K ATHOLIEKE ATHOLIEKE UNIVERSITEIT LEUVEN FACULTY OF CANON LAW
Obligations and Rights of Members of Religious Institutes in the 1983 Code of Canon Law and Sources
Submitted in partial completion of the degree Master in Law Religion and Society By: Amy Hereford, CSJ
Prof. dr. Rik TORFS
2008
Bibliography I. Primary Sources Codes Codex Iuris Canonici. May 27, 1917. Pii X pontificis maximi iussu digestus Benedicti papae XV auctoritate promulgatus. Roma: Ro ma: Tipografia poliglotta Vaticana, Vaticana, 1918. January, 25, 1983. John Paul II. In Code of Canon Law: Latin-English Codex Iuris Canonici. January, Translation. Washington Washington (D.C.): CLSA, 1983.
Church Documents Boniface VIII. Apostolic Constitution Periculoso. 1298. In Makowski, Elizabeth M. Canon Law and Cloistered Women: Women: Periculoso and Its Commentators 1298-1545. Studies in medieval and early modern canon law. Washington Washington (D.C.): Catholic University of America Press, 1997. Congregation for Institutes of Consecrated Life and Societies of Apostolic Life. Verbi Sponsa. 13 May 1999. In Lora, Erminio, ed. Enchiridion della Vita Consecrata: Dalle Decretali al Rinnovamento Post-Conciliare (385-2000). Edizione Bilingue. Bologna: Ancora, 2001. p. 3402-3449. Congregation for Religious and Secular Institutes. Essential Elements of the Church's Teaching Teaching on Religious Life as Applied to Institutes Dedicated to Works Works of the Apostolate. May 31, 1983. AAS 76 (1984) 234-278. Council of Trent. Decree on Regulars and Nuns . November 25, 1551. In Waterworth, Waterworth, J. The Canons and Decrees of the Sacred and Oecumenical Council of Trent. London: Dolman, 1848. Paul VI. Motu Proprio Ecclesiae Sanctae. 1966 August 6. AAS 58 (1966) 757-787. Second Vatican Vatican Ecumenical Ecu menical Council. Dei Verbum. November 18, 1965. AAS 58 (1966) 817-830. Second Vatican Vatican Ecumenical Ecu menical Council. Lumen Gentium . November 21, 1964. AAS 57 (1965) 5-75. Second Vatican Vatican Ecumenical Ecu menical Council. Perfectae Caritatis. October 28, 1965. AAS 58 (1966) 702-712. Second Vatican Vatican Ecumenical Ecu menical Council. Presbyterorum Ordinis. December 7, 1965. AAS 58 (1966) 991-1024.
Other Documents: Augustine of Hippo. Rule for Monasteries. In Lawless, George. Augustine of Hippo and His Monastic Rule. Oxford: Oxford University Press, 1987. Benedict of Nursia. Rule for Monasteries. Verheyen, Benedict. Trans. The Holy Rule of St. Benedict. Atchison, Kansas: St. Benedict's Abbey, Abbey, 1949. Francis of Assisi. Rule of St. Francis. In Robinson, Paschal. trans. The Writings Writings of St. Francis of Assisi. Philadelphia: Dolphin Press, 1906.
II. Secondary Sources Andres, Domingo. El Derecho de los Religiosos. Madrid/Rome: Publications Claretianas y Commentrium pro Religiosis, 1983.
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Andres, Domingo. La confesion frecuente de clerigos, consagrados consagrados y apostolicamente asociados. asociados. Commentarium pro Religiosis Religiosis 91 (2004/1) pp. 133-150. Arnold, Fritz. “Religious Obedience in a World World in Search of Freedom and Maturity.” UISG Bulletin n. 101 (1996). pp. 34-41. Beal, John, James Coriden, and Thomas Green, eds. New Commentary on the Code of Canon Law. Mahwah, N.J.: Paulist Press, 2000. Beal, John. "The Rights Stuff: Canon Law and the Rights of the Faithful." New Theology Review 7 (August, 1994). pp. 6-22. Beste, Udalricus. et al. Introductio in codicem codicem quam in usum et utilitatem scholae et cleri ad promptam expeditamque canonum canonum interpretationem paravit et edidit. Naples: D'Auria 1956. Bouscaren, T. Lincoln, et al. Canon law : a text and commentary. commentary. Milwaukee (Wis.): (Wis.): Bruce, 1966. Bradley, Bradley, Michael. "The Evolution of the Right to Privacy in the 1983 1983 Code: Canon 220." Studia Canonica 38 (2004). p. 527-574. CMSM/LCWR Taskforce Taskforce on Health Care for Religious. A Vision Vision of Life, Health, Sickness and Death for Religious. Silver Spring: CMSM/LCWR, 1995. Coriden, James. "A Challenge: Making the Rights Rights Real." The Jurist 45 (1985). pp. 1-23. Coriden, James. The Rights of Catholics in the Church. Church. New York/Mahawh, York/Mahawh, NJ: Paulist Press, Press, 2007. Di Massia, G. in Marzoa, A. ed. Comentario exegético exegético al código de de derecho canónico. Barañáin : Eunsa, 1997. Euart, Sharon. “Religious Institutes and the Juridical Relationship Relationship of Members of the Institute.” The Jurist 51 (1991). p. 103-118. Gambari, Elio. Religiosi nel Codice: Codice: Commento ai Singoli Canoni. Canoni. Milano: Ancora, 1986. Golden, Paul. “Rights of Members of a Religious Institute.” Institute.” Legal Bulletin 84 (2007). pp. 3-12. Hill, Richard and Virginia Virginia Bartolac. "Recognition and Protection of Rights in Consecrated Consecrated Life." Canon Law Society of America Proceedings 53 (1991). pp. 180-189. Horvat, Bernadetta. La Vita Vita Fraterna negli Instituti Religiosi Religiosi (I). Commentarium Pro Religiosis et Missionariis 86 (2005). pp. 211-248. Ingels, Gregory. Gregory. "Protecting the Right to Privacy When Examining Issues Affecting Affecting the Life and Ministry of Clerics and Religious." Studia Canonica 34 (2000). pp. 439-466. Jenkins, Ronny. Ronny. "Defamation of Character in Canonical Doctrine and Jurisprudence." Jurisprudence." Studia Canonica 36 (2002). pp. 419-462. Koonamparampil, Josef. “Clerical Obligations as Applied to the Religious: An Exegesis on Canon 672.” Commenatarium pro Religiosis et Missionariis 69 (1988). pp. 111-144, 271-284, 365-383. Makowski, Elizabeth. Canon law and cloistered cloistered women: Periculoso and its commentators 12981545. Washington (D.C.): CUA, CUA, 1997. McDermott, Rose. “Evangelical Poverty and the Vow Vow in Religious Life.” Religious Life Review 36 (November/December 1997). pp. 357-367. McDonough, Elizabeth. “Cloister of Nuns: From the 1917 code code to the 1994 Synod.” Review for Religious 54 (1995). pp. 772-778. McDonough, Elizabeth. “The Protection of Rights Rights in Religious Institutes.” Institutes.” The Jurist 46 (1986). pp. 164-204.
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McDonough, Elizabeth. “Understanding 'Obligations and Rights' Rights' in Church Law.” Law.” Review for Religious 49 (1990) 779-784. McDonough, Elizabeth. The Protection of Rights in Religious Institutes. The Jurist 46 (1986). McIntyre, James. Rights and Duties Revisited. The Jurist . 56 (1996). p. 111-127. McKay, McKay, G. “Spiritual Direction in the Diocesan Seminary.” Seminary.” Studia Canonica 26 (1992). pp. 401413. McKenna, Kevin. "Confidential Matters and the Secret Archives." Studia Canonica 26 (1992). pp. 191-207. McKenna, Kevin. A Concise Guide to Canon Law: A Practical Handbook for Pastoral Ministers. Notre Dame: Ave Maria Press, 2000. Morrisey, Morrisey, Francis. "The Issue of Confidentiality in Religious Life." Life." Selected Issues in Religious Law. P. Cogan, ed. Washington, D.C.: Canon Law Society of America (1997): 124-134. Morrisey, Morrisey, Francis. “The Vow Vow of Poverty and P ersonal Patrimony.” Patrimony.” CLS-GBIN 72 (December 1987). pp. 26-34. Orsy, Orsy, Ladislaus. Theology and Canon Law: new horizons for legislation and interpretation. Collegeville (Minn.): Liturgical Press, 1992. Provost, James. "Ecclesial Rights." Canon Law Society of America Proceedings 44 (1982): 41-62. Provost, James. "Promoting and Protecting the Rights of Christians: Christians: Some Implications for Church Structure." The Jurist 46 (1986): 289-342. Provost, James. "Rights in Canon Law: Real, Ideal, or Fluff?" Canon Law Society of America Proceedings 61 (1999): 317-342. Provost, James. "The Nature of Rights Rights in the Church." Canon Law Society of America Proceedings 53 (1991): 1-18. Rinere, E. and A. Espelage. "Religious Authority and and the Disruptive Religious." Religious." Canon Law Society of America Proceedings 66 (2004): 171-193. Rinere, Elissa. "The Individual's Right to Confidentiality." Confidentiality." Selected Issues Issues in Religious Law. Law. P. Cogan, ed. Washington, D.C.: Canon Law Society of America (1997): 142-147. Rinere, Elissa. Canonical or Non-canonical Status. Legal Bulletin. Vol. 75. (2003). p. 15-25. Scheinders, Sandra. Finding the Treasure: Treasure: locating Catholic religious life in a new cultural and ecclesial context. New York: York: Paulist Press, 2000. 2000. Smith, Rosemary. Rosemary. The Personal Patrimony of Individual Members of Religious Institutes: Current Issues. Proceedings of the Canon Law Society of America 88 (2000). p. 263-281. State v. v. Horton, 139 N.C. 588, 51 S.E. 945, 946 946 (1905). (1905). Tanner, Norman P., and Giuseppe Alberigo. Decrees of the Ecumenical Councils . Washington: Georgetown university press, 1990. Torfs, Rik. "Rights in Canon Law: Real, Ideal, or Fluff?" Fluff?" Proceedings of the Canon Law Society of America 61 (1999): 343-384. Torres, J. “Absence from a Religious House.” Consecrated Life 19/1 (1995) 69-103. Ward, Daniel. "Privacy and Confidentiality Issues in Religious Religious Institutes." On line: www.lrcr.org/law_lib/othertopics/htm/. Ward, Daniel. "Privacy/Confidentiality Issues in Religious Institutes." Canon Law Society of America Proceedings 61 (1999): 305-315.
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Table of Contents Bibliography I. Primary Sources............................ Sources.................................................................. ............................................................................. ........................................... .... ............ ...... ........i ..i II. Secondary Sources......................... Sources................................................................ .............................................................................. ................................................ ......... .....ii Table of Contents............................................................ Contents................................................................................................... .................................................................. ........................... ....v
Obligations and Rights of Members of Religious Institutes in the 1983 Code of Canon Law and Sources Introduction............................................................ Introduction..................... .............................................................................. ........................................................... .................... ............ ...... ........1 ..1 I. Prayer Obligations................................ Obligations...................................................................... ............................................................................. .................................................. ........... ....2 Content of the Obligations ....................................... .............................................................................. ................................................................... ............................ ....2 Canon 662 ...................................... ............................................................................. ..................................................................... .............................. ............ ...... ............ ..........2 ....2 Canons 663 and 664.............................................................. 664................................................................................................ .................................. ............ ...... ............ .......4 .4 Canon 663 §1.................................................................. §1..................................................................................................... ................................... ............ ...... ............ ............4 ......4 Canon 663 §2.................................................................. §2..................................................................................................... ................................... ............ ...... ............ ............5 ......5 Canon 663 §3.................................................................. §3..................................................................................................... ................................... ............ ...... ............ ............5 ......5 Canon 663 §4.................................................................. §4..................................................................................................... ................................... ............ ...... ............ ............7 ......7 Canon 663 §5.................................................................. §5..................................................................................................... ................................... ............ ...... ............ ............7 ......7 Canon 664.............................................................. 664..................................................................................................... ............................................... ........ ............ ...... ............ .........7 ...7 Summary .......................................................................... ................................................................................................................. ......................................... ............ ...... ...........8 .....8 Note on the Form of the Obligations ..................................... ........................................................................ ................................... ............ ...... ............ ..........9 ....9 The 1983 Code............................. Code.................................................................... ........................................................................... .................................... ............ ...... ............ .......9 .9 The 1917 Code ....................................... ............................................................................. ................................................................ .......................... ............ ...... ............ .......9 .9 Council of Trent ...................................... ............................................................................. ..................................................... .............. ............ ...... ............ ............ .........10 ...10 II. Community Community Obligations............................ Obligations................................................................... ...................................................................... ............................... ............ ...... ........11 ..11 Obligations ....................................... .............................................................................. ...................................................................... ............................... ............. ....... ............ .........11 ...11 Canon 665 §1.................................................................. §1......................................................................................................... ......................................................... .................. .11 Canon 665 §2.................................................................. §2.................................................................................................. ................................ ............ ...... ............ ............ .......13 .13 Canon 666.............................................................. 666..................................................................................................... ............................................ ..... ............. ....... ............ .........14 ...14 Canon 667 §1.................................................................. §1.................................................................................................. ................................ ............ ...... ............ ............ .......16 .16 Canon 667 §§ 2-4.................................................................. 2-4................................................................................................... ................................. ............. ....... ...........17 .....17 Canon 669 §1.................................................................. §1.................................................................................................. ................................ ............ ...... ............ ............ .......20 .20 Canon 669 §2.................................................................. §2.................................................................................................. ................................ ............ ...... ............ ............ .......23 .23 Summary ........................................................................... ................................................................................................................. ........................................ ............ ...... ............ ........24 ..24
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III. Poverty Obligations.............................. Obligations..................................................................... ...................................................................... ............................... ............ ...... ...........24 .....24 Obligations ....................................... .............................................................................. .......................................................................... ................................... ............. ....... ...........24 .....24 Canon 668 §§ 1-2.................................................................. 1-2................................................................................................... ................................. ............. ....... ...........25 .....25 Canon 668 §§ 4-5.................................................................. 4-5................................................................................................... ................................. ............. ....... ...........26 .....26 Canon 668 § 3..................................................................... 3................................................................................................. ............................ ............. ...... ............. ............ ......27 27 Summary................................................................... Summary............................ .............................................................................. ................................................. .......... ............. ....... ............ ......28 28 IV. IV. Other Obligations................................ Obligations...................................................................... ............................................................................. .............................................. ....... .....29 Obligations.................................................................... Obligations.............................. ............................................................................. .............................................. ....... ............ ...... ............29 ......29 Canon 670.............................................................. 670..................................................................................................... ............................................ ..... ............. ....... ............ .........29 ...29 Canon 671.............................................................. 671..................................................................................................... ............................................ ..... ............. ....... ............ .........30 ...30 Canon 672.............................................................. 672..................................................................................................... ............................................ ..... ............. ....... ............ .........31 ...31 Conclusion......................................................... Conclusion................................................................................................ ............................................................................. ...................................... ....32
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Obligations and Rights of Members of Religious Institutes in the 1983 Code of Canon Law and Sources
Introduction This paper will discuss the obligations and rights of members of religious institutes as found in the 1983 Code of Canon Law, Canons 662-672. 1 This section of the Code is found in Book Two on the People of God, in Part Three of that book which covers Institutes of Consecrated Life and Societies of Apostolic Life; Chapter IV, IV, contains Canons 662-672, and is entitled The Obligations and Rights of Institutes and Their Members. While this paper will explore the rights of Institutes and their Members, it will necessarily include a discussion of obligations as well. This approach will be taken because first first the section of the Code under consideration concerns both rights and obligations, and second, because some of the obligations of religious imply the right to those means necessary to fulfill the obligation; this is particularl y true for religious since they commit their entire life to the religious institute, t herefore any obligations they have must be fulfilled within that context. 2 Finally, when viewed from an historical perspective, it may be seen that the cessation of an obligation may restore a right that had previously been forgone by the religious. This paper will consider religious institutes and their members only onl y, as they are the subjects of the obligations, in Canons 662-672. 662-672. While Societies of Apostolic Apostolic Life or Secular Institutes may enjoy some of the same rights, those particular distinctions will not be discussed herein. It must also be acknowledged that each religious institute must have its own proper law which will provide more detail about the rights and obligations discussed here, and may provide further rights and obligations for its members. However those nuances will not be discussed discussed here, but occasional reference will be made to some of the major monastic rules in order to help in understanding norms that are found in the Code of Canon Law. Law. Clerical religious have further rights and obligations which will not be discussed here, nor will the paper examine the interplay between rights and obligations of the clerical state and religious life. Finally, Finally, the paper will focus primarily on religious institutes of women. women. Although the current Code makes few distinctions between men and women in lay institutes, the historical documents examined made significant distinctions, and therefore it is difficult to examine thoroughly the implications of developments in legislation for both men's and women's institutes. The paper will examine the obligations and rights found in Canons 662-672 of the Code of 1983, tracing these canons from the sources in the Decree on Regulars and Nuns of the 25 th Session of the Council of Trent, Trent ,3 the Code of Canon Law of 1917, 4 particularly Canons 592-625 on the Obligations and Privileges of Religious, and the Second Vatican Vatican Council decrees Lumen Gentium ,5 numbers 43-47 and Perfectae Caritatis6 and others. The canons will be grouped so that similar similar matters may be examined together. together. This will be 1
Codex Iuris Canonici. January, 25, 1983. John Paul II. In Code of Canon Law: Latin-English Translation. Washington (D.C.): CLSA, 1983. Hereafter cited as "CIC 1983."
