Introduction
The main purpose of this paper is to take a look at the way in which the Church organises the division of her jurisdictions, that is, the manner in which different portions of the faithful are allocated or ascribed to the ecclesiastical authority for their pastoral care.
The term “jurisdiction” in this context is to be understood as referring to any of the Church’s hierarchical structures, consisting of a bishop (or priest exercising episcopal or quasi-episcopal functions), assisted by his presbyterium (whether incardinated in the structure or assigned in some other way), providing pastoral care for a defined group of lay faithful. The important thing is the “entrustment” of a group of faithful by the Supreme Authority to an episcopal authority, in such a way that a relationship of hierarchical subjection arises between the faithful and the bishop (or priest with episcopal faculties), who must by virtue of his office have all the necessary juridical power to enable him to govern.#
The question to be addressed here is fundamentally this: in the case of hierarchical structures, what is the criterion by which a particular group of faithful is entrusted to this or that episcopal authority for its pastoral care?
The principle generally adopted is that of territory, which in its turn is dependent on the concept of domicile.# As we shall see, this principle has a long tradition in the Church’s history, and to a large extent retains its importance in the 1983 Code.#
However, the current law also allows the possibility of other criteria, based on the personal condition of the faithful, such as nationality, rite, or profession. We might ask therefore: to what degree are these situations to be considered as exceptional or anomalous, or as constituting a deviation from the “ideal” of territoriality?
Connected with this is the question of the extent to which territoriality is to be considered an essential (constitutive) element of a hierarchical structure; and the related issue of “objective assignment”, that is, whether membership of a hierarchical structure should always be something determined “from above”, and not simply by the free choice of the person concerned.
Historical background
For a better understanding of these matters it may be helpful first of all to look briefly at some historical developments, before dwelling on certain aspects of the present-day situation, with particular reference to Pope Benedict XVI’s Apostolic Constitution Anglicanorum Coetibus.#
Soon after the Church gained her freedom early in the 4th century, the 1st Council of Nicea (325) introduced the principle of “one bishop for one city”, chiefly for the sake of public order,# but also as an expression of the fact that each bishop formed part of a sacramental and juridical order that demanded mutual harmony and unity.#
As territorial limits became clearer in the 5th and 6th centuries, the Christian Church decided to adopt the administrative structure of the Roman Empire, as a practical organisational measure.#
The “one bishop for one city” principle was retained, by and large, over the succeeding centuries,# and was reiterated at Lateran IV (1215), reinforced by reference to such images as the “mystical marriage” of the bishop to the city,# and the need to avoid a “many-headed monster”;# as well as by the growing feudalisation of civil society and the ever more powerful ties between the people and the land.#
The advent of the hierarchically-structured mendicant orders around this time gave rise to discussions over the territorial or personal nature of jurisdiction.# For St Thomas Aquinas, ecclesiastical power was not to be seen as dominium or absolute power over a specific portion of territory, but rather as a service that could be rendered in collaboration with other pastors. Territory in his opinion should not be considered an essential element of jurisdiction, but should be viewed as one of a number of possible mechanisms for regulating the exercise of power.#
Despite St Thomas’s insights, there were few immediate inroads into the principle of territoriality, which was reaffirmed by the Council of Trent (1545-1563),# and remained the overwhelmingly dominant organisational principle until the 20th century.
The CIC 1917 continued the strict territorialist approach, allowing little scope for defining a community of the faithful by any criterion other than that of territory.#
However, changed social circumstances and new pastoral needs, combined with an increased understanding of the rights of the faithful and the desire to make the means of formation more readily accessible to them, led to the search for more flexible pastoral structures.#
Significant developments during the 20th century included:
a) the promulgation by Pope Pius XII of the Apostolic Constitution Exsul Familia (1952),# which provided special pastoral care for immigrants, sailors, refugees and others, through chaplains with special faculties granted by the Holy See;#
b) the erection of the Mission de France (1954),# making use of the figure of the prelature nullius to create, within the territorialist confines of the CIC 1917,# a structure allowing secular priests to carry out interdiocesan pastoral work;#
c) the establishment of a limited number of Latin Ordinariates for faithful of Eastern rite who had no hierarchy of their own in the country in which they were residing, the proper Ordinary usually being the Latin-rite bishop of the capital city;#
d) the development of the notion of “cumulative jurisdiction” from 1940 onwards, especially in respect of the military vicariates. Whereas formerly the practice was for the Pope to “exempt” military personnel from the jurisdiction of the diocesan bishop, and to delegate jurisdiction exclusively to the military vicar, cumulative jurisdiction now provided a way of ensuring that the military vicar’s jurisdiction did not eliminate or diminish that of the local Ordinary.#
In general, however, the heavy stress on the hierarchical dimension of Church meant that any personal structure was still seen as somehow “interfering” with the power of the local Ordinary and the parish priest.
