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Major Contributions of CCEO during the Past 20 Years

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Pablo Gefaell’s article, “Major Contributions of CCEO during the Past 20 Years,” provides the readers with a scholarly journey through the past 20 years since the promulgation of the Eastern Code. As a result, he provides facts and figures of the contributions – in terms of scholars of law, institutions, establishments, decisions, major events like symposia, conferences and seminars and significant works on Eastern Canon Law – that CCEO has facilitated in the growth, development and enhancement of the study and application of canon law in the Church, with a special focus on Eastern Churches.

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IUSTITIA

Vol. 1, Nos. 1&2, December 2010

Pages: 84-117

MAJOR CONTRIBUTIONS OF CCEO

DURING THE PAST 20 YEARS

Pablo Gefaell*

This year we celebrate the 20th anniversary of the promulgation of the CCEO. In this article I try to explain the path followed by Eastern canonical science throughout these years. In order to make the explanation more pleasant I would like to talk about personal experience, but without any interest of self-satisfaction. I will try to be as clear and thorough as I can, bearing in mind that I have the unmerited fortune to belong to a generation that has received its formation directly from the lips of the protagonists of the new Eastern codification.

1. The Interest of the Study of Eastern Law

As I was finishing my doctorate in Latin Canon Law, back in the year 1990, and beginning my educational experience, the much awaited Codex Canonum Ecclesiarum Orientalium was passed. On October 25 th of that same year, the Servant of God Pope John Paul II presented it to the Assembly of the Synod of Bishops that was taking place in Vatican. Presenting the Code that regulates the common ecclesiastical discipline of all the Eastern Catholic Churches to the Assembly, the great Polish Pontiff told: “I consider it an integral part of the unique Corpus Iuris Canonici ” which is constituted by the CIC, the Pastor Bonus and the CCEO. John Paul II also recommended that “in all the Schools of Canon Law a suitable comparative study of both Codes be promoted, although these, according to their statutes, have as their main object the study of the one or the other.” The Pope repeated several times this desire. To the congress celebrated on occasion of the tenth anniversary of the Latin Code, for example, he said: “the knowledge of this whole Corpus (…) must opportunely be promoted in the sacerdotal formation and, first of all, in all the Schools of Canon Law. Indeed, such knowledge will be able to enrich the students and cause that canonical science, practiced in the Athenaeums, to be ‘ plene respondens titulis studiorum, quos hae Facultates conferunt. ’”

Before such insistence, it was logical to see the response with a renewed investigating and formative effort that, little by little, the different Faculties of Canon Law have put in practice. To tell the truth, sometimes, in Latin atmosphere the Eastern Law has been regarded as “exotic” or of lesser importance, and one of the secondary subjects in the curriculum. Today, unexpectedly it has become relevant and of crucial importance due to the sweeping migratory flow from the East. As for me, I have been convinced from the very beginning, that the unicity of the legal ordering of the Church demands constructing and teaching a unitary Canon Law, that considers the two disciplines, Eastern and Latin, because the reconstruction of the common canonical institutes has to be done harmonizing the originating data set, indications and consequences of the whole normative order.

In addition to this, it is a legal requirement by the same CCEO that when the Latin faithful have frequent relations with those of the Eastern Churches because of their office, ministry or order, they must acquire a formation adapted to the rite of those Eastern faithful and learn to love it and to venerate it (cfr. CCEO can. 41). For that reason, it is logical that the Eastern Law be comprised among the obligatory matters of the curriculum of the Faculties of Latin Canon Law.

Obviously, it should not be necessary to talk about all these reasons in the case of the academic institutions that by constitution are dedicated to train Eastern canon lawyers. Nevertheless, also these should bear in mind what our Holy Father said regarding the necessary knowledge of the whole Corpus Iuris Canonici and not to neglect the compared study of the Latin discipline. As it is widely known, at present, there are only two institutions dedicated solely to the Eastern Canon Law: the much loved and meritorious Faculty of Eastern Canon Law of the Pontifical Oriental Institute (Rome, Italy) and its aggregate, the Institute of Oriental Canon Law at the Pontifical Atheneum Dharmaram Vidya Kshetram in Bangalore (India), that has promoted this periodical and whose tenth anniversary we are also celebrating today.

2. Recent Oriental Canonists

As an answer to the call of the Pope, the “Santa Croce” Pontifical University where I work, initially invited Rev. Prof. Marco Brogi, O.F.M., the then undersecretary of the Congregation for the Eastern Churches, to give an optional course in our Faculty. Brogi has written fundamental papers on the Eastern Law until his appointment as Nuncio in Sudan and his consequent episcopal consecration in 1998. Soon after this, we invited our dearest Prof. Dr. Carl Gerold Fürst, professor at the University of Friburg, who, thanks to his generous dedication to the works of the PCCICOR, had merited a special gratefulness from the Holy Father during His presentation of the CCEO to the Assembly of the Synod of Bishops. Besides his innumerable articles, his book on the Synopsis of the canons of the CIC and the CCEO has been an essential base for the comparative studies of both Codes. His complete bibliography can be found in the Festschrift published on the occasion of his 70 th birthday: The heavy volume is a proof of the affectionate esteem his great amount of friends, colleagues and disciples have for him! Recently, the Pontifical Oriental Institute (P.I.O.) has honoured him with the Doctoratum honoris causa .

