Church Law and the Prohibition to Ordain Women
by Dismas Bonner, O.F.M.
from Women and Priesthood: Future Directions, pp. 71-83.
edited by Carroll Stuhlmueller, C.P. The Liturgical Press, Collegeville, Minnesota.
Republished on our website with the necessary permissions
DISMAS BONNER, O.F.M., holds the doctorate in Church Law from the Catholic University of America. He is Professor of Church Law at Catholic Theological Union. He has done extensive work with religious communities of both men and women, conducting retreats, workshops and study days, and has served as adviser to many communities in the work of revising their Constitutions. For over fourteen years he has served as canonical assistant to a federation of contemplative women.
“Only a person of the male sex who has been baptized can validly receive sacred ordination.”(1) In these few words, canon 968 )(1 of the Code of Canon Law effectively rules out the possibility of ordaining women to the priesthood in the Roman Catholic Church. It is this long standing discipline that is sustained as apostolic tradition by the Sacred Congregation for the Doctrine of the Faith in its Declaration on the Question of the Admission of Women to the Ministerial Priesthood.(2) And it is this same discipline that many scripture scholars, theologians, canonists and other deeply concerned members of the contemporary Church question seriously in the face of urgent pastoral needs and social developments which have given new status and recognition to women.
What indeed is the basis of the norm contained in canon 968 )( 1? Is it the current expression of some unchangeable apostolic tradition manifesting the divine law, or is there ultimately a question of ecclesiastical tradition and law which need to change in order to respond adequately to the contemporary situation?
Evidently, the Declaration is not primarily a canonical document. In fact, neither in the text itself, nor in the Commentary or the notes is there any explicit reference to canon 968 )( 1. However, at the close of Part 4, which treats the “Permanent Value of the Attitude of Jesus and the Apostles,” there occurs a paragraph that has significant canonical implications:
This practice of the Church, therefore, has a normative character: in the fact of conferring priestly ordination only on men, it is a question of an unbroken tradition throughout the history of the Church, universal in the East and in the West, and alert to repress abuses immediately. This norm, based on Christ’s example, has been and is still observed because it is considered to conform to God’s plan for his church. (3)
This statement places the matter squarely in the arena of legal custom, which Gratian defines as “the kind of law that is established by usages which have been in observance for a long time, and which is accepted as law where there is no law.”(4) Thus many juridical institutes and structures in the Church, including for example some matrimonial impediments and even clerical celibacy, were introduced by custom before they were ever the subjects of written legislation.(5) It has long been recognized that custom can obtain in the Church the same normative and obligatory force as written law.
According to canon law, the key element for the establishment of custom is the consent of competent authority. This constitutes a departure from Roman Law, which situated the force of custom in the consent of the people.(6) Once legitimately established, the law of the Church does not regard the force of lawful custom lightly. Thus in a text that is cited as one of the sources of the Code of Canon Law, Pope Honorius III wrote to the Chapter of Paris:
Since the authority of custom and long usage is not trifling, and novelties most commonly breed discord, We forbid you by authority of these presents to change, without the consent of your Bishop, the approved constitutions and customs of your Church as also to introduce new ones; declaring void any that you might have made.(7)
The text of the Declaration is surely sensitive to the requirements for the validity of ecclesiastical custom in canon law, requirements that grow out of long tradition and are presently enshrined in the Code of Canon Law.(8)In order that a custom which lies beyond or outside the written law may have legal force, it must be knowingly observed by the community with the intention of binding itself. It must, moreover, be reasonable,(9) and be lawfully prescribed for forty continuous and complete years, i.e., practiced openly without any complaint of legitimate authority. Thus, to meet the requirement that a custom outside the written law be knowingly observed by a community with the intention of binding itself, the Declaration offers the conviction that the practice of ordaining only men “has been and is still observed because it is considered to conform to God’s plan for his Church.”(10)
