• I. The Oneness of the Priesthood of Christ, Root of the Unity and of the Diversity between the Common and the Ministerial Priesthood
• II. Unity and Oneness of the Sacra Potestas
• III. Conclusion

I. The Oneness of the Priesthood of Christ, Root of the Unity and of the Diversity between the Common and the Ministerial Priesthood

1. Theology affirms that the ministerial priesthood has the specific function of representing Christ as Head of the Mystical Body, which is the Church, whereas the common priesthood has the task of representing Christ according to a more generic formal notion, which theology generally has not been concerned to define. Although this affirmation is exact in itself, it is not able to give a plausible explanation for the origin of these two different modes of representing Christ, on account of the pragmatic character of the conception.
It can be stated further that the ministerial priesthood is conferred with the sacrament of Orders, whereas the common priesthood – the only form which the laity participates in – has its origin in Baptism. However, this still does not enable one to arrive at the ultimate cause of the difference between the sacramental effects of Orders and of Baptism. It is a diversity that can inferred from, but still not sufficiently explained by the affirmation common to the entire theological tradition, that Baptism and Orders are two autonomous sources of participation in the priesthood of Christ. Orders is not the sacramental development of Baptism (and of Confirmation), nor does Baptism derive from the sacrament of Orders.
That the common priesthood of all the faithful does not consist in a participation in the ministerial priesthood as such, but in a direct participation of the priesthood of Christ, is manifested by the fact that the sacrament of Orders can be conferred only after the reception of Baptism, 1 declared by Vatican II to be the “ianua” of the other sacraments. 2
Since from the examination and comparison of the constitutive elements of Baptism and of Orders it is not possible to deduce with certainty the discriminating reason for the difference between the common and the ministerial priesthood, it is necessary in order to discover it to go back to the very nature of the one priesthood of Christ in which both Baptism and Orders participate. 3

2. According to Hans Urs von Balthasar, two formally distinct components can be distinguished in the priesthood of Christ: one subjective and the other objective. 4
In the essence of his personal structure, Christ is He who gives Himself totally to the Father in love, renouncing all that belongs to Himself. He can renounce the privilege of the divinity, which belongs to Him by generation, because He can deposit it with the Father in the moment of entering history. He can renounce the humanity which has been assumed, because He can lose it through death on the Cross. 5 For love of the Father, Christ can even renounce, as on the Cross, the certainty of being assisted and accompanied by Him in the extreme moment of death.
In the love of Christ for the Father, which touches the summit of spoliation of self in total obedience to His will, the two fundamental aspects of His priesthood are realized. The subjective aspect is that through which Christ continually offers His entire self to the Father, in virtue of the love which generates Him from eternity. The objective aspect is that through which Christ lets Himself be sacrificed by the Father on the Cross, as a victim immolated for the expiation of all the sins of the world.
The absolute perfection of the love of Christ for the Father derives from the perfect unity existing in His person between He who offers Himself from eternity in a sacrifice of love and He who is sacrificed in time as a victim.
This second objective aspect of the priesthood of Christ of “expiatory” obedience to the law is not, however, added on from the outside in an accidental way as in the priesthood of the Old Testament, but constitutes, together with the first aspect (the subjective aspect of love), the very essence of the unity of the person of Christ. From the formal perspective, the priesthood of Christ is not exhausted in the subjective element of love to the Father, since this same love also assumes on the Cross the objective modality of total submission in obedience to His will.
Although originating in the expressive summit of the love of the Son towards the Father, this absolute obedience formally assumes also the legal modality which had already characterized the priesthood of the Old Testament, in which the expiation of the sins of the people was considered to be the fruit of the blood of many victims shed in the name of the Law. The blood of Christ on the Cross, sign of the objective obedience of the Son towards the authority of the Father, prefigured by the sacrificial authority of Abraham over Isaac, is shed instead for love, once and for all, on the Cross for the remission of all the sins of humanity. Christ lets Himself be sacrificed by the Father in absolute and extreme obedience to His will, up to the point of feeling Himself to be abandoned by Him on the Cross. Realizing this extreme act, Christ affirmed before the world the supreme authority of the Father, thus giving rise to the priesthood of the New Testament.
The transcending of the priesthood of the Old Testament consists in the fact that Christ, although formally assuming also the role of the sacrificed victim, consummates the supreme gesture of objective and legal obedience, performed not in the name of the Law, but on account of His love for the Father. This makes it impossible for the new economy of salvation still to be considered as an economy of the Law. 6
Every other realization of the priesthood of the New Testament can only be a participation and thus an imitation of the absolute and eternal priesthood of Christ. Whereas the priesthood of the Old Testament was characterized by the disjunction of the active from the passive modality, so that he who sacrificed and that which was sacrificed did not coincide in the same person, in Christ both formal elements are reunited.
However, at the moment of the passage from the priesthood of Christ to that of the Church, the two elements, although remaining strictly complementary and not extrinsic to one another, are distinguished once more. Conferring His own authority on the Church, Christ gives to the faithful the possibility of living the subjective formal dimension of love in a full way, in objective obedience.
The totality of the subjective gift of the Christian to Christ in love is guaranteed, in its authenticity, by the objectivity of obedience to the authority of the ministerial priesthood which carries out a function of service in the Church: that of representing Christ as Head in the service of the unity of the Church.
The Christian participates in the subjective dimension of the priesthood of Christ, in so far as in Baptism he is made a participant in the love itself of the Son for the Father. In order for him to realize his own priesthood according to all the radical exigency of love, the Christian has need of an objective and external authority which has the legitimacy to provoke him concretely and in an inescapable way, as the Father provoked the Son up to the point of death on the Cross. To realize this plan, Christ has conferred an authority on the ministerial priesthood in the Church that is expressed through the potestas sacra. 7
The different participation in the priesthood of Christ in Baptism and in the sacrament of Orders thus finds its origin in the formal diversity according to which the priesthood of Christ Himself is realized.
The perfect unity of these two elements in Christ finds its analogical correspondence in the fact that the common priesthood of the faithful, in so far as it is a participation in the subjective formal aspect of the priesthood of Christ, continues to subsist also in those who are made participants in the ministerial priesthood through the sacrament of Orders: that is, in the objective and legal aspect of the priesthood of Christ.
The common priesthood which constitutes the Christian in the lay state – both when he lives in the world, as well as when he accepts the vocation to the radical demands of love in the “status perfectionis” based on the evangelical councils – has need of the authority of the ministerial priesthood to provoke him, in the demand of obedience, to the objectivity of love, so as to be able to participate fully in the formal objective dimension of the priesthood of Christ.

3. The essential diversity of the two priesthoods, common and ministerial, maintained by the Church through the teaching of Vatican II, 8 thus turns out to have its origin in the fact that in the New Testament the perfect unity between the person who sacrifices and the one who is sacrificed is realized only in the person of Christ. In the participated priesthood received by the Church from Christ, the two elements are found disjoined, not only in a formal but also in a real sense (although in a way that is only partial in comparison with the priesthood of the Old Testament). This is because of the fact that, due to the structural diversity of Baptism and Orders, they are realized in different persons.
The disjunction is only partial (so as to create a substantial complementarity and basic unity), both because the common priesthood continues to subsist as a subjective vocation to perfect love also in those who are invested with the ministerial priesthood, as well as because the ministerial priesthood would no longer make sense in the New Testament if there did not exist the common priesthood of all the faithful. The priesthood of the New Testament is not necessary for the purpose of offering the sacrifice through the medium of a third party, as in pre-Christian religions, or in the name of the faithful as in the Old Testament, but it is necessary for the Christian to be able to offer himself together with Christ, in the full objectivity of obedience to the Father.
The common priesthood, although it can potentially be realized as a completed expression of participation in the love of Christ towards the Father also in the priesthood of all the faithful, is structurally guaranteed in its perfection only within the “status perfectionis,” where man is no longer “divided.” 9 Even in this state, however, one remains structurally incapable of expressing the second formal aspect, that of the legal obedience of the priesthood of Christ. In contrast to Christ, who is only one substance with the Father, the Christian can realize objective obedience only in virtue of the external intervention of another person.
It is for this reason that the authority of the Church is guaranteed by virtue of acts “ex opere operatum,” so that it is possible to prescind in the last analysis from the personal sanctity of those who are invested with the ministerial priesthood. This is also the reason for the fact that the “status perfectionis” as juridically structured (religious Orders and congregations), is not realized as a particular Church. Besides lacking the sacrament of marriage, the fullness of the sacrament of Orders is also lacking: that is, the episcopate. This renders it radically dependent on the hierarchical authority of the particular and universal Church, independently of all forms of exemption.
The continuation of the common priesthood also in those who are invested with the ministerial priesthood has the purpose of emphasizing the unity of the priesthood itself. However, it also impedes the ordained minister from thinking himself to be dispensed from realizing in his person the exigency of love of which the common priesthood is constituted, as a participation in the formal subjective aspect of the love of Christ. On the other hand, if all the faithful as such did not participate in the subjective formal aspect of the priesthood of Christ through the common priesthood, the legal or objective priesthood would not longer make sense in the New Testament, since the one and only sacrifice and the one true offering, both from the active and passive perspective, is Christ Himself. As dedication in love, of which every Christian is capable, the common priesthood in the New Testament is therefore no longer only the work of man. In virtue of the insertion of man into the mystery of Christ, through the sacrament of Baptism, it is first of all an act of participation in the one exclusive sacrifice realized by Christ.
The ministerial priesthood has the specific function of rendering the formal objective aspect of Christ’s priesthood present in the Church, through which the absolute authority of the Father over the Son is manifested in history. This authority, which is given by the Father to the Son, and from the Son to the Church, operates at the institutional level in the potestas sacra with which the ministerial priesthood is invested. 10
The lay person, or faithful as such, is invested in virtue of the sacrament of Baptism only with the subjective aspect of the priesthood. 11

4. Already in the person of Christ, the subjective priesthood is primary with respect to the objective and legal priesthood, being the expression of the eternal and perfect love of the Son for the Father, and therefore, the foundation of the objective formal aspect itself. The radical obedience, manifested on the Cross by the Son to the authority of the Father, has its genesis in the love with which, from eternity, the Word is constituted as Son by the Father from whom He is generated.
The common priesthood of the faithful does not therefore represent a lesser form of participation in the priesthood of Christ with respect to the ministerial priesthood, but a participation which, according to the Second Vatican Council, is substantially distinct from the latter. The ultimate reason for this diversity is found in the same formal diversity which exists in Christ between the subjective and objective aspects of His priesthood. The fact that the formal diversity existing in Christ between the subjective and objective aspects is translated at the ecclesial level in a substantial diversity, is explained by the analogical nature of the participation of the priesthood, whether common or ministerial, in the priesthood of Christ.
In so far as it is an ontological participation in the eternal love of the Son for the Father, mediated through the sacramental “character” of Baptism, the common priesthood of the faithful exhausts in itself, although in an imperfect form, the original and primary aspect (from the formal perspective) of the priesthood of Christ.
The objective formal aspect is only comprehensible in relation to the foundational subjective element of the eternal love of the Son for the Father. Without this relationship of unity and dependence, the objective and legal sacrifice of Christ on the Cross would not have had the necessary dimension to realize the definitive redemption of humanity. Christ is the perfect victim only because He loves the Father from eternity with that perfect and complete love which constitutes Him as Son of the Father.
Therefore, it is profoundly incorrect to define the common priesthood of the faithful negatively, as a form of non-participation in the ministerial priesthood. This negative approach to the problem does not grasp the fundamental element of the common priesthood, which is that of being a direct participation in the love of Christ for the Father. In virtue of this participation, the common priesthood of the faithful is constituted as a reality that is primary with respect to the ministerial priesthood.
Before being founded on the ministerial priesthood, the constitution of the Church is founded on the common priesthood of all the faithful. Its priority is given by the fact that it is an analogically complete participation in the love of the Son for the Father, from which, in the person of Christ Himself, the legal aspect of His priesthood derives.