Anyway, seeing that in my Faculty (as in the other Latin Schools) they lacked stable professors specialized in that field, I decided to dedicate myself to the Eastern Canon Law and thus I initiated my studies in the Pontifical Oriental Institute [PIO], whose Faculty of Eastern Canon Law, was back then unique in the world.

In the PIO, I had the opportunity to meet great masters of the Eastern Canon Law who had taken part in the formulation of the Eastern Code. Some have already given their souls to God. I cannot forget dear Rev. Prof. Ivan Žužek, S.J., Secretary of the Pontifical Commission for the redaction of the Code of Oriental Canon Law (PCCICOR) from its very beginning, and soul of the codification work, deceased in 2004. His best known canonical works are the brilliant “Index Analyticus CCEO” and the book “Understanding the Eastern Code,” a compilation of several of his articles.

I was also taught by Mons. Joseph Prader, of the diocese of Bolzano-Brixen, who was the relator for the codification of the canons on marriage and who – besides his book “Marriage in the world,” a compilation of state legislation on marriage – wrote in 1991 the splendid work “Marriage in the East and the West” of which he managed to make a second edition, reviewed and updated in 2003, before leaving us in 2006 at the age of 90. He also received the Doctoratum honoris causa from the PIO.

Another illustrious professor, already emeritus, is Rev. Prof. George Nedungatt, S.J., Editor of the collection “Kanonika” for long years, which reunites monographic books on Eastern Canon Law, published by the Pontifical Oriental Institute. The same author has to his credit significant books like “The Spirit of the Eastern Code,” “Laity and Church Temporalities,” the commentary to the CCEO, “A Guide to the Eastern Code,” and other collective works edited by him and innumerable number of scholarly articles. It is good to remember, here, the book published in honor of his 70 th birthday that gave occasion to many authors, mainly of the Syro-Malabar Church, to show their esteem for him.

I also remember with special gratitude and love Rev. Prof. Clarence Gallagher, S.J., who was the Rector of the Pontifical Oriental Institute during my studies and who welcomed me with his habitual benevolence and good humour. His publications are mainly of historical character.

The Rev. Prof. Dimitrios Salachas, current Apostolic Exarch of the Byzantine Rite Catholics in Greece, has also been one of the protagonists of the teaching of Eastern Law in the past years. Up to now, he has been the most prolific writers of the modern Eastern Canon lawyers. Among his books, I would like to point out his treaties on Sacraments, Marriage, Institutions of the Eastern Law, The Historical Sources of Eastern Law, Teaching and Evangelisation, Codification and Preliminary Canons of the CCEO, Clerics, Consecrated Life, and, recently, a concise but useful book on the Latin and Eastern Relations. Besides these, he also has written books on Ecumenism and innumerable scientific, research articles.

At some conferences, I had the opportunity to meet Prof. Dr. René Metz, of the University of Strasbourg-II, who was one of the consultants of the Codification, and author of a brief manual on Eastern Law in French language, and also co-editor of the French version of the CCEO, apart from his other publications on the subject. And on a trip to the United States I was able to meet Rev. Prof. Victor J. Pospishil, who has published, among other works, a manual on Eastern Law on Marriage and another one on the whole of Eastern Law, which is, now, on its second reviewed edition. S.E.R. Mons Sophron Mudry, O.S.B.M., was also Professor at the PIO, and today he is emeritus archbishop of Ivano-Frankivsk of the Ukrainians. We cannot also forget S.E.R. Mar Andrew Thazhath, expert in canonical procedural Law, who was President of the Oriental Canon Law Society of India and President of the Syro-Malabar Major Archiepiscopal Ordinary Tribunal; he was also chief editor of “Eastern Legal Thought,” an annual publication of that same Tribunal, until his appointment as Archbishop of Trichur.

Obviously, there is today a new generation of teachers of Eastern Canon Law who are trying to profit by the inheritance received from our teachers. In the first place the Canadian Maronite Rev. Prof. Jobe Abbass, O.F.M., former teacher at the PIO, and currently working as a teacher at the Saint Paul University of Ottawa. His scientific production is remarkable concerning the comparison and interrelation between Latin and Eastern Codes, and in procedural and Religious Law as well.

Worthy pupil of Prof. Žužek, S.E.R. Mons Cyril Vasil', S.J., present Secretary of the Congregation for the Eastern Churches, has been Dean of the Faculty of Canon Law as well as Rector of the Pontifical Oriental Institute, besides being a consultant to several Congregations of the Roman Curia.

Prof. Dr. Peter Szabó, is the Chairman of the Review “Folia Canonica” published by the Institute of Canon Law, at the Catholic University Peter Pázmany of Budapest and also by the Greek-Catholic Theological Institute St. Athanasius of Nyíregyháza, affiliated to the P.I.O., that publishes many works on Eastern Law and a very useful “Eastern Canon Law Bibliography.” The Pontifical Council for Legal Texts counts him among its consultants.

Naturally, I cannot forget the Rev. Prof. Varghese Koluthara, C.M.I., who was the first Director of the Institute of Oriental Canon Law at Dharmaram Vidya Kshetram , his successor Rev. Cherian Thunduparampil, C.M.I, editor of the Dharmaram Canon Law Journal, its present Director Rev. James Mathew Pampara, C.M.I., and the rest of the educational body of that young Institute, which, thanks to its dynamic character, has gained a place in the present Eastern Canon Law milieu. Other illustrious members of the Syro-Malabar Church are the great expert in its history, Rev. Prof. Jacob Kollaparambil, teacher at the Faculty of Canon Law of the PIO, and Rev. Prof. Sunny Kokkaravalayil S.J., who till this very year was interim Rector of the Pontifical Oriental Institute in Rome.

