“Ordinary jurisdiction grows out of the office as the fruit grows on the tree.”
The Apostolicity of the Church
Who are the successors of the apostles?
What is ordinary jurisdiction?
The source of ordinary jurisdiction
Image: Four Aposles, Durer, Wiki Commons
In this series, we are considering whether the illegitimacy of Francis and his recent predecessors would necessarily entail the disappearance of the Church’s hierarchy as a whole.
As discussed in the previous piece, it is well known that this is one of the most common objections to the idea of an extended vacancy of the Holy See.
My purpose is to show that such an extended vacancy does not necessarily lead to the disappearance of the hierarchy of the Church – by which I mean residential bishops reigning over dioceses (as established in the previous piece). I intend to drive a wedge between the question of the vacancy of the Holy See on the one hand, and the apostolicity of the Church on the other.
Demonstrating the distinction between these two questions obviously has apologetic value – regardless of one’s personal opinions about the continuity of the hierarchy.
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Apostolicity
In the previous part, we considered “apostolicity,” which is a necessary property of the Church. We saw that “the successors of the apostles” are the “residential” or “diocesan” bishops (or their equivalents) – that is, those who not only possess the fulness of the priesthood, but also the power to teach or govern a particular church. As Van Noort writes:
“[T]he essence of the pastoral office consists precisely in the threefold power of teaching, of the priesthood, and of ruling. […]
“[T]he title successor fits only him who steps into another’s place in such a way as to receive in its fulness the office which the latter had administered. And so, for a man to be reckoned a successor of the apostles, it is not enough that some one apostolic power be conferred on him (like the power of the priesthood, in full or in part).
“No, he must have the whole range of power which constituted the apostles pastors of the Church.”[1]
This pastoral office is sometimes referred to as the “ordinary” office of the apostles, and distinguished from their “extraordinary” office. This latter entailed extraordinary gifts such as being eyewitnesses of Christ’s mission, miracles, infallibility, inspiration and a sort of universal jurisdiction.[2]
By contrast, Van Noort writes of those who succeed to the ordinary pastoral office:
“We are discussing here only bishops in the fullest sense of the word: those who are usually called the ‘ordinary bishops’ of various places, or, simply, “ordinaries.’”[3]
In the previous piece, we also saw that those bishops who do not succeed to the fulness of this pastoral office are not typically considered to be successors in the sense relevant to the Church’s apostolicity.
We also saw that, according to the will of Christ (as Vatican I taught), “there should be shepherds and teachers until the end of time” – by which is meant the successors of the apostles in the sense defined.[4]
For further discussion of the class of men considered as successors of the apostles, I refer readers (whilst maintaining reservations about certain conclusions) to Abbé Damien Dutertre’s very thorough analysis “On Collegiality”.[5]
With this established, we must consider a fundamental question: What is jurisdiction?
Jurisdiction
The canonists Bouscaren and Ellis define jurisdiction as follows:
“Jurisdiction is the power to govern the faithful for the supernatural end for which the Church was established by Christ. This power is in the Church by divine institution, because Christ with divine authority placed it there (cf. c. 108).”[6]
The canonists Wernz and Vidal also give the following:
“[J]urisdiction is essentially a relation between a superior who has the right to obedience and a subject who has the duty of obeying.”[7]
In spite of the title of this piece, I shall not discuss further details about what can be “done” with ordinary jurisdiction. Instead, I shall focus on the larger picture of where ordinary jurisdiction fits into the life and law of the Church, and on what it is not.
Offices, and types of jurisdiction
A key distinction is that of ordinary and delegated jurisdiction. The 1917 Code of Canon Law defines them as follows:
Canon 197
§ 1. Ordinary power of jurisdiction is that which is attached to an office by law; delegated [power is that which] is committed to a person.