5. This theological affirmation should find its institutional application also in canon law. The draft of the new codification (of 1980), like that of the “Lex Ecclesiae fundamentalis” (of 1978), have not succeeded in overcoming the traditional approach of the Code of 1917, which puts the treatment of clerics before that of the laity. 12
It is true that this order has been followed also in the systematization of LG, which speaks first of clerics (chapter III) and then of the laity (chapter IV). However, one cannot fail to observe that this is not in harmony with article 10, 2 of LG itself, in which the theme of the relationship between the common and the ministerial priesthood is treated. In the first phrase of this article, the common priesthood is put before the ministerial priesthood, whereas the order is inexplicably reversed in the following phrase. Chapters III and IV of LG follow this inversion, thus accepting the traditional conception, embodied in the Code of 1917.
At a distance of twenty years from the Council, it is licit to ask whether in Chapter II of LG, dedicated to the People of God – to which art. 10 also belongs – it would not have been more exact to speak not of the common priesthood, but more universally of the priestly character of the people of God. This would have made it possible to include in the discourse both the common as well as the ministerial priesthood. The insistence on the common priesthood (art. 10 and 11) within Chapter II falsifies the perspective, since this does not comprise the entire priestly dimension of the people of God. The ministerial priesthood also belongs to it.
If the theme of the common priesthood had not been unduly completed in Chapter II, it would have been possible to avoid reducing the problem of the common priesthood to the theme of the laity in Chapter IV. The laity as such, in fact, do not exhaust in themselves the entire realization of the common priesthood, which continues to subsist also in clerics, and which is present also in religious, whether ordained or not. The laity represent only the subject in which the common priesthood is realized according to its secular modality. Religious also, when they are laity, are invested with the common priesthood, although not according to the secular modality but rather with the modality proper to the state of the evangelical counsels.
Evidently it is a question of defining the sense of the term “secular,” giving it a meaning that is not sociological (the fact of living materially in the world), but theological. From the theological perspective, lay religious do not have the same function in the Church which is entrusted to those members of the laity which LG(31, 2) has defined on the basis of their “secular character.” The secular character attributed by LG to these members of the laity is not of a sociological but of a theological nature. 13
The task of these members of the laity, which in the fullness of their ecclesiological function is expressed in the sacrament of marriage – in which there occurs the point of suture between the natural and the supernatural 14 – is that of realizing in and for the Church the cultural mandate given to man by God in creation. Both can. 107 (Code of 1917) and Vatican II (LG 43, 2) affirm that the condition to become a religious is that of being either a member of the laity or a cleric. This is true if the term “lay” is understood in its purely sacramental meaning – that of being only baptized (and confirmed) – and not according to the theological meaning of the term “secular.” It also follows that the inverse affirmation, according to which religious can be clerics or laity, has its own truth, under the condition that the term “lay” not be understood according to the meaning proper to the “secular character,” but according to its purely sacramental sense (that of being baptized).
The religious state is not a state that is simply superimposed on the other two. It has its own constitutional autonomy, since the evangelical counsels must be recognized as having their roots in the ius divinum of the constitution of the Church.
Therefore, it seems to us that the draft of the “Lex Ecclesiae fundamentalis” and that of the new codification, following in the footsteps of Vatican II, confront the problem of the evangelical counsels in a reductive way. It is true that in order to define them, it is not sufficient to affirm negatively that they do not belong to the hierarchical structure of the Church. However, it is also insufficient to affirm that they belong to the life and sanctity of the Church (as does can. 202 § 2 of the new draft and can. 25, 2 of the LEF), if by this affirmation one seeks to avoid stating that they, like the distinction between clerics and laity, are rooted in the “ius divinum.” A constant thread of the theological tradition has justly considered the evangelical counsels as a reality of divine law and therefore as belonging to the essential structure of the Church. 15
With regard to the proposal to have the laity precede clerics in the systematic presentation of canon law, one might object that LG, in art. 23, 1, affirms that the bishop is the “visible principle” (the Pope is also the “perpetual” principle) “and the foundation of unity in his particular church.” However, principle and foundation here do not seem to signify a priority of the ministerial priesthood over the common priesthood, but simply to indicate their specific function. Without the ministerial priesthood the People of God, although priestly already on the basis of the common priesthood, cannot be constituted into the Church in the theologically correct sense of the term.
This is the reason for which Vatican II has distinguished between the notion of “church” (which includes also that of “separated Church”) and that of “ecclesial community.” 16 The ecclesial communities are distinguished from the Churches by the fact that they only possess the common priesthood. 17 However, on account of their “ecclesial” character they are incommensurably differentiated from simple non-Christian “religious” communities. The distance or qualitative difference between the ecclesial communities and the Churches is less, in any case, in the ordinary economy of salvation, than that which separates religious communities from ecclesial ones.

This depends on the fact that in so far as they are defined by their participation in the subjective status of Christ, the ecclesial state of the baptized is incommensurably superior to the natural state of the non-baptized, which in their being the created image of the mystery of the Trinity, do not yet participate in the supernatural ontological dimension conferred by Baptism. The qualitative gap existing between the Christian and the non-baptized person is therefore superior to the gap, also substantial, existing between the common priesthood and the ministerial one. Both of these are no longer natural, but supernatural participations in the priesthood of Christ. The distance between nature and the supernatural is superior to any differentiation of states existing within the supernatural realm.

II. Unity and Oneness of the Sacra Potestas

1. Reevaluating the ancient theological tradition, Eastern and Western, but without wishing to take a position on the ecclesiological value of the distinction between the power of Orders and that of jurisdiction – introduced into canon law before the twelfth century 18 – Vatican II has put the accent on the unity of the sacra potestas. 19
The distinction between Orders and jurisdiction is the result of a deliberation, lasting almost a millennium, aimed at resolving two underlying constitutional problems: that of the validity of sacramental acts placed by ministers who in one way or another have broken with ecclesial communion, and that of the validity of absolute ordinations, prevailing in the practice of the Latin Church, notwithstanding the prohibition of the Council of Chalcedon. 20 That an excommunicated or deposed bishop can no longer be considered as a legitimate pastor of the People of God was never put in doubt even in the first centuries. More difficult, on the other hand, was the problem of understanding whether he could still validly baptize and consecrate. This was true until Gratian and the decretalists succeeded progressively in formally distinguishing two powers in the activity of the ministers:21 a power of Orders and a power of jurisdiction. According to Mörsdorf, they are distinct both with regard to the modality of their transmission as well as their stability and function. 22
Beginning with the scholastic period, the idea began to prevail that the power of Orders has its field of activity in that which concerns the real Body of Christ, whereas the power of jurisdiction has the mystical Body of Christ as its field of action, understood in a reductive way as the extrasacramental or juridical area in the life of the Church. 23 In this perspective, the distinction between Orders and jurisdiction becomes material instead of formal, provoking a split into two elements, not only of the sacra potestas, but also in the structure of the Church. In this way in the High Middle Ages a distinction began to be made within the Church, according to which a sacramental area within which only the power of Orders can act, was contrasted with an extrasacramental field in which only the power of jurisdiction is able to act.
This latent antinomy between the spirit and the letter, and between charity and law, present not only in theological reflection, but above all in the spiritualist movements that flowered between antiquity and the Middle Ages, exploded in the radical ecclesiological split provoked by the Reformation with the clear separation between a hidden Church (abscondita) and a universal or visible Church (universalis seu visibilis).
Having consummated the split between the two areas and the two powers, medieval theology passed on to inquire into their origin, arriving at the conclusion that, in bishops, only the power of Orders has its origin immediately from God, in the act of their consecration, whereas that of jurisdiction was conferred on them by the Supreme Pontiff, “fons et origo omnis potestatis.” 24
A further doctrinal development occurred towards the middle of the last century which has further obscured the original significance of the distinction between Orders and jurisdiction. Following the implantation of the doctrine of Calvinist extraction of the three offices of Christ (priestly, prophetic and regal) – which occurred first of all in the doctrine of canon law through the work of F. Walter and G. Phillips, and then in ecclesiology – theology has not been able to resist the temptation to assign to each of these three munera a specific material area of activity, transforming them into three true powers. The ancient pair of Orders and jurisdiction was thus substituted by a threefold division: power of Orders, of Magisterium and of jurisdiction. 25
The same doctrine of the three munera was, for that matter, taken as a systematic basis for the entire ecclesiology of Lumen gentium, which, however, did not make use of it as a trilogy to which there corresponded three distinct powers. 26 Opposed to this, in fact, is the impossibility of making an adequate distinction between the power of jurisdiction and that of magisterium. Furthermore, other “functions” besides the tria munera can be attributed to Christ, which medieval theology did in abundance. To the systematic utility of the trilogy adopted by the Council, there thus does not correspond a solid dogmatic value. 27 It is symptomatic in this regard that Pope John Paul II has not hesitated to affirm that “it is necessary to speak of a triple dimension of the service and mission of Christ, rather than of three different functions.” 28
For contemporary dogmatic theology and canon law, the problem is not whether there exist two or three powers, but rather of establishing the relationship that exists between the tria munera of Christ and the potestas sacra. As a result, the question is posed, on the one hand, whether it is still possible to maintain in theory the distinction between the power of Orders and of jurisdiction.

