MASSIMO FAGGIOLI. The emergence of synodality and the inadequacy of canon law. Historically the Church has never been regulated exclusively by legal codes, says Massimo Faggioli

Oct 4, 2019

Catholic bishops around the world are responding in various ways to the crisis the Church is currently facing. Some have tried to show that the bishops in the United States and Germany are doing so in a similar fashion.

But this is a false equivalence.

On one side of the Atlantic, the US bishops, whose predecessors eagerly embraced the reforms of the Second Vatican Council (1962-65), have refused to even imagine how synodality can be implemented today at the local and national levels. Internal divisions have effectively paralyzed the national episcopal conference.

On the other side of the pond, the German bishops are doing just the opposite. They are charging ahead, as they did with their national synod of 1971-75, to make sure collegiality and synodality are not just empty slogans.

The tendentious effort to equate two very different ways that two churches are trying to deal with the present ecclesial crisis reveals a bigger issue.

It is the fundamental misunderstanding, pushed especially by legal-minded and self-described “orthodox Catholics”, about the governance system of the Church and the limits of what can and cannot change.

These same Catholics continue to interpret Pope Francis’ efforts to usher in a synodal model for their Church within the strict boundaries of existing canon law.

For sure, the ecclesiastical law is one of the reference points for understanding how to implement synodality. But it is not the only one. And it is certainly not the most important.

Two examples from history highlight how non-monarchical elements have become part of the life of the Church with the approval of the institution and of the papacy.

The development of the College of Cardinals

The first example is the cardinalate.

For centuries cardinals embodied the power of the aristocracy that surrounded and supported the primatial power of the pope.

Most of them were Italians, usually appointed upon recommendation of emperors, kings, and national governments (cardinali della corona). Institutionally they were in that middle area between the Renaissance Roman court and the Roman Curia.

Slowly after the fall of the Papal States in 1870, and more quickly after the end of World War II, the cardinals began to embody a “cardinal collegiality” complementary to episcopal collegiality. This has accelerated under the current pope.

The internationalization of the College of Cardinals has brought a significant change to this exclusively man-made institution that is a singular feature of the Roman Church. Paul VI defined the cardinalate as “a synthesis of the urbs (the city of Rome) and the orbis (the globe)”.

The legal and institutional effects of this change (on the role of cardinals in the global Church and the way they shape papal primacy with the election of the Bishop of Rome) have followed an evolution of the institution that was not preceded by a change in the law.

For example, the tendency to eliminate lay cardinals (that existed, albeit in small numbers, until the 19th century) had to do with the disappearance of the Papal States.

The popes decreed laws that clericalized the cardinalate only later, in the 20th century. Canon law (especially the first Code of 1917) followed an institutional and ecclesiological evolution that emerged largely from external events, mainly the fall of the Papal States.

The emergence of national episcopal conferences

A second example of how non-monarchical elements have become part of the Church’s life and governance is the emergence of national bishops’ conferences. The first were organized in the 19th century.

By the early 20th century some of them had assumed an important role as the voice of the local episcopates vis-à-vis the national government. At times some of these also challenged the Vatican.

This did not go unnoticed in the Roman Curia. Between 1924-1926, the pre-cursor to the current Congregation for Bishops (the Sacred Consistorial Congregation) debated fiercely about the role of the bishops’ conferences.

Cardinal Gaetano De Lai, who was head of the congregation at the time, deemed them to be “utterly dangerous”.

He accused them of parliamentarianism and of violating canon law, warning that such conferences usurped the role of plenary councils. Furthermore, De Lai said the conferences were too “political” and not respectful enough of the prerogatives of the Vatican.

Faced with the pressure from the Consistorial Congregation, Pius XI (not exactly a liberal) moved to regulate the bishops’ conferences, but he refused to prohibit or suspend them.

His immediate successor, Pius XII, took a further step in 1955 by approving the newly devised council of the Latin American episcopate (known as CELAM). Then at Vatican II, as Church leaders debated extensively over episcopal collegiality, the decision was made to mandate the creation of national bishops’ conferences.

In the post-conciliar period they have become fundamental in the Catholic Church. And Pope Francis (the only pope to have served as president of a national episcopal conference) is giving them even more prominence. (Just take a look at the footnotes in his encyclicals and exhortations).

These two examples – the clericalization of the cardinalate and the emergence of episcopal conferences – tell a story about the ecclesiological and institutional evolution of the Church.

Between the 19th and the 20th century, the Roman Catholic Church has surrounded the monarchical papacy with new mechanisms of aristocratic power with the cardinalate and the episcopate – also known as collegiality.

From collegiality to synodality

The process continues to develop and today the Catholic Church is taking a further step towards synodality.

As with collegiality before, there is no existing legal framework capacious enough to contain the push towards a synodal Church – a push that Pope Francis has approved and unequivocally endorsed, never more forcefully than in his October 2015 address to mark the 50th anniversary of the Synod of Bishops.

The law always consolidates a movement only decades or centuries later. In the case of synodality, the debate began in the 1990s. But Francis is the first pope to fully embrace and develop it.

The 82-year-old pope’s conception of ecclesial synodality no doubt has its limits and ambivalences. One of these is his intense focus on the Synod of Bishops, which technically is a tool of papal primacy and only in a limited way of episcopal collegiality, much less of ecclesial synodality.

Some have suggested that Francis should better utilize the College of Cardinals and consult with it more often.

But regardless, he is clearly giving the Catholic Church space and time to experiment and begin to live with synodality, just as Pius XI did concerning bishops’ conferences and John XXIII did with episcopal collegiality.

Of course, the law plays a role in this process, but it is a limited one.

Vatican II affirmed fundamental principles for the understanding of the Church, but it did not give the Church a formal juridical constitution. In the immediate post-conciliar period of the early 1970s, the project for a “constitutional law” (Lex Ecclesiae Fundamentalis) for the Catholic Church was abandoned.

Neither the Code of Canon Law (1983) nor the Catechism (1992), both post-Vatican II documents of the papal magisterium, is the constitution of the Catholic Church.

Conservative Catholics, especially, need to understand that the codification of the Church’s laws (in one book) and its catechetical teachings (in the form of a universal Catechism) are recent inventions in Church history.

If there is a constitution for the Church, it’s the Gospel. And the Supreme Court is not the Roman Curia, but the Church’s living tradition, which in the last two centuries has provided us with interesting examples of how to change the systems of ecclesial governance.

The limits of canon law and a new paradigm shift

We often hear from conservative Catholics that “the Church is not a constitutional democracy”.

They emphasize the rejection of parliamentarianism and proceduralism, while tending to forget that members of the Church have rights and are not at the mercy of an absolute hierarchy.

In fact, it is democracy that corresponds better than any other system to what Vatican II calls the “inherent dignity of the human person”.

Those who reject any parallel between Church order and constitutional democracy usually focus almost exclusively on the concept of “democracy”, while neglecting the “constitutional” element.

Indeed, the Catholic Church has no written constitution. Therefore, the axiom “the Church is not a constitutional democracy” cuts both ways.

The life of the Church cannot and must not be regulated exclusively by canon law. Historically, it never has been. And it would be a concession to technocratic mentality to begin to do so now.

Synodality marks a paradigm shift. It requires finding ways to overcome the limits of a legal framework that is stuck in the old paradigm, all the while preserving the unity and catholicity of the Church.

This article was first published in La Croix International, October 2, 2019.

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