As I am aware that I cannot make myself too long by naming everybody, other worthy professors of mention are: Rev. Prof. Michael Kuchera, S.J., present Dean of the Faculty of Canon Law at the PIO, Prof. Dr. Danilo Ceccarelli-Morolli, at the PIO, and editor of the electronic Review «Iura Orientalia,» Rev. Prof. Georges Gallaro, at the Byzantine Catholic Seminary of SS. Cyril and Methodius of Pittsburgh, Rev. Prof. Lorenzo Lorusso, O.P., new President of the Institute of Greek-Byzantine Ecumenical-Patristic Theology “Saint Nicholas” of Bari, and also teacher at the PIO, Rev. Prof. Luis Okulik who was Vice Dean at the Institute San Pio X of Venice, Prof. Dr. Astrid Kaptijn, who was Vice Dean of the “Institute Catholique” of Paris and now is a professor at the University of Friburg, in Switzerland, Rev. Prof. Natale Loda at the Lateran University, Rev. Prof. Leszek Adamowicz at the University of Lublin, Rev. Francis Marini and Rev. Archim. John D. Faris, of the Maronite eparchy of Brooklyn (NY), S.E.R. Mons. Antonios Aziz Mina, who worked at the Congregation for the Oriental Churches and was visiting teacher at the PIO during his stay in Rome and now is Bishop of the Coptic eparchy of Guizeh in Egypt, etc.

There are many professors of various Schools of Theology that deserve to be mentioned here as some of their works are about canonical matters, but I think that it would be too complicated and confusing to include all of them. Let us mention at least two among them, that is, Rev. Mons Paul Pallath, teacher at the Faculty of Eastern Ecclesiastical Sciences at the PIO and official of the Congregation for the Divine Cult and Sacraments and the recently deceased dear Mons. Eleuterio Fortino, from the Italo-albanese Eparchy of Calabria and undersecretary of the Pontifical Council for Promoting Cristian Unity.

3. Journey Along the Main Eastern Events of These Past Years

In the years just before the promulgation of the CCEO a renewed interest in the Law of the Eastern Churches had already started. At official level, in 1987 the Congregation for the Catholic Education made a call in order to promote the studies on the Eastern Churches, and in 1988 the President of the PCCICOR announced the then imminent appearance of the CCEO. Now I will only quickly go through the published official documents of the Church that talk about Eastern Law in one way or another during these last twenty years.

First of all, it is known that, after the promulgation of the CCEO, the then so-called Pontifical Council for the Interpretation of Legal Texts (PCITL) received in 1991 the competence for the interpretation of this new legal body.

In 1992 the Secretary of State issued for the Latin discipline an analogous norm to the CCEO can. 32 § 2, until then non-existent in the CIC, on the presumption of the consent of the Apostolic See for the transit of faithful from the Latin Church to an Eastern Church, if the respective Bishops allow this in writing (and if they exert jurisdiction in the same territory).

In order to protect the Eastern patrimony, in 1996 the Congregation for the Oriental Churches published an Instruction on the liturgical prescriptions of the CCEO, where concrete indications regarding the divine cult and the sacraments take form. I have to confess that some of its affirmations seem problematic to me, like, for example, the one that makes reference to the minister of the sacrament of marriage. We will talk about this further on.

In 2003 the Spanish Episcopal Conference published some “Directives” on the pastoral care of the Eastern catholics. And in 2006 the same Episcopal Conference wrote a document on the pastoral services offered to the orthodox faithful. I have published a commentary to both documents highlighting the most interesting things and problematic questions.

In 2004 the Instruction Erga migrantes , n. 55, affirmed that the CCEO can. 193 § 3 had to be applied to the Latin Church by analogy, that is, although CIC can. 383 does not forsee this, the Latin diocesan bishop must obtain the consent of the interested Patriarch if he wants to appoint a priest to take care of the faithful of that Eastern Church present in his diocese.

In 2005 the Instruction Dignitas Connubii explicitly included in the Latin discipline some articles that are parallel to the norms of the CCEO: Art. 2 § 2 is parallel to CCEO can. 780 § 2, and Art. 4 § 1 corresponds to CCEO can. 781. In fact, up to that moment, the Latin discipline had foreseen in its can. 1059 that marriages between a catholic and a baptized non catholic would be regulated (only) by (catholic) Canon Law and, in addition, there was not any written criteria for the catholic judge when he had to judge the validity of marriages between those non catholic Christians. Now, however, also in Latin discipline the criteria already established in those canons of CCEO are to be followed.

On October 20 th 2006, the Apostolic Signature declared that the sentences of “marriage annulment” dictated by the Rumanian Orthodox Church could not be accepted by the Catholic Church.

On January 3 rd 2007, the same Signature decreed that in order to accept the “free status to marry” of an orthodox person who previously was civilly married to someone, without the appropriate priestly blessing, and now wants to duly marry another catholic person, it is not necessary a formal judicial trial declaring the nullity of the first marriage, but it suffices the normal pre-marriage investigation done by the Catholic Ordinary or the parish priest. In this decree, the Signature applies the CCEO can. 781 and art. 4 § 1 n. 2 of the Dignitas Connubii , considering, by analogy, the authentic interpretation of June 26 th 1984 on CIC can. 1686 (= CCEO can. 1372 § 2) referring to those Catholics married without canonical form.

