PublicLaw

Parish Law - the Parish - van der Helm - 12-14u; Two readers, one for us, two for special questions. people. Assignment for the examination. Parish reorganization, civil and canon law. ad.vanderhelm@law.kuleuven.be

Existence of public law in canon / ecclesiastical law.

Existence of public law in canon / ecclesiastical law. Office of bishop in the church Historical development of the parish Autonomy of the parish in relation to the diocesan bishops Competence of the parish priest et. al. Place of the parish in civil law Temporal goods of the parish and bishop's supervision Collaboration of parishes and pastoral organization Rights of the faithful in the parish Parish in the East and West compared

• Civil Law - Public law is distinguished from private law, it is the exercise of power in society, national, province, city. It is about the relationship of citizens to government: administrative, criminal. Private law is interrelations of citizens: contract, trade, family.
  

• Distinction exists in Roman Law. Public law needs special protection because in private law, citizens watch out for themselves. In public law, authorities have the authority to protect the common good. In the west, human autonomy is central; the aim of the state is to guarantee this, and ensure mutual protection of rights. Source of power is in the citizen's collective. Being human is more important than being a citizen, the state exists only to protect and enhance human liberty. (Church will have another balance.) Law is not totalitarian - some private zone of action is allowed; and the state and authorities are also subject to the system.
  

• Three ways of state viewing church law: 1) church law is the private law of church members as long as it is not affowl of civil law, e.g. Netherlands - the civil code says churches are governed by their own statutes. This is related to dutch history where there were multiple confessions, 24% catholic, 15% protestant; 8% Muslim, 2% other, rest not a member of a church. There is not tradition of a dominant religion, minority religions were always tolerated. Religious museum became a foundation but it wasn't declared whether statutes were civil or ecclesiastical (public or private JP), bishop didn't want to allow change of purpose, dismissed board, civil court said if it isn't for celebration of the faith, it is a civil entity - in the reformation, dioceses disappeared and lay people administered the parishes and its good till the dioceses were re-established; 2) State promulgates legislation for regulation of churches. In France, the parishes and dioceses are organized by state legislation - the diocese is an association with the rules given by the state and the bishop as president; 3) Ius publicum ecclesiasticum - church law becomes public law, e.g. Italy and Germany (somewhat Belgium where parishes are financed by the state: vzw nonprofit organized by members of the parish). The three models are 19th century notions, but society is more complex that just Church and State. Public authority is based on trust and that has to be earned. Church long considered itself a complete society - societas perfectas - but no institution can be completely independent - the church is in society (GS) with mutual relations. The relations between church and state today are more fluid; it depends on what the state allows, the church can claim liberty, but can't enforce its claims. Concordats may be made - agreements on the national level. Parish in Nederlands exists as a legal entity in civil and in canon law. But because of anti-terrorist legislation, they are looking for more control of religious organizations.
  

• Canon law - what is its basis and legitimacy. Christianity is a revealed religion, God gave values and norms, so we are not completely autonomous. Calls the church and the faithful, by baptism, we become members of the church - so the church is seen to precede the faithful, so the rights are less robust. But God created people with autonomy and calls them to the church. In Judeo-Christianity, there is a distinction between God and the world - God wills freedom and autonomy for the human person - God creates and withdrawals to give space to the autonomy of humanity. So the church and its authorities also have a calling to protect the freedom and autonomy - authorities are called to serve the individual vocations of the faithful and their conscience. Canon 204. Being a person in the church has both external juridical elements and internal spiritual elements. The bishop claims public officer with legislative, judicial and executive power (distinguished but not separated) protecting the common good of the church. (In the 1917 code administrative power was distinguished from executive.) Power is given by God, but in the sacraments. Sacramental presence begins with the absence of God after the ascension of Jesus. Law is an instrument to deal with this sacramental presence. But why do we need any private domain in the church and how large should it be? Private associations or private juridic persons, private vows - there is very little private law in the church, but it is introduced in the new code, it acknowledges that the faithful can take their own initiative for the gospel. Public law power derives its power from ordination (generally). Canon 134 - ordinaries are those with the three powers, but some also with only executive power, e.g. vicar general and superior of pontifical clerical institute. Parish priest is the proper pastor, not a vicar of the bishop, his proper power is only executive. Ordinary is a larger public officer who has larger sphere of decision-making. So the nature of public law in civil and canon law are distinct.
  

