« Ecumenism and the Reform of Canon Law »
by: George Nedungatt
The question about the proper ‘juridical form’ of the Church is an eminently ecumenical problem. … The ‘juridicism’ of the Roman Catholic Church is the object of earnest and radical criticism from the side of the Orthodox as well as from the Churches of the Reformation. They see in the premises as well as in the conclusions of canon law some of the deepest differences which divide them from the Roman Catholic Church.
So wrote Lukas Vischer, a leading ecumenist, more than forty years ago. Among the chief differences between the Roman Catholic Church and the other Churches are the provisions of canon law regarding papal primacy, priestly celibacy and the position of women. Pope Paul VI frankly acknowledged that papal primacy is the greatest hurdle on the ecumenical road. Churches in which priestly celibacy is not obligatory do not want to give up their tradition for union with the Catholic Church. Catholic canon law reserves the clerical state and power to men and thus relegates women as second rate members of the Church.
 Lukas Fischer, “Reform of Canon Law ¾ An Ecumenical Problem,” The Jurist 26 (1966) 395-412, at pp. 395, 398. See also J. Hoffmann, “L’horizon oecuménique de la reforme canonique….,” Rev. Sciences Phil. Theol. 57 (1973) 228-251.
In this essay I shall discuss briefly these three issues which have an impact on ecumenism: papal primacy, priestly celibacy and the position of women in the Roman Catholic Church. I shall, however, start with a brief presentation of what Catholic canon law prescribes concerning ecumenism.
1. Canon Law on Ecumenism
The current canon law of the Roman Catholic Church is codified in three documents issued by Pope John Paul II: 1) the Code of Canon Law (1983) or Codex Iuris Canonici (abbr. CIC) for the Latin Church; 2) the Code of Canons of the Eastern Churches (1990) or Codex Canonum Ecclesiarum Orientalium (abbr. CCEO); 3) the apostolic constitution Pastor Bonus on the Roman Curia (1988). The canon law of the Orthodox Churches consists chiefly of the canons made by the ecumenical councils during the first millennium. The Protestant and Reformed Churches have their own church order. The Pentecostals have no canonical structure or only the most loose structure with the Bible being held to furnish rules of order and discipline. The Roman Catholic Church has the most elaborate canonical structure.
Ecumenism is dealt with all too summarily in The Code of Canon Law. Canon 755 states: “It is primarily for the supreme Church authority to foster and direct the ecumenical movement among Catholics, whose scope is the restoration of unity among all Christians;” and “it is for bishops and episcopal conferences to promote it according to the norms of law.” Placing ecumenism under the teaching function of the Church hierarchy, this canon evokes the pose of the Roman Catholic Church as Mater et Magistra of all Churches, which is not a helpful pose in ecumenical relations.
The Eastern code (CCEO), which is generally ignored, deals with ecumenism in seven canons under Title 18 entitled “Ecumenism or the Fostering of Christian Unity” (cc. 902-908). Here is a summary. All the Christian faithful, especially the pastors, should pray and work for the restoration of church unity (902). They should foster it through prayer, good example, fidelity to tradition, cooperation and mutual esteem (903). Each Church sui iuris should have its particular law about promoting ecumenism under the supervision of the Roman Apostolic See (904 §1). There should be a commission on ecumenism, or at least one expert in charge (§2); the same applies also to each eparchy (§3). To be avoided in ecumenical dialogue and initiatives are false irenism, indifferentism and immoderate zeal (905). Care is to be taken by all, especially preachers and teachers, to present faithfully the teaching of the Catholic Church and of the other Churches (906). Schools, hospitals and other such institutions should provide facilities for ministry by the sacred ministers of the respective Christian students, clients, etc. (907). Finally, it is recommended to Catholics to cooperate with other Christian faithful, with due regard for communicatio in sacris, in all matters such as charitable works, social justice, defence of the human dignity and of the rights of persons, promotion of peace, celebration of national feasts, etc. (908). These canons are buttressed with footnote references especially to the documents of the Second Vatican Council (LG, OE, UR) and to the Directory of the Secretariat for Christian Unity of 14 May 1967.
A note may be in place here on the expression “Roman Apostolic See” used in c. 904 §1, which may strike as unusual. The common Catholic usage is “Apostolic See.” The addition “Roman,” however, implies the fact that besides Rome, the only Apostolic see in the West, there are other Apostolic Sees in the East like Jerusalem, Antioch and Ephesus, which were also founded by the Apostles. The use of the absolute expression “Apostolic See” without qualification is to ignore these Apostolic Sees, which can be an ecumenical irritant. Following the conciliar decree on ecumenism (UR chapter 3), the Eastern code uses “Sedes Apostolica Romana,” just once (a hapax legomenon).
 St. Augustine wrote of the Churches “which had the privilege to possess Apostolic Sees and to receive letters from the Apostles” (De doctrina Christiana, II, c. VIII, 12).
