Cracking the code: rights in the church? You bet. The Code of Canon Law outlines dozens. We just need to learn to exercise them, this canon lawyers says.

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An interview with Father Ladislas Orsy, S.J.

Though some may think of canon law as the "dark side of the Good News" or a labyrinth of rules that affects laypeople only when they want to get married or have a child baptized, Ladislas Orsy, who has taught canon law in Rome and the United States and written more than 200 articles on the subject, knows better. "In every ordered community you need a center that receives inspiration and gives direction to others."

The problem today, and perhaps a reason canon law seems so removed from the lives of ordinary Catholics, Orsy says, is the top-down functioning of the church. "St. Paul doesn't address any of his great letters to the leaders of the community but to the community as a whole. Now almost every encyclical is addressed to the bishops so they can implement it."

At the same time, Orsy sees canon law as a resource for lay participation in the church, rooted in the rights and duties to proclaim the gospel all the baptized share.

"There is absolutely no reason why, for example, a layperson could not be a member of a Roman congregation," he says. "You could still safeguard the primacy of the pope, but much of the creativity could come from regular people. You could do the same in any diocese."

Most Catholics know the church has a Code of Canon Law, but why does the church have law in the first place?

You have to begin by talking about the nature of church itself. Because the church is a human community, there is a human need for rules and regulations.

At the same time the human community that is the church has been formed by God's grace. We believe that the apostles received a mandate that the other disciples did not receive, and within the apostolic college Peter received a mandate that other apostles did not. This divine ordering is incorporated into the church.

But the Christian community has never been conceived as a community of perfect persons. It is a community of human beings with serious limitations, a community for sinners. That's another reason why we have some kind of law, because failing human beings need direction.

Is law in the Christian community different from law in other human communities?

I think the law of the church is essentially different from what we call civil law because the ultimate purpose of the church is to save people. Christ brought us redemption, and the laws of the church must serve this particular purpose.

I firmly believe that one of the factors that must influence both the creation and the interpretation of canon law is that ultimately it is for redeeming people. That's why it ought to be more flexible than civil law. It ought to care more for individuals, not just for the good of the community, because ultimately Christianity is for the redemption of individuals.

But canon law actually does more than that: It also frees the Holy Spirit to work in the community. That sounds funny, of course, because who are we to give freedom to the Spirit of God? But that is the laws' purpose: to make it possible for the people to receive the gifts of the Spirit and to make sure the Spirit can freely dispense those gifts.

But law can indeed impede the work of the Spirit. For example, since the 16th century, there have been very strict regulations of liturgical laws. If the Holy Spirit wanted to inspire a beautiful new hymn in the Middle Ages, the Spirit would be helpless, because there was simply no room for it. No one could ever approve it because it was forbidden.

Where do you find canon law, and what does it cover?

Most of the church's law is collected in the current Code of Canon Law, which was issued in 1983 and applies to the Western church. (The Eastern churches have their own code.) Church law can also be found in other sources, like the documents of councils, papal statements, the liturgical books, and decrees of local bishops and national bishops' conferences. The current code replaced the previous one, which was issued in 1917.

Canon law provides the guidelines for church processes and structures: the administration of church property, the celebration of the sacraments, the organization of church governance, and the acknowledgment and protection of the rights and duties of the faithful, to name a few.

The faithful have rights under canon law?

Canon law recognizes both human rights and ecclesiastical rights, including so called "implied rights," such as the right to follow one's own conscience. It also distinguishes between universal rights, which belong to both clergy and laity, and the specific rights of lay persons. In addition, canon law, unlike our American legal system, speaks not only of rights but duties as well; rights in the church have corresponding obligations, both on individuals and on the community.

The universal rights and duties of all the faithful include the right and duty to convey one's needs, especially spiritual needs, to the pastors, which means access to the parish priest, to the bishop, even to Rome. The faithful also have a right and duty to convey their opinions concerning the needs of the church to all the pastors and even to the other faithful.

Everybody has a right to a Christian education, the right to research and to freedom of expression, and a right to receive assistance from the pastor, which means a right to the sacraments and the right to go to the pastor and ask for explanation of scripture.

The faithful also have a right to assemble and to associate for charitable and religious purposes. This specifically applies to the case of the Voice of the Faithful, which began in reaction to the sex abuse crisis. Because they didn't have episcopal approval, some bishops were against it, and a few bishops said what they were doing put them outside the church.

Those bishops don't know canon law. The people have every right to assemble, and a bishop should interfere only if he notices they are veering away from Catholic doctrine, which they were not. Only if a group calls itself "Catholic"--not "Voice of the Faithful" but "Voice of the Catholic Faithful'--does it need the permission of the bishop to identify themselves in that way.

Everyone also has a right to initiate, promote, and support apostolic action--to come together for ministry or common life. Many of the great movements in the history of the church, like monasticism and the Franciscan movement, came from laypeople. And, of course, most religious convents have been founded by women.

