The Jurisdiction of Major Religious Superiors during a Prolonged Vacancy of the Apostolic See
Canon 198 and Canon 81 of the 1917 Code of Canon Law Applied to Traditional Catholic Communities
Table of Contents
- Introduction
- The Notion of “Ordinarius” according to Canon 198
- Major Religious Superiors as Ordinaries pro suis subditis
- Canon 81 and the Extraordinary Power of Dispensation
- The Teaching of the Classical Canonists
- Application to Traditional Catholic Communities
- Limits of the Competences of Major Superiors
- The Significance of This Teaching during a Prolonged Ecclesiastical Crisis
- Conclusion
- Sources
- Introduction
Since the great ecclesiastical crisis of the twentieth century, numerous traditional Catholic priests and faithful find themselves in an exceptional situation. In vast regions of the world, there is a lack of territorial ordinaries who fully preserve the Catholic Faith, the sacraments, and traditional discipline.
In these circumstances, various traditional communities have arisen that seek to continue Catholic life. One thinks notably of the Congregation of Mary Immaculate Queen (CMRI), the Society of Saint Pius V (SSPV), the Istituto Mater Boni Consilii (IMBC), the religious institutes founded by Mgr. Vezelis, as well as other congregations and traditional communities that function under the authority of major religious superiors.
From this arises a fundamental canonical question:
What jurisdiction do the superiors of such communities possess?
Are they merely administrators?
Do they possess a true ordinary jurisdiction?
Can they, in certain circumstances, dispense from general ecclesiastical laws?
And to what extent does their authority extend when Catholic territorial ordinaries are lacking or inaccessible?
The answer to these questions requires an examination of Canon 198 and Canon 81 of the 1917 Code of Canon Law.
- The Notion of “Ordinarius” according to Canon 198
Canon 198 §1 states:
“Nomine Ordinarii venit, praeter Romanum Pontificem, Episcopus residentialis, Abbas vel Praelatus nullius, Vicarius Generalis, Administrator, Vicarius et Praefectus Apostolicus, itemque ii qui, praedictis deficientibus, interim ex iuris praescripto vel probatis statutis eorum locum tenent in regimine; pro suis vero subditis, Superiores maiores in religionibus clericalibus exemptis.”
Translation:
“By the name of Ordinary is understood, besides the Roman Pontiff, the residential bishop, the abbot or prelate nullius, the vicar general, the administrator, the vicar and the apostolic prefect, as well as those who, in the absence of the aforesaid, temporarily take their place in government according to the prescription of the law or approved statutes; and, with regard to their own subjects, the major superiors in exempt clerical religious institutes.”
The legislator therefore expressly recognizes that the major superiors of exempt clerical religious institutes are truly ordinaries.
Their power is not purely delegated.
They possess ordinary jurisdiction attached to their office.
This point is of fundamental importance because Canon 198 does not consider them as mere representatives of a bishop or of Rome, but as holders of a proper ordinary power.
- Major Religious Superiors as Ordinaries pro suis subditis
The same canon contains, however, an essential restriction.
The major superior is ordinary:
“pro suis subditis”
that is to say:
“for his own subjects.”
His jurisdiction is therefore personal. It is not territorial.
This is confirmed by Canon 198 §2:
“Nomine autem Ordinarii loci vel loci Ordinarii venit omnis Ordinarius praeter Superiores religiosos.”
Translation:
“By the name of local ordinary or ordinary of the place is understood every ordinary except religious superiors.”
The major superior is therefore truly ordinary, but he is not a local ordinary. His power extends over persons, not over a territory.
Wernz and Vidal write:
“Superiores maiores religionum clericalium exemptarum sunt Ordinarii tantum respectu propriorum subditorum.”
Translation:
“The major superiors of exempt clerical religious institutes are ordinaries only with respect to their own subjects.”
Their jurisdiction is consequently real, ordinary, but internal and personal.
- Canon 81 and the Extraordinary Power of Dispensation
Canon 81 states:
“Ordinarii infra Romanum Pontificem nequeunt a legibus generalibus Ecclesiae dispensare, etiam in casu particulari, nisi haec potestas eis explicite vel implicite concessa fuerit, aut nisi difficilis sit recursus ad Sanctam Sedem et simul in mora sit periculum gravis damni, et agatur de dispensatione quam Sedes Apostolica concedere solet.”
Translation:
“Ordinaries inferior to the Roman Pontiff cannot dispense from the general laws of the Church, even in a particular case, unless this power has been expressly or implicitly conceded to them, or unless recourse to the Holy See is difficult and at the same time delay involves the danger of grave harm, and it concerns a dispensation that the Apostolic See is accustomed to grant.”
The canon requires three conditions:
- Difficult recourse to the Apostolic See.
- Danger of grave harm in case of delay.
- A dispensation that Rome is accustomed to grant.
Of great importance is the fact that Canon 81 speaks of “Ordinarii infra Romanum Pontificem” and not of “Ordinarii loci”.