Moreover, lest any contrary past or present practice be cited as the foundation for a custom contrary to the law, the Declaration announces that the Church has always been “alert to repress abuses immediately.”(11) Indeed, by its insinuation that the prohibition to ordain women is a matter of divine law, and by its evident and continued opposition to any contrary custom, the Declaration insures for some time in the future that an essential requirement of canon 27 for customs against the law will not be fulfilled, since to acquire legal force, such a contrary custom must be in peaceful possession without interruption or protest by lawful authority for at least forty continuous years. Moreover, no contrary custom can in any way prevail over divine law.(12) Thus, the Commentary on the Declaration is able to claim:
It is an undeniable fact . . . that the constant tradition of the Catholic Church has excluded women from the episcopate and the priesthood. So constant has it been that there has been no need for an intervention by a solemn decision of the Magisterium.(13)
In the light of the Church’s long standing tradition and custom, the Commentary on the Declaration raises the further question: Does the fact that the Church has never ordained women to the priesthood constitute proof that she cannot do so in the future? “Does the negative fact thus noted indicate a norm, or is it to be explained by historical and cultural circumstances? In the present case, is an explanation to be found in the position of women in ancient and mediaeval society and in a certain idea of male superiority stemming from that society’s culture?”(14) The answer to these questions involves us in the effort to evaluate not only the Declaration itself, but also one of the most cogent and scholarly works to treat this problem in recent years, The Exclusion of Women from the Priesthood, by the German scholar Ida Raming.(15)
Dr. Raming’s research purports to show, by a thorough study and interpretation of the pertinent sources, that the law limiting priestly ordination to baptized males was based on forgeries, mistaken identities and suppressions, as well as on the assumption that women are inferior beings. The core of her argumentation is summed up well in the following paragraph:
It is clear from the application of this discussion to the problem before us that the Decretum had a negative influence on the evaluation and the position of women in the church. The ritual regulations for women, which consist exclusively of prohibitions— including the Pseudo-Isidorian decretals and texts (Statuta Ecclesiae Antiqua) falsely attached to an important Council—have established or at least confirmed a status of legal deprivation and inferiority for women in the ecclesiastical sphere. (Assisting in the process were genuine and non-genuine patristic citations, which were used in the Middle Ages as legal sources, and the accepted opinions of Magister Gratian.) This status became a generally accepted and permanent condition, which is still determinative for the law of the Codex Iuris Canonici. 16)
For those who might not be initiated into the intricacies of canonical lore, it will help to identify the cast of characters. Magister Gratian is known as the “Father of Canon Law” because of his monumental 12th century Decretum which brought new order and clarity into the confused mass of ecclesiastical legislation. The Decretum, completed about the year 1140, became the most important and widely used source of canon law, despite the fact that it was never officially commissioned or approved by ecclesiastical authority. Its influence on future law and theology was immense, and it is one of the principal sources of the present law of the Church.
The Statuta Ecclesiae Antiqua (Ancient Laws of the Church) is a collection of canons taken from certain Greek councils as well as from the Decretals or laws of certain Popes. In an effort to bolster the authority of these canons, they were falsely and incorrectly ascribed to the IV Council of Carthage (398 A.D.) or to the Synod of Valentia in Gaul (347 A.D.). Their most likely place of origin, however, is the city of Arles in the first part of the 6th century.(17)
Much more influential were the Pseudo-Isidorian Decretals, which Cicognani labels “a forgery altogether unique, a bold and successful fraud.”(18) Most prominent of a number of collections containing false texts, these decretals were the result of a tendency to accomplish canonical reform through a process of ascribing recent canon law to authorities of the past. Their principal thrust was to strengthen the position of the Roman See, as well as to vindicate the rights of bishops and clergy, particularly in regard to secular authority. The forgers began with a prior collection, the Collectio Hispana. This collection actually had evolved over a period of time from the 6th to the 8th centuries. But, because of the great respect for his authority, the entire collection was already attributed to St. Isidore, bishop and doctor of the Church (died 636). Thus the collection was also known as the Isidoriana.