2. Papal Primacy
From the ecumenical standpoint, Catholic canon law concerning the pope is very deficient. “The Bishop of the Church of Rome… is the head of the College of Bishops, the Vicar of Christ and the shepherd of the whole Church; by his office he enjoys supreme, full, immediate and universal power” (CIC c. 331; CCEO c. 43), which is legislative, executive and judicial. The pope “is not judged by any one” (CIC c. 1404, CCEO c. 1058). These canons, which are buttressed with footnote references to the first and second Vatican Councils, make the pope “Sovereign Pontiff,” who is above the law. He cannot be impeached. But what happens if a pope is caught as an adulterer like Alexander VI, or a homosexual betrayed by his partner? The U. S. President Bill Clinton had to step down and face impeachment for adultery. But there is no canonical provision for the impeachment of a pope whatever his offence. According to canonists a pope who is guilty of heresy loses his office ipso facto. But “the Roman Pontiff is not judged by anyone” (CCEO c. 1058); or less precisely, “the First See is not judged by anyone (CIC c. 1404).
The pope is routinely called “Supreme Pontiff” in Catholic usage. The first ecumenical councils called him simply “Bishop of Rome.” The title “Patriarch of the West” figured in the Annuario Pontificio, the official Vatican Directory, till 2006 when it was suppressed by Pope Benedict XVI. A better reform would have been the creation of the office of the Patriarch or Major Archbishop of the Latin Church corresponding to the Patriarchs/Major Archbishops of the Eastern Churches.
Whereas bishops are elected in the Eastern Patriarchal Churches by their synods (CCEO cc. 180-189), in the Latin Church the pope “freely appoints bishops or confirms those legitimately elected” (CIC cc. 377). The confirmation mentioned here is actually confined by customary law to a case in France. For the rest all bishops in the Latin Church are appointed by the pope. Historically, in the context of lay investiture with its attendant abuses, appointment of bishops by the pope had indeed its benefits and justification. But in today’s changed circumstances it gives the pope the pose of a “super bishop” (Pope Francis) and deprives the local Churches of their due autonomy. On the model of the Synods of Bishops of the Eastern Churches both Catholic (cf. CCEO cc. 55-150) and Orthodox Latin episcopal conferences could be upgraded as synods having legislative and judicial powers. This would bring about decentralization of Church government.
Supreme Church authority is vested not only in the ecumenical councils but also in the pope according to Catholic doctrine and law. Ecumenical councils obviously cannot be in session always nor be convoked very frequently. It is reasonable that in the interim supreme church authority is exercised by the pope as successor of the Apostle Peter, although modern Catholic exegesis may not find in Peter the first pope. According to canon law it is for the pope “to convoke an ecumenical council, preside over it either personally or through a delegate, to transfer, suspend or dissolve it and approve its decisions” (CIC c. 338; CCEO c. 51). The pope also sets its agenda; and his prior approval is needed to discuss the proposals of the bishops on the council floor. He can reject a motion proposed by the majority of the members of the council or even unanimously. This provision places the pope virtually above the council. He should surely have the power to intervene and unblock a crisis situation as happened more than once during the Second Vatican Council. It is for canon law to find for the papacy its unique place between monarchy and democracy.
Catholic diocesan bishops have to submit their resignation from office on completing 75 years of age (CIC c. 401, CCEO c. 210). But there is no age limit regarding the pope. Oddly, bishops who have reached 75 years submit their resignation to the Bishop of Rome who may be over 80. The papal office becomes vacant by the pope’s death or renunciation. However, death can only be apparent. In such a case a crisis situation can arise. So, too a pope can be affected by Alzheimer’s or fall into an irreversible coma lasting many years. Then rival popes may emerge as happened in the past giving rise to the Western schism. Current canon law ignores such a situation, although several popes in the last century, starting with Pius X, issued special rules about the vacancy of the papal see and papal election.
 According to the Orthodox count there have only been seven ecumenical councils, the last being Nicea II (787). Catholics usually count twenty-one of them ending with Vatican II, but some scholars count only seven like the Orthodox and call those held later in the West including Vatican II “general councils.” This terminological difference is implied in the latest and best critical edition entitled Conciliorum Oecumenicorum Generaliumque Decreta, 3 vols., ed., Istituto per le scienze religiose, Bologna (Brepols: Turnhout) 2006-2013. This edition includes the Council in Trullo (692) and the Council of Pisa (1409). The latter decreed the superiority of the council over the pope and deposed rival popes. These councils are not included in the Decrees of the Ecumenical Councils, 2 vols., ed. Norman Tanner.
 Karl-Heinz Ohlig, Why We Need the Pope (St. Meinard, In.: Abbey Press) 1975.
