The Motu Proprio Omnium in Mentem
published today [Wednesday, 16 December 2009] contains several
amendments to the Code of Canon Law which had been under study for some
time by the Dicasteries of the Roman Curia and the Bishops' Conferences.
The changes concern two different questions, namely: adapting the text
of the canons defining the ministerial function of deacons to the
relative text of the Catechism of the Catholic Church (n. 1581);
and removing, in three canons dealing with Marriage, an insertion that
has proved unsuitable. The revised text of the modified canons is set
forth in the five articles of the Motu Proprio.
The first change concerns the text of canons 1008 and 1009 of the
Code of Canon Law, which deal with sacred ministers. In
explaining "the effects of the sacrament of Holy Orders", the first
edition of the Catechism of the Catholic Church had said that:
Per ordinationem recipitur capacitas agendi tamquam Christi legatus,
Capitis Ecclesiae, in eius triplici munere sacerdotis, prophetae et
regis (second sentence of n. 1581). Successively, however, in order
to avoid extending to the grade of deacon the ability to act in
persona Christi Capitis, which is reserved ex-elusively to
priests and Bishops, the Congregation for the Doctrine of the Faith
considered it necessary, in the editio typica, to modify
the draft of No. 1581 as follows: "Ab eo (sc. Christo) Episcopi et
presbyteri missionem et facultatem agendi in persona Christi Capitis
accipiunt, diaconi vero vim populo Dei serviendi in 'diaconia' liturgiae,
verbi et caritatis". On 9 October 1998, the Servant of God John Paul
II approved this amendment and mandated that the canons of the Code of
Canon Law be brought into line with it.
The Motu Proprio Omnium in Mentem, therefore, changes
the text of canon 1008 of the Code of Canon Law, which, by referring
indistinctly to the three grades of Holy Orders, will no longer state
that the sacrament confers the faculty of acting in the person of Christ
the Head. Rather, it will be limited to stating more generically that
one who receives Holy Orders is deputed to serve the People of God by a
new and specific title.
The distinction which exists in this regard between the three grades
of the sacrament of Holy Orders is now treated in canon 1009 of the Code
of Canon Law, with the addition of a third paragraph, in which it is
clarified that the minister constituted in the order of the episcopate
or the presbyterate receives the mission and capacity to act in the
person of Christ the Head, whereas deacons are empowered to serve the
People of God in the ministries of the liturgy, of the word and charity.
No changes needed to be made in the relative canons 323 § 1; 325 and
743 of the Code of Canons of the Eastern Churches, since the expression
agere in persona Christi Capitis is not used therein.
The other amendment which the Motu Proprio Omnium in Mentem
introduces concerns the elimination of the phrase actus formalis
defectionis ab Ecclesia Catholica in canons 1086 § 1, 1117 and 1124
of the Code of Canon Law, which, following a lengthy study, has been
deemed unnecessary and unsuitable. The phrase, which had been added to
the text of the canon, is not part of the canonical tradition and does
not even appear in the Code of Canons of the Eastern Churches. It was
meant to establish an exception to the general rule of Canon 11 of the
Code of Canon Law regarding the binding nature of ecclesiastical laws,
with the intention of facilitating the exercise of the ius connubii
by those members of the faithful who, due to their estrangement from
the Church, were unlikely to observe the prescription of canon law that
requires a form for the validity of their marriage.
Difficulties in interpreting and
applying the phrase, however, arose in a number of areas. For this
reason, the then Pontifical Council for the Interpretation of
Legislative Texts considered the expediency of removing the
aforementioned insertion from the three canons. The matter was first
discussed at the Plenary Session of 3 June 1997. The Fathers of this
Plenary Session approved the formulation of a dubium and the
relative responsum in order to provide for an authentic
interpretation of the precise legal meaning of the clause, but they
considered it fitting to begin by consulting the Bishops' Conferences on
the experiences, positive and negative, resulting from these
prescriptions, so as to be able to evaluate every situation before
coming to a decision.
