is stated that personal prelatures were not to be considered as equivalent to particular Churches, which is not correct, since two institutions that are treated as equivalent to one another are not identical but different, even though by analogy certain aspects of their juridical regulation are common.
35 Cardinal Herranz explains in fact that the purpose of the change in the definitive c. 296 was not to exclude the incorporation of the laity in personal prelatures; rather the change was made in order to give c. 296 a formulation that would be more open to the different possibilities of being linked to the prelature on the part of lay people. In any event what is remarkable is his statement that the change we are talking about “was decided” at the last minute, that is, when the text was already with the printers: J. Herranz, I lavori preparatori della costituzione apostolica Ut sit, in Idem, Giustizia e pastoralità nella missione della Chiesa, Milan 2011, 384.
36 Cf. especially Pontificium Consilium de Legum Textibus Interpretandis, Acta et Documenta Pontificiae Commissionis Codici Iuris Canonici Recognoscendo: Congregatio Plenaria diebus 20-29 octobris 1981 habita, Typis Polyglottis Vaticanis 1991, 376-417.
37 A complete report on those events has not yet been published, but some information can be found in A. de Fuenmayor, V. Gómez-Iglesias, J. L. Illanes, El itinerario jurídico del Opus Dei. Historia y defensa de un carisma, Pamplona 41990, 431-432 (English translation The Canonical Path of Opus Dei, Princeton-Chicago 1994, 404-405) as well as in J. Herranz, En las afueras de Jericó. Recuerdos de los años con san Josemaría y Juan Pablo II, Spanish translation, Madrid 2007, 289-291, 299-301. The events were widely reported at the time by some media outlets.
38 Cf. the opinions of Bishop Castillo Lara, 387-388, and of Cardinals Felici, 391, Siri, 409, and König, 415, among others, in Acta et Documenta (footnote 34).
39 J. I. Arrieta, Gli ordinariati personali (footnote 3), 159.
40 “La collocazione nella pars I del liber II non altera il contenuto dei canoni che riguardano le prelature personali, le cuali pertanto, pur non essendo Chiese particolari, rimangono sempre strutture giurisdizionali, a carattere secolare e gerarchico, erette dalla Santa Sede per la realizzazione di peculiari attività pastorali, come sancito dal Concilio Vaticano II …. Rimangono, infine, pienamente validi, a tutti gli effetti, i documenti della Santa Sede che hanno costituito l’Opus Dei in prelatura personale”. The full text of the letter has been published in the review Studia et Documenta 5 (2011) 379-380.
41 The Spanish text and a commentary by J. Miras appear in Ius Canonicum 42 (2002) 361-368. The English text can be found on www.vatican.va, in the section John Paul II/Speeches.
42 The question being considered here has also been studied in connection with the question as to the scope which the pontifical addresses to the tribunal of the Roman Rota should have. Pope Benedict XVI has indicated that these pontifical addresses “are a ready guide for the work of all Church tribunals, since they authoritatively teach the essential aspects of the reality of marriage” (Address to the Tribunal of the Roman Rota, 26 January 2008, AAS 100  87). Whatever the solution given to this specific question, these words of Benedict XVI confirm that a pontifical address can be the occasion and instrument of an authorized teaching or a manifestation of the will of the legislator.
43 “Voi siete qui, in rappresentanza delle componenti in cui la Prelatura è organicamente strutturata, cioè dei sacerdoti e dei fedeli laici, uomini e donne, con a capo il proprio prelato. Questa natura gerarchica dell’Opus Dei, stabilita nella costituzione apostolica con la quale ho eretto la Prelatura (cfr. cost. ap. Ut sit, 28-XI-82), offre lo spunto per considerazioni pastorali ricche di applicazioni pratiche. Innanzitutto desidero sottolineare che l’appartenenza dei fedeli laici sia alla propria Chiesa particolare sia alla Prelatura, alla quale sono incorporati, fa sì che la missione peculiare della Prelatura confluisca nell’impegno evangelizzatore di ogni Chiesa particolare, come previde il Concilio Vaticano II nell’auspicare la figura delle prelature personali.”
