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Governance, Power of

GOVERNANCE, POWER OF

Since the Second Vatican Council, the expression "power of governance" is preferred in place of "power of jurisdiction." The broad concept "power in the Church" (of governance and of orders) formed a greatly debated topic at Vatican II. This debate continues today and certain important questions remain unanswered.

Presupposition. Traditionally, the power of jurisdiction (or of governance or of government) refers to the "public power of governing or ruling belonging to a supreme and independent society" (Abbo Hannon, I, 251). The change in terminology to "power of governance" better reflects the Vatican II teaching concerning the triple munera (functions) of Jesus Christ as priest, prophet and ruler. All of the faithful, in virtue of baptism, participate in the mission of the Church through sharing in these functions of Jesus Christ. Thus, all of the Christian faithful, depending on each one's particular condition, exercise the common or ministerial priesthoods; share in the proclamation of the Word of God; and cooperate in the governance of the People of God.

The power of governance is distinct from the power of orders, which derives from the sacrament of order and is the power to celebrate the sacraments. Both powers exist in the Church by the intention of Jesus Christ. Lumen gentium 8 establishes an analogy between the Incarnation of Jesus Christ and the Church as incarnated in the world. Through the will of Jesus Christ, the Church exists both as a hierarchically structured society and the mystical body of Christ; both a visible assembly and a spiritual community. The two cannot be separated from each other. The distinction between power of governance and power of orders fundamentally reflects the nature of the Church as one reality consisting of both dimensions. As an organized society, the Church requires the power of governance in order to fulfill its divine mandate to proclaim the gospel of Jesus Christ. But priority must be given to proclamation of the gospel: governance exists to serve this mission.

A major debate both theologically and canonically continues concerning the relationship between the power of jurisdiction and the power of orders. Canon 129 states that the ordained "are qualified for the power of governance" whereas the laity "can cooperate in the exercise of this same power." To what extent, therefore, may the laity exercise the power of governance? The answer to this question incorporates complex theological, canonical, and historical issues as well as differing ecclesiologies and ecclesiological pre-suppositions. Vatican II, which generally referred to "power" (either alone or with the adjective "sacred") neither explicitly addressed the issue nor resolved it, and it would appear that debate will continue for the foreseeable future. Nonetheless, two significant points must receive due emphasis. (1) According to the present canon law, lay people may hold ecclesiastical offices; these are no longer limited only to clergy. Further, lay members of institutes of consecrated life, societies of apostolic life, and secular institutes may hold offices within these institutes and societies. (2) The present law seems to imply (at the very least) that lay men and women do exercise some power of governance in certain offices, for example, the diocesan bishop may appoint a lay person a judge on a collegiate tribunal (c. 1421, §2); he may also entrust the pastoral care of a parish to a lay person (c. 517, §2); a lay person may be appointed the administrator of ecclesiastical goods (c. 1279). The type of power exercised by lay superiors and moderators in societies and institutes of consecrated life forms another greatly discussed topic (c. 596).

Exercise of the Power of Governance. The power of governance is subdivided into legislative, executive, and judicial powers. In distinction to the common law tradition, the civil law tradition does not necessarily accept the 'separation of powers' as evidenced, for example, in the United States (on the federal level, for example, the President exercises executive power; the Congress, legislative power; and the Supreme Court, judicial power). All three powers may be held and exercised by one individual, for example, a diocesan bishop (although he usually exercises judicial power through judges whom he appoints).

Usually, the power of governance is exercised in the external forum, that is, in the realm of public, juridically verifiable activity, for example, the celebration of baptism. However, the power of governance may also be exercised in the internal forum, which is either the sacramental internal forum (that is, the sacrament of penance) or the internal non-sacramental forum.

'Ordinary power of governance' is power "joined to a certain office by the law itself" (c. 131). This ordinary power is proper if it is exercised in one's own name; vicarious, if exercised in the name of another person. For example, a diocesan bishop, through appointment to and installation in the office of bishop, receives all the ordinary, proper and immediate power necessary to fulfill this function (see c. 381 which also includes the important nuance, "except for cases which the law or a decree of the Supreme Pontiff reserves to the supreme authority or to another ecclesiastical authority." "Immediate" indicates that he can exercise this authority directly over the Christian faithful, not through a mediator). A vicar general, on the other hand, has ordinary but vicarious power: ordinary, because it is attached to the office by the law itself; vicarious, because he exercises it in the name of the diocesan bishop. Ordinary powerboth proper and vicariousceases when the office is lost (c. 143).

"Delegated power of governance" is power granted to a person by means other than appointment to an office (c. 131). The delegation of power generally applies only to executive powerlegislative and judicial power can be delegated only in limited cases: when the law specifically allows for the delegation of legislative power or for the performance of certain activities preparatory to the issuance of a judicial decree or judicial sentence (canon 135). Further, in general and unless specifically disallowed by the law, delegated power can also be subdelegated. The specific subject of who may receive delegated power is not resolved by the Code; therefore, the question remains debated as to whether or not lay persons can receive the power of governance through delegation. According to canon 142, delegated power ceases in a variety of ways, dependent upon the grant of delegation by the completion of the mandate; by lapse of time; by cessation of the purpose of the delegation; by revocation (of the one delegating); by resignation (of the one delegated).

The exercise of the power of governance also involves subjects, that is, individuals subject to such exercise. As a general rule, laws bind those for whom they were enacted (canons 1113) and canons 14041416 and 1673 establish competency for judicial matters. Executive power is exercised only over those who are subject to the one exercising this power.

In his apostolic constitution promulgating the new code, Pope John Paul II described the purpose of the Code as "to create such an order in the ecclesial society that, while assigning the primacy to love, grace, and charisms, it at the same time renders their organic development easier in the life both of the ecclesial society and the individual persons who belong to it." (Sacrae disciplinae leges in The Code of Canon Law ). This same rationale underlies the exercise of the power of governance.

Bibliography: m. wijlens, "The Power of Governance [cc. 129144]," in New Commentary on the Code of Canon Law, ed. j. beal, j. coriden, t. green (New York and Mahwah 2000), 183194. j. abbo and j. hannan, The Sacred Canons (St. Louis and London 1952). j. beal, "The Exercise of the Power of Governance by Lay People: State of the Question," The Jurist 55 (1995) 192.

[r. j. kaslyn]

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