§ 2. Ordinary power can be either proper or vicarious.[8]
Bouscaren and Ellis state the link between an office and ordinary jurisdiction:
“Ordinary Jurisdiction has two essential qualities: (1) it must be attached to an office in the strict sense (cf. c. 145); (2) It must be attached to that office by the law (c. 197 §1); that is, either by the common law or a particular law, either by written law or lawful custom.”[9]
The canonist Dom Charles Augustine explains further:
“… our canon says that ordinary jurisdiction is attached to the office, not to the person; it grows out of the office as the fruit grows on the tree. By law it is attached to the office, because either of divine or human law (to which latter also belong privileges and customs) certain office-holders enjoy jurisdiction in foro externo.
“Therefore, as soon as one is in full possession of an office, he has the power to exercise the jurisdiction appertaining to that office.”[10]
Bouscaren and Ellis explain how delegated jurisdiction is different:
“Delegated Jurisdiction is any which has not these two qualities; it is merely given to a person (c. 197 §1). This may be done in either of two ways:
“1. The law itself may grant the jurisdiction in certain circumstances […] This is called jurisdiction delegated by law. It is not ordinary because it is not attached to an office in the strict sense. The priesthood is not such an office.
“2. The jurisdiction may be expressly granted by a special act of the superior. Such jurisdiction is delegated, whether the person be chosen for personal qualifications or by reason of the office which he holds. […].”[11]
What exactly is an “office” in this sense mentioned?
Canon 145
§ 1. Ecclesiastical office in the wide sense is any responsibility exercised legitimately for a spiritual end; in the strict sense, however, it is a divinely or ecclesiastically ordered responsibility, constituted in a stable manner, conferred according to the norms of the sacred canons, entailing at least some participation in ecclesiastical power, whether of orders or of jurisdiction.
§ 2. In law, ecclesiastical office is taken in the strict sense, unless it appears otherwise from the context of the words. [Emphases added]
Some form of ordinary jurisdiction is attached to the offices held by ordinaries.
Canon 198
§ 1. In law by the name of Ordinaries are understood, unless they are expressly excepted, in addition to the Roman Pontiff, a residential Bishop in his own territory, an Abbot or Prelate of no one and his Vicar General, Administrator, Vicar or Prefect Apostolic, and likewise those who, in the absence of the above-mentioned, temporarily take their place in governance by prescript of law or by approved constitution, and, for their subjects, major Superiors of exempt clerical religious [institutes].
§ 2. By the name of Local Ordinaries come all those just mentioned with the exception of religious Superiors.
In the next part, we will consider the difference between ordinary jurisdiction which is “proper” and that which is “vicarious” – but for now, let’s consult again the canon which refers to apostolic succession:
Canon 329:
§ 1. Bishops are successors of the Apostles and by divine institution are placed over specific churches that they govern with ordinary power under the authority of the Roman Pontiff.
In the last part, we established that the bishops to which this canon refers are the residential bishops mentioned in Canon 198.
In some ways, we could say that it is a residential bishop’s possession of ordinary jurisdiction, over a particular church, that constitutes him as a successor of the apostles in the proper sense. If he is to succeed to the apostles in their pastoral office, having the power to teach, govern and sanctify, then he must have the jurisdiction required to teach and govern.
As Salaverri says, the power “of the priesthood” comes from episcopal consecration – but the power of teaching and governing come “by reason of jurisdiction.”[12]
There are some texts and authors which appear to suggest that non-residential bishops also succeed to this pastoral office by virtue of their consecration. The study of Abbé Dutertre (already mentioned) discusses the problems with this idea.[13] The conclusion which he presents (and which I follow) on this particular issue can be summarised in the thesis of Wilmers:
“Besides the jurisdiction given to them by the supreme Pontiff the bishops do not have any other universal jurisdiction given to them by Christ as the members of the apostolic college continued through them.”[14]
There are some who will strongly disagree with this. For the little that it is worth, Wilmer’s arguments (quoted extensively in Abbé Dutertre’s study) seem decisive to me.
However, regardless of whether the so-called “traditional bishops” of our times might be said to be, somehow, successors of the apostles as well, it remains true at any rate that residential bishops are constituted as successors of the apostles by virtue of the ordinary jurisdiction proper to their office. It is this that enables them to teach and govern their particular churches, as well as to sanctify their subjects through the power of orders.
