Religion (In Canon Law)

RELIGION (IN CANON LAW). - I. NO-
ZIONE. - In canon law, r. means a society approved by the legitimate ecclesiastical authority, in which the members, according to the constitutions and rules of the society itself, take the public vows of poverty, chastity and obedience, with the general purpose of tending to evangelical perfection, and the specific purpose of carrying out a determined work of the apostolate.

R. is a society, and therefore a union of men who pursue the same end by common means, under an authority duly elected from among themselves. It is, however, a supernatural society, inasmuch as its proper end is the personal sanctification of the members in the perfection of the Christian life. Supernatural character does not exclude juridical status, which is given to it by the public recognition of the Church, through an official act of the competent organs of the Holy See. These are: for individual dioceses, the local Ordinaries, with prior authorization of the Sacred Congregation of Religious for all territories of common law and of the Sacred Congregation de Propaganda Fide for mission territories, by special faculty obtained from the Supreme Pontiff Pius XI.

The juridical character of the r. means that its members belong, through enrollment in it, to a true canonical state, the religious state.

Those enrolled in an r. are called religious.

The r. is considered, in canon law, as a collegial moral person, with the rights and duties proper to every ecclesiastical moral person. Unlike other moral persons, however, the r. cannot come into being by private agreement of the faithful, but must be erected by the Church (can. 488). The competent organ for the erection of an r., except in the case of Orders, is the local bishop, who, however, must have, for the very validity of the act, the prior consent of the Holy See (can. 492). For the erection of an Order, which moreover is not customary today, only the Holy See is competent. The present prescription of the CIC proceeds along a middle path between the prohibition against erecting new r., given to bishops by Pius X with the motu proprio Dei Providentis of 16 July 1906, n. 1 (Fontes iuris can., III, n. 675) and the free faculty previously held and admitted by Leo XIII in the constitution Conditae a Christo of 8 Dec. 1900 (ibid., n. 644). The act of erection must be embodied in a decree written and signed by the bishop, even if an oral decision, provided it is documented, may have validity (S. Congr. of Religious, 30 Nov. 1922, in AAS, 14 [1922], pp. 644-46). Once founded, the r. is by its nature perpetual (can. 102); nevertheless an r. ceases to exist by disposition of the CIC (can. 493) if for a hundred years there has not been even one member; suppression, on the other hand, is the exclusive competence of the Holy See (can. 493; cf. AAS, 25 [1933], p. 147; 27 [1935], p. 482).

Another essential element of the r., as a common means to the attainment of its end, are the religious vows. These are promises made to God to remain detached from the free use and administration or even from the ownership of any temporal good (vow of poverty); not to contract marriage and to live in perfect chastity (vow of chastity); to obey the legitimate Superiors of the society (vow of obedience). Some r., in addition to these three common vows, add others, such as to serve in the missions, to teach without charge, etc. The promises, in which the vows consist, must be public, that is, accepted by a legitimate ecclesiastical Superior, in the name of the Church (can. 1308 § 1). The acceptance of the promises by the legitimate Superior takes place through a public act called religious profession. The scope and the particular modalities that give concrete form to the obligations and duties of the member of an r. are to be derived from the constitutions and rules of the society itself.

The juridical bond that unites a member to the religious society must be, at least intentionally, perpetual. For this reason the CIC (can. 488 § 1) establishes that the member of an r. must emit public vows, perpetual or temporary, to be renewed however once the period of their duration has expired, unless the member intends to withdraw from the r.

The CIC completes the definition of r. by specifying its end, namely the obligation on the part of the members to tend to evangelical perfection. The evangelical precept proposes "to be perfect as the Father who is in heaven" (Mk. 10:2; Mk. 5:48); and the fullness of perfection is love, charity (cf. Sum. Theol., 2a-2ae, q. 184, a. 1, ad 2). But Jesus Christ himself, by his words (Mk. 19:21; 11:12) and by his example (ibid. 8:20; Lk. 9:58), demonstrated that the Father in heaven can be loved in different ways and by different paths. He who is bound to the married state must tend to the love of God, in the exercise of the duties that such a state entails; he who freely uses his goods, in a just and charitable administration; he who orders his own life independently, in a reasonable succession of time and occupations; but God can also be loved by living in perfect chastity, in complete poverty, in absolute obedience. Such a form of life is objectively more perfect, and he who lives it is said to tend to evangelical perfection because he undertakes to translate into practice the evangelical counsels of poverty, chastity and obedience. It is a form of life not imposed by Jesus Christ on anyone, but free and of counsel because in him who embraces it, it demands a voluntary and complete donation to the service of God. When such a will of evangelical perfection becomes, in a certain way, stable through public vows or promises of poverty, chastity and obedience according to the constitutions and rules of a society, one has the r. in the canonical sense.

