Delivered on 27 October 2006 at the 71st meeting of the North American Orthodox-Catholic Theological Consultation at St. Paul’s College, Washington, DC.
As Christians, we wrestle with the paradox of the one and the many in a variety of circumstances. Our faith is a belief in one God in Three Divine Persons, a mystery to us and the source of wonderment and confusion to other monotheistic religions. With reference to ecclesiology, we find the notion that the one church is experientially — but not exhaustively — realized in many local churches; we then dispute over which reality has priority. Canon law is also not exempt from the apparent contradiction of the one and the many: in church governance, we must articulate structures that accommodate the need for an ultimate decision-maker with the reality that each bishop is, in virtue of divine law, entrusted with a portion of the people of God.
This brief study will examine governance of the Eastern Catholic patriarchal churches. Although the distinction is admittedly simplistic, one might characterize the Roman (Latin) Catholic Church as “monarchical” at two levels, at the universal level with the Roman pontiff, and at the local level with the bishop. Any attempt at “synodal” decision-making is viewed negatively at both poles: The papacy is suspicious of a collective, oppositional force and the individual bishops are wary of an encroachment on their own prerogatives within their respective dioceses.
On the other hand, the Orthodox churches proudly defend their synodal form of governance as being expressions of democratic ideals. Any attempt to endow a single hierarch with superior authority is viewed as Western and foreign to genuine Eastern forms of church governance.
In the elaboration of the Code of Canons for the Eastern Churches, the fundamental challenge was how to provide for a unified, effective voice while allowing for the diversity of expression of opinion to be heard. We shall examine the governance structures of the Eastern Catholic patriarchal churches as an expression of the balance of powers between the one and the many. It is hoped that this attempt to reconcile the paradox of the one and the many will also achieve a reconciliation of what is a paradox to many Latin Catholic and Orthodox: Eastern and Catholic.
There is a caveat in all this: The brevity of such a presentation requires that much material is omitted thereby giving rise to the possibility of misrepresentation.
In the articulation of the rights and obligations of the patriarchs and the synods in the Code of Canons, the point of departure was the Vatican II decree on the Eastern Catholic churches, Orientalium Ecclesiarum which stated that:
- The rights and privileges of patriarchs that were in force at the time of union between East and West are to be restored; and
- The patriarchs with their synods constitute the superior authority in the patriarchal churches.
The patriarchal churches are treated in canons 55-150. The Code of Canons provides that the patriarch with the synod of bishops (cc. 102-113) share in the responsibility of governing the patriarchal church. The powers of governance — distinguished as legislative, judicial, administrative (c. 985 §1) and electoral (cc. 947-960) — are generally allocated as follows: The synod of bishops is exclusively competent to enact particular laws (c. 110 §1), to function as a judicial tribunal (c. 110 §2) and to elect the patriarch, bishops and candidates for offices situated outside the patriarchal territory (c. 110 §3). Administrative acts are generally reserved to the patriarch (c. 110 §4).
The rights and obligations of patriarchs are delineated in canons 78-101.
Patriarchal power is ordinary, i.e., joined to his office, the right to which the patriarch acquires upon enthronement. This power of the patriarch is proper, i.e., exercised in his own right and not vicariously as a representative of the Roman pontiff or the bishops of the patriarchal church. This power is also personal in that it is bound to the person of the patriarch and cannot be delegated in its entirety. (c. 78 §1)
The Code of Canons does not enumerate all the specific powers of the patriarchs, because certain powers are also found in the particular law and legitimate customs of the patriarchal churches that are not contrary to the common law. For example, in some patriarchal churches, only the patriarch can present episcopal candidates to the synod of bishops. In this way, the juridic figure of the patriarch is individualized in each patriarchal church.
There are a few terms that are not included in the description of the patriarchal power: His power is not supreme, since the patriarch always acts subject to the supreme authority of the church (the college of bishops and the Roman pontiff). Nor is patriarchal power universal, since it is restricted to the bishops and faithful in his patriarchal church and is further circumscribed according to territory.
In general, patriarchal power is not immediate, i.e., direct and not legally bound by any intermediary. The patriarch generally governs his church through the mediation of the eparchial bishops and cannot exercise jurisdiction directly over the faithful who are subject to eparchial bishops except in specific cases delineated by law or lawful custom.
Even though the patriarch is father and head of the entire patriarchal church (OE n. 9), he does not exercise his power in the same manner over all the bishops and other members of his church. Each patriarchal church is geographically divided into two spheres: those residing inside the territory of the patriarchal church and those residing outside that territory. The territory of the patriarchal church is the region in which the rite of the patriarchal church is observed and the patriarch enjoys the right to establish an ecclesiastical jurisdiction (c. 146 §1). In the case of a doubt regarding the boundaries of the patriarchal territory or if the synod of bishops of the patriarchal church wants to expand the territory, the Roman pontiff can decide on the matter (c. 146 §2).