2. Up until today, the solutions proposed by theology have remained substantially two.

a) One theory interpreted in terms of content the principle taken from can. 109 of the 1917 Code, according to which the power of Orders was conferred by the sacrament and that of jurisdiction by the missio canonica. 29 According to this view, the distinction as such remains formal, in the sense that a specific and distinct area of intervention is not attributed to Orders and jurisdiction (respectively, the “Corpus Christi verum” and the “Corpus Christi mysticum”). However, following the immanent significance of juridical language, it was held that Holy Orders and the missio conferred, each according to different modalities, two distinct parts of the potestas sacra.
They remain, nevertheless, reciprocally dependent on each other, either because of the principle of can. 118 (according to which the power of jurisdiction could be conferred only on someone who is ordained), or because it is evident that Orders and jurisdiction work together in producing the sacramental effect at least in the case of some sacraments, as for example those of Orders and Penance. It is for this reason that, according to the common opinion of theologians and according to the norms of canon law, sacramental absolution given without jurisdiction is considered invalid. 30 According to this teaching, the unity of the potestas sacra is saved, but the unity does not coincide with oneness.
On the basis of this presupposition oriented in terms of content, it is easy to give a plausible explanation to all the typical recurring cases of Latin theology, such as that of the invalidity of sacramental absolution given without jurisdiction, that of absolute ordination (where Orders and jurisdiction are conferred separately), that of ordinations “extra communionem ecclesiasticam” (or “extra muros”) and that of priestly ordinations done by a simple priest, thanks to a papal indult. 31
If one leaves aside the problem of absolute ordination, it is sufficient to admit, in order to resolve these cases, that the Church is able to render certain sacramental acts valid or invalid in virtue of the power which she has to confer or to take away jurisdiction. The existence of different grades in the sacrament of Orders (episcopate, presbyterate and diaconate) can also be explained on the basis of the different “quantity” of jurisdiction, conferred with the missio canonica.
The voluntaristic danger immanent in this conception comes out in a particular way in the solution that is given to the problem of ordinations extra communionem. The validity of ordinations extra muros, as for example in those of the Orthodox Churches, is explained by the theory according to which the Catholic Church, instead of taking away the power of jurisdiction – as she would be able to do – and thus of rendering Orthodox ordinations invalid, prefers from an ecumenical perspective to tolerate that it be used illegitimately.
However, since theology has abandoned the thesis that the power of jurisdiction is given to bishops directly by the Pope, in order to take up the more plausible theory according to which jurisdiction is conferred on them by God, whether passing through the mediation of the missio canonica conferred by the Pope, or directly in virtue of episcopal consecration, 32 this doctrine has had to have recourse to an atypical explanation with respect to its own system. This was necessary in order to save the principle which has been definitively affirmed in the Latin Church from the 12th century, according to which a bishop is always able to validly consecrate, even when he has lost his own office and hence the power of jurisdiction. 33
The decisive step in this matter was taken by Mörsdorf with the thesis according to which the bishop, in episcopal consecration, does not only receive the power of Orders, but also an indelible foundation of jurisdiction which he calls “Grundbestand an oberhirtlicher Gewalt.” 34 In order to become pastor of a particular Church, the newly consecrated bishop still needs to receive, together with the canonical office conferred on him by the missio, the part of jurisdiction which he is lacking.
The value of the innovation introduced by Mörsdorf lies in having introduced an objective element: the substrate (Grundbestand) of jurisdiction conferred on the bishop in his consecration. In addition to explaining the constitutional superiority of the bishop with respect to the presbyter, the existence of this substrate permits one to explain the validity of ordinations extra muros without the need to have recourse to voluntaristic solutions. Every bishop receives – independently of the will of the Pope – a sufficient measure of jurisdiction to enable him always to be able to consecrate validly, even when he does so extra communionem ecclesiasticam.
It is clear that the disharmonious aspect of this solution lies in introducing, with theGrundbestand, an exception to the system, precisely with regard to episcopal consecration, recognized by theology and the Magisterium as a fullness of the sacrament of Orders and therefore as a source of the inferior grades of Orders itself. 35

b) A second theory starts instead from the presupposition that all the potestas sacra is conferred by the sacrament of Orders. This position affirms that the Church has the power to loose and to bind, ad validitatem, the potestas sacraconferred by the sacrament. 36 This explains the invalidity of sacramental absolution given without “jurisdiction,” the system of relative ordination (in which the office is conferred simultaneously with consecration), the system of absolute ordination, priestly ordination done by presbyters, as well as the existence of different grades of the sacrament of Orders (given the substantial unity of Orders itself).
However, since according to the hypothesis formulated by this position, a power of jurisdiction understood as a distinct part of the potestas sacra does not exist, it follows that the power of the Church to loose and to bind has only a formal character. It is evident that this second position is still more markedly voluntaristic than the former, since the entire dynamic proper to the functioning of the sacrament of Orders is made to depend on the will of the Church. Furthermore, one must ask oneself how it is possible, without falling into an antinomy, to conceive of the existence of a material “power” (that of Orders), which can be totally neutralized by a formal “power” (that of jurisdiction), without its formally ceasing to be a potestas. Jurisdiction, although according to this second theory it is a purely formal power (without proper content), would in practice becomes the only true power of the Church.
The substantial difference between the first and the second theories lies in the fact that whereas the first attributes a material content both to Orders and to jurisdiction, the second assigns a material content solely to the power of Orders, while a solely formal value is attributed to the power of jurisdiction. 37

3. It seems possible to hypothesize a third solution to the problem, under precise conditions. Mörsdorf has seen that the distinction between Orders and jurisdiction has its ultimate root in two constitutive elements of the Church itself: Sacrament and Word. 38 This intuition reveals a theological link capable of overcoming the connatural limits of the functional nature of juridical language (which thus is easily capable of being reductive). 39 The symbolic sign and the word are in fact the two human modalities of communication used by God already in the Old Testament to reveal Himself to man. In the economy of salvation, both the symbolic sign and the Word of God have assumed an eschatological definitive quality which gives them that objective sacramental efficacy which theology expresses by means of the idea of “ex opere operatum.” This is true, not only because the Word already has a sacramental efficaciousness in itself, 40 in the sense that it has a salvific value and is binding before – and not only after – it has been received “interius in corde” (as Protestant theology maintains), but also because the Word is structurally ordered towards the symbolic sign and is indispensable for the latter to receive a sacramental value. 41 The Word of God, in fact, is never pronounced in the economy of salvation in a way that is disconnected from the sacred sign: that is, the sacraments. On the contrary, it has an integral salvific value (contrary to that which is presupposed in the doctrine of sola scriptura), only if it tends to be realized (or “become incarnate”) in the sacramental sign. This happens by analogy with the mystery of the Incarnation of the Word in the humanity of Christ.
Word and Sacrament are thus not only structurally reciprocal but are also inseparable from each other. They are the two different formal modalities by means of which God manifests and communicates grace, that is salvation, which is not only a unified reality but also a reality which is unique and indivisible into parts.
As God manifests Himself in His totality and uniqueness both in the sacraments and in the Word, so the uniqueness of the potestas sacra is manifested through the two institutional modalities which canon law has referred to as the power of Orders and the power of jurisdiction. At an institutional level, Orders and jurisdiction are the instruments through which the entire potestas, and not just a part of it, operates. They are the two modes of expression of the one potestas sacra.
In the power of Orders, the dominant element is the structure of communication proper to the symbolic sign, that is, the Sacrament; in the power of jurisdiction the prevailing element is the logic of communication proper to the spoken language, that is, the Word. The potestas sacra operates, therefore, according to two different formal modalities: that of the sign which the doctrine of canon law has defined as the power of Orders, and that of the word, which canon law has defined as the power of jurisdiction (“iuris dictio”). It follows that the distinction as such between Orders and jurisdiction is formal and not material. It is not formal only in the sense that was grasped by the canon law doctrine of the 12th century, which distinguished them on the basis of the diversity of their transmission, duration and function, but rather in the sense that two different parts of the sacra potestas are not at work in the two powers, but rather all the power of the Church in the integrity of its content is operative in both of them. 42
The entire juridical order of the Church, whose most obvious expression is “jurisdiction,” is, for that matter, conceived in the service of the celebration of the sacraments. 43
Since the structure of the economy of salvation has the mystery of the Incarnation of the Word in Christ for its foundation and model, it cannot be thought that the sacra potestas could be expressed only according to the modality of jurisdiction, without the existence of a substantial connection with the power of Orders. This would be contrary to the entire Orthodox tradition, which has always conserved relative ordination as their only system. The Catholic-Latin system also, although it has adopted the system of absolute ordination, has always recognized, with the doctrine of “indelible” character, a structural priority of the Sacrament over the Word, and of Orders over jurisdiction.
A verification of this fact lies in the doctrine of Vatican II which attributes the qualification of “ecclesial” only to those Christian communities in which the Word has remained structurally tied at least to one of the sacraments: that of Baptism. The Word preached in a way that is disconnected from any sacramental reference, loses its ecclesial dimension and efficacy. According to the Council, in fact, communitarian aggregations which arise only around the preaching of the Word, cannot be defined either as simple ecclesial communities, or still less as Churches in the strict sense. There is no Church or ecclesiality without Baptism – that is, without the sacramental element. 44