It was this particular body of laws which, further embellished and falsified as the needs of the time dictated, became the Pseudo-Isidorian Decretals. The work was most likely done by an unknown group of compilers between the years 845 and 852, either in Rheims or Le Mans. Drawing upon Scripture, various canons and decretals, Greek, Roman and Gallic councils and a host of other sources, the forgers cleverly interspersed genuine and spurious texts, and thus were able to perpetrate a deception that perdured for centuries. Given the universal and almost immutable force attributed to pontifical decisions, even though neglected and forgotten for a long time, together with the confused and incomplete state of the science of canon law and its sources, compilers found it relatively easy to fill in the gaps with needed legislation, to invent and fabricate papal decrees, without anyone becoming suspicious. Given this situation, it is not surprising that some of the material of the Pseudo-Isidorian Decretals managed to find a place in the Decretum of Gratian and thus to exert its influence on our present law.(19)
Does the reliance of Gratian and later legislation on these false decretals constitute a major reason for the present exclusion of women from ordination to the priesthood? Dr. Raming argues strongly that it does. One of the principal vehicles for the transmission of Pseudo-Isidorian texts contained in the Decretum was the Summa of Huguccio, a very extensive and important work of the Bologna school where Gratian himself worked. Commenting on the role of Huguccio, Dr. Raming writes:
The viewpoint represented by Huguccio and his epigones, that male sex is the conditio sine qua non for the validity and effectiveness of ordination as well as for the exercise of the functions of clerical office, is based in the first place on a fundamental misunderstanding of ordination. As official commissioning and spiritual preparation for ecclesiastical service, ordination can never have sex as essential presupposition for its validity and operation; it is always directed toward a human being. In the second place and especially, Huguccio’s viewpoint is based on disrespect for woman, her baptism, and her personal and religious worth, all of which qualify her as well as man for receiving ordination and for the exercise of the functions of clerical office. Therefore it must be emphatically emphasized that the church opposes the ethos of the Christian message in an essential point, as long as it preserves this viewpoint and elevates it to a legal norm.(20)
Indeed, Dr. Raming’s argumentation tries to build a strong case for these conclusions. Without a doubt, Huguccio’s viewpoint, like that of other canonists, is strongly influenced by a low opinion of women and their status in the Church. But to contend that his doctrine is based on these notions about women without mention of any other possible source is to conclude more than the argumentation will bear. It may possibly be, as the Declaration maintains, that there is an apostolic tradition which declares the will of Christ in this matter, quite apart from the inadmissible argument drawn from faulty notions about the dignity of women. It may be that such a tradition, together with their ideas about the low status of women, influenced the work of the canonists.
It is likewise quite true that ordination, as “official commissioning and spiritual preparation for ecclesiastical service . . . is always directed toward a human being.” What Dr. Raming does not add is that the tradition indicates that ordination is always directed toward a male human being. If “ordination can never have sex as essential presupposition for its validity and operation,” it is nonetheless true that, from a canonical viewpoint, the presumption stands in favor of the Church’s immemorial tradition and practice. Surely her argumentation points to the need to reassess this practice, to look once again at the ancient tradition in the light of the contemporary situation. But to conclude that, in the Church’s present discipline, “a fundamental misunderstanding of ordination” is operative, or that “the Church opposes the ethos of the Christian message in an essential point” seems to beg the very question that is at issue.
Perhaps the tendency to derive too much from the texts of Huguccio and other canonists can be explained by a reviewer of Dr. Raming’s book, writing in Library Journal for Nov. 15, 1976, and cited on the dust jacket of the book itself: “She writes in the style of a militant feminist and the mixture of vast scholarship and barely suppressed rage makes a fine combination.” This “barely suppressed rage” at times, as in this and other instances,(21) distracts from the dispassionate objectivity that is necessary in matters of this nature.
Any attempt to evaluate the effects of the Pseudo-Isidorian Decretals must be based on some fundamental notions about their historical credibility. It may be that a document consists entirely of genuine canons and is, moreover, circulated under the name of the true author of the collection. However, canons may also be ascribed to someone who is not really the author of the collection, perhaps to give greater authority to the norms. Such canons are truly valid laws, but the collection is not genuine insofar as it is attributed incorrectly to a certain authority. It is known as a “pseudoepigraph.” Finally, a given collection may consist either entirely or partially of falsified or invented canons; these canons are not valid law in themselves, although they may, of course, influence the course of later valid legislation.(22)
One of the first instances of this type of compilation occurs in the case of the Pseudo-Apostolic Collections which were circulated under the names of the Apostles from the late first to the fifth centuries, works like the Didache, the Didascalia, and the Constitutiones Apostolorum. Only later were they discovered to be apostolic in character, but not actually the work of the Apostles themselves. To a modern critical scholar, this may seem like rank forgery; in the eyes of the early Christians it was quite another matter. They simply assigned the works to the Apostles because they contained rules which were considered in all good faith to be legitimate developments of the apostolic tradition.
