Synodality and councils
The language of the Code of Canon Law in this area seems to divide. On the one hand, there is the word Council and on the other Synod. The word Synod is reserved in the Code for the Diocesan Synod and the Synod of Bishops: institutions that operate at the diocesan and the universal level. On the other hand, the word Council is used for gatherings at the level above the diocese: the Ecumenical Council and the Particular Council. The Council can, therefore, be defined as a gathering of bishops (the pastors of the Church) who come together to reflect in a collegial way on the life of the Church and its concerns: faith, morals and discipline. The Ecumenical Council is celebrated by all the Church and gathers bishops from all over the world.Footnote 2 By contrast, the Particular Council concerns a part of the Church, and the bishops from that area gather for it. The Second Vatican Council wished to reinvigorate the ancient institution of the CouncilFootnote 3 and from this came a revision of the canon law surrounding Particular Councils. At the same time, however, the development of the Episcopal Conference (also promoted by the Vatican CouncilFootnote 4 ) offered another means for episcopal cooperation that offered an opening to the expression of synodality. Particular Councils and Episcopal Conferences thus offer parallel means to see decision making at work in the Latin Church at this intermediate level, and to examine the degree to which they can be described as synodal.
Particular councils
The Particular Council in the Code can be examined from two perspectives. The first is by reference to who attends, and the second by reference to the things it does. Both of these are important. Looking first at who attends, the definition sets up the twofold categorisation of Particular Councils: the Plenary Council relates to all the particular churches (usually, the dioceses) of an Episcopal Conference;Footnote 5 the Provincial Council to all the particular churches of a given ecclesiastical province.Footnote 6 Within this twofold division the rule in canon 439, §2 that where a province embraces an entire nation the Provincial Council is to be treated as a Plenary Council gives a certain priority to the Plenary Council. We may see here the influence of the Episcopal Conference on the way in which bishops co-operate with each other. The other significant feature of this aspect of the definition is that both types of Particular Council are defined as being made up of particular churches. Particular Churches are typically dioceses, and the definition of a diocese, as given in canon 369, embraces three vital human components: people of God, the bishop who shepherds them, and the presbyterate which cooperates in this.Footnote 7 The reference in canons 439 and 440 to the churches entails that the membership of the Council is not simply episcopal. The Code will go on to list those who make up the Council: the contrast to note here is that the membership of the Episcopal Conference is made up solely of bishops.
The Code goes on to list those who are to be summoned and the capacity in which they are to attend. There are four categories of attendees, although the first two can be assimilated in many ways. Firstly, the diocesan bishops, coadjutor bishops and auxiliary bishops of the territory, along with other titular bishops who happen to be exercising a special ministry in the territory have to be summoned to the Council.Footnote 8 The second category is made up of other bishops in the territory (retired bishops are the obvious example) who may be summoned. Those in these two categories who attend all enjoy deliberative votes at the Council. This possession of the deliberative vote is rooted in the notion of the bishop as the one with the power of governance, who has legislative power;Footnote 9 although the second category of bishops may either be invited or not (and if invited, seem not to be obliged to attend),Footnote 10 which means that they are not members by right, their possession of a deliberative vote gives their participation a weight by virtue of their episcopal character alone.
The third category of attendees are attendees by right but have a consultative vote rather than a deliberative one. It is worth remembering that the right to vote is a right to speak (the Latin votum embraces both) but also a duty to speak.Footnote 11 The list is made up of those who have significant roles in the lives of the various local churches that have gathered for the Council: vicars general and episcopal vicars, important religious superiors, leaders in Catholic and Ecclesiastical UniversitiesFootnote 12 (both rectors and deans of the Faculties of Theology and Canon Law), and some seminary rectors.Footnote 13 All of these figures bring with them to the Council their ecclesial experience, and that experience is judged so significant that the Council is required to welcome it. The fourth category of members of the Council are in a sense optional, in that they may be invited. If they are so invited they only have consultative votes. They may be priests or other members of the faithful. There is a striking opening here to those whose participation in the power of governance of the church cannot rest on orders, but who are here seen co-operating with the bishops.Footnote 14 The cautious nature of this opening is emphasised by the qualification limiting the number of those who are invited by virtue of this canon may not exceed half of those who are invited by virtue of the first three categories.Footnote 15 The opening may be a small one, but it is none the less present. Although the Code is a little vague about who makes the decisions in this area, it seems to be the Episcopal Conference in the case of the Plenary Council, on the basis of the power given by canon 441 to call together the Council; for a Provincial Council, canon 442 gives this power to the Metropolitan Archbishop. This seems also to follow from the final canon dealing with those who will be present at the Council, which enables guests to be invited.Footnote 16 There is an additional provision for Provincial Councils which requires that the cathedral chapters, presbyteral councils and pastoral councils of each particular church are represented by two members of each bodyFootnote 17 thus increasing the presence of each local church at the Council – and ideally its sense of the local church’s situation.