4. If one concedes that the unity of the potestas sacra signifies also the indivisibility of its content – that is, its oneness – and that therefore a purely formal value must be attributed to the distinction between Orders and jurisdiction, then it seems possible also to resolve the incongruous elements of the previous attempted solutions in confronting the typical problematic cases, without having recourse to voluntaristic options.
First of all, it seems necessary to distinguish between the conferral of thepotestas sacra and the use of that power. The potestas can operate in a relatively autonomous way either according to the modality of the symbolic sign proper to all the sacraments or according to the modality proper to the Word, by virtue of which the Church places jurisdictional acts at the level of teaching and government; the transmission of power, on the contrary, can occur only through the Sacrament (in which the Word is also contained). According to Catholic doctrine, in fact, the possibility that the potestas sacra might be transmitted only through the Word is inadmissible. The apostolic succession is indissolubly tied, even if not in an exhaustive way, to the sacramental fact: that is, to the power of Orders.
Consequently, while the sacra potestas can operate in a relatively autonomous way either according to the typical dynamics of the Word, or power of jurisdiction, or according to the dynamics of the Sacrament, or power of Orders, it can only be transferred from one person to another through the power of Orders – that is, through the sacramental element.
At this point there evidently arises the problem of whether the Church can exercise a control over the transmission and exercise of the potestas sacra (and in what measure). The first position resolves this problem by quantitatively dividing the potestas into Orders and jurisdiction. By conferring or withdrawing jurisdiction, the Church can provoke the validity or invalidity not only of the other sacraments, but also of the power of Orders. The second position proceeds along the same lines but according to the technical solution of loosing and binding the power of Orders.
If, on the contrary, one holds that all of the potestas is conferred with the sacrament of Orders and that it is exercised in its totality, both in the sacrament and in jurisdiction, then it is necessary to admit that the potestas is able to regulate itself: the potestas, in its oneness, can exercise a control over itself. However, it cannot control its own proper effects beyond the limits placed by the “substantia sacramenti” and by the “substantia Verbi.” Only when the Sacrament is celebrated within the limits of its essential elements and when the Word is preached with respect to its essential Christian content, are they always efficacious, in the sense that their celebration is objectively valid so as to generate the Church of Christ. The doctrine of Vatican II, according to which the Church of Christ is unique and subsists in the Catholic Church, but is realized also outside of its boundaries according to different grades of communion, goes in this direction.
In virtue of the potestas sacra with which she is invested, the Church can enumerate the essential elements required by the ius divinum for a sacrament to be a sacrament, and for the Word to be sufficiently complete to be Christian (problem of orthodoxy). If these essential elements are realized, the Church cannot impede Word and Sacrament from efficaciously operating also outside thecommunio plena. Their salvific efficacy, however, will be proportional to the degree of the integrity of their content and therefore to the grade of full communion with the Catholic Church.
The recognition of the existence of other Churches (separated) or of simple ecclesial communities, presupposes that Sacrament and Word celebrated outside of “communio plena” with the Catholic Church are valid, even when their sacramental and doctrinal density is reduced to a few essential elements (Baptism, the Supper, the divinity of Christ).
As the Church of Christ is realized according to different grades of content and communion, so also the sacra potestas (through which the binding salvific force of the Church is expressed), is realized according to different grades of efficacy in the individual separated Churches and in the individual ecclesial communities. Its efficacy is reduced both by impoverishment on the sacramental level, as well as on the doctrinal level: that is, of the Word. If Word and Sacrament are integral in their content, they create an ecclesial reality in which the communio plena is realized.
In ascertaining the existence of communion in virtue of the potestas sacra, the college of bishops or the Pope express themselves above all according to the modality proper to the Word: that is, according to the modality proper to the “power” of jurisdiction. This means that the potestas sacra and the communio are not identical realities. The communio is, on the one hand, the ontological ecclesial reality within which the potestas sacra must act in order to be integrally efficacious. On the other hand, it is a reality that the potestas sacra itself contributes to generate. It therefore both precedes and follows the “power” as such.

5. Having made these premises, it is possible to give a homogenous solution to the problems that the preceding theories have had to face.
The existence of two different systems of ordination does not pose a problem, because both are theologically interchangeable. Rigorously speaking, the return to the system of relative ordination could be desirable since all the potestas sacra is conferred (by hypothesis) with the sacrament of Orders. The practice of the Latin Church to confer jurisdiction with the missio separately from ordination, can be interpreted as an act with which the legitimate authority assigns, in virtue of thepotestas sacra (which here is expressed according to the modality of the Word or of jurisdiction), the area within which a bishop or other minister must exercise his proper potestas to remain organically inserted in the communio hierarchica.
If a minister exceeds in the use of his proper potestas with respect to the limits imposed on him by canon law – which can also be of a conventional nature – the sacramental and jurisdictional acts posed by him cease to be acts capable of realizing the communio plena, and it follows that they cease to be totally binding for the Catholic Church. This does not mean, however, that these acts are totally null or invalid.
Given the fact that both in the sacraments as well as in the Word (jurisdiction), the one unique sacra potestas is operating, there is no compelling reason to apply a different mode of evaluation to the nullity and the illegitimacy of the power of Orders and to that of the power of jurisdiction. In both cases, nullity should be declared in principle only when the substantia Sacramenti or the substantia Verbi is not respected.
The problem of jurisdictional acts seems, however, more difficult to resolve than that of sacramental acts. It depends first of all on the dominant theological mentality, according to which only jurisdictional acts, and not sacramental ones, have a juridical character. In this way of thinking, the ancient dichotomy between Orders and jurisdiction reappears, according to which a different material area had been assigned to one and to the other. The power of Orders was assigned the sacramental province (or that of sanctification), and the power of jurisdiction was assigned the juridical province (or that of ecclesial government). In reality, it is impossible to attribute a binding juridical character only to the power of jurisdiction (or that of the Word), since the sacramental element is also formally – that is, juridically – binding. In analogy to that which fundamental theology teaches with regard to the Word, the sacrament is also a “locutio Dei (per signum) attestans,” which is not binding in itself either on account of its content as such, or still less on account of its being subjectively understood by man, as the Protestant tradition has maintained (“interius in corde”). Instead, its binding character is due solely to the fact that it is God who manifests Himself or speaks. The problem is therefore that of knowing in what measure the Church can make the invalidity of a jurisdictional act contrary to the ius divinum depend on invalidating or incapacitating clauses. 45
The other problems should also be confronted along the same lines: that of the validity of ordinations extra communionem; of sacramental ordinations by a presbyter equipped with a papal (or episcopal) indult; and of sacramental absolution imparted without jurisdiction.
Recognizing the existence of non-Catholic Churches, Vatican II has done nothing more than confirm the doctrine and practice of the Latin Church which, from the 12th century onwards, has recognized the validity of the sacraments celebratedextra muros. This fact implies also the recognition that these Churches are able to produce a proper juridical order which, to the measure in which they respect the fundamental norms of the ius divinum, create a valid ecclesial reality, even if it is diminished in its authenticity and in its capacity to guarantee salvation objectively and with absolute certainty.
For that which regards ordinations done by a presbyter furnished with a papal indult (or possibly only an episcopal indult), and sacramental absolutions given without jurisdiction, the problem must be resolved on the basis of the element which is already common to the two preceding positions. According to these positions, the presbyter possesses, on account of ordination, all the power necessary to consecrate and absolve. According to the hypothesis that all thepotestas sacra comes from the sacrament of Orders, however, in contrast with both the first and the second theories, it is no longer necessary to have recourse either to the need to confer the part of jurisdiction still lacking on the missio canonica, or to attribute to the Church the faculty of loosing and binding the power of Orders. It is simply a matter of admitting and recognizing that these sacramental acts, if they are made in the area of the communio plena, are also capable of originating it. They are acts of the Church, understood not only as the one Church of Christ, but as the Catholic Church, in which the one Church of Christ subsists. It is a matter of sacraments that are valid and legitimate by the very fact that they are realized within the communio plena. If instead they were not accomplished within the full communion, they would not even be able to give rise to it. 46
For that which concerns sacramental absolution, it is necessary also to keep in mind the fact that the Catholic Church always holds it to be valid if it is imparted in “articulo mortis.” The fact that juridical science has interpreted this norm making use of technical instruments at its disposition, such as that of delegation “a iure,” does not necessarily mean that it is the juridical order as such that confers the power of jurisdiction that is lacking, or unbinds the power of Orders. Rather, it means that the Church recognizes that sacramental absolution given in this extreme circumstance possesses in itself the legitimacy necessary to realize thecommunio plena, even if it should be imparted by a minister who does not live in communion with the Catholic Church.
Other sacramental absolutions, on the other hand, imparted without the necessary “jurisdiction,” that is, in conditions in which hierarchical communion of the minister with his bishop is lacking – which conditions are fixed in a disciplinary way by canon law – are not invalid on account of the fact that the presbyter lacks a part of thepotestas sacra or because his power of Orders is not loosed for exercise. On the contrary, this is because the priest, finding himself outside of full communion, is not able to realize the reconciliation of the penitent with the Catholic Church as such. The Church is competent to determine, in each individual case or in general, the grade of communion necessary for the valid administration of the sacrament of penance. 47
This validity (or invalidity) of sacramental and jurisdictional acts, since it stands in relation to the sacra potestas, cannot, however, be determined arbitrarily by the Church. It has a necessary connection with the ontological truth according to which the Church realizes herself (or not). In fact, there exists a relationship of identity – even if not adequate – between the Church and the potestas sacra.
The teaching of Vatican II on the gradations of the “communio ecclesiarum” makes it necessary, in any case, to review the way in which the problem of the validity of sacraments should be approached, which has been largely determined by the mentality proper to juridical science. The Church cannot proceed in the same way as the State which confronts the problem of the efficaciousness of its own power in rigorously positivistic terms, cut off from the ontological objectivity proper to the nature of things. The validity of the exercise of the potestas sacra in its sacramental as well as jurisdictional expression, cannot be resolved with clauses of human law except in so far as they reflect the ontological truth.
The distinction between invalid and illicit acts, which today is ever more frequently being contested, has again become a question of current interest. Both invalidity and illicitness are measured according to the grade of communion. In fact, at least for that which concerns this problem, it is not communion which is determined by the sacra potestas, but vice versa. 48
A reappraisal of the notion of “illicitness” is required by the fact that Vatican II, recognizing the existence of separated Churches and ecclesial communities, has also recognized that the one Church of Christ can be realized according to different grades of communion. It follows that the validity of sacraments and the Word cannot be manipulated with norms of a positivistic nature which aim at regulating the exercise of the sacra potestas. Invalidity can only be ascertained, since it is rigorously connected with the very substance of the ecclesial reality. Illicitness, on the other hand, can be determined even with criteria of a solely disciplinary nature.

6. If the potestas sacra is one and unique, and if in Orders and in jurisdiction it operates in totum, it follows that the same criteria used to judge the validity or invalidity of sacraments should also be applied to the “power” of jurisdiction. Jurisdiction, as an expression of the one potestas sacra, cannot be administered from the theological and juridical perspective with criteria different from those used for the power of Orders.

It follows as a consequence, that if it is not possible theologically to delegate the power of Orders, neither can it be possible to delegate the power of jurisdiction. This is true even if canon law, for technical terminological reasons, should continue to make use of the institution of delegation. If it is true that the potestas sacracan be transmitted only through the sacrament of Orders, it follows that it cannot be transmitted in another way even when it is manifested according to the logic of the power of jurisdiction.