In his sollicitudo for all the Churches (cf. 2 Cor 11:28) the pope may have to intervene in a particular Church, as Clement I (96 ca) did with a classical letter written to the Church of Corinth. While a dictatus papae will be resented and can be divisive, a proper papal intervention may save a local Church from schism. Diocesan bishops may neglect their duty, teach false doctrine or be involved in scandal, as in the case of Paul of Samosata, Bishop of Antioch, condemned by a synod held in Antioch (260). Anciently, local councils and synods addressed such problems, which however divided the Churches sometimes. In the Eastern Churches, patriarchs with their synods have exercised judicial powers, tried, condemned and punished bishops. But this often inflicted a wound in the body ecclesiastic, which was difficult to heal. Hence in the postconciliar reform of Eastern Catholic canon law, the patriarchs readily renounced their traditional right in this matter and deferred it to the pope (cf. CCEO c. 1060). Exercising sollicitudo like an elder brother the pope can summon an erring bishop and, if found guilty after due process, dismiss him from his office.
The 1917 Code attributed the competence to define dogmas to the ecumenical council and to the pope, in this order (c. 1323 §2). The present codes have reversed this order and attribute the same competence to the pope first (CIC c. 749 §1; CCEO c. 597 §1) and then to the ecumenical council (§2). During the first millennium dogmas were defined by the ecumenical councils, not by popes. But towards the end of the second millennium two dogmas were defined by popes, namely the immaculate conception of Mary by Pius IX (1854) and her assumption by Pius XII (1950). If these definitions were deferred respectively to Vatican Council I (1870) and to Vatican Council II (1962-1965), nothing would have been lost. If the Orthodox Churches were invited to the First Vatican Council for a joint definition of the Marian dogma of the immaculata or panagia (“all-pure,” Greek equivalent), instead of exalting the papal prerogatives, this could perhaps have favoured the ecumenical reunion of the Churches of the East and of the West as happened at the Council of Florence (1439). Instead, the glorification of the papal prerogatives at Vatican I as wanted by Pope Pius IX created an additional ecumenical hurdle.
A reformed papacy as the visible centre of the catholicity and of the unity of the Church is a prospect that has been welcomed by several non-Catholic ecumenists. Pope John Paul II invited constructive suggestions for the renewal of the papacy. Renewal would involve certain changes in canon law regarding the pope. For example, a decree or a sentence of the pope, who possesses “full and supreme power in the Church,” is final and “without appeal” (CIC cc. 332, 333; CCEO cc. 44, 45). This is an absolutism without parallel in the modern world which knows of no one-bench supreme court. The primacy of Peter may not bear all the burden monarchical absolutism wants to heave on the pope. According to Pope Francis Catholics can learn from the Orthodox experience of synodality. In the Orthodox Churches, but also in the Eastern Catholic Churches, legislative and judicial powers are vested in the synods while the patriarchs exercise administrative or executive power (CCEO c. 110). Such a division of powers in the government of the Catholic Church at the highest level is not incompatible with papal primacy.
 Avery Dulles, The Resilient Church: The Necessity and Limits of Adaptation (New York: Doubleday) 1977, “Toward a Renewed Papacy,” 113-131; Avery Dulles, The Catholicity of the Church (Oxford: Clarendon) 1985, “The Centre of Catholicity: Roman Primacy,” 127-146.
 Apostolic Exhortation Evangelii Gaudium (26 Nov. 2013), n. 246.
3. Priestly Celibacy
While the non-Catholic Churches and twenty Eastern Catholic Churches follow the Apostolic tradition of free option between clerical celibacy and marriage, the canon law of the Latin Church requires priests and bishops to be celibate (CIC can. 1037). Priestly celibacy was made obligatory by Pope Siricius (384-399) by invoking the Old Testament law of ritual purity. Emperor Justinian (483-565) restricted episcopal ordination to celibates in order to prevent bishops, who were charged with the administration of church property, from diverting it in favour of their family and children. According to the Eastern code clerical celibacy freely chosen for the kingdom of God is to be highly esteemed but the state of the married clergy is to be held in honour, too (CCEO c. 373). Priestly celibacy is often exalted as the glory of the Catholic Church. But from the ecumenical viewpoint the law of obligatory celibacy can be an obstacle to union with those Churches in which it is optional. Not to impose “any obligation beyond what is necessary” is a golden rule of canon law of Apostolic origin (Acts 15:28). The recent Vatican creation of a separate ordinariat for Anglican married priests joining the Roman Catholic Church may smack of caste and is not likely to promote ecumenism.
 George Nedungatt, ed., A Guide to the Eastern Code (Kanonika 10), (Rome: Pontificio Istituto Orientale), 2002, pp. 296-97.