In addition to the general, fundamental and common end, every r. must propose a special end for the good of the Church and of human society; such a particular end is an essential condition for the granting by the Holy See of every new foundation. The multiplicity and diversity of special ends is in direct relation to the variety of human needs: the priestly ministry properly so called, missions, education, teaching, assistance to the poor, to workers, training in trades, care of the sick, protection of orphans, shelter of the aged, etc. Nor will the needs of society ever be so narrow and limited as to justify absolute opposition to new foundations of r., whenever these present themselves with marks of vitality.

It should be noted that the necessity of a special end responds not only, nor principally, to the requirement of an occupation in observance of the universal law of work, but aims to give concrete form to - and in this lies its fundamental meaning - the form and manner in which the members of a determined r. must tend to evangelical perfection.

II. DIVISION

The generic term, r., applies to various bodies which, although they essentially have the same elements, namely vows, authority, powers, etc., are nevertheless distinguished by some peculiarity for reason of these same elements and take different names. First of all there are the r. of men and the r. of women. In relation to vows, a distinction must be made between Orders and Congregations. An Order is the r. in which solemn vows are emitted; a congregation, on the other hand, is every r. in which, in fact and by law, only simple vows are emitted. A solemn vow is one that the Church recognizes as such; otherwise the vow is simple (cf. can. 1308 § 2). Between the two there is no essential difference. The distinction relates to the effects and does not concern the nature of the vows, which remains the same. In relation to the effects, it may rightly be said that the consecration of solemn vows is more profound than that of simple vows. This is affirmed in the recent const. Sponsa Christi, of 21 Nov. 1951: «The solemn vows, which import a consecration to God more rigorous and more profound than the other public vows, form the necessary and principal canonical note of the Orders» (cf. AAS, 43 [1951], p. 11).

In particular, for the effects of solemn vows and simple vows v. CHASTITY; OBEDIENCE; POVERTY.

It is not essential to the nature of an Order that each of its members emit solemn vows. Among the Jesuits, for example, not all pronounce solemn vows; and moreover in every Order a period of temporary simple vows necessarily precedes solemn profession (cf. can. 574). If by apostolic indult all the members of a r. emit only simple vows, while the constitutions would require solemn vows, the r. retains the title and character of an Order. This is the very frequent case in which the nuns have found themselves in Belgium, Holland and France.

Here the meaning of the terms first Order, second Order and third Order is to be noted. The first Order is the one that goes back directly to the founder: thus the Dominicans, the Franciscans, the Carmelites; the second Order is the Order of nuns who intend to live the same rule of the first Order, according to the same spirit: for example, the Dominicans, the Poor Clares, the Carmelites; the third Order, finally, groups together those laypeople who desire to have a share in the rule or spirituality of the Order, insofar as is permitted by their state: for example, the Third Order of St. Dominic, the Third Order of St. Francis, the Carmelite Third Order. Many Third Orders have gradually evolved to the point of themselves constituting a distinct r. Thus the Regular Third Order of St. Francis and various Third Orders that became female Congregations (v. THIRD ORDER).

In ancient times only the Orders corresponded to the concept of r. After the CIC even the religious Congregations definitively assumed the same qualification.

In relation to jurisdiction, a distinction is made between exempt r. and non-exempt r. Exempt is that r. which is not subject to the jurisdiction of the local Ordinary, except in cases expressly provided for in the CIC; thus, for example, the care of souls always belongs to the jurisdiction of the Ordinary. The major Superiors of an exempt r. have the power of jurisdiction in the internal and external forum and are called in law by the name of Ordinaries (cf. can. 198). The exempt r. is a kind of small personal diocese. On the contrary, a non-exempt r. is subject to the local Ordinary, except in the cases provided for by the CIC. However, even in non-exempt r. the bishop cannot interfere in the government of the Institute, although he always retains a certain duty of supervision over lay congregations (cf. can. 618 § 2);

The Orders are exempt by law (can. 615); Congregations can be so only by privilege (cf. can. 618 § 1). Thus the Passionists, the Redemptorists, the Verbites are exempt although they are simple Congregations. In practice, a non-exempt clerical congregation is often less dependent on the Ordinary than a lay Order even if exempt (v. EXEMPTION).