III. Conclusion

1. The analysis of the nature of the common and ministerial priesthood and of thepotestas sacra permits certain conclusions to be drawn.
The common priesthood of all the faithful is differentiated from the ministerial priesthood because it renders the Christian a participant, not of the objective aspect, but of the subjective aspect of the one priesthood of Christ. This different participation is realized through two different sacraments: that of Baptism and that of Holy Orders. Although Baptism is the previous condition of the sacrament of Orders, the latter does not represent a continuation or development of Baptism. This means that in the two sacraments, the participation in the priesthood of Christ is original and autonomous from the point of view of content, even if reciprocally ordered to one another.
The ontological priority of the subjective priesthood in Christ is expressed in the Church as a constitutional priority of the common priesthood over the ministerial priesthood. From this priority, it follows that the function of the ministerial priesthood is that of being in the service of the common priesthood, and not vice versa.
The ministerial priesthood expresses itself operatively through the sacra potestas, which, analogously to the authority of Christ over the Church, is a reality that is not only intrinsically united, but also one. It operates, therefore, always in totum, even when it assumes different expressive forms as in jurisdiction and Orders, in which the distinction inherent in the different structures of the communication of Word and Sacrament is reflected. The powers of jurisdiction and of Orders are distinguished therefore only formally, and not from the point of view of their content.
The fact that the presence of Christ is realized according to the formal expression of Word and Sacrament only in the sacramental celebration, justifies the Catholic doctrine according to which the sacra potestas is capable of being transmitted only through the sacrament of Orders, which gives rise to the ministerial priesthood. The sacra potestas, therefore, cannot be transmitted through the Word alone, and thus it cannot be transmitted either through the conferral of an ecclesiastical office, nor through delegation. This would be opposed to the unity and oneness of the sacra potestas. If the transmission of the sacra potestas could occur through the Word alone, the sacrament of Orders would become superfluous. The qualitative distinction between the common and the ministerial priesthood could not be founded on the existence of two different sacraments: Baptism and Orders. A lay person could be invested with all the sacra potestas by means of a simple declaration of the Church. This seems incompatible with the entire tradition of the Catholic Church and of the Eastern Orthodox.
The validity and invalidity of the sacraments cannot, therefore, depend on the transmission or withdrawal of the power of jurisdiction nor on the possibility that the Church could bind or unbind the power of Orders, but rather on the grade of ecclesial communion or non-communion in which the sacrament is celebrated. The grade of communion is ascertained or fixed in a disciplinary way by the Church through the Word, or, in other words, through the exercise of the sacra potestasoperating according to the modality of the Word, or the power of jurisdiction.

2. In opposition to this doctrinal hypothesis, there stands the fact that the Church seems to have conceded the power of jurisdiction also to lay persons in the course of history, which seems to true today as well on the basis of the current canonical order. This is conferred on them by means of ecclesiastical offices or by delegation.
The historical facts generally cited by the authors are those of abbesses in the thirteenth century juridically equivalent to prelates nullius, 49 or, more recently, of the abbess of Thorn, in whom the Sacred Congregation of the Council recognized in 1774 the exercise of an “omnimoda et privativa iurisdictio ecclesiastica,” also including judicial and penal competencies. 50
According to the majority of authors, codified law also seems to concede to the laity, in contrast with the tenor of can. 118, the exercise of a power of jurisdiction. This is the case of the missio conceded to impart religious instruction (can. 1333 § 1), of participation in the administration of ecclesiastical goods (can. 1521 § 2), of the power of dispensation from private vows on the part of those members of the laity who enjoy the “potestas dominativa” (can. 1312 § 1) and the case of lay major superiors authorized to receive religious profession (can. 647 § 1), and to inflict or absolve ecclesial penalties (can. 2386, 2413 § 1). 51
With the Motu proprio Causas matrimoniales of 1971, the post-conciliar law has, in its turn, admitted lay persons to exercise the office of judge, to which there are generally attributed powers and competencies tied to the sacrament of Orders. The gamma of these cases has been enlarged by more recent particular law, such as that of the archdioceses of Detroit and Rio de Janeiro, where some religious have formally or de facto been invested with an office equivalent to that of episcopal vicar for the sector of the religious. 52
Authors who have sought to give an explanation of these facts and norms are divided into two currents. Those who affirm that the exclusion of the laity from the power of jurisdiction provided by can. 118 is of divine law and therefore is absolute, tend to interpret them as anomalous marginal cases, or as cases which do not constitute exceptions to can. 118. Those, on the contrary, who maintain that the norm of can. 118 as such is only of ecclesiastical law, make a distinction between jurisdiction tied essentially to the power of Orders which cannot be transmitted to the laity according to divine law, and a jurisdiction which would be of purely ecclesiastical origin, not necessarily tied to the sacrament of Orders.
If it is true that the so-called powers of jurisdiction and of Orders are only two different formal aspects of the one sacra potestas, then it is impossible to hypothesize the existence of a potestas iurisdictionis that is not derived from Orders, and is of a purely ecclesiastical origin. There is no power in the Church which does not coincide with the sacra potestas, this being the element of qualitative differentiation between the ministerial and the common priesthood. Conceptually, there does not exist any “power” other than that which derives from the sacrament of Orders.
On the other hand, it is possible to hypothesize that the Church institutionally organizes the exercise of juridical competencies under the form of ecclesiastical offices, which can be conferred to lay people as well. This would be a matter of competencies enabling one to accomplish certain acts juridically binding for the community, but not on the basis of the imperative quality proper to power, that is, to the potestas sacra. This would eliminate the hypothesis of the existence of apotestas iurisdictionis of ecclesiastical origin.
It is in this sense that one should interpret the new concept of ecclesiastical office introduced by the draft of 1980 for a new codification, in the footsteps of Vatican II (PO 20, 3). Contrary to can. 145 § 1 of the Code, can. 152 § 1 of this draft no longer presupposes that the holder of an ecclesiastical office is necessarily the holder of the potestas sacra (“sive ordinis sive iurisdictionis”). It follows, as provided for by can. 273 § 1 of the same draft, that the notion of ecclesiastical office can be applied, strictu sensu, also to offices that can be conferred to lay persons.
According to the same hypothesis, one can also interpret the notion of “potestas publica” introduced in Eastern law by can. 153 of the Motu proprio Cleri sanctitati(of 1957) and 305 of the Motu proprio Postquam apostolicis litteris (of 1958). Canonists have proposed different hypotheses, interpreting the “potestas publica” as a potestas of ecclesiastical law, or as “potestas dominativa.” The use of the notion of potestas, however, impedes the clarification of the question. In fact, the notion of potestas appears more than ever incontrovertibly tied to the potestas sacra, as well as to the notion of office formulated by can. 145 § 1 of the Code of 1917, that is, to the notion of office that the Church creates not on the basis of socio-organizational necessity, but rather on the basis of the sacramental status of ordained ministers.
The originality of the Protestant Reformation consisted in the fact of conceiving the offices of the Church as simple organizational functions, parallel to that which occurs in modern civil juridical orders. They were not derived from Holy Orders, but simply from the general office of preaching (“ministerium verbi”), proper to the entire Church, which could be conferred on all the faithful invested with the common priesthood. The Catholic Church, on the contrary, has always institutionalized offices first of all on the basis of functions inherent in the priestly state. The juridical order has done nothing other than further specify their institutional shape. In this process, they were subject to various oscillations in the course of history, without, however, affecting the substantial competencies conferred by Holy Orders.
Given these premises, it becomes ever more urgent to attempt to distinguish, from the doctrinal perspective, the ecclesial tasks exclusively tied to the sacra potestas from those which can be carried out also in virtue of the common priesthood alone. In order for the latter to be conferred on persons disposed not only to exercise them, but also to assume the responsibility for them before the Church, it is inevitable that they be juridically institutionalized as ecclesiastical offices according to the notion introduced by Vatican II and by the 1980 draft for the Code.
Furthermore, the concern of Vatican II for creating a more relevant institutional space in the Church for the laity – in so far as they are an expression of the common priesthood – emerges clearly from the fourth chapter of Lumen gentiumas well as from the fact that the Council has dedicated an entire document to them: Apostolicam actuositatem. Also the tendency of the post-conciliar Church to juridically configure the position of the faithful in general and of the laity in particular, up to the point of recognizing them not only as subjects of rights – according to an breadth of vision unknown to the Code of 1917 – but even as subjects of fundamental rights, 53 confirms the fact that the Magisterium considers the common priesthood, like the ministerial priesthood, to be an institutional reality. 54
The necessity of creating an ever vaster constitutional and juridical space for the participation of the laity in the life and administration of the Church imposes the necessity, in addition to that of precisely discerning all the operative potentialities proper to the common priesthood, of instituting an ecclesial practice in which tasks of supplementation with respect to the laity are no longer entrusted to clergy – as in the past – except in an exceptional way.
The almost constant hegemony exercised by clerics in the Church has impeded, up to the present day, a coherent effort to identify the essential functions of the ministerial priesthood with greater precision so as to accord to the faithful the full exercise of their common priesthood, even on the institutional level. This explains the uncertainty with which the Church has often moved in this sector and the recourse to solutions of a voluntaristic nature to delegate some powers of jurisdiction to members of the laity.
To resolve these problems, it is fundamental to keep in mind the doctrinal precariousness in which the Church has moved until today. From the methodological point of view, the question cannot be dealt with by opposing certain practices of the past or certain norms of the current canonical order interpreted according to predominantly positivistic criteria, to the theological doctrine of the unity and oneness of the sacra potestas, which seems to derive with inescapable clarity from a coherent reflection on the teaching of Vatican II. Instead, it is a matter of rereading history and the canonical order on the basis of this doctrine, without excluding a priori that the practice of the Church, like its juridical norms, can be reoriented on the basis of the doctrine itself. Only an ecclesial policy in harmony with the principle of the constitutional priority of the common priesthood of all the faithful over the ministerial priesthood can enable all the potential institutional developments inherent in the status of the common priesthood of all the faithful to be turned to full account.
This would have a double advantage. On the one hand, it would prevent the laity from having recourse to a type of claim – of a more democratic than ecclesial inspiration – to tear a share of power from the clergy. On the other hand, it would prevent the hierarchy from falling into the temptation – still more insidious because it would lead to a clericalization of the laity – of gratifying them by conceding them the use of a part of the potestas sacra. This would associate them in a ministry which, in any case, they can never dispose of in their own right. 55
A policy of this type would obscure still more the theological image of the common priesthood. The faithful, instead of being considered as partners in dialogue or as the object of the ecclesial service of the hierarchy, would become the subject who has to serve it.

* First published: “Riflessione giuridico-istituzionale su sacerdozio comune e sacerdozio ministeriale,” in: Popolo di Dio e Sacerdozio. Atti del IX Congesso Nazionale dell’Associazione Teologica Italiana (Cascia, 14-18 September 1981) (Padua 1983), pp. 80-129.

1  Cf. E. Corecco, “Sinodalità,” in Nuovo Dizionario di Teologia, ed. by G. Barbaglio and S. Dianich
(Rome 1977), pp. 1489ff.