Office of bishop in the church

- (Grecco, Green) Canon 375: The office is divino institutio - Eastern canon 178 says the bishop governs in the name of Christ. Episcopi of St. Paul's epistles aren't the bishops we know but the office developed from that via the apostolic succession. This too is a sacramental concept; the bishops receive power through ordination, but exercised only in communio. In the old code, the bishop had jurisdiction from the pope and sacramental power from ordination. Taking canonical possession is needed to be able to exercise the power, but this isn't a separate source of power. Sacra potestas was spoken of in Vatican Two in attempt to unify power of ordination and power of jurisdiction. E.g. Eastern tradition requires communion for validity - illicit is invalid for mass or for ordination. This would be a more pastoral view of the church. In history, there were prince-bishops who weren't ordained, but had jurisdiction. The unification of episcopal power in the sacramental source was attempted. The 1983 code attempted to create an episcopal system in contradistinction to a papal system. The pope has potestas propria, ordinaria et immediata just like the bishop. Powers are only reserved to the pope, whereas in the 1917 the powers were all with the pope and some were conceded to the bishop. However, the in practice the curia is encroaching on the bishop's power, e.g. delicta graviora are reserved to Rome (esp. sexual abuse and profanation of Eucharist). Closing German birthright clinics who for strategic reasons sometimes allowed abortions. Pseudo-college of bishops is not a college NEP 4 because the pope has a special place, whereas a true college is among equals.

• 8 areas for the office of bishop: 1) Service to humanity (canon 303) includes catholics, Christians, non-Christians. Territoriality of bishop extends to everything in that territory. 2) Special care for those in ecclesiastical service, particularly the presbyterium, even the religious. Canon 384. Canon 369 says that a presbyterium is an essential part of a diocese. There is a tension between the common good of the diocese and the care of the priests' personal welfare. Vatican Two spoke of priests as the friends of the bishop, but he still has the power. 3) Word and sacrament - placed among the people for the people, Eucharist celebrates the unity of the church. Canon 899 - unity of the church becomes realized in the celebration of the Eucharist with bishop and the people. No parallel in the eastern code. 4) Canon 393 the bishop represents the diocese legally both civilly and canonically. In protestant churches, churches are represented by colleges. 5) Apostolate - he can take initiative and recognize those of others; he has coordinating function. He can prevent the spreading of the Gospel in his diocese. 6) obligation to reside in the diocese. Canon 395 This comes from Trent at a time when many bishops weren't resident. 7) Bishop has the right to control the diocese and right of visitation (every 5 years); he can delegate, but in the law it is only delegation to a priest, but one could think of other effective visitators. This is for all Canon 396 Religious have some freedom, but societies of apostolic life Canon 738 are under some more control. 8) Bishop must report to Holy See every five years. In the eastern church, the bishops go to their patriarchal see. Canon 399
  

• Governing the church teaching, sanctifying and governing - which can be distinguished as legislative, judicial and executive. Canon 391 gives the bishops the three fol powers which are outlined in 135. The there is no separation of the three powers. However, he isn't the sole active person, so there is another balance. Custom is also a partial balance Canon 27, also reception of law.which can balance the legislation of law. The bishop is also balanced by officers and councils: Vicar General has executive power - potestas vicaria (i.e. not proper power), but cannot give law; executive power cannot be delegated. (On the other hand the pastor proprius has proper power in the parish.) VG has the difficult jobs. The VG and Episcopal Vicar are all ordinaries. The VG is so linked with the bishop that he looses his power when the Bishop looses power (canon 481) unless he is a bishop himself. The law says you are free to choose a new vicar general, however, administrative policy says it might be good to keep the old team for a short time, 100 days, e.g. Don't be too quick but don't wait too long. Delegations and vicars stop but offices don't stop.
  