44 One of the first authors to defend the conflict between the CIC and the norms of Opus Dei was W. Aymans, Das konsoziative Element in der Kirche, in W. Aymans, K. T. Geringer and H. Schmitz, Das konsoziative Element in der Kirche. Akten des VI. Internationalen Kongresses für kanonisches Recht, München 1989, 1032, footnote 3.
45 These aspects were extensively explained by G. Lo Castro some years ago in his book Las prelaturas personales. Perfiles jurídicos, Spanish translation, Pamplona 1991, 87-137 (original Italian title Le prelature personali. Profili giuridici, Milan 1988). The ap. const. Ut sit, which erected Opus Dei as a personal prelature, has been termed by this author a “law-act”, in the sense that it assumes and gives legislative solemnity to a prior administrative process consisting in the erection of the Prelature of Opus Dei and the appointment of the first prelate. Hence it carries the date of the administrative act or process which it formalizes (28 November 1982). However, Ut sit was promulgated orally on 19 March 1983 through the reading of its content and of the decree of execution issued by virtue of pontifical delegation by the apostolic Nuncio in Italy, as was foreseen in the concluding section of the text of Ut sit itself. Later on, on 2 May 1983, the texts were published in Acta Apostolicae Sedis. This whole process reached its culmination, therefore, after the CIC had been promulgated on 25 January 1983. The information provided by J. Herranz, I lavori (footnote 34), 384-387, is also of great interest.
46 Cf. Las prelaturas personales (footnote), 136-137.
47 In his article on Anglicanorum coetibus G. Ghirlanda makes certain references to the particular law of Opus Dei. What is most striking is that he does not even refer in this context to the address of John Paul II on 17 March 2001. Furthermore, he states that “it is not said anywhere” that lay people are incorporated in the Prelature of Opus Dei (La costituzione apostolica [footnote 3], 396). If that statement refers to the whole particular law of Opus Dei, it is not correct (cf. the text of the Statutes of Opus Dei, published, among other places, in the collective work referred to above in footnote 36, nos. 1 § 1, 2 § 1, 3 § 1, 14 § 2, caput III, nos. 17 ff: “De fidelium admissione et incorporatione in Praelaturam”, passim); but such an assertion would not be sustainable even if it referred to the ap. const. Ut sit, since the preamble of that pontifical law provides that the Prelature of Opus Dei consists of priests and lay people, while in art. III it talks of jurisdiction over clergy and laity.
48 “I laici, in quanto cristiani, sono impegnati a svolgere un apostolato missionario …. Essi, dunque, vanno stimolati a porre fattivamente le proprie conoscenze al servizio delle ‘nuove frontiere’, che si annunciano come altrettante sfide per la presenza salvifica della Chiesa nel mondo. Sarà la loro testimonianza diretta in tutti questi campi a mostrare come solo in Cristo i valori umani più alti raggiungono la propria pienezza. Ed il loro zelo apostolico, l’amicizia fraterna, la carità solidale faranno sì che essi sappiano volgere i rapporti sociali quotidiani in occasioni per destare nei propri simili quella sete di verità che è la prima condizione per l’incontro salvifico con Cristo. I sacerdoti, dal canto loro, esercitano una funzione primaria insostituibile: quella di aiutare le anime, una ad una, nei sacramenti, nella predicazione, nella direzione spirituale, ad aprirsi al dono della grazia. Una spiritualità di comunione valorizzerà al meglio i ruoli di ciascuna componente ecclesiale”.
49 Opus Dei, as is stated in the preamble of the ap. const. Ut sit, and as is also underlined by the Statutes, is an “apostolic organism” [quasi apostolica compages] of priests and lay people, organic and undivided [quae sacerdotibus et laicis sive viris sive mulieribus constabat eratque simul organica et indivisa]. See also the nos. of the Statutes of the Prelature referred to above, footnote 46.
50 The pontifical law regulating military ordinariates allows as titles of assignment to the ordinariate – apart from that of the military profession – residence in military places, service or work in military institutions and the exercise of some ecclesial or civil function in the ordinariate: cf. ap. const. Spirituali militum curae, art. X.
