Ecclesiology in the Canon Law Code

[A doctoral dissertation in Canon Law by Robert L. Stern published by the Pontifical Lateran University, Institute of Both Laws, as The Catholic Church as a Moral Person by Divine Ordinance. Rome: Pontificia Universitas Lateranensis, 1965]

PREFACE

The whole Church is stirred these days of the Second Vatican Council by the spirit of aggiornamento, but one less fortunate concomitant of the wide-spread desire for the renewal of institutions and doctrine is a certain disparagement of the role of canon law. Often the cry is raised that we are plagued by a “juridicism” in our thinking and in our theology. If this be the case, perhaps the solution would be not exaggeratedly to reject the role of canon law and the juridical order in the Church, but to seek a balanced appreciation of its place and function.
The codification of canon law given to the Church in 1917 was in a certain sense the beginning of an aggiornamento. It is only natural, however, that forty-eight years later, with a continued renewal in other disciplines as well, certain necessary limitations of this work have become apparent. Especially noticeable in this time when insights into ecclesiology are growing rapidly is the influence of a late nineteenth century apologetic theology of the Church, as well as a philosophically orientated analysis of society and social structures, upon certain basic canons in the Code of Canon Law. Perhaps more than any others, these canons – or their too rigid interpretation – provoke the regrettable exaggerated reaction to canon law.
A statement in canon 100, § 1, may well be considered as touching the heart of the matter when it applies dogmatically a juridic category to the whole Church. The interest of this investigation is to explore that statement, its sources, and its interpretation, in the hope that a sound juridic meaning may be established in no way conflicting with the best modern teaching on the nature of the Church and of use in the interpretation of other parts of the code.
This study touches upon points of public ecclesiastical law, dogmatic theology, philosophy, history, and semantics; yet the author is well aware that he is expert in none of these fields. Rather than elaborate the doctrines of perfect society, moral personality, and of the nature of the Church, they will be presumed and accepted as commonly presented. This study pretends only to apply them or juxtapose them in such a way so as to shed light on a certain consistent oversight in the interpretation of canon 100. What the oversight may be or the value of exposing it remains to be seen.

I.
THE NATURE OF THE INVESTIGATION
AND STATE OF THE QUESTION

The second book of the Code of Canon Law is concerned with persons, and in an introductory section of twenty-one canons basic principles concerning physical and moral persons and their juridic acts are presented. One of the four canons on moral persons begins by stating that “the catholic Church and the Apostolic See have the nature of a moral person by divine ordinance; . . .” (canon 100, § 1). At first one tends almost to pass over this introductory phrase to attend more to the detailed prescriptions that follow about the establishment of moral persons in the Church and their legal competence. However upon further consideration certain points catch the attention “Divine ordinance” is a strong expression, for it predicates something of the Church and the Apostolic See by the will of God. Yet this predicate, moral personality, is a juridical concept that has had a long history and evolution and whose definition is still much controverted. In what sense then can it be applied to two divinely established realities? And, how can what is a supernatural mystery, that is, the Church, be accommodated to a legal category?

The Purpose of the Study

The presumption is, of course, that every statement of the code is logical and meaningful. Therefore the problem here is not that of rejecting the statement of canon 100 but that of exploring it and arriving at its true meaning. Actually there are two points of equal importance and scope involved in the phrase of the canon, but this study will be confined to only one of them: to investigate the meaning of the phrase, “the catholic Church . . . has the nature of a moral person by divine ordinance.” Not only must the force of the expression, “by divine ordinance,” be judged, but it must be determined how immediately the Lord established the Church as a moral person. Also a reasonable theory of moral personality must be agreed upon that can be applicable to the catholic Church. And most important of all, the meaning of the word, “Church,” in this canon must be clarified.
An accurate understanding of this canon is essential to the interpretation of several other significant canons of the code. For example, canon 1495, § 1, offers an immediate consequence of the divinely established moral personality of the Church, its native and independent right to acquire, retain, and administer temporal goods. Of even greater interest, though, is the insight this canon gives to the ecclesiology of the code itself. For, as will be seen, it is perhaps the key statement in the establishing of a juridic concept of the Church.

The Method of the Study

To arrive at the meaning of any law is not an arbitrary procedure; canon 18 gives clear principles for interpretation. Also there is a certain order that should be followed in seeking the meaning of any ecclesiastical law that is dictated by both the provisions of canon 18 and the prudent use of reason. The first point to be considered is the proper meaning of the words of the law considered in their text and context. Words should be taken first in their natural and usual meaning as they occur in common speech and then in their normal and usual juridic sense. Especially useful to determine the latter is a careful consideration of the full text of the law and the broad context in which it is found. In certain instances it may be useful to assess the force of a juridic term in the context of the entire code, especially when there is much ambiguity in its use. To resolve any doubt or obscurity that may still remain recourse may be had to parallel places in the code where other canons legislate the same or similar matter or refer to the same person or thing; to the purpose of the law as indicated by the law itself or by the prudent conjecture of authorities; to the circumstances of the law, that is, the occasion for the law, the time and place when the law was given, and perhaps to preliminary drafts of the law, although they do not have any authoritative value; and finally to that most elusive of all criteria, the mind of the legislator-in other words, to general principles of law know to him and presumed to have been used by him.(( Ludovicus Bender, Legum Ecciesiasticarum Interpretatio et Suppletio (Rome: Desclée & Cⁱ, 1961), pp. 120-170.)) A consideration of antecedent circumstances such as the origin and historical evolution of the law and of subsequent ones such as the common opinion of interpreters, custom, and practice can also be of supplementary value.(( Lorenzo Miguélez Domínguez, Sabino Alonso Morán, and Marcelino Cabreros de Anta, Código de Derecho Canónico y Legislación Complementaria (seventh edition. Biblioteca de Autores Cristianos, No. 7. Madrid: La Editorial Católica, S.A., 1962), p. 13. ))
In this study, after an introductory survey of the state of the question, that is to say, after a broad survey of the opinion of representative canonical commentators on the meaning of canon 100, § 1, and the terms it employs, an application of these principles of interpretation will be made concretely. A special interest will be taken in the meaning of the term, “church,” for a detailed study of its juridical use will reveal a tremendous ambiguity and variety of meaning. After a limited study of certain parallel places in the code and a brief reference to the similar law legislated for the Eastern Churches, a detailed examination of the sources of the canon will be made. Here what will be of greatest interest is the lack of direct relation between the sources and the wording of the canon: the sources will be shown exclusively to be dedicated to an apologetic presentation of the theory of the perfect society and its application to the Church without any explicit reference at all to the idea of moral personality. Finally some provocative conjectures may be made about the intention of the legislator after examining two preliminary drafts of the code itself.
The conclusion of this study will be the resolution of these difficulties, especially concerning the meaning of the term, “church,” in the code and in this canon, concerning the relationship between the notions of perfect society and moral personality, concerning the force of the expression, “by divine ordinance,” and concerning the divergent opinions of canonical commentators. Finally a consistent and meaningful interpretation of the phrase of canon 100 under discussion will be proposed.

Review of the Literature

An exhaustive survey of published canonical opinion on any point of law is usually possible, although not without difficulties. However, for the present needs, a wide, representative selection of canonical commentators is certainly adequate. For the purpose of this study almost all standard works on the entire code were consulted, as well as many studies in ecclesiastical public law and pertinent monographs on moral personality. Since the interest is in the interpretation of the law as it appears in the code and not in the point of law as it develops in ecclesiastical legislation, the survey of published works is confined exclusively to the period since the promulgation of the Code of Canon Law.

Commentary on canon 100, § 1

The treatment of canon 100 by canonical authors is very varied; ranging from extensive consideration to nothing at all.

Authors without comment. Perhaps the most interesting general observation that can be made after surveying canonical manuals and studies is how little attention the first part of canon 100, § 1, receives. A very large number of authors who explicitly treat the canon or who are concerned with moral persons in ecclesiastical law say nothing at all other than to repeat or paraphrase the statement of the canon itself. For example, in the period before the second world war, one could cite Stutz((Ulrich Stutz Der Geist des Codex iuris canonici (Stuttgart Verlag von Ferdinand Enke,1918), p 201.)), Badii((Caesar Badii, Institutiones Iuris Canonici in Usum Scholarum (second edition. Florence: “Libreria Editrice Fiorentina,” 1921) Vol. I, pp. 87-88.)), De Meester((A. De Meester, Juris Canonici et Juris Canonico-civilis Compendium (second edition. Bruges: Typis Societatis Sancti Augustini. 1921), Vol. I, pp. 220-221)), Leitner((Martin Leitner, Handbuch des katholischen Kirchenrechts auf Grund des neuen Kodex. vom 28 Juni 1917 (second edition. Regensburg: Verlag Josef Kösel & Friedrich Pustet Komm.=gef., 1921), Vol. I, pp. 72-76.)), Haring((Johann B Haring Gründzuge des katholischen Kirchenrechts (Graz: Verlag von Ulrich Mosers Buchhandlung, 1924), Vol. I, pp. 5-8.)), Hilling((Nikolaus. Hilling. Das Personenrecht des Codex luris Canonici (Paderborn: Druck und Verlag von Ferdinand Schöningh, 1924), p. 2.)), Falco((Mario Falco, Introduzione allo Studio del “Codex luris Canonici” (Turin: Fratelli Bocca, Editori, 1925), pp. 133-140.)), Hohenlohe(( Konstantin Hohenlohe, “Die Lehre des Kirchenrechtes über die moralische Person,” Papstrecht und weltliches Recht (Vienna: Verlags-anstalt Tyrolia, 1925), pp. 24-36.)), Sägmüller((Johannes Baptist Sägmüller, Lehrbuch des katholischen Kirchenrechts (fourth edition. Freiburg im Breisgau: Herder & Co. G.M.B.H. Verlagsbuchhandlung, 1925), pp. 303-309.)) , Koeniger((Albert M. Koeniger, Katholisches Kirchenrecht (Freiburg im Breisgau: Herder & Co. G.M.B.H. Verlagsbuchhandlung, 1926), pp. 93-94; 370-372.)), Munerati((Dantes M. Munerati, luris Ecclesiastici Publici et Privati Elementa (fourth edition. Rome: ex Schola Typographica Salesiana, 1926), p. 115.)), Gillet((Pierre Gillet, La Personnalité Juridique en Droit Ecclésiastique (Mechlin: W. Godenne, imprimeur-éditeur, 1927), p. 238.)), Jemolo((Arturo Carlo Jemolo, Elementi di Diritto Ecclesiastico (Florence: Vallecchi Editore, 1927), p. 62.)), Prümmer((Dominicus M. Prümmer, Manuale luris Canonici in Usum Scholarum (fifth edition. Freiburg im Breisgau: Herder & Co., 1927), pp. 75-76.)), Bareille((Georges Bareille, Code du Droit Canonique (second edition. Montréjeau: Éditions Cardeilhac-Soubiron, 1929), pp. 25-26.)), Vermeersch((A. Vermeersch, “De Personae Moralis Origine seu Constitutione,” Jus Pontificium, X (1930), p. 290; “De Persona Morali,” Periodica de Re Morali, Canonica, Liturgica, XIV (1935), pp. 1°-17°; A. Vermeersch and I. Creusen, Epitome luris Canonici cum Commentariis (eighth edition. Revised by Aem. Burgh and I. Greco, Mechlin: H. Dessain, 1963), Vol. I, p. 223.)), Oesterle((Gerard Oesterle, Praelectiones luris Canonici (Rome: Collegio S. Anselmi, 1931), pp. 61-64.)), Perathoner((Anton Perathoner, Das kirchliche Gesetzbuch (Codex juris canonici) (fifth edition. Bressanone: Verlag von A. Weger’s Buchhandlung und fb. Hofbuchdruckerei, 1931), pp. 80-82.)), Raus((J. B. Raus, Institutiones Canonicae juxta Novum Codicem Juris pro Scholis vel ad Usum Privatum Synthetice Redactae (second edition. Lyons: Typis Emmanuelis Vitte, 1931), pp. 85-86.)), Cance and Arquer((Adriano Cance and Miguel de Arquer, El Código de Derecho Canónico. Comentario Completo y Práctico de Todos sus Canones para Uso de Eclesiásticos y Hombres de Leyes (Barcelona: Editorial Litúrgica Española, S.A., 1934), Vol. I, pp. 82-84.)), Ferreres((Juan B. Ferreres, Instituciones Canónicas (fifth edition. Barcelona: Eugenio Subira Juan B. Ferreres, Instituciones Canónicas (fifth edition. Barcelona: Eugenio Subiraña, S.A., 1934), Vol. I, pp. 99-101.)), Torrubiano((Jaime Torrubiano Ripoll, Novísimas Instituciones de Derecho Canónico (second edition. Madrid: “Librería Universidad,” 1934), Vol. I, pp. 136-139.)), Retzbach((Anton Retzbach, Das Recht der katholischen Kirche nach dem Codex luris Canonici (Freiburg im Breisgau: Herder & Co. G.m.b.H. Verlagsbuchhandlung, 1935), pp. 26-28.)), del Giudice((Vincenzo del Giudice, Istituzioni di Diritto Canonico (third edition. Milan: Dott. A. Giuffrè – editore, 1936), pp. 46-47; Corso di Diritto Ecclesiastico (fourth edition. Milan: Dott. A. Giuffrè – editore, 1939), p. 34.)), Cavigioli((Giovanni Cavigioli, Manuale di Diritto Canonico (second edition. Turin: Società Editrice Internazionale, 1939), pp. 166-175.)), Mathis((Burkhard Mathis, Das katholische Kirchenrecht für den Laien (Paderborn: Ferdinand Schöningh, 1940), pp. 82-85.)), and Romani((Sylvii Romani, Propaedeutica Juris Canonici et Juris Publici Ecclesiastici Elementa (Rome: apud auctorem, 1940), pp. 58-59; Institutiones Juris Canonici (Rome: apud auctorem, 1941), pp. 144-146.)); all of whom, at least in the works indicated, betray the same oversight perhaps or do not see any difficulties at all in considering the Church a divinely instituted moral person. Even more recently manuals and commentaries newly published or published in revised edition do not treat the point at all; for example, those of Goyeneche((S. Goyeneche, Juris Canonici Summa Principia (Rome: tip. pol. “Cuore di Maria”), pp. 135-138.)), Naz((Raoul Naz, Traité de Droit Canonique (Paris: Letouzey et Ané, 1946), Vol. I, pp. 243-249; “Personnes Morales d’après là Réglementation du Code,” Dictionnaire de Droit Canonique (Paris: Librarie Letouzey et Ané, 1957), Vol. VI, cols. 1420-1438.)), Hamilton((Carlos Hamilton, Manual de Derecho Canónico (Santiago de Chile: Editorial Jurídica de Chile, 1949), pp. 190-193.)), Hanig((Alois Hanig, “Das juridische Wesen der, moralischen Personen,” Ephemerides luris Canonici, V (1949), pp. 44-88; 163-201.)), Jombart((Emile Jombart, Manuel de Droit Canonique (Paris: Beauchesne et ses fils, 1949), pp. 68-69.)), Petroncelli((Mario Petroncelli, Lineamenti di Diritto Canonico (third edition. Naples: “Humus” di B. Pellerano – S. del Gaudio, 1949), pp. 61-68.)), Cance((Adrien Cance, Le Code de Droit Canonique. Commentaire Succinct et Pratique (eighth edition. Paris: J. Gabalda et Cie., editeurs, 1950), Vol. I, pp. 116-119).)), Ebers((Godehard Jos. Ebers, Grundriss des katholischen Kirchenrechts (Vienna: Manzsche Verlags-und Universitätsbuchhandlung, 1950), pp. 245-247.)), Jannaccone((Constantino Jannaccone, “La Personalità Giuridica della Chiesa,” Studi in Onore di Vincenzo del Giudice (Milan: Dott. A. Giuffrè – editore, 1953), Vol. I, p. 485.)), le Roy((F. le Roy, “La Personnalité Juridique du Saint-Siège et de l’Église Catholique en Droit International,” L’Année Canonique (Paris: Letouzey et Ané, 1953), Vol. II, pp. 125-137.)), Marchesi((Franciscus M. Marchesi, Summula luris Canonici ad Usum Scholarum (Alba: Editiones Paulinae, 1954), Vol. I, pp. 100-104.)), Eichmann and Mörsdorf((Eduard Eichmann, Lehrbuch des Kirchenrechts auf Grund des Codex luris Canonici (Revised by Klaus Mörsdorf. Paderborn: Verlag Ferdinand Schöningh, 1959), Vol. I, pp. 201-219.)), Cappello((Felix M. Cappello, Summa luris Canonici in Usum Scholarum Concinnata (sixth edition. Rome: Typis Pontificiae Universitatis Gregorianae, 1961), Vol. I, pp. 187-197; Summa luris Publici Ecclesiastici ad Normam Codicis luris Canonici et Recentiorum S. Sedis Documentorum Concinnata (sixth edition. Rome: apud aedes Universitatis Gregorianae, 1954), PP. 36-45.)), Voigt((Alfred Voigt, Kirchenrecht (Neuwied am Rhein: Hermann Luchterhand Verlag GmbH, 1961), pp. 114-117.)), Miguélez, Alonso, and Cabreros((Miguélez, Alonso, and Cabreros, op. cit., pp. 41-42.)), Schmitz((Heribert Schmitz, Die Gesetzessystematik des Codex luris Canonici Liber I – III (Munich: Max Hueber Verlag, 1963), pp. 52-53.)), Woywod((Stanislaus Woywod, A Practical Commentary on the Code of Canon Law (Revised and enlarged 1962 edition. Revised by Callistus Smith. New York: Joseph F. Wagner, Inc., 1963), pp. 58-60.)), and Ranaudo((Arcangelo Ranaudo, “Nozione, Classificazione, Elementi Costitutivi delle Persone Morali Ecclesiastiche nel Diritto Canonico e alcune Particolari loro Caratteristiche,” Monitor Ecclesiasticus, LXXXIX (1964), pp. 477-525.)).

