From the submachine gun of Conversano to the prefect of the Dicastery for the religious

The tendency to separate the powers of order and jurisdiction is based on many pontifical provisions of the past, who have endorsed government acts without the power of order, For example, the government of some abbeys from the Middle Ages to modern times, or some bishops who have ruled diocese without being ordered.

– Theology and canon law –

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The 6 last January, solemnity of the epiphany of our Lord Jesus Christ, Sister Simona Brambilla, So far secretary of the Dicastery for institutes of consecrated life and the apostolic life companies, He was appointed prefect of the same Dicastery by the Supreme Pontiff Francesco.

Sister Simona Brambilla was secretary of the Dicastery from the 7 October 2023; second woman to hold this assignment after the appointment in 2021 of Sister Alessandra Smerilli to the Dicastery for the service of full human development. The Roman Pontiff has chosen as a pro-prefect of the dicastery Ángel Fernández Artime, 65 year old, Created Cardinal in the Consistor of the 30 September 2023. With this appointment, relaunched in a whale by world printing agencies, The Pope intended to create an unprecedented managerial structure at the Dicastery for the institutes of consecrated life and the apostolic life companies, appointing a prefect nun and a pro-prefect cardinal.

In perfect logical consistency with the actions of the Roman Pontiffice, This choice only follows the furrow marked by the reform of the Roman Curia already present in the Constitution Preach the Gospel, However, it deserves to be clarified from a legal and theological point of view. An initial example can help us introduce the theme and then clarify the problem. Previously, already last 9 January 2023, The pontiff had appointed a new Territorial abbot dell 'Montecassino abbey, headed by the oldest monastic community of the West. Although not consecrated bishop, The abbot Cassinense - or to be precise the Arciabate - receives the nature of the office All the faculties of government of a bishop. Nothing new except for the fact that the pontiff has chosen to promote the office of abbot, Elective by its community in itself, a secular monk not constituted in the sacred order of the presbyterate, then ordered priest only after the abbey appointment.

Without wanting to enter into the merits of the discussion about the opportunity of a papal appointment for a position that More usual provides an election, It is necessary to analyze complementarity, o meno, Between order power and power of jurisdiction. Re -evaluating the ancient theological tradition, Eastern and Western, Vatican II has put the emphasis on the unit of the «Community power», even without wanting to take a position on the ecclesiological value of the distinction between the power of order and that of jurisdiction introduced by the canonistic before the twelfth century. Exist, indeed, theological elements that orient towards a unitary conception of the power, or: The principle of sacramentality of the episcopate referred to in can. 129 § 1 C.J.C.

There are two powers in the church, left by our Lord Jesus Christ, and two hierarchies that derive from it, which cross and overlap in part, but that remain distinct in their attributions and sources. The first of the two is the the power of sanctifying, which is received and exercised through the sacrament of the order in its various degrees (Ministries established, priesthood and episcopate: and Er Bishop means who received episcopal consecration), and which mainly consists in the power to consecrate the Eucharist e, through this and the other sacraments, give grace to souls. Since the source of this power is a sacrament, The direct author is our Lord himself, ex-works operated: The ministers are only the tools. The highest act of this power is the consecration of the body and the blood of Christ. In this, Bishop and priest, they are the same. The power to governing, or power of jurisdiction, which includes in itself the spiritual power to govern and teach (In fact, it is legitimately taught and with authority only to their subjects). If we consider the Church as company, according to classic law, It must have an authority capable of legislating and guiding, as well as punishing and correcting. This power, that our Lord equally owns to the supreme degree, He is transmitted directly by him only to the successor of the Blessed Apostle Peter at the time of the acceptance of the election, and transmitted by him in various ways to the rest of the Church. It has no link in itself with the order power, although generally the two powers convince the same subjects, or even, as for the pope and diocesan bishops, There is a moral obligation to bring together the two powers. In this sense, Bishop is the one who received the power to govern a diocese from the Pope.