Since Canon 198 expressly counts major superiors among the ordinaries, there exists a serious juridical argument according to which Canon 81 also applies to them within the limits of their own jurisdiction.
This interpretation finds additional support in the very terminology of the Code. Canon 81 does not speak of “Ordinarii loci”, but of “Ordinarii infra Romanum Pontificem”. Now, the legislator explicitly distinguishes these two notions in Canon 198 §2:
“Nomine autem Ordinarii loci vel loci Ordinarii venit omnis Ordinarius praeter Superiores religiosos.”
Translation:
“By the name of ordinary of the place or local ordinary is understood every ordinary except religious superiors.”
The Code therefore perfectly knows the technical difference between the general notion of “Ordinarius” and the more restricted notion of “Ordinarius loci”. If the legislator had wished to limit the benefit of Canon 81 to local ordinaries alone, it would have sufficed for him to employ this precise expression, which he uses elsewhere constantly. The fact that he chose the broader term “Ordinarii” therefore constitutes a serious textual argument in favor of the inclusion of all those who are juridically qualified as ordinaries by Canon 198, including the major superiors of exempt clerical religious institutes, within the limits of their proper jurisdiction.
This conclusion does not result from an arbitrary extension of the legal text, but from a strict application of the definitions provided by the Code itself. It does not demonstrate in an absolutely irrefragable manner that Canon 81 necessarily concerns major superiors; it establishes, however, that such an interpretation possesses an objective canonical foundation and that it cannot be set aside except by means of sufficiently probative positive arguments.
An additional argument derives from the very purpose of Canon 81. This provision was established in order to avoid that grave spiritual harm result from the impossibility or difficulty of having recourse to the Apostolic See in particular situations. The legislator wished that, in certain exceptional circumstances, the salvation of souls not be compromised by the practical impossibility of obtaining in time a dispensation that the Holy See is accustomed to grant.
Now, major superiors exercise precisely, with regard to their own subjects, an effective charge of government and pastoral solicitude. To exclude outright these religious ordinaries from the field of application of Canon 81 would amount, in certain cases, to depriving the faithful placed under their authority of the juridical remedy that this provision is precisely intended to provide in order to prevent grave spiritual harm. Such an interpretation would risk rendering the canon inoperative in the very situations where its reason for being manifests itself with the greatest evidence.
Without claiming to demonstrate in an absolutely decisive manner that Canon 81 necessarily concerns major superiors, this teleological consideration nevertheless reinforces the argument drawn from the legal text itself. In the absence of an express exclusion formulated by the legislator, it appears more in conformity with the ratio legis to recognize that the ordinaries mentioned in Canon 198 can benefit, within the limits of their proper jurisdiction and under the strict conditions provided by Canon 81, from the exceptional power of dispensation that this provision grants in order to avert grave harm for souls.
A historical consideration further confirms the coherence of this interpretation. The quality of ordinary recognized to the major superiors of exempt clerical religious institutes by Canon 198 does not constitute an innovation introduced by the 1917 Code. Well before the codification, canon law and the constant practice of the Church already recognized to these superiors a true ordinary power with regard to their own subjects.
The Council of Trent itself supposes the existence of this proper jurisdiction when it confirms the rights of government of regular superiors in exempt institutes (Concilium Tridentinum, sess. XXV, De regularibus et monialibus). The post-Tridentine canonists likewise describe the major superiors as exercising, within the limits fixed by the law, an ordinary authority and not purely delegated over their religious. Thus, Ferraris exposes that regular prelates possess, with regard to their subjects, a proper jurisdiction flowing from their office: “Praelati regularium habent jurisdictionem ordinariam in suos subditos” (Lucius Ferraris, Prompta Bibliotheca Canonica, Juridica, Moralis, Theologica, Romae, Typographia Vaticana, 19th century edition, article “Praelatus regularis”). Likewise, Schmalzgrueber teaches that regular superiors exercise ordinary jurisdiction over their subjects by virtue of their office, according to the received canonical tradition (Franciscus Schmalzgrueber S.J., Jus Ecclesiasticum Universum, lib. I, tit. De Regularibus).
The 1917 Code therefore did not create this juridical quality ex nihilo; it codified and clarified a pre-existing situation, rooted in the anterior canonical tradition. Consequently, to interpret the term “Ordinarii” employed in Canon 81 as including the major superiors mentioned in Canon 198 does not amount to artificially extending the legal text beyond its natural sense. Such a reading is inscribed, on the contrary, in the continuity of an ancient juridical tradition that already recognized to these superiors a true ordinary jurisdiction with regard to their own subjects.
This historical continuity does not by itself demonstrate that Canon 81 necessarily concerns major superiors; it shows nevertheless that their inclusion among the “Ordinarii” to whom this provision could apply appears conformed to the organic evolution of canon law rather than in rupture with it.
- The Teaching of the Classical Canonists
The classical canonical authors confirm the restrictive character of Canon 81.