• Huysmans - good commentary on 1st book of canon law. Canon Law is a kind of emergency law - it isn't meant to regulate ordinary life. Normally, life is in harmony, but when there is a crisis or emergency the law comes into play. And in this case, there shouldn't be restraints on the power of the leader to act. The councils: 1) college of consultors which guarantees the continuity of the diocese because it stays when there is no bishop and through successive terms. 2) Finance council whose advice and consent is required for certain financial transactions. 3) Presbyteral council. 4) Pastoral council. The bishop doesn't have to follow them, but administratively it is a good idea to work with them. The power comes in theory from ordination, not from the people. When Rome hears of lay people they think of the investiture controversy again. E.g. gebedsleiders lay people who lead prayer, but juridically it is chaos because bishops don't want to make it an office (Canon 145 it has all the criteria for an office. The bishop said priest can nominate with the bishop's permission. But this overrides parish priest, and trys to avoid the idea of office.
  

• If a bishop just publishes in a letter or newsletter to priests, it isn't sufficiently promulgated in an official organ. Canon 7. Law should be known - even if it's not a law for you. Analecta, Amsblatt for Holland and Germany. At the universal level there is the AAS. Otherwise it is probably an instruction. He can dispense ecclesiatical law (canon 87) and custom can be an argument for this.

Historical development of the parish

• Paroecia from greek: par oikos for the household. Originally churches were directly related to the bishop, then in the 4-6 century the rural communities began with a priest commissioned to preach and baptize. In the east there were corbishops. 5th Century, the income of the church were divided into four purposes: bishop, clergy, poor and the churches besides the cathedral (later these are the parish churches). Priest and Finance began the notion of parish - it wasn't pastoral, but technical, juridical and financial. In Gratian there is a 286 false decretal stating that Rome was already divided in parishes. This was the start of the relations of parish and benefice - so there was a strict regulation of boundaries of parishes and so income. 8-10 century there is more a division into small parishes associated with small towns. At trent, the division of parishes was solidified, and it was also an instrument of the counterreformation, Trent required division into parishes.
  

• The starting functions were homilies and baptism, the elements of cura animarum. (Adult baptism through the 4th century). There is some autonomy and finances to do it. There will be arch priest leading the group of priests. Trent said that the faithful are linked with the parish, they are required to perform religious duties in the parish church: easter communion, confession and marriage. So it started as a missionary effort, then it became a means of consolidation in the counter reformation - priest has to reside there, do mass and register baptisms and marriages. Today, the question remains: what is a parish: missionary? administrative unit? consolidation of faith? After Vatican 2 this question resurged; now it is a community of faithful. 1917 Code has no section on parish, but only on the parish priest - an instrument of the parish priests. 1917 canon 216 bishop divides the diocese into parishes. There is also the quasi parish and family parish. There were several juridic persons for the parish: 1) fabrica ecclesiae owns the church building adn does liturgy; 2) benefice of parish priest; 3) for the poor. Now the 1983 code has a section on parish as community. Now without priests, what is the focus - with reorganization we are going back to the parish as the instrument for the action fo the parish priest, not the Vatican 2 notion of community. In modern city parishes the territorial principles is nearly gone.
  

Autonomy of the parish in relation to the diocesan bishops

• Canon 515 parish is erected by the bishop, yet there remains some autonomy. 374.1 Diocese has to be divided into parishes, see also Canon 516. 374.2 Deaneries are not obligatory. Parish has juridic personality 515.3; and can act in law, also against the bishop, represented by the priest.