These works, which profoundly influenced the Decretum of Gratian have great significance for the history of ascetical and moral life in the early Church, and for the liturgy and canon law of that time, presenting a fairly ideal picture of the situation of the early Church, its discipline and law. So, in all truth, if we wish to search out “forgeries” which have deeply influenced the life and structure of the Church to our very day, we must, as Dr. Raming indicates, go back far behind the Pseudo-Isidorian Decretals to discover such formative influence.(23)
Turning now to the Pseudo-Isidorian Decretals themselves, scholars note three areas of influence upon the development of canon law: 1) the Decretals do contain some entirely new material, mostly norms vindicating the rights of the Roman Pontiff and the clergy, 2) the collection served to solidify the weak and corrupted church discipline of its day; 3) it exerted an influence on later collections of law which draw material from it.(24) It should be noted that, in most instances, only the texts of the canons were forged; the rights, institutes and structures they were vindicating were already in existence, even inherent in the structure of the Church. Thus:
The assertion that many novelties were thus introduced is false. Substantially, all its enactments were already in existence. . . It is sufficient to note that if novelties had been introduced, the collection would not have been so readily accepted; objections would have arisen and the fraud would have been easily detected. Our argument is strengthened by the fact that certain new laws contained in this collection were never observed. (25)
If the mere fact that a text is a forgery does not in itself vitiate its witness to tradition, there is still, as Dr. Raming correctly observes, the question of its objective historical worth.(26) The fact of the matter is, as she well demonstrates, that a number of key texts have been altered in a manner which is highly prejudicial to women, probably out of motives that were based on a very low regard for them. Thus she points out:
. . . it is clear that the excerpt from the Pseudo-lsidorian decretal of Soter, which Gratian in dist. 23, c. 25 takes as authority, has no convincing historical basis and therefore cannot be used uncritically, i.e., without considering this fact as a traditional proof for the exclusion of women from liturgical functions.(27)
The particular offending text contained a prohibition that no monk (nullus monachus) might touch the altar cloths or incense the church. The author of the later Liber Pontificalis altered the text to achieve the same prohibition against nuns (nulla monacha) instead of monks. Dr. Raming in a thorough and expert analysis of the texts of the Decretum, indicates similar problems with the treatment of other key areas: reservation to men of handling sacred objects, the prohibition for women to take communion to the sick, the prohibition against teaching and baptizing by women, and the exclusion of so-called presbyterae in the Church.(28) It is not at all certain just what this final prohibition meant or what this office of presbytera was in the Church, but in any case women as a result were excluded from ecclesiastical roles which they had formerly filled.(29)
There is only one place in the Decretum where the opinion of Gratian himself about the possibility of ordaining women is expressed. The dicta Gratiani aver that “women can attain neither to the priesthood nor even to the diaconate. . .”(30) This is important to note because, as Dr. Raming observes, his own opinion naturally affected his choice of legal texts and the manner of their arrangement. Finally, she observes that it is not clear whether Gratian regards this prohibition as the result of ecclesiastical law alone, or whether he sees it as divine and unchangeable in nature. A number of indications point to the latter view.(31)
The Commentary appended to the Declaration On the Question of the Admission of Women to the Ministerial Priesthood assesses some of these canonical factors, directly or indirectly. The Commentary is quick to acknowledge that, “because of this transitory cultural element . . . some arguments adduced on this subject in the past are scarcely defensible today.”(32) Reference is made to St. Thomas’ idea of the state of subjection of women and to a similar idea contained in the Decretum of Gratian, tempered by the excuse: “. . . but Gratian, who was quoting the Carolingian Capitularies and the false Decretals, was trying rather to justify with Old Testament prescriptions the prohibition—already formulated by the ancient Church—of women from entering the sanctuary and serving at the altar.”(33) The Commentary adverts to recent polemical arguments which have recalled and commented on texts that develop this line of argumentation, but concludes that:
It would be a serious mistake to think that such considerations provide the only or the most decisive reasons against the ordination of women in the thought of the Fathers, of the mediaeval writers and other theologians of the classical period. In the midst of and going beyond speculation, more and more clear expression was being given to the Church’s awareness that in reserving priestly ordination and ministry to men she was obeying a tradition received from Christ and the Apostles and by which she felt herself bound.(34)
This contention is bolstered by reference to significant pseudo-apostolic collections and documents, scil., the Didascalia Apostolorum, the Apostolic Constitutions and an ancient Egyptian collection of 20 canons.(35)
