Primacy and Central Government of the Catholic Church
The Roman Curia must be understood alongside the primacy of the Roman pontiff.Footnote 1 The specific function of the latter is to be the “perpetual and visible principle and foundation of unity both of the Bishops and of the multitude of the faithful.”Footnote 2 From the origins of Christianity, it was understood that the primatial power of the bishop of Rome should be oriented to charity and to the unity and good of all Christians.Footnote 3 The expression “servant of the servants of God,” which began to be used to describe the pope in the seventh century, is very significant in this approach.
The special ministry of the primacy includes various aspects, among which are the primacy of honor and, above all, the primacy of jurisdiction. The 1983 Code of Canon Law emphasizes the primacy of jurisdiction in canon 331: “The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth. By virtue of his office, he possesses supreme, full, immediate, and universal ordinary power in the Church, which he can always exercise freely.”Footnote 4 In addition, canon 333, 2 states: “In fulfilling the office of supreme pastor of the Church, the Roman Pontiff is always joined in communion with the other bishops and with the universal Church. He nevertheless has the right, according to the needs of the Church, to determine the manner, whether personal or collegial, of exercising this office.”Footnote 5
The term Roman curia has not always had the same meaning. When the term was first used, it meant the court of the pope. Later, it referred to the Lateran Palace.Footnote 6 Over time, it included all the people who surrounded the pope to assist him both in the government of the church and in the administration of the Papal States, and even in his private life. Today the Roman Curia is understood as all the central organs of the Holy See that assist the pope in the exercise of his supreme power for the government of the universal church. The progressive understanding of primacy,Footnote 7 the historical circumstances, and the growing needs have been some of the determining factors in the evolution of the Roman Curia.
The bishop of Rome has always had people to assist him in the exercise of his primatial power.Footnote 8 The increasingly specialized and complex organization has required that the size of the Roman Curia be adapted to the circumstances and needs of the moment. There has been a persistent tendency toward greater specialization and longer tenure of curial members to ensure consistency and effectiveness in their functions.
Primacy and episcopacy are mutually dependent and cannot exclude each other.Footnote 9 The College of Bishops is, by divine right, the holder of supreme power in the church. Just as the apostles acted in union with Peter, so they must continue to act sub Petro and cum Petro; therefore, the governing action of the successor of Peter must be placed in an episcopal-collegial context. The Second Vatican Council defined the juridical position of the papal primacy and that of the bishops at the head of their respective dioceses.Footnote 10 It also established that the collegial exercise of the functions entrusted to bishops could take place in episcopal conferences, in the Synod of Bishops, or in meetings of the College of Cardinals. These are not institutions of divine right, nor do they have a formal relationship with the College of Bishops; the structure of the Roman Curia must therefore reflect this fundamental role of episcopal collegiality.
The ecclesiastical organization of the first and second Christian millennium fluctuated between an initial decentralization and the increasing centralization of power. In contrast, the impulse for episcopal autonomy and initiative of the Second Vatican Council marked the beginning of a new, slow process toward decentralization as some tasks previously exercised by the Roman Curia became the responsibility of diocesan bishops. The reason for this change was not merely organizational: it also reflected the uniqueness, efficacy, and capillarity of their governing action.
For centuries, the Roman Curia was primarily dedicated to collaborating in the exercise of the pope’s power of government, together with the administration of the Papal States, until their loss in 1870.Footnote 11 Whereas its bureaucratic-administrative dimension prevailed for centuries, the pastoral and ministerial dimensions, however, were relegated and even forgotten. In the twentieth century, attention to human and spiritual care began to take on greater importance, as was evident during the two world wars and subsequent conflicts. In continuity with the Second Vatican Council, in Praedicate Evangelium, Pope Francis sought to mark yet another turning point.
Experience has shown that the competences of the curial bodies must be clearly defined to avoid overlapping functions, contradictory solutions, and rivalries. Hence, the importance of good coordination and balance among the various institutions of the curia. Historical circumstances have led to the predominance of some dicasteries over others. Sixtus V chose the Holy Office because of the need to counteract the influence of the Protestant Reformation; this position was maintained until 1908, when Pius X chose the secretariat of state as the heart of the Roman Curia. It is worth analyzing the value and effectiveness that the recognition of the priority of one dicastery over others can have today.
The universal character of the church was already reflected in the first councils, when the Roman pontiff invited bishops from different geographic regions to participate. Universality has manifested itself in the growing internationality of the Roman Curia. It has been fostered, especially since the Second Vatican Council, and has been strengthened by the different geographical origins of the last three popes (Poland, Germany, and Argentina).