This doctrine on the distinction of origin of the two powers It is taught without ambiguity possible in an impressive amount of magisterial documents: last among them the encyclical Mystical body Pius XII (1943), resumed in the following To the Chinese nations (1954) e To the Prince of the Apostles (1958). The bishops govern their diocese in the name of Christ, «That's still when they do, Don't complete their self-jorisunt, However, under the authority of the Roman Pontiff, Despite the ordinary jurisdiction control, Immediately with the same Pope apart» (“However when they do it, they do not do it by right at all, but placed under the due authority of the Roman Pontiff, although they enjoy an ordinary jurisdiction power, Given them immediately by the Pontiff himself ") (DS. 3804). The only one in the world to receive this power of jurisdiction directly from God is the Roman Pontiff, As the Code of Canon Law of the 1917 al can.109:

«Those in ecclesiastical hierarchy collected […] The steps of the power of the order of the ordination; in the highest pontificate, ipsometjure Divine, Fulfilled condition of legal election of the same as acceptance; in the remaining steps of jurisdiction, Canonica Mission» («Those who are counted in the ecclassic hierarchy […] they constitute in the degrees of order power with the sacred ordination; in the supreme pontificate, For the same divine law, completed the conditions of the legitimate election and acceptance of this; In the remaining degrees of the power of jurisdiction, with the canonical mission ").

Not even the Roman Pontiff receives this power from episcopal consecration, but regardless of it. Throughout history there was therefore a broad, complex and sometimes controversial reflection on the relationship between the power of orders, that is received with ordination and that allows you to administer some sacraments - how to preside over the Eucharist - and the power of government, who gives authority on a part of the people of God, like a diocese, a religious order or even a parish. For a long time it was believed that the two powers were distinct and that it was possible to exercise them separately; San Tommaso d'Aquino also shared this position.

As for the Roman Curia, It was believed that all those who carried out their service received their power directly from the Roman Pontiff, which conferred the authority regardless of whether they were ordered or not. This also applied for the cardinals, whose authority derived from the papal creation and not for the sacramental way. This approach has characterized the history of the Church for a long time, so much so that there were cardinals who were not priests, For example the cardinal Giacomo Antonelli, Vatican Secretary of State from 1848 al 1876, had been ordered deacon, but it was not a priest. Further back in time, There were cardinals appointed at a young age who received orders only after a long time, And even Papi who were only diachons at the time of their election to the papal throne.

Some abbots of the past they had not even been ordered priests and ruled an ecclesiastical district, Or there were figures that are at least anachronistic but that responded to this logic, like the elected bishops who ruled diocese without having received the episcopal consecration but only by virtue of their election, this problem to which the Council of Trent will end through the obligation of the residence. Other examples are the so -called machine guns, "Women with the pastoral stick", of which we will mention to follow.

Over time another approach has emerged that dates back to the church of the first millennium: The power of government is closely linked to the sacrament of the sacred order, so it is not possible to exercise one without the other if not within certain limits, which are rather restricted., in 1962, with the motu proprio With the most serious he decided that all cardinals should be ordered bishops

This is the approach of Vatican Council II, who finds himself, eg, in the dogmatic constitution The light to n. 21, in Explanatory note to n. 2, and in the two codes of canon law, the Latin one of the 1983 and the eastern one of the 1990. In the III Chapter (NN. 18-23) and in Note the preliminary It is argued that episcopal consecration is a source of government power and not only of order power, leveraging the sacramentality of the episcopate. For the Council of Trento, indeed, The priesthood conferred by Christ to the apostles and their successors is said to be "power […] to consecrate, offer and administer his body and blood, In addition to putting back and considering sins " (DS 1764); In particular, the bishops "who succeeded in place of the apostles […] are superior to priests, and can administer the sacrament of confirmation, Order the ministers of the Church, and perform many other things " (DS 1768). Here are the effects of the ordination such that they are described to us by the Council of Trento: a power linked to the physical body of Christ and the administration of the sacraments, and absolutely not to the external government of the Church. The light states that episcopal consecration "also confers, with the office to sanctify, offices to teach and govern, which however, by their nature, they cannot be exercised except in hierarchical communion with the boss and with the members of the college ".