Although they are not documents directly dealing with Eastern Canon Law, it is also significant that, during his papacy, John Paul II wanted to often address the Eastern Churches.

Among these pontifical documents the Apostolic Letter Orientale Lumen , published on May 2 nd 1995 on the occasion of the centenary of the Apostolic Letter of Leo XIII Orientalis Dignitas , stands out in first place. In this letter, the Pope exhorts once more Western catholics to become acquainted with Eastern Christianity. Specially, he asserted: “A special thought goes to the lands of the diaspora where many faithful of the Eastern Churches who have left their countries of origin are living in a mainly Latin environment. These places, where peaceful contact is easier within a pluralist society, could be an ideal environment for improving and intensifying cooperation between the Churches in training future priests and in pastoral and charitable projects, also for the benefit of the Orientals’ countries of origin. I particularly urge the Latin Ordinaries in these countries to study attentively, grasp thoroughly and apply faithfully the principles issued by this Holy See concerning ecumenical cooperation and the pastoral care of the faithful of the Eastern Catholic Churches, especially when they lack their own hierarchy” (n. 26).

In that same year, the Pontiff published the important Encyclical Letter Ut Unum Sint , on the ecumenical endeavour.

In order to finish this section, it is necessary to indicate that, besides the official Latin version, and its edition with sources, the Eastern Code has already been published in many languages: Spanish, Italian, French, English, German, Arab, Croatian, Pole, and Romanian. Finally I cannot forget to mention that, as far as I know, there are only two publications of the Eastern code with commentaries: one has been carried out by the professors of the university of Salamanca and the other one by those of the Urbaniana.

4. Some of the Main Issues Dealt with throughout These Years

a) Presentations of Eastern Codification – Works and Conferences

In the first years of the CCEO many of the publications and conferences dwelt in a general presentation of the new Code. At the beginning, some articles and a small leaflet edited by P. Clarence Gallagher, S.J., presented the new Eastern Code in a general way. Also, in those years, there were works that introduced the diverse parts of the Eastern Code and the history of the Eastern codification.

As we know, parallel to the “Consociatio Internationalis Studio Iuris Canonici Promovendo”, the “Society for the Law of the Eastern Churches” dates back to the 70s with headquarters in Vienna, in which catholic (Eastern and Latin), orthodox and protestant experts in Canon Law and Civil Ecclesiastical Law take part. From then on, the Eastern Society has promoted conferences every two years (ex. gr., in Santiago, Bari, Vienna, Boston, Athens, Würzburg, Beirut, Tsaghkadzor, Rome, Budapest, Urbino, Cluj, Venice, etc.) on different issues of special relevance to the reciprocal acquaintance of the different Churches (i.e.: the concept of “Protos”; the Oikonomy; Priestly Ordination; the Ascription to the Church; Law and Ecumene; the Caucasian Churches; the Constitution of the Church and its eclesiastical basis; the Church in Rumania; Types of autonomy in the Eastern Churches). The Acts of these conferences have been gathered in the collection “Kanon”.

The Conference of Bari in 1991 reunited, for the first time, the two Societies (the Latin Consociatio and the Oriental Society ) and was very important in order to stimulate Latin and Oriental canonists to study together the canonical discipline.

Also, many conferences on “Latin” Law included Eastern issues. For example in 1993, on the occasion of the conference held in Rome in order to celebrate the tenth anniversary of the Latin Code, P. Ivan Žužek delivered an interesting speech on the incidence of the CCEO in the modern history of the Church.

Besides the conferences on Eastern Law organized by the “Society for the Law of the Eastern Churches,” other institutions have also organized them. For example:

In 1995 the conference held in Kaslik (Lebanon) served to stimulate knowledge of the new codification and to give new forces to the Lebanese nation hurt at the time by their recent civil war.

Summoned by the Congregation for the Eastern Churches, in 1997 the bishops of the Eastern Rite of Europe met in Nyíregyháza (Hungary) to study the problems of their Churches.

The Société de Droit Canonique et de Législations Religieuses Compares (related to the Institut Catholique of Paris) organised a conference on important matters of the CCEO in 1998.

In 2000, The Ateneo Pontificio Dharmaram Vidya Kshetram of Bangalore (India) held a conference to celebrate the 10th anniversary of the promulgation of the CCEO.

In 2001, the tenth anniversary of the coming in effect of the CCEO was celebrated in the Vatican. Almost all cultors in Eastern Law, as well as those interested in it, gathered there.

In that same year, the Consociatio and the international Society for Eastern Law gathered again at a conference held in Budapest on the highly topical issue of “Territoriality and Personality.”

In 2006 the University of Catania organized a brief colloquy on Eastern Law. In that same year, the Theological School of the University of Trnava held at Košice (Slovakia) an Eastern Canon Colloquy on Particular Law. This conference followed a preceding conference which had been held in Rome that same year at the P.I.O. (about its initiatives we will talk about in the following paragraph); that is why their acts have been published together.

Coherent with its specific purpose, the Pontifical Oriental Institute organizes a study day on topics of Eastern Canon Law every year.

This year 2010, I have had the opportunity to organize the annual conference of the Faculty of Canon Law of “Santa Croce” Pontifical University, centered on the subject “Eastern Christians and Latin Pastors” (Rome, 15 th -16 th April 2010).