Gasparri remarks:
“Non requiritur impossibilitas physica, sed sufficit gravis difficultas.”
Translation:
“It is not physical impossibility that is required, but a grave difficulty suffices.”
Cappello writes:
“Potestas dispensandi ex can. 81 est extraordinaria atque ad casus vere urgentes limitata.” (classical commentary of Felix M. Cappello S.J. in his Summa Iuris Canonici in usum scholarum concinnata, vol. I, De normis generalibus)
Translation:
“The power of dispensing according to Canon 81 is extraordinary and limited to truly urgent cases.”
Coronata declares:
“Dispensare non est legem destruere nec novam condere.”
Translation:
“To dispense does not mean to destroy the law nor to make a new one.”
The classical commentators therefore consider Canon 81 not as a source of pontifical power, but as an exceptional provision of the law to prevent grave harm to souls.
- Application to Traditional Catholic Communities
Here appears the practical relevance of the question.
The communities such as:
– the CMRI;
– the SSPV;
– the IMBC;
– the religious institutes founded by Mgr. Vezelis;
– and other comparable traditional congregations;
are in practice governed by major superiors.
If these superiors can be juridically assimilated to the major superiors of exempt clerical religious institutes envisioned by Canon 198, it follows that they are ordinaries for their subjects. The present reasoning proceeds by juridical analogy founded on the continuity of the end pursued and of the internal hierarchical structure; it does not claim to establish a strict canonical identity.
But in this case, there exists a serious juridical argument that they can, under the conditions of Canon 81, make use of the power of dispensation provided.
Their authority could then extend notably to:
– internal discipline;
– religious obedience;
– the formation of candidates;
– appointments to internal offices;
– the government of the community;
– and certain dispensations necessary to prevent grave spiritual harm.
It must however be recognized that the formal application of Canon 198 to certain modern traditional communities requires a distinct juridical study. Canon 198 speaks literally, in effect, of exempt clerical religious institutes in the classical sense of the Code. This point therefore remains subject to discussion.
- Limits of the Competences of Major Superiors
Even admitting that Canon 198 and Canon 81 are applicable, important limits remain.
Their power does not extend to:
– territorial jurisdiction;
– the universal government of the Church;
– the erection of dioceses;
– legislation for the entire Church;
– constitutive pontifical acts;
– dispensation from divine law;
– the modification of the substance of the sacraments;
– dispensations that Rome is not accustomed to grant.
The major superior remains the ordinary of his subjects. He does not thereby become pope, nor patriarch, nor diocesan bishop for the entire Church.
- The Significance of This Teaching during a Prolonged Ecclesiastical Crisis
The present crisis raises, however, an additional question.
What is to be done if the difficulty of recourse to the Apostolic See is not temporary but prolonged?
The answer is not found solely in Canon 81. Other canonical principles then also come into play:
– the salus animarum;
– epikeia;
– the supply of jurisdiction;
– the rights and duties flowing from the common good of the Church;
– the indefectibility of the Church.
These principles belong to a distinct juridical study. They cannot be simply identified with Canon 81.
They show nevertheless that the Church can never be considered as having lost its capacity to procure for the faithful the necessary means of salvation.
- Conclusion
Canon 198 of the 1917 Code expressly recognizes the major superiors of exempt clerical religious institutes as ordinaries for their own subjects.
Canon 81 grants, in exceptional circumstances, a limited power of dispensation to ordinaries when recourse to the Apostolic See is difficult, when delay causes grave harm, and when it concerns dispensations that Rome is accustomed to grant.
Since Canon 81 speaks of “Ordinarii” and not of “Ordinarii loci”, there exists a serious canonical argument according to which major religious superiors also fall under this provision within their own sphere of law.
Applied to traditional Catholic communities such as the CMRI, the SSPV, the IMBC, the institutes founded by Mgr. Vezelis and similar organizations, this would mean that their major superiors possess, subject to the juridical assimilation set forth above, a real but limited ordinary jurisdiction with regard to their subjects.
This power remains, however, personal, internal, and strictly bounded. It grants no universal ecclesiastical government nor any pontifical power.
For more extended powers that might eventually be necessary during a prolonged ecclesiastical crisis, other canonical principles must be examined.
- Sources
Codex Iuris Canonici, Romae, Typis Polyglottis Vaticanis, 1917.
Pietro Gasparri, Tractatus Canonicus de Matrimonio, Romae, Typis Polyglottis Vaticanis, 1932.
Franz Xavier Wernz – Pedro Vidal, Ius Canonicum, tomus II, Romae, Apud Aedes Universitatis Gregorianae, 1928.
Arthur Vermeersch – Joseph Creusen, Epitome Iuris Canonici, tomus I, Mechliniae–Romae, H. Dessain, 1937.
Felix Cappello S.J., Summa Iuris Canonici, vol. I, Romae, Apud Aedes Universitatis Gregorianae, 1933.
Matteo Coronata O.F.M. Cap., Institutiones Iuris Canonici, vol. I, Taurini, Marietti, 1947.