The improvement of structures usually requires a reform of mentalities and behaviors. As the Roman Curia grew, so (inevitably) did abuses of power and unworthy behavior.Footnote 12 At various times, many of the pope’s collaborators sought power and honor. In the twelfth century, Saint Bernard of Clairvaux wrote De Consideratione,Footnote 13 in which he harshly criticized the situation, which became more serious in the fifteenth century. In response, measures aimed at moral reform were adopted at various times to ensure that those involved in the governance of the church led exemplary lives.Footnote 14 Pope Francis also considered the necessary conversion of curial persons.
The Roman Curia has been clericalized since the fourth century. With the freedom of the church, the clergy formed a privileged status. A hierarchical-monarchical church model was consolidated for centuries. The laity was rarely allowed to participate actively in the life of the church or to assume responsibilities, as laypersons were considered second-class members.Footnote 15 Whereas some highly qualified lay people took part in the Council of Trent, the laity was not admitted to the First Vatican Council, not even as listeners. The markedly hierarchical vision of the church and the clerical mentality marked the first part of the twentieth century. It was the Second Vatican Council that affirmed that the specific participation of the laity in the mission of the church consists precisely in sanctifying secular realities, the temporal order, and the world. Praedicate Evangelium has made some innovations.
The Formation and Reform of the Roman Curia
The history of the Roman Curia is one of evolution and reforms, from its origins as advisory bodies assisting the pope to its institutionalization under Sixtus V in 1588; the centralization and modernization introduced by Pius X in 1908; the post–Vatican II adjustments aimed at internationalization and decentralization; and the promulgation of Pastor Bonus in 1988, which emphasized the vicarious nature of the curia’s power and sought to harmonize hierarchical structure with broader participation, while addressing ongoing challenges of governance and organization.
The First Advisory Bodies
The first institution that arose to assist the pope was the presbyterium, composed of all the clergy of Rome.Footnote 16 From the second century onward, the Roman synods and councils, composed of the bishops of the ecclesiastical province of Rome, were convened to discuss important doctrinal questions and to judge the cases of bishops referred to the Roman pontiff.Footnote 17 Perhaps the statement that the church was, at that time, a society of equals may be surprising; in any case, priests and laity played different roles. Some lay people acted as judges,Footnote 18 intervened in the selection of the clergy, and took part in the councils. The laity was defined by their specific richness as ordinary faithful.Footnote 19
When the pope established his see in the Lateran Palace in the fourth century, a stable staff began to form.Footnote 20 In the sixth century, some priests and deacons from the main churches of Rome and other important sees began to be called cardinals. The pope sent them as legates to various parts of the Christian world. The Gregorian reform in the eleventh century led to a progressive centralization of papal power.Footnote 21 The College of Cardinals was formally created in 1150 and included bishops from outside Rome who were better prepared than those who attended the councils.Footnote 22
As the church became more formally organized, the laity lost prominence. They were forbidden to teach in order to avoid doctrinal deviations and to collaborate with the hierarchy. At that time, Gratian considered the lay status a concession to human weakness.Footnote 23
From the thirteenth century onward, the Roman pontiff dealt with all the affairs of the church with the cardinals in a permanent advisory body known as the Consistory. Later, the pontiffs created commissions of expert cardinals to study some important matters. Each of these commissions was headed by a cardinal and became permanent; thus, a structure was formed that has been maintained to the present day.
Immensa Aeterni Dei (1588): The Creation of a Unitary Organization
The consistory had become an ineffective instrument due to the complexity of the matters, the slow pace at which it functioned, the expenses it required, and the rivalries that had arisen among its members. Therefore, it ended up being a ceremonial and consultative body for certain events, such as beatifications, canonizations, and the appointment of new cardinals.
Pope Sixtus V (1521–1590) wanted to institutionalize the system of permanent commissions. The formal configuration of the Roman Curia was approved in the apostolic constitution Immensa aeterni Dei in 1588. He established the congregations as specialized assemblies composed of cardinals with authority in a particular field, and he established tribunals, offices, and secretariats.Footnote 24 Because some matters could be dealt with by several congregations, conflicts of competence arose, or contradictory solutions were given. Some congregations were overloaded with work, while others had no reason to exist. Administrative and judicial functions were often intertwined. Moreover, it was not always possible to separate temporal and spiritual duties. In the course of time, several congregations created their own tribunals, causing serious damage to the traditional tribunals, especially to the Tribunal of the Roman Rota, which almost disappeared.Footnote 25
The organization was maintained for three centuries, until the loss of the temporal power of the popes in 1870 rendered meaningless the sector of the curia that was responsible for the administration of the Papal States.