In relation to approval, there are r. of pontifical right and r. of diocesan right. The r. of pontifical right have received at least the decree of praise; those that have not yet obtained this decree are of diocesan right. The normal procedure in the process of approval of a r. involves the following successive acts: a) the bishop first approves the religious life in the form of a pious association (cf. can. 684 and agg.); b) subsequently, if the trial was positive, and if the Holy See permits it, he can erect the new foundation into a true r. (cf. can. 492); c) the new Institute remains under the jurisdiction of the bishop, who supervises its development both spiritual and temporal; during this time the Congregation remains diocesan, and is governed by constitutions and statutes approved by the bishop; d) when the new foundation extends beyond the limits of the diocese, the opportunity ordinarily arises to request pontifical approval. Through the mediation of the local Ordinary of origin and with the commendatory letters of all the bishops in whose territory there are houses of the new Institute, the question is presented to the S. Congregation of Religious, which, by degrees, makes the religious society a r. of pontifical right. The first step toward pontifical approval is the decree of praise, with which the Holy See, in a document that recalls the origin and purpose of the Institute, praises the new foundation. There follows the approval of the constitutions for a seven-year period, then definitive pontifical approval.

In relation to the quality of its members the r. are clerical or lay. In a clerical r., a good part of the members are invested with the priesthood. It is sufficient that the priests hold the government of the Institute even if the laymen are more numerous. Female r., naturally, are all lay; male Orders are for the most part clerical r.

Some minor distinctions should also be remembered: a) contemplative, active and mixed religious. Contemplative religious dedicate themselves principally to prayer, meditation and ascetic exercises. Active religious consecrate themselves more particularly to external works: preaching, teaching, care of the sick, etc. Mixed religious set out to combine contemplative life with active life in a fruitful unity. Evidently these divisions are not to be understood in a rigid sense. Contemplative religious do not renounce completely every form of apostolate, and religious of active life do not neglect prayer. But it is understandable, for example, that the apostolate of a Trappist entails essential differences from that of a missionary; b) mendicant and non-mendicant Orders. In rigorously mendicant Orders, neither individuals nor the religious as a body may possess. Juridical capacity is excluded, as is provided by can. 532. Only Franciscans and Capuchins figure in this category. The other mendicant Orders admit a certain ownership. Thus the Carmelites possess as an Order, but the individual Houses have no juridical capacity. Among the Jesuits some houses may possess.

Finally, mention may be made of the division of religious according to the four great Rules: a) Rule of Basil (v.), followed by the Eastern religious; b) Rule of St. Benedict (v.) adopted by the Benedictines, Camaldolese, Cistercians, Carthusians, etc.; c) Rule of St. Augustine (v.) taken as the fundamental norm by the Canons Regular, Premonstratensians, Trinitarians, Theatines, etc.; d) Rule of St. Francis (v.) followed by the Franciscans, Conventuals, Capuchins, etc.

III. ORGANIZATION

Every society requires an organization, a government, an authority. The Church, a supernatural society of a special character, is divided into particular societies that have their own organization. The religious institutes [r.], although all having a certain common organization, are nevertheless differentiated into centralized and non-centralized institutes. The former have a central government that commands the entire Institute and its individual parts, and all the individual members belonging to the institute. Such government is immediate when the Institute is not divided into intermediate parts, but admits only a General Curia and individual houses. In this first case, however, there may be groups of members over whom the central government places a Superior with merely delegated powers to the extent deemed useful and necessary for the development or the activities of the group. These groupings go under the name of delegations, autonomous groups, regions, visitations, etc. They fall outside the norms of the CIC [Code of Canon Law] and are determined solely by the law of the individual institutes.

More frequent, however, is the case in which the central government has a mediated power over all the individual houses and all the individual members, and between the General Curia and the individual houses there exist intermediate parts of the institute, recognized and organized in their essential elements by the CIC itself. These intermediate parts are ordinarily called provinces, but may have other names, such as inspectorates, visitations, custodies, etc.; they must possess those common juridical characteristics established by the CIC, which are at the same time the necessary prerequisites for their constitution, a matter within the competence of the institute but conditioned upon the confirmation of the Holy See. Among the principal requirements are: the existence of several religious houses whose economic solidity guarantees the development of the works of the province; a sufficient number of members, from among whom a Superior of the grouping may be chosen with ordinary rights and duties, even if vicarious, such as that of accepting into the Institute, of admitting to first profession, etc. These Superiors are known in law by the name of major Superiors (can. 488 § 8). Every province has the right to have houses of recruitment, of novitiate and of studies; however, the union of several provinces for this purpose is not excluded.