2   LG 14, 1.

3   LG 10, 2 (first phrase).

4   On this matter, cf. H.U. von Balthasar, Christlicher Stand (Einsiedeln 1977), pp. 145-202.

5   Cf. Phil 2:6-11.

6   The New Law, in fact, is differentiated from the Old Law because it is no longer “extrinsecus posita,” that is, imposed as an injunction on sinful man, but “intrinsecus data,” contemporaneous with the grace which infuses the power to accomplish it in joy and in the freedom of love. St. Thomas, taking into account the Pauline texts which later will be neglected by Luther, even establishes an identity between the “law” and the “Gospel,” using the synthetic formula of the “nova lex evangelii”: “Lex nova est ipsa gratia (seu ipsa praesentia) Spiritus Sancti, quae (qui) datur Christi fidelibus” (S. Th. I-II, q. 106, a. 1). Grace, however, is law only in an analogical sense because the essence of the New Law no longer lies fundamentally in its legal character, but in the fact of being given as grace, in the same way as faith and the Holy Spirit. In defining Christ as “grace,” Catholic theology has sought to emphasize the fact that the process of justification interiorly transforms man. Grace is conceived as an ontological reality communicated to man to give him the power to realize the New Law, without abolishing the Old Law. It marks a progression from the imperfect to the perfect, from natural law to the supernatural. It is not by chance that whereas Luther viewed the theme of “law and Gospel” as the central point of the economy of salvation, the Catholic tradition has preferred the formula “law and grace.” This was more connatural to the profound inclinations of Latin theology, which developed the New Testament theme which in Pauline theology had emerged as the provocative dialectic of “the law and Christ.” In defining Christ as the “Gospel,” Luther, whose thought moved within the nominalist and voluntarist horizon of the late Middle Ages, wished to forcefully emphasize the lack of “imputatio” of sin. Grace is only an extrinsic presence of Christ in man, even if salvific. Substituting the pair “law and Gospel” for “law and grace,” Luther, for whom the “supreme art of Christianity” consisted in being able to distinguish these two elements, tried to give rise to a double protest: that against the Church of Rome for having buried the word and the law of God under the word and the law of the Church, and that against scholastic theology, for having substituted the idea of justification in virtue of the sole justice of God with a justification in virtue also of meritorious works realized under the law with the aid of created sanctifying grace. Luther did not admit that the economy of “sola gratia” could be transformed into a religious system still based on the law, in which the works of natural law, even if realized with the aid of grace, are required for justification. The works of natural law are not good in themselves: they are good only in so far as they are done in obedience to God who has saved us. Therefore, they do not interiorly transform man, but serve only to render evident to others the miracle of the remission of sins on the part of God. The dominant concern of Augustinian-Thomistic theology, on the other hand, was above all that of establishing both the unity of the two elements as well as the continuity between the Old and the New Law. The Old Law is not in contraposition with the New, because its essential contents remain also under the economy of grace. Cf. E. Corecco, Teologia del Diritto Canonico, in: Nuovo Dizionario di Teologia, loc. cit., pp. 1722-1723.

7   LG 10, 2; 18, 1.

8   LG 10, 2.

9   The division in human nature, spoken of by St. Paul when he affirms that those who are married are divided, depends on the fact that, thanks to the sacrament, only the relationship of indissolubility has been restored, which was already intrinsic to the relationship between man and woman in the state of original justice. The constitutive and complementary elements of the state of original justice, that is the fecundity of virginity (which comes out again in the virginity of the Mother of God, born without original sin), the dominion over created reality without private property, and obedience in total freedom, have lost the capacity that they once possessed to offer a real and autonomous alternative to human experience in history, without the support of the physical fecundity of marriage. In fact, they do not constitute a restoration of nature in the state of sin, but a memory of the state of original justice. Even the institution of the evangelical counsels cannot be explained simply by having recourse to a voluntaristic choice of Christ. As a memory of the state of original justice and a prophetic sign of the state of human nature in the beatific vision, they constitute the element of continuity between the two poles of the history of humanity: the original state and the final state, in which the state of original justice will be restored and transcended by the beatific vision. Cf. E. Corecco, “Il sacramento del matrimonio: cardine della costituzione della Chiesa,” Strumento Internazionale per un Lavoro Teologico Communio 51 (1980), 14; cf. also H. U. von Balthasar, Christlicher Stand, loc. cit., pp. 128-136.

10   Cf. E. Corecco, “La “sacra potestas” e i laici,” Studi Parmensi 28 (1980) 1ff.

11 The terminological distinction (used by von Balthasar) between objective and subjective, and active and passive priesthood, is open to discussion. It could give rise to a misunderstanding if it were interpreted in the sense that only the ministerial priesthood belongs to the institution of the Church. In reality both priesthoods, common and ministerial, are institutional elements of the constitution of the Church (on this problem, cf. below, note 53). In any case, it is interesting to note that the texts of the third and fourth chapters of LG, where the problem of the participation of ordained ministers (bishops) and of the laity in the “tria munera Christi,” express the different modality of participation according to a perspective which could undoubtedly be terminologically characterized as objective and subjective. The participation of ordained ministers is objective since it is formally understood as a participation in the function of service or authority that Christ exercises over the Church and which the Church exercises over the faithful. That of the faithful (which the Council identifies in these texts with the laity) is subjective, since it is understood as a participation in these same “munera,” but not in view of the exercise of an authoritative function within the Church, but as a personal assumption, in view of one’s own good and for the good of the whole world, of the same oblation with which Christ gives Himself to the Father and consigns the redeemed world to Him. Whereas ordained ministers have the task of preaching the Word with authority (LG 25), presiding over the Eucharist (LG 26), and of governing the Church with the “sacra potestas” conferred on them by the sacrament of Orders (LG 27), the laity (that is, the faithful as such) are called to give personal testimony of their faith to the world (LG 35), to participate in the spiritual sacrifice of Christ Himself through their works, their prayer, their apostolic initiatives, their conjugal life and their daily work (LG 34), to live a more holy life even through works that are properly secular, so that the world will be imbued with the Spirit of Christ (LG 36).

12   The project of the new codification and the “Lex Ecclesiae fundamentalis” are cited in this article according to the printed texts of 1980 and, respectively, of 1978.

13   Despite half a century of theological reflection (cf., for example, E. Schillebeeckx, “Definizione del laico cristiano,” in La Chiesa del Vaticano II, ed. by G. Baraúna [Florence 1965], pp. 972ff.) and despite the contribution given by the Council, which proposed two elements with regard to the theological nature of the laity, that of their participation (“suo modo”) in the “tria munera” of Christ, and that of their “indoles saecularis” (LG 31, 2 and 3), the question of the theological definition of the laity remains open. In fact, there is no agreement among scholars, above all with regard to the theological and sociological nature of this secular character. On the side of the sociological nature, there is, for example, K. Mörsdorf (“Die Zusammenarbeit von Priestern und Laien,” in: Veröffentlichung der katholischen Akademie der Erzdiözese Freiburg i. Br., n. 11 [Karlsruhe 1968], pp. 13ff.); for the second interpretation, on the other hand, there is von Balthasar (Der Christlicher Stand, loc. cit., pp. 203ff.). On this question, cf. also F. Daneels, De subiecto officii ecclesiastici attenta doctrina Concilii Vaticani II. Sunt-ne laici officii ecclesiastici capaces? (Rome 1973). The second aspect of the problem concerns the possibility as to whether the “potestas sacra” can be delegated to the laity. The problem is particularly acute in the countries of central Europe, where for a decade the figure of the lay theologian has become central for the entire ecclesial life, especially following the contributions of K. Rahner maintaining the thesis that members of the laity who assume stable ecclesiastical offices would cease to belong to the lay state and would enter into the ecclesiastical state. According to this view, the Church insists on not wishing to recognize them as belonging to the clergy so as not to have to cede on the question of celibacy. Rahner’s thesis evidently presupposes that in the “potestas sacra,” the power of jurisdiction can be isolated and that this can be delegated also to members of the laity. On this problem, cf. below, n. 3, Conclusions.

14  If marriage were not elevated to a sacrament, the relationship of man and woman would remain subtracted from the specific restoration of grace: too corrupt to be still capable of carrying out the cultural function assigned to it by God for the destiny of humanity. Without the sacrament of marriage, the Church would also remain “disincarnate” and in an extrinsic position with respect to the historical experience of humanity, within which marriage has conserved the centrality of meaning received in the economy of creation, although not in an exclusive way. The Church would become in this way a simple superstructure with respect to the real history of man, since it would not be penetrated with the efficacy of grace in one of its indispensable constitutive elements. The final reason for the elevation of marriage to a sacrament must therefore be sought in the historical nature and function of marriage itself. Without the presupposition of the physical fecundity of marriage, humanity would be extinguished. The Church would thus come to lack the natural presupposition of its own existence, even though its numerical growth does not occur in virtue of the sacrament of marriage, but in virtue of the gift of faith, given individually, and constantly bestowed by the Spirit. In the sacrament of marriage, in which the Church is realized, nature (“deleta”) and the supernatural find their point of suture, penetrating one another in unity. Cf. E. Corecco, “Il sacramento del matrimonio: cardine della costituzione della Chiesa,” loc. cit., p. 75.

15   Cf. H. U. von Balthasar, Christlicher Stand, loc. cit., pp. 237-266.

16  UR 19, 1-2, 4.

17  UR 22, 3

18 On this problem,cf. Stickler, “La bipartición de la potestad eclesiástica en su perspectiva histórica,”  Ius Canonicum 15 (1975), 45ff.; idem, “Die Zweigliedrigkeit der Kirchengewalt bei Laurentius Hispanus,” in Ius Sacrum, Klaus Mörsdorf zum 60. Geburtstag, ed. by A. Scheuermann and G. May (Munich/Paderborn/Vienna 1969), pp. 181ff.

19   The theological elements in favor of a unitary conception of the “potestas sacra” are: the principle of the sacramentality of the episcopate (LG 21); the principle taken from can. 118, according to which the power of jurisdiction can be conferred only on an ordained person; and the possibility of giving a new interpretation to the distinction between Orders and jurisdiction. On this entire problem, cf. E. Corecco, “La ‘sacra potestas’ e i laici,” loc. cit., pp. 5-26.

20   Cf. can. 6.

21   Concerning the dispute with regard to the position taken by Gratian, cf. A. M. Stickler, “Die Zweigliedrigkeit,” loc. cit., p. 205.