Sapienti Consilio (1908): Further Centralization and Delimitation of Competences
The First Vatican Council (1869–1870) addressed the question of papal primacy.Footnote 26 It was expected that the Roman Curia would be strengthened as a collaborating organ of the Roman pontiff. In the apostolic constitution Sapienti Consilio,Footnote 27 Pius X (1835–1914) wanted to further centralize and modernize the government of the church. The organization and responsibilities of each dicastery were defined.
The congregations were dedicated to administrative functions—except for the Holy Office—and the tribunals were dedicated exclusively to resolving judicial matters. The role of the Secretariat of State was strengthened, and the number of congregations was reduced. The Sacred Roman Rota, which had been suppressed in 1870, was reestablished, and the congregations were forbidden to resolve judicial matters.Footnote 28 The reform of Pius X was completed in canons 242–64 of the 1917 Code of Canon Law. The church was understood as a perfect hierarchical society in which the hierarchy had a relevant role. Ordained ministers were responsible for all the functions of leadership and government.
Regimini Ecclesiae Universae (1967): The Role of the Primacy, the Bishops, and Internationalization
Before the celebration of the Second Vatican Council (1962–1965), bishops from all over the world, universities, catholic institutes, and religious superior generals were asked to give their opinion on what topics should be discussed at the ecumenical assembly. Among the responses received, many referred to the Roman Curia or its organizations. Some themes suggested were the universality and internationalization of the Roman Curia, the need for a coordinating body, excessive centralization, and the delay in dealing with matters.Footnote 29
The conciliar decree Christus Dominus (1965) expressly referred to the organization of the Roman Curia.Footnote 30 In response to the conciliar requests, Paul VI promulgated the apostolic constitution Regimini Ecclesiae Universae (1967). The text affirmed that the Roman Curia remained crucial; despite significant changes in its structure, powers, and procedures, it had not changed its original function: to cooperate with the pope in his universal mission.
An important step in the application of the principle of separation of powers was taken with the introduction of the second section in the Tribunal of the Apostolic Signatura. Previously, the decisions of the congregations could not be appealed unless there was a pontifical mandate. This was because such acts were understood to be issued in the name of the pope, the supreme authority, and were therefore final.Footnote 31 With the possibility of judicial review of acts of administrative power, it seemed that the scope of the vicarious power of the Roman Curia’s bodies had been clarified.Footnote 32
The greater internationalization of the curia, the participation of residential bishops as members of congregations, and the restoration or granting to bishops of many faculties reserved to the Holy See were encouraged. After the Second Vatican Council, a broad process of decentralization began in the church. Many competencies that had previously been exercised by the Roman Curia were recognized as competencies of the diocesan bishops. This process lasted for almost thirty years and was consolidated with the promulgation of the two codes, the Latin and the Eastern.Footnote 33
Regimini Ecclesiae Universae, in article 5, allowed for the possibility that some laypeople were consultors when the subject of a dicastery made this advisable. It was required that they be of marked virtue, learning and experience, with special reference to university professors. Article 3 established that the officials were to be chosen internationally from among those who were truly competent and had pastoral experience. Thus, while the vast majority were priests, lay officials were not excluded.
In addition, it was established for the first time that the appointment of prefects, officials, and consultors would be for a period of five years to counteract the tradition of life tenure.
All the congregations had juridical equality instead of the previous legislation that assigned a privileged position to the congregations of the Holy Office, the consistorial and of the Eastern churches. Their prefect was the pope. The decision to recognize the equality of the congregations was important to underline the internal responsibility of their members in their relationship with the other congregations and for the better defense of the individuals affected by their decisions because they could no longer take refuge in the principle prima sedes a nemine iudicatur (the First See is judged by no one).
Consideration was also given to the role that the pontificate can play in ecumenical dialogue to overcome or attenuate existing divisions among the Christian churches.
Regimini Ecclesiae Universae did not break with tradition, nor did it bring about a radical transformation of the Roman Curia. Rather, it rebalanced episcopal collegiality and the role of the papacy. It was promulgated shortly after the end of the council; moreover, the revision of the 1917 Code of Canon Law was underway. It was therefore difficult to carry out the profound reform that was needed. In fact, it was hoped that the revision would more clearly delimit the competencies of the central government and diocesan authorities. It was necessary to wait for a few more years.
Pastor Bