Folia Theologica et Canonica 6. 28/20 (2017)

IUS CANONICUM - Kurt Martens, Hierarchical recourse as a dialogue between particular church and universal Church? Difficulties, challenges and opportunities

HIERARCHICAL RECOURSE AS A DIALOGUE BETWEEN PARTICULAR CHURCH... 83

“(••■) a societas perfecta is a society, distinct from every other assembly of men, which moves towards its proper end and by its own ways and reasons, which is absolute, complete and sufficient in itself to attain those things which pertain to it and which is neither subject to, joined as a part, or mixed and confused with any society.”2''

The term societas perfecta was used by Benedict XV in his apostolic constitution Providentissima Mater Ecclesia promulgating the 1917 Code of Canon Law.23 24 In the Code, however, the term societas perfecta was not used. It is clear though that the idea of the societas perfecta was the underlying idea of the Code.

In real life there are supposed to be only two such perfect societies: the State and the Church. While the State is the highest instance in the temporal, worldly sphere, the Church is the highest authority in spiritual matters. As opposed to political state power the ecclesiastical jurisdiction is directed to the eternal or supernatural salvation of all the baptized, as Huysmans has noted. Earthly wellbeing is the responsibility of the State. Based on its orientation towards salvation, the holder of ecclesiastical jurisdiction has the required competence to guide the faithful to this salvation. Such an approach leads to the consequence that this holder of ecclesiastical jurisdiction is not bound by ecclesiastical laws, should that be necessary or useful for the Church.25

Although both are the highest authorities in their respective spheres, one has certain precedence over the other: the Church must have precedence over the State, since spiritual matters are more important than temporal matters.

23 Mansi. I. D., Sacrorum conciliorum nova et amplissima collection, LUI. Graz 1961.315: "Qua de causa ecclesia etiam iure merito societas perfecta dicta est: quipped quae ad finem proprium propriis viis et rationibus tendens, a quovis alio hominem coetu distincta, atque ita in se absoluta et completa est, ut sibi ad finem consequendum sufficiens, in iis, quae eo pertinent, nulli ahi societati sive subiecta sive tanquam pars innexa sive permixta et confusa est."

24 Codex Iuris Canonici Pii X Pontifiais Maximi iussu digestus Benedicri Pupae XV auctoritate promulgarus, Romae 1917. The non-official English translation of the authentic Latin text from Peters, E. N., The 1917 or Pio-Benedictine Code of Canon Law in English Translation with Extensive Scholarly Apparatus, San Francisco CA. 2001. All subsequent English translations of canons from this code will be taken from this source unless otherwise indicated. The beginning of the apostolic constitution reads as follows: "Providentissima Mater Ecclesia, ita a Conditore Christo constituta, ut omnibus instructa esset nods quae cuilibet perfectae societati congruunt. inde a suis primordiis, cum, Dominico obsequens mandato, docere ac regere omnes gentes ince- pit, aggressa est iam turn sacri ordinis virorum christianaeque plebis disciplinam datis legibus moderari ac tueri.” In English translation: “That most provident Mother, the Church, endowed by her Divine Founder with all the requisites of a perfect society, when, in obedience to the Lord’s mandate, she commenced in the very beginning of her existence to teach and govern all nations, undertook by promulgating laws the task of guiding and safeguarding the discipline of the clergy and the faithful.”

25 Huysmans, R. G. W„ De administratieve macht in de r.k. Kerk (see nt. 11) 10. See also Ottavia- ni. A., Institutiones liais Publiai Ecclesiastici, I. 178.