51 This way of explaining the participation of the laity, which distinguishes between assignment ipso iure and voluntary assignment, is in my view preferable to the approach of some authors who distinguish between the so-called “objective and subjective criteria” of membership. Objective criteria are those which we have called ipso iure and which do not depend on the freedom of the faithful, so that at times they are described by the term “automatic” criteria of membership (a rather unfortunate expression bearing in mind the absence of freedom it evokes): for example, being of the military profession or belonging to a given rite; while subjective criteria are those that are freely chosen. But in practice this distinction becomes very confused, since objective criteria also involve an element of voluntariness, as can be seen in the canonical configuration of domicile, the objective criterion par excellence, which nevertheless involves the intention, the animus, of remaining in the place: cf. c. 102 of the CIC. Furthermore, this opinion has now been superseded by the provision for voluntary assignment not only in the case of the Prelature of Opus Dei but also, as we point out in the body of our article, in the juridical governance of the personal apostolic administration and the personal ordinariates for former Anglicans. For a critique of the distinction between objective-subjective criteria, cf. J. Miras, Objetividad de los criterios canónicos de delimitación de circunscripciones eclesiásticas, in P. Erdö and P. Szabó (eds.), Territorialità e personalità nel diritto canonico ed ecclesiastico, Atti dell’XI Congresso internazionale di diritto canonico e del XV Congresso internazionale della Società per il diritto delle Chiese orientali, Budapest 2002, 477-488.
52 See the decree in AAS 94 (2002) 305-308.
53 Art. IX provides: “§ 1. The lay faithful who up to this time belong to the ‘St John Mary Vianney’ Union become participants in the new ecclesiastical circumscription (participes fiunt novae circumscriptionis ecclesiasticae). Those who recognize themselves as bound by the special features of the personal Apostolic Administration (Qui, agnoscentes se cohaerere cum peculiaritatibus Administrationis Apostolicae personalis) should ask to belong to it, and should manifest their desire in writing, and they should be entered in a suitable register which is to be kept at the see of Apostolic Administration. § 2. In this register are also to be entered the laity who at present belong to the Apostolic Administration, and those who are baptized in it.”
54 For all these matters, cf. Anglicanorum coetibus, art. I § 4 y IX; Complementary norms, art. 5 § 1. The same can be said of the members of institutes of consecrated life who proceed from Anglicanism: cf. Anglicanorum coetibus, arts. VII and IX.
55 In my book Introducción al estudio de las prelaturas (footnote 28), 66-70, I attempt to explain the meaning of the terminology on the Church’s hierarchical structure.
56 A related question, although different from the foregoing, is that which some canonists have raised as to whether it is possible in practice to have personal prelatures composed exclusively of clerics, in addition those prelatures which simultaneously admit clerics and laity; that is, whether every personal prelature must necessarily be made up of clerics and lay faithful. According to the expressions used by cc. 294 and 296 of the CIC it appears that the response must be negative, since c. 294 establishes as a necessary characteristic of every prelature that it consists of priests and deacons of the secular clergy, without expressly mentioning the lay faithful; while c. 296 envisages the possible organic cooperation of the laity in the apostolic activities of the prelature. Nonetheless, the most commonly held view is that a distinction is to be drawn between personal prelatures established for the ordinary pastoral care of special groups of faithful (such as emigrants to a certain country) and personal prelatures erected for the carrying out of particular pastoral tasks, as in the case of the Prelature of Opus Dei. In both cases the participation of the laity is necessary. Indeed, even in the case of prelatures in which the laity are seen mainly as recipients of the ordinary pastoral care of the priests of the prelature, their position within it is not a merely passive one: since the time of the Second Vatican Council and the subsequent ecclesiological and canonical study of the role of the laity in the Church, the laity can no longer be seen exclusively as recipients of the pastoral activity of the clergy (although obviously such a position is true and necessary), but also as faithful who are co-responsible and who participate in the mission of the Church and of the personal prelature. With even greater reason, in the case of personal prelatures for the carrying out of particular apostolic tasks, the cooperation of all the members, laity and priests, in the aim of the prelature is completely necessary.
57 The letter was published on 28 May 1992: AAS 85 (1993) 838-850.
58 The italics appear in the Latin original.
59 On the complementary structures of the particular Churches, cf. among others, the thoughts of J. Hervada, Elementos de derecho constitucional canónico, Pamplona 22001, 283-303 and A. Cattaneo, La Chiesa locale. I fondamenti ecclesiologici e la sua missione nella teología postconciliare, Città del Vaticano 2003, 236-260.