Whoever is validly consecrated bishop owns, second The light, both powers; The Supreme Pontiff intervenes only to determine the exercise of government power, not to confer it. In the absence of this intervention of the Pope, We do not know if the exercise of jurisdiction would be disabled or only illegal: the Note the preliminary he says he does not want to enter the matter, even if it can be assumed that it would be only illegal, as for the order power. Moreover, according to the n. 22 The episcopal consecration would also have the entry into the Episcopal College, body that second The light would have the supreme power next to that of the Pope alone: the Note the preliminary specifies that this subject of universal power always exists, but that comes into action only when the Pope calls him. The same number 22 He says that the hierarchical link is also needed to belong to the college, However, it is not clear whether this is a real cause of belonging to the college or a simple condition. The power of government, which beyond the sacramental order, It would be the effect of the sacrament ex works operated, therefore of the Christ directly, as well as belonging to the said college, that despite being the subject of the supreme power When Peter and under Peter, It would remain a subject distinct from Pietro Solo and would receive the power he exercises not from Petro ma of Christ, as it appears clearly from the same Note the preliminary.

Vatican II has authoritatively reiterated that the episcopate is a sacrament and that with the episcopal consecration we become part of the Episcopal College which together with the Pope and under his authority, It is the subject of the supreme power over the whole Church. This thesis is clearly difficult to reconcile with the Dictation of the Vatican I, that condemns

«[…] those who say that this primacy was not given immediately and directly to Blessed Pietro, but to the Church and through this to him as Minister of the Church itself ".

Different thesis from what he then prevailed in The light: Here the subject of the supreme power is one, the college, although it is not excluded that the Pope can act only. The echo of this thesis is also felt in the number 22 Of The light, When it is said that the Pope exerts power to two titles: By virtue of his office and as head of the college. It is therefore admitted that at least in some cases the Pope is only the representative of the college.

This reflection He finds himself in the two reform documents of the Roman Curia who followed the Second Vatican Council: The Constitution Regimines of the universal of Paul VI (1967) the A Pastor Bonus of John Paul II (1988). John Paul II outlined the Curia in congregations and pontifical advice, that in secular terms could be defined as “Ministries with wallet” e “ministries without portfolio”.

Congregations had to be governed by cardinals because they participated in the decisions of the universal Church with the Pope, so, their leaders, They had to have the rank of first councilors of the Pope. Pontifical advice, instead, they could also be guided by archbishops, But in any case by ministers ordered because they had to be in relation to collegiality with the bishop of Rome - that is, the Pope.

Canon law distinguishes the power of government in three categories: the legislative power due to which they are implemented, General decrees and privileges; the executive power that allows to put in place general executive decrees, Singular administrative instructions and acts and on the concession of the competent Legislative Authority General Decrees and Privileges; the judicial power that allows the sentences and the related preparatory documents to be implemented.

In state systems the principle of separation of the powers exists which allows to start again the government functions (parliament, government, courts) so that (Locke-Montesquieu) their exercise is free from mutual influences. In the canonical system there is the principle of the distinction of the powers and therefore of their unity. The three functions are annexed to both universal and particular capital offices. However, alongside them, the canonical system provides for further offices in which people or colleges are titled to which only one of the aforementioned authorities is annexed. The distinction between the power does not aim to limit the exercise of each towards the other but allows to identify acts of a different nature so that the common good of the Church is promoted.

The organization of the Church is based on the principle of the hierarchy of the offices, many of which are not qualifiable as government offices, as it is not endowed di power to govern. When the power of government is annexed to an office, qualifies as ordinary, distinct from that delegate because it is given directly to the person by mandate, without attribution of a specific office.

Ordinary power can be proper or vicar. In the first case it is exercised in “own name” by the owner; It is Vicar if it is exercised by a person who acts on behalf of the owner of the office. Universal level, The offices to which an ordinary power or vicar is annexed are: Roman Pontiff, Episcopal College, The Congregations of the Curia, The Pontifical Council of the Lays, 1 apostolic tribunal. Particularly I am: The diocesan bishops and the leaders of the abbey or territorial prelatures, The Vicars and Apostolic Prefects, apostolic administrators, Personal ordinary (except those for the Anglicans), ordinary of personal prelature, general vicars, episcopal and judicial, pastors; metropoly, particular councils, Episcopal conferences and their permanent advice; The superiors and chapters of the religious institutes and clerical societies of apostolic life of papal law.