Authors with little comment. One might consider as another group those authors who give some slight attention to the point but who say very little indeed. For example: Maroto observes that the catholic Church is a collegiate moral person((Philippus Maroto, Institutiones luris Canonici ad Normam Novi Codicis (Madrid: Editorial del Corazón de María, 1919), p. 541.)), and in this he is joined by Toso((Albertus Toso, Ad Codicem Juris Canonici Benedicti XV Pont. Max. Auctoritate Promulgatum Comrnentaria Minora Comparativa Methodo Digesta (Rome: Ephemeridis Jus Pontificium, 1922), Vol. I, (1), 1, pp. 40-41.)), Crnica((Antonio Crnica, Commentarium Theoretico-practicum Codicis luris Canonici (Šibenik: Typis Typographiae “Kačič,” 1940), Vol. I, p. 123.)), and Regatillo((Eduardus F. Regatillo, Institutiones luris Canonici (sixth edition. Santander: Editorial “Sal Terrae,” 1961), Vol. I, p. 163.)), Santamarfa notes only that the catholic Church is a moral person of divine right because of having been constituted by Christ((Federico Santamaría Peña, Comentarios al Código Canónico (Madrid: Imprenta del sucesor de Enrique Teodoro, 1920), Vol. I, p. 133.)), and in this he is followed by Arteche((Gonzalo Arteche B., El Código de Derecho Canónico Traducido y Comentado (Santiago de Chile: Imprenta “San Francisco,” 1944), Vol. I, pp. 99-101.)). Some comments on the canon refer to proposition nineteen of the Syllabus of Errors where the Church is stated to be a true and perfect society independently enjoying the rights given to it by its divine founder((Pius PP. IX, “Syllabus errorum (a. 1864),” Codicis luris Canonici Fontes (edited by Petrus. Card. Gasparri. Rome: Typis Polyglottis Vaticanis, 1928), Vol. II, p. 1002.)); for example, those of Blat((Albertus Blat, Commentarium Textus Codicis Iuris Canonici (second edition. Rome: Libreria Editrice Religiosa, 1921), Vol. II, pp. 34-40.)), Cocchi((Guidus Cocchi, Commentarium in Codicem luris Canonici ad Usum Scholarum (Turin: Marietti, 1922), Vol. II, pp. 28-29.)), and Blanco((Francisco Blanco Nájera, El Código de Derecho Canónico Traducido y Comentado (Cadiz: Establecimientos Cerón y Libreria Cervantes, S.L., 1942), p. 83.)). The divine ordinance mentioned in the canon is specifically referred to the doctrine of the perfect society by several authors, though they somewhat ignore the point of moral personality or perhaps presume it to be identified with the notion of perfect society: Augustine sketches the divine foundation of the Church and say that such a moral person (!) is called a perfect society((Chas. Augustine, A Commentary on the New Code of Canon Law (fifth edition. St. Louis: B. Herder Book Co., 1928), Vol. II, pp. 3-9.)); according to Wernz and Vidal the divine ordinance consists in the fact that the Church was established by its founder as a true, perfect, supreme, and independent society((Franciscus Xavier Wernz and Petrus Vidal, lus Canonicum (third edition. Revised by Philippus Aguirre. Rome: Typis Pontificiae Universitatis Gregorianae, 1943), Vol. II, p. 37.)); and the same point is alluded to by Claeys Bouuaert(( Claeys Bouuaert and G. Simenon, Manuale Juris Canonici ad Usum Seminariorum (third edition. Ghent: prostat apud auctores in seminariis Gandanensi et Leodiensi, 1930), Vol. I, p. 147.)) and made by Brys((J. Brys, Juris Canonici Compendium (tenth edition. Bruges: Desclée de Brouwer et Sii, 1947), Vol. I, p. 199.)), Jone((Heriberto Jone, Commentarium in Codicem Iuris Canonici (Paderborn: Officina Libraria F. Schöningh, 1950), Vol. I, p. 110)), Romani((Sylvii Romani, Elementa Juris Ecclesiastici Fundamentalis in Seminariorum Usum (fourth edition. Rome: “Mater Cleri” Editrix, 1953), pp. 165-206.)) (in a later work than the two previously cited), and Abbo and Hannan((J0hn A. Abbo and Jerome D. Hannan, The Sacred Canons (revised edition. St. Louis: B. Herder Book Co., 1957), Vol. I, p. 145.)). Interestingly enough it is only, Fedele in his recent book who explicitly relates the notions of moral person and perfect society:

Since, according to the common teaching of ecclesiastical public legal dogma, the concept of a societas iuridice perfecta postulates that of juridic personality, the Church, no less than the State, being a juridically perfect society, cannot but be considered as a juridic person. This qualification is derived “ex ipsa ordinatione divina,” to use the expression of can. 100, § 1 of the Codex luris Canonici, while the State is a juridic person by natural law((Pio Fedele, Lo Spirito del Diritto Canonico (Padua: CEDAM – Casa Editrice Dott. Antonio Milani, 1962), p. 125.)).

Further brief observations are made by Gillet, who notes only that Christ conceded determined rights to the universal Church((P. Gillet, “Notio et Divisiones Personae Moralis in Codice,” Collectanea Mechliniensia, XVII (1928), pp. 465-466.)); and by Regatillo, who states that Christ is the cause or author giving personality to the catholic Church, that is, the society of all the faithful under the Roman Pontiff((Regatillo, op. cit., p. 164. )). Romani calls the Church itself an ecclesiastical moral person((Romani, Elementa Juris Ecclesiastici Fundamentalis in Seminariorum Usum (op. cit.), p. 139.)); Hanig calls the universal Church a non-collegiate moral person((Alois Hanig, “Das ontologische Wesen moralischer Personen nach dem ‘Codex luris Canonici’,” Ephemerides luris Canonici, IV (1948), p. 217.)); Lammeyer considers the Church a moral person “sui generis”((Joseph Lammeyer, Die juristischen Personen der katholischen Kirche (Paderborn: Ferdinand Schöningh, 1929), pp. 183-185.)); and Ciprotti establishes the juridical personality of the universal Church on the doctrine of the Mystical Body((Pio Ciprotti, Lezioni di Diritto Canonico (Padua: CEDAM – Casa Editrice Dott. Antonio Milani, 1943), p. 199.)).

Authors with extended comment. A certain few canonists do give a more detailed treatment to canon 100 in their expositions, and it will be of value to examine them somewhat extensively.
After a preliminary discussion of what he considers to be the two main categories to which all theories of moral personality can be reduced, that of fiction and that of reality, and after presenting his preference for the former((B. Ojetti, Commentarium in Codicem Iuris Canonici (Rome: apud aedes Universitatis Gregorianae, 1928), Vol. II, pp. 107-109.)), Ojetti observes:

Just as for the Romans the Roman people itself was always thought of and held to be a moral person independently of any act of public authority . . . but from the sole fact of its constitution as a political and perfect society; so a fortiori the Christian people, Christianity itself, or the Church of Christ is a moral person, independently of any act of the social authority of the Church or, even more so, of an outside authority, but from the sole fact of its constitution as a religious and perfect society((Ibid., p. 120.)).

The Church is constituted as a society in itseit complete and perfect by Christ, and so, Ojctti continues it must be free and independent from civil society((Ibid., p. 121.)). Finally in an “Excursus on Canon 100” he shows how public, international, and private rights, patrimonial, administrative, and the like, flow from the Church as a perfect society((Ibid., pp. 126-132.)).
Conte a Coronata too concludes from the Church’s being a juridically perfect society to its moral personality:

From the proof of the juridic perfection and the absolute majority or independence of the society of the Church it necessarily follows that the Church itself is a moral or juridic person independently of any recognition by a civil State((Matthaeus Conte a Coronata, lus Publicum Ecclesiasticum (second edition. Turin: Marietti, 1934), p. 62.)).

He adds too that the Church is a collegiate person((Ibid., p. 64.)). In a later work this same argument is expanded and related more directly to the divine will:

. . . from the very institution of the Church, that is, from this, that the Church is constituted by Christ as a visible, indefectible, necessary, and hierarchical society with a purpose and means as well as with an authority and proper form of rule, it follows that the Church itself is a juridic person or subject of rights and duties from the positive will of Christ independently from any human sanction and will((Matthaeus Conte a Coronata, Compendium luris Canonici (sixth edition. Rome: Marietti, 1963), Vol. I, p. 20.)).

Bertrams has an entirely different approach to the question. He considers the exercise of rights and duties by the Church, its social activity, in relation to its supernatural end; from this end he derives the Church’s personality; since the supposit is not of the physical order but of the moral order, the Church has the nature of a moral person((W. Bertrams, “Dc Origine Personae Moralis in Ecciesia,” Periodica de Re Morali, Canonica, Liturgica, XXXVI (1947), pp. 169-184.)). In a later article this somewhat difficult theory is more clearly developed:

The Church, whether thought of as a social union or as a juridic institution, constitutes a unity of order and an intentional hypostasis for social relations; ultimately it is this intentional hypostasis that is the subject to which the rights and obligations of the Church are attributed. These social relations as well as these rights and obligations are of the supernatural order, since they are directed to a supernatural end. Hence the personality of the Church is a personality in the supernatural order; because of the supernatural aspect the personality of the Church has an institutional character: the Catholic Church has the nature of a moral person by divine ordinance (can. 100, § 1((Wilhelmus Bertrams, “De Personalitatis Moralis in lure Canonico Natura Metaphysica,” Periodica De Re Morali, Canonica, Liturgica, XLVIII (1959), p 224.)).

A very extensive treatment of the moral personality of the Church is offered by Michiels. After presenting a resume of the history of this doctrine(( Gommarus Michiels, Principia Generalia de Personis in Ecclesia (second edition. Tournai: Desclée & Cⁱ., 1955), pp. 353-354.)), he offers the statement of canon 100, § 1, as a “fundamental constitutive principle of the Church itself; . . . the Church itself,” he says, “by divine institution is a juridically perfect society, endowed with a perfect juridic personality . . .”((Ibid., p. 371.)) Although he feels that this is an essentially dogmatic thesis to be supposed from theology and public ecclesiastical law, he notes:

In the first place, this is affirmed of the catholic Church, understanding of the universal Church, in so far as it is a universality, which “results from the group of the faithful subjects and of the group of rulers, or of the Church not only ruled (taught) but also ruling (teaching).”
. . . The Catholic Church is a moral person by divine ordinance or by virtue of its divine institution. Therefore and to that extent the Catholic Church is a subject of rights, because and to the extent that Jesus Christ established and determined it, by founding and instituting it as a juridically perfect religious society of the supernatural order, supreme and independent in its sphere((Ibid., p. 372.)).