• Quasi parish - The new law didn't distinguish, the parish priest has the same responsibilities. In the old code, they were in vicariates, etc. i.e. in missionary parishes. It is a juridic person.
  

• Bishop has authority as other institutions in the past. In the past secular princes and abbeys could erect them (the fundator - is the historical term). They provided land, etc. Creator is the bishop. The foundator presents priest and has supervision over temporal goods. So the autonomy is limited by this.
  

• Trent required parishioners to do Easter communion and marriage in the parish - so the territory is more defined there. In the old code you had to marry in the parish of the bride. In the new code it is still there, but not so strictly formulated. It is defined from the viewpoint of the parish priest who has to officiate.
  

• Financial basis dot is the donation to start a benefice Canon 1415 (1917). Bishop should organize a financial basis for the parish.
  

• Administrator (cura) is the parish priest. Cura is a lot of historical research on this term. It is a certain autonomy of the parish. Administering the goods and the souls. It implies decisionmaking. With certain autonomy as a proper pastor - he is not a vicar of the bishop. Thus there is jurisdiction. He only has executive power, so not full jurisdiction. (Old code had executive, administrative, legislative and judicial power.) His decisions aren't laws. He is not simply executing the decisions and laws of the bishop. Priest can go against the ecclesiastical law, e.g. gay couple in the parish who ask for blessing of the union. Bishop says no. As a proper pastor the priest can make decisions and exceptions. The bishop can question it. The bishop may say okay, or never again.
  

• Canon 844 on sacraments for other Christians.

Competence of the parish priest et. al.

• Canon 519 says he has sanctifying, ruling and teaching opportunity, 150 says it has to be priest because of the link with sacraments and governance. Could a lay person could be parrochus - a sacramental minister could help. Canon 517 gives possibilities. If you separate administration of temporal goods and juridic person, you make a line of governing institutions separated from the source of power in episcopal ordination. Since it isn't jurisdiction, then you can give the office to lay persons. Scarcity of priests is the reason to look for other ways, but the justification juridically is based on baptism and confirmation. Lay member of the episcopal council is possible, because advisor, not exercising jurisdiction. 528 - 529 say the priest should know the people to care for them properly.
  

• Just don't call it a parish, and you can take the pastoral description and make it workable in the current situation.
  

• Canon 526 on parish priest in a parish (can have more than one parish, but not more than one parish priest in a parish). If the office is vacant, there should be an administrator, Canon 539. He has the same rights, but shouldn't make changes. Often there is a priest in one parish and administrator in a second or third. 532 says only the parish priest can represent the parish and act in the name of the parish.
  

• Canon 517 §1. When required, the pastoral care of a parish/s can be entrusted to several priests in solidum, one of them must be the moderator (to direct the joint action and to answer for it to the bishop). - They are all parish priests, parrochus, and act collegially. They can give dispensations - it is small in practice, but it is important juridically. Canon 530 rights of the parish priest apply to all the solidum members. And if one steps down, then the parish isn't vacant. If there is a conflict, it might go to the bishop. Moderator isn't superior, but just coordinates the college; it doesn't say who appoints, but likely the bishop will name them.
  

§2. If, because of a lack of priests, the diocesan bishop has decided that participation in the exercise of the pastoral care of a parish is to be entrusted to a deacon, to another person who is not a priest, or to a community of persons, he is to appoint some priest who, provided with the powers and faculties of a pastor, is to direct the pastoral care. Care to lay person/s or deacon. They share the exercise of pastoral care. 'legal fiction'. Theoretically no decisionmaking power - signing. The extraordinary situation ends, the 1997 document says the office should end. Lay people have a right to remuneration.


Canon 530 rights of the parish priest apply to all the solidum members.


• 145 Office must be stable with spiritual goal and instituted by God or ecclesiastical law or decree. It can be an extraordinary situation where you need a stable solution.
  

• mixed pastoral team with priests and lay ministers - not in the code. Not forbidden in the code either, but it doesn't exist. Is it a college juridically between clerics and lay. There may be just one priest and then vicars who are not all above the lay people.
  