From the 8 th to the 9 th of October 2010, the Pontifical Council for Legislative Texts, in association with the Congregation for Oriental Churches and the PIO, organized a Meeting, discussing the theme, “The Code of the Eastern Churches – History, Particular Legislations, Ecumenical Perspectives,” to celebrate the twentieth anniversary of the promulgation of the CCEO.

I cannot finish this section without mentioning the initiative born in 1999 from a small group of Eastern canon lawyers (in those years we regarded ourselves as “young Eastern canon lawyers”) with the purpose of periodically studying some subject of common interest in a friendly context. Up to now, we have met in: Budapest, Košice, Venice, Rome, Nyíregyháza-Uzgorod, Ragusa, Bratislava and Rome.

Now, let’s have a quick look at some of the topics of debate in the doctrine throughout these last twenty years.

b) Interrelation between Codes

The criteria of interrelation between the CIC and the CCEO have been studied by many authors. I will set out the main items briefly.

b-1 Direct Indication, ex natura rei Application, and Indirect Entailment

The canons of the CCEO apply to the Latins only if expressly established so. But there are many other canons of the CCEO in which it would be logical to implicate also the Latin Church but which do not mention it explicitly (ex. gr. CCEO can. 32 § 2; can. 916 § 4). Nevertheless, most authors claim that an indication can be made expressly but implicitly, as to the “expressed” way, only the “tacit” way is opposed and, therefore, an indication made expressly could as much be explicit as implicit. We should establish strictly in what occasions the expressed-implicit indication occurs, because the Commission for the revision of the Eastern code wished that the cases of express indication were absolutely taxative . In this sense, it is reasonable that each norm that expressly talks about the “Churches sui iuris ” in a context of inter-ritual relations, also includes implicitly the Latin Church. Another possibility would be to cancel the word “expresse” of can. 1 of the CCEO.

The Latin code applies explicitly to the Eastern in many of its canons. But CIC can. 1 – parallel to the CCEO can. 1 – does not have any clause that limits the application of the Code to the cases of an expressly made indication and, for that reason, it would seem to give more freedom in establishing when a Latin canon is tacitly applicable to the Eastern faithful, nevertheless, it would be logical that the limits of application of the CIC were similar to those of the CCEO.

According to can. 1 of the CIC 1917 a Latin canon could be applied to the Eastern faithful “by the nature of the thing” ( ex natura rei ), but this clause was eliminated from the CIC 1983 and from the CCEO, nevertheless there are still those who keep on appealing to it, although many of the examples mentioned by those authors are rather cases of implicit indication, indirect entailment or resource to the analogy in cases of legal omission.

The indirect relation between both codes may happen in inter-ritual businesses (ex. gr. marriages and other sacraments) in which, on the one hand, each part regulates according to its own norm (matrimonial impediments, etc.) but, on the other, the unitary external acts must be carried out in such a way as to be recognized by both disciplines (ex. gr. the blessing of the priest in the canonical form of marriage).

b.2. Interpretation of a dark Norm (CIC can. 17 – CCEO can. 1499)

In order to interpret a norm which is not very clear, it is possible to resort to the “parallel passages,” in which the mind of the legislator is perhaps more evident. Most authors accept the resource to the other code as a parallel passage. For example, the final clause of CIC can. 1109 can be well made clear with the Latin text of the CCEO can. 829, as we will see.

Nevertheless, it is necessary to bear in mind that we cannot give an extensive interpretation of the penal laws or of those that limit the free exercise of rights or are an exception (CIC can. 18 – CCEO can. 1500). In addition to this, the intercodicial interpretation is not possible if it is clear that in a given norm the mens legislatoris has wanted to make it different for the Eastern (due to its being a peculiarity of the Eastern tradition).

b.3. Possibility of there Being an Auxiliary Source by Legal Analogy (CIC can. 19)

In case of legal gap, CIC can. 19 points out the suppletive sources of Law, among which we find the resource to the laws given on similar cases. Although some authors have affirmed that the legal analogy cannot be used between both codes, since they belong to two different legal systems, I think, however, that we can resort to them, because those legal systems are not sovereign and are within the unique primary legal system of the Church.

Although the CCEO can. 1051 does not make any reference to “ leges latae in similibus ,” I think that we can apply the legal analogy to overcome an omission in the CCEO, as it is an essential legal technique and it was already mentioned in the third principle, n. 3, of the Guidelines for the Revision of the Oriental Canon Law.

Obviously, legal analogy in case of penal, invalidating or disqualifying laws cannot occur. Moreover, we must verify that it is a true legal vacuum and not of a case of different legislation.

An example (already surpassed after Instr. Dignitas Connubii Art. 4) could be found in the CCEO can. 781 which offered the ecclesiastical judge a nonexistent criterion in the CIC to judge the marriages of the non-Catholics.

b.4. Abrogation Appealing to a Better Expression of the Divine Law?

It is not appropriate that a private person should change the scope of a codified norm by appealing to an apparently better deepening into the Divine Law in the other Code. Indeed, when there is a norm given by the Supreme Legislator, the private interpreter cannot declare himself in authority to consider the norm of a Code to be of Divine Law and thus to change by his own initiative the parallel norm of the other. For example: unlike CIC can. 1102, the CCEO can. 826 establishes the invalidity of a marriage celebrated under any type of condition, something that would seem more coherent with the unconditional nature of the self-donation in marriage, but this personal opinion does not allow us to change the norm of the CIC.

