By rescript dated May 18, 2022 and published the same day, the Sovereign Pontiff has given the Congregation for Institutes of Consecrated Life the power to contravene the provisions of the code of canon law which until now prohibited a non-priest religious to be elected as the head of his clerical religious society.
From now on, the dicastery at the head of which is Cardinal Joao Braz de Aviz, is granted the faculty of authorizing, on a case-by-case basis, non-clerical members of a religious society to exercise the office of Major Superior in their institute.
In fact, three scenarios are foreseen. The modification made by Pope Francis first allows the superior general of a religious institute to appoint “with the approval of his council” a non-priest member as local superior.
Then, if it is a question of allowing a non-priest member to accede to the function of major superior – such as a superior of a province or a country – the superior general will have to submit the request to the Congregation for Institutes of Consecrated Life who will grant, where appropriate, written authorization.
Finally, in the event of the general chapter electing a brother to the position of supreme moderator, in addition to the confirmation by Rome, which is the rule, an additional “confirmation” of the Holy See will be required, Rome reserving “ the right to assess the individual case and the reasons given.”
The new rescript seems to be the culmination of an urgent request from the Franciscan order: in fact, in 2017, the superiors of the main branches of the seraphic order had been received in audience in this sense by the Holy Father, claiming that their founder had never himself received the sacrament of Holy Orders.
However, this is to forget that St. Francis was a deacon, and that, as such, he participated in the sacrament of Orders, in other words he was a cleric.
There is a triple power in the Church: the power of orders, which is linked to the “character” imprinted in the soul of the priest by sacred ordination. This character allows the priest to give the sacraments to the faithful. It is thus impossible to celebrate Holy Mass or to confess without this character.
The power of magisterium or teaching belongs to the pope for the whole Church, to the bishop in his diocese, and it is entrusted to the priest – even to the deacon – within precise limits.
Finally, the power of jurisdiction makes it possible to govern Christian society. It belongs to the Church by virtue of her divine institution. This power, understood in the strict sense, can only be exercised, by divine right, by a cleric. It allows the making or the application of laws which govern the life of the Church.
This right is full in the pope or an ecumenical council, it is limited in a bishop to his diocese, and finally it is applied by a parish priest in his parish or by a superior within the limits of his jurisdiction, i.e., monastery, ecclesiastical region, etc. .
Finally, the acquisition of the clerical state is traditionally done through the tonsure ceremony. In the new law, it is conferred by the reception of the diaconate.
This power is that of the superior in a religious community or society. It is exercised in relation to the vow or promise of obedience which binds the members of a religious order or institute to their superior, by virtue of their own rule.
It is not necessary to be a cleric to be invested with this power: thus, in communities of women, the superior has this ruling power over the members. But a nun cannot – by divine right – be invested with the power of jurisdiction in the strict sense.
When it comes to religious societies in which the power of jurisdiction is not exercised, but only the ruling power, it is possible to envisage the superior not being a cleric – or a priest to simplify, as for example in the Brothers of the Christian Schools.
Thus, in a clerical religious institute which is not of pontifical right, the superior does not exercise the power of jurisdiction. In this case, the possibility is open, although clearly lacking in rectitude. Indeed, by priestly dignity and by the formation received, the priest possesses, more than the non-clerical religious, the aptitude to receive a superiority.
But on the other hand, in a clerical religious institute of pontifical right, the superior has a power of jurisdiction in the strict sense. In this case, it is contrary to divine right to entrust the superiority to a non-clerical religious.
We are therefore witnessing, with this rescript, the establishment of a new conception of the jurisdiction of the Church, contrary to divine law. This conception was further developed by Fr. Gianfranco Ghirlanda, Jesuit and renowned canonist, during the presentation of the apostolic constitution Praedicate evangelium which reorganized the Roman Curia.