On Omnium in Mentem: The Basis of the Two Changes

Author: Archbishop Francesco Coccopalmerio

On Omnium in Mentem: The Basis of the Two Changes

Archbishop Francesco Coccopalmerio
President of the Pontifical Council for Legislative Texts

The Motu Proprio Omnium in Mentempublished today [Wednesday, 16 December 2009] contains several amendments to the Code of Canon Law which had been under study for some time by the Dicasteries of the Roman Curia and the Bishops' Conferences. The changes concern two different questions, namely: adapting the text of the canons defining the ministerial function of deacons to the relative text of the Catechism of the Catholic Church (n. 1581); and removing, in three canons dealing with Marriage, an insertion that has proved unsuitable. The revised text of the modified canons is set forth in the five articles of the Motu Proprio.

The first change concerns the text of canons 1008 and 1009 of the Code of Canon Law, which deal with sacred ministers.In explaining "the effects of the sacrament of Holy Orders", the first edition of the Catechism of the Catholic Church had said that: Per ordinationem recipitur capacitas agendi tamquam Christi legatus, Capitis Ecclesiae, in eius triplici munere sacerdotis, prophetae et regis (second sentence of n. 1581). Successively, however, in order to avoid extending to the grade of deacon the ability to act in persona Christi Capitis,which is reserved ex-elusively to priests and Bishops, the Congregation for the Doctrine of the Faith considered it necessary, in the editio typica,to modify the draft of No. 1581 as follows: "Ab eo (sc. Christo) Episcopi et presbyteri missionem et facultatem agendi in persona Christi Capitis accipiunt, diaconi vero vim populo Dei serviendi in 'diaconia' liturgiae, verbi et caritatis". On 9 October 1998, the Servant of God John Paul II approved this amendment and mandated that the canons of the Code of Canon Law be brought into line with it.

The Motu Proprio Omnium in Mentem,therefore, changes the text of canon 1008 of the Code of Canon Law, which, by referring indistinctly to the three grades of Holy Orders, will no longer state that the sacrament confers the faculty of acting in the person of Christ the Head. Rather, it will be limited to stating more generically that one who receives Holy Orders is deputed to serve the People of God by a new and specific title.

The distinction which exists in this regard between the three grades of the sacrament of Holy Orders is now treated in canon 1009 of the Code of Canon Law, with the addition of a third paragraph, in which it is clarified that the minister constituted in the order of the episcopate or the presbyterate receives the mission and capacity to act in the person of Christ the Head, whereas deacons are empowered to serve the People of God in the ministries of the liturgy, of the word and charity.

No changes needed to be made in the relative canons 323 § 1; 325 and 743 of the Code of Canons of the Eastern Churches, since the expression agere in persona Christi Capitis is not used therein.

The other amendment which the Motu Proprio Omnium in Mentem introduces concerns the elimination of the phrase actus formalis defectionis ab Ecclesia Catholica in canons 1086 § 1, 1117 and 1124 of the Code of Canon Law, which, following a lengthy study, has been deemed unnecessary and unsuitable. The phrase, which had been added to the text of the canon, is not part of the canonical tradition and does not even appear in the Code of Canons of the Eastern Churches. It was meant to establish an exception to the general rule of Canon 11 of the Code of Canon Law regarding the binding nature of ecclesiastical laws, with the intention of facilitating the exercise of the ius connubii by those members of the faithful who, due to their estrangement from the Church, were unlikely to observe the prescription of canon law that requires a form for the validity of their marriage.

Difficulties in interpreting and applying the phrase, however, arose in a number of areas. For this reason, the then Pontifical Council for the Interpretation of Legislative Texts considered the expediency of removing the aforementioned insertion from the three canons. The matter was first discussed at the Plenary Session of 3 June 1997. The Fathers of this Plenary Session approved the formulation of a dubium and the relative responsum in order to provide for an authentic interpretation of the precise legal meaning of the clause, but they considered it fitting to begin by consulting the Bishops' Conferences on the experiences, positive and negative, resulting from these prescriptions, so as to be able to evaluate every situation before coming to a decision.