The process of consulting the Bishops'
Conferences took place over the course of the next two years. About
fifty detailed responses were received by the Pontifical Council,
representing the five continents and including all those countries with
a considerable number of Bishops. Some places had no significant
experiences to report, but the majority pointed to the need to clarify
the precise meaning of the phrase or desired to eliminate it completely.
In this regard, related reasons drawn from juridical experience were
adduced: the appropriateness of not treating these cases differently
than civil unions between baptized persons who make no formal act of
abandonment; the need to demonstrate consistently that marriage is a
sacrament; the risk of encouraging clandestine marriages; additional
repercussions in countries where canonical marriage has civil effects,
and so forth.
The results of the consultation were then
submitted to a new Plenary Session of the Pontifical Council held on 4
June 1999, which unanimously approved the proposal to eliminate the
aforementioned insertion. The Servant of God John Paul II confirmed this
decision in the Audience of 3 July 1999 and ordering that the relative
legislative text be drafted.
In the meantime the elimination of this
insertion regarding the canonical discipline of marriage was tied to
another, quite different question demanding appropriate clarification, a
question which exclusively concerned certain central European countries.
This had to do with the issue of ecclesial effect of statements made to
taxation authorities by Catholics who declared that they did not belong
to the Catholic Church and consequently were not bound to pay the
so-called "worship" tax.
In response to this practical concern,
and thus in a different context from the strictly matrimonial context
envisioned by the aforementioned insertion in the three canons of the
Code, the Pontifical Council for Legislative Texts, in cooperation with
the Congregation for the Doctrine of the Faith, initiated a study aimed
at determining the essential conditions required for manifesting the
will to leave the Catholic Church. These necessary conditions were set
out in the Circular Letter to the Presidents of the Bishops' Conferences
which, with the approval of His Holiness Pope Benedict XVI, the
Pontifical Council for Legislative Texts issued on 13 March 2006 (cf.
Communicationes XXXVIII , 170-184).
While its purpose differed from that of
the present Motu Proprio, the publication of the Circular Letter served
to strengthen the conviction that the aforementioned insertion in the
canons on marriage should be eliminated. This is precisely what has
happened with the present papal document. The text of the Motu Proprio
was examined at the Plenary Assembly of the Pontifical Council for
Legislative Texts on 16 June 2009, chaired for the occasion by the
Cardinal Secretary of State.
The practical importance of the
modification of canons 1086 § 1, 1117 and 1124 of the Code thus deals
with marriage. From the entry into force of the Code of Canon Law in
1983 until the moment when this Motu Proprio took effect, Catholics who
had made a formal act of abandoning the Catholic Church were not bound
to the canonical form of celebration for the validity of their marriage
(canon 1117 of the Code of Canon Law), nor was the impediment of
marrying non-baptized persons (disparity of cult, canon 1086 § 1) or the
prohibition of marrying non-Catholic Christians applicable to them
(canon 1124). The aforementioned phrase inserted into these three canons
represented an exception of ecclesiastical law to another, more general
norm of ecclesiastical law, according to which all those baptized in the
Catholic Church or received into her are bound to the observance of
ecclesiastical laws (can. 11).
From the entry into force of the new
Motu Proprio, therefore, canon 11 of the Code of Canon Law regains its
full force with regard to the content of the canons, now amended, also
in those cases where a formal defection has taken place. Consequently,
for the subsequent regularization of unions entered into in violation of
these rules, recourse will have to be made, insofar as this is possible,
to the ordinary means offered for these cases by canon law: dispensation
from the impediment, sanation and so forth.
In conformity with the dispositions of
canon. 8 of the Code of Canon Law, the Motu Proprio Omnium in Mentem
will be formally promulgated by its publication in the Acta
Apostolicae Sedis and will "become effective only after three months
have elapsed from the date of that issue of the