The question of patriarchal jurisdiction outside the territory of the patriarchal church has been a most highly debated question throughout the revision process because of the drastic changes Eastern Catholics have undergone. Because of social and religious discrimination or persecution, economic difficulties and political upheavals, there has been an emigration of Eastern Catholics from their lands of origin to the entire world, resulting in a situation where some churches have the majority of their faithful residing outside the territory. The issue of the jurisdiction of the patriarchs and their synods in these circumstances is treated in canons 146 150.
The patriarch represents the patriarchal church in all its juridic affairs (c. 79). In the ecclesiastical sphere, the patriarch fulfills this role for the church over which he presides as presiding hierarch. In the civil sphere, the representational role of the patriarch as the head of his religious community is manifested especially in those countries where Islam is an established religion. In those countries an institution known as personal statutes exists, an institution that recognizes the religious law of the various communities and incorporates those laws in the civil law. The patriarch can reserve to himself any matters regarding civil authorities (c. 100), but certain constraints are placed upon his power: prior to entering or putting into effect any agreements with civil authorities at the national level, he must obtain the approval of the Roman pontiff (c. 98).
The patriarch can issue: decrees to urge the observe of a law; instructions to explain sound doctrine, foster piety, correct abuses, and approve and recommend practices that foster the spiritual welfare of the Christian faithful; encyclical letters concerning questions regarding his own church and rite (c. 82 §1).
The patriarch can also conduct a pastoral visitation of a church, community or an eparchy, but only at the time determined by particular law. A pastoral visitation comprises activities such as liturgical and para-liturgical celebrations, meetings with the clergy, religious and laity, especially the parish councils and clubs or societies in the parish. For a serious reason, the patriarch or a bishop designated by him can conduct acanonical visitation of a church, city or eparchy. Since such a visitation is an intervention on the part of the patriarch in a matter which is ordinarily the competence of the eparchial bishop, it can be conducted only for serious reason and with the consent of the permanent synod. (c. 83).
The patriarch has the right to establish or suppress eparchies or provinces and to modify the boundaries, hierarchal status or see city of the same in the patriarchal territory (cf. c. 78 §2), but certain restraints are placed on him: These actions must be taken only for grave reason and with the consent of the synod of bishops of the patriarchal church is required. The Apostolic See must also be consulted. (c. 85 §1)
The patriarch enjoys greater discretionary authority in the establishment, modification or suppression of exarchies inside the patriarchal territory since the consent only of the permanent synod is required (c. 85 §3).
With the consent of the synod of bishops and after having fulfilled all canonical requirements regarding the appointment of bishops (cc. 181 §1 and 182-187), at the request of an eparchial bishops the patriarch can appoint an auxiliary bishop whose rights and obligations are defined by common law (c. 213 §3). For a serious reason, the patriarch can appoint a coadjutor bishop to whom he can assign special powers after consultation with the permanent synod (c. 85 §2, 1°).
The authority of the patriarch is somewhat restricted regarding the transfer of a metropolitan, eparchial or titular bishop; such transfers can be made only for a grave reason. The patriarch can make such a transfer only if the bishop who is involved consents to it. If the bishop refuses, the case can be referred by the synod of bishops to the Roman pontiff for resolution (c. 85 §2, 2°).
With the consent of the permanent synod, the patriarch can appoint an exarch (who need not be an ordained bishop) to an exarchy inside the patriarchal territory (c. 314 §1). If the exarch is to be a bishop, the procedure for the election and approval of episcopal candidates is to be observed (cc. 181 §1 and 182 187).
Inside the patriarchal territory, the patriarch has the right to ordain personally or through other bishops and metropolitans inside the patriarchal territory and to enthrone the same (c. 86 §1).
The patriarch can ordain and enthrone metropolitans and bishops even if they have been appointed by the Roman pontiff except in special cases where it is otherwise stipulated (c. 86 §2). This arrangement is an example of how the Roman pontiff can reserve to himself jurisdiction over all Eastern Catholic communities established outside the patriarchal territories, but still can grant by virtue of the law itself faculties to the patriarchs.
The general principle is that all of the ordained bishops of the patriarchal church are to be convoked to the synod of bishops. There are some exceptions: bishops in the service of the universal church (in the Roman curia or the diplomatic corps) and bishops serving in another church sui iuris are not to be convoked to the synod of bishops. A bishop who is unqualified for mental or physical reasons, apostate, or schismatic (cf. c. 953 §1), who has been deposed (c. 1433) or who is punished with major excommunication (c. 1434) is not be convoked to the synod of bishops.