Finally Michiels refers to the difference of opinion as to whether the Church is a collegiate or non-collegiate moral person, but he dismisses it as a mere terminological question((Ibid., p. 373.)).
A more critical appraisal of the common canonical teaching is given by d’Avack in his book((Pietro Agostino d’Avack, Corso di Diritto Canonico (Milan: Dott. A. Giuffrè – editore, 1956), Vol. I, pp. 129-162.)) and substantially repeated in his article for the Enciclopedia del Diritto. After pointing out that even for the early canonists the Church was seen as a moral person, he claims that:

From this time the juridic personality of the Church not only was not questioned but came to be an almost axiomatic principle for all canonical doctrine, which today the actual writers consider as coming as a natural and necessary attribute of its nature as societas iuridice perfecta((Pietro Agostino d’Avack, “Chiesa. I. – Chiesa cattolica, a) Diritto canonico,” Enciclopedia del Diritto (Milan: Dott. A. Giuffrè Editore, 1960), Vol. VI, p. 930.)).
. . . it is natural that the canonists do not even .raise the question of the existence of the juridical personality of the Church and that, having demonstrated its nature to be of the primary order, they retain that this follows automatically as a logical and necessary consequence “ex solo facto eius constitutionis in societatem religiosam et perfectam.”((Ibid., p. 931.))

Unfortunately, after making such a provocative observation, d’Avack does not raise the question to any extent either!
Bender, after discussing at length the nature of a moral person, states that Christ explicitly instituted a moral person by his divine authority when he founded his one and universal Church. The catholic Church, then, is a moral person consisting of all the faithful or consisting of men; therefore it is a collegiate moral person((Ludovicus Bender, Normae Generales de Personis (Rome: Desclée & Cⁱ, 1957), pp. 142-143.)). In this approach, the complication of the notion of the juridically perfect society is not explicitly introduced. He tries to anticipate the problem raised by the application of such a juridic term when he writes:

Christ, instituting the Church as a juridically perfect society at a time when societies were not considered in law as moral persons or at a time when the concept of moral person was unknown, founded the Church, which at that time was not a moral person but was by divine institution of such a nature that at the moment in which societies began to be considered in law as collegiate moral persons it began to be a moral person and indeed by divine institution((Ibid., p. 146.)).

The result of a total consideration of his views does show a certain inconsistency. The problem remains how Christ can be said to have explicitly founded the Church as a moral person.
In a recent and ample commentary Cabreros does not attempt to maintain this latter position, but goes even further than Bender:

By divine institution the “catholic Church” is a collegiate moral person, that is to say, the community of all the Christian faithful in obedience to the Roman Pontiff; the hierarchy and the people, those who rule and those who obey, the teachers and the taught, equally form the one Church instituted by Jesus Christ as a subject of rights and duties. By saying this it is not that we are affirming that Jesus Christ had present the legal concept of moral person which today we recognize in the Church; this was an unknown juridic idea then, and it would not be licit to think that the divine Founder expressly attempted to plant it in his work, when the other societies of the period were not considered as moral persons either. But what happened was that Jesus Christ endowed his Church with such a nature that, when other societies began to be recognized as collegiate moral persons, it also would be seen that precisely that which placed them in this sphere the Church possessed taken as she had been created by the Lord((Marcelino Cabreros de Anta, Arturo Alonso Lobo, and Sabino Alonso Morán, Comentarios al Código de Derecho Canónico (Biblioteca de Autores Christianos, No. 223. Madrid: La Editorial Católica, 1963), Vol. I, p. 349.)).

Analysis of commentaries. From this brief survey of representative canonical writers it is clear that the majority of earlier commentators especially saw little difficulty with the teaching that the Church is a divinely instituted moral person. For most the point must have seemed too obvious to need comment. The most common explanation offered for this teaching was to relate it to the accepted doctrine on the Church as a perfect society. Later however certain questions were raised as to in what sense all these juridical concepts could be attributed to the intentions of the Lord in constituting the Church.
An important problem to be resolved is this: is the concept of moral personality an immediate corollary of that of a juridically perfect society? And, further, in what sense can Christ be said to have instituted either? Also, there is much disagreement as to what kind of moral person the Church is: collegiate?, non-collegiate?, or, sui generis?
But, even before facing any of these questions two other points must first be clarified. Most of the comments on the canon have focused on the meaning of “by divine ordinance”; but what do the canonical writers have in mind when they speak of “moral persons” and of the “catholic Church”?

Theories of moral personality

To answer the question as to what “moral person” means involves almost as many answers as writers. Naturally it is beyond the scope of this study to attempt to make a complete presentation. The interest here is only to draw attention to the equivocalness of the term and the difficulties of its application to the supernatural reality which is the Church. For a complete study of the theory of the juridic person, prescinding from Canon Law, the reader is referred to the works of Ferrara((Francesco Ferrara, Teoria delle Persone Giuridiche (second edition. Turin: Unione Tip. – Editrice Torinese, 1923).)) and Clemens((Rene Clemens, Personnalité Morale et Personnalité Juridique (Paris: Librairie du Recueil Sirey, 1935).)). A detailed treatment of the juridic person in ecclesiastical law is found in the book of Gillet((Gillet, La Personnalité Juridique en Droit Ecclesiastique (op. cit.).)). In broad outline, he distinguishes three generic groups of theories: those based on a fiction and on rights without a subject, those of the reality of the juridic person, and individualistic theories or those of collective ownership((Ibid., pp. 183-231.)). He is of the opinion that in the code juridical capacity, in the case of moral persons, is attributed to a subject that is abstract, ideal, or an institution; the personification follows from the juridic usages((Ibid., pp. 272-279.)).

Survey of commentators. In the works of several authors a similar variety of opinions concerning the nature of the juridic person is presented. For example, Hohenlohe(( Hohenlohe, loc. cit.)), Vermeèrsch((Vermeersch, “De Persona Morali,” loc. cit.; Vermeersch and Creusen, op. cit., p. 221. )), Hanig((Hanig, “Das juridische Wesen der moralischen Personen,” loc. cit.)), Conte a Coronata((Matthaeus Conte a Coronata, Institutiones luris Canonici ad Usum Utriusque Cleri et Scholarum (fourth edition. Turin: Marietti, 1950), Vol. I, pp. 155-157; Compendium luris Canonici (op. cit.), pp. 200-201.)), and Marchesi(( Marchesi, loc. cit.)) all give many categories of theories although their divisions are not identical. Some commentators such as Santamaría((Santamaría, op. cit., p. 131. )), Haring((Haring, op. cit., p. 5.)), Ojetti((Ojetti, op. cit., pp. 407-109.)), and Chelodi((Ioannes Chelodi, Ius Canonicum de Personis (fourth edition. Revised by Pius Ciprotti. Vicenza: Editrice S.A.T., 1957), p. 166.)) find little difficulty in accepting the idea that the moral person is founded in a fiction of law. Other writers either deliberately avoid taking sides on what they consider a disputed point, e.g., Wernz and Vidal((Wernz and Vidal, op. cit., pp. 32-33.)), or give a imprecise definition that effectively avoids making a theoretical stand, e.g., Bouscaren, Ellis, and Korth(( T. Lincoln Bouscaren, Adam C. Ellis, and Francis N. Korth, Canon Law. A Text and Commentary (fourth edition. Milwaukee: The Bruce Publishing Company, 1963), p. 89.)).
A mixed theory of juridical personality is espoused by Maroto(( Maroto, op. cit., p. 538.)), Miguélez, Alonso, and Cabreros¹ and effectively by Sipos((Stephanus Sipos, Enchiridion luris Canonici (seventh edition. Revised by Ladislaus Gálos. Rome: Herder, 1960), pp. 77-80.)). The latter both reminds his reader that the subject of rights in canon law is above all the physical person and adds that the law by fiction creates a subject of rights, by attributing personality to colleges of persons or determinate things((Ibid., pp. 77-78.)).
Miguélez, Alonso, and Cabreros illustrate the problem very well:

In the case of every juridical capacity it is necessary to recognize a subject distinct from the object and purpose of this very capacity, and to find in that subject some reality to which rights and obligations reasonably can be attributed. But, on the other hand it is certain that there is always some fundamental type of fiction somehow present when rights and obligations are rooted in a subject distinct from natural or physical persons. For this reason we think that the theory of juridical personality must be mixed, in such wise that it does not exclude the reality that sustains the right nor the subjectivization of that same reality which formally, as a subject, does not exist and has to be created by the law((Miguélez, Alonso, and Cabreros, op. cit., p. 41.)).

Bender carefully distinguishes collegiate and non collegiate moral persons, and says that the non-collegiate persons are constituted by a fiction of law. He argues that, since only man has an intellectual nature which is the basis of the capacity for possessing rights, if some other being than a man is considered practically as a subject of rights this is a fiction((Bender, Normae Generales de Personis (op. cit.), p. 133; 137.)). Defining fiction, he states:

A fiction of law is a way of acting in which the legislator in order to bring about juridic effects admits some fact which is really not present and which the legislator himself well knows is not present((Ibid., p. 134.)).
A fictitious being is not declared a true subject of rights. An existing being (a church) is imagined to be a subject of rights. The true subject of rights is the community to which the church pertains. But it is useful to act as though the Church were the subject of rights. . . . The fiction is useful((Ibid., p. 137.)).

On the other hand he feels that the name of moral person is by every right given to collegiate persons. For:

. . . they are distinguished from individual men as a subject of rights in this: that they are not a physical unity but a unity of being which is constituted by the coming together of many men to attain the one and the same good as an end. There is therefore unity from the goal or the person arises from the unity of purpose, effecting all the acts. But the order of acts to an end is the moral order or the order of human activity. Therefore with reason are persons of this kind called moral persons.((Ibid., p. 140.))

Regatillo makes an interesting distinction to avoid the very problem that is the interest of this study. After defining a moral person rather generally as “a juridic entity, that is, capable of rights and duties, distinct from physical persons or individual men and groups of them,”((Regatillo, op. cit., p. 162.)) he places divinely instituted moral persons in a special category:

. . . in a person of the natural law (civil society), or of the divine positive law (the Church, the Holy See) the personality is something real given by God; in others, something pretended by the law, especially in a non-collegiate person; but as far as effects go it is something real.”((Ibid., p. 163.))

Finally, one may consider the new commentary by Cabreros. He observes that the subject of rights is only man; however homogeneous groups composed of a multiplicity of human individuals may also be considered a subject since the root and foundation for the juridic capacity continues to be the human element taken collectively. Other realities that do not have a rational nature and that are integrated by “things” are considered subjects of rights only by a phenomenon of positive law; these moral persons are a creation of law in virtue of a juridic fiction.((Cabreros, Alonso, and Alonso, op. cit., p. 341. )) As does Bender, he gives the illustration of the Church considered as a subject of rights and duties, although the subject properly is the community or people for whose service it was constructed; it is considered “as if it were what it really is not.”((Ibid., p. 342.))
After speaking of the need in the natural order for institutions transcending the capacities of individuals singularly considered, Cabreros refers to the necessity of a supernatural moral person.

In the supernatural order, man is also obliged to live in the society which Christ founded on earth, the Church, if he wishes to see his religious social exigencies satisfied. But the Church, as the perfect society that it is, also experiences some religious needs that exceed individual interests and also the capacity of each Christian taken alone but which must not be left unattended under penalty of making its existence on earth fruitless.((Ibid., pp. 342-343.))

Analysis of commentaries. It is hardly possible to resolve such a controverted matter as the nature of juridic personality. However it is interesting to note how some authors confront the problem of the Church as a moral person. As was mentioned in the previous section, Lammeyer considers the Church as a moral person “sui generis.” Regatillo is forced to appeal to a separate category of moral persons of the divine positive law. Even Cabreros who speaks so convincingly of the human person as the foundation of moral personality seems somewhat to shift ground when speaking of the Church.
The problem is this: if one holds to a theory of legal fiction, how can the Church be said to be divinely instituted as a moral person? Is there some fictitious element in the Church as founded by Christ? This difficulty is even greater if one says that the Church is a non-collegiate moral person, for most authors agree that this concept clearly necessitates a fiction of law. And finally, if the Church may be considered as a mystical person, the Body of Christ, does one attempt to distort reality by accomodating it to a legal category that inevitably involves some measure of fiction? Again, to adequately respond to these difficulties a further question must be first raised: what does one mean by the expression, “catholic Church,” of which this moral personality is predicated?

Concepts of the Church

The limits of a discussion of the nature of the Church must be carefully indicated, for otherwise it would be interminable! Here the concern will be to see what is the starting point for canonical writers in referring to the Church, and what are the principle juridic concepts of it.