22   Cf. K. Mörsdorf, , “Die Entwicklung der Zweigliedrigkeit der kirchlichen Hierarchie,” MThZ 3 (1952), 1ff.; idem, “Weihegewalt und Hirtengewalt in Abgrenzung und Bezug,” Miscellanea Comillas 16 (1951), 95ff.; idem, “Heilige Gewalt,” in Sacramentum Mundi, II (Freiburg/Munich/Vienna 1968), pp. 582ff.

23   Cf. W. Aymans, “‘Volk Gottes’ und ‘Leib Christi’ in der Communio-Struktur der Kirche. Ein kanonistischer Beitrag zur Ekklesiologie,” TThZ 81 (1972), 321-334.

24   For St. Thomas Aquinas, from the point of view of the celebration of the Eucharist, the Pope does not possess a power superior even to that of a simple priest, let alone to that of a bishop. Following in this path, theology sought the difference between the episcopate and presbyterate outside the sacrament. The episcopal power was then articulated according to two directions of thought. For that of Orders, it was conceived from below, considering the episcopate only as a priesthood of a superior grade. For the power of jurisdiction, on the other hand, the consideration began from above, holding it to be transmitted directly from the Pope. At the institutional level, the separation between these two functions of the potestas sacra found their most aberrant expression, in the late Middle Ages and after the Council of Trent, in the practice adopted by bishop-princes of ruling their diocese only in virtue of the power of jurisdiction. Without receiving episcopal consecration, they had auxiliary bishops substitute for themselves in the area of sacramental power. Cf. E. Corecco, “L’origine del potere di giurisdizione episcopale. Aspetti storico-giuridici e metodologico-sistematici della questione,” La Scuola Cattolica 96 (1968), 6-18, 35-52, 118-119; cf. also R. Weigand, “Änderungen der Kirchenverfassung durch das II. Vatikanische Konzil,” AfkKR 135 (1966), 398-399.

25   Cf. J. Fuchs, Vom Wesen der kirchlichen Lehrgewalt. Eine Kontroverse des 19 Jahrhunderts: historischer Beitrag und systematischer Versuch, Theol. Diss. (Münster i. W. 1946), passim. The results of this research have been used by the author in other publications, such as: Magisterium, Ministerium, Regimen. Von Ursprung einer ekklesiologischen Trilogie (Bonn 1941); or: “Weihesakramentale Grundlegung kirchlicher Rechtsgewalt,” Scholastik 16 (1941), 496ff. Cf. also K. Nasilowski, “Distinzione tra potestà di giurisdizione dai primi secoli della Chiesa sino alla fine del periodo dei decretisti,” in: Potere di ordine e di giurisdizione. Nuove prospettive, Rome 1971, pp. 89ff.

26   Cf. K. Mörsdorf, “Munus regendi et potestas iurisdictionis,” in: Acta-Conventus Internationalis Canonistarum Romae diebus 20-25 maii 1968 celebrati (Typis Poliglottis Vaticanis 1970), pp. 199ff.

27   Cf. idem, De sacra Potestate. Quinquagesimo volvente anniversario a Codice Iuris Canonici promulgato. Miscellanea in honorem Dini Staffa et Periclis Felici S.R.E. Cardinalium, I, (Romae 1967), 41ff. For a critical analysis of this threefold division, cf. Ch. Journet, L’Église du Verbe Incarné, I, (s.l.) 1955, 203-215. For a very penetrating reading of LG, cf. P. Krämer, Dienst und Vollmacht in der Kirche. Eine rechtstheologische Untersuchung zur Sacra Potestas-Lehre des II. Vatikanischen Konzils (Trier 1973), particularly pp. 22-48; G. Ghirlanda, Hierarchica communio (Rome 1980), esp. pp. 410-429.

28   Letter Ad universos Ecclesiae Sacerdotes, adveniente Feria V in Coena Domini, AAS (1979), 393ff., n. 3 (our translation). Cf. also W. Kasper, Die Heilsendung der Kirche in der Gegenwart (Mainz 1970), p. 61.

29  Cf. for example, E. Doronzo, Tractatus Dogmaticus De Ordine, III (Milwaukee [Wisconsin] 1962), pp. 324-370. Notwithstanding the fact that his formulations are not always clear, we hold that Corrado Baisi in his volume Il ministro straordinario degli ordini sacramentali (Rome 1935, especially pp.136, 153-158) follows this first theory and is not, along the lines of Johannes Morinus (Commentarius de sacris Ecclesiae ordinationibus, Paris 1655, 104-107), a supporter of the second theory, as Doronzo maintains (ibid, pp. 362-363).

30   Can. 872.

31   With regard to these cases, which date to the end of the 15th century, cf. C. Baisi, Il ministro straordinario, loc. cit., pp. 7-28.

32   Cf. E. Corecco, “L’origine del potere di giurisdizione…,” loc. cit., pp. 10-42, 107-119. Cf. also R. Giraldo, Rapporto tra poteri papali e consacrazione episcopale (Vicenza 1978).

33   Cf. E. Doronzo, De Ordine, loc. cit., p. 359; cf. also C. Vagaggini, “Possibilità e limiti del riconoscimento dei ministeri non cattolici. Riflessioni a partire dalla prassi della «economia» e dalla dottrina del «carattere»,” in: Ministères et célébration de l’Eucharistie. Sacramentum I, Studia Anselmiana 61 (Rome 1973), pp. 254, 271.

34 Cf. K. Mörsdorf, “Weihegewalt und Hirtengewalt,” loc. cit., p. 105.

35   For an exact interpretation of this doctrine, cf. H. Müller, “De differentia inter Episcopatum et Presbyteratum iuxta doctrinam Concilii Vaticani secundi,” PRMCL 59 (1970), 599-618.

36   Cf. E. Doronzo, De Ordine, loc. cit., pp. 362ff.; cf. also W. Bertrams, Il potere pastorale del papa e del collegio dei vescovi. Premesse e conclusioni teologico-giuridiche (Rome 1967), esp. pp. 1-61; idem, “De potestatis episcopalis exercitio personali et collegiali,” PRMCL 53 (1964), 455ff.

37   It should be noted that the distinction between orders and jurisdiction is extraneous to Orthodox theology; cf. P. Anciaux, “L’Épiscopat (ordo episcoporum) comme réalité sacramentelle,” NRT 85 (1963), 156.

38   Cf. K. Mörsdorf, “Zur Grundlegung des Rechtes der Kirche,” MThZ 3 (1952), 329ff.

39    This is true first of all for the notion of “iurisdictio,” developed in strict dependence on secular juridical doctrine; cf. E. Corecco, “L’origine del potere di giurisdizione…,” loc. cit., pp. 9-10, n. 29. However, to affirm that juridical language is incapable of grasping theological truth is equivalent to emptying canon law of all theological capacity; cf. T. Jiménez Urresti, “Kirchenrecht und Theologie. Zwei verschiedene Wissenschaften,” Concilium 3 (1967), 608-612.

40   Cf. L. Scheffczyk, Von der Heilsmacht des Wortes (Munich 1966), pp. 168-169, 264-272.

41   G. Söhngen, in his book Symbol und Wirklichkeit im Kultmysterium (Bonn 1937, p. 18), has expressed the problem with this significant formulation: “Vom Worte wird das Sakrament mit der Fülle mächtiger Geistlichkeit und vom Sakrament wird das Wort mit der Fülle geistlicher Wirklichkeit erfüllt.”

42   Orders and jurisdiction, however, operate also in a relatively autonomous way, as the Sacrament and the Word. As the Word can be preached without a concomitant celebration of a sacrament, so it is possible for the Church to place acts of jurisdiction without establishing an immediate connection with the sacrament of Orders. The relationship with the sacraments exists nevertheless, both in virtue of the fundamental fact that the Word tends structurally to “become incarnate” in the celebration of the Sacrament – as the Sacrament tends to provoke the explicitation of the Word – as well as in virtue of the fact that (in principle) the minister of jurisdiction is also minister of the sacraments.

43  Cf. M. U. Carretero, «Statuta Ecclesiae» y «Sacramenta Ecclesiae» en la Eclesiología de St. Tomas (Rome 1962), pp. 186-324.

44  Unlike the Word, which does not contain in itself the specific material elements of the sacramental sign (even if there exists a symbolism proper to the spoken language), sacraments, on the contrary, always imply the Word as an integral part of themselves. The symbolic sign, in fact, becomes a sacrament only on the condition that the Word make its supernatural significance explicit (at least through the sacramental formula). The liturgical reform has made this connection more evident by having every sacramental celebration preceded by an ample celebration of the Word, whose purpose is to make the significance of the material symbolic sign of the sacrament explicit, in a more organic and global way than the previous liturgy had done. Whereas the Word can render the potestas sacra operative in a relatively autonomous way with respect to the sacraments, the sacraments are not conceptually understandable without the Word. The concomitance of the supernatural symbolic sign and of the Word in the Sacrament explains why it is possible to accept the thesis according to which the entire potestas sacra is transmitted by the sacrament of Orders.

45  The examination of this problem implies a series of considerations that would take us too far afield, touching on the theme of the applicability of the principle of juridical certainty in canon law. However, it is evident how important it is to be aware that the juridical nature of canon law is different from that of civil law, and that the problem of juridical certainty cannot be resolved without consideration of the theological-juridical value which should be attributed to the communio, in so far as it is an ontological reality, constitutive of the constitutional structure of the Church. Cf. E. Corecco, “Valore dell’atto «contra legem»,” in: La norma en el derecho canónico, Actas del III Congreso Internacional de Derecho Canónico, I (Pamplona 1979), pp. 839ff.

46  Admitting that there do not exist compelling theological reasons to deny the solidity of the “opinio Hieronimi,” according to which a presbyter can always validly ordain another presbyter, such an ordination – as long as the substantia sacramenti is assured – would have to be evaluated from the perspective of validity or licitness only in relation to the fact of whether it is realized in the area of the communio ecclesialis, or of the communio hierarchica, seu plena. The lack of a papal indult in itself impedes only the insertion of the newly consecrated in the communio hierarchica, but does not invalidate the sacrament as such. Such an ordination could provoke a formal excommunicatio, which does not deprive, however, either the person consecrating or the person consecrated from the status of belonging to the one Church of Christ. It only deprives him of the exercise of some fundamental rights within the Catholic Church, or within a non-Catholic Church, if it is that to which he happens to belong. Cf. C. Vagaggini, “Possibilità e limiti del riconoscimento…,” loc. cit., pp. 259, 277-282.