While all of the ordained bishops have the right to be convoked to the synod of bishops, they do not always enjoy the same voting rights. The deliberative vote of bishops who are not eparchial bishops exercising authority inside the territory of the patriarchal church can be restricted except in the case of the election of the patriarch, bishops or candidates for office (cc. 102 §2 and 150 §1). Such a provision is reasonable since it would not be appropriate for the eparchial bishops to be voting on a matter to which they themselves would not be subject. It should be noted that all of the bishops of the synod would be competent to vote on the particular law restricting the deliberative votes of certain bishops.
In virtue of particular law (or lacking a provision in particular law, the consent of the permanent synod) the patriarch can invite others, especially hierarchs who are not bishops and experts, to give their opinions to the bishops gathered in synod (c. 102 §3).
The legislative role of the synod of bishops is crucial in the preservation and fostering of the rites of the patriarchal and major archiepiscopal churches. Vatican II solemnly declared that the churches of the East “have the right and duty to govern themselves according to their own special disciplines. For these are guaranteed by ancient tradition, and seem to be better suited to the customs of their faithful and the good of their souls.” (OE n. 5)
The Code of Canons makes numerous references to matters that are relegated to particular law. However, the legislative authority of the synod of bishops is not restricted to those matters expressly mentioned in the common law. It is important to note that the body of particular law in force at the time of the promulgation of the Code of Canons remains in force provided it is not contrary to the provisions of the new legislation, or the matter has been completely re-ordered by the new common code (c. 6). The mandate given to the synod of bishops by the common law is quite broad: the synod can enact any laws not contrary to the laws of the supreme authority of the church.
The Code of Canons provides that, “laws are established by promulgation” (c. 1488). Arrangements for the promulgation of a law illustrate the intertwining of patriarchal and synodal roles. The synod enacts the legislation (c. 110 §1) that is promulgated by the patriarch (c. 112 §2) according to a procedure (i.e., manner, time and publication) established by the synod (c. 111 §1).
Liturgical laws enacted by the synod of bishops and promulgated by the patriarch enjoy the force of law throughout the patriarchal church (c. 150 §2). All other legislation enacted by the synod of bishops per se has the force of law only inside the territorial boundaries of the patriarchal church (cf. c. 146). The eparchial bishop established outside of the territory of the patriarchal church, if he desires to do so and the matter does not exceed his competence, can attribute the force of law to the legislation for his eparchy, in which case, it has the weight of eparchial law. With the approval of the Apostolic See, the law can acquire force of law everywhere in the world, in which case, it has the status of pontifical law. (c. 150 §3)
According to the provisions of prior legislation, the patriarch, sometimes acting with the permanent synod, exercised judicial authority over the entire patriarchal church. During the revision process, it was decided that it was not appropriate to assign a judicial role to the patriarch and the permanent synod since the patriarch does not exercise iure divino, a judicial role over the entire church and the permanent synod is an institution to assist the patriarch with administrative responsibilities. Therefore, judicial role was assigned to the synod of bishops (cc. 110 §2 and 1062 §1). Certain cases (involving patriarchs, bishops in penal cases, heads of state and other cases) can be reserved to the Roman pontiff (cc. 1060 and cc. 1062 §1).
Territorial parameters are stipulated in the judicial power of the synod of bishops: contentious cases involving bishops exercising their office outside the patriarchal territory are to be adjudicated in a tribunal designated by the Roman pontiff (c. 1060 §2).
The synod of bishops is to elect for a five-year term from among its bishops a general moderator for the administration of justice who will serve as president along with two other bishops who will constitute the synodal tribunal. If one of the bishops is a party to a case, unable to attend or has an objection raised against him, the patriarch, with the consent of the permanent synod, is to substitute another bishop for him (c. 1062 §2). This tribunal is competent to adjudicate contentious cases involving eparchies or bishops (c. 1062 §2). The general moderator of justice is to exercise vigilance over all of the territories of tribunals inside the boundaries of the patriarchal church and has the right to decide an objection against a judge in the ordinary tribunal of the patriarchal church (c. 1062 §5).
Synod of Bishops
The synod of bishops as a whole serves as the appellate tribunal for the synodal tribunal (c. 1062 §4), without any further recourse within the patriarchal church, but with due regard that a case can be appealed to the Roman pontiff (c. 1059). In deciding such cases, the synod of bishops would be acting as a collegiate tribunal (c. 1085). Since this synod of bishops hears appeals of contentious cases involving bishops and eparchies, bishops party to the case or who were judges of the case in the synodal tribunal are excluded from the appeals process. Likewise excluded is any interested party.