Survey of commentators. Saint Robert Bellarmine, in his De Controversiis Christ. fidei, Book III, “De Ecciesia militante,” chapter 2, defined the Church as “the body of men united by the profession of the same Christian faith and by the communion of the same sacraments under the role of legitimate pastors and especially of the one vicar of Christ on earth, the Roman Pontiff.” It is interesting to note how many authors begin their treatment by citing or repeating this as the basic theological definition of the Church. It is mentioned by Hilling((Hilling, op. cit., p. 2.)), Munerati((Munerati, op. cit., p. 37.)), Jemolo², Falco((Mario Falco, Corso di Diritto Ecclesiastico (second edition. Padua: Casa Editrice Dott. Antonio Milani, 1953), Vol. I, p. 65.)), Conte a Coronata((Conte a Coronata, Ius Publicum Ecclesiasticum (op. cit.), pp. 48-69. )), Pistocchi((Marius Pistocchi, Lexicon Juridico-canonicum (Turin: Roberto Berruti & C., 1934), p. 60.)), Zanobini((Guido Zanobini, Corso di Diritto Ecclesiastico (second edition. Pisa: Vallerini Editore, 1936), pp. 85-86.)), del Giudice((Vincenzo del Giudice, Nozioni di Diritto Canonico (tenth edition. Milan: Dott. A. Giuffrè – editore, 1953), p. 37; Corso di Diritto Ecclesiastico (op. cit.), p. 25.)), de Lamadrid((R. S. de Lamadrid, El Derecho Público de la Iglesia Católica (Granada: Facultad Teológica S. I., 1940), pp. 31-35.)), the article, “Chiesa,” in the Enciclopedia Cattolica³, Jannaccone((Jannaccone, op. cit., p. 463.)), Beste((Udalricus Beste, Introductio in Codicem (fourth edition. Naples: M. d’Auria Editore Pontificio, 1956), p. 42.)), Ottaviani((Alaphridus Ottaviani, Institutiones Iuris Publici Ecclesiastici (fourth edition. Revised by Iosephus Damizia. Vatican City: Typis Polyglottis Vaticanis, 1958), Vol. I, p. 141.)), Fedele((Fedele, op. cit., pp. 77-78.)), and Ferrante((Josephus Ferrante, Summa Juris Constitutionalis Ecclesiae (Rome: Officium Libri Catholici, 1964), pp. 101-134.)), and many of them develop their entire treatment of the Church from it.
The most frequently presented juridical doctrine on the Church is that of the juridically perfect society, founded by Christ, supreme and independent of all civil authority. In the usual exposition of this view, a philosophical analysis of society is made and the concepts of society, perfect society, and juridically perfect society are elaborated. Then it is shown that Christ, in founding the Church, instituted a society which is is seen to be juridic and perfect, supreme and independent. With minor variations it is the position expounded by De Meester((De Meester, loc. cit.)), Munerati((Munerati, op. cit., pp. 37-41.)), Conte a Coronata((Conte a Coronata, lus Publicum Ecclesiasticum (op. cit.), pp. 48-69.)), Romani((Romani, Institutiones Juris Canonici (op. cit.), pp. 22-25.)), Bender((Ludovicus Bender, Ius Publicum Ecclesiasticum (Bussom: Paulus Brand, 1948), pp. 34-55.)), Hamilton((Hamilton, op. cit., pp. 101-102.)), Jannaccone((Jannaccone, op. cit., p. 475.)), Beste((Beste, op. cit., p. 43.)), Chelodi((Chelodi, op. cit., pp. 23-28.)), Ottaviani((Ottaviani, op. cit., pp. 141-168.)), Sotillo((Laurentius R. Sotillo, Compendium Iuris Publici Ecclesiastici (third edition. Revised by Eduardus F. Regatillo. Santander: Editorial Sal Terrae, 1958), pp. 71-83.)), Marchesi((Franciscus Marchesi, Summula Iuris Publici Ecclesiastici (second edition. Naples: M. d’Auria, 1960), pp. 45-64.)), Fedele((Fedele, op. cit., pp. 106-112.)), Ferrante((Ferrante, loc. cit.)), and Lattanzi.((H. Lattanzi, “Ecclesia (societas),” Dictionarium Morale et Canonicum (Rome: Officium Libri Catholici, 1965). pp. 216-221. ))
Del Giudice presents a legal definition of the Church in an entirely different vocabulary. For him the Church seen in its fulness presents the juridic figure of “a non-territorial institutional corporation, provided with originary sovereignty and subjective capacity, both public and private.”((del Giudice, Istituzioni di Diritto Canonico (op. cit.), pp. 30-32; Corso di Diritto Ecclesiastico (op. cit.), pp. 27-28; Nozioni di Diritto Canonico (op. cit.), p. 42.))
A final note is emphasized by Ciprotti((Pio Ciprotti, Le Leggi della Chiesa (Brescia: Morcelliana, 1961).)) and Fedele((Fedele, op. cit., pp. 95-98.)), that the Church is a necessary society.

Analysis of commentaries. The principal question that presents itself here is this: are the majority of writers in the field of public ecclesiastical law giving juridical analyses of the Church or analyses of the juridical structure of the Church. Even the definition of Saint Robert Bellarmine, so long considered theological, now in the light of the recent teaching of the magisterium seems ever more a juridical one to start with. In the interpretation of canon 100, § 1, is one dealing with the concept of the Church in a theological or a juridical sense, or is such a separation even possible? This question can be answered only by a careful study of the way the Code of Canon Law speaks of the Church.

II.
CANON 100, § 1, CONSIDERED IN
THE CONTEXT OF THE CODE

There is a certain arbitrariness to any human law. A law states only what it says. Perhaps the final phrasing of it does not even precisely realize what the legislator wished to say. But, at any rate, the law is the written, promulgated word – not previous intentions or posterior commentary. So the first and primary source of the meaning of a law is the proper understanding of its text and context. Even in this there is a certain elusiveness, for the understanding and meaning of words change. So long as the law is maintained by authority it must be presumed to be understood according to its contemporary meaning, even if this is considerably different from the meaning it had at the time of its promulgation. There is no doubt but that the approach to the law of the code today must be different from that of almost a half-century ago; and it is clear that the understanding of many of its terms has developed and changed. Since it is the law of the Church today, then it must be interpreted with the mentality of today as well.

The Meaning of the Words of the Phrase
in the Text and Proximate Context

At first reading, the introductory statement of canon 100 seems obvious enough. It speaks first of the “catholic Church.” Although the word, “Church,” appears only a few times in the whole code qualified by the adjective “catholic,” the meaning appears clear. “Catholic” etymologically signifies “universal,” and the expression, “catholic Church,” is a common one to designate the whole Church, the Roman Catholic Church, or that church under the Roman Pontiff. In this usage it is distinguished from other churches such as the Orthodox, the Anglican, or the various groups of Protestants. However in common speech it can bear also a somewhat less specified meaning as the universal Church of Christ, as is affirmed, for example, in the Apostles’ Creed. In the immediate context, that is, in the rest of the canon and in the preceding canon, the word, “Church,” occurs two more times, but without the adjective. In both cases it has a somewhat more juridic reference.
The proper juridic meaning of the expression, “catholic Church,” is a more difficult matter. Actually it is hardly a juridic term at all. The word, “church,” alone unquestionably has a legal sense, in fact a variety of such meanings. It is used frequently and in many ways throughout the code.
“Moral person” is of course here used in a strictly juridic way; its common usage as a person of virtuous life is meaningless in this context. However these four canons treating moral persons apparently deliberately avoid defining the term; and as was seen it is one with a long and varied history and still mooted among canonists. As a predicate applied to the catholic Church, it causes a further problem of interpretation of the meaning of “catholic Church” in the canon; for neither of the common usages of the name can easily be accomodated to the notion of moral person in any of its senses.
Finally, the expression, “by divine ordinance,” seems to be an easily enough understandable reference to the divine will as commanding or constituting something. But, considering the problem of understanding how the Church is a moral person, one’s difficulties are only compounded by this note of authority.
The other three canons on moral persons are of little value to interpret the phrase under discussion. As a matter of fact the phrase itself seems almost out of context. Without it, the section would be a concise exposition of the types of moral persons in the Church, their constitution, competence, acts, and duration.

The Use of the Words in Other Places in the Code

Since the Code of Canon Law is a coherent body of legislation, promulgated all at one time, it is justifiable to seek the meaning of certain expressions by studying their total use throughout the entire code. In fact, this would seem to be the only scientific way of establishing their exact meaning. Here three critical terms of the canon will be especially investigated: “church,” “moral person,” and “divine ordinance.”

“Church”

The word, “church,” occurs 751 times in the code as it was first promulgated.((For a complete listing of each place where the word occurs, divided by case and grammatical usage, cf.: Arcturus Lauer, Index Verborum Codicis luris Canonici (Vatican City: Typis Polyglottis Vaticanis, 1941).)) If one regards the abrogation of a part of canon 1099, § 2 2((Pius PP. XII, “Motu Proprio. Abrogatur alterum comma paragraphi secundae can. 1099,” Acta Apostolicae Sedis, XL (1948), pp. 305-306.)), then it is used 750 times all together. This is considering it in every form it appears: in the canons themselves and in the titles, and printed in lower-case, capitalized, and abbreviated by the first letter standing alone, printed in upper-case.
An analysis of usage of the word is a somewhat more complex matter. Although at first reading two or three meanings stand out clearly, a detailed examination reveals several more categories. Frequently the reader is certain of the meaning of a canon where the word appears; however if one prescinds from this total knowledge and considers only the word itself there often is no little ambiguity in its usage.
In making an analysis of usage one’s basic presuppositions must be clear enough. Not that they should be arbitrary; they should be an understanding of the concept, “church,” according to its development, common usage, and biblical and theological background. The earliest meaning of the word in Greek was to designate the assembly of Christians. St. Paul saw the Church as the mystical Body of Christ. The word came to designate the multitude of individual communities of the faithful taken all together as well. In an other way, “church” came to be used as a designation for the place of assembly of the community.((Auguste Dumas, “Personnes Morales,” Dictionnaire de Droit Canonique (Paris: Librairie Letouzey et Ané, 1957), Vol. VI, cols. 1363-1367.)) Later, in juridical terminology, it was used to designate the physical place of worship considered as an institution, and even territorial divisions of the whole Church also considered with a certain juridic capacity. In this study then, the first meaning to be sought for the word will be that related to an assembly or community of persons; second, that referring to the physical building; and third, those meanings of a more juridical nature, based on the first two categories or even more specialized. And always there is the fullest meaning of all to be considered, the Church in its fullest theological sense as a supernatural mystery.((A similar attempt at a classification of meanings is found in Rudolf Köstler, Wörterbuch zum Codex luris Canonici (Munich: Verlag Josef Kösel & Friedrich Pustet, 1927), pp. 133-135. In this dictionary of usage, Köstler establishes four basic categories of meaning with certain subdivisions. In all, he gives seven fundamental usages for the word, “church.” Many illustrations of different phrases are given, but the treatment is hardly exhaustive. In the judgment of the author, Köstler’s divisions are not adequate or complete; they are not followed in this study of usage.))

“Church” as a word in the vocabulary of the code. In two places in the code a definition of the meaning of “church” is given. Naturally, in both instances, in canon 1161 and canon 1498, the expression, the name, church,” is used. And, clearly enough, the usage here is simply that of a word of the vocabulary of the code divorced from all particular meaning.

“Church” as the local (diocesan) community of the faithful. In those instances where the word, “church,” refers to some part of the entire Christian community, the presupposition is that unless otherwise indicated the community first to be thought of is that local community gathered about the bishop which is the basis of our juridic notion of diocese. In this sense, the word is used 43 times, in the canons and title that follow:

In these references the most frequent usage is in the expression, “the Holy Roman Church.” This traditional designation, most often in a context speaking about cardinals, clearly refers to the diocesan community gathered about the bishop of Rome. In one instance in the canons cited reference is made to abbatial or prelatial churches in the cases of an abbey or prelature “nullius”; analogously to the case of the diocese, what is indicated is the community of the faithful constituting the abbey or prelature “nullius.” Finally in one reference the service of the diocesan priest is alluded to, and surely the service must be thought of as being rendered to the people, not to an abstraction.

“Church” as the parochial community of the faithful. The use of “church” as a designation for a sub-community in the diocese is not the traditional one, but in two instances this interpretation is unavoidable. In canon 478, § 1, the parish whose church is the cathedral must be meant, and in canon 969, § 1, the reference to the churches of the diocese necessarily implies more than the physical buildings of the moral persons.

“Church” as a rite. Although the word, “rite,” like the word, “church,” has a great variety of meanings, its primary reference is to a group of local churches with common and particular ties of history, language, customs, and liturgy. So, unless otherwise indicated, its meaning in the code is presumed to be that of the larger community of the faithful composed of all the local churches of the rite. In this sense, it is used four times in the code, in canons 1; 253, §1 and § 2; and 788. In each instance the Latin Church is referred to.

“Church” as the totality of the non-Latin rites. In six places in the code the expression, “Eastern Church,” is used:

Although the thought is naturally of the Eastern rites, the use of the word in the singular implies a united community in contradistinction to the community of the Western Church. Although in fact the non-Latin rites are various, the word, “church,” here must be given the sense of the totality of the diverse Eastern rites taken together. It may be noted that most of these references are to the name of the relevant Roman congregation.

“Church” as the total or universal community of the faithful. Again, according to the basic presupposition of this analysis, when references to the universal Church are encountered, the attempt is to see them first as references to the universal community of the faithful or the totality of all local churches of all rites. If a more juridical concept is implied, of course the usage does not fall into this category. Accordingly, 28 instances of “church” in this sense are given (27 if the abrogation previously mentioned is regarded):

In all these cases the universal community is indicated either because the universal Church is explicitly referred to or because the sense of the canon demands that it be understood.

“Church” as an undetermined community of the faithful. There is a group of canons in the code that refer to the “service of the church,” the “utility of the church,” the “good of the church,” and other similar expressions. In these cases it seems easy enough to understand that the reference is a primary one to the community of the faithful and not to some juridic person; however the object is not specified. In each of the 19 instances, more than one possibility exists: for example, the parish, the diocese, or the universal Church. It seems suitable then to categorize them as referring to a community, but without specifying its nature. The canons are the following:

“Church” as the edifice used for public worship. Even in very early times, the word, “church,” gradually  came to be used not only for the assembly of  the faithful but also for the physical place of worship, the  sacred edifice. In this second basic category of meaning the word is used     very often in the code; in fact it is used more than in any other sense, occurring 377 times:           

Most of these instances are very clear; in some cases at first reading some questions may present themselves, but grammatically the usage is always the same. The following observations should be noted:
In speaking of the “fabric of the church,” although the expression has reference to a non-collegiate moral person, the word, “church,” itself refers to the physical building.
Often the “chapter of the church,” the “canons of the church,” or the “dignitaries of the church” are mentioned. Here the building is meant; the persons mentioned are not the property of the “church” but are identified in reference to it.
In some cases the dignity of a church is spoken of. Clearly, the attribute of dignity is that of a person; but here one has a simple case of metaphorical usage in the personification of the church and not an instance where the church is thought of strictly as a juridic person.
Likewise, references to the “title of the church” do not necessitate a strict concept of moral person.
A troublesome and frequent expression is that referring to the erection of associations, societies, or the Way of the Cross, “in the church.” It may be suggested that one is confronted here with an inexact Latin usage. The sense is that these organizations or things are identified with a physical place; to conceptualize the church as a subject of juridic capacity hardly helps for clarity and is not necessary. The same may be said in regard to references concerning the existence of these bodies “in the church.”