Having examined the membership of the Particular Council the other aspect of its purpose is worth considering. Canon 445 establishes that:
A particular council, for its own territory, takes care that provision is made for the pastoral needs of the people of God and possesses the power of governance, especially legislative power, so that, always without prejudice to the universal law of the Church, it is able to decide what seems opportune for the increase of the faith, the organization of common pastoral action, and the regulation of morals and of the common ecclesiastical discipline which is to be observed, promoted, and protected.
This pastoral aim is backed up by the power of governance, and especially by the power to legislate. The limitation of this power by the universal law of the Church is understood to prevent Particular Councils defining truths of faith or morals, or issuing dogmatic condemnations: this is reserved to the Roman Pontiff or an Ecumenical Council.Footnote 18 However, the Council can explain or deepen the Church’s teaching, and condemn errors which threaten it.Footnote 19
The final aspect of the Particular Council to consider is its relationship to the universal church. The 1983 Code shifts the balance in this relationship much more towards to local. It is the Episcopal Conference which decides whether at Plenary Council is ‘necessary or useful’, and the Holy See merely grants its approval to this decision.Footnote 20 In the case of a Provincial Council the majority of the bishops make the decision to call one, without even the need to refer the matter to the Holy See.Footnote 21 In the case of the Plenary Council all the decisions about the agenda and the process are made by the Episcopal Conference, save only that the Holy See has to approve the one elected from among the diocesan bishops as the President of the Council.Footnote 22 In the case of the Provincial Council, all these decisions are made by the bishops themselves (except that the law requires the Metropolitan to preside), again without any requirement to refer matters to the Holy See.Footnote 23 Finally, the Acts of the Council are transmitted to the Holy See, and the decrees of the Council may not be promulgated until they have received its recognitio.Footnote 24 Once this is obtained, then the means the Council itself will have laid down can be followed for promulgation.
Episcopal conferences
The Episcopal Conference is a much more recent institution within the Church, whose origins go back to the nineteenth century, and which came to its present form in response to the second Vatican Council.Footnote 25 They have become more and more prominent in the life of the Church, offering a means not simply of enabling bishops to cooperate but also to manifest their episcopal collegiality without the organisational burdens of a Particular Council. This journey has led to Conferences being regarded as permanently existing organismsFootnote 26 – as distinct from the temporary nature of a Council.
The Episcopal Conference is an assembly of Bishops, who are drawn from a nation or given territory (where a nation is too small to sustain one).Footnote 27 The membership is made more precise by canon 450: all the diocesan bishops, together with coadjutor bishops, auxiliary bishops and other bishops with specific ministries in the territory are members by law. Others may be invited – notably the bishops of Eastern Catholic Churches in the territory, even though the Episcopal Conference is an essentially Latin institution. Other bishops, including both the Papal Nuncio and retired bishops are not members by general law – but the statutes of the individual Conference can provide for them to be members. Within this body there are two tiers of membership. Diocesan bishops, coadjutors and those equivalent to them have deliberative votesFootnote 28 but auxiliary and other titular bishops only have consultative votes.Footnote 29
Alongside the Conference in the strict sense, that is, the meeting of all the Bishops together, the law provides for a number of ancillary institutions. These include a President,Footnote 30 elected by the Conference, who presides both at its meetings and at those of the permanent council – the next of these institutions. The permanent council has the essential tasks of preparing for the plenary meetings of the Conference and ensuring that the decisions that meeting arrives at are carried out.Footnote 31 To support the Conference, and to ensure that its permanent existence has meaning throughout the year, there is also a General Secretary. The law defines his functions narrowly, looking only at the production and communication of the Acts of the plenary meeting and of other meeting of the commissions of the Conference.Footnote 32 Finally, the Conference may establish commissions ‘which, in the judgment of the conference, more effectively help it to achieve its purpose’.Footnote 33 To organise all of this, the Conference has to have its own statutes, which are an important element of the permanent existence of the Conference. They lay out how the plenary meetings of the Bishop members will take place and how all the different ancillary institutions are to be constituted and to operate.Footnote 34 These statutes are the work of the Conference itself, which affords it some scope for modifying its way of existing to best advance its work – within the overall oversight of the Holy See which must approve these statutes.