2
Elizab Elizabeth eth McDono McDonough. ugh. “The “The Protect Protection ion of Rights Rights in Religi Religious ous Instit Institute utes.” s.” The Jurist 46 (1986). p. 183.
3
Council of Trent. Decree on Regulars and Nuns . February 7, 1564. In Waterworth, Waterworth, J. The Canons and Decrees of the Sacred and Oecumenical Oecumenical Council of Trent. London: London: Dolman, 1848. Hereafter cited as "Trent."
4
York: Kenedy, Kenedy, 1918. Hereafter cited as "CIC Codex Iuris Canonici. Pii X Pontificis Maximi. New York: 1917."
5
Lumen Gengium .
6
Perfectae Caritatis .
particularly helpful when tracing the sources of the canons since the various sources group rights rights and obligations differently; by using broad categories, the distinctive qualities of the various sources will be seen more clearly. clearly. The canons will be grouped as follows: follows: The first section on Prayer will examine Canon 662 on the following of Christ, Canon 663 on spiritual practices and Canon 664 on penance. The second section on life in community community will examine Canon 665 on the religious house, Canon 666 on social communication, Canon 667 on enclosure and Canon 669 on religious dress. The third section on ownership and poverty will examine Canon 668 alone. The fourth section on Other Matters will examine the rest of the canons, namel y Canon 670 on provision for needs of members, Canon 671 on accepting outside responsibilities and Canon 672 on certain clerical obligations applicable to religious. The conclusion will analyze the differences differences in the obligations and rights of religious institutes and their members under the various legal regimes and to explore the implications of these differences.
I. Prayer Obligations The first three canons in the Chapter on Obligations and Rights of Religious Institutes and Their Members concern the prayers and spiritual practices of members of religious institutes. A more detailed analysis of these canons will allow for discovery of some general lines and trends that will be found as succeeding canons canons are discussed in later sections of the paper. paper. For this reason, these canons will be considered at somewhat more length than those in succeeding sections.
Content of the Obligations Canon 662 Canon 662 begins 662 begins the Chapter with a general Canon exhorting religious to find their supreme rule of life in the following of Christ, taking two sources as their inspiration for this, namely the Gospels and the constitutions of their own institute. Canon 662. Religious are to have as the supreme supreme rule of life the following of Christ proposed in the gospel and expressed in the constitutions of their own institute .7 These two sources proposed for the following of Christ are quite different in nature; on the one hand, the Gospels are an ancient narrative of the life and teachings of Christ who is t o be followed, on the other hand, the constitutions are a legal text, the proper proper law of the institute. Generally, Generally, constitutions set forth in summary form the spirituality and charism of the institute, and go on to specif y the way the community organizes its life together. together. Left aside from the sources mandated in this Canon are on the one hand universal law, particularly law on religious life, and on the other hand, the wealth of foundational documents and sources sources of spirituality of each institute which were mined as religious institutes returned to the sources of their foundational charism as required b y the Second Vatican Vatican 8 Council. The 1917 Code has no direct direct parallel to Canon 672. It does, in Canon 593, require religious superiors as well as subjects to arrange their lives according to the rules and constitutions of the institute, and to strive for perfection in their state. state. However, there is no reference to the following of Christ, or to the Gospels as a source or inspiration of their life. Each and every religious, superiors and subjects must not only preserve faithfully and completely the vows that they have professed, but also according to their own rules and constitutions, arrange their lives and strive for the perfection of their state. 9
7
CIC 1983. 1983. Canon Canon 662. 662. Religi Religiosi osi sequel sequelam am Chri Christi sti in Evang Evangeli elio o propo proposit sitam am et et in consti constitut tution ionibu ibuss propr proprii ii instituti expressam tamquam supremam vitae regulam habeant.
8
Perfectae Caritatis , 2. Ecclesiae Sanctae II.
2
The Council of Trent in its twenty fifth and last session issued a Decree on Regulars and Nuns on 4 December 1563. That document was not intended to be a complete treatment of religious life. Instead, like many of the documents of that council, it was intended to address particular matters seen as necessary for restoring good order in the Church and addressing addressing abuses. Chapter One of the decree, states: [The Council] enjoin[s], that all Regulars, as well men, as women, shall order and regulate their lives in accordance with the requirements of the rule which they have professed; and above all that they shall faithfully observe whatsoever belongs to the perfection of their profession... .10 As is apparent, the exhortation to observance of the constitutions of the institute in the current Code comes out of the two source documents. However, the introduction of the concept of the following of Christ according to the Gospels is an innovation to the 1983 Code, although it is certainly found in spiritual and theological reflections on the religious life. For example, The Rule of St. Augustine states: “Before all else, dear brothers, love God and then your neighbor, because these are the chief commandments given to us.” 11 The Rule of Benedict asks: “For what page or what utterance of the divinely inspired books of the Old and the New Testament is not a most exact rule of human life?” 12 And the Rule of St. Francis begins: “The rule and life of the lesser brothers brothers is this: To To observe the holy gospel of our Lord Jesus Christ, living in obedience without anything of our own, and in chastity.” 13 Notwithstanding its long presence in the self-understanding of religious institutes, their founders and members, the following of Christ only enters universal legislation in the 1983 Code. Code. Perfectae Charitatis introduces the notion that “the following of Christ set forth in the Gospel is the supreme rule” of religious life. life .14 It goes on to describe the diversity among religious institutes in their specific characteristics and works, however it does not propose the charism or constitutions of the institutes as a lens through which to view the Gospels or as a focus for the following of Christ. This Canon is representative of a style found throughout the 1983 Code in which theological texts are placed alongside juridical texts, with theological texts beginning all major sections of the Code. 15 This section is no different. The first Canon sets the theological stage for the canons that follow, and the first paragraph of Canon 663 will focus more specifically on the theological place of prayer in religious life.
Canons 663 and 664 After the general exhortation to the following of Christ, Canons 663 and 664 turn to a specific list of the spiritual practices which religious are obliged to carry out in order to assist them in the following of Christ. 9
CIC 1917. 1917. Canon Canon 593. 593. Omnes Omnes et et singu singuli li relig religios iosi, i, Supe Superio riores res aeque aeque ac ac subdi subditi, ti, debent debent,, non non solum solum quae quae nuncuparunt vota fideliter integreque servare, sed etiam secundum regulas et constitutiones propriae religionis vitam componere atque ita ad perfectionem sui status contendere.
10
Trent. Trent. p. 237. ... Ut omnes regulares, regulares, tam viri quam mulieres, mulieres, ad regulae, regulae, quam professi professi sunt, praescriptum vitam instituant et componant atque in primis, quae ad sua professionis perfectionem ....
11
Lawless, Lawless, George. George. Augustine Augustine of Hippo and His Monastic Monastic Rule. Oxford: Oxford: Oxford Oxford University University Press, Press, 1987. 1987. p. 75.
12
Verheyen, erheyen, Benedict. Benedict. Trans. Trans. The Holy Rule of St. Benedict. Benedict. Atchison, Kansas: Kansas: St. Benedict's Benedict's Abbey, Abbey, 1949. Prologue.
13
P. Robins Robinson, on, trans. trans. The Wr Writi itings ngs of St. Franci Franciss of Assis Assis i. Philadelphia: Dolphin Press, 1906. Prologue.
14
Perfectae Caritatis , 2.
15
Ladislaus Ladislaus Orsy. Orsy. Theology Theology and Canon Law: new horizons horizons for legislation legislation and interpretati interpretation. on. Collegevill Collegevillee (Minn.): Liturgical Press, Press, 1992. p. 102-118.
3
These obligations will be viewed in turn in order to more clearl y trace the development of the concepts.
Canon 663 §1 Canon 662 establishes the supreme rule as following Christ, and Canon 663 establishes pra yer as the first and foremost duty: 16 Can. 663 §1. The first and foremost foremost duty of all religious is to be the contemplation of divine things and assiduous union with God in prayer. The following sections of this Canon along with Canon 664 set out a catalog of specific obligations, examined below. below. This exhortation to the primacy of prayer and and contemplation is not contained in the 1917 Code or in the Council of Trent. Perfectae Caritatis speaks of the importance of prayer but puts it as a balance to apostolic love: “It is necessary therefore that the members of every community community... ... should join contemplation... with 17 apostolic love.” Canon 663 takes this one step further, establishing prayer as “the first and foremost duty” of members of religious orders.
Canon 663 §2 Canon 663 §2 urges members to the daily participation in the Eucharist, as well as to the reception of communion and the adoration of the Lord in the sacrament: Can. 663 §2. Members are to make every effort to participate in the Eucharistic sacrifice daily, to receive the most sacred Body of Christ, and to adore the Lord himself present in the sacrament. 18 The 1917 Code, in Canon 595 promoted frequent, even daily reception of the Eucharist; in Canon 125, which is applied to religious in Canon 592, it mandates that clerics devote “some part of each day to ... visitation of the most most holy sacrament.” 19 The Council of Trent requires nuns, but not regulars, to be admonished to receive the Eucharist at least once a month. 20 However, the same Council also forbade the reservation of the Eucharist in the enclosure of the nuns and also renewed the existing mandate on strict enclosure for for nuns. For this reason, visits to the Eucharist Eucharist or adoration of the Eucharist were not promoted, and would would have in any case been impossible. Instead, the 1983 Code, in Canon 608 requires houses of religious to have an oratory where the Eucharist is celebrated and reserved. Therefore, the reception and adoration of the Eucharist is now a possibility. possibility. The 1917 Code, in canons 1265 and 1274 had provided for the celebration and reservation of the Eucharist in religious houses, “even of women.” 21 However, that Code did not prescribe the practice of visitation of the Eucharist in the section of the Code Code on religious life. It simply applied the list of obligations of clergy including that of Eucharistic Eucharistic visitation to religious. This is true, notwithstanding the fact that some of the obligations of spiritual practices are imposed directly both on clergy and on religious, e.g. Canon 125 §1 on the duty duty to receive the sacrament of Confession is also imposed on 16
CIC 1983. Canon 663 §1. Rerum divinarum divinarum contemplati contemplatio o et assidua assidua cum Deo in oratione oratione unio omnium omnium religiosorum primum et praecipuum sit officium.
17
Perfectae Caritatis , 5.
18
CIC 1983. Canon 663 §2. Sodales Sodales cotidie cotidie pro viribus viribus Sacrificium Sacrificium Eucharistic Eucharisticum um participent participent,, sanctissimum Corpus Christi recipiant et ipsum Dominum in Sacramento praesentem adorent.
19
CIC 1917. Canon 125. Curent Curent locorum locorum Ordinarii: Ordinarii: ... 2º Ut iidem quotidie quotidie orationi orationi mentali mentali per aliquod aliquod tempus incumbant, sanctissimum Sacramentum visitent, Deiparam Virginem Virginem mariano rosario colant, conscientiam suam discutiant.
20
Trent. p. 237.
21
CIC CIC 191 1917. Cano Canons ns 1265 1265,, 1274 1274..