“Church” as the edifice considered as a non-collegiate moral person. In addition to the usages of the word, “church,” for the community of the faithful and for the sacred place of their assembly, there is a third category, of juridic usage, as well. Frequently the “church” in its varied meanings is considered as a subject of rights and obligations like a person; in other words it is attributed juridic capacity and is thought of as juridic or moral person.
Of the different types of juridic persons designated in the code by “church” the most common by far is that non-collegiate moral person based on the particular physical edifice. In other words the church building is thought of in a broader way as a juridical subject. This of course is not the same concept as that of a parish. In that usage the word occurs in the code 138 times, as follows:

It may be observed that a common instance is when the church is considered as having certain rights or obligated to certain duties.
Whenever the expression, “rector of a church,” is used, the word, “church,” is understood as referring to a moral person. The concept of rector implies that of an administrator and custodian; in turn this implies not just a building but the building and other assets considered as a legal subject.
There are some instances where the church is spoken of as being “vacant”; here the very similarity of language shows that the church is being thought of as a benefice or non-collegiate person.
Finally, some canons refer to priests attached to a church. Clearly, they are attached to a juridic entity not a physical one!
It should be noted that canon 1498 refers to the usage of the word, “church,” in the following canons (through canon 1551) as referring to an moral person in the Church unless the context or nature of the case indicates otherwise; this is naturally considered in establishing this and the following categories.

“Church” as the diocese considered as a moral person. In just two places in the code is the word, “church,” used to refer to the diocese as a moral person. In regard to canon 1495, § 2, there exists a particular reply of the Pontifical Commission for the Authentic Interpretation of the Code indicating that “church” there should be understood primarily of dioceses((Cited in: T. Lincoln Bouscaren and James I. O’Connor, The Canon Law Digest (Milwaukee: The Bruce Publishing Company, 1958), Vol. IV, p. 391.)). In canon 2345 the meaning is very clear.

“Church” as the episcopal office. Not only can the diocese be considered as a moral person, but the episcopal office as well. Bearing this latter sense, the word, “church,” is used in the following five canons:

In these few instances the reference is to that to which the bishop is promoted when he takes over his diocese, that to which further duties are attached, or that which is “vacant” by the absence of a bishop. Clearly this cannot be a community of persons or even the diocese in its juridical conception, but the very office of bishop.

“Church” as undetermined ecclesiastical authority. In 55 places the code refers to the “church” in such a way that only certain members of the Church can be meant, those who share in some hierarchical role and have authority in the Christian community. Almost always this authority is unidentified. Expressions speaking of the Church approving, condemning, and the like surely refer to acts of authorities in the Church; in short, wherever a strictly personal human act is indicated there must be some human subject. The instances of such usage are the following:

“Church” as ecclesiastical authority in the Latin rite. In canon 2 there is found a unique usage of the word, “church,” to indicate indeterminately ecclesiastical authority, but in the Latin Church.

“Church” as the universal community of the faithful considered as a moral person. There are two places in the code where, perforce the universal Church must be considered as a moral person. In both canon 1495, § 1, and canon 1497, § 1, it is referred to as having the right to acquire, retain, and administer temporal goods; therefore it must be thought of as a juridic subject. In the former instance the content demands that the entire Church be thought of; in the latter, the universal Church is explicitly mentioned.

“Church” as an undetermined moral person. In not a few sections of the code when “church” is mentioned the language is such as to indicate some moral person and not just a community of persons in their plurality. But, the moral person is in no way specified; one might consider the references to a particular physical church, a parish, a diocese, or many of the diverse juridical persons to be encountered in ecclesiastical law. For example, some canons speak in general terms of “vacant” churches, of the possession of property by a church, of administration “in the name of the church,” and of the church’s right of action to defend temporal goods and even allude to material or monetary advantage of the church. There are 22 examples of this usage, as listed below:

“Church” as the juridic society of all the faithful. This and the following category of this analysis are perhaps the most elusive of all. Here the Church is thought of not simply as the community of the faithful nor as that community considered as a moral person. Rather it is taken as referring to the juridical society that exists among the faithful, which is somewhat of a specification of the notion of the community of the faithful. The notion of “community of the faithful” refers to the union of persons with supernatural faith who form an ecclesial community; the notion of “the juridical society of the faithful” refers to the visible and social structure of that community.
In six instances, the canons of the code apparently refer to such a juridic society as embracing the whole Church; for in each case both the universal Church and a juridic frame of reference are called for. The canons are these:

“Church” as an undetermined juridic society of the faithful. Far more frequently, however, this usage of the word, “church,” as a juridical society of the faithful is not specified or determined. In such cases it may refer to the universal society of the faithful as in the above-mentioned category or to some smaller division of this society, for example, the diocese. There are 32 such indeterminate references, as follows:

“Church” in its fullness as a supernatural mystery. There are six places in the code where usage demands a theological understanding of the word, “church.” In each case any of the notions of community, of juridic society, or of juridic personality are not adequate to give meaning to the canon. In these instances the supernatural end of the Church, the supernatural goods in its possession, or the need to embrace it for salvation are referred to. For the purpose of this analysis it suffices to indicate the supernatural element as integral to the concept in these references; a thorough definition is a matter for ecclesiology. The canons using “church” in this way are:

Summary. After an analysis of the use of the word, “church,” throughout the Code of Canon Law apart from the use in the section of canon 100 that is the object of this study, it is seen that there are 18 categories of meaning. At this point, one cannot yet conclude to its proper sense in canon 100, § 1, but it is clear that it is a very ambiguous term. If nothing else, this conclusion should prompt a re-examination of the problem of the canon. Perhaps the difficulty is not so much with the application of the juridic concept of moral personality to the Church as with determining what is meant by “Church” when it is said to be a divinely established moral person.

“Moral Person”

Throughout the code the most frequently used term for a juridic person is that of “moral person.” However a detailed analysis of its use is of little value to this study.((Cf. Lauer, op. cit.)) The code in no place offers a definition of the expression. Since it is a strictly juridical category, one can be guided only by juridical writers and authorities in determining its meaning. As was pointed out in the previous chapter, there are many theories concerning moral persons; common to all writers would be at least the idea that a moral person is a juridic entity, subject to rights and duties.

“Divine ordinance”

There are several “dogmatic” canons in the code; that is to say, canons that assert some fact as the will of God in so many words. For example, canon 107, concerning the distinction between clergy and laity; canon 108, concerning the hierarchy of orders and jurisdiction; canon 196, concerning the power of jurisdiction; canon 329, concerning the bishop as the head of his diocese; canon 731, concerning the institution of the sacraments by Christ; and canon 948, concerning orders.
A variety of expressions is used in these and other canons: “by divine institution,” “by divine right,” “by the institution of Christ,” “by divine law,” and so forth. The form that interests us is hardly found in all((Cf. Lauer, op. cit.)), although its sense is basically the same as that of the others. It is not really a technical juridic expression, and its meaning is that commonly understood. It refers to the will of God ordering or ordaining that a thing be done. Considering the way such expressions are used in the code, one cannot say that it necessarily refers to an explicit divine ordinance. This gives a certain leeway in the interpretation of the canon being studied.

Parallel Places in the Code

Properly speaking a parallel place refers to another canon that makes the same law for the same matter. In this sense there are no parallels for canon 100, § 1. However there are some canons that are clearly related to it, and this is betrayed by their content and terminology.
Canon 1322, § 2, asserts that the Church, independently of any civil power, has the right and duty of teaching all people evangelical doctrine. Canon 2214, § 1, asserts that the Church has the native and proper right of coercive power independent of any human authority. Canon 1352 states that the Church has the proper and exclusive right to educate its ministers. Canon 1496 claims the right of taxing the faithful for the Church independently of civil authority. Canon 1206, § 1, states the right of the Church to possess its own cemeteries. Canon 1375 states the right of the Church to establish its own schools. And, perhaps the most pertinent of all, canon 1495, § 1, asserts the native right of the catholic Church and the Apostolic See to acquire, retain, and administer temporal goods freely and independently of civil authority.
All these canons asserting basic rights of the Church are very much related to canon 100 in this: canon 100 asserts the divinely established juridic capacity of the universal Church and in turn the power of the universal Church to endow institutions in it with juridic capacity as well. In other words, all the rights of the Church, taken as universal, particular, or in any other sense, have a divine foundation and hence are independent of any civil or other human authority. It is really canon 1495 that is the immediate application of canon 100. The latter asserts the general juridic personality of the catholic Church the former its right to property. As Jemolo observes:

. . . the Church affirms that it has a juridic personality ex ipsa divina ordinatione but this juridic personality is claimed above all else for the purpose of assuring that in no case goods or interests pertinent to ecclesiastical ends remain without title. But in fact it would be difficult to find goods that belong to the [whole] Church as a moral person.((Arturo Carlo Jemolo, Lezioni di Diritto Ecclesiastico (third edition. Milan: Dott. A. Giuffrè – editore, 1958), p. 212.))

At any rate, whether the universal Church own goods or not, canon 1495 does assert its right to do so. As was seen in the previous section of this chapter, “catholic Church” as here used is one of the two instances where the term bears the meaning of the universal community of the faithful considered as a moral person. Does this help to interpret canon 100, § 1, or does it give only a tautology if it is applied? The conclusion would seem to be that the meaning in canon 1495, § 1, is derived from what is asserted in canon 100, § 1. The meaning of the words to which moral personality are predicated in this latter canon are still not certain.

Supplement: The Oriental Code

Since the sections of the code for the Eastern Churches all have been published after the code for the Latin Church, they cannot in any way be used as a standard of interpretation for the latter. Nevertheless, there is a certain value in observing their concordance or lack of it with the Latin code. At least in this way one has some slight indication of the mind of the same legislator. In the section on Persons, canon 28, § 1, begins: “The catholic Church and the Apostolic See have the nature of a moral person by divine ordinance; . . .”((Pius PP. XII, “Litterae Apostolicae Motu Proprio Datae. Dc ritibus orientalibus. De personis pro ecclesiis orientalibus,” Acta Apostolicae Sedis, XLIX (1957), p. 444:
“Can. 28, § 1. Catholica Ecciesia et Apostolica Sedes moralis personae rationem habent ex ipsa ordinatione divina; . . .”;
“Can. 28 – Pius IX, ep. encycl., Quanta cura, 8 dec. 1864; Leo XIII, ep. encycl., Immortale Dei, 1 nov. 1885; ep. ap., Praeclara, 20 jun. 1894; ep. encycl., Satis cognitum, 29 jun. 1896; D. 47, 22, 4; 50, 16, 85.”)) One is faced with an identical statement. Perhaps the only noteworthy difference is that less source references are given then in the Latin code.

III.
THE IMMEDIATE SOURCES
OF CANON 100, § 1

Complete published versions of the Code of Canon Law always include an annotation of the sources of the canons as well as a clear indication that these are the work of Cardinal Gasparri. This emphasis is to remind the reader that the law itself is distinguished from these scholarly observations on the part of its principal framer. Nevertheless, though they are in a secondary position, these footnotes are of great value in discovering the background for the law.
The sources of a law is a very broad concept indeed. The roots of a particular piece of legislation may go back beyond the period of the earliest ecclesiastical canonists to the apostolic Church, the Roman civil law, or even the old testament legal observances themselves. However when the codification of church laws was made under Pope Saint Pius X, the assertions of the code were proximately drawn in most cases from some previously existing legislation or authoritative documents. It is these sources that are referred to in the above mentioned annotations.
The code states in canon 6 that the old law is to be relied on for the interpretation of the new in those cases where the new law is in accordance with the old. By this norm then the documents cited in the annotations as sources from which the law is drawn or to which it has reference should be of some value to interpret its meaning. In this part of the study the sources of canon 100 will be examined in detail in the hope that they will shed some light on the problems of its interpretation.
Although the preparatory drafts of a law are not laws themselves, they still are of some value to understand the pattern of growth of the wording of the law. Sometimes they offer some highly interesting hints and clues as to the thinking behind the law. They can be, as it were, a type of circumstantial evidence or of subsidiary probative value in demonstrating the intentions of the legislator. So, after the study of the sources of the canon, a brief survey will be made of the schemata for canon 100 and their annotations.

The Sources Annotated in the Code

There are 17 documents listed in reference to canon 100, § 1, in the footnotes of the code. One striking fact is this, that the earliest document of them all is an allocution of Pope Pius IX published in 1854. Compared to other canons, then, the one that is under study is given a relatively short pedigree! The documents are those of three popes, Pius IX, Leo XIII, and Saint Pius X, as well as a decree of the Holy Office given under the latter pope.
All of these documents were issued within a short period of 54 years and a time of great upset for the Church in Rome. Before considering the documents themselves, perhaps a glance at the history of the period may prove to be of value.

