In the context of the recent reform of the canonical matrimonial process an innovation was introduced in can. 1673 § 1, which has so far been barely commented upon: thus Pope Francis has raised to two the number of lay judges who may contribute to forming a college of three judges. No limitations are indicated with regard to the two lay people, who may be men and women without distinction. Such a measure necessarily refers to the inherent question, the power of the Church and its exercise by not only clerics but also lay people. That baptized men and women, although they are not ordained, are capable of exercising the power of jurisdiction is expressly indicated in the general norms of the Codex iuris canonici . (cf. Can. 129 § 2). The above mentioned Motu Proprio Mitis Iudex Dominus Iesus of 7 September 2015, in establishing that the majority of the college of judges can also consist of lay people, defeats the argument of those who maintained that the power exercised by lay men or women was only effective by virtue of a decision taken by a college whose majority was constituted by priests: these authors added that the lay judge thus did not exercise a real power of jurisdiction.
A particularly valuable scientific contribution to this area of reflection has been made by a recent historical, juridical and canonical study (the subject of a doctoral thesis defended at the Faculty of Canon Law of the Pontifical Gregorian University and honoured in 2016 with the prestigious prize, the Premio Bellarmino, (cf. Roberto Interlandi, Potestà sacramentale e potestà di governo nel primo millennio. Esercizio di esse e loro distinzione, Rome 2016).
The author, reviewing the first millennium, shows that in Church procedures, in both the East and the West, a practical awareness existed of the real distinction between sacramental and governmental power. In fact the historical (and not only liturgical) sources taken together enable us to recognize a function, at the same time unitary, pastoral, sacramental and governmental, towards the end of the 2nd century – when the distinction between laypeople and clergy was expressed clearly – held to be sacramental (today we would say a munus), which in order to be exercised further required the necessary power, distinguished as sacramental and governmental functions: it was impossible for this function to be deprived of the sacramental power, from which laypeople were radically excluded, since it originated in the indelible sacrament of Orders; on the contrary, however, it could be stripped of governmental power in which laypeople, both men and women, could share.
It was only from the second millennium that doctrinal elaboration of this matter was embarked on, whereas from the beginning of the 12th century evidence of such a distinction is to be found, as the author shows with a wealth of very interesting examples, in the liturgical, pastoral, disciplinary and juridical life of the first Churches.
It is extremely interesting that from the early centuries not only men but also lay women, by virtue of Baptism, shared in the exercise of ecclesiastical power. The participation of women in sacramental power was permitted in a limited fashion, since lay people were able to administer Baptism under specific conditions and were themselves considered ministers of the sacrament of marriage.
However, the participation of lay people in governmental power has been becoming broader and more notable since the first millennium: they shared in legislative power, given their active participation in important councils on matters of discipline and faith which concluded with the official introduction of true and proper norms. Only think, to give a few examples, of the Council of Rome in the year 251 and of the Councils of Carthage in 256 and 411.
In addition, lay people exercised judicial powers with a mandate from the bishop, especially in the sphere of the episcopalis audientia. Finally, evidence exists of their involvement in the exercise of administrative power, given that laypeople too formed part of an electorate that was not only passive but also active, considering the ever clearer distinction between election, in which laypeople took part, and consecration, reserved instead to the bishops and the pope.
As the author writes, from the first centuries “In the practical conscience of the Church, although this was unintentional and not declared”, it was a known fact that “Through the sacrament of Orders an additional sacramental power was conferred, necessary in general for the licit and valid administration of the sacraments; however, for the exercise of governmental power, Baptism, through which one comes to belong to the Christian and ecclesial community, sufficed”.
Interlandi’s study therefore makes a scientific contribution of great value for reflection on the subject of power in the Church, constituting a further foundation, on the basis of the practices of the early centuries, for the entrustment to laypeople – today both men and women, without distinction – of offices which entail an exercise of the true and proper power of jurisdiction, as is the case of judges in the tribunals for causes of the annulment of marriages.
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