The Commentary turns to deal with theological and canonical treatment of the sacraments. It notes that writers who discuss the nature and value of the tradition reserving ordination to men base their case on a principle formulated by Innocent III. This principle was contained in a letter written Dec. 11, 1210, to the Bishops of Palencia and Burgos, and was included in the Decretals compiled under the auspices of Gregory IX:
Although the Blessed Virgin Mary was of higher dignity and excellence than all the Apostles, it was to them, not her, that the Lord entrusted the keys of the Kingdom of Heaven.(36)
The context of this assertion is the condemnation of the practice of certain abbesses who were giving priestly blessings to their nuns, hearing their confessions, reading the Gospel and preaching publicly. The Pope calls these practices intolerable and absurd, “thus showing unmistakably that such practice is thoroughly incompatible with his narrow view of women.”(37) In any case, whatever may have been the anti-feminist motivation of ecclesiastical authority, the above theological reasoning was introduced and became a common source for commentators on the question. Since the commentary admits that canonists have based their case on this Mariological principle, it surely merits further scrutiny.
Raming cites H. Van der Meer to emphasize that the question of the priesthood of the Mother of God is far from being solved. Certain theologians do admit to a priesthood of Mary, but not the ministerial priesthood or priesthood of office which, she says, “is mistakenly understood as priesthood in the full sense.” (38) These theologians deny that Mary could be a priest in the full sense because she was a woman. Commenting on this, Raming points out:
This kind of reasoning certainly raises questions and leads to the conclusion that the denigration of the female sex on the one hand, and the over-emphasis on the sacramental priestly office on the other, could have brought about a falsification and distortion of Mariology in this respect. H. Van der Meer rightly points out that the argument—Mary was not a priest because a woman cannot be a priest—can no longer be used as proof for the thesis that a woman may not be a priest. For this unproved thesis is being used as basis for the statement that Mary is not a priest: one cannot at the same time prove the first by the second and the second by the first.(39)
Moreover, Raming cites arguments which indicate that rejection of Mary’s priesthood suggests a truncated understanding of her place in salvation history as well as an exaggerated understanding of the priestly office itself, an understanding “which does not conceive ministry in terms of the whole church and its charismatic essence, but rather as isolated from them.“(40) She points out that Mary is not only the image and archetype of the believing and receiving Church, but also the image of the Church proclaiming the Gospel and conferring the grace of salvation in sacramental signs. In other words, she is the image of the Church of priestly office, and she is the one who bestows on the world the gift of the eternal Word.
It is not, therefore, in Raming’s thinking, legitimate to separate the two aspects of the Church, or to identify one with the laity and the other exclusively with priestly office. If Mary is the model of the Church, her priestliness cannot be taken from her, and the fact that she is not numbered among the twelve apostles and was not given the power of the keys does not necessarily prove that she was not a priest. Like Christ’s priesthood, Mary’s priesthood did not come about by sacramental ordination or apostolic office, but had its origin in her election and calling by God.(41) On the basis of this argumentation, Raming maintains:
Considering then the place of Mary in the salvation activity of God, it seems clear that the Mariological argument . . . has little merit. Therefore the prohibition of blessing, hearing confessions, and preaching cannot be justified by reference to Mary and her position. On the contrary it is weakened by such reference.(42)
Is the prohibition to ordain women, under sanction of invalidity, a matter of divine law which cannot be changed, or is it, in the final analysis, only a question of changeable ecclesiastical legislation? Gratian seems to have held to a divine origin of the law, and the Commentary on the Declaration, citing several theologians and canonists, remarks:
So it is no surprise that until the modern period the theologians and canonists who dealt with the question have been almost unanimous in considering this exclusion as absolute and having a divine origin. The theological notes they apply to the affirmation vary from “theologically certain” (theologice certa) to, at times, “proximate to faith” fidei proxima) or even “doctrine of the faith” (doctrina fidei). Apparently, then, until recent decades no theologian or canonist considered that it was a matter of a simple law of the Church.(43)
Thus, for example, a later author like Cappello holds that angels, separated souls, unbaptized men and all women are radically incapable of ordination; should they be illicitly ordained, it would be null and void. He argues that, since the priesthood itself is of divine positive law, so the prohihition and incapacity here in question is also a matter of the divine law.(44) The foundation for this common opinion seems to be the interpretation given by the Fathers to 1 Cor 14:34-35 and 1 Tim 2:11-12, texts which enjoin upon women silence in the assembly. These texts have been understood by canonists like Cappello as requiring the absolute exclusion of women from the ecclesiastical hierarchy and therefore from receiving orders.