The historical context of these documents

Italy from the middle of the nineteenth century was a scene of great turmoil. This was the time of the aftermath of Mazzini’s Republic at Rome, when Garibaldi usurped the Quirinal, and when continental liberalism seemed to challenge the Church itself. Under Pius IX the papacy had to confront the upsurgence of Italian nationalism, the very invasion of the Papal States by Cavour, and ultimately the collapse of the temporal authority of the Popes and the beginning of the period of the “prisoner of the Vatican.”
Not only was the situation in the Italian penninsula critical, but in Northern Europe too the liberal governments slowly but surely encroached upon the traditional rights of the Church. When one reads the words of Pius IX it is clear that they are of a strong, polemical nature. These theories of the social nature and authority of the Church that are proclaimed by Pius IX and elaborately developed by Leo XIII are not just doctrinal expositions; they are defenses, especially against civil authorities ever more prompt to subordinate the Church to their political ends.
In these days when the Church is substantially removed from the political sphere in most parts of the world it is difficult to share the mentality of the last century. Just as the pope himself reacted to the invasions and later confiscation of the Papal States as an attack upon the Church, so were civil authorities also to confuse the Church as a supernatural society and as a temporal and territorial power. In turn, led by a desire for asserting their political and social rights, they began to encroach upon the sphere of the spiritual.
How understandable then is the argumentative and defensive tone of so many of these papal statements. One can sympathize with the anguish and fears of the pope, but one must be fully aware of the polemical nature of these discourses and writings as well. There is no less respect for the magisterium of the Church in being aware of political preoccupations on the part of the pope and a certain confusion of the spheres of the supernatural and civil societies. Against this background the source documents of canon 100, § 1, must be examined and weighed.

The sources individually considered

The documentary sources for canon 100 § 1 consist of three allocutions four letters and the Syllabus of Errors of Pius IX, one allocution and six letters of Leo XIII; one letter of Saint Pius X and one decree from the Holy Office. The interest shown here will be only in regard to those sections that have some bearing on the canon under study.

Documents of Pius IX. The earliest reference in the annotations to canon 100, § 1, is to an allocution of Pius IX given in consistory the day after the definition of the dogma of the Immaculate Conception. The pope was very much upset by political events and a kind of rationalist liberalism and admonished the bishops present concerning prevalent modern errors. Touching on the problem of the encroachment of civil authority in the spiritual sphere, he stated:

There are many men of civil authority who call themselves men of religion and favorable to it; they extoll religion and preach its value and utility to human society; but nevertheless they want to regulate its discipline, control its ministers, manage its sacred affairs; in a word, they attempt to force the Church within the limits of the civil state and to dominate it; but the Church is sui iuris and by the divine will not to be confined within the limits of any empire but to be propagated to the ends of the earth, embracing all peoples and nations and showing them the way to eternal happiness.((Pius PP. IX, “allocut. Singulari quadam, 9 dec. 1854,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Rome: Typis Polyglottis Vaticanis, 1928), Vol. II, pp. 892-893.))

The next document is one published not quite six years later. In it the pope indignantly denounced the machinations of the “Subalpine Government” and their fomenting and aiding of rebellion within the Papal States. Branding them as attacking the Apostolic See and the universal Church, he severely condemned and anathematized all in any way implicated in these plots and rebellions. In the apostolic letter he strongly vindicates the temporal authority of the popes over the states of central Italy; the document begins as follows:

Since the Catholic Church, founded and established by Christ the Lord for the achieving of the eternal salvation of men, received the form of a perfect society by the strength of his divine institution, it therefore must enjoy that liberty that in the undertaking of its sacred ministry it be not subject to any civil power.((Pius PP. IX, “litt. ap. Cum Catholica Ecclesia, 26 mart. 1860,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Rome: Typis Polyglottis Vaticanis, 1928), Vol. II, p. 933.))

The second allocution cited, dating from the end of that same year, shows the pope bewailing the so many evils afflicting the whole Church: the violation of concordats, the invasions of central Italy, the dispossession of bishops in Umbria and the Kingdom of Naples, the intrusion of Protestantism, a general contempt for ecclesiastical authority, and even the introduction of civil divorce. Finally he appeals for the church persecuted in Korea, China, and Syria. Toward the beginning of the address, speaking of violations of concordats, the pope refers to a law against the liberty of the Church:

We understand that this derives from the false doctrines of the Protestants who hold that the Church should exist as some kind of college in the civil Empire and should enjoy only those rights that are conceded and given to it by civil authority. Who cannot see how far this is from the truth? For the Church was instituted as a true and perfect society by its divine author; it has no territorial boundaries, it is subject to no civil imperium, and it freely exercises its power and its rights all over the world for the salvation of men.((Pius PP. IX, “allocut. Multis gravibusque, 17 dec. 1860,” Codicis luris Canonici Fontes (edited by Petrus Card. Gasparri. Rome Typis Polyglottis Vaticanis, 1928), Vol. II, p. 937.))

In 1862 the pope again chose to criticize the so many modern errors, especially those attacking the rights of the Church and divine revelation proper, even the very existence of Christ. In the fourth document cited, an allocution, Pius bewails the destruction and harm done to the Church, bishops, clergy, and religious in Italy, and he exhorts the bishops to alert their people and to assist with their prayers Speaking of the violation of the rights of the Church, the pope says:

None of you, Venerable Brothers, is ignorant of the fact that that necessary coherence which exists by the will of God between both the order of nature and that which is above nature is completely destroyed by men of this kind; the proper, true, and real nature and authority of divine revelation and the constitution and power of the Church is completely changed, subverted, and extinguished by them. And they have the temerity to go so far with their opinions as not even to hesitate to deny all truth and all law, power, and right of divine origin. They are not even ashamed to assert that philosophy, science, and civil laws as well can and ought to be separate from divine revelation and the authority of the Church, and that the Church is not an entirely free, true, and perfect society nor does it enjoy its proper and constant rights conferred upon it by its divine Founder, but that it is for the civil power to define what the rights of the Church are and the limits within which they may be exercised.((Pius PP. IX, “allocut. Maxima quidem, 9 iun. 1862,” Codicis luris Canonici Fontes (edited by Petrus Card. Gasparri. Rome: Typis Polyglottis Vaticanis, 1928), Vol. II, p. 962.))

The fifth source document, two years later than the previous, is an encyclical reviewing and condemning modern errors, again drawing attention to what was voiced in previous allocutions and an anterior encyclical. The pope exhorts prayers for the entire Church and announces the granting of a plenary indulgence “ad instar Iubilaei” for the whole year 1865. In the context of reproving these errors is found the following passage:

These false and perverse opinions are even more detestable because they would impede and do away with that salvific power which the Catholic Church by the institution and mandate of its divine Author must freely exercise till the end of time towards individual men as well as nations, peoples, and their rulers, and they would do away with that mutual society and harmony between the Sacerdotium and the Imperium which has been always so beneficial and useful to the sacred and civil good.((Pius PP. IX, “ep. encycl. Quanta cura, 8 dec. 1964,” Codicis Juris Canonici Fontes (edited by Petrus Card. Gasparri. Rome: Typis Polyglottis Vaticanis, 1928), Vol. II, p. 994.))

The sixth source mentioned is a section of the Syllabus of Errors, published the same year and containing “the principle errors of our age which are noted in the consistorial allocutions and in the encyclicals and other apostolic letters of Our Most Holy Lord Pope Pius IX.”((Pius PP. IX, “Syllabus errorum (a. 1864),” (op. cit.), p. 1000.)) In the section concerned with errors about the Church and its rights is found the following:

19. The Church is not an entirely free, true, and perfect society, nor does it enjoy its proper and constant rights conferred upon it by its divine founder, but it is for the civil power to define what are the rights of the Church and the limits within which these rights may be exercised.
Allocution Singulari quadam, 9 December 1854
Allocution Multis gravibusque, 17 December 1860
Allocution Maxima quidem, 9 June 1862.((Ibid., p. 1002.))

When the new Italian government had taken possession of Central Italy the troubles of the Church were still far from over. Pope Pius was forced to protest the confiscation of papal buildings in Rome itself as well as the violation of his rights and interference with his own liberty of spiritual ministry. In an encyclical treating these matters the pope also condemned the persecutions of the Church in Switzerland and Byelorussia. Appealing to the Emperor, Pius condemned as well the Old Catholics and especially certain illegitimate episcopal consecrations. The portion of this seventh document pertinent to the canon under study would seem to be the following:

Faith teaches and human reason shows that two orders exist and similarly that two powers are to be distinguished on earth, the one natural which regards the tranquillity of human society and worldly affairs, the other, whose origin is beyond nature, which presides over the city of God, that is the Church of Christ, divinely instituted for the peace and eternal salvation of souls.((Pius PP. IX, “ep. encycl. Etsi multa, 21 nov. 1873,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933), Vol. III, pp. 81-82.))

A few months later, Pius wrote an encyclical, the last of his documents cited in reference to canon 100, to the cardinals, archbishops, and bishops of the Austrian Empire, complaining of serious violations of the concordat and of the rights of the Church in the empire. In defense of the Church he wrote:

The Creator and Redeemer of the human race founded the Church as his visible kingdom on earth endowed not only with the supernatural charism of an infallible magisterium for teaching sacred doctrine and of a sacred priesthood for fostering divine worship and the sanctification of souls by sacrifice and sacraments but also with a proper and plenary power of rule to make laws, to judge, and to use salutary coercion in all that pertains to the proper end of the kingdom of God on earth.

Since this supernatural power of ecclesiastical rule, from the very institution of Jesus Christ, is completely different and independent from political imperium, this kingdom of God on earth is the kingdom of a perfect society, which is held and governed by its laws, its rights, its authorities, who are watchful as men ready to give an account for souls not to the rulers of civil society but to the prince of pastors, Jesus Christ, by whom is established that pastors and doctors are subject to no earthly power in carrying out their ministry of salvation.((Pius PP. IX, “ep. encycl. Vix dum a Nobis, 7 mart. 1874,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933), Vol. III, p. 88.))

After a long and difficult pontificate Pius left to his successor a very changed and limited kingdom. It was the task of this successor to establish a new modus vivendi of the Church with the modern world.

Documents of Leo XIII. Pope Leo XIII, obliged to live within the new state of Italy, made a profound study of the relation between the Church and modern states. In 1885 he gave to the world his famous encyclical on the Christian constitution of states and on the duties of individual citizens, Immortale Dei. In this document the following would seem to relate to the matter of canon 100:

The only-begotten Son of God founded a society on earth which is called the Church and to which he entrusted the lofty and divine mission to be continued throughout all time that He had received from the Father….((Leo PP. XIII, “ep. encycl. Immortale Dei, 1 nov. 1885,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933), Vol. III, p. 237.)) This society, although composed of men just as the civil community, nevertheless because of the purpose established for it and because of the means by which it realizes this purpose is supernatural and spiritual; therefore it is distinguished from and differs from civil society; and, what is of especial interest, it is by nature and right a perfect society, since it possesses in and through itself all that is necessary for its integrity and action.((Ibid., p. 238.))

Likewise it must be understood that the Church is a society, no less than the state itself, perfect by nature and right.((Ibid., p. 245.))

The next source referred to is a letter of Pope Leo dating from 1887 to the archbishops and bishops of Bavaria concerning the condition of the Church in that kingdom. In it, after reviewing the history of the faith in Bavaria, the pope writes about the formation of students in seminaries. He exhorts the bishops to follow the doctrines of Saint Augustine and Saint Thomas and to avoid certain modern errors. In the letter, he refers to the Church as follows:

The Church then, which is a society perfect by its nature, has the native right to form and instruct its ministers, harmful to none, helpful to many, in the peaceful kingdom which Jesus Christ founded for the salvation of the human race.((Leo PP. XIII, “ep. Officio sanctissimo, 22 dec. 1887,” Codicis Iuris  Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933) Vol. III, pp. 271-272.))

The next document to be considered is a consistorial allocution given a few months after the letter to the Bavarian bishops. At the time, the pope protested against the new Italian penal code as directly touching upon the rights of the Catholic clergy and indirectly upon those of the Apostolic See. In defense of the Church, the pope writes:

The Church, by the will of God, is a perfect society, and just as it has its own laws so it has its own magistrates, properly distinguished according to their degree of power, of whom the chief of all is the Roman Pontiff, set over the universal Church by divine right and subject to the power and judgement of God alone.((Leo PP. XIII, “allocut. Mirandum sane, 1 iun. 1888,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri.  Vatican City: Typis  Polyglottis Vaticanis, 1933), Vol. III, p. 294.))

The following source is an encyclical published within the same month on the nature of true liberty and its abuses. Refuting modern liberalism the pope in it considers the questions of liberty of worship, speech, teaching, and conscience. He mentions many errors of the liberals concerning the nature of the Church. Among other matters, Leo teaches:

. . . the Only begotten Son of God was made man to give testimony to the truth; a perfect society was established by him namely the Church of which he himself is the head and with which he promised he would be until the end of time.((Leo PP. XIII, “litt. encycl. Libertas, 20 iun. 1888,” Codicis Iuris Canonici Fontes (edited by Petrus Card  Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933), Vol. III, p. 306.))

And in the same document he refers to those criticizing the nature and proper rights of the Church as a perfect society, to those trying to weaken the nature of “this divine society,” and to those defending the nature and rights pertaining to a “legitimate, lofty, and in every part perfect society.”((Ibid., p. 310.))
In the thirteenth document, an encyclical on the obligations of Christians in the Church and in civil and domestic society, Pope Leo speaks about the authority of the Church. Two sections offer points pertinent to this study:

. . . [Jesus] wished not only to form disciples but to join them in a society and to unite them in one body which is the Church (Coloss., I, 24) and whose head he is. The life of Jesus Christ permeates the entire structure of the body, it nourishes and sustains each member, and it keeps them joined one to another and ordered towards the same end, although the actions of each one are diverse. For these reasons not only is the Church a perfect society and far superior to any other society, but it is placed by its author to strive for the salvation of the human race ut castrorum acies ordinata (Cantic., VI, 9).((Leo PP. XIII, “litt. encycl. Sapientiae, 10 ian. 1890,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933), Vol. III, p. 331.))

It is right that the Church live and defend itself by institutions and laws consonant with its nature. Since it is not only a perfect society but also superior to any human society, the Church by right and duty strongly refuses to become involved in parties or constantly changing civil affairs.((Ibid., p. 334.))