In centralized institutes, the Chapters are of particular importance as organs of extraordinary government. They may be general, when they gather the representatives of the entire institute, for elections and for legislation on the most important matters; they are provincial if only the representatives of the provinces take part. Provincial Chapters today generally do not have legislative power, but only, in some cases, that of election to provincial offices and, generally, of presenting candidates for offices and of discussing questions proper to the province, to be submitted afterward to the approval of the central government. The individual houses, in centralized institutes, are governed by a Superior with ordinary powers, varying according to the case and in relation to the lesser or greater centralization; always, however, such powers are of a purely executive order, nor do they ordinarily extend to admission into the Institute nor, still less, to profession. Dependence on the central power does not prevent provinces or even individual houses from having a juridical personality, whether in canon law or in civil law (can. 531); naturally, the power of action, of property and of administration is regulated by the constitutions of the religious society.

In some centralized institutes there also exist organisms superior to the provinces, the so-called "assistancies," which have, according to the individual constitutions of the institutes, either an administrative character or that of particular representation before the central government. Generally the assistancies are not moral persons (cf. Codex Iuris additicii Filiorum Immaculati Cordis B. M. V., Rome 1940, nos. 59 ff., 154 ff.).

A common characteristic of non-centralized institutes is the independence and autonomy of the individual religious houses, whose Superior is therefore a major Superior, with the rights and duties contemplated by the CIC (can. 488 § 8). Such a system is in use especially among monks and Canons Regular. It has its origin in the fact that monasteries were considered as chosen portions of the diocese in which they arose, and therefore dependent on the bishop in what pertained to the external forum and on the abbot in the internal forum. But in the West, as monasteries multiplied and these followed the same rule, a movement toward centralization was natural, especially when the necessity of a reform of the monasteries for greater holiness and a more efficient apostolate imposed itself. Thus arose the federative movements of St. Benedict of Aniane (v.), of Cluny (v.) and above all of Cîteaux (v.), etc. From all these movements, to which were added dispositions of the supreme pontiffs, there arose very diverse systems of government intended to safeguard the principle of autonomy but at the same time to create a central government which, with at least moral power, would be able to ensure the maintenance of the spirit and traditions of the institute. The impulse in this direction can be well documented by the history of the Order of the Black Benedictines, which culminates in the confederation established by Leo XIII on 12 July 1893 with the brief Summum semper (Fontes iuris can., III, no. 619), and still better defined in the Lex propria of the confederated Benedictine Order of 21 March 1952, published with the brief of Pius XII, Pacis vinculum (AAS, 44 [1952], p. 520; cf. Ph. Schmitz, Histoire de l'Ordre de St Benoit, Maredsous 1942-43).

Apart from the peculiarities mentioned, in non-centralized institutes there is the right of acceptance of members, of their formation in the novitiate, of houses of study for aspirants to the priesthood, of dismissal, etc., in each individual monastery.

While among the male institutes the federative movement became increasingly established, among nuns and Regular Canonesses the most rigid isolationist principle remained in force almost everywhere. Indeed, one must go back as far as the attempts of St. Peter Fourier to find examples of federations among independent monasteries. Even the monasteries of the Second Orders of the Mendicants, which were the true revolutionaries of the centralized system, had only a more or less vague and immediate dependence on the First Order, without the possibility of constituting themselves into federations or congregations. The Superior of the sui iuris houses of nuns therefore comes, in canon law, not only under the name of major Superior, but also of Supreme.

The Holy See currently favors a centralization in female Orders and monasteries, based on a reasonable adaptation of the concept of federation to modern needs. The constitution Sponsa Christi of Pius XII of 21 Nov. 1951 (AAS, 43 [1951], pp. 3-22) precisely indicates determined laws according to which the monasteries of the same rule or of the same spirit may federate, while leaving to each that autonomy which tradition has always rightly defended, on account of the particular conditions of the contemplative life.

The institutes have their own system of recruitment which ordinarily provides houses of aspirancy, of probation and of novitiate, houses for young professed, houses of rest, etc. The administration of the goods of an institute is regulated by its own norms which specify in concrete terms the general canonical prescriptions (v. BENI ECCLESIASTICI).

Giulio Mandelli