The can. 134 §1 attributes the qualification of ordinary to the owners of three different offices: The office that is characterized by the entire power of government (legislative, executive and judicial), Roman Pontiff, Diocesan and equivalent bishops; The office characterized by ordinary Vicar and executive power (general and episcopal vicars of the diocese); Offices attributed to the major superiors of the religious institutes and the apostolic life companies. The same can. 134 §2 attributes the legal qualification of ordinary of the place to the first two types of ordinary. The qualification of ordinary of the place is linked to the territorial character of the ecclesiastical circumscriptions.

Delegated power is distinct from ordinary power because it is entrusted to the person (can 131), as an owner of an office but not as an integral part of it. In this case, the power is limited to the faculties assigned to the person through a delegation mandate. Both the Roman Pontiff and the bishops can, by delegate, expand the faculties of an diocesan bishop or a vicar beyond those acquired by office. Hence the difference between the two authorities. The ordinary one is objective, it exists in itself independently of the person who only has to possess the requirements defined to receive the office; The second depends on the choice of a titular subject who decides to grant a part.

The apostolic constitution Preach the Gospel, with which the Supreme Pontiff Francesco reformed the Curia in 2022, It has substantially devoted from this legal and theological approach. It is no longer distinguished between congregations and pontifical advice, which are all called dicasteries; There is no more difference on who can be the head of the dicastery, A charge that can therefore also be conferred on a lay. However, in presenting the reform of the Curia the 21 March 2022, The then Father Gianfranco Ghirlanda S.J. - Created Cardinal by Somamo Pontiff Francesco in the Constoror of 27 August 2022 - He explained that there were still some dicasteries in which it was appropriate that it was a cardinal to guide them and he pointed out that the "Constitution does not repeal the Code of Canon Law, which establishes that in issues concerning clerics are the clerics to judge ". This is the center of the question: There are offices that can only be exercised for papal appointment or there are offices that, despite the papal appointment, they can only be exercised if you have ordered?

The question emerges when a pro-prefect cardinal supports a prefect nun. The dicastery for institutes of consecrated life and the apostolic life societies has different skills, which are generally government acts that can be exercised without priestly ordination. But the same dicastery, It is often called upon to manage and resolve problems that concern ordered clerics bosomes. It was probably thought that these decisions can be managed, residually, from at least one member who has received the sacred ordination, to be joined to the Prefect. For this the figure of the pro-prefect was created, which, however, seems to be used improperly. The document Preach the Gospel It describes two pro-prefects which are the head of the two sections of the Dicastery for evangelization. This is because the two pro-prefects guide the sections of the dicastery "in place" (that is, pro-) of the pope, which is considered the prefect of the dicastery.

In other cases it has been appointed pro-prefect a prelate who did not yet have the degree to formally cover the charge. For example, When Angelo Sodano was appointed Vatican Secretary of State on December 1st 1990, It was still an archbishop. It was therefore appointed pro-state of state because the Apostolic Constitution Pastor Bonus provided that the Secretary of State was always a cardinal. Sodano maintained the title of Pro-Sangrento di Stato up to the Constoror of the 28 June 1991, When Cardinal was created and formally assumed the title of Secretary of State starting from 1 July 1991.

However, the pro-prefect Ángel Fernández Artime is already a cardinal and does not exercise jurisdiction instead of the Pope. If anything, he works alongside the prefect nun. Its role is more than anything else that of co-prefect, So it remains to be seen if the Holy Father will appoint a secretary for the Dicastery to understand the definitive organization chart. The choice to support an ecclesiastical to the Prefect reflects the Modus Operandi of some religious orders, who have their "brothers" to their guidance (consecrated lay people), but who are appointed alongside figures with sacramental authority. The Supreme Pontiff would therefore have chosen to follow a road already traveled by the religious congregations for the government of the Church. It is not new. Even the Holy Father Francis, eg, intervened in the government crisis of the Order of Malta proper to order as if it were only a religious and monastic entity, Authoritatively imposing the new constitutions in September 2022 and establishing that the Roman Pontiff must confirm the election of the Grand Master.

Also the Council of Cardinals, established by Pope Francis at the beginning of his pontificate in 2013, It resembles the General Council which supports the Government of the Jesuit General. Many of these settings are given by the main legal councilor of the reigning pontiff, Cardinal Gianfranco Ghirlanda, Jesuit too, who personally followed the reform of the Order of Malta and the Reform of the Curia, In addition to various other reforms, like that of the statutes of the legionaries of Christ.