In another encyclical letter of the year 1894, the next of his documents cited, Pope Leo appeals to all rulers and peoples for unity; he speaks of the need for the unity of all men and especially of Christians. He mentions the special closeness of the Eastern Churches. Emphasizing the need for union in Christian society, the pope warns of the dangers of Freemasonry. There is a strong exhortation to Christian leaders in Europe to build the true and united Christian society. The following section seems ad rem:

[The Church], by the will and command of God the founder, is a society perfect in its kind; . . . And since the society is, as we said, perfect, it therefore has strength and life, not drawn from without, but by divine wisdom stemming from its nature; by the same reason it has the native power of legislating, and in this it is right that it be subject to no one: similarly in other things which are of its right it should be free.((Leo PP. XIII, “ep. ap. Praeclara, 20 iun. 1894,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933), Vol. III, p. 446.))

In the last of the documents of Leo XIII cited, the pope in a lengthy encyclical presents a very detailed, scholarly study of the inner nature of the Church, its unity, and the role of the Roman Pontiff. The following selection might be considered:

God caused the Church to be far superior to all societies: for what it seeks as an end is more noble than what other societies seek, as divine grace, than nature, and as immortal goods are higher than those of this fallen word. The Church then is a society of divine origin: its end, its proximate means for attaining its end are supernatural: that which is formed of men is a human community. So in sacred scripture in many places we see it named with the word, perfect society.((Leo PP. XIII, “ep. encycl. Satis cognitum, 29 iun. 1896,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933), Vol. III, p. 483.))

Documents of Saint Pius X. In the encyclical of Saint Pius X cited in the sources of canon 100, § 1((Pius PP. X, “ep. encycl. Vehementer Nos, 11 febr. 1906,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1933). Vol. III, pp. 661-669.)), the pope addresses a protest to the cardinals, archbishops, bishops, clergy, and people of France against the injustices to the rights of the Church there and the violation of previously established pacts. This was a strong reaction to French legislation establishing a complete separation of Church and State. Although there are frequent references to the Apostolic See and its agreements with the French government, there is nothing that could be regarded as substantiating the reference of Canon 100, § 1, to the Church.
The final source cited for the first paragraph of the canon is one of the propositions condemned in the decree Lamentabili of the Holy Office. It reads as follows:

It was alien to the mind of Christ to constitute the Church as a society on earth that would last throughout the ages; in fact in the mind of Christ the kingdom of heaven was to come with the end of the world.((S. C. S. Off., “decr. Lamentabili, 4 iul. 1907,” Codicis Iuris Canonici Fontes (edited by Petrus Card. Gasparri. Vatican City: Typis Polyglottis Vaticanis, 1951), Vol. IV, p. 552.))

Critical analysis of the source documents

Although all these documents are indicated as sources for the first paragraph of canon 100 it seems clear that they relate directly to the first sentence concerning the Catholic Church and the Apostolic See and have little to do with the rest of the section on the establishment of moral persons in the Church. There is no division among them, so it is left to the student of the sources to attempt to discern the relevance of each source to one or the other concept. Frequently they are both linked together in the sources, and also often there is no one passage that can be cited as probative although the general tone and argument of the document is very pertinent to the assertion of the canon. In every case but one at least some one passage was found that apparently had some relevance to the statement of canon 100 about the catholic Church.
A great deal of attention was paid to the historical context and general content and purpose of each document: this is very necessary to their correct interpretation. Without exaggeration it is fair to say that the allocutions and writings of Pius IX here cited are uniformly of a polemical and argumentative nature. The pope is anxiously attempting both to defend the crumbling temporal sovereignty of the Church in central Italy and to avert its subordination to a militantly secular civil authority in other places. In the pontificate of Leo XIII part of the crisis has past; he is able to approach these problems, the latter especially, with a certain reserve and calm. The documents cited from his pontificate are more didactic then polemical; the pope tries to teach the true nature of the responsible state and its relations to ecclesiastical society.
But, what do the documents say that is ad rem? The first and most curious conclusion is this: although they are sources for the assertion that the Church is a moral person by divine ordinance, not even once is the Church referred to as a moral person; the term is not used at all. What is clearly and repeatedly developed is the fact that the Church is a divinely established institution and therefore cannot be arbitrarily disposed of according to laws of force of arms. The Church, again and again it is said, is a society, founded by Christ, perfect by nature, and independent of civil authority.
In no document is a systematic exposition made of this notion of perfection applied to the Church as a society. It is clearly a reference to a doctrine that is familiar and well developed, especially towards the latter part of the pontificate of Pius IX, and it is, of course, the well known treatment found in any manual of public ecclesiastical law. Prescinding from any judgement of the merit of this doctrine, it is clear that it is used as an argument by the popes. It is not so much that they are presenting a new teaching as grasping a well-polished weapon for the fight against the so-called “Liberalism” of the past century.
It must be stressed that this doctrine is constantly offered in a polemical or defensive context. It is not that the pope chooses this as a point of departure to explain the inner nature of the Church. At a time when the Church as a supernatural reality is confused with the Church as a sovereign temporal power, and when both are being attacked indiscriminately and made subordinate to civil authority, this teaching on the perfect and supreme social nature of ecclesiastical society is offered in rebuttal to safeguard the independence of ecclesiastical authority and its spiritual, if not temporal, rights.
Finally, the question may be raised here once again as it was after an examination of the works of many canonists writing on the nature of the Church: what is the relation between these two concepts, “moral person” and “perfect society”? Because the popes speak of the Church as a perfect society, does it follow that it is ipso facto a moral person? And, does the fact that Lord founded the Church mean that he established a perfect society or that he established a moral person? Even an examination of the sources of the canon leaves one with new and some already familiar difficulties.

Preparatory Drafts of the Canon

An immense amount of work was involved in the preparation of the Code of Canon Law. There are several accounts published of the method followed, the investigations, and the labors of the preparatory commissions. In the preface to the code, found in all published editions, Cardinal Gasparri himself gives a brief outline of the history of the codification. However, apart from the book of Roberti on the drafts of the latter part of the code, the full collection of preparatory schemata and criticisms remains unpublished. (An opportunity to consult two sets of unpublished schemata, those of 1912-14 and of 1916, was made available to the writer through the courtesy of the librarian of the Pontifical Lateran University).
Naturally the draft of a law has no authoritative legal value. However, from the point of view of studying the wording of the law, it can be of invaluable use. It is an indication of the steps in the process of assembling the final statute, and it may well show where certain “pieces” came from. In the case of this study, the schemata are of special interest and value.

The schema of 1912-1914

A draft of the first and second books of the code was printed and circulated in 1912. In the section of the second book on persons there is no canon corresponding to the present canon 99 on the kinds of moral persons in the Church. The treatment of moral persons begins immediately with what is clearly the predecessor of the present canon 100. This draft canon reads as follows:

Can. 13. § 1. The Apostolic See has the nature of a juridic person by divine ordinance; other inferior moral persons in the Church receive it from a competent ecclesiastical superior, not by simple approbation, but by formal decree.
§ 2. A collegiate moral person can not be established, unless it has at least three physical persons.((Schema Codicis Iuris Canonici. Sub secreto pontificio. Sanctissimi Domini Nostri Pii PP. X Codex Iuris Canonici cum Notis Petri Card. Gasparri (Rome: Typis Polyglottis Vaticanis, 1912), Vol. I. Liber Primus. Liber Secundus, p. 29:
“Can. 13. § 1. Sedes Apostolica iuridicam personae rationem habet ex ipsa ordinatione divina; ceterae inferiores personae morales in Ecclesia cam sortiuntur a competenti superiore ecciesiastico, non per simplicem approbationem, sed per formale decretum.
§ 2. Persona moralis collegialis constitui non potest, nisi ex tribus saltem personis physicis.”))

The first phrase of the draft canon obviously corresponds to that of canon 100 of the code with only two differences: the first, a minor one, is the use of the expression, “juridic person,” for the almost equivalent term, “moral person”; the second, a very significant and interesting difference, is the omission of the reference to the “catholic Church.” Also, it may be observed, although many of the draft canons have sources annotated, this one does not.
Before considering the next schema of this canon, there is another point of interest. In this same draft of the code, a canon is proposed to open the first book which apparently never was accepted; yet it is not without relevance to the point at study. The canon is the following one:

Can. 1.  Christ the Lord, the Only-begotten Son of God, true God and true man, the Redeemer of the human race, instituting the catholic Church for the supernatural sanctification of men in this life and for their eternal happiness in the future life, conferred upon it, independently from any human authority, all the power necessary for the attaining of its end.((Ibid., p. 1:
“Can. 1. Christus Dominus, Unigenitus Dei Filius, verus Deus et verus homo, Redemptor generis humai, catholicam instituens Ecciesiam ad supernaturalem hominum sanctificationem in hac vita et eorumdem aeternam beatitudinem in vita futura, ei contulit, independenter a quacumque humana auctoritate, omnem potestatem ad suum finem consequendum necessarium.”))

This canon is extensively annotated, and the sources are of interest as well. The following ten documents are given:

C. 1, de maiorit. et obed., I, 8, in Extravag. com.;
Nicol. I, ep. ad Michaelem imp., a. 865;
Pius IX, allocut. “Singulari quadam,” 9 dec. 1854;
allocut. “Multis gravibusque,” 17 dec. 1860;
allocut. “Meminit unusquisque,” 30 sept. 1861;
allocut. “Maxima quidem,” 9 iun. 1862;
litt. encycl. “Quanta cura,” 8 dec. 1864;
Leo XIII, encycl. “Immortale Dei,” 1 nov. 1885;
Pius X, litt. encycl. “Pascendi,” 8 sept. 1907;
S. C. S. Off., 3 iul. 1907, prop. 52, damn .((Ibid., p. 1))

Interestingly enough several of the sources here are also those given for canon 100, § 1, of the actual code; and, as can be appreciated from the previous examination of the latter, this draft canon is close in concept and wording to the documents of Pius IX and Leo XIII.

The schema of 1916

In a draft of the entire code printed and circulated in 1916, perhaps the last of these before the final publication, the section of the second book on moral persons begins with a canon 99 as does the actual code; however the draft canon 99 is somewhat different from the present one. It appears in this form:

Can. 99. In the ecclesiastical forum too, besides physical persons, moral persons also exist, constituted by public authority, and which are distinguished into collegiate and non-collegiate moral persons; for example, churches, seminaries, benefices, etc.((Schema Codicis Iuris Canonici. Sub secreto pontificio. Codex Iuris Canonici cum Notis Petri Card. Gasparri (Rome: Typis Polyglottis Vaticanis, 1916), p. 32:
“Can. 99. In foro quoque ecclesiastico, praeter personas physicas, existunt etiam personae morales, publica auctoritate constitutae, quae distinguuntur in personas morales collegiales et non collegiales, ex. gr., ecclesiae, seminaria, beneficia, etc.”))

There are no sources annotated for this draft canon. On the other hand, the draft of canon 100 is very close to its final form:

Can. 100. § 1. The catholic Church and the Apostolic See have the nature of a moral person by divine ordinance; other inferior moral persons in the Church receive it either from the prescription of the law or from the special concession of a competent ecclesiastical superior given by a formal decree issued for a religious or charitable purpose.
§ 2. A collegiate moral person can not be established, unless it has at least three physical persons.((Ibid., p. 32:
“Can. 100. § 1.  Catholica Ecclesia ac Apostolica Sedes moralis personae rationem habent ex ipsa ordinatione divina; ceterae inferiores personae morales in Ecciesia eam sortiuntur sive ex ipso iuris praescripto sive ex speciali competentis Superioris ecclesiastici concessione data per formale decretum ad finem religiosum vel charitativum editum.
§ 2. Persona moralis collegialis constitui non potest nisi ex tribus saltem personis physicis.”))

Except for minor variations of spelling and for one additional word, this is the final form of the first two paragraphs of canon 100. The final published canon has a third section that does not appear in this draft.
This schema of canon 100 also appears without the annotation of sources, although there are other draft canons with such annotations.

Observations

As has been mentioned no conclusive interpretation of a law can be established from a consideration of its preliminary drafts. However, certain aspects of these schemata stimulate conjectures about the formation of canon 100.
In the present code the four canons on moral persons would form a coherent whole offering little difficulty of interpretation were it not for the reference to the whole Church at the beginning of canon 100, § 1. In this hypothesis the canons would be concerned solely and exclusively with moral persons in the Church, and one of them, the Apostolic See, would be singled out by its unique constitution: by divine ordinance. In other words, canon 100, § 1, would begin with a statement about the Apostolic See alone.
Interestingly enough, this is precisely the way one finds canon 100 § 1 in the earlier draft. It is concerned with first the Apostolic See and then other inferior moral persons in the Church. The reference to the whole Church is a later addition to an already phrased statement about persons within the Church.
Is there any way of discovering the origin of this later addition? Here one is in the field of conjecture, but of well founded conjecture. In the same draft of the code, mentioned above, appears the already cited initial canon on the divine institution of the Church and its power, independent of any human authority. From the study of the documents of Pius IX, Leo XIII, and Saint Pius X, the interest and need to express the divinely founded autonomy of the Church, especially considered as a visible society, is clear. Yet, this canon is eliminated. However, in the very draft where it does not appear there is found the reference to the Church as a divinely established moral person. Could it not be that this reference was meant to substitute at least in part for the statement offered in the previous draft?
As circumstantial evidence to substantiate this conjecture, it should be noted that the first draft of canon 100 referring only to the Apostolic See and inferior moral persons had no annotations. The final canon, including the reference to the whole Church, is extensively annotated, and six of the most important sources cited are among the ten annotations to the eliminated draft canon on the Church.
Here too, perhaps, some light is shed on a vexing problem of interpretation of the sources of canon 100, § 1. As was seen, they speak of the perfect and independent society of the Church while the canon speaks of its moral personality. If these sources were “transferred” to canon 100, § 1, when the canon they were appended to was somehow included in it, the problem is solved: since the canon was a canon on moral persons, the doctrinal statement on the Church was cast in this vocabulary instead of that of a society independent of human authority. The two form of expression are not identical, but they are very closely allied.
Was this the case? Of course, one cannot know. But it is a conjecture that makes the difficulty of canon 100, § 1, somewhat more understandable.