4
religious in Canon 664 as will be discussed below. 22
Canon 663 §3 Canon 663 §3 establishes several spiritual practices, namely reading of sacred scripture and mental prayer, the worthy celebration of the liturgy of the hours, and other exercises of piety: Canon 663 §3. They are to devote themselves to the reading reading of sacred scripture and mental prayer, to celebrate worthily the liturgy of the hours according to the prescripts of proper law, without prejudice to the obligation for clerics mentioned in Canons 276, §2, n. 3, and to perform other exercises of of piety. piety. 23 The reading of scripture is new to the 1983 Code, and comes from the emphasis of the Second Vatican Council on the scriptures and on their greater use in the spiritual practices of all the faithful, found particularly in the Dogmatic Constitution on Divine Revelation ,24 but also in the Decree on the Adaptation and Renewal of Religious Life. Life .25 Reading of scripture is not mentioned in either the 1917 Code or in the Decree on Regulars and Nuns. Mental prayer had been prescribed for clerics in Canon 125 of the 1917 Code and through Canon 592, this obligation was also applied to religious. religious. In addition Canon 595 §1.2 required required that religious leave room for mental prayer, pra yer, “orationi mentali vacent.” Mental prayer was not mentioned in Trent's Decree on Regulars. The celebration of the liturgy of the hours was mandated in the 1917 Code for those institutes who had the obligation according to proper law. law. Canon 595 §1.2 required religious religious to be present for sacred rites. Canon 610 laid down further norms norms for religious who had the obligation of of choir, that is, the choral recitation or singing of the liturgy liturgy of the hours. In houses with at least four members who were required to participate and were not impeded, i mpeded, the divine office had to be performed daily. daily. Further, those who were solemnly professed and were absent from the community divine office had to privately recite the hours they missed. At the time of the 1917 Code, it was not uncommon uncommon to have two classes of members in a religious institute, one of which sometimes called the choir members, were obligated to the divine office, and the other, sometimes called lay members, were not bound by the obligation. Canon 610 §3 specifically exempted lay brothers brothers from the obligation of private recitation. In the 1917 Code Canon 592 places the obligation on superiors to ensure that religious are present for sacred rites, including both Mass and and Divine Office. On the other hand, Canon 610 laid down down norms regarding choir to be carried out in religious institutes, without laying the responsibility on anyone in particular. However, given the general general ordering of matters in that Code, it probably probably intended that the superiors would ensure the following following of the norms. The 1983 Code however, however, places the responsibility on the individual religious to perform these spiritual practices. This change will be further discussed below on the section on form of the obligations. Trent's Decree on Regulars did not speak about the obligation of celebration of the Divine Office.
22
CIC 1917. Canon 125. Curent Curent locorum locorum Ordinarii: Ordinarii: 1º Ut clerici clerici omnes poenitentia poenitentiaee sacramento sacramento frequenter conscientiae maculas eluant.... CIC 1983. Canon 664. In animi erga Deum conversione insistant insistant religiosi, conscientiam etiam cotidie examinent et ad paenitentiae sacramentum frequenter accedant.
23
CIC 1983. Canon 663 §3. Lectioni Lectioni sacra Scripturae Scripturae et orationi orationi mentali mentali vacent, vacent, iuxta iuris proprii praescripta liturgiam horarum digne celebrent, celebrent, firma pro clericis obligatione de qua in can. 276, §2, n. 3, et alia pietatis exercitia pe ragant.
24
Dei Verbum , 22, 25.
25
Perfectae Caritatis , 6.
5
Canon 663 §4 Canon 663 §4 urges religious to honor the Virgin Mother of God and to use the Marian rosary: Canon 663 §4. With special veneration, they are to honor the Virgin Virgin Mother of God, the example and protector of all consecrated life, also through the Marian rosary. rosary. 26 The corresponding Canon in the 1917 Code is Canon 125.2, which requires clerics to cultivate the Marian rosary: “mariano rosario colant”, and and was applied to religious in Canon 592. This marks a slight shift, from cultivation of devotion to the rosary, to cultivation of devotion to Mary, Mary, of which one form is the rosary. rosary. As was noted above, the obligation is not found directly in the section on obligations of religious, but on obligations obligations of clerics which were also imposed on religious. religious. Trent's Decree on Regulars did not speak of devotion to Mary Mar y.
Canon 663 §5 Canon 663 §5 requires religious religious to observe an annual period of of retreat. Canon 663 §5. They are to observe faithfully an annual annual period of sacred retreat .27 The 1917 Code had obliged clerics to the spiritual exercises every three years in Canon 126, which was applied to religious in Canon 592; Canon 595 §1.1 obliges religious to the spiritual exercises every year. year. The Decree on Regulars did not speak speak of retreat or spiritual exercises. Although the requirement seems to be the same, same, the wording is distinct in each Code. The 1917 Code says “Quotannis spiritualibus exercitiis vacent” while the 1983 Code says: “Annua sacri recessus tempora fideliter servent.”
Perfectae Caritatis does not mention the retreat or spiritual exercises. However, Presbyterorum Ordinis states in the section devoted to helps for the spiritual life, “spiritual retreats and spiritual direction are of great worth.” 28
Canon 664 Canon 664 calls religious to conversion of the soul to God, and urges practices intended to assist in this effort: Canon 664 Religious are to strive after conversion of the soul toward God, to examine their conscience, even daily, and to approach the sacrament of penance frequently. frequently. 29 The 1917 Code was silent on the matter of conversion of the soul to God and of the exa mination of conscience, this being a spiritual, rather than a juridic matter. However, it called religious to the sacrament of penance at least once a week in Canon Canon 595 §1.3. The same Canon in §3 required the the superior to forbid communion to a religious who committed grave scandal, or a grave and external fault and had not been to Confession. The Decree on Regulars in Chapter Ten Ten required nuns to confess their sins every month but it too is silent on conversion of the soul to God and the examination of conscience, as well as on Confession by male religious.
Perfectae Caritatis did not mention sacramental Confession, except to note the liberty of members in 26
CIC 1983. Canon 663 §4. Speciali Speciali cultu Virginem irginem Deiparam, Deiparam, omnis vitae consecrata consecrataee exempl exemplum um et tutamen, etiam per mariale rosarium prosequantur. prosequantur.
27
CIC 1983. 1983. Canon Canon 663 §5. Annua Annua sacri sacri rece recessu ssuss temp tempora ora fideli fideliter ter serven servent. t.
28
Presbyterorum Ordinis, 18.
29
CIC 1983. Canon 664. In animi erga Deum conversione conversione insistant insistant religiosi, religiosi, conscientia conscientiam m etiam etiam cotidie cotidie examinent et ad paenitentiae sacramentum frequenter accedant.
6
matters of Confession and direction of conscience, a notion which is taken up in Canon 630 of the 1983 Code which treats the obligation of the superior to provide confessors for the houses entrusted to their care. Presbyterorum Ordinis speaks of Confession and examination of conscience in the section on helps in the spiritual life of priests: The ministers of sacramental grace are intimately united to Christ our Savior and Pastor through the fruitful reception of the sacraments, especially sacramental Penance, in which, prepared by the daily examination of conscience, the necessary conversion of heart and love for the Father of Mercy is great .30 In addition to the requirements for Confession, the 1983 Code in Canon 630 mentioned above provides norms for superiors to provide confessors for their co mmunities and ensures the liberty of conscience for members by forbidding superiors from requiring a manifestation of conscience and allowing them to hear the Confessions of subjects only when the members themselves had requested it. The 1917 Code had extensive legislation legislation on confessors for religious, religious, especially for women religious, found in canons 518-528 518-528 and Canon 530. The Decree on Regulars has only one one statement in the tenth Chapter regarding the duty of providing an ordinary confessor for convents of nuns and an extraordinary confessor two or three times a year.
Summary The practices outlined in the Code of 1983 generally follow the practices outlined in earlier legislation examined herein. There have been some new non-juridical non-juridical elements added, for example, the following of Christ found in Canon 662, the contemplation and assiduous union with God proposed in Canon 663.1 and the conversion of the soul to God and examination of conscience found in Canon 664. There has been a general relaxation of norms. norms. For example, while the 1917 Code required attendance attendance at the Eucharist, the 1983 Code requires religious to make every effort to be present at the Eucharist. In the 1917 Code, religious were required to go to Confession at least once a week, much more often than the monthly requirement of the Council of Trent; the 1983 Code simply requires that religious approach the sacrament frequently although although the term frequently is nowhere defined. There is also a complete reversal on the matter of reservation of the Eucharist in houses of women religious: the practice was forbidden by Trent, but it is mandated in both Codes. Along with the reservation of the Eucharist came the recommendation of prayer before the Eucharist found indirectl y, as an obligation of clerics applied to religious, in the 1917 Code and directly as a recommendation for religious in the 1983 Code.
Note on the Form of the Obligations Having examined the obligatory spiritual practices set forth in canons 662-664 in their content, this section will examine the form in which those obligations are imposed in the three principle sources which are being examined.
The 1983 Code In the canons presented, The 1983 Code binds religious personally to specific obligations, as follows: Canon 662. 662. Religious are to .... Canon 663 §1. The first and foremost duty of all religious is to be .... Canon 663 §2. §2. Members are to make make every effort.... Canon 663 §3. They are to .... 30
Ibid.
7
Canon 663 §4. With special veneration, veneration, they are to honor .... Canon 663 §5. §5. They are to observe observe .... Canon 664. 664. Religious are to .... In these canons, it is the religious personally personally who is the subject of the obligations. obligations. While the obligations are set forth, they are often precatory rather than mandatory: for example the religious are to “make every effort” or they are to approach the sacrament “frequently”. The appropriate amount of effort, or the exact frequency frequency are not specified. There is also no negative consequence consequence cited for those who are remiss in these obligations. obligations. Further, religious religious must have the opportunity to carry out out these responsibilities. They may rely on Canon 670 discussed discussed below which requires the institute to provide them with all things necessary for the fulfillment of their vocation .31 These canons specify requirements of their vocation, therefore the members have a right to the time and opportunity to perform these spiritual practices, both the daily daily practices and the annual retreat. The rights of the religious are violated if the demands of ministry and other obligations do not allow the member sufficient time to fulfill these spiritual practices at least in their mini mum requirement. 32
The 1917 Code The 1917 Code placed the obligation for the spiritual practices not on the member personally, personally, but on the superior of the community or in some cases it simply stated the obligation without ascribing the duty to anyone in particular: Canon 595 §1 Let superiors take care that all religious.... Canon 595 §2 Superiors shall promote a mong their subjects.... Canon 595 §3 The superior can prohibit.... Canon 610 §1 ...the divine office must be performed.... Canon 610 §2 The Mass ... must be celebrated.... In the 1917 Code, it is the superior's responsibility to ensure that the religious perform the specified religious practices, or as in Canon 610 the duty is stated, with no particular subject given the obligation to ensure that the practice is fulfilled. Commentators on the 1917 Code indicate indicate that although these duties are not imposed on anyone in particular, it is the responsibility of the superior to ensure that the obligations are fulfilled. 33 As with the 1983 Code, there is no sanction for neglect of the obligations. However, here one may may say that the religious who wish to perform the practices may be able to petition a higher authority in the institute or outside it to force the superior to meet his or her obligations in ensuring the fulfillment of the spiritual practices by the members.
Council of Trent Chapter Ten Ten of the Decree on Regulars and Nuns states: “Bishops and other Superiors of convents of nuns, shall take particular care .... the bishop and other superiors shall shall ....” 34 Here, it is the bishop 31
CIC 1983. Canon 670. Institutum Institutum debet sodalibus sodalibus suppeditare suppeditare omnia quae ad normam normam constitutio constitutionum num necessaria sunt ad suae vocationis finem assequendum.
32
McD McDonou onoug gh (198 (1986) 6).. p. 180. 180.
33
Beste, Beste, Udalric Udalricus. us. et al. al. Introductio Introductio in codicem codicem quam in usum usum et utilita utilitatem tem scholae scholae et et cleri cleri ad prompta promptam m expeditamque canonum interpretationem paravit et et edidit. Naples: D'Auria 1956. p. 300-302.
34
Here the term term regular regular superior superior refers refers to to the superior superior of a men's men's institu institute te of the same same order order of a women's women's institute who was given certain supervisory supervisory control over the women's institute. For example, a Benedictine abbot would be the r egular superior of a nearby women's Benedictine Abbey. Abbey.
8
who is required to ensure that the nuns are admonished, presumably by the superior of the house, to monthly Confession and reception reception of the Eucharist. Although no specific sanctions are mentioned mentioned for these duties, Trent does provide that if superiors are not cooperative, they may be removed and replaced, with the bishop overseeing the election. The bishop is also authorized to use use the force of arms and the civil authorities to enforce the mandates of the Council: The holy Synod also exhorts all kings, princes, republics, and magistrates, and b y virtue of holy obedience commands them, to vouchsafe to interpose, as often as requested, their help and authority in support of the aforesaid bishops, abbots, generals, and other superiors in the execution of the t he things comprised above, that so they may, may, without any an y 35 hindrance, rightly execute the preceding matters to the praise of Almighty God. There is a trend here toward relaxation of the norms and toward a less juridical style in the current Code. In addition there is a trend toward making the actual religious religious the subjects of obligations, rather than the superiors or, or, even further removed, the bishops. bishops. These trends will be seen to carry through all of the canons examined herein.
II. Community Obligations Obligations This section will examine Canon 665 on the religious house, Canon 666 on social communication, Canon 667 on enclosure and Canon 669 on religious dress. dress. As in the preceding section, an examination of the canons on community obligations will show a growing flexibility and a placement of the obligation directly on the religious themselves rather rather than on the superior or on the bishop. In this section, the diversity of forms and institutes of religious life is more evident as is the consequent requirement of further specification of these obligations in the constitutions of the individual institutes. For example, a diversity of housing, housing, dress and common life will follow the diversity of ministry, ministry, location and insertion in the local church and local culture, and even the diversity of size and geographic spread of institutes. Gambari sees canons 665-667 as interrelated, regulating the relationship of the religious with those outside the community; 36 Horvat speaks of the entire Chapter on Obligations and Rights of Religious Institutes and Their Members as having a focal point in Canon 665 on fraternal life in community since the religious house is the place where all the other obligations and rights of the religious life are lived out. out.37
Canon 665 §1 Canon 665 requires religious to live common life in their own religious house: Can. 665 §1. Observing common life, religious are are to live in their own religious house and are not to be absent from it except with the permission permission of their superior. superior. If it concerns a lengthy absence from the house, however, the major superior, with the consent of the council and for a just cause, can permit a member to live outside a house 35
Trent. Trent. p. 253. Hortatur Hortatur etiam sancta sancta synod synodus us omnes reges, reges, princip principes, es, res publicas publicas et magist magistratus, ratus, et in virtute sanctae obedientiae praecipit, ut velint praedictis episcopis, abbatibus ac generalibus et ceteris praefectis in superius contentae reformtionis exsecutione suum auxilium et auctoritatem interponere, quoties fuerint requisiti, ut sine ullo impedimento praemissa recte excequantur, ad laudem Dei omnipotentis.