• Switzerland has institutio which is like incardination for priests. This gives right to ecclesiastical office and they have to stay in the diocese. After the promise, they get their missio canonica.
  

Place of the parish in civil law

Three Civil Arenas

1. Civil law incorporates canon law on the parish into the civil arena.
   

2. Private system where any citizen can organize as it prefers. So the citizens can found an association or a church. Associations are under this, but a church is not. State regulates nonprofits, church isn't obliged to follow all the rules, but they can follow them and it gives them more rights.
   

• E.g. in Netherlands accepting foreign priests was easier years ago, but now it is more difficult in the immigration arena.
  

• Also, it was easier to open bank accounts, etc, but not it is more strict - have to prove identity.
  

• Priests tax status was freer, now everyone has to be employee or employer, and pay taxes.
  

3. Separation of Church and State - The state gives no special freedom to churches, but they follow all regulations of cultural institutions. Parishes have some choices as cultural or general association. (This doesn't include Strasbourg, etc.)
   

Juridic Personality

1. Parish priest acts for the parish - but this can be delegated. Until recently, the president of the parish council could do this in the Netherlands. But then they gave the parish priest the ability but not the obligation to delegate.
   

2. Parish is different from the diocese. It isn't independent, since the bishop establishes. These have to be balanced. Supervision of the bishop is there, but when he refuses to consent to a decision, it is still the decision of the parish to make.
   

3. Civil law may simply acknowledge, or allow it to set up it's own structure. Insider transaction to sell a house to parishioner, bishop didn't consent, reliance to his detriment.
   

• Merged parishes goods should go to the new parish.
  

• Parish can make contracts, employment, property, etc. Are there exemptions from labor law of the country. So in the Netherlands, churches can discriminate, but the schools are civil associations, and they can't discriminate. Article 1: all in the Netherlands and likes are treated like. This is more difficult for protestants.
  

• Can't have a labor contract with ordained ministers and the church - relationship sui iuris. This became more of a problem with lay ministers, must be the same as general personnel, but they were allowed to include the authorization of the bishop - if that is withdrawn - it must be reasoned, it forces the parish to end the contract. But the parish may not comply, he would have to replace the parish board - with a puppet board to do his bidding.
  

Administration

1. In the Netherlands, juridic persons have to be governed by board. In canon law, it is a single leader, not taking into account developments in modern jurisprudence and legal theory. In france, they have to have an assembly to run the diocese - this was modified recently. Till 1853 Netherlands didn't have civil status for parishes; usually property was owned by individuals. Then they were organized as ecclesiastical juridic persons and the property was transferred to them / but sometimes there were troubles. For this reason, parishes were then administered by board of lay persons, and also because of Dutch law, they used canon 1279 for and exception to the canonical requirement that the priest is sole actor.
   

2. 1997 said the parish board can't act without the parish priest. But often this is impractical, especially when one priest has several parishes.
   

3. The material and spiritual leadership is united, there can be another balance possible.
   

Temporal goods of the parish and bishop's supervision

1. Institutional doctrine - supreme supervisor exists, but every juridic person has its own property, and acts according to its statutes. Canon 113, juridic persons (public and private) and moral persons. Private juridic persons don't have ecclesiastical goods.

2. Purpose of gift attaches to the property in perpetuity: canon 1267. Employee is paid by two sources for two functions - the money for each function has to follow that function. If purpose is complete or impossible, you can expand purpose, or have prescription.
   

3. Juridic person is supervised on basis of spiritual and economic basis by the bishop.
   

4. Extraordinary administration: Canons 1277, 1281 Bishop's conference establishes list of extraordinary administration. Inheritance's can be a liability. To have a lawsuit, the permission of the ordinary is required. There must be an inventory of parish goods, Canon 1283. Canon 1284 requires the administration of a good householder.
   