IV.
DIFFICULTIES AND CONCLUSIONS

In the attempt to establish the meaning of the introductory phrase of the first paragraph of canon 100, this study has raised many problems. In the examination of the opinions of the canonical commentators on the canon difficulties were found in regard to the relationship between the concepts of moral personality and perfect society, in regard to either of these concepts being applied to the Church by the institution of Christ, and in regard to determining what kind of moral person the Church is. In the consideration of the canonical theories of moral personality, the problem of postulating some fictitious element in the Church and that of accomodating a supernatural mystery to a juridic category were touched upon. The study of the canonical concepts of the Church made the need apparent to evaluate the definition of Bellarmine and the notion of the perfect society. Finally the study of the canon in the context of the code left a problem of meaning to be clarified; and the study of the sources, a problem of their relation to the canon. Here the attempt will be made to deal with these problems and to offer a meaningful interpretation of the canon.

Canon 100, § 1 in the Light of
its Sources and the Code

Since the sense of a law should be sought from its meaning in the text and its context, from its purpose, and from the circumstances of its formulation, the heart of this study is the consideration of the code and the sources made in the previous two chapters. From this investigation a tentative interpretation of the canon can be made, but one which will still have to be weighed against other difficulties.

The value of the sources

As far as can be determined, the source documents relate to canon 100, § 1, only in this: they frequently refer to the teaching that the Church is a perfect society, instituted by Christ.
The notion of the Church as a perfect society is not elaborated in the sources. In a polemical context, it is used as an argument to defend the rights of the Church and of the Apostolic See. From the way it is mentined, it is clear that it is understood to be a notion in the common possession of canonical and theological writers.

The sources and the canon

Confronting the canon after an examination of its sources, one must choose between two positions: either the concept of moral personality is formally identical with that of perfect society or else the legislator has introduced an element into the canon not found in the source documents.

The sources and the drafts of the canon. The examination of the schemata for the code showed that the present canon 100 was first conceived as a statement about the Apostolic See and other inferior moral persons in the Church. Later, “catholic Church” was added to the canon. It was conjectured that this addition was to substitute for an eliminated canon basically treating the Church as a perfect society. This conjecture is somewhat supported by the fact that the sources given for this eliminated canon are substantially identical with those now cited for canon 100, § 1.
Two questions present themselves about the mind of the legislator: First, was this use of the concept of moral person instead of perfect society to describe the Church simply a matter of expediency? That is, perhaps the legislator was not so concerned about the difference between the two concepts, and simply inserted the reference to the Church in an already existing canon treating the Apostolic See as a moral person of divine ordinance. In this case, it might be questioned also whether the legislator considered the two concepts as identical or closely related.
The second and alternative question would be this: Did the legislator deliberately wish to state only that the Church is a moral person by divine ordinance and not that it is a perfect society? In this case, the sources cited can have no direct relation to the part of the canon about the Church and must refer to the Apostolic See.
Neither question is answerable for both are based on conjecture; although the evidence tends to affirm more the first than the second.

Moral personality and perfect society.  The concept of a moral person is that of a juridic entity, distinct from physical persons, considered as a subject of rights and duties. It is a legal concept, and properly speaking a moral or juridic person can be formally constituted only by the public authority in a society and subsists by concession of the law.
The concept of a perfect society is that of a society of human persons whose end is complete and perfect in its order and which possess all the means necessary for its attainment.It is a philosophical concept primarily referring to the juridic order.
Clearly a moral person can be constituted and exist only in reference to some juridic society. A perfect society can constitute moral persons. A perfect society cannot be said to be a moral person without contradiction: if a society is a juridic person it must be constituted and subsist in some superior society, and then it cannot be perfect; for this implies autonomy  and independence.
Since the concepts of moral person and of perfect society, then, are formally diverse and since only the notion of perfect society is to be found in the source documents for canon 100, § 1, it must be concluded that intentionally or not the legislator has introduced a new element into the canon.

The sense of the canon

If the sources are of little value to the interpretation of the canon, one is left only with the consideration of its terms in the text and context of the code to assist in arriving at its meaning. As has been seen, of the three key concepts of the canon, that of “Church” is by far the most complex and ambiguous.

The Church. In the dogmatic constitution on the Church of the Second Vatican Council the first and principal presentation is that of “the Mystery of the Church.”((Sacrosanctum Oecumenicum Concilium Vaticanum Secundum, Constitutio Dogmatica de Ecclesia (Vatican City: Typis Polyglottis Vaticanis, 1964), p. 3.)) Characterizing the Church as “the kingdom of Christ now present in mystery”((Ibid., p. 4.)) the Council explained its inner nature:

Christ, the unique Mediator, constituted his holy Church, the community of faith, hope, and love, as a visible structure and unceasingly sustains it, and through it he pours forth grace and truth to all. The society provided with hierarchical organs and the mystical Body of Christ, the visible association and the spiritual community, the Church endowed with earthly goods and the Church endowed with heavenly ones, must not be considered as two things, but form one complex reality in which the human and divine elements grow together. So by no weak analogy is it compared to the mystery of the incarnate Word. Just as the nature he assumed serves the divine Word as a living organ of salvation inseparably united to him, similarly the social structure of the Church serves the Spirit of Christ, who ever gives it life, for building up the body.((Ibid., p. 9.))

Clearly the Church in this sense, in its fullness as a supernatural mystery, cannot be referred to in canon 100, § 1. There, a predicate of a strictly juridical nature is applied to it; the Church is regarded juridically. The juridic order considers only one aspect of the “complex reality” of the Church.

To study the Church from the juridic point of view is to analize according to the principles of law what it is in so far as it is a visible and autonomous society, provided with its proper organization.((E. Fogliasso and R. Naz, “Eglise,” Dictionnaire de Droit Canonique (Paris: Librairie Letouzey et Ané, 1953), Vol. V, col. 158.))

The meaning of “catholic Church.” The reference in the canon then is to the Church in this juridic aspect, as a visible and autonomous society. From the study of usage of the word “church” in the code, there can be only two possible meanings that fit this aspect: the Church as the juridic society of all the faithful or the Church as the universal community of the faithful considered as a moral person. The latter can be quickly discounted, for if the term be taken in this sense, the statement of the canon would be tautological and without real meaning.
An understanding of the expression “catholic Church” as the juridic society of all the faithful accords well with the teaching found in the sources of the canon concerning the Church as a perfect society. Although it was difficult to relate this doctrine to the notion of moral personality, it does have relevance to such a juridic concept of the Church.

The catholic Church as a “moral person.” From the point of view of the term “Church” it was seen that one necessarily must understand canon 100, § 1, as referring to the Church considered as a juridic society. But the fact that this is the only possible usage of which moral personality can be predicated does not mean that there is no difficulty in the final statement. What does it mean to say that the juridic society of the Church has the nature of a moral person?
If we accept the notion that a moral person involves some fiction of law, that it can be formally constituted only by the public authority in a society, and that it subsists by concession of law, we are faced with a dilemma. If the juridic society of the Church is a moral person, either it is subordinate to some other society, which totally contradicts the accepted teaching on the juridical perfection of the Church; or else the notion of moral personality is unacceptable here. The only way to save any meaning at all for the expression in the canon is to postulate that “moral person” has some analogous or unique meaning in it.
What saves this suggestion from being altogether gratuitous is the final note of the canon: that the Catholic Church has the nature of a moral person by divine ordinance.

The catholic Church as a moral person “by divine ordinance.” In the code expressions referring to divine origins are subject to a rather broad interpretation; that is to say, often enough that which is referred to Christ is something only implicitly and indirectly contained in his will.
A well known example is the common teaching on the Church as a perfect society. Clearly Christ established a supernatural and visible society on earth. At the time, the concept of a perfect society was unheard of. Later when circumstances provoked a philosophical elaboration of theories of social and juridical structures, it was seen that some of these categories could be applied to the Church in certain of its aspects. Accordingly, it could be said that Christ founded a perfect society; that is, he founded the Church, and the Church can be regarded as such in its visible and social nature.
Do we have a similar case in the statement of canon 100, § 1? Were the ordinary juridical category of moral person applicable to the juridic and social structure of the Church, the statement would offer little difficulty; but unfortunately this is not the case.
Before considering in what other way “by divine ordinance” can apply to the statement of the canon, it is necessary to give some minimal meaning to the notion of moral personality. Even on the presumption that it is used in some unique way here, it must at least imply a juridic entity considered as a subject of rights and duties. The canon then would state that the juridic society of the Church is considered a subject of rights and duties by divine ordinance.
The reference to divine ordinance, then, effectively would be an appeal to the divine will to explain this unique situation, that the entire visible and juridic society of the Church has certain rights and duties. There are only two canons that draw upon this doctrine, and both of them relate to the right of the universal Church to temporal goods.

Some Further Considerations

Before a final meaning and judgment of canon 100, § 1, is phrased, certain other points touched on in the study should be somewhat more explicitly treated.

The nature of the moral personality of the Church

As was seen, in the strict juridical meaning of the phrase, the notion of moral personality is not applicable to the Church. However since one does have the predicate applied in canon 100, it must be said that it is used in a special sense. In this one could agree with Lammeyer who calls the Church a moral person “sui generis”((Lammeyer, loc. cit.)) or with Regatillo who says that in the case of the Church the moral personality is something real given by God.((Regatillo, op. cit., p. 163.))
Since the moral personality of the Church is in a special category, perhaps it is not too meaningful to decide whether it is a collegiate or non-collegiate person. But certainly one would be disposed to choose the latter only by necessity, since it involves the greater element of fiction and since the primary reference of “Church” is to a community of the faithful.

The juridic conceptualizations of the Church

It is remarkable how many canonical writers take the definition of the Church of Saint Robert Bellarmine as a theological starting point for their considerations of the Church. A product of an age of apologetic theology, the definition is really a juridical one with its almost exclusive attention to the visible society of the Church.((A. Liégé, “The Mystery of the Church,” The Historical and Mystical Christ (Vol. V of the Theological Library. Edited by A. Henry. Chicago: Fides Publishers Association, 1958), p. 372.)) Its having been considered as an adequate total definition of the Church for so many centuries made it easy for certain distortions and exaggerations to creep into later properly juridic conceptualizations; for many later writers failed to regard the incompleteness of his notion.
Similar observations may be made about the notion of the Church as a perfect society. This is a valid philosophical category to apply to the Church, whether it be drawn from civil society or not; only it must be remembered always that it is a juridical concept and therefore regards only one aspect of the Church; or to put it another way, the Church may be considered as a perfect society, but it should be stressed that it is a perfect society sui generis; therefore it cannot be adequately described by juridico-philosophical categories only.((Claudianus Kemmeren, “Recent Trends in the Science of Canon Law towards a Theology of Canon Law,” The Jurist, XXV (1965), p. 24.))

Conclusion

“The catholic Church . . . has the nature of a moral person by divine ordinance.” At the beginning of this study, it was suggested that this phrase could easily be read as almost an introductory one; that it is easily passed over. At least by now, whether the exposition be clear or not, the difficulties related to it should be manifest. As was mentioned, the presumption is that all the statements of the code are logical and meaningful. What then is the meaning of this phrase?

The meaning of the phrase of the canon

After a consideration of texts, of the word usage of the code, of drafts of the canon, of the sources of the canon, of the opinions of canonical commentators, and of basic concepts of moral personality, juridical society, and the Church in canon law and theology, the meaning to be suggested is this: the juridic and visible society of the Church can be considered as a subject of rights by the implicit will of its divine founder.

The reason for the statement

It is a curious meaning, when all is said and done. It was necessary to establish a special sense for “catholic Church” and a unique meaning for “moral personality.” If one may enter into the field of conjecture just one last time, it may be asked why the canon was written.
There are only two canons in the code that beyond any doubt refer to the universal Church as a moral person, can 1495, § 1, and 1497, § 1. Both of them are concerned to vindicate the right of the universal Church and the Apostolic See to acquire, retain, and administer temporal goods. Could it be, as Jemolo suggests((Jemolo, Lezioni di Diritto Ecclesiastico, loc. cit.)), that the moral personality of the Church is asserted to support these property rights of the Church and to ensure the proper title for ecclesiastical goods?
Be that as it may, canon 100 does state that the Church has a moral personality. De facto, it would seem that only the two above-mentioned canons draw on this doctrine; and, interestingly enough, de facto the right they defend is not exercised; there is not any property that can be considered as possessed by the entire or universal Church as such; all is held by the Apostolic See or other inferior moral persons in the Church.

A final evaluation

Perhaps no more fitting conclusion could be offered to this study of the Church as a moral person than the teaching of Pope Pius XII on the Church as a mystical person, the Body of Christ:

. . . the Church, which must be considered a perfect society sui generis, does not consist of merely social and juridical elements and principles. It is superior by far to all other human communities; it surpasses them as grace exceeds nature, as immortal realities are more excellent than all those that perish. Such communities, especially Civil Society, are not to be belittled or depreciated; but the entire Church is not in the order they are, just as the whole man is not in the physical organism of our own mortal body. Although the juridical principles on which the Church is founded and rests derive from the divine constitution given to it by Christ and contribute to the attainment of its supernatural end, that which raises Christian society to a level completely above the entire natural order is the Spirit of our Redeemer which as the source of all graces, gifts, and charisms ever deeply penetrates the Church and works in it. Just as the structure of our mortal body is a wonderful work of the Creator but falls far short of the high dignity of our soul: so the social structure of the Christian community, although bespeaking the wisdom of its divine Architect, is still something of an entirely lower order when compared to the spiritual endowments by which it is adorned and lives and to their divine source.((Pius PP. XII, “Litterae Encyclicae Mystici Corporis Christi de Mystico Iesu Christi Corpore deque Nostra in Eo cum Christo Coniunctione,” Acta Apostolicae Sedis, XXXV (1943), pp. 222-223.))

Cf. BIBLIOGRAPHY

ENDNOTES

1. Miguélez, Alonso, and Cabreros , op. cit., p. 41. [↩]
2. Jemolo, Elementi di Diritto Ecclesiastico (op. cit.), p. 61. [↩]
3. “Chiesa,” Enciclopedia Cattolica (Vatican City: Ente per l’Enciclopedia Cattolica e per il libro cattolico, 1949), Vol. III, col. 1443. [↩]