The synod of bishops is responsible for the election of the patriarch (cc. 63, 152 and 153), the bishops inside the territory of the patriarchal church (c. 183) and candidates for office outside the patriarchal territory (i.e., eparchial bishop, coadjutor bishop and auxiliary bishop (c. 149).
Election of the Patriarch
The canons dealing with the election of the patriarch (cc. 63-77) opens with the simple statement that “A patriarch is canonically elected in the synod of bishops of the patriarchal church” (c. 63).
The patriarchal office can become vacant through death, resignation, or privation. Within one month of the vacancy (or up to two months if so provided by particular law), the administrator of the patriarchal church is to convene the synod of bishops at the patriarchal residence (or another location with the approval of the permanent synod (c. 65)). All ordained bishops of the patriarchal church (with the exception of those who are incapacitated, schismatics, or apostates (c. 953 §1) or under canonical penalties (cc. 1433-1434), are to be convoked and have an active voice. Except for the secretary and the scrutineers, no one can be present during the election (c. 66 §§1-2) and all present are obliged to observe secrecy (c. 65 §3). Further, prior to or during the election, no one can interfere in the patriarchal election.
The synod of bishops can proceed with the election of a patriarch on the date of the convocation if the required quorum of two-thirds of those to be convoked is present. The procedure for elections (cc. 947-957) is to be observed. The required qualifications to be elected patriarch are the same as those for a bishop (c. 180), but can be modified by particular law (c. 64).
The one is elected who receives two-thirds of the votes. Particular law can provide that after three balloting an absolute majority suffices (c. 72 §1). The power of the synod of bishops to elect a patriarch is constrained by temporal parameters: If the synod is unable to elect a patriarch after 15 days of the convocation of the synod, the matter devolves to the Roman pontiff (c. 72 §2), who can then take appropriate measures.
If the person elected is not at least a proclaimed bishop, the synod is to carry out all of the procedures required for episcopal proclamation (c. 73), which includes the approval of the Roman pontiff (c. 182 §§3-4).
In the case of a patriarchal election, if the one elected is an ordained bishop and accepts the election (c. 74), he is to make a profession of faith and promise to exercise his office faithfully (c. 76 §1). The synod of bishops proceeds with the proclamation and enthronement of the patriarch according to the liturgical books (c. 74). By virtue of enthronement, the patriarch obtains his office with the full effects of the law (qua pleno iure officium obtinet) (c. 77 §1). The synod of bishops is to notify the Roman pontiff by means of a synodal letter of the election, enthronement, profession of faith and promise to exercise his office faithfully and to notify the patriarchs of the other Eastern churches of the election (c. 76 §1).
The patriarch is then to request ecclesiastical communion from the Roman pontiff (c. 76 §2). Although the patriarch receives the fullness of his office with his enthronement, he cannot convoke a synod or ordain a bishop until he has received the letter of ecclesiastical communion. This restriction on the exercise of the patriarchal office is an apparent contradiction to the provision of canon 77 §1, which asserted that the patriarch obtained his office with the full effects of the law with enthronement. When objections were raised to this restriction, the explanation was offered that such actions can be carried out only in full communion with Roman pontiff, the head of the college of bishops. However, such an explanation is weak if the one elected is a bishop who has already made a profession of faith and a promise of obedience to the Roman pontiff (c. 187 §2). Does election to the patriarchal office result in a loss of communion?
Election of Bishops
In addition to the general canons on elections (cc. 947-957), there is a special section on the election of bishops (cc. 180-189).
The minimal qualifications for a bishop are: solid faith, good morals, piety, zeal for souls and prudence, good reputation, not bound by a marriage bond, at least 35 years old, in the order of presbyters for at least five years, academic credentials such as a doctorate, licentiate or an expertise in some sacred science (c. 180).
The election of bishops can take the form of the preparation of a list of approved candidates. The list should contain a number of candidates sufficient to fulfill the needs of the patriarchal church and can be constructed to include a list of candidates for the episcopacy in general or a list of candidates for a specific office.
It is the exclusive right of the members of the synod of bishops to propose candidates. If a bishop considers it necessary, he may consult with presbyters and other Christian faithful for their opinions. They are then to inform the patriarch of their findings. If the patriarch, after adding his own opinion, deems it appropriate, he sends the proposal to the members of the synod. With the approval of the Roman pontiff, particular law can restrict the right of presentation of candidates for election to the patriarch. The list is then transmitted to the Apostolic See for the assent of the Roman pontiff; which, if given, is valid until it is expressly revoked. (c. 182)
In the election of a bishop for a specific office, an absolute majority is required for the first three ballotings; the fourth balloting votes are cast only for the two candidates who had received the most votes in the third balloting (c. 183).