4. Women in the Catholic Church
The canonical status of women in the Catholic Church today leaves much to be desired. Only men can validly receive sacred ordination (cf. CIC c. 1024; CCEO c. 754) and be clerics. In some other Churches sacred orders are conferred on women not excluding the episcopate. Logically, this option raises the question whether a woman can be ordained as the Archbishop of Canterbury, or as the Patriarch of Constantinople, or as the pope. Pope John Paul II rejected the ordination of women arguing that Jesus chose only men as his Apostles and excluded women, even his mother. But Several Churches admit women to ordained ministry seeing in Jesus’ conduct not sanction but tolerance of the social mores of the time. The Lord gives talents to men and women, which the Church must recognize and put to good use. The institution of the deaconess was common to most Churches in the East and in the West in the first millennium. During the codification of CCEO it was proposed to restore this institution and two canons on the deaconess were drafted and approved unanimously by the Study Group On Clerics and by the Central Study Group. But when the draft was sent for clearance by higher Vatican authorities, a veto was imposed alleging that the deaconess had no theological support. And that was the death knell of the deaconess in CCEO. Questions like the position of women in the Church are primarily theological issues. Theology provides the vision, canon law prescribes the action. It is welcome news that Pope Francis has appointed a commission to study the question of the deaconess.
5. Hierarchy of Truths and of Laws
The Second Vatican Council stated: “In Catholic doctrine there exists an order or ‘hierarchy’ of truths, since they vary in their relation to the foundation of the Christian faith” (UR 11). In this connection we may recall that St. Augustine spoke of “doctrina salutaris,” which all should accept and abide by Hierarchy of truths is a genial idea, which holds much promise ecumenically. For example, the mariological dogmas of immaculate conception and assumption are to be placed on a lower rung in the scale of truths than the christological dogmas. So too are the ecclesiological dogmas of papal primacy and infallibility.
 Augustine, Epistolae 105, 5, 16 (PL 33, 403 D); Thomas Aquinas, “doctrina quae est de pertinentibus ad salutem” (STh Ia-II 2ae q. 106 a. 4 ad 2; Quodlibet I, 14; VII, 14).
Similar to the hierarchy of truths is the hierarchy of laws. Jesus identified the greatest commandment in the love of God and of one’s neighbour (Mt 22: 37-39; Mk 12: 30-31). He blamed the scribes and Pharisees for insisting on the “payment of the tithe of mint, dill and cumin but neglecting the weightier matters of the law: justice and mercy and faith. These you ought to have practised without neglecting the others” (Mt 23:23). Here Jesus is inviting attention to the hierarchy of laws.
The postconciliar project called Lex Ecclesiae Fundamentalis (LEF) was conceived as a charter of fundamental canonical norms. Some called it the constitutional law of the Church. This implied that like the laws of the state, which can be challenged in a democracy and rescinded by a constitutional or supreme court, particular canons could be challenged and modified. Though LEF was set aside, its chief provisions were later incorporated in both the codes (cf. CIC cc. 204-223; 330-335; CCEO cc. 7-26; 42-48). Some want LEF revived and promulgated like Pastor Bonus on the Roman curia. That might help keep alive the sense of the hierarchy of laws, which has ecumenical significance.Conclusion. The Church is always in need of reform (Ecclesia semper reformanda). So is also its canon law. Pope John XXIII mentioned reform of canon law while announcing the convocation of the Second Vatican Council. This was achieved with the new Latin code (1983) and the Eastern code (1992). Several canons of these two codes were changed subsequently, for example some canons on ecclesiastical magisterium and on delicts and punishments. Recently Pope Francis changed some canons on marriage cases. Some changes are needed also in the canons regarding the pope, who is “hurdle number one” (Pope Paul VI). Pope John Paul II invited creative suggestions for the reform of the papacy within the limits of ius divinum. This is obviously an important restriction. Ius divinum has been the object of study recently by theologians and canonists. With more clarity on this subject we may hope that ecumenism will make progress.
 Pope John Paul II, Ut Unum sint, 1988.
 Avery Dulles, “Ius divinum as an Ecumenical Problem,” TS 38 (1977) 681-708; Yves Congar, “Ius divinum,” RDC 28 (1978) 108-122 ; Juan Ignacio Arrieta, ed., Ius divinum, XIII Congresso internazionale di diritto canonico, 2008: Il ius divinum nella vita della Chiesa (Venice: Marcianum Press) 2010.
George Nedungatt is emeritus professor of the Faculty of Canon Law of the Pontifical Oriental Institute, Rome. He retired in 2003 and returned to India in 2012. He then taught philosophy of law and theology of law for three years at Dharmaram Vidyakshetram, Bangalore. Currently he resides at the spirituality centre Sameeksha, Kalady, Kerala. He has published twenty books and several articles in international journals. His latest book is For the Renewal of Canon Law: An Indian Contribution, (Bangalore: Dharmram Publications) 2015. Currently he is preparing a textbook of theology of law.