Finally everyone has the right to choose their own state of life, a right to their good reputation, and to privacy.

What rights are specific to laypeople?

The specific rights oflaypeople include the right and duty to proclaim the gospel. In the practical world this means laypeople do not need an authorization from the hierarchy to speak in an assembly about the gospel. Before the current code, they needed a mandate from the bishop. Laypeople also have the right and duty to perfect the "temporal order of things"--society and culture--with the spirit of gospel. Charitable activity would be a typical example.

If they are married, laypeople have rights and duties that flow from their marital state: having a family, education, and so forth. If they have children, they have rights and duties flowing from parenthood. The church recognizes the right of parents to determine the number of children they want to have, how they will be educated, and so forth.

Laypeople also have the right to make their own judgment in secular affairs, financial matters, voting, and the like.

Laypeople have the right to admission to certain ecclesiastical offices. They can be cantors and serve in other liturgical functions, such as extraordinary minister of Communion. And if you are assigned a task, you have a right to be trained.

Laypeople also have a right and duty to assist the pastor and to assist councils as experts or advisors, but not to vote. They have the right and duty to acquire knowledge of Christian tradition and to study theology; they do not need the permission of the bishop.

Laypeople can also receive a mandate to teach theology in a formal setting, such as a high school or college. If you have the preparation, the bishop cannot refuse the mandate to you, but of course the bishop always can examine you and find you wanting, and there are some who will do that.

Finally, if you are employed by the church, you have a right to fair compensation and benefits. All of these are detailed in the code.

Is there any way to defend those rights and duties if they are not honored?

The faithful have a right to free access to courts to vindicate different rights, as well as the right to be judged according to the law and right to immunity from all punishments not provided for in the law. You just have to find a court.

Theoretically you could go to the bishop's tribunal in the diocese. Or you could go to Rome, where it will drag on for years and years. Unfortunately we do not have an independent, well-oiled, functioning judiciary. You can have all the rights in the world, but if there is no speedy means of redress, your rights are no good.

I have always said jokingly that according to canon law the faithful have the right to bring their concerns to their pastor, but then I'd point out that there's not a word about whether he must listen.

It seems canon law still reflects a strong distinction between clergy and laity. Where does that distinction come from?

It appears in church history after the third and fourth centuries. Originally the term laos, Greek for people, was simply used for everybody. But then when the church became closely connected to the state, the officers of the church became more prominent and the distinction became sharper. But from a theological point of view, strange as it sounds, there is really no such thing as "laity." When did you become a layperson?

At Baptism?

You did not become a layperson at Baptism; you became a Christian, and so did every single priest. So there is just one full membership in the church. Some are singled out in order to do service to the community.

If it's true that all Christians receive the same mandate at Baptism, it is a mandate for both sanctifying the world and for taking care of the internal well-being of the church as well. And if by your baptismal mandate, you must also take care of the well-being of the church, what should the balance between a layperson's work and the work of the clergy be? Must the line really be drawn as it is now in the practical order in the church?

In current practice, that line is certainly neat and clear: Laity must not take part in any decision-making process--technically, they cannot have "jurisdiction"--and that's where the real line is. But there is plenty of evidence in history to say that laypeople also have the mandate to take part in that kind of work for the well-being of the church. In the first millennium all the ecumenical councils were called by laypeople, two of them by women, because they were called by the emperor. If that's not jurisdiction, I don't know what is.

We also know that laity were represented at many important councils. At the ecumenical council of Florence, there was a large number laypersons. Granted many of them were abbots, but they were still not ordained.

How did decision-making become a purely clerical affair?

I think it had something to do with education. In the Middle Ages and even after, there was education for the clergy; they could at least read and write. Very few others, even those with civil power, were able to read, so they didn't have access to the decrees of councils and so forth. As often happens, a situation developed, and later someone found a theological explanation for it.

Is it possible that canon law could change to allow a return to more lay participation?

It is possible, but there is today an extreme centralization to the point that any kind of new departure ultimately depends on one single person, the pope, because only the pope can change what is in the Code of Canon Law. So we can talk all we want about something like the role of the laity or episcopal collegiality--cooperation between the pope and the world's bishops--but when all the power is in the hands of one person and a group around him, it's very difficult to make any kind of change.

Does papal infallibility affect this situation?

There's a difference between doctrine and the practical administration of the church. In doctrinal matters we believe believe that Christ has given the charism of infallibility to the church and that the pope can exercise that charism in very restricted circumstances. Otherwise the evangelical message would be lost.

But canon law, to the extent that it covers the practical administration and policies of the church, falls entirely into the realm of fallibility. These practical decisions require the virtue of prudence, the wisdom of choosing the right course of action in the right situation. But never in its history has the Christian community believed that Christ gave the charism of the highest degree of prudence to those who are called to govern it, and they can certainly make mistakes. If you have any doubt, there are plenty of books of church history you can read.