60 In parallel fashion one could, in my opinion, add that there are also territorial communitarian structures whose classification as a particular Church is at least doubtful, however much the CIC indirectly describes them as such in c. 368, e.g. in the case of certain stable apostolic administrations in which there is a strong structural influence from the Holy See which governs those communities by means of a vicar; or in that of the territorial abbacy, which constitutes a historical figure, but is nevertheless so alien to the ecclesiology of the particular Church that years ago the Holy See manifested its intention not to erect any more of them in future. Indeed, the territorial abbacy is a residual figure, not because in each case it is of little pastoral importance, but because territorial abbacies can only be justified on historical grounds: cf. in this regard the article by P. Szabó, L’abbazia nullius dioecesis ed il monastero stauropegiaco. Comparazione storico-giuridica, Kanon 31 (2010) 267-286. Paul VI’s motu proprio Catholica Ecclesia, 23 October 1976 (AAS 68  694-696), declared in its no. 1 the Holy See’s intention not to erect new abbacies nullius dioecesis (nowadays territorial abbacies) in future, unless very special circumstances advised it; and in fact the last one was erected in 1968.
61 Cf. Consistorial Congregation, instr. Sollemne Semper, 23 April 1951, AAS 43 (1951) 562-565, no. II. On the historical problems of exemption as applied to military pastoral care, cf. A. Viana, Territorialidad y personalidad en la organización eclesiástica. El caso de los ordinariates militares, Pamplona 1992, 43-50 (now also available at http://dspace.unav.es/dspace/handle/10171/23079). On cumulative power in the current military ecclesiastical organization, cf. Spirituali militum curae, arts. IV.3º, V, VII. Regarding cumulative power in the case of the first personal apostolic administration erected, cf. the decree of the Congregation for Bishops of 18 January 2002 referred to above (footnote 51), arts. V and VIII § 2. Regarding the personal prelature, there is no norm that explicitly sanctions the cumulative power of the prelate and clergy of the prelature with the diocesan bishop and local parish priests, since according to universal law this will depend on the statutes of each prelature. However, the substance of the institution is present in the norms that govern the Prelature of Opus Dei, above all because the faithful of this prelature are also members of the particular Church where they have their domicile. Thus the statutes of Opus Dei establish that the faithful of the prelature depend on the local ordinaries in the same way as other Catholics in the diocese where they live (cf. nos. 172 § 2 and 176 of those Statutes, published in the collective work referred to above in footnote 36). In the Congregation for Bishops’ declaration Praelaturae personales, of 23 August 1982 (AAS 75  464-468), it is also stated that the lay people incorporated in the prelature continue to be members of the dioceses in which they live: cf. its no. IV, c).
62 Cf. Anglicanorum coetibus, art. V in fine: “[Ordinarii] Potestas una cum ordinario loci coniunctim exercetur, in casibus a normis complementaribus praevisis”. Also, in art. VIII § 2 of Anglicanorum coetibus it is established that “Pastors of the Ordinariate enjoy all the rights and are held to all the obligations established in the Code of Canon Law and, in cases established by the Complementary Norms, such rights and obligations are to be exercised in mutual pastoral assistance together with the pastors of the local Diocese (quae […] mutuo auxilio pastorali cum parochis dioecesis exercentur) where the personal parish of the Ordinariate has been established.” Art. VI of Anglicanorum coetibus provides that “Priests incardinated into an Ordinariate, who constitute the presbyterate of the Ordinariate, are also to cultivate bonds of unity with the presbyterate of the Diocese in which they exercise their ministry. They should promote common pastoral and charitable initiatives, which can be the object of agreements between the Ordinary and the local Diocesan Bishop.” But these expressions do not properly correspond to the notion of cumulative power. For their part, the Complementary norms of Anglicanorum coetibus state in art. 5 § 2 that “Lay faithful and members of Institutes of Consecrated Life and Societies of Apostolic Life, when they collaborate in pastoral or charitable activities, whether diocesan or parochial, are subject to the Diocesan Bishop or to the pastor of the place; in which case the power of the Diocesan Bishop or pastor is exercised jointly with that of the Ordinary and the pastor of the Ordinariate.” This is not very clear either, since those faithful, insofar as they work for the diocese, will depend rather on the diocesan jurisdiction. Cf. also art. 9 of the Complementary norms. On the interpretation of these norms there is a certain disagreement. Some authors consider that they substantially express cumulative power between the jurisdiction of the ordinary and that of the diocesan bishop: cf. J. M. Díaz Moreno, Constitución apostólica (footnote 3), 426; Duane L. C. M. Galles, Anglicanorum coetibus (footnote 3), 222 and 223; while other authors including myself consider that they do not clearly justify it: cf. E. Baura, Los ordinariatos personales (footnote 3), 250-254; G. Ghirlanda, La costituzione apostolica (footnote 3), 410; J. A. Renken, The personal ordinariate (footnote 3), 29.