Conclusion
To summarise the points relevant to this question:
- Ordinary jurisdiction is that which is attached to particular offices
- An office is a stable position, conferred by law, to which a power (such as jurisdiction) is attached by law
- Various persons can be classed as ordinaries, including resident bishops
- Resident bishops hold, by divine right and by virtue of their offices, ordinary jurisdiction
- Resident bishops are the proper successors of the apostles, by virtue of their succession to their ordinary, pastoral office of teaching, governing and sanctifying.
With this established, we are in a position to ask: Where does jurisdiction come from? How did ordinary jurisdiction come to be attached to a particular office? Whose laws have established these offices in the first place?
Many talk as if ordinary jurisdiction is continually delegated by the will of the reigning pontiff – as if it flows down from the pope, as a river flows from a spring.
But when a spring stops, the river dries up, and no more water can be had. It is hard to reconcile this to the nature of an office as a stable position, to which the power is attached by law. It also seems to conflate ordinary and delegated jurisdiction.
What are the consequences of conflating ordinary jurisdiction with that which is merely delegated (or that which is proper with that which is vicarious)?
There are very grave consequences indeed. These are the questions which we will address in the next part.
Further Reading:
The Apostolicity of the Church
Who are the successors of the apostles?
What is ordinary jurisdiction?
The source of ordinary jurisdiction
Learning Sacred Theology II: Ecclesiology, Dogmatic Theology and Apologetics
Pope Leo XIII – On the Duties of Laymen to Study and Spread the Faith
A Note for Confused Catholics – Apologetics and Dogmatic Theology
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[1] Van Noort, ‘Christ’s Church,’ Dogmatic Theology Vol. II. 1957, n. 33-4, p 40. Trans. Castelot and Murphy, The Newman Press, Westminster Maryland.
[2] Salaverri n. 382.
[3] Van Noort, 319.
[4] Vatican I, Pastor aeternus Session 4, 1870 no. 3. Available at: https://www.papalencyclicals.net/councils/ecum20.htm
[5] Abbé Damien Dutertre, On Collegiality, January 2023. Avaialble at: https://mostholytrinityseminary.org/wp-content/uploads/2023/01/Collegiality_Dutertre_2023.pdf
[6] Bouscaren and Ellis, Canon Law, Text and Commentary, 1963, p 135. Bruce Pub. Co., Milwakee.
[7] Wernz, P. F-X, and Vidal, P. Petri,. Ius Canonicum ad Codicis Normam Exactum, 1938, n. 445. Universitatis Gregorianae Universitas Gregoriana, Rome. The translator of this text could not be identified, but it has been checked against the original by Mr Cristian Jacobo. A screenshot of the Latin, along with the translation, is available in this thread: https://web.archive.org/web/20210226071737/http://www.strobertbellarmine.net/viewtopic.php?p=10051
Bouscaren and Ellis make a similar point in passing: “Order, based on a supernatural mark or character, is irrevocable; jurisdiction, consisting in a moral relationship, is subject to change.” P 99.
[8] All canons are taken from The 1917 or Pio-Benedictine Code of Canon Law, in English Translation with Extensive Scholarly Apparatus, trans. Dr Edward Peters, Ignatius Press, San Francisco, 2001
[9] Bouscaren and Ellis, 136.
[10] Dom Charles Augustine, A Commentary on the New [1917] Code of Canon Law, Vol. II, Clergy and Hierarchy, 1918. p 172. B. Herder Book Co., London.
[11] Ibid.
[12] Joachim Salaverri, ‘On the Church of Christ,’ in Sacrae Theologia Summa IB (based on the version with the imprimatur dated 1955) 2015, n. 1294. Trans. Kenneth Baker SJ, Keep the Faith.
[13] Cf. especially pp 68-83.
[14] Quoted in Dutertre, n. 68, p 76.