5. Church building - special aspect of church property where bishop has special authority, parish is more limited. Parish house also has limited use for the parish, just for pastor. Canon 1215 bishop gives permission to build a church; clerical orders have a right, but should ask. Even if the churches aren't owned by the church, the ministers can act there - because it is a sacred place. Canon 1212, 1222 treat the de - consecrating of a church de facto or de juris by decree. Changing to churches of other christian communions is possible, but what about islam. If you sell it under restrictions, but that depends on civil law how effective that can be done. Church should be free to enter during sacred functions. 1) withdraw from liturgical use by administrative act (not violating rights - generally this is accepted on appeal unless the bishop had a procedural flaw.); 2) disposal or use of building.
   

Collaboration of parishes and pastoral organization

Collaboration of parishes

• Relation with bishop. Parish priests. Roch Page has other ideas on how to organize the church without priests. This is the end of an evolution - these three areas are of concern:
  

• If the priests aren't competent, there are many problems. As the number of priests decline, the quality is going down as well. Are priests formed as administrators of parishes or spiritual persons. Seminary formation is lacking, governance and pastoral work isn't emphasized. Some become very spiritual and theological, and that isn't helpful for poewr and control positions.
  

• Also people aren't around, and people don't always want to contribute if it isn't a vital institution.
  

• Finances are also lacking - large properties must be maintained, sometimes these are monuments that must be maintained by law.
  

• People are leaving the church, is the area then a mission area and is the parish an effective instrument for this situation? Mission territories have other possibilities to organize themselves. Parish works in a christian society - the priest has a close link with the people, knows them and their needs, territory builds the community. But as times change, the parish is a juridic structure that doesn't work in the times. France and Holland are continuing to try to work with the parish because of the hierarchical structures for power and control. Parishes can be merged, with advice; other times collaboration of parishes that remain autonomous.
  

• Utrect 345 parishes to 45 units.
  

• Rotterdam 205 parishes went to 150, and they expect to be 24. Bishop prefers merging, but people and parishes can apply to be a federation.
  

• Breda 100 parishes to 21 parishes.
  

• Two options: 1) merging and 2) federation / collaboration. A new layer of decisionmaking between the parish and the bishop. But the experience with this has not been good. Breda had parochial associations, sometimes also with civil structure, sometimes they got buildings and assets, and the bishop lost control over ecclesiastical goods. Deanery isn't clear in Canon Law - the vicar forane is named, but there isn't a clear link with the role of the Deanery. It is more for informal pastoral collaboration. Deanery can't overrule the parish priest. Federations work well for the community of the faithful. The parish priest parachutes in for sacraments, but has no more connection the people. The church sides with ordination power, over providing eucharist. When people can choose their parish, they can go for something that is more consonant. Territoriality is somewhat of a fictin in a mobile society.
  

• Roch Page suggests associations of the faithful. Public assn is for public things of the church, eg liturgy and catechesis. Make a board without a priest. Then you are outside the code, and the bishop can make something he wants. This is of course dependent on the bishop. Intentional communities. In France the merging of parishes goes very quickly, in Holland, they have more debate.

Rights of the faithful in the parish

• Canons 204, 208, 213, 214, 215, 216, 220, 222
  

• Administrative acts where someone's rights are harmed, they should be heard. (Canon 50). Damages are due Canon 128. There is right to recourse. E.g. in the closing of parishes.

Parish in the East and West compared

• Eastern parish looks a lot like the west, but laypersons and deacons aren't parish leaders. Relationship to religious institutes is different - bishop erects church in the religious institute. Priests and wife and kids should lead an exemplary life. Synod is legislative and elects bishops, so the structure is different as well.
  

• Exam: reader, summarize and respond to an article. And ask one of the topics. in the outline.

Assignment: paper with description of the juridic position of Catholic church in the country of origin; what are the implications for the juridical position of the parish; what is the particular ecclesiastical for parish, bishops conference or diocese. 4-6 pages. Date of Exam.