36
Elio Gambari. Gambari. Religiosi Religiosi nel Codice: Codice: Commento Commento ai Singoli Canoni. Canoni. Milano: Milano: Ancora, Ancora, 1986. p. 278.
37
Bernad Bernadett ettaa Horva Horvat. t. La Vita Frat Fratern ernaa negli negli Instit Instituti uti Religio Religiosi si (I). (I). Commentarium Pro Religiosis et 211. Missionariis 86 (2005). p. 211.
9
of the institute, but not for more than a year, except for the purpose of caring for ill health, of studies, or of exercising an apostolate in the name of the institute .38 The Canon begins by requiring religious to live in houses of their institute, then it immediately proceeds to describe the guidelines for absence from that house, giving three conditions: 1) Absence is always to have a just cause; note that a grave cause is not required as it had been in the 1917 Code39, a merely just cause is sufficient. sufficient. 2) The permission permission of the superior superior is always required. required. This permission need not take any specific form and is often oral, or even implicit when a religious, with the permission of the superior, takes up certain responsibilities w hich necessarily require their daily dail y presence at a ministry site away from the religious house. Proper law may supply more guidelines on the parameters of this permission. 3) The absence should be no more than a year, year, unless it is for the cause of health, apostolate or study. This final condition clearly contemplates that for the three purposes mentioned, i.e. health, apostolate or study, study, a religious may be away awa y from a house of the institute for more than a year. In fact, while study and illness are generally somewhat circumscribed, it may happen that in the case of carrying on an apostolate “in the name of the institute” the religious may be away indefinitely. For absences longer than one year and for other purposes than those mentioned, a religious may be able to obtain permission for exclaustration as provided in canons 686 and following. Canons 608-616 discuss the erection of the house in which the religious live and lists some requirements for that house, namely there must be a house, legitimately erected, with a legiti mate superior, a community of religious and an oratory. oratory. Erection is done by the “authority competent 40 according to the constitutions” with the permission of the local bishop. The house must be capable of providing suitably for the needs of the members. 41 The 1917 Code discussed departure from the religious house in canons 606-607. 42 It is important to note that these canons presume enclosure which will be discussed below and to note for the present discussion that the enclosure was much stricter for all religious in the 1917 Code, than it is in the 1983 Code. Canons 606-607 first exhort exhort superiors to accurate observance observance of all that the constitutions of the institute require in regard to departures departures from the community. community. Further it forbids superiors to permit members to spend time outside their own religious house except for a “grave and just” cause; it requires that the period be brief, and for an absence longer that six months, except for studies, the permission of the Apostolic See is required. As was described above for the t he 1917 Code, the responsibility for the norm rests with the superior, superior, not with the member; the superior is to ensure ensure that members remain in the religious house. Further 1) a grave, not merely a just cause is required for any absence, and 2) the absence is to be brief, and in no 38
CIC 1983. Canon 665 §1. Religiosi Religiosi in propria propria domo domo religiosa religiosa habitent habitent vitam communem communem servantes, servantes, nec ab ea discedant nisi de licentia licentia sui Superioris. Si autem agatur de diuturna a domo absentia, absentia, Superior maior, de consensu sui consilii atque iusta de causa, sodali concedere potest ut extra domum instituti degere possit, non tamen ultra annum, nisi causa infirmitatis curandae, ratione studiorum aut apostolatus exercendi nomine instituti.
39
CIC CIC 191 1917 7 Can Canon on 606606-60 607. 7. See See belo below w.
40
CIC 1983. Can Canon 609.
41
CIC 1983. Can Canon 610.
42
CIC 1917 Canon 606. §1. Curent Curent Superio Superiores res religiosi religiosi ut accurate accurate observentu observenturr quae quae sive circa egressum egressum subditorum e claustris, sive circa excipiendos vel adeundos extraneos, in propriis constitutionibus praescripta sunt. sunt. §2. Superioribus fas non est, salvis praescriptis praescriptis in can. 621-624, permittere ut subditi extra domum propriae religionis degant, nisi gravi et iusta de causa atque ad tempus quo fieri potest brevius secundum constitutiones; pro absentia vero quae sex menses excedat, nisi causa studiorum intercedat, semper Apostolicae Sedis venia requiritur. Canon 607. Antistitae et Ordinarii locorum serio advigilent ne religiosae, citra citra casum necessitatis, singulae extra domum pergant.
10
case longer than six months – where the current Code gives a one year limit. The 1917 Code provides two exceptions to the requirements, first for studies, in which case the religious must live in the house of some other religious communit y, and second in the case of religious who are seeking alms or offerings. 43 Canon 607 also exhorts superiors and local ordinaries to be very vigilant, lest women religious be individually present outside their house. The Decree on Regulars is silent on the matter of giving permission for members to be absent from the house. Perhaps this is because of the strictness strictness of enclosure, and the culture of the times which did not often see individuals legitimately away from their their place of residence. There is no mention of a fraternal life in community, community, however, there is reference to the common life, stating that a purpose for the Decree on Regulars and Nuns was to assist monasteries in returning to regular discipline, including “observance of a common mode of living, food, and dress.” 44
Canon 665 §2 The second paragraph of Canon 665 treats the illegitimate absence from the religious house: Canon 665 §2. A member member who is absent from a religious house house illegitimately with the intention of withdrawing from the power of the superiors is to be sought out solicitously by them and is to be helped to return to and persevere in his or her vocation .45 Note that this Canon applies when the person is both illegitimately absent and in their absence intends to withdraw from the power of the superior. superior. This member is to be sought solicitously solicitously and helped to return and persevere. This is a significant shift from earlier legislation legislation as will be seen below. below. Canon 696 also mentions “the illegitimate absence mentioned in can. 665, §2, lasting six months” as grounds for possible permissive dismissal from the i nstitute. The 1917 Code in Canon 644 speaks of the apostate religious as one who left illegiti mately, mately, without the intention of returning, and the fugitive religious who left illegitimatel y, with the intention of returning.46 Canon 645 states that these religious are still bound by their rules and vows and urges them to return. The second paragraph requires requires superiors to inquire after them solicitously solicitously and to receive them if they return with true repentance. The local ordinary is also to assist in the return return of apostate or fugitive nuns. Since the members of women's institutes were more more strictly bound to their 47 houses, they were unable to seek out out absent members. members . The Council of Trent's Decree on Regulars presumes strict enclosure, particularl y for women, as will be discussed below. below. For this reason, the only absence that that is foreseen and regulated is the absence of of men. In Chapter 14, the Council Council states: A Regular who, not being subject to the bishop, and residing within the enclosure of a 43
CIC CIC 1917 1917.. Cano Canons ns 606, 606, 621621-62 624. 4.
44
Trent Trent.. p. 237. 237. ... Ad comm commune unem m vitam, vitam, victum victum et vestit vestitum um conser conservand vanda.. a.... ..
45
CIC 1983. Canon 665.1
46
CIC 1917. Canon 644. §1. Apostata Apostata a religione religione dicitur dicitur professus professus a votis perpetuis perpetuis sive sollemnibu sollemnibuss sive sive simplicibus qui e domo religiosa illegitime egreditur cum animo non redeundi, vel qui, etsi legitime egressus, non redit eo animo ut religiosae obedientiae sese subtrahat. §2. Malitiosus animus, de quo in §1, iure praesumitur, praesumitur, si religiosus intra mensem nec reversus fuerit nec nec Superiori animum redeundi manifestaverit. §3. Fugitivus est qui, sine Superiorum licentia, domum religiosam religiosam deserit cum animo ad religionem redeundi.
47
CIC 1917. Canon 645. §1. Apostata Apostata et fugitivus fugitivus ab obligatione obligatione regulae regulae et et votoru votorum m minime minime solvuntur solvuntur et debent sine mora ad religionem redire. §2. Superiores debent eos sollicite sollicite requirere, et ipsos, ipsos, si vera poenitentia acti redeant, suscipere; reditum vero monialis apostatae vel fugitivae caute curet loci Ordinarius, et, si agatur de monasterio exempto, etiam Superior regularis.
11
monastery, monastery, has out of that enclosure, transgressed so notoriously as to be a scandal to the people, shall, at the instance of the bishop, be severely punished by his own Superior, within such time as the bishop shall appoint; and the Superior shall certif y to the bishop that the punishment has been inflicted: otherwise he shall be himself deprived of his office by his own Superior, and the delinquent ma y be punished by the bishop. 48 This Chapter only concerns the religious religious who, while outside the enclosure, causes scandal. The trend observed earlier is present here as well: the bishop is to ensure that the superior punishes the member and certifies this fact to the bishop. If not, the bishop may remove the superior from office and punish the member himself. Later in Chapter 19, the Decree discusses the regular who attempts to claim that he entered the monastery through compulsion compulsion or fear, or that he he made profession before the proper proper age. The Decree states: [He] shall be compelled to t o return to his monastery, and be punished as an apostate; and meanwhile he shall not have the benefit of any privilege of his order. 49 This Decree is rigorous in its treatment of those who are improperly away from the religious house who cause scandal, or who attempt to repudiate repudiate the religious life. The 1917 Code introduces introduces the solicitous inquiry after the absent member, and the 1983 Code adds the pastoral requirement for the superior, having sought out the member, to help them to return and persevere in their vocation.
Canon 666 While the preceding Canon spoke of egress of members from the community co mmunity,, the present Canon speaks of the virtual ingress of of outsiders into the mystic silence of the convent. convent. It states: Can. 666. In the use use of means of social communication, communication, necessary discretion is to be observed and those things are to be avoided which are harmful to one's vocation and dangerous to the chastity of a consecrated person. 50 Legislation on the means of social communication is new to this Code. The Second Vatican Vatican Council dedicated the decree Inter Mirifica to the topic, but there is no mention of the means of social communication in the Decree on Adaptation and Renewal of Religious Life. The Canon mandates necessary discretion: ( servetur necessaria discretio). However, there there is no subject subject stated, so it may be considered a responsibility of both both members and superiors. Gambari puts the responsibility on the superior for vigilance and issuance of directives in this matter. 51 Andr és sees this Canon as regulating only the passive use of media since the active use is regulated in canons 822-832 in Book Three on the Teaching Office. 52 The same author sees the Canon as applying to books, journals, radio, film, TV, TV, theatre, music and video recordings, the telephone, telegraph, t elegraph, correspondence, 53 photography, photography, etc. However, the Second Vatican Vatican Council's Decree on Social Communication 48
Trent. Trent. p. 246. Regularis Regularis non subditus subditus episcopo, episcopo, qui intra claustra claustra monasterii monasterii degit, et extra ea ita notorie notorie deliquerit, ut populo scandalo sit, episcopo instante a suo superiore intra tempus, ab episcopo praefigendum, severe puniatur, ac de punitione episcopum certiorem f aciat; sin minus, a suo superiore officio privetur, et delinauens ab episcopo puniri possit.
49
Ibid. p. 250. ...Ad monasterium monasterium redire cogatur cogatur et tamquam tamquam apostata apostata puniatur; puniatur; interim interim vero nullo privilegio suae religionis invetur.
50
CIC 1983. Canon 666. In usu mediorum mediorum communicati communicationis onis socialis socialis servetur servetur necessaria necessaria discretio discretio atque vitentur quae sunt vocationi propriae nociva et castitati personae consecratae periculosa.
51
Gambari. p. 288.
52
Andres, Andres, Domingo. Domingo. El Derecho Derecho de los Religiosos Religiosos.. Madrid/Rome: Madrid/Rome: Publications Publications Claretianas Claretianas y Commentrium pro Religiosis (1984). p. 385.
53
Ibid.
12
specifies means of social communication as those which go beyond the individual or small group. [They], can, of their very nature, reach and influence, not only individuals, but the very masses and the whole of human society, society, and thus can rightly be called t he media of 54 social communion. The term social communication as used here by the Second Vatican Vatican Council applies only to t o those means which influence the masses, i.e. radio, television, books, newspapers, newspapers, journals, and uses of the internet which influence mass audiences. Nevertheless the principle of discretion in use could be used in the media directed to smaller audiences and to interpersonal communication as well. The Canon urges avoidance of those things that are harmful to the vocation and to chastity; however, no mention is made of consumerism, individualism, violence or loss of faith. While the 1917 Code made no mention of social communication, there are some applicable canons on personal communication of members with those outside the monastery. monastery. Canon 611allows all members to freely send letters, ( libere possunt mittere litteras), to religious and ecclesiastical superiors.55 The cultural context for this Canon is certainly different from the twenty first century. First, the sending and receiving of letters is less co mmon, particularly considering the pervasiveness today of electronic communication. Second, there was a common practice in religious institutes institutes to prohibit or to strictly limit the number of letters which members of the institute could send or receive, as well as to require general or special permission for any correspondence, and often requiring superiors to examine letters sent or received received by religious. This practice was often prescribed in the 56 constitutions of the institute. institute . This right of religious granted in the 1917 Code does not appear in the 1983 Code, however, the surrounding context of limitation of correspondence has also largely disappeared. Today, oday, limitation on correspondence remains a practice largely relegated to the contemplative monasteries of women. Another related obligation of religious is found in the obligations of clerics that apply to religious through Canon 592. Canon 140 urged clerics to avoid shows, dances and spectacles, spectacles, ( spectaculis, 57 choreis et pompis,) where there would be a danger of scandal. The Council of Trent in its Decree on Regulars is silent on the whole matter.