Changes brought about by the Second Vatican Council
Vatican II represented a major change of vision: Lumen Gentium stressed the community aspect of the Church, which is the new People of God. To be a member of the People of God did not mean simply to be subject to the hierarchy, but above all to be a disciple of Christ.#
In this context Vatican II defined the diocese not as a territorial unit but as “a portion of the People of God which is entrusted to a bishop to be shepherded by him with the cooperation of the presbyterium”.#
No. 8 of the 1967 Guiding Principles for the revision of the Code of Canon Law spoke of the need “to adapt in some manner the principle of territoriality in the exercise of ecclesiastical government”, adding that “the requirements of the modern apostolate seem …. to call for the creation of personal jurisdictional units”. Hence “in drafting the new law, it is determined that the general principle according to which the people of God are to be governed is one of territoriality; however, where it is useful, other references along with territoriality can be entered as criteria for determining a community of faithful.”#
This change of vision meant that jurisdictions were now to be seen in the light of the Church’s sanctifying and evangelising mission: the diocese and parish were not simply static territorial units; they were also dynamic instruments of evangelisation – living communities, in which clergy and laity alike had “a share in the functions as well as the life of the body”.#
New personal hierarchical structures
In the current definition of a diocese provided by canon 369 of the CIC 1983, there is no reference to territory.# Territory is presented in canon 372 §1 as an extrinsic criterion (albeit the normal one) for determining a particular Church.# Hence the Code allows the possibility of erecting, within the same territory, particular Churches based on other criteria.# It follows that if a particular Church were to be based on one of those alternative criteria, it would not constitute a “privilege”: rather, it would reflect the reality that the two principles – territoriality and personality – are complementary.#
As a result of the new possibilities opened up by this new vision, a variety of personal jurisdictions have been established by the Holy See, specifically:
a) the Personal Prelature of the Holy Cross and Opus Dei, whose characteristics were judged to be “perfectly suited” to the figure of the personal prelature which the Second Vatican Council introduced into the legislation of the Church,# and whose specific pastoral task is “to put into practice the teaching of the universal call to sanctity, and to promote at all levels of society the sanctification of ordinary work, and by means of ordinary work”.# It is headed by a Prelate (in practice a bishop), with proper, ordinary, personal power;#
b) military Ordinariates “for the spiritual care of military people”,# replacing the former military vicariates, and extending to military personnel as well as members of their households and others involved in military institutions or tasks.# The military Ordinary, usually a bishop, has proper, ordinary, personal power, cumulative with that of the diocesan bishop;#
c) the Personal Apostolic Administration of St John Mary Vianney, Campos, Brazil,# for receiving into full communion with the Catholic Church the members of the traditionalist Priestly Union of St John Mary Vianney.# The Apostolic Administrator (in practice a bishop) has proper,# ordinary, personal power, cumulative with that of the diocesan bishop;#
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d) a new Latin Ordinariate for faithful of Eastern rite residing in Poland (1991), entrusted to the Archbishop of Warsaw as its proper Ordinary;#
e) the recent Anglican Ordinariates, established in response to requests from groups of Anglicans who have been moved by the Holy Spirit “to petition repeatedly and insistently to be received into full Catholic communion individually as well as corporately”.# The power of the Ordinary, who may be a priest or bishop, is vicarious (in the name of the Roman Pontiff), ordinary, and personal.# We shall consider shortly whether this power is also cumulative with that of the diocesan bishop.