Thus too the tendency to brand as heretical the opinion that women can validly receive the priestly office.(45) The notes to the Commentary on the Declaration support this line of thought, citing Gasparri to the effect that the prohibition to ordain women is under penalty of invalidity. Gasparri bases his doctrine on the fact that tradition and Catholic teaching have interpreted the doctrine of St. Paul in this way and notes that, for this reason, the Fathers have branded as heretical the notion that women can be validly ordained.(46) Evidently there is question here of basing the divine law status of this invalidating prohibition on scripture texts, which, however, bear heavy marks of cultural conditioning.(47) Indeed, it would seem that these texts, taken at face value, would have to rule out not only ordination of women, but also most of the important roles which the Declaration itself recognizes for women in the contemporary Church.(48)
Sometimes a great deal of confusion is engendered relative to the status and effects of documents that emanate from Rome. There is a tendency to invest anything that comes from the Vatican with a kind of “creeping infallibility” inculcated with the magic phrases, “Rome says” or “the Pope says.” Actually, there exists a variety of ways in which the Pope and the Roman Curia issue official statements. Thus, if a statement comes from the Holy Father himself, it can be anything from a formal solemn dogmatic definition to an address at the weekly papal audience. It may be a solemn Apostolic Constitution, a change of legislation introduced on the Pope’s own initiative (motu proprio) or merely a homily or allocution.
Moreover, the different Congregations of the Roman Curia utilize various forms of communication and promulgation, such as decrees, instructions and responses. Among these options is the form of the “declaration”—the particular type of document used by the Congregation for the Doctrine of the Faith to express its mind “On the Question of the Admission of Women to the Ministerial Preisthood.” A declaration may be defined as “an interpretation of existing law or facts, or a reply to a contested point of law.” (49) In the case of the Declaration on the ordination of women, there is no question of a new law. Rather it is intended to be an authentic (i.e., official) explanation and interpretation of the current legislation of the Church and the current situation in the Church. It must be understood in this light. In no sense should it be seen as the final word which forbids and closes off all further discussion. Had this been the aim and intent of the Holy See, there were far more solemn forms of pronouncement available than that of a declaration coming from a Congregation of the Roman Curia.
The foregoing discussion makes it abundantly evident that the canonical discipline in regard to the ordination of women has resulted from the interaction of complex cultural and theological trends over many centuries. The prohibition to ordain women to the priesthood rests on long established custom that has been written into the law of the Church. Moreover, the antecedents of the written law lie in spurious texts which were accepted into the Decretum by Gratian and thus transmitted to the future, so that even today they exert their influence on the law of the Church. However, the mere fact that a text is spurious does not necessarily serve to vitiate its witness to a long standing tradition. The forgeries were attempts to give greater authority and credibility than was already implied by the established practice of the Church, and must be viewed with an understanding of Christians, who, in good faith, sought to bolster rights and structures that were in many cases already inherent in ecclesial life.
What appears rather plain is the fact that no purely legal reason stands in the way of modifying the present law to admit women to priestly ordination. Customs and written norms, insofar as they are expressions of ecclesiastical law, can give way to contrary customs and norms which are better adapted to the pastoral needs of the day. The only requirement is the intervention of competent authority to promulgate a new discipline that is better suited to the good of the Church and its mission. Assuredly, the form of promulgation chosen by the Congregation for the Doctrine of the Faith for its Declaration does not rule out the possibility of such a future change.
