Priests, religious, and public office in the 1983 Code of Canon Law.

Abstract

The subject of this study is canon 285, par. 3 of the 1983 Code of Canon Law which forbids clerics from assuming any public office (officia publica) which entails a participation in civil power (civilis potestas). This canon represents a notable shift of perspective away from the requirement in the 1917 Code of obtaining permission to assume a public office involving the exercise of civil power. The emphasis is now on a straightforward prohibition with no direct reference to exceptions in the law. It is the hypothesis of this study that while canon 285, par. 3 is verbally stronger, more emphatic, and less specific with regard to exceptions than the prior legislation, when interpreted and applied in the context of the church as communio, it reflects an extremely nuanced approach to this issue on the part of the law which does not favour the hard and fast rule that public offices are open to the laity and closed to the clergy. The methodology of the dissertation is structured on the recognition that canon 285, par. 3, like all human laws, came into existence because someone, the legislator, perceived a value which could benefit the community, formulated a norm to achieve that value, and finally asked the community to act on the norm and appropriate the value. Thus, the study lists those values which, in different periods, the legislator has sought to uphold by legislation concerning clerical and religious participation in civil power. It finds that the value underlying the contemporary law is the ministerial health of the communio. A textual and contextual analysis of canon 285, par. 3 concludes that the legislator signifies his intention of focussing on the juridical status of sacred ministers which, of its nature, is changeable and not on the unchangeable elements of ordination. In this light, there appears to be no direct link between the prohibition from public office and the nature and effects of ordination. Furthermore, since permanent deacons are exempted from the prohibition in virtue of canon 288, it seems reasonable to infer that the prohibition from public office is not based on the incompatibility of such offices with the clerical state and encourages a pastoral flexibility and sensitivity. In a concluding section, the study treats of the power of diocesan bishops to dispense from canon 285, par. 3 which, when considered in the context of communio, highlights the necessity of employing such structures as the presbyteral council, the conference of bishops, and the pastoral council, in the evaluation and application of the canon.