Primary and complementary structures
At the time of the promulgation of the CIC 1983, the relationship of a “hierarchical structure” to a “particular Church” was not entirely clear;# and while there is still no definitive clarification of what exactly constitutes a particular Church (or what prevents a structure from being one),# what is beyond doubt is that a hierarchical structure does not necessarily correspond to the theological concept of a particular Church.#
Various authors have expressed the view that there is a distinction to be drawn between “primary” (or “original”) hierarchical structures and “complementary” (or “additional”) hierarchical structures.# The latter, while not constituting particular Churches, nevertheless have a true hierarchical character (based on the bishop-presbyterium-laity relationship), and are instituted to fulfil some need either of the particular Church itself or of the universal Church.#
Primary structures include dioceses and the other “portions of the People of God” listed in CIC 1983, c. 368 §1 (territorial prelatures, territorial abbacies, vicariates apostolic, prefectures apostolic, and permanently established apostolic administrations); while complementary structures include the Personal Prelature of Opus Dei, the military Ordinariates, the Personal Apostolic Administration of St John Mary Vianney, as well as the Mission de France and the Latin Ordinariates for faithful of Eastern rite.# Members of these complementary structures are at the same time members of the particular Church of their domicile.
Matters affecting the Anglican Ordinariate
What is the position of the Anglican Ordinariates in this respect? It seems to be generally agreed that the Ordinariate does not constitute a particular Church.# If, as has been suggested,# the members of the Ordinariate are not members of the particular Church in which they have their domicile, then there are certain ecclesiological issues which will require further clarification.# Specifically the situation of its members in such a case would seem to conflict with the statement made by the Congregation for the Doctrine of the Faith# in its 1992 Letter Communionis Notio (no. 10) that “entry into and life within the universal Church are necessarily brought about in a particular Church”. For this reason a number of authors consider that the members of the Ordinariate must also belong to the diocese in which they are domiciled: in other words, they belong both to the primary structure of the diocese, and to the complementary structure of the Ordinariate.#
While the official documentation does not definitively resolve this issue, it should be noted that art. 9 of the Decree of Erection of the Personal Ordinariate of Our Lady of Walsingham of 15 January 2011 provides that: “The faithful of the Personal Ordinariate of Our Lady of Walsingham who are, temporarily or permanently, outside the territory of the Episcopal Conference of England and Wales, while remaining members of the Ordinariate, are bound by universal law and those particular laws of the territory where they find themselves”, with a footnote reference to CIC 1983, c. 13 §3.# This canon is concerned with vagi – i.e. those who have neither domicile nor quasi-domicile. Members of the Ordinariate are thus treated as being “without domicile” whenever they leave the territory of England and Wales. Furthermore, art. 10 provides that a person who leaves the Ordinariate “automatically becomes a member of the Diocese in which he resides”, implying that until that moment he or she is not considered to be a member of the diocese.
Another issue which will require further clarification is the significance of the statement in Anglicanorum Coetibus, V, that the power of the Ordinary is to be exercised “jointly” with that of the local diocesan bishop, especially in matters to do with pastoral and charitable activities.# In the case of the military Ordinariates, the Prelature of Opus Dei, the Apostolic Administration of Campos, and (at least some) Latin Ordinariates for faithful of Eastern rite,# the power of the Ordinary is described as “cumulative”.# In view of what has been said about members of the Ordinariate and their relationship with the diocese, it will be necessary to see with time – and hopefully with the benefit of authoritative clarifications – whether and to what extent the Ordinary’s power can in fact be considered as cumulative with that of the diocesan bishop.#
One area in which this will have practical importance is that of marriage. Art. 5 of the Decree of Erection of 15 January 2011 establishes: “For a cleric not incardinated in the Personal Ordinariate of Our Lady of Walsingham 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.”# In the opinion of Fr Ghirlanda SJ, if the faithful of the Ordinariate wish to marry in the parish of the territory in which they have their domicile, for the marriage to be valid the Ordinary (or the parish priest of the Ordinariate) must delegate the faculty.# However, CIC 1983, c. 1109, provides that, within the limits of their territory, the local Ordinary and (territorial) parish priest validly assist at the marriage both of their subjects and of their non-subjects “provided one or other of the parties is of the Latin rite.” Since it seems to be generally accepted that members of the Ordinariate are Latin-rite Catholics,# one wonders why the wording of that canon cannot be considered sufficient to ensure the validity of marriages of Ordinariate members in any church in which the local Ordinary or the parish priest is acting “within the limits of his territory”.#
Objective assignment and voluntary membership
Turning to the question of whether “objective assignment” (as opposed to the free choice of the faithful) is a necessary requirement for membership of hierarchical structures,# it is clear that the law provides for “voluntary” membership of such structures in a number of instances:
a) art. IX of Anglicanorum Coetibus and art. 3 of the Decree of Erection of 15 January 2011 provide that those eligible who wish to enter the Personal Ordinariate “must manifest this desire in writing”:# in other words, the fact of coming from Anglicanism is not in itself sufficient, but what is constitutive and necessary is the voluntary act of joining;
b) CIC 1983, c. 296, provides that lay faithful “can” become members of a personal prelature “by way of agreements made with the prelature”;# similarly art. X, 4º of Spirituali Militum Curae appears to allow some possibility of voluntary membership by agreement with the military Ordinary;#
c) art. IX, 1 of the Decree Animarum Bonum allows those who were not already members of the previous St John Mary Vianney Union to apply in writing to join the new Personal Apostolic Administration.#
Hence although objective assignment may be the most common manner in which groups of faithful are entrusted to a bishop (for example, those domiciled within the territory of a diocese are normally assigned by law to that diocese; those who join the armed forces are assigned by law to the military Ordinariate, as well as to the diocese of their domicile) there is clearly no justification for holding that objective assignment has to apply in every case, or for arguing that the “voluntariness” of membership automatically means that the structure in question is of an associative rather than a hierarchical nature.