The process of consulting the Bishops' Conferences took place over the course of the next two years. About fifty detailed responses were received by the Pontifical Council, representing the five continents and including all those countries with a considerable number of Bishops. Some places had no significant experiences to report, but the majority pointed to the need to clarify the precise meaning of the phrase or desired to eliminate it completely. In this regard, related reasons drawn from juridical experience were adduced: the appropriateness of not treating these cases differently than civil unions between baptized persons who make no formal act of abandonment; the need to demonstrate consistently that marriage is a sacrament; the risk of encouraging clandestine marriages; additional repercussions in countries where canonical marriage has civil effects, and so forth.

The results of the consultation were then submitted to a new Plenary Session of the Pontifical Council held on 4 June 1999, which unanimously approved the proposal to eliminate the aforementioned insertion. The Servant of God John Paul II confirmed this decision in the Audience of 3 July 1999 and ordering that the relative legislative text be drafted.

In the meantime the elimination of this insertion regarding the canonical discipline of marriage was tied to another, quite different question demanding appropriate clarification, a question which exclusively concerned certain central European countries. This had to do with the issue of ecclesial effect of statements made to taxation authorities by Catholics who declared that they did not belong to the Catholic Church and consequently were not bound to pay the so-called "worship" tax.

In response to this practical concern, and thus in a different context from the strictly matrimonial context envisioned by the aforementioned insertion in the three canons of the Code, the Pontifical Council for Legislative Texts, in cooperation with the Congregation for the Doctrine of the Faith, initiated a study aimed at determining the essential conditions required for manifesting the will to leave the Catholic Church. These necessary conditions were set out in the Circular Letter to the Presidents of the Bishops' Conferences which, with the approval of His Holiness Pope Benedict XVI, the Pontifical Council for Legislative Texts issued on 13 March 2006 (cf. Communicationes XXXVIII [2006], 170-184).

While its purpose differed from that of the present Motu Proprio, the publication of the Circular Letter served to strengthen the conviction that the aforementioned insertion in the canons on marriage should be eliminated. This is precisely what has happened with the present papal document. The text of the Motu Proprio was examined at the Plenary Assembly of the Pontifical Council for Legislative Texts on 16 June 2009, chaired for the occasion by the Cardinal Secretary of State.

The practical importance of the modification of canons 1086 § 1, 1117 and 1124 of the Code thus deals with marriage. From the entry into force of the Code of Canon Law in 1983 until the moment when this Motu Proprio took effect, Catholics who had made a formal act of abandoning the Catholic Church were not bound to the canonical form of celebration for the validity of their marriage (canon 1117 of the Code of Canon Law), nor was the impediment of marrying non-baptized persons (disparity of cult, canon 1086 § 1) or the prohibition of marrying non-Catholic Christians applicable to them (canon 1124). The aforementioned phrase inserted into these three canons represented an exception of ecclesiastical law to another, more general norm of ecclesiastical law, according to which all those baptized in the Catholic Church or received into her are bound to the observance of ecclesiastical laws (can. 11).

From the entry into force of the new Motu Proprio, therefore, canon 11 of the Code of Canon Law regains its full force with regard to the content of the canons, now amended, also in those cases where a formal defection has taken place. Consequently, for the subsequent regularization of unions entered into in violation of these rules, recourse will have to be made, insofar as this is possible, to the ordinary means offered for these cases by canon law: dispensation from the impediment, sanation and so forth.

In conformity with the dispositions of canon. 8 of the Code of Canon Law, the Motu Proprio Omnium in Mentem will be formally promulgated by its publication in the Acta Apostolicae Sedis and will "become effective only after three months have elapsed from the date of that issue of the Acta".

Taken from:
L'Osservatore Romano
Weekly Edition in English
31 March 2010, page 6

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