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Religious, Exemption of

RELIGIOUS, EXEMPTION OF

The exemption of religious, in the 1983 Code of Canon Law, refers to the possibility of the pope exempting a religious or secular institute or a society of apostolic life from the governance of local ordinaries and subjecting it to himself alone or to another ecclesiastical authority (cc. 591, 732). Thus far, this is a mere theoretical possibility, because the pope has not used this provision since the 1983 code took effect. This code eliminated all remaining distinctions in law between exempt and nonexempt religious that had developed over many centuries and was codified in the 1917 Code of Canon Law.

The Former Law . In the 1917 code, religious exemption was granted by law or by pontifical privilege. All the religious orders of "regulars" (those with solemn vows) were exempt by law, namely, the orders of monks, canons regular, mendicants, and the Jesuits. Some congregations of simple vows were granted this privilege by the pope. Monasteries of cloistered nuns were exempt from the local ordinary's jurisdiction, provided they were accountable to a male superior of the order, but even then they had fewer rights than the male orders and were subject to the local ordinary in more respects. The 1917 code granted various powers and rights to the exempt, but none of these is unique to the old exempt orders anymore.

In the law of the 1917 code, superiors and chapters in clerical exempt institutes had the power of jurisdiction; the other institutes did not (c. 501, §1). The major superiors of clerical exempt institutes were ordinaries, which gave them all the powers of an ordinary in the law. In 1964, Pope Paul VI granted several faculties, formerly reserved to the exempt, to the general superiors of nonexempt, pontifical, clerical institutes and societies, including the power of jurisdiction (Cum admotae, Nov. 6, 1964, AAS 59 [1964] 37479). The 1983 code removed all other distinctions among clerical major superiors. All clerical major superiors of pontifical right are ordinaries and exercise the power of governance. All have equal powers in the universal law (cc. 134, §1; 596, §2).

In the former law, major superiors of clerical exempt institutes could establish semipublic oratories in their houses, as well as secondary oratories in the house or an institution connected with it (1917 c. 1192). Non-exempt religious needed the permission of the local ordinary to establish a semi-public oratory. In the 1983 code, this difference is abolished; any ordinary can establish an oratory (c. 1223).

Under the law of the 1917 code, houses of regulars were completely exempted from the canonical visitation of the local ordinary. In 1966, Paul VI gave the right to local ordinaries to conduct the visitation of churches of exempt religious and of their semi-public oratories that were regularly used by the faithful (Ecclesiae sanctae, I, Aug. 6, 1966, AAS 58 [1966] 75775, no. 38). In the 1983 code, all religious are subject to the same provisions on visitation by the bishop (c. 683). The bishop has no right to visit the houses of any pontifical right institutes for matters concerning internal governance and discipline. The bishop is obliged to conduct a visitation of their churches; their oratories, if the faithful regularly come to them for the liturgy; their works of religion or charity; and their schools, except for schools open only to their own members (c. 683).

In the former law, exempt religious had to observe special judicial procedures for the dismissal of a member in perpetual vows (1917 cc. 65468). The non-exempt followed a simpler procedure. In 1974, a decree of the Sacred Congregation for Religious and Secular Institutes determined that exempt religious were to observe the same dismissal process as the non-exempt (Processus judicialis, Mar. 2, 1974, AAS 66 [1974] 215). The 1983 code likewise has only one procedure for all institutes (cc. 694704).

Other differences between exempt and non-exempt religious in the 1917 code included laws on the superior who could punish violations of the cloister, grant faculties for preaching and hearing confessions, issue dimissorial letters, dispense from non-reserved private vows, grant permission to a priest to perform an exorcism, and remit censures reserved to the bishop or to the ordinary (1917 cc. 1338; 875; 964, 2&°; 1313, 2&°; 1151; 2253, 3&°). None of these differences between exempt and non-exempt institutes exists in the current law.

Exemption Today. Except for the hypothetical possibility in c. 591 of the pope granting an exemption, nothing remains in the current universal law of the traditional differences between exempt and non-exempt religious. The changes in the law began at Vatican II, with the council decreeing that exemption "does not prevent religious being subject to the jurisdiction of the bishops in the individual dioceses in accordance with the general law, insofar as is required for the performance of their pastoral duties and the proper care of souls" (Christus Dominus 35). In 1966, Pope Paul VI established new laws governing the relations between local ordinaries and religious, and the exempt and non-exempt were treated alike (Ecclesiae Sanctae I, 2240). The 1978 document of the Sacred Congregations for Religious and Secular Institutes and for Bishops, Mutuae relationes, spoke of a "renewed awareness of exemption." The exempt were not to be thought of as subject to the pope alone, but they "should cultivate above all special attachment to the Roman Pontiff and to the bishops " (Directives for the Mutual Relations Between Bishops and Religious in the Church, May 14, 1978 [Washington: USCC], no. 22).

During the process of revising the 1917 code in the 1970s, the commission (coetus ) on religious law stated its intention to eliminate obsolete norms and those that treated men's and women's institutes unequally. It specifically mentioned exemption and its juridical consequences as being obsolete and inappropriate (Pontifical Commission for the Revision of the Code of Canon Law, Schema of Canons on Institutes of Life Consecrated by Profession of the Evangelical Counsels [Washington: USCC, 1977] 11). Accordingly, the 1983 code no longer distinguishes between the regular orders with solemn vows and the congregations with simple vows, between the exempt and the non-exempt. The law continues to differentiate between clerical and lay institutes (c. 588). Only clerical major superiors are ordinaries and have the powers of ordinaries in law.

Exemption is not an operative principle in the 1983 code. It has been replaced by "the rightful autonomy of life" of all religious and secular institutes and societies of apostolic life (cc. 586, 732). This means that members of these institutes and societies have considerable freedom in controlling their own internal governance and discipline in keeping with their nature, purpose, spirit, character, and sound traditions (c. 578). All members of these institutes and societies, whether of pontifical right or diocesan right, are subject to the diocesan bishop in three areas: the care of souls, the public exercise of divine worship, and other works of the apostolate (c. 678, §1). Institutes and societies of diocesan right are additionally subject to a closer supervision by the diocesan bishop in the same ways that pontifical institutes and societies are subject to the Holy See (cc. 59395).

Bibliography: e. fogliasso, "Exemption des Religieux," Dictionnaire de droit canonique, v.5 (Paris 1953) colls. 64665. g. ghirlanda, "Iusta autonomia et exemptio Institutorum religiosorum: fundamentum et extensio," Periodica 78 (1989) 11342. j. m. huels, "The Demise of Religious Exemption," The Jurist 54 (1994) 4055. d. j. kay, Exemption: Origins of Exemption and Vatican Council II (Rome 1990).

[j. m. huels]

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