As well as considering the Conference as a complex of institutions, its objectives are also an important part of its definition. These are laid out in summary form in canon 447, which exhorts bishops to work together by jointly exercising their pastoral functions in order ‘to promote the greater good which the Church offers to humanity, especially through forms and programs of the apostolate fittingly adapted to the circumstances of time and place, according to the norm of law’. The Pastoral Directory on the Life and Mission of Bishops (Apostolorum Successores) expands this:
The Conference fulfils an important function in all kinds of pastoral areas through: the joint regulation of certain pastoral matters via general decrees, binding both the Bishops and the faithful of the territory; the transmission of the doctrine of the Church in a more incisive way and in harmony with the particular character of a nation and circumstances of life of its Christian faithful; the coordination of individual efforts through common initiatives of national importance in apostolic and charitable fields.Footnote 35
The mention of general decrees here raises the question of the potential legislative authority of the Episcopal Conference – and from this follows the additional but linked question of their doctrinal teaching authority. Canon 455 lays out a series of conditions for the exercise of such authority: the decree must be approved by a two-thirds majority of the bishops with deliberative vote, and must then must be authorised by the Holy See before it is promulgated.Footnote 36 This canon rests on the idea that the authority of the Episcopal Conference is delegated from the Holy See.Footnote 37 The constraints are intended to protect the proper authority of the diocesan bishop in his own diocese. This legal rule is a controversial one and was criticised in the 2013 by Pope Francis in Evangelii Gaudium, when he observed:
The Second Vatican Council stated that, like the ancient patriarchal Churches, episcopal conferences are in a position ‘to contribute in many and fruitful ways to the concrete realization of the collegial spirit’. Yet this desire has not been fully realized, since a juridical status of episcopal conferences which would see them as subjects of specific attributions, including genuine doctrinal authority, has not yet been sufficiently elaborated.Footnote 38
A limited step towards this has been taken with regard to liturgical books in the vernacular, which the Episcopal Conference may now prepare and approve, requiring only the confirmatio of the Holy See, rather than as previously its recognitio.Footnote 39 The difference between the two seems to be in essence that the confirmatio looks more at the process followed by the Conference, whereas the recognitio looks more at the substance of the work done.Footnote 40 Whether this is a harbinger of the future remains to be seen. Considering all the various elements of the Episcopal Conference it seems somewhat uneasily poised between the levels of the diocese and the universal church. However, the Code offers an opening to a more horizontal set of relationships when it asks Conferences to relate to each other – especially if they are territorial neighbours – to promote the greater good,Footnote 41 and even to undertake international activity to promote the common good.Footnote 42
The universal law about the Episcopal Conference, when viewed with a concern for synodality, reveals a significant lacuna. There is no provision for the Bishops to hear any other voices than their own as part of their process of discernment. The Plenary Council has an extensive membership which goes well beyond episcopal and clerical ranks, and these are required by the law. Those voices at least offer the structural possibility of other perspectives. This lack, while not formally acknowledged, has been identified in the process surrounding the current Synod. The Dicastery for the Synod issued Suggestions for Dioceses and Episcopal Conferences on the preparation of the synthesis that they were required to submit at the conclusion of the local and national stage of the process.Footnote 43 These envisage a drafting team that is made up of a diverse group that clearly goes beyond the bishops themselves. It is fair to say that most of the attention of the Synod process has been on the diocesan phase of consultation, and one is often left with the impression that Episcopal Conferences are assumed to have the competence to carry out the task of synthesis allocated to them (along with their other tasks in this process); there is here at least an acknowledgement that more is needed. There is not merely a contrast here with the participatory elements of the Plenary Council, but even more so with the consultative and participatory bodies that are a part of diocesan life.Footnote 44 There are no similar legal bodies which offer the Bishops opportunities to consult on matters from the national perspective. The comment of the Instrumentum Laboris issued ahead of the second session of the XVI Ordinary General Assembly of the Synod of Bishops seems fitting:
In addition to observing what is already provided for in the canonical norms regarding control criteria and mechanisms, it is up to the local Churches and, above all, their groupings (i.e. ecclesiastical provinces, Episcopal Conferences, and Eastern hierarchical structures) to construct effective forms and procedures of transparency and accountability, appropriate to the variety of contexts, based on the civil regulatory framework, the expectations of society, and the actual availability of expertise in the field.Footnote 45
Conclusion
At the supra-diocesan level the heart of ecclesial discernment and decision making involves the presence and action of bishops. Two different legal methods to facilitate this are offered in the present law: the Particular Council and the Episcopal Conference. The first of these provides a rich structure to ensure that a wide range of perspectives from the life of the gathered churches are available to guide the process. Sadly, this has not proved a popular option: in the period up to 2020 only two Plenary Councils had been held.Footnote 46 The Episcopal Conference has become ubiquitous, but its structures involve only Bishops and the law does not provide any means to expand the range of voices that have to be heard. A striking example of this is that there are no provisions requiring the Episcopal Conference to consult anyone else ad validitatem before they make a decision. The vision of synodality that is emerging in documents that have recently emerged from the Holy See suggests that we are about to see considerable legal reform in the supra-diocesan structures that have been described here.
Acknowledgements
This article is based on a paper delivered to the Twenty-Third Colloquium of Anglican and Roman Catholic Canon Lawyers, ‘Canon Law and Synodality’, meeting at the Pontifical University of St Thomas of Aquinas, The Angelicum, Rome, 24–27 September 2024. A version of this article was originally published in edition 206 of the Newsletter of the Canon Law Society of Great Britain and Ireland and is published here with the permission of the Canon Law Society of Great Britain and Ireland.