Canon 667 §1 Canon 667 discusses in four paragraphs the notion of cloister as applied to the various types of religious institutes. In one Canon it simplifies the treatment of the 1917 1917 Code which extended over nine canons. Gambari describes the movement from the the 1917 canons on cloister to the current current Canon as a typical t ypical example of the journey of aggiornamento undertaken by the Second Vatican Vatican 58 Council. Canon 667 §1. In all houses, cloister adapted to the character character and mission of the institute is to be observed according to the determinations of proper law, with some part 54
Inter Mirifica , 1.
55
CIC 1917. Canon 611. 611. Omnes religiosi religiosi sive viri sive mulieres, mulieres, libere possunt possunt mittere litteras, litteras, nulli obnoxias inspectioni, ad Sanctam Sedem eiusque in natione Legatum, ad Cardinalem Protectorem, ad proprios Superiores maiores, ad Superiorem domus forte absentem, ad Ordinarium loci cui subiecti sint et, si agatur de monialibus quae sub regularium iurisdictione sunt, etiam ad Superiores maiores Ordinis; et ab istis omnibus praedicti religiosi, viri aut mulieres, litteras item nemini inspiciendas recipere.
56
Bouscaren Bouscaren,, T. Lincoln, Lincoln, et al. Canon law : a text and commentary commentary.. Milwaukee Milwaukee (Wis.): (Wis.): Bruce, 1966. p. 302-303.
57
CIC 1917. Canon 140. Spectaculi Spectaculis, s, choreis choreis et pompis pompis quae quae eos eos dedec dedecent, ent, vel quibus clericos clericos interes interesse se scandalo sit, praesertim in publicis theatris, ne intersint.
58
Gambari. p . 289.
13
of a religious house always reserved to the members alone. 59 The first paragraph mandates the reservation of some part of every religious house to the members alone. This obligation is not ascribed to anyone anyone in particular, but should should be treated generally in the proper law of the institute and may be further specified in each local co mmunity by the members, Chapter or superior. superior. The Canon gives no specification on how large or small a place is to be so reserved, or the purpose of this reservation. However, in most most private homes, there are certain areas that are reserved to fa mily members alone – even if this is done infor mally, mally, and even if i f on special occasions even private areas of the home may be opened to visitors. The then Sacred Congregation for Religious and Secular Institutes issued a document in 1983 entitled Essential Elements in the Church's Teaching Teaching on Religious Life which is illustrative of the purpose of this canonical norm: This form of separation from the world, which is proper to the purpose of each institute, is part of the public witness which religious give to Christ and to the Church (cf. can. 607.3). It is also needed for the silence and recollection recollection which foster prayer. prayer. 60 The 1917 Code and the Council of Trent did not contemplate cloister that would be limited only to part of the house. Instead, cloister applied to the whole house, house, with some possible exceptions being made for conversation rooms ( collocutorio) which were to be near the entrance. entrance .61 There is also an exception for providing hospitality to strangers, and an allowance in case the house of men has a residence for students or for other works of the apostolate. 62 The Council of Trent also presumes cloister applies to the whole house.
Canon 667 §§ 2-4 Canon 667 §§ 2-4 will be treated together; § 2 provides for an intermediate practice of cloister, “a stricter discipline of cloister”, but not yet the “papal cloister” provided for in § 3 for monasteries of nuns which are entirely ordered to contemplative life. § 4 provides for the entrance entrance of the diocesan bishop – however further norms on this are established in the norms of the Apostolic See mentioned in § 3. Can. 667 §2. A stricter discipline of cloister cloister must be observed observed in monasteries ordered ordered to contemplative life. §3. Monasteries of nuns which are ordered entirely to contemplative life must observe papal cloister, that is, cloister according to the norms given by the the Apostolic Apostolic See. Other monasteries of nuns are to observe a cloister adapted to their proper character and defined in the constitutions. §4. For a just cause, a diocesan bishop has the faculty of entering the cloister of 59
CIC 1983. Canon 667 - §1. §1. In omnibus omnibus domibus domibus clausura clausura indoli et missioni missioni instituti instituti accomodata accomodata servetur secundum determinationes proprii iuris, aliqua pa rte domus religiosae solis sodalibus semper reservata.
60
Essent Essential ial Elem Element entss in the the Church' Church'ss Teac Teaching hing on Relig Religiou iouss Life, Life, III §11. (1983).
61
CIC 1917. Canon 597 §2. Lege clausurae clausurae papalis papalis afficitur afficitur tota domus quam communitas communitas regularis regularis inhabitat, cum hortis et viridariis accessui religiosorum reservatis; excluso, praeter publicum templum eum continente sacrario, etiam hospitio pro advenis, si adsit, et collocutorio, quod, quantum fieri potest, prope ianuam domus constitui debet.
62
CIC 1917. Canon Can 599 §1. Si domus regularium regularium virorum virorum adnex adnexum um habeat convictum convictum pro alumnis alumnis internis vel alia opera religionis propria, separata saltem aedis pars, si fieri possit, religiosorum habitationi reservetur, reservetur, clausurae legi subiecta. subiecta. §2. Etiam in loca extra clausuram clausuram alumnis externis aut internis vel operibus religionis propriis reservata, personae alterius sexus, nisi aequa de causa et de Superioris licentia, ne admittantur.. admittantur..
14
monasteries of nuns which are in his diocese and, for a grave cause and with the consent of the superior, of permitting others to be admitted to the cloister and the nuns to leave it for a truly necessary period of time. 63 These norms require all contemplative monasteries, including those of men wholly ordered to the contemplative life to observe a “stricter cloister” which will be determined more specifically in their own proper law. Only “Monasteries of nuns which are ordered entirely to contemplative life” are required to observe papal enclosure which is called papal “because the rules governing it must be confirmed by the Holy See, even in the case of norms to be specified in the Constitutions and in other legislative texts.” 64 Because § 3 refers to the norms of the Apostolic See, those will be summarized here to allow for comparison. The current norms are found in Verbi Sponsa S ponsa, Instruction on the Contemplative Life and on the Enclosure of Nuns issued by the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life on May 13, 1999.
Verbi Sponsa established the Superior of the monastery as the person directly responsible for the enclosure, and placed on the entire community “the moral obligation of protecting, promoting and observing papal enclosure.” The enclosure is to extend to all areas reserved to the nuns and is to entail a separation that is “physical and effective;” all members, including novices and postulants must remain within the enclosure and no one else is allowed to enter. “Permission to enter and to leave the enclosure enclosure always requires a just and grave cause, ... every entry into or exit from the enclosure must constitute an exception.” Permission to depart is ordinarily given for health, exercise of civil rights, or the needs of the monastery. Absences up to one week can be permitted by the superior; extended absences up to three months require the additional authorization of the Diocesan Bishop; for longer absences permission must be obtained from the Holy See. Entry of nonmembers is permitted to cardinals, apostolic nuncios and diocesan diocesan bishops. The document makes no mention of the requirement of the superior's permission for these entrances, however Canon 667 §4 requires requires the local bishop to obtain the permission of of the superior. superior. Further with the permission of the superior, entrances are allowed to: 1) a priest for the purpose of administering the Sacraments to the sick; 2) those whose work or skills are needed; 3) the monastery's own aspirants and to visiting nuns. The document then urges the diocesan bishop and / or the regular superior to vigilance over the custody of the enclosure of monasteries entrusted to their care, “assisting the Superior, Superior, who is responsible for its direct custody. custody. “ 65 As is seen here, while the Code has simplified them, the norms for papal enclosure found outside the code remain quite detailed and strict. In comparison with earlier norms however, however, these norms very clearly specify who has the responsibility responsibility for ensuring that they are observed. It also recognizes more reasons for nuns to leave their monasteries, in addition to health, there is added the carrying out of civic responsibilities and attending t o the needs of the monastery. monastery. The 1917 Code, in contradistinction to the current Code, required papal cloister in all religious houses of all institutes. Many of the canons in this section are prescriptive, prescriptive, without assigning the duty to anyone in particular. particular. However, there are certain certain permissions to be given by the bishop bishop or by the superior. superior. Places of cloister are to be formally established established and clearly marked. marked. Canon 602 requires that the cloister of nuns be so constructed that no one can see in or out of the enclosure. 66 Although the duty of maintaining the cloister is not clearly assigned, in the case of violations of the 63
CIC 1983. Can Canon 666.
64
Instruc Instructio tion n on the the Contem Contempla plativ tivee Life and on on the Encl Enclosu osure re of Nuns Nuns CICL CICLSAL SAL,, Verbi Sponsa 13 May 1999, 14.
65
Ibid., 14-18.
66
CIC 1917. Canon 602. Clausura Clausura monasterii monasterii monialium monialium ita circumsepta circumsepta esse debet ut, quoad fieri potest, potest, nullus sit in eam vel ab ea prospectus externarum personarum.
15
cloister, the local ordinary ordinary is given the authority to coerce and correct, even with penalties and censures. Women are never admitted to houses of men, with the exception of the wives of supreme heads of state.67 The Code also makes provision for residential students or other works of the apostolate. However, it also prohibits anyone of the opposite sex without an adequate cause from entering, even in these areas which are not formally cloistered. There follows a series of rules that apply apply only to houses of women. No one is to be admitted to the cloister of women except the bishop, the visitator, confessor, confessor, supreme head of state, healthcare professionals and others providing necessary services. While there are no special rules regarding men's departure from their houses, for women, there is no egress permitted except in extreme cases: Can. 601. No nun is permitted permitted to leave the monastery monastery after profession, even for a brief time, on any pretext, without a special indult of the Hol y See, except in imminent danger of death or some other evil of the worst sort. 68 The 1917 Code therefore provided a nearly complete separation of nuns, and a strict cloister for houses of men. Legislation on cloister both before and after the the 1917 Code, attempted to maintain the traditional separation but nevertheless allowed for the extensive apostolic works of religious which required them to maintain demanding schedules of work in schools, hospitals, orphanages, parishes, and other social services. services. The oversight of either a superior of a men's community or of the local bishop was also seen as essential for the maintenance of the cloister. Trent's decree on regulars essentially restated the principles of the apostolic constitution Periculoso with which in 1298, Boniface VIII had imposed strict cloister on all women religious, even on institutes founded for active apostolates. apostolates. In Chapter Four, Four, the Decree on Regulars forbade regulars to leave without permission, under penalty of being punished as deserters. In addition it required students who were away from their own communities to live in religious houses or be punished by the bishop. Chapter Five of the decree, appealing to the above mentioned constitution of Boniface VIII, strongly impels bishops “under pain of eternal damnation” to restore the enclosure of nuns, using the assistance of the arms of secular authorities authorities if necessary. necessary. The same Chapter states in words that are echoed in the 1917 Code: “But for no nun, after her profession, shall it be lawful to go out of her convent, even for a brief period, under any pretext whatever, except for some lawful cause, which is to be approved of by the bishop.” 69 Here, a legitimate cause is required for egress, where the 1917 Code required a grave cause, and the 1983 Code requires a just cause. cause. The Chapter goes on to forbid forbid entrance to the enclosure of nuns to anyone of whatsoever birth, or condition, sex, or age, under pain of automatic excommunication (ipso facto incurrenda). The Chapter ends with an exhortation to move monasteries that are outside the city walls into the cities, because of the dangers of of plunder and crimes. Bishops and other superiors are to determine if it seems expedient to move these communities into monasteries in the cities. There is no provision made made for consulting the nuns themselves themselves or the superior of the monastery on the matter. If the bishop determines a move is necessary, necessary, he is charged to call on the 67
CIC 1917. Can Canon 598.
68
CIC 1917. Can Canon 601.
69
Trent Trent.. Chapte Chapterr 5. Bonifa Bonifatii tii VIII consti constitut tution ionem, em, quae quae incipi incipitt Periculoso, renovans, cancta synodus universis episcopis sub obtestatione divini iudicii et interminatione maledictionis aeternae praecipit, ut in omnibus monasteriis sibi subiectis ordinaris, in aliis vero sedis apostolicae auctoritate clausuram sanctimonialium, ubi violata fuerit, diligenter restitui, et, in ubi inviolata est, conservari maxime procurent.... Nemini autem sanctimonialium liceat, post post professionem exire a monasterio, etiam ad breve tempus, quocumque praetextu, nisi ex aliqua le gitima causa, ab episcopo approbanda, indultis quibuscumque et privilegiis non obstantibus.
16
secular arm if necessary, and punish those who obstruct the move or disobey with censures. As in other provisions, Trent places the primary authorit y on the bishop to ensure vigilance for the enclosure and to impose his decisions on the monasteries and ensure that they comply with the requirements set out. The 1917 Code places more authority authority in the hands of the superior, superior, but with the bishop's oversight very much much in the forefront, particularly for monasteries monasteries of nuns. The 1983 Code is very skeletal in its legislation on cloister, however, clearly provides much more freedom for members to engage in apostolic works and other other activities outside the religious house. Nevertheless it maintains papal enclosure in wholly contemplative monasteries of nuns – in one of the few places in the current Code where a distinction is maintained maintained between men and women religious. In addition the further norms of the Holy See in Verbi Sponsa provide significant detail. However, there is in that document a notable move to place the “direct responsibility” for cloister on the superior, and to place a corresponding moral obligation for maintaining cloister on all the religious who live in the house.
Canon 669 §1 Canon 669 in two paragraphs treats the dress of members of religious religious institutes. There is a longstanding tradition of members taking on the clothing of the institute; clothing is one of several elements that were part of becoming a member of the institute, some of the traditional elements of common life were dress, food, living, etc. etc .70 Each of these elements is culturally bound, but probably none so much as clothing, which changes changes over time, and across cultures. cultures. The notion of common life is in both Trent and the 1917 Code, as follows: All Regulars, as well men, as women, shall order and regulate their lives in accordance with the requirements of the rule which they have professed; professed; ... and which regard the observance of a common mode of living, food, and dress .71 Canon 594. In whatever concerns religious life in common, common, all are to observe accurately 72 what regards food, clothing and furniture. One author notes that taking up the habit, or leaving it off was synonymous with entering or leaving the institute. institute.73 In the 1983 Code, Canon 669 §1 comes out of that tradition, however, it adds some new elements as well. The first paragraph states: states: Can. 669 §1 Religious are to wear the habit of the institute, made according to the norm of proper law, as a sign of their consecration and as a witness of poverty. poverty. 74 70
Lawless. Lawless. p. 75. Rule of St. Augustine. Chapter Chapter 1: “Call nothing nothing your own, but let everything everything be yours in common. Food and clothing shall be distributed to each of you you by your superior, not equally to all, for all do not enjoy equal health, but rather according to each each one's need. For so you read in the Acts of the Apostles that they had all things in common and distribution was made to each one according to each one's need (4:32,35).” The Holy Rule of St. Benedict. Trans. B. Verheyen. Chapter 55: “And “And that that this vice of private ownership may be cut off by the root, let everything necessary be given by the Abbot; namely, namely, cowl, tunic, stockings, shoes, girdle, knife, pen, needle, towel, writing tablet; that all pretense of want may be removed. In this connection, however, however, let the following sentence from the Acts of the Apostles always be kept in mind by the Abbot: "And distribution was made to every man according as he had need" (Acts 4:35).”
71
Trent. Trent. Chapter Chapter 1. Ut omnes regulares, regulares, tam viri quam mulieres, mulieres, ad regulae, regulae, quam professi professi sunt, praescriptum vitam instituant et ... ad communem vitam, victum et vestitum conservanda.... conservanda....
72
CIC 1917. Can Canon 594.
73
Eutimio Eutimio Sastre Sastre Santos. Santos. “Se L'Abito L'Abito Fa Il Monaco.” Monaco.” Comment Commentarium arium Pro Religios Religiosis is et Missionariis Missionariis 87 (2006). p. 423-454.
74
CIC 1983. Canon 669 §1.
17
In contrast, the 1917 Code in Canon 596 says: Can. 596. Religious are to wear their own habit, whether inside or outside the house, house, unless excused for a grave cause, in the judgment of the major superior, or in urgent necessity, the local superior. 75 As can be seen, the notion of proper law found in the 1983 Code is not explicitl y mentioned in 1917, although it may be implied from the word proprium as applied to the habit. In addition the notion of sign of consecration and witness to poverty is new to the present Code. Perfectae Caritatis 17 speaks of the religious habit as a sign of consecration: The religious habit, an outward mark of consecration to God, should be simple and modest, poor and at the same becoming. In addition it must meet the requirements of health and be suited to the circumstances of time and place and to the needs of the ministry involved. The habits of both men and women religious which do not conform to these norms must be changed. 76 Instead, Lumen Gentium , 44 sees religious life itself as a sign of the vocation of all Christians and the witness to "a new and eternal life acquired by the redemption of Christ" .77 Because of the strict cloister which bound all wo men religious under Trent and under the 1917 Code,78 the notion of sign and witness value of religious dress would have been impossible: the women were never seen. seen. Those may have been values for men men religious. In its treatment of religious dress, Trent stated that those men religious who were outside the 'control' of the superiors should not wear a habit, but it did not give an y positive norms on religious dress. 79 The 1917 Code specifies that the religious habit is to be worn both inside and outside the house; whereas the 1983 Code simply states the obligation to wear a habit without guidance on when it is to be worn, other than the reference to proper law, which may, either in the constitutions or in some secondary document, express more detail on the matter. There is a widespread custom against against the law of the regular wearing of a uniform religious habit. habit. On the one hand, there is a long tradition of wearing of the "clothing of t he institute" found in the ancient rules as well as in statements of councils and and popes. The widespread disuse of the uniform religious religious habit seems to indicate that the religious themselves are uncomfortable with the norm as it stands, and with the recent history of religious garb. garb. This trend is more evident in women's women's institutes in the West than in men's institutes or in women's institutes in other parts of the world. A possible possible explanation may be found in the fact of cloister which had been strictl y imposed, even against the explicit wishes of apostolically oriented institutes of women, lasting in the legislation for nearly 700 years from 1298 up to the Second Vatican Vatican Council, with some “exceptions” made for the significant majority of religious in active apostolic institutes. This cloister was observed with varying varying degrees of rigor over that period and had the effect of culturally isolating women's religious institutes and freezing medieval clothing practices, raising them to the level of a religious practice. 80 The original inspiration for religious dress, as articulated by the religious themselves and the founders of early institutes, seems to have been that upon becoming a member of the institute, each one received their food, clothing, housing, housing, work, etc. from the institute just as they received from the institute all they needed. The Augustinian Augustinian Rule states: 75
CIC 1917. Can Canon 596.
76
Pefectae Caritatis , 17.
77
Lumen Gentium, 44.
78
See See disc discus ussi sion on of of Cano Canon n 667 667 on clo clois iste terr abov above. e.
79
Trent rent.. Chapt hapteers 17, 17, 19. 19.
80
Makowski, Makowski, Elizabeth. Elizabeth. Canon law and cloistered cloistered women: women: Periculo Periculoso so and and its commentators commentators 1298-1545. 1298-1545. Washington (D.C.): CUA, 1997.
18
Call nothing your own, but let everything everything be yours in common. Food and clothing shall be distributed to each of you by your superior, not equally to all, for all do not enjoy equal health, but rather according to each one's need .81 Far from legislating uniformity, the description of dress in these early rules is limited li mited to giving general guidelines, as is found in examples from the Benedictine rule: Let clothing be given to the brethren according to the circumstances of the place and the nature of the climate in which they live, because in cold regions more is needed, while in warm regions less.... Let the monks not worry about the color color or the texture of all these things, but let them be such as can be bought more cheaply.... cheaply.... However, look to the size, that these garments are not too small, but fitted for those who are t o wear them. them.82 Today's notion of a habit seems to imply clothing that is strictly uniform, and bears a resemblance to the common clothing of the Middle Ages with long dress and veil. This phenomenon may be a result result 83 of the strict cloister imposed on women's communities in 1298 by Boniface VIII . Because of the strict cloister, women were culturally and socially isolated from the outside world for centuries, as the regulation of cloister was restated by Trent, and the 1917 Code, as well as in many other ecclesiastical statements. Thus isolated, women experienced a freezing freezing of culture, as of the day they themselves enter the cloister. cloister. These women maintained that culture, and as new members join, they in turn found the same freezing of their notion of the culture they left, as well as a walking back in time, into the culture that existed inside the cloister. cloister. They expected a change in lifestyle on entering religious life, and elements of culture became enmeshed with elements of religious life and spirituality; thus the common dress of a previous era acquired a religious significance. For this reason, many women's institutes, once called to renewal by the Vatican Vatican Council, returned to the sources and discovered the original original values that inspired the founding of their institutes. From that starting point, they distinguished those elements that were cultural accretions that were no longer relevant. When they addressed the issue issue of religious dress, many institutes first modified, then abandoned any uniform religious dress. Perhaps the reason for this may may be found in the “too long” maintenance of Medieval religious dress, without the opportunity to naturally develop a religious dress that would be in conformity with the original inspiration of expression of belonging, of equity in community and of the deliberate choice of consecrated life. Thus as the memories fade and the negative associations of religious dress weaken over time, it is possible that these original values will be rediscovered – values which have been meaningful to religious throughout the Christian experience of consecrated life, and indeed values which have been meaningful to monastics of other religious religious traditions across the globe and across across the centuries. One need only consider the dress of Buddhist monks and nuns, Jain monks, Sufis, etc. Some developments in religious dress are noted in the commentaries. Di Massia notes that if the institute has no habit, suitable clothing of the region should be worn. 84 Gambari notes that some new religious institutes have been approved without any specific religious dress. 85
Canon 669 §2 The second paragraph of Canon 669 is directed to clerics, stating:
81
Lawless. p. 81.
82
Verheyen. p. p. 5.
83
discussion of Canon 667 above. Periculoso. Boniface VIII. See discussion
84
Di Massia, Massia, G. in Marzoa, Marzoa, A. ed. Comentario Comentario exegético exegético al código código de derecho derecho canónico. canónico. Barañáin Barañáin : Eunsa, 1997. p. 1698.
85
Gambari. p. 302.
19
Can. 669 §2. Clerical religious of an institute which does not not have a proper habit are to 86 wear clerical dress according according to the norm of can. 284. There is not a similar Canon in the 1917 Code on religious life, although there are corresponding canons on the dress of clerics. clerics. Also, the term proper habit proprium habitum is similar to that found in Canon 596 of the 1917 Code on the dress of all religious discussed above, and corresponding to the current Canon 669 §1 discussed discussed above. Canon 669 §1 instead uses the phrase habitum instituti deferant, ad normam iuris proprii confectum.
Summary The obligations and rights of the t he religious with respect to community, community, namely, fraternal life lived in a religious house, social communication, cloister and religious dress have undergone significant change in many aspects. There has been a marked relaxation of the obligation of strict cloister for most religious, particularly for those in women's women's institutes. It is difficult to overestimate the significance of strict cloister which legislated nearly complete isolation of the entire movement movement of women's religious life from the wider cultural context context from 1298 to 1983. Apostolic women religious continually sought ways to engage in ministry outside the cloister and were able to do this, but only with strict limitations on their activities, dress and interactions. The Second Vatican Vatican Council mandated the adaptation and renewal of religious life in its decree Perfectae Caritatis, in which it directed religious to return to the original inspiration for their institutes, to the words and works of their founders and early members, and to seek to discover the core values of their institutes and reinterpret reinterpret those values for the present age. For institutes of women, this meant returning to the sources only to find that their founders struggled with the abilit y to establish a lifestyle that was, on the one hand, true to t heir inspiration and, on the other hand, conformed to restrictive requirements placed on women's institutes. It is probably true to say that the very visible non-adherence to the norms of dress and address, of habit and habitation will continue to be problematic for some time. These are very visible elements which are often pointed pointed out critically by ecclesiastics; and at the same time, they are areas in which women religious strive to find new stories, new models, new images and new ways to express the age old values in a world hungering for their authentic witness.
III. Poverty Obligations Obligations Canon 668 in five paragraphs presents norms for the living of the vow of poverty which was set forth in Canon 600 of the 1983 Code: Can. 600. The evangelical counsel counsel of poverty poverty in imitation of Christ who for our our sake was made poor when he was rich, entails a life which is poor in reality and in spirit, sober and industrious, and a stranger to earthly riches. It also involves dependence and limitation in the use and the disposition of goods, in accordance with each institute's own law.87 Canon 668 prescribes some of the obligations that the vow of poverty entails on a practical level. The first two paragraphs treat use and administration of the member's own goods; the third paragraph covers those goods that a member acquires while in the institute through wages or insurances; the last 86
CIC 1983. Canon 669 §2.
87
CIC 1983. Canon 600. Evangelicu Evangelicum m consilium consilium paupertatis paupertatis ad imitationem imitationem Christi, Christi, qui propter propter nos nos egenus factus est cum esset dives, praeter vitam re et spiritu pauperem, operose in sobrietate ducendam et a terrenis divitiis alienam, secumfert dependentiam et limitationem in usu et dispositione bonorum ad normam iuris proprii singulorum institutorum.
20
two paragraphs return to the subject of the personal goods of a member who renounces ownership of those goods, whether by the requirement requirement of the institute's law, law, or by personal choice. This section will discuss the first two paragraphs on personal goods of the member, then it will discuss the last two paragraphs on renunciation of personal personal goods. The middle paragraph is on goods goods that are acquired for the institute while a member and it will be discussed last.
Canon 668 §§ 1-2 The first two paragraphs require members to execute those documents that are necessary to relinquish administration of any personal goods that they may have or may acquire so that 1) they do not have the burden of caring for these goods on an ongoing basis, and 2) they will live in interdependence with the members of the institute, looking to the institute for all the y require for the fulfillment of their vocation. vocation .88 The first paragraph requires that new members cede administration of their goods before first profession and make a will to dispose of those goods after death before final profession. The second paragraph gives the requirements for changing these documents documents should the need arise. Can. 668 §1. Before first profession, members members are to cede the administration administration of their goods to whomever they prefer and, unless the constitutions state otherwise, are to make disposition freely for their use and revenue. Moreover, at least least before perpetual profession, they are to make a will which is to be valid a lso in civil law. §2. To change these dispositions for a just cause and to place any act regarding temporal temporal goods, they need the permission of the superior competent according to the norm of proper law.89 The 1917 Code required both documents to be executed before first profession, 90 however the prescription for changing the documents documents was different. In the current Code, change of the the will or cession of administration requires 1) a just cause and 2) the permission of the competent superior, usually the major superior. superior. In the former Code, change of the cession cession document required the permission of the supreme moderator, or the local Ordinar y and the regular superior for nuns, unless it was allowed in the constitutions. There is also a prohibition against against making a disposition of a notable part ( notabili bonorum parte) of the goods in favor of the institute .91 Boucaren says that one quarter or one third would constitute a notable part .92 Furthermore to change the last will and testament required the permission of the Holy See; in the United States the authority to grant this permission was given to the Apostolic Delegate .93 The Council of Trent absolutely forbade private ownership, thus obviating the need for regulation of the administration or will of a religious: For no Regular, therefore, whether man, or wo man, shall it be lawful to possess, or hold as his own, or even in the name of the convent, any property moveable or immoveable, of what nature soever it may be, or in what way soever acquired; but the same shall be 88
See See CIC CIC 1983 1983.. Canon anon 670. 670.
89
CIC 1983. Canon 668. §1. Sodales Sodales ante primam professione professionem m suorum suorum bonorum bonorum administrat administrationem ionem cedant cui maluerint et, nisi constitutiones aliud ferant, de eorum usu et usufructu libere disponant. Testamentum Testamentum autem, quod etiam in iure civili sit validum, saltem ante professionem perpetuam condant. §2. Ad has dispositiones iusta de causa causa mutandas et ad quemlibet actum ponendum circa bona temporalia, licentia Superioris competentis ad normam iuris proprii indigent.
90
CIC 1917. Can Canon 569.
91
CIC 1917. Can Canon 580.
92
Bouscaren. p . 282.
93
CIC CIC 1917 1917.. Cano Canon n 583. 583. T. T. Bousca Bouscare ren. n. p. 283. 283.
21
immediately delivered up to the Superior, and be incorporated with the convent. 94
Canon 668 §§ 4-5 The last two paragraphs of the Canon cover the renunciation of ownership of goods, whether required by the nature of the institute or voluntary voluntar y. §4. A person person who must renounce fully his or her goods due to the nature of the institute is to make that renunciation before perpetual profession in a form valid, as far as possible, even in civil law; it is to take effect from the day of profession. A perpetually perpetually professed religious who wishes to renounce his or her goods either partially or totally according to the norm of proper law and with the permission of the supreme moderator is to do the same. §5. A professed professed religious who has renounced his or her goods fully due to the nature of the institute loses the capacity of acquiring and possessing and therefore invalidly places acts contrary to the vow of poverty. poverty. Moreover, whatever accrues accrues to the professed after renunciation belongs to the institute a ccording to the norm of proper law. 95 If renunciation is required by b y the nature of the institute as expressed in its proper law, the member makes the renunciation before perpetual profession, profession, to take effect the day of profession. profession. From that day forward, the religious no longer owns owns his or her goods. If any goods come in the future, the renunciation affects those goods goods as well. While it is civilly possible to renounce currently currently owned goods, in many jurisdictions it is not not possible to renounce goods acquired acquired in the future. For this reason, if and when goods are acquired, the religious is required by canonical renunciation to execute all the necessary documents to relinquish ownership of those goods in favor of the institute. If renunciation is not required, the t he member may, with the permission of the supreme moderator renounce all or a part of the goods, generally generally in favor of whomever the member chooses. chooses. The permission of the supreme moderator is required; other particulars for this renunciation are to be contained in proper law, law, either in the constitutions or in the secondary secondary documents. Those who voluntarily renounce do not loose the capacity of ownership. The 1917 Code made a distinction between simple and solemn vows with respect to the vow of poverty. poverty. Those with solemn vows were required to make make a complete renunciation of ownership of goods and to carry out those acts necessary to cede ownership of any goods they acquired to their institute.96 Furthermore, any acts that members attempted to place contrary to the vow were i nvalid. However, if those acts acts were civilly valid, the canonical invalidity would be ineffectual. For religious of simple vows, acts against the vow were illicit, but not invalid. 97 And there is no provision in the 1917 Code for them to make make a voluntary renunciation of their goods. However, there is an allowance allowance for changing the act of cession of of administration, which could in practice be used to renounce. renounce. There 94
Trent. Trent. Chapter Chapter 2. Nemini Nemini igitur regularium, regularium, tam virorum virorum quam mulierum, mulierum, liceat liceat bona immobilia, immobilia, cuiuscumquae qualitatis fuerint, etiam quovis modo ab eis aquisita, tamquam propria aut etiam nomine conventus possidere vel tenere, set statim ea superiori tradantur conventuique incorporentur.
95
§4. Qui ex ex instituti instituti natura plene bonis suis renuntiare renuntiare debet, debet, illam illam renunt renuntiation iationem, em, forma, quantum quantum fieri fieri potest, etiam iure civili valida, ante professionem perpetuam faciat a die emissae professionis valituram. Idem faciat professus a votis perpetuis, qui ad normam iuris proprii bonis suis pro parte vel totaliter de licentia supremi Moderatoris renuntiare velit. §5. Professus, qui ob instituti naturam plene bonis suis suis renuntiaverit, capacitatem acquirendi et possidendi amittit, ideoque actus voto voto paupertatis contrarios invalide ponit. Quae autem ei post renuntiationem obveniunt, instituto cedunt ad normam iuris proprii.
96
CIC CIC 191 1917. Cano Canons ns 581581-58 582. 2.
97
CIC 1917. Canon 579. Simplex Simplex professio, professio, temporaria temporaria sit vel perpetua, perpetua, actus votis contrarios contrarios reddit illicitos, sed non invalidos, nisi aliud expresse cautum fuerit; prfessio autem sollemnis, si sint irritabiles, etiam invalidos.
22
was also supplemental legislation on this matter mitigating the prohibition in Canon 583.1, which disallowed gratuitous abdication of ownership. 98
Canon 668 § 3 The third paragraph of the Canon regulates the ownership of goods acquired while a member of the institute. Can. 688 §3. Whatever a religious acquires through personal personal effort or by reason of the institute, the religious acquires for the institute. institute. Whatever accrues to a religious in any way by reason of pension, subsidy, or insurance is acquired for the institute unless proper law states otherwise. 99 This paragraph, by contrast with the paragraphs of this canon among which it is situated, speaks of those goods that belong to the institute, institute, and canonically never belong to the member. member. These are the goods acquired by a member through through personal effort in ministry ministry or other activities. Whether these goods are civilly owned by the member or by the institute, Canon law states that t he member acquires them for the institute ( acquirit instituto). Furthermore, things that come to the religious not by personal effort, but by way wa y of pension, subsidy or insurance are also acquired for the institute, unless other provision is made made in proper law. law. In recent years, there has been a diversity diversity of practices regarding religious who have acquired pension plans prior to entrance into the institute. institute. Some institutes require these to be relinquished to the institute, others allow members to add this to their personal goods to be administered administered as provided in Canon 668 §§ 1-2 above. Sometimes this is provided in the proper law, law, other times it is simply the practice of the institute. It is important that proper law make provision for these matters, particularly as the financial income and assets of members and candidates for membership membership becomes more complex. In addition, the institute's treatment of personal goods, income and pensions should be discussed with candidates for membership so that they understand the practice of poverty in the institute that they are aspiring to join. The 1917 Code also required income to be relinquished to the institute, however the wording was slightly different and there was no mention of pensions, insurances or subsidies – surel y a sign of the growing complexity of the financial arrangements of members. 100 Trent had simply required all goods to be given to the institute, forbidding any private ownership. This practice continues in institutes of complete renunciation, however, the current Code also allows for a variety of other practices in the various institutes.
Summary There has been some change in the technical details of the legislation on the details of property and ownership, particularly allowing for greater variety of practice to be determined by the particular law of the individual institutes. Interestingly, Interestingly, the requirement for income to be given to the institute changes from Trent: “no man or woman religious religious may retain...” to “Whatever is acquired ... is acquired for the institute/order.” institute/order.” in both Codes under consideration. consideration. This Chapter is one of the few places in Trent's Decree on Regulars in which the members of the religious order are the acting subject of a requirement, albeit a requirement to relinquish goods. Practices in religious institutes regarding the requirements of this Canon ver y widely, widely, with some 98
CIC 1917. Canon 583. Professis Professis a votis votis simplicibu simplicibuss in in Congreg Congregation ationibus ibus religiosis religiosis non licet: licet: 1.o 1.o Per actum inter vivos dominium bonorum suorum titulo gratioso abdicare;
99
CIC 1983. Quidquid Quidquid religiosus religiosus propria acquirit acquirit industria industria vel ratione ratione institu instituti, ti, acquirit acquirit instit instituto. uto. Quae ei ratione pensionis, subventionis vel assecurationis quoquo modo obveniunt, i nstituto acquiruntur, nisi aliud iure proprio statuatur. statuatur.
100
CIC 1917. 1917. Canon 580.2. Quidquid Quidquid autem autem indust industria ria sua sua vel intuitu intuitu religionis religionis acquirit, acquirit, religio religioni ni acquirit acquirit..
23
members of religious institutes leaving personal goods untouched and other members retaining varying levels of control over their personal goods, even using those goods for their personal needs, either with or without the permission of the competent competent superior. superior. While some religious unhesitatingly relinquish all their income to their religious institute, others maintain significant control over it, turning over only that which they do not need. This Canon is tied to Canon 670 below which requires the institute in turn to provide for all t he needs of the member. Together the two canons provide the financial framework for interdependent living in community. community. Many of the ancient rules point to the life st yle portrayed in Chapter Two Two of the Acts of the Apostles as the model for religious life in community: All who believed were together and had all things in common; they would sell their property and possessions and divide them among all according to each one's need. 101
Perfectae Caritatis urged religious to “diligently practice and if need be express also in new forms that voluntary poverty which is recognized and highly esteemed.” 102 It also promoted the witness value of poverty, poverty, in addition to its value for the members themselves. themselves. The new forms of practice of poverty mentioned find their way into the legislation only in the more frequent reference to particular law that may provide for this.
IV. IV. Other Obligations Obligatio ns This final section will examine the last three canons in the Chapter which are not closely related.
Obligations Canon 670 Canon 670 is somewhat of an innovation in the 1983 Code, and it is the one Canon in this Chapter that comes closest to granting a right, although it falls short of granting it explicitl y in the terms of a right. The Canon states: Can. 670. An institute must must supply the members with all those things which are necessary to achieve the purpose of their vocation, according to the norm of the constitutions. constitutions.103 While all other canons in this section placed obligations on religious, this is the first canon that places the obligation on the institute itself. It should be noted that it is not the superior superior who is to provide for needs, but rather the institute. Andres says that this places the duty duty not only on the superiors, but also on the Chapter, the institute's law and on the other me mbers. 104 It establishes the interdependence between the member and the institute and among the members themselves who make up the institute. The Canon sums up all the duties of of the institute toward the member. member. Although there is nothing similar to this Canon in the 1917 Code, the concept is common in religious rules, and indeed is often described described in more detail and more effectively in those those rules. That was the case with the primitive rules, and is the case with most most constitutions today. today. It is more appropriate for the religious institutes themselves to regulate this matter because the needs of members and the supplying of necessities is better arranged on the level of the institute .105
101
Acts 2:45.
102 Perfectae Caritatis , 13. 103
CIC 1983. 1983. Canon 670. Institutum Institutum debet sodalibus sodalibus suppeditare suppeditare omnia quae ad ad normam normam constit constitutionu utionum m necessaria sunt ad suae vocationis finem assequendum.
104 104
Andre ndress. p. 339. 339.
24
The provision for the needs of members was noted in the Decree on Regulars from the Council of Trent: There shall be nothing therein superfluous, but at the same time nothing shall be refused which is necessary for them.... Such a number of inmates only shall be fixed upon and be for the future retained, as can be conveniently supported either out of the proper revenues of those monasteries, or out of the customary alms. 106 The right, such as it is, is so generally stated that it is difficult to see how the right may be enforced, for what cause, in what forum, or against against whom. The obligation is not to provide for all that the member might want, or even all the member might think he or she needs, but it is limited to providing what is necessary to achieve achieve the purpose of their vocation. Since the member has given up the right to independent sources of income and independent administration of resources, the member has no other source to supply supply his or her needs. The canons of this Chapter have have laid on the member the duty to live in a religious house – which must be provided b y the institute; the duty to perform certain spiritual practices, which require time and some resources – which must be provided by the institute, etc. However, the interpretation of what is necessary to fulfill these obligations, and and indeed to fulfill the religious vocation will probably lie with the superior responsible for providing for the necessities. Recourse may be made to a higher superior superior within the institute, or to ecclesiastical authorities, but these may not be effective effective or realistic remedies. In practice, therefore, in the event of a conflict over the fulfillment of this obligation by the institute, the member may not be able to enforce this right.
Canon 671 Canon 671 imposes a negative obligation on the members, regarding functions and offices outside the institute. Can. 671. A religious is not to accept functions and offices outside the institute without the permission of a legitimate legiti mate superior.107 This Canon might well have been placed in the next Chapter on the works of the apostolate and in fact a thorough examination of all its ramifications would would require a consideration of the canons there, and is beyond be yond the scope of this paper. The closest parallel to this Canon in the 1917 Code is found in Canon 608 which states in part: Can. 608. Let Superiors take care that religious subjects, designated designated by them, especially in the diocese in which they are present, freely offer themselves whenever they are required for ministry by the local Ordinary and their pastor for the necessary care of the people within or outside of their own churches or public oratories, with due regard for religious discipline. 108 The 1917 Code seems to be urging superiors to encourage members to take up offices outside the institute, cooperating in the works of the apostolate apostolate in the local church. The 1983 Code, while not 105 105
Cf. Cf. Gamb Gambar ari. i. p. p. 303. 303.
106
Trent. Trent. Chapter Chapter 2-3. 2-3. ... Nihilque Nihilque superfl superflui ui in ea sit, sit, nihil nihil etiam, etiam, quod sit necessariu necessarium, m, eis eis deneget denegetur ur.... .... Is tantum numerus constituatur ac in posterum conservetur, qui vel ex reditibus propriis m onasteriorum, vel ex consuetis eleemosynis commode possit sustentari.
107
CIC 1983. 1983. Canon 671. Religiosus Religiosus munera munera et offici officiaa extra extra proprium proprium institutum institutum ne recipiat recipiat absque absque licentia legitimi Superioris.
108
CIC 1917. 1917. Canon 608. Curent Curent Superiores Superiores ut religiosi religiosi subditi, subditi, a se designati designati,, praeserti praesertim m in dioecesi dioecesi in qua degunt, cum a locorum Ordinariis vel parochis eorum ministerium requiritur ad consulendum populi necessitati, tum intra tum extra proprias ecclesias aut oratoria publica, illud, salva religiosa disciplina, libenter praestent.
25
giving that encouragement, provides the limitation of required permission which in 1917 was simply stated as: with regard for religious discipline ( salva religiosa disciplina ). The next next Chapter on apostolates of institutes will treat this matter in somewhat more more detail. Andres attributes the change in tenor found in this Canon to the changing circumstances of religious who are found today often working individually in works of the local church, whereas in 1917 they would have been more involved in corporate apostolates of the institutes, albeit at the service of the local church. Trent has no parallel, although it has strict rules on religious discipline and doing on religious nothing on their own initiative, but only with the permission of the superior.
Canon 672 Canon 672 binds religious to certain obligations that apply to the t he clergy, clergy, namely: celibacy celibac y, (Canon 277), non-exercise of civil power (Canon 285), unauthorized commercial activities (Canon 286), disallowance of political or labor offices - except to defend the rights of the church or common good (Canon 287), disallowance of military military service that is not avoidable (Canon 289). Religious who are clerics are also bound by the requirement of continuing education (Canon 279 §2). Can. 672. Religious are bound by the prescripts of canons 277, 285, 286, 287, 287, and 289, and religious clerics additionally by the prescripts of Canon 279, §2; in lay institutes of pontifical right, the proper major superior can grant the permission mentioned in Canon 285, §4. 109 The 1917 Code also applied clerical obligations to religious, however, it applied all the canons on obligations, without making any distinction, noting that an exception should be made for what clearly did not apply. 110 It is worth noting that this canon, along with Canon 596 on religious dress are the only two in those examined from the 1917 1917 Code that are applied to the religious themselves. Other obligations discussed applied to the superiors, giving the m the responsibility of ensuring that the members comply with certain norms. Can. 592. All religious are are bound by the common obligations of clerics mentioned in canons 124-142, unless from the context of the words or the nature of the thing, 111 something else is established. established .111 The current Code is more explicit in applying only certain obligations, however, neither Code makes it clear how these clerical obligations are to apply to religious. religious. For example when particular law is required for the implementation of an obligation of the clergy, clergy, are religious also bound by that particular law, or are their own institutes to provide for the implementation? In clerical institutes of pontifical rite, the major superiors are proper proper ordinaries and may provide for their members. members. But the obligations are also applicable to lay members, both men and women. There is one matter, the permission required by Canon 285, §4, to manage the financial affairs of a lay person, which Canon 672 explicitly states can be granted by the major superior. superior. Trent did not speak to this issue in its Decree on Regulars. These three final canons of the Chapter provide further examples of those developments discovered in the canons examined earlier in this paper and do not provide significant new insights on the trends of legislation regarding obligations and rights from the Council of Trent's Decree on Regulars and Nuns, the 1917 Code and the 1983 Code of Canon Law.