47  It is necessary to distinguish between the case of an individual priest who breaks with the Catholic Church because he abandons his proper ministry or abuses it, and the case of a minister who belongs to a separated Church where the apostolic succession and the sacraments are objectively guaranteed. It is possible that in the former case the ecclesial unity could be broken in such a grave way so as to take away from the minister all legitimacy or competence to be able still to represent the Catholic Church, and in consequence to be able still to reconcile the penitent with the Church. In the second case, however, the communio, although imperfect, still maintains an ecclesial density such as to be able to justify a recognition, between the Churches, of the validity of their respective sacraments. In effect, the defection of an individual person cannot create by itself a valid ecclesial alternative, such as that which occurs in schisms and collective heresies. This explains why the Catholic Church not only recognizes the validity of sacramental absolutions given by an Orthodox minister to Orthodox faithful, but also to Catholic faithful. Cf. Directorium ed ea quae a Concilio Vaticano Secundo de re oecumenica promulgata sunt exequenda, pars prima (14 maii 1967) nn. 39-45; edited in the series Nachkonziliare Dokumentation, vol. 7 (Trier 1967).

48  Although it has not been historically proven that the distinction between an invalid and an illicit act was introduced into the doctrine of canon law in the 12th century, following the secularization of ecclesial law resulting from its contact with medieval corporate law, as maintained by Sohm, it is true, nevertheless, that the distinction has been used by the Church according to criteria frequently too heavily marked by a secular juridical mentality. On the one hand, it is not possible to abolish the concept of invalidity from canon law, which, as Sohm has justly noted, is structurally tied to sacramental law. On the other hand, however, it is urgently necessary to rigorously make it commensurate it with the substantial reality of the Church. The exercise of the sacra potestas can be held to be invalid only when it is realized outside the minimum grade of communion which guarantees the existence of a reality still capable of being defined as ecclesial. Only the absence of the objective minimum elements of the communio renders the potestas inefficacious, that is, invalid. In this case, ordinations are invalid because they would be placed within a reality that no longer has the specific structure of the Church in the minimum degree. If the lack of communion, on the other hand, means “extra communionem hierarchicam, seu plenam,” the problem of validity is transformed into the problem of licitness.

49   Cf. Th. J. Bowe, Religious Superioresses (Washington D.C. 1946), pp. 20ff.

50   Cf. I. Gampl, Adelige Damenstifte (Vienna-Munich 1960), pp. 115ff.

51 On these problems, cf. U. Mosiek, Verfassungsrecht der lateinischen Kirche, Band I: Grundfragen (Freiburg i. Br. 1975), pp. 217-229; A. Szentirmai, “Jurisdiktion für Laien?,” ThQ 140 (1960), 410-426; A. Doglio, De capacitate laicorum ad potestatem ecclesiasticam, praesertim iudicialem (Romae 1962), esp. pp. 33ff.

52  On the interpretation of the significance of the Motu proprio Causas matrimoniales for the status of lay persons who exercise the office of judge, cf. the controversy between K. Lüdicke (“Laien als kirchliche Richter,” ÖAfkR 28 [1977], 332-352) and W. Aymans (“Laien als kirchliche Richter?,” AfkKR 144 [1975], 3-20).

53  Concerning the impossibility for rights of the Christian in the Church to be recognized as capable of receiving the qualification of “fundamental,” cf. E. Corecco, “Considerazioni sul problema dei diritti fondamentali del cristiano nella Chiesa e nella società. Aspetti metodologici della questione,” in: I diritti fondamentali del cristiano nella Chiesa e nella Società. Atti del IV Congresso Internazionale di Diritto Canonico, Fribourg 6-11 ottobre 1980, ed. by E. Corecco-N. Herzog-A. Scola (Fribourg [Switzerland]-Freiburg i. Br.-Milan 1981), pp. 1207-1234.

54  The charismatic dimension also belongs to the constitution or essence of the Church, but, as such, it is different and distinct from the institutional dimension. For this reason, it is exact to affirm, as some theologians have done (cf. for example G. Colombo, “La teologia della Chiesa locale,” in: La Chiesa locale, ed. by A. Tessarolo, Bologna 1970, pp. 30-33), that, in addition to Word and Sacrament, charism is also a constitutive element of the Church. The first two, on account of their structural reciprocity, converge in the Sacrament, in which the Word is made concrete, to generate the institutional structure. Charism, however, by its nature presupposes the existence of the institutional dimension. In so far as it is a privileged expression of the presence and activity of the Holy Spirit, charism has the function of provoking the institution to an authenticity and vitality that permit it to be truly an expression of the ministry of the Church. Notwithstanding appearances and despite various theories that have been proposed in the course of history, the real antinomy in the life of the Church has not been that between charism and institution – the latter being reductively identified with the ministerial or hierarchical priesthood – but between the laity and the clergy, and thus, ultimately between the common and the ministerial priesthood. The history of the Church has been marked by the constant tension existing between the laity and the clergy. In reality, charism, by its nature and vocation, does not generate contradictions or antinomies in the Church. If antinomy has appeared, and in so far as it has been expressed predominantly as a contradiction between charism and institution, this is because of the underlying tacit and insufficiently verified presupposition that charism has manifested itself solely or almost exclusively among the faithful, understood not so much in the theological sense given them by Vatican II, as in the sociological sense of the “base” element of the Church. In reality, the Protestant Reformation, in which the ideas of the ancient and medieval spiritualist movements in the Church converged, counterposed the common priesthood of the laity with the ministerial priesthood, believing that it had set charism against institution. It counterposed, to the point of provoking their rupture, one pole of the institutional dimension against the other: that of the laity which was undervalued above all in the Middle Ages, an era of strong clericalization in the Church, to that of the hierarchy, which always possessed the hegemony. From this point of view, the Second Vatican Council has been extremely liberating in emphasizing that charism is given to “the faithful of every order” by the Holy Spirit (LG 12, 1), and thus to clerics, religious and laity. This means that charism, as the history of the Church teaches, can challenge or provoke the institution both when it is given as a gift of the Holy Spirit to the ministerial priesthood, as well as when it is made to emerge in the common priesthood. Charism is always given within the constitution of the Church, in its bipolarity of common and ministerial priesthood. The structural problem of the Church is thus not that of realizing the unity between charism and institution, but the unity between the common and the ministerial priesthood. The institutional dimension – that is, the common and ministerial priesthood – has need of charism to realize an equilibrium within its own bipolarity. Drawing on the eschatological dimension of the existence of the Church, charism supports the institutional dimension in the search for its proper unity. This is constantly menaced by the latent antinomy generated by an ever present worldly tendency to misunderstand service as power, frequently manifested in the Church in the hegemony exercised by clerics over the laity, and sometimes, by laity over the hierarchy. Among the multiple forms assumed by charisms, the evangelical counsels represent a fundamental modality. This is the reason for which they have been recognized by the Church also on the juridical level. It is only due to a gross misunderstanding of their nature, that the draft for the new codification has been able to evaluate and classify them from the systematic perspective as one of the many forms of association possible within the Church, even if the most important or preeminent. The movements have a function in the Church analogous to that of the status perfectionis in the measure in which they also are an expression of charisms raised up by the Spirit. In fact, it is easy to ascertain that the problem of the contraposition or antimony between the common and ministerial priesthood does not emerge within the movements, or is not posed with the same insistency with which it generally tends to appear in the Church. On account of their function of giving witness within the Church, the movements – which perhaps for the first time in the history of the modern Church are characterized by their international dimension (cf. the contribution of Msgr. Luca Moreira Neves to the First International Conference, Movimenti nella Chiesa, held in Rome from September 23-27, 1981. Acts in the process of publication) – have the right to be recognized as such, analogously with religious institutes. This would also be a way of juridically affirming the fact that charisms, when they are authentic and recognized as such by the ministerial priesthood, are not raised up for individual benefit, but for the utility of the entire Church (Cf. E. Corecco, “Profili istituzionali di movimenti nella Chiesa,” contribution to the First International Conference, Movimenti nella Chiesa. Acts in process of publication).

55   The theology of the laity has had the historical task of permitting an active insertion of the laity into the life of the Church, through the necessary limitation of the function of the clergy and the specification of the reciprocal relationship between the clergy and the laity. The limits of this theology with respect to a theology of the common priesthood have already been implicitly ascertained in the first part of this article. The recent document of the Italian Episcopal Conference (Nota Pastorale sui criteri di ecclesialità dei gruppi, movimenti e associazioni, of 1981) remains tied to that approach. Although explicitly recognizing the sacrament of Baptism as the genetic foundation of the presence of the laity in the Church (n. 5), it does not grasp with all its richness the expression of the common priesthood in the laity, which, before diversifying them qualitatively, brings them together with all the faithful and thus also with the ministerial priesthood. The document, in fact, is entirely oriented around the lay apostolate. It would be much more complete in its ecclesiological significance if it had treated of the ecclesial apostolate of the faithful. The priority or preferential treatment given by this document of the Italian Episcopal Conference to Catholic Action, understood as a participation or collaboration in the apostolate of the hierarchy, is also along the same lines. The problem is not posed in such an acute way outside of Italy, where Catholic Action is considered as a “genus” and not as a “species,” since all the movements or associations are considered in general as Catholic Action. Since it is clearly and universally recognized that all Christians are called to live, on account of the common priesthood, an ecclesial apostolicity of a general character in communion with the hierarchy, Catholic Action would be called instead to participate in the particular type of apostolicity that the hierarchy holds to be proper to it. In this case, since the non-ordained ministry is still always based on Baptism, only two solutions seem possible: either this ministry is communicable to all lay Christians, or it specifies a reality that is so particular as to be only for a few. Understood in this way, Catholic Action (taken as a species) cannot be anything other than an elite movement, and as such cannot be chosen either as a common form, or as the optimal form of lay apostolate. If that were the case, in fact, the common form deriving from Baptism (common priesthood) would be put down to being a sort of second class apostolate. The original function of the laity, deriving from their direct participation in the tria munera of Christ, is in its substance an ecclesial activity different from that of the hierarchy and thus not primarily a participation in a ministry, which, although not deriving essentially from Orders, is at least connected in fact to the clerical status. The content of this ministry would thus coincide with a type of apostolate that the hierarchy has assumed in order to supply for a lack of laity or for other reasons connected with the position of hegemony possessed by clerics in the history of the Church. It follows that Catholic Action would be a particular form of ministry, strongly connected with the current status of the cleric. The risk of clericalization of the laity is great, precisely because of the incapacity demonstrated by theology up until the present day to synthetically evaluate the relationship existing between the two elements with which Vatican II has sought to define the lay state: participation in the tria munera and secular character. On this problem, cf. E. Corecco, “Profili istituzionali di movimenti nella Chiesa,” loc. cit., pp. 215-228.