The Holy Father Francis established an innovation in the Roman Curia abandoning the criteria of the government of the Curia in favor rather than those of religious congregations. We are faced with a small revolution, or simply to an improper use of the terms that could cause serious confusion? We know that the position of pro-prefect of the Dicastery for the institutes of consecrated life and the apostolic life companies is not foreseen by the Constitution Preach the Gospel. It has not been specified what the relationship of powers and competences will be between the new prefect and the pro-prefect. However, talk about a subordination relationship with a cardinal who would be the “second capable” of the Prefect does not seem a correct reading.

The distinction between order and jurisdiction It is the result of a reflection, Duration almost a millennium, aimed at solving two fundamental problems: that of the validity of the sacramental acts placed by the ministers, who had broken with ecclesial communion; that of the validity of absolute orders, who prevailed in the practice of the Latin Church despite the prohibition of the Council of Calcedonia. The question did not concern so much the possibility that an excommunicated bishop could be placed at the head of a diocese, but rather that he could continue to administer the sacraments, Until Graziano and i decideisti they did not progressively be able to distinguish two powers in the activity of the ministers: a power of order and a power of jurisdiction, different both for the transmission mode and for their stability and function. And all in all the Constitution Preach the Gospel proceeds precisely on this track of the distinction: Implicitly assumes the option not to consider the sacrament of the order as the origin of the power of jurisdiction, but to attribute it exclusively to missio canonical given by the Roman Pontiff, that would thus confer a delegation of his own powers to anyone who exercises a function of government in the Roman Curia and in the Church, whether or not it is ordered.

The most debated question It seems to be the exercise of the authority of jurisdiction in the extra-subacramental sphere. Outside the sacramental sphere, the code of 1983 seems to consider, at least from the terminological profile, the opportunity to jurisdiction as a power that has its own material content, distinct from that of the the power of the order. The code uses two different terms: the term «capacity» in the sacramental sphere, and that of «power» In the extra-sub-empathy sphere, almost like giving two different meanings to the same power of jurisdiction, one formal and one content, according to whether it operates in the first or second area. As for the reform of the Curia, It seems to present a radical revolution within the system, a sort of underlining of the application regarding the origin of the power of jurisdiction: understand if it is a divine will (immediate) inscribed in the sacrament of the order that bases the powers of sanctifying, teaching and govern or is rather a determination of the Church (mediated) conferred on the successor of Pietro by virtue of his mandate as a universal pastor with the special assistance of the Holy Spirit.

The tendency to separate the powers of order and jurisdiction is based on many pontifical provisions of the past, who have endorsed government acts without the power of order, For example, the government of some abbeys from the Middle Ages to modern times, As in the well -known and famous case of the Badassa di Conversano, defined Monster Apuliae, or some bishops who have ruled diocese without being ordered, or even some licenses granted by the supreme legislator to simple priests to order other priests without being bishops. The list of facts that show how the government power could not intrinsically depend on the order power could be lengthened, but rather from another source, which is then identified with the missio canonical conferred by the Roman Pontiff. The new Constitution would perhaps be beyond the can. 129 §2 C.J.C., That is, it would fully interpret that collaboration of the laity in the exercise of the same power of jurisdiction. Starting from this observation, The core of the matter can lead to what regulates the relationships between the nature of the Church as a divine-human institution and the government structures that allow it to fulfill her mission at the service of the salvation of the world. It can therefore be said that ecclesial communion involves a hierarchical dimension that corresponds to the trinitarian mystery as it is revealed to us. Everything so far said, albeit in an extremely synthetic way, would lead to saying that the power of jurisdiction does not depend exclusively on the power of order.

One thing we can say with abused security: the appointment of a nun to the office of prefect (that, It would remain as a nun subjected to his religious direct superior but, at the same time, hierarchically “superior of his superior”, with concrete risk of short circuit skills) and the contextual appointment of a cardinal to the office of pro-prefect, It does nothing but confirm the stylistic figure to which this pontificate has now accustomed us to 12 years forward: The important thing is to cause and generate processes. Which could also be fascinating, if not for the fact that, like all jurists, We cannot help but consider that the processes, precisely for a matter of justice fairness and respect for the parties, they cannot last forever, Why, sooner or later, one of two:either they reach sentence or are archived.

Velletri of Rome, 19 January 2025

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