That's very important because while the pope and the college of bishops can be ultimate judges in matters of doctrine, when they make practical decisions, there's no guarantee that the highest degree of prudence is there. Sometimes there isn't any degree of prudence there. That's why I never have any problem explaining all the mistakes in the course of history made by popes and bishops and religious superiors. It follows on the very nature of things.

So you can see why the pope or the bishops may need help and advice, especially in this complicated modern world where you need a great deal of specialized knowledge.

Could the law change to make room for more robust cooperation?

Nations have a parliament or congress with legislative power, through which there is a continuous change in the legal structure. Without such a body to respond to the church's needs and propose rules to keep up, the whole system is condemned to immobility. That's what we have.

Our problem is that we believe that the bishop of Rome has a primacy of jurisdiction that includes all three powers: legislative, executive, and judicial. But the fact that they are rooted in him doesn't mean that in the practical order they cannot be broken up for the administration of the community. Of course, it is very human in any highly centralized organization that the center tends to worry what happens if it does not keep things in its own hands.

But there are possibilities even in the current order of things. Universities have a system of accreditation that sends a group to evaluate how a university is doing. If we had something like that for dioceses, so many problems could be resolved.

In the case of the sex abuse crisis, for example, suppose there had been a committee of bishops and other outside experts coming into the diocese, looking around, talking to the bishop, to clergy but without the bishop, to lay-people. They would have picked up a lot, and there would have been much less of a crisis.

Why don't we do that?

Rome is extremely sensitive about any other group between the Holy See and individual bishops. That's why in modern canon law, the role of archbishop, which used to have some authority over the other bishops in his province or area, is purely a title. Only if an archbishop notices something really wrong in one of the other dioceses can he inform Rome. But he cannot deprive another bishop of his diocese, send him into exile, or remove him from government.

We have about 2,700 dioceses or quasi-dioceses in the world. Can you think of any corporation with 2,700 branches reporting directly to the center and no one else in between?

The only official information Rome receives is through the bishop's ad limina visit every five years, and in America we'd say that's a conflict of interest, because the bishop is reporting on the state of his own domain, and it is in his interest to give the best possible picture. As long as that situation does not change, abuses are bound to happen because there's no control.

How might laypeople, given the limitations of canon law and the current situation in the church, best exercise their rights and duties?

We believe that God's providence surrounds the church, so God has allowed the situation we have today to happen for some mysterious purpose. So I think people should approach the issue by asking what in the concrete order they can do where they are. If you cannot move in one direction, move in another, and let God work it out.

That's exactly what we find with exceptional people like Francis of Assisi. The church at his time was not much better than ours now, but he just started out within the realm of his own possibility. He did not become embittered, and somehow, when you do that, God picks it up and helps you to carry on.

Unfortunately there is sometimes a radical distrust about anything new. That happened to Voice of the Faithful. They originally had three goals: support the victims, support good priests, and work for structural change in the church. I met with all of them regularly. They were absolutely decent Catholic people who did not want to do away with the bishops, but I'm sure a number of bishops thought that the VOTF people wanted to become Presbyterians.

It's true that if you trust, there will be mistakes, even abuses. One solution is not to give much freedom, and then there are no mistakes. But without trust and the freedom that goes with it, you will have a very neat society but not a very creative one. The key is finding the right balance between trying to avoid mistakes and at the same time having enough air or freedom for exploration.

Is it easy to get excommunicated?

There are occasionally stories in the news about people being excommunicated. Is it really that common?

It's difficult to get excommunicated because it's not enough just to say someone is excommunicated. The current Code of Canon Law, issued in 1983, retains a few "automatic" excommunications for particular acts. But in order to be excommunicated, you must know and want to commit an act that you also know has excommunication attached to it. If you know it only as wrong, but you do not know excommunication is attached, you are not excommunicated.

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So no one can be excommunicated accidentally, but sometimes people do not know they are excommunicated. The church, in the practical order, can hold them up for excommunication if their business is a scandal, say if someone is publicly known to own a brothel.

But usually even minimal extenuating circumstances excuse a person from excommunication, though not from the wrong itself. For example, a woman who is under duress and has an abortion would probably not fall under excommunication precisely because of mitigating circumstances. The church is very careful about excommunication.

What about the case of members of Call to Action and other groups being excommunicated by the bishop of Lincoln, Nebraska? Didn't Rome approve that?

A letter did come from Rome affirming the action of the bishop, which I have seen a copy of. But in a way it was an illegal answer because it was written only by the prefect, or head, of the congregation and was not issued in the name of the congregation.

Nothing official comes from a Roman congregation unless it is on official letterhead and signed by both the prefect and the secretary, whose role is to testify that something has been decided by the whole group. In this case there was no signature by the secretary and no reference whatsoever to the congregation as a collective body. Since the prefect has no personal jurisdiction, it was basically a private response written on official letterhead.

Ladislas Orsy, S.J.

Visiting Professor of Law

Georgetown University Law Center 

Washington, D.C.

Emeritus Professor of Canon Law

Catholic University of America 

Washington, D.C.