63 Cf. the decrees of erection of the ordinariates of Our Lady of Walsingham, no. 5, the Chair of Saint Peter, no. 5, and Our Lady of the Southern Cross, no. 5, all three with the same formulation: “For a cleric not incardinated in the personal ordinariate of Our Lady of Walsingham [of the Chair of Saint Peter, of Our Lady of the Southern Cross] to assist at a marriage of the faithful belonging to the ordinariate, he must receive the faculty from the ordinary or the pastor of the personal parish to which the faithful belong”.
64 Cf. the decrees of erection of the ordinariates of Our Lady of Walsingham, no. 10, the Chair of Saint Peter, no. 10, and Our Lady of the Southern Cross, no. 10, with identical formulation: “If a member of the faithful moves permanently into a place where another personal ordinariate has been erected, he is able, on his own request, to be received into it. The new ordinary is bound to inform the original personal ordinariate of the reception. If a member of the faithful wishes to leave the ordinariate, he must make such a decision known to his own ordinary. He automatically becomes a member of the diocese where he resides. In this case, the ordinary will ensure that the diocesan bishop is informed”.
65 Cf. G. Bier, Die apostolische Konstitution (footnote 3), 452-456. This author, in my humble opinion, does not distinguish sufficiently between the theological classification of particular Church and the juridical equivalence between an ordinariate and a diocese. The ordinariate is treated as canonically equivalent to the diocese, but this does not mean that it is a particular Church, since what is involved in equivalence is the application of a special juridical system of governance (in this case, that of the diocese), unless the nature of the matter or a juridical norm excludes some aspect. Hence it constitutes a limited analogy, not an identification or equality between two institutions. The same could be stated of the views of J. A. Renken, The personal ordinariate (footnote 3), 14-17. On the intention that Anglicanorum coetibus should not establish a Church sui iuris, cf. G. Ghirlanda, La costituzione apostolica (footnote 3), 394 and the reflections in this connection by E. Baura, Los ordinariatos personales (footnote 3), 254-258.
66 J. I. Arrieta, Gli ordinariati personali (footnote 3), 156-161; J. M. Huels, Anglicanorum coetibus (footnote 3), 391; H. Legrand, Épiscopat, episcopè (footnote 3), 412 ff.
67 Art. 4 § 1 of the Complementary norms states that canons 383-388, 392-394 and 396-398 of the CIC apply to the ordinary of each ordinariate. In view of important canons which are not mentioned, especially c. 391, which deals with the legislative power of the diocesan bishop, some authors, such as J. M. Huels, Anglicanorum coetibus (footnote 3), 401, have denied the ordinary’s legislative power. In our view such capacity should not be doubted, since the legislative power of the ordinary is necessary for the life of the ordinariate and is compatible with the vicarious nature of his power. Above all, the ordinariate is made expressly equivalent to the diocese (Anglicanorum coetibus, I § 3), from which the ordinary’s legislative power can be presumed, analogously to that held by the diocesan bishop.
68 Cf. G. Bier, Die apostolische Konstitution (footnote 3), 465.
69 Cf. G. Ghirlanda, La costituzione apostolica (footnote 3), 391.
70 Cf. also Schouppe’s systematic and terminological suggestions, with special proposals for French-speaking areas: J. P. Schouppe, Les circunscriptions ecclésiastiques ou communautés hiérarchiques de l’Église catholique, Ephemerides Theologicae Lovanienses 81/4 (2005) 435-467.
71 I set out this classification in greater detail in my book Organización del gobierno en la Iglesia, Pamplona 32010, 129-146; 207-239.