The real problem, however, is to get at the root of the custom and tradition which later questionable methods tried to strengthen and embellish. To what extent does that tradition represent cultural conditioning stemming from the low opinion of women that was admittedly current in Roman Law and in the whole cultural milieu of the early Church? To what degree is the present discipline the expression of an apostolic tradition which declares the will of Christ in an area that is essential for the structure of the Church? In this connection, it must be noted that later attempts to bolster the tradition as enshrined in the written law of the Church relied largely on the highly questionable mariological argument of Innocent III. Moreover, it must be granted that the argument for the divine law status of the prohibition to ordain women is based on interpretations of Sacred Scripture that cannot be sustained in current biblical scholarship.
Given this entire context, the fundamental question must be posed: What is the value of the tradition that is being proposed and defended by the magisterium in the Declaration? And what is the effect upon that tradition of the formidable arguments brought to bear against it from so many directions? In the last analysis, of course, ecclesiastical law is an ancillary discipline. It can only reflect the status of the tradition as interpreted by the magisterium in dialogue with the community of theologians and scripture scholars, and in the context of contemporary pastoral needs. Thus the following chapter of this work turns its attention to the question: To what extent and in what directions can the tradition grow and develop as the Church fulfills its mission to be the living gospel in the contemporary cultural context with its specific pastoral requirements?
1. Can. 968.— )( I . ” Sacram ordinationem valide recipit solus vir baptizatus; . . .”
2. Sacred Congregation for the Doctrine of the Faith, Declaration on the Question of the Admission of Women to the Ministerial Priesthood with Commentary, October 15, 1976 (Washington, D.C.: USCC Publications Office, 1977). The official Latin text is found in the Acta Apostolicae Sedis LXIX (28 Februarii 1977) 98-116.
3. Declaration,sec. 4, par. 24.
4. ”Consuetudo autem est ius quoddam moribus institutum, quod pro lege suscipitur, cum deficit lex.”—c. 5, D. I.
5. Cf., Cicognani, A. G., Canon Law, 2d revised edition (Philadelphia: The Dolphin Press, 1935), 641.
6. Cf., Cicognani, op. cit., 645.
7. “Quum consuetudinis ususque longaevi non sit levis auctoritas, et plerumque discordiam pariant novitates, auctoritate vobis praesentium inhibemus, ne absque venerabilis fratris nostri episcopi vestri consilio et consensu immutetis ecclesiae vestrae constitutiones et conseutudines vestras approbatas, vel novas etiam inducatis; si quas forte fecistis . . . irritas decernentes.”— c. 9, X, I, 4. Translated by Cicognani, op. cit., 646.
8. Can. 28. — ”Consuetudo praeter leizem, quae scienter a communitate cum animo se obligandi servata sit, legem inducit, si pariter fuerit rationabilis et legitime per annos quadraginta continuos et completos praescripta.”
9. Cicognani points out that the custom must be reasonable at the time it is established, and indicates that, at a later time, it may well become useless and even harmful, so that its contrary custom might be the reasonable thing to do. As indices of the reasonableness of a custom, he cites the fact that it does not run counter to the law of the Church or ecclesiastical authority, that it is not a source of grievance or injury to law or authority by giving rise to serious and intolerable inconveniences, that it is not opposed to the worship due to God or to the public good, that it does not sever “the nerve of ecclesiastical discipline.”— Cf., Cicognani, op. cit., 650-651.
10. Declaration, sec. 4, par. 24.
12. Can. 27.— )( 1. ”Iuri diving sive naturali sive positivo nulla consuetudo potest aliquatenus derogare; sed neque iuri ecclesiastico praeiudicium affert, nisi fuerit rationabilis et legitime per annos quadraginta continuos et completos praescripta; …”
13. Commentary on the Declaration, 21.
14. Ibid., 22.
15. Raming, Ida, The Exclusion of Women from the Priesthood, trans. Norman R. Adams, (Metuchen, N.J.: Scarecrow Press, 1976).