Conclusions
1. Territoriality is not an essential component of every hierarchical structure, as is clear from the Church’s actual practice, especially since Vatican II, and from its current law.#
2. The strongly territorialist approach of previous centuries was a logical reflection of the prevailing conception of the Church as a two-tier society in which the laity were effectively perceived as the passive recipients of the pastoral action of the hierarchy. The ecclesiological insights of Vatican II have helped bring about a clearer realisation that the overriding considerations are the salus animarum and the need to find the most effective way of enabling the faithful to respond to the call, “each according to his or her particular condition, to exercise the mission which God entrusted to the Church to fulfil in the world”.# Seen in this light, the principles of territoriality and personality are instruments to be used in the manner that is most appropriate in each case.
3. Cumulative jurisdiction is likewise to be seen as an instrument at the service of the faithful, and as a way of providing them with all appropriate pastoral care.#
4. Membership of a hierarchical structure need not depend on “objective assignment”. Even though the structure itself needs to be erected by the Supreme Authority, there is no fundamental reason why membership cannot in appropriate cases be brought about by the free choice of the individual.#
5. Structures based on personality are not intended to “compete” in any way with primary territorial structures but rather to support and facilitate their pastoral governance.#
6. The various forms of personal jurisdiction which we have looked at can be seen to embody what Pope John Paul II, in promulgating the CIC 1983, described as “the elements which characterise the true and genuine image of the Church,” namely “the doctrine in which the Church is presented as the People of God …; the doctrine in which the Church is seen as a ‘communion’; the doctrine, moreover, according to which all the members of the People of God, in the way suited to each of them, participate in the threefold office of Christ: priestly, prophetic and kingly. With this teaching there is also linked that which concerns the duties and rights of the faithful, and particularly of the laity; and finally, the Church’s commitment to ecumenism.”#
Final consideration
In his homily at the ordination of the first three priests of the Personal Ordinariate of Our Lady of Walsingham, Archbishop Vincent Nichols described the event as “a unique occasion marking a new step in the life and history of the Catholic Church”.
The Church establishes territorial and personal structures in order that, each performing its own role in the building up of the entire body, they may work together and provide mutual support and assistance in carrying out the Church’s task of sanctification and evangelisation. The eventual success and fruitfulness of a new structure such as the personal Ordinariate will depend to a large extent on the warmth and openheartedness with which it is welcomed by other Catholics. In this connection there is widespread appreciation of the manner in which the Bishops of England and Wales have responded to Pope Benedict’s request at Oscott College last September for generosity in implementing Anglicanorum Coetibus.# As the Pope said on that occasion: “This should be seen as a prophetic gesture that can contribute positively to the developing relations between Anglicans and Catholics. It helps us to set our sights on the ultimate goal of all ecumenical activity: the restoration of full ecclesial communion in the context of which the mutual exchange of gifts from our respective spiritual patrimonies serves as an enrichment to us all. Let us continue to pray and work unceasingly in order to hasten the joyful day when that goal can be accomplished.”#
Paul Hayward, 31 March 2011