Anyway, it is clear that one Code can offer ideas on iure condendo to the other discipline sphere, since it has already happened, for example, with the CCEO can. 32 § 2 that brought about the decree of the Secretary of State of 1992, or the CCEO can. 780 § 2 that improves CIC can. 1059 and has impelled the norm of Instr. Dignitas Connubii Art. 2 § 2 (that, anyway, was already part of the rotal jurisprudence).

Let us now have a brief look at a few comparisons between both disciplines.

c) Some Ccomparisons between Eastern and Latin Disciplines:

c.1. On Canonical Norms:

The CIC talks about “universal” laws when it is actually referring only to the Latin Church (cfr. CIC cc. 8, 12, 13). The CCEO speaks, instead, of laws “given by the Supreme authority” (CCEO cc. 1491) or of laws “produced by the Apostolic See” (CCEO can. 1489), and it uses the expression “common Law” referring to all the laws and customs of the universal Church and the laws common to all the Eastern Churches (CCEO can. 1493 § 1). I think this could help to improve the perspective. The interesting CCEO can. 1492 establishes the criteria to know when the laws of the Supreme Legislator apply to the Eastern faithful.

In the CCEO, we cannot find generic canons on general decrees nor on instructions, but there are canons that speak of specific cases of general decrees and instructions. So, in my opinion, it will be necessary to apply by analogy the criteria established by the Latin Code on these issues (CIC cc. 29-34).

It is interesting to verify that in Particular Law as long as the Superior Law is not contradicted, the sui iuris Oriental Churches do not have restrictive limits to their legislative capacity: at least Patriarchal and Major archiepiscopal Churches undoubtedly enjoy that general legislative capacity, and I think also Metropolitan sui iuris Churches, but not the other minor Churches sui iuris . Today many catholic Oriental Churches have begun to promulgate their own new Particular Laws, but there is still a lot to do. It is to praise the good work done especially by the Syro-Malabar Church in this regard.

c.2. On Private Juridical Persons:

Unlike CIC can. 116, in the CCEO private juridical persons do not exist, and this raises problems when vindicating the rights of private associations, that do really exist (cfr. CCEO can. 573) but cannot have juridical personality. So, I think that in this case we should apply by analogy CIC can. 310 (subjects without personality), nonexistent in the CCEO. In Eastern Law, the goods pertaining to all juridical persons are always “ecclesiastical goods” (CCEO can. 1009 § 2).

c.3. On Ascription to a Church sui iuris and Change from One to Another

The Latin parish priest is expressly bound by the norm of the CCEO cc. 37 and 687, and therefore, he must indicate in the book of baptisms to which Church the newly baptized belongs. It seems to me that this is not known by many Latin parish priests, and this ignorance might be a source of several problems.

The afore-mentioned Rescripto ex audientia Sanctissimi of 26 November 1992 establishes for Latin discipline the criterion of CCEO can. 32 § 2 (presumed consent of the Apostolic See), allowing a faithful to change from the Latin Church to an Eastern Church, but not the opposite. Even so, there are some who affirm that this is possible including “expressly but implicitly” the Latin Church in the CCEO can. 32 § 2. Anyway, since now, the praxis of the Eastern Congregation does not allow an Eastern to change to the Latin Church with this method.

c.4. On Marriage Law

Many authors have written on the minister of the sacrament of marriage, so I will not dwell much in this. It is enough to point out that in 1996 the instruction of the Congregation for the Eastern Churches on liturgy – when speaking of the role of the priest who blesses a marriage – affirmed that “to bless means to act as true minister of the sacrament, by virtue of his priestly sanctifying power:” but we must bear in mind that that document had been written before the definitive and official version of the Catechism of the Catholic Church (1997), that in its n. 1623 corrected the first vernacular version of 1992 cancelling all reference to the priest as minister of the sacrament of marriage.

In the CCEO there are impediments which do not exist in the CIC (abduction of the man, spiritual relationship, affinity in 2 nd collateral degree). As we have already said, such impediments cannot be applied by analogy in the Latin discipline.

We have already referred to the marriage based on a condition, that, in CCEO can. 826, is always null and void, although the condition be verified. On this there is enough literature.

In order to assist the marriage of two Eastern persons who do not have their own hierarchy in their place of residence, the Spanish Episcopal Conference has given a directive which shows the difficulty of interpretation of CIC can. 1109. Indeed, the afore mentioned document “Directives for the pastoral attention of the Eastern Catholics,” of 21 st November 2003, in its n. 29, affirms that “in order to attend and to bless the canonical marriage of two Eastern Catholics, the Ordinary of the place and the Latin parish priest are, in themselves, incompetent, even when the contracting parties are subjects of them,” but the Latin text of the CCEO can. 829 makes clear that the Ordinary and the parish priest are incompetent only for those who are not their subjects.

It is well known the dispute on the validity or not of the assistance of the Latin deacon at those marriages in which there is at least one Eastern party. Although the Latin deacon can bless marriages (LG n. 29; CIC can. 1108), I am of the opinion that such assistance would have to be null and void, simply because it does not fulfill the legal requirement of the blessing “of the priest” foreseen by CCEO can. 828. Nevertheless, those marriages celebrated up to now have to be considered as valid because in doubt of Law, merely ecclesiastical law does not oblige (CIC can. 14 – CCEO can. 1496).