109
CIC 1983. 1983. Canon 672. Religiosi Religiosi adstringun adstringuntur tur praesc praescriptis riptis cann. cann. 277, 285, 286, 287 et 289, 289, et et religiosi religiosi clerici insuper praescriptis praescriptis can. 279, §2 in institutis laicalibus iuris pontificii, licentia licentia de qua in can. can. 285, §4, concedi potest a proprio Superiore maiore.
110
CIC CIC 1917 1917.. Cano Canon n 592. 592.
111 111
Ibid. Obligationi Obligationibus bus commun communibus ibus clericor clericorum um de quibus in can. can. 124-142, 124-142, etiam etiam religios religiosii omnes omnes tenentur tenentur,, nisi ex contextu sermonis vel ex rei natura aliud constet.
26
Conclusion The Second Vatican Vatican Council in its Dogmatic Constitution Lumen Gentium states: Thus, the state which is constituted by the profession of the evangelical counsels, though it is not the hierarchical structure of the Church, nevertheless, undeniably belongs to its life and holiness. 112 While it is not part of the hierarchical structure of the Church, the hierarchical body of the Church, throughout the centuries has sought to legislate for religious and it claims for itself the right to interpret the evangelical counsels and direct their practice. 113 This is what the Council of Trent sought to do in 1563, and again what the legislators sought to do with the 1917 Code and the 1983 Code. This religious life about which the Church seeks to legislate exists nowhere in a universal form, but is always found in a particular religious institute with a particular history and in a particular form. This particularity is sometimes referred to as the charism of religious life. That charism was described in Lumen Gentium as follows: It is not only through the sacraments and the ministries of the Church that the Hol y Spirit sanctifies and leads the people of God and enriches it with virtues, but, allotting gifts to everyone according to the divine will, and distributing special graces among the faithful of every rank. 114 Schneiders distinguishes four levels of charism that may illustrate this point. 1) Religious life itself is a charism for the benefit of the church, and in fact is part of the whole human experience, 2) various forms of religious life are charisms, charisms, e.g. monastic, contemplative, apostolic, evangelical, etc., 3) each particular institute, both in its foundation and in its growth and unfolding over the centuries has a charism, and 4) each individual member has a personal charism, a call and a gift to bring to his or her institute, to the church and to the world .115 These charisms, or gifts of the Spirit, are poured forth gratuitously and abundantly abundantly,, and do not admit of facile control. Indeed throughout the centuries as new forms of religious life and new institutes have emerged, they have struggled with the institutionalization of that gift. Institutionalization of a charism in the institute itself, and its establishment in the Church gives it continuity and stability, but also causes the gift t o strain against the control that this demands. Incorporation comes at a price, since the founding charism, in itself a dynamic gift of the Spirit, is “captured” in some way by its authentication and tamed from its initial wildness. It must be made predictable to some degree, since since only then can the charism 116 exist within the institution. institution . The current Code, more than the Code of 1917 or the Council of Trent, recognizes that universal legislation cannot provide adequately for all the forms of religious life. It legislates at the first level of charism described above, and provides for some minimal distinction between religious i nstitutes, secular institutes and societies of apostolic life. life .117“Nearly half of the canons that apply to religious 112 Lumen Gentium. 44. 113
CIC 1983. 1983. Canon 576. Competentis Competentis Ecclesiae Ecclesiae auctor auctoritatis itatis est consil consilia ia evangelic evangelicaa interpret interpretari, ari, eorunde eorundem m praxim legibus moderari atque stabiles inde vivendi formas canonica approbatione constituere itemque, pro parte sua, curare ut instituta secundum spiritum fundatorum et sanas traditiones crescant et floreant.
114 Lumen Gentium, 12. 115
Sandra Sandra Scheinders. Scheinders. Finding the the Treasu Treasure: re: locating locating Catholi Catholicc religious religious life life in a new cultura culturall and ecclesia ecclesiall context. New York: Paulist Press, 2000. p. 285-286.
116 116
Elissa Elissa Rinere Rinere.. Canoni Canonical cal or NonNon-can canoni onical cal Status Status.. Legal Bulletin 75 (2003). p. 15-25.
117
The 1977 1977 Schema Schema for the revisio revision n of the Code Code of Canon Canon Law provided provided an an extensive extensive typology typology of consecrated life, naming 11 types of institutes and providing some norms for each.
27
institutes in the 1983 Code make reference to various items that must or may be included in the ius proprium of the institute. 118 However, one may still ponder whether there is an appropriate balance between the legislation that is provided on the universal level and that which i s left free for determination at the level of forms of religious life or at the level of the particular religious institute. A second second distinction can be made in the types of legislation legislation that have been promulgated. The distinction is made between divine law and law that is merely ecclesiastical. 119 Likewise in the civil context, the distinction is made in American Law between two types of law: Criminal offenses can be broken down into two general categories malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: a malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so. so .120 Likewise in the world of the religious life, there is a hierarchy hierarchy of laws. Indeed, there is universal law, law, and proper law of the constitutions and secondary documents, as well as policies and guidelines that are given for specific times and places, but but may adapt with changing needs. However, one might might also make a distinction between those principles which are central to the nature of religious life and those that are the current organizational organizational tools to implement these principles. The fundamental principles and practices have stood the test of time and are true in the various incarnations of religious life, whether in the desert experience of the early Christian centuries, or in the medieval monasteries, or in the religious who struggle to serve the poor and the dispossessed on the fringes of society in our modern cities or in refugee refugee camps. Indeed these principles not only cross cross the ages of the Christian experience, but they also cross the boundaries of religion and culture and are often found in the monasteries of other religious traditions, in the Buddhists, Hindus, Jains, Sufis, etc. These central values are prayer, spiritual or ascetic practices such as simplicity of lifestyle in matters such as food and dress, service to society, society, religious or spiritual guidance to the wider community, community living, and some form of governance. These are core. At a second level, there are organizational tools by which communities arrange their lives to enhance and to facilitate a lifest yle built around the more central values. The organizational tools may change, change, but the central values are enduring. The benefit of the organizational tools is that they protect the fundamental principles and values, however, their disadvantage is that they risk becoming an end in themselves the mselves and thus overshadowing the very principles and and values they were intended to protect. This is clearly a tension that is rarely resolved definitively either for pure organization to the detriment of values, or pure values, without organizing structures. structures. However, it is clear that religious life as a movement has migrated toward one or the other pole of the dichotomy as it journe ys through history. history. And wherever religious may find themselves today, toward one pole or the other, it is important to keep in mind the values of both principles, both poles of the dichotomy, to ensure, as much as possible, that t hey find within themselves a resonance with the enduring principles of consecrated life and use and adapt those organizational tools that facilitate that life. The current Code sought to identify and reduce the number of organizational elements that were legislated at the universal level, in some cases, requiring institutes to legislate on the matter, in other cases leaving them free to legislate or not. The 1917 Code legislated many more more organizational principles in detail. On the other hand, in the current Code the legislator legislator sought to identify the core principles that are essential to religious life. In doing so, it included theological and spiritual spiritual principles that have long been found in the rules and constitutions of religious institutes, but which had not been found in the previous previous legislation examined in this paper. paper. Guidelines on the revision of 118
Sharon Sharon Euart. Euart. “Religious “Religious Institutes Institutes and the Juridical Juridical Relation Relationship ship of of Members Members of the Institute.” Institute.” The Jurist 51 (1991). p. 108.
119
CIC 1983. 1983. Canon 11. Legibus Legibus mere eccles ecclesiasti iasticis cis tenentur tenentur bapti baptizati zati in in Ecclesia Ecclesia catholic catholicaa vel in eandem eandem recepti, quique sufficienti rationis usu gaudent et, nisi aliud iure expresse caveatur, septimum aetatis annum expleverunt.
120
State State v. Horton Horton,, 139 139 N.C. N.C. 588, 588, 51 51 S.E. S.E. 945, 945, 946 946 (1905) (1905)..
28
constitution, likewise exhorted religious to include in their revised constitutions: ... the evangelical and theological principles of the religious life and of its union with the Church and suitable and clear words in which "the spirit of the founders and their specific aims and healthy traditions all of which constitute the patrimony of each institute, are acknowledged and preserved.” ( Perfectae Perfectae Caritatis, 2)121 This leads to a further distinction that might be made between texts in the law which are descriptive and those that are prescriptive. For example in scripture, scripture, we find: I am the LORD your God, who brought you out of the land of Eg ypt, out of the house of bondage. You shall have no other gods before before Me. 122 In this section of the Torah, the Jewish law, we find in the text of the ten commandments, a statement that is descriptive: “I am the Lord your God...,” followed by a state ment that is prescriptive: “You shall have no other gods before Me.” Often in religious rules, the same mixture of descriptive text and prescriptive text is found, as may be seen in the first words of the primitive Augustinian Rule: Chapter I: Purpose and Basis of Common Life Before all else, dear brothers, love God and then your neighbor, because these are the chief commandments given to us. 1. The following are the precepts we order you you living in the monastery to observe. 2. The main purpose for you you having come together is to live harmoniously harmoniously in your house, intent upon God in oneness of mind and heart. 3. Call nothing your own, but but let everything everything be yours in common. Food and clothing shall be distributed to each of you by your superior, not equally to all, for all do not enjoy equal health, but rather according to each one's need. For so you read in the Acts of the Apostles that they had all things in common and distribution was made to each one according to each one's need (4:32,35). 123 There are within the 1983 Code, as exemplified in the section examined, some theological or descriptive texts, for example the first Canon in the Chapter. Religious are to have as the supreme rule of life the following of Christ proposed in the gospel and expressed in the constitutions of their own institute. 124 Because of the widespread custom against some of the prescriptive canons in this section, e.g Canon 665 on religious house, it may be an interesting exercise for religious themselves to provide a description of the life they are actually living, as a basis for development of texts of a prescriptive force as they try to live in fidelity fidelit y to the unfolding charism of their religious institutes. There remains one last element to examine in concluding this study of the canons on the Obligations and Rights of Religious Institutes Institutes and Their Members, and that is the matter of enforceability. enforceability. If rights are to be given, it is important that there be meaningful possibilities of enforcement. 125 Should there be a violation of these rights of the member, the member could seek recourse within the institute, with the superior, superior, whether local, major or congregational. If this is to no avail, the member might seek redress outside the institute, with the local bishop for a diocesan community, the vicar for 121 Ecclesiae Sanctae II, 12. 122
Ex 20,2-3.
123 123
Lawl Lawles ess. s. p. 80-8 80-81. 1.
124
CIC 1983. 1983. Canon 662. Religiosi Religiosi sequel sequelam am Christi Christi in Evangelio Evangelio propositam propositam et in constitutio constitutionibus nibus proprii proprii instituti expressam tamquam supremam vitae regulam habeant.
125
James James McIntyre. McIntyre. Rights Rights and Duties Duties Revisited. Revisited. The Jurist. Jurist. 56 (1996). (1996). p. 111-127. 111-127.
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religious is often able to intervene in cases of difficulty. Alternatively, Alternatively, the congregation for religious is a forum of last resort, but for many, this may not be a realistic option if their rights are not safeguarded locally l ocally.. Religious life, fundamentally, fundamentally, is not about obligations and rights, but rather it is a life lived in the realm of relationship and community gathered around an ideal, a realm that does not easily admit of the enforcement of rights. Once the law is invoked to enforce a right, the relationship relationship of community is already at risk; law is generally invoked only by way of exception. However, the legal framework is a backdrop that provides a context for the actions and interaction of members and the institute. In this section on “Obligations and Rights” the word “rights” is mentioned only in the title, thereafter only obligations are described. Most of these obligations are on the part of the member, however, however, Canon 670 describes the obligation of the institute to provide “everything necessary” for the members. In this section on rights, the term right right ( ius) does not occur at all. In the other three sections on obligations and rights, all found in Book Two of the code, the Title: The Obligations and Rights of All the Christian Faithful uses the term rights eight ti mes to describe rights, the Title: The Obligations and Rights of the Lay Christian Faithful uses the term seven times to enumerate rights, the Chapter: The Obligations and Rights of Clerics only uses the term right once to describe a right of clerics, and the final section, examined herein on The Obligations and Rights of Religious Institutes and Their Members does not not use the term even a single time. Notwithstanding this lack of the term rights, Canon 654 proclaims that by b y profession, religious acquire the rights and duties defined by law. The term is also found in the canons dealing with exclaustration and dismissal, where they speak of suspension of rights in the institute and of the right of defense. 126 Nevertheless, Canon 670 in particular, and the general fra mework provided by the canons throughout the canons on religious life impose on the religious institute the obligation to provide for the member a suitable structure, a religious house, a stable system of governance, a lifestyle with religious and spiritual formation and practices, and “all those things which are necessary to achieve the purpose of their vocation.” 127 In addition, as has been stated, the obligations which this Chapter places on the religious themselves implies an obligation on the part of the religious institute to provide the means necessary for fulfilling the obligations, since the member has no other possibility of fulfilling them. Thus for all institutes and their members, while the law provides the framework within which the life is lived, the life is more religious, and more life if the inherent dignity of the person and the founding charism are respected without recourse to hard law.
126 126
CIC CIC 198 1983. 3. Cano Canons ns 685, 685, 698, 698, 700. 700.
127 127
CIC CIC 1983 1983.. Cano Canon n 670. 670.
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