If the one elected has already received the assent of the Roman pontiff and accepts the election, the Apostolic See is to be notified of the election and proclamation (c. 184). If the one elected has not received the assent of the Roman pontiff, the patriarch is to seek the assent from the Roman pontiff (c. 185).
The Code of Canons provides for the possibility of the election of a bishop by letter after consultation with the Apostolic See (c. 186).
Election of Candidates for Office
In the case of an eparchial, coadjutor or auxiliary bishop outside the territorial boundaries of the patriarchal church, the synod of bishops, observing the procedures for the election of bishops, elects at least three candidates. The patriarch submits this list to the Roman pontiff for appointment (c. 149). It should be noted that the Roman pontiff is not restricted to choosing one of the proposed candidates for the appointment.
In the civil sphere, all this is treated in terms of a “balance of power” or “checks and balances,” an appropriate context to prevent the abuse of power and the protection of minorities. Any discussion of the use of power in the church must take place within the context of “If anyone wants to be first, he must make himself last of all and servant of all.” (Mark 9:35)
1 The patriarchal churches (Armenian, Chaldean, Coptic, Greek-Melkite, Maronite, Syriac) enjoy the highest degree of autonomy, including the power to elect their own bishops (within the territory of their patriarchal churches) and their own patriarchs. These churches enjoy the highest degree of autonomy; their governance is articulated in CCEO cc. 55-150.
It should be noted that here are other Eastern Catholic churches that are not of patriarchal status.
The major archiepiscopal churches (Romanian, Syro-Malabar, Syro-Malankara and Ukrainian) are for the most part canonically equated with the patriarchal churches (see CCEO cc. 151-154) with the exception that the election of the major archbishop must be confirmed by the Roman pontiff.
The metropolitan churches (Ethiopian and Ruthenian) have further restrictions imposed on the authority of their hierarchy (see CCEO cc. 155-173). For example, three candidates for the office of metropolitan are proposed by the council of hierarchs to the Roman pontiff, who makes the appointment. Further, legislation of the council of hierarchs cannot be promulgated without official reception on the part of the Apostolic See.
There is a fourth category, vaguely designated as other churches, that includes all those churches that, because of a variety of circumstances, have a limited degree of self-governing authority. These churches include the Albanian, Belarussian, Bulgarian, Greek, Hungarian, Krizevci, Italo Byzantine, Russian, and Slovak churches. Canons 174-176 generally provide for the governance of these churches.
2 Orientalium Ecclesiarum n. 9.
3 The territorial restrictions on the legislative authority of the synod of bishops will be discussed below.
4 Prior legislation (CS cc. 224 §1 and 340) provided that someone who is elected and confirmed as a bishop, but not yet ordained, was a member of the synod of bishops.
5 See the Index of s.v. &lrquo;particular law” and “particular law of a patriarchal church.”
6 See also cc. 2 and 1503.
7 “An inferior legislator cannot validly enact a law contrary to higher law.” (c. 985 §2).
8 SN cc. 17, 18 and 83.
9 See Nuntia 5 (1977) 13 and 14 (1982) 5-6.
10 This canon is the fruit of a long debate within the commission entrusted with the revision of the common law. The debate focused on the competence of the synod of bishops to judge patriarchs and bishops. SN c. 15, 2° reserves to the Roman pontiff the judgment of patriarchs. While it is consonant with Eastern tradition for a patriarch to be deposed by a synod of bishops, it was finally decided that such cases would continue to be reserved to the Roman pontiff. See Nuntia 3 (1976) 23, n.3; 5 (1977) 10-14; 14 (1982) 4. Further, although SN c. 17 provided that the synod of bishops was competent to adjudicate minor criminal cases involving bishops, this matter was also reserved to the Roman pontiff.
11 Under the provisions of Cleri Sanctitati, this function was carried out by the synod of election of a patriarch (CS cc. 221-239).
12 Unlike the provision for eparchial bishops (c. 210 §1), there is no mention of an age at which a patriarch is requested to submit his resignation.
13 These offices can be held by presbyters or deacons (c. 71 §1).
14 CS c. 223 §3 prohibited only the interference of lay persons.
15 “Ubicumque enim collegialiter potestas ab Episcopis exercetur vel Episcopi eliguntur, ibi constare debet de plena cum Collegii Capite communione ecclesiastica.&rdqup; Nuntia 22 (1986) 57.