Contrary to what happened till now in the CIC, in the CCEO those who have formally left the Catholic Church are not exempt of the impediment of disparity of cult (CCEO can 803 § 1, different from CIC can 1086 § 1), nor of canonical form (CCEO can. 834 § 1, different from CIC can. 1117), nor of the prohibition of mixed marriage (CCEO can. 813 – CIC can. 1124). Nevertheless, Benedict the XVI th with his motu proprio Omnium in mentem of 26 th October 2009 has cancelled from the corresponding Latin canons, the clause that exempted those who have left the Catholic Church with a formal act and, therefore, has caused these Latin canons to be exactly equal to the parallels of the CCEO.

c. 5. In Penal Law

As it is known, in the CCEO there are not latae sententiae penalties but reserved sins (CCEO cc. 727-729). This Eastern discipline, among other things, has the advantage that, when in urgentioribus the priest gives the absolution, the penitent does not have to return to the confessor, because in many cases it is difficult that priest and penitent should ever meet again.

Also, it is known that in the CCEO there is not a parallel canon to CIC can. 1399. In this way the principle of legality is better respected. In order to solve unexpected and exceptional cases, the CCEO can. 1406 § 2 reminds us that the admonition with a penalty threat is equivalent to a penal precept, that legitimates the punishment if broken.

c.6. In Procedural Law

It is interesting to verify the possibilities of the collaboration between the Latin Church and the Eastern Churches in the ecclesiastical courts. For example, according to the CCEO can. 1102 § 1 judges of another rite can be admitted in a tribunal. In addition to this, according to the CCEO can. 1071 and CIC can. 1418, the court can request the collaboration of a tribunal of another rite for the instruction of the case. It is known that a bishop cannot directly entrust his cases to a court of another Church sui iuris , but he could request from the Apostolic Signature the prorogation of the competence of that tribunal, as it frequently happens. In addition to this, the bishop could appoint delegated judges who already belong to the tribunal of another rite, but these would judge in behalf of the delegating bishop, not of their own bishop.

In the CCEO, the norms on the competence of the Ordinary Tribunal of the Patriarchal Church have raised doubts about the competence of the Roman Rota for the cases initiated within the territory of a Patriarchal Church. The question is object of debate and, although in my opinion the CCEO can. 1063 is clear on Rota’s incompetence, nevertheless I think that – whatever the solution may be – it is necessary to protect the right of appeal of the Eastern faithful and also to guard the unity of the jurisprudence as a suppletive source of Law.

d) The Hierarchical Organization of Oriental Churches

The promulgation of the Code of Canons of the Oriental Churches has represented a great promotion of the Eastern ecclesiastical organization. Thanks to this, many of the Eastern Churches have been raised to a higher rank, for example: Syro-Malabar, Rumanian and Syro-Malankara Churches have become Major Archiepiscopal Churches; Slovak Church became a Metropolitan Church sui iuris , and even Macedonian Church gained the sui iuris status.

During these years, we have tried to deepen in the concept and the criteria of identification of the Churches sui iuris . The close relationship between this sort of ecclesiastical structure and a certain people (CCEO can. 28) raises, among many others, the question of to what extent these are structures for the complementary pastoral care of the faithful or for common and ordinary pastoral.

Another field of study is the juxtaposition of the hierarchical structures in the same territory. The conference of Budapest 2001 dealt with this especially. The necessity of pastoral coordination in a territory explains the figure of the Assembly of Hierarchs of diverse Churches sui iuris as foreseen in CCEO can. 322: nevertheless this kind of Assembly does not exist in places where, perhaps, it would be advisable.

The controversy on the territorial limitation of the power of Patriarchs (CCEO can. 78 § 2) is well-known. Up to now, the Apostolic See has considered it advisable to maintain that limit.

In the CCEO, the figure of the personal prelatures does not expressly exist, but I think that it is perfectly possible to identify them with personal exarchates (CCEO can. 311).

We could also speak of the interesting Eastern method for the election of bishops within the Patriarchal Church (CCEO cc. 110 § 3, 181-189 and 947-957), but I do not want to extend myself on this too much.

e) Pastoral Care of Eastern Faithfuls Outside the Territory of Their Church sui iuris (what some call the “diáspora”)

This deals mainly with the pastoral attention given to the Eastern by the L atin Church.

In this sense, it is good to know that §§ 4 and 5 of the CCEO can. 916, which do not exist in the CIC, establish the criteria to designate the proper parish priest and the Hierarch (Ordinary) for the Eastern faithfuls in those places where they do not have a Hierarch nor a parish priest of their own rite. If that place is within the territory of an eparchy or exarchy of their own Church sui iuris , then, they will be subjects of that Hierarch and not of the Latin Ordinary of that territory (CCEO can. 916 § 1). In this case, if they do not have their own parish priest, the Eastern bishop will have to appoint a parish priest of another Church sui iuris , with the consent of the bishop of that parish priest (CCEO can. 916 § 4). But, what would happen if the Eastern and the Latin bishops do not reach an agreement? In my opinion the direct person in charge of those faithful will be the Eastern bishop himself. From 1982, in U.S.A. there was a special law enjoining that in those places without their own Eastern parish priest, the Latin parish priest was automatically in charge of those faithful. From my point of view, that norm would have to be considered abrogated by the CIC and the CCEO, because they rearrange the matter ex integro (CIC can. 6 § 1, 4º – CCEO can. 6, 1º), but there are some authors who affirm that this law is still in force.