16. Raming, op. cit., 46-47.
17. Cf. Cicognani, op. cit., 222.
18. Ibid., 243.
19. For a thorough discussion of the Pseudo-Isidorian Decretals, see Cicognani. Op. cit., 219-221, 239-248.
20. Raming, op. cit., 62-63.
21. The same type of bias occurs, for example, in Footnote 37 to Chapter One of Dr. Raming’s book. She is interpreting faculty n 28 of Pastorale munus of Pope Paul VI, scil. “Permittendi clericis minoribus, religiosis laicis, necnon piis mulieribus ut pallas, corporalia et purificatoria prima quoque ablutione extergere possint.” This, Dr. Raming states, gives ” ‘local bishops the right to permit clergy of lower rank, (male) lay persons and also devout women, to perform the first washing of palls, corporals and purificators.’ . . . It is instructive to notice in this regulation the special mention of women—in itself superfluous— along with the laity: this reflects the former legal situation, which did not allow women such practice.” This interpretation on the part of Dr. Raming is simply to mistranslate and misunderstand the expression religiosis laicis. Standard translations correctly render this as “lay religious.” (Cf., for example, Canon Law Digest, vol VI [New York: Bruce, 1969] 375.) The term simply refers to members of religious communities, male or female, that are not clerical in nature. It includes both religious brothers and sisters. Indeed, the special mention of devout women is made to the apparent exclusion of devout men!
22. Much of this material relative to collections that are not genuine and the particular influence of the Pseudo-Isidorian Decretals relies on the notes taken from the classroom lectures of Dr. Stephan Kuttner on the history of the sources of Canon Law, Catholic University of America, 1962.
23. Cf. Cicognani, op. cit., 182-191; Raming, op. cit., 15-20.
24. Cf. Cicognani, ibid., 247.
25. Ibid., 247-248
26. Raming, op. cit., 9.
27. Loc. cit.
28. Ibid., 7.
30. “Mulieres autem non solum ad sacerdotium, sed nec etiam ad diaconatum, provehi possum, . . .”—princ., C. 15, q 3.
31. Cf. Raming, op. cit., 26.
32. Commentary on the Declaration, 22.
33. Loc. cit.
35. Ibid., 23.
36. Loc. cit.
37. Raming, op. cit., 71.
38. Loc. cit.
39. Ibid., 72.
40. Loc. cit.
41. Cf. ibid.,72-73.
42. Ibid., 73.
43. Commentary on the Declaration, 24.
44. “ Nomine incapacitatis hic venit radicalis inhabilitas ad actum, ita ut ordinationem nedum illicitam, verum etiam nullam et irritam faciat…. Incapacitas in subiecta materia . . . ex lure divino positivo provenit, . . . Cum sacerdotium sit iuris divini positivi, etiam incapacitas, de qua nunc sermo est, nonnisi ex lure divino positivo profluit.” Cappello, De Sacramentis, vol II, pars III, De Sacra Ordinatione, (Romae: Marietti, 1935), n 350, 307-308.
45. Cappello cites both 1Cor 14:34 and 1Tim 2:11. Then he adds the remark: “SS. Patres ita interpretantur verba D. Pauli, ut excludant omnino mulieres a hierarchia ecclesiastica ac propterea ab ordinibus suscipiendis, et tamquam haereticam habeant sententiam, quae affirmat dignitatem et officium sacerdotale mulieribus tribui posse.” Cappello, op. cit., n 354, 311.
46. Cf. notes to the Commentary on the Declaration, n 36.
47. “When Paul insists on the subordinate place of the wife in domestic society, he is echoing the contemporary social structure that he knew, in which the woman was far more subject to the man than she is today. Such a view is found in . . . 1Cor 14:34-35 . . .” Fitzmyer, Joseph A., ”Pauline Theology,” The Jerome Biblical Commentary (Englewood Cliffs, N.J.: Prentice-Hall, 1968), 79: 165.
48. “The Church desires that Christian women should become fully aware of the greatness of their mission: today their role is of capital importance, both for the renewal and humanization of society and for the rediscovery by believers of the true face of the Church,” Declaration, sec. 6, par. 40.
“We have a long way to go before people become fully aware of the greatness of women’s mission in the Church and society, ‘both for the renewal and humanization of society and for the rediscovery by believers of the true countenance of the Church.’ Unfortunately we also still have a long way to go before all the inequalities of which women are still the victims are eliminated, not only in the field of public, professional and intellectual life, but even within the family.” Commentary on the Declaration, 36.
49. Morrisey, Francis G., The Canonical Significance of Papal and Curial Pronouncements, (Toledo: Canon Law Societv of America. 1974). 10.
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