If a territory does not belong to any circumscription of the Church sui iuris of the interested faithful, the Hierarch of those faithful will be the one of another Church sui iuris present in the place, also the Latin Church (CCEO can. 916 § 5). In this paragraph the Hierarch is mentioned, but not so the parish priest, thus the Latin parish priest is not the parish priest of the Eastern faithful residing in his parish, unless he receives a delegation or specific mandate from his Ordinary.

Following the directives of OE n. 1, CCEO can. 39 reminds us that we must guard and promote the rites of the Eastern Churches. This duty is especially important in those territories where the Easterners do not have their own Hierarchy. Indeed, these Eastern faithful continue being Eastern in spite of being entrusted to the pastoral care of a Latin Ordinary (cfr. CCEO can. 38); and all the faithful must know their own rite and are held to observe it everywhere (cfr. CCEO can. 40 § 3): This is especially relevant for clerics and members of institutes of consecrated life (CCEO can. 40 § 2).

For that reason, diocesan bishops have the serious obligation to provide for the preservation of their subjects’ own rite even if they belong to another Church sui iuris , and must favour the relations of those faithful with the superior authority of their own Church (CCEO can. 193 § 1 – CIC can. 383 §§ 1-2). In order to achieve this, for example, both codes foresee to appoint priests or parish priests of the same rite or even an Episcopal Vicar (CIC can. 383 § 2 = CCEO can. 193 § 2). The CCEO can. 193 adds a § 3, nonexistent in CIC can. 383, demanding that for such appointments the bishop should obtain the consent of the Patriarch of those faithful: but as this is not mentioned in the Latin canon and, on the other hand, the Eastern canon does not name the Latin Church expressly, some consider that they are not obliged to obtain the consent of the Patriarch. As we have already said, the instruction Erga migrantes , n. 55 requests that in these cases the norm of the CCEO can. 193 § 3 should be applied by analogy to the Latin Church.

Another delicate matter is the celibacy of Eastern priests in the West. I do not want to enter this discussion. Suffices it to say that there has been, and there still is, great controversy.

d) Canon Law in the Relationship with the Orthodox

To conclude, I will just indicate the points that make reference to the relationship with the Orthodox Churches

The massive emigration of these last years has set new challenges for the pastoral care of the orthodox faithful in the West on the part of the Catholic Church. The Spanish Episcopal Conference has published an interesting document on the matter.

The CCEO can. 780 § 2 and 781 and of articles 2 and 4 of the Dignitas Connubii , approach the problem as to what extent the Catholic Church recognizes the jurisdiction of the orthodox bishops. From my point of view, a consequence of this recognition is the already mentioned decree of the Apostolic Signature of 3 rd January 2007.

In close relation with what has been said in the previous paragraph, the declaration of the Apostolic Signature of 20 th October 2006, according to which the orthodox sentences of “annulment” of the marriage are not approved (as in fact they are of divorce), raises the question whether other orthodox sentences could not be recognized if they were not opposite to the Divine Law.

The possibility that the marriage of two orthodox faithful could be blessed by a catholic priest (CCEO can. 833) and, vice versa, that the marriage of two catholics celebrated with extraordinary form could be blessed by an orthodox priest (CCEO can. 832 § 2), encourages us to deepen in the meaning of that blessing. I personally think, such blessing does not mean that the priest “celebrates” that marriage, because he is not competent for the canonical form (neither the catholic priest for the marriage of orthodox faithful, nor the orthodox priest for the marriage of catholic faithful). It is just an annexed blessing to a marriage already celebrated with extraordinary form. Yet, this may not be fully understood by the Eastern people, as from the Eastern point of view that blessing is an essential part of marriage celebration.

Another interesting point is the possibility that a child of orthodox parents may be baptized by a catholic priest and that thus baptized it should be assigned to the orthodox Church (CCEO can. 681 § 5). On the contrary, in CIC can. 868 § 1, the minister of the baptism, in order to baptize lawfully, must have founded hope that the child to be christened will be educated in the catholic religion, and there are not any foreseen exception to this.

In a private answer in 2002, the Congregation for the Eastern Churches indicated that the orthodox minor of 14 years who is adopted by Latin parents becomes a catholic and Latin automatically. I am not convinced by the reason given by the Congregation (because it makes reference to CCEO can. 29 but this canon deals with those not already baptized), nevertheless, we must have it in account as it is the praxis of the Roman Curia.

There is another praxis of the Eastern Congregation that raises questions: the one that considers that a child born to a mixed marriage is catholic even if it is baptized in the Church of the orthodox parent. I personally think that this is based on a less accurate interpretation of CCEO can. 29 § 1 that does not consider the change of context brought about by the CCEO can. 814 (corresponding to CIC can. 1125).

The CCEO can. 35 has provoked many discussions on the catholic Church sui iuris to which those who come to full communion with the catholic Church are ascribed. As it does not have an invalidity clause, many consider that this canon only affects the liceity of the assignment. Others claim that, as it is a “legal fact” and not a “legal act,” this assignment is automatic to the Catholic Church sui iuris parallel to the one of provenance, and the allegiance to another one would be null and void (as long as it is not resorted to the Apostolic See). In my opinion, even if the second point of view protects more the Oriental Churches, the strict text of the law indicates that it should affect only the liceity. At any rate, the competent legislator could provide otherwise in the future.

I could continue setting out interesting points arisen in these years about Eastern Law, but I think I would rather not make myself too long. The offered bibliographical references in this text can be useful to deepen in the exciting world of the discipline of the catholic Eastern Churches and their interrelation with the Latin Law.

Vol. 1.  No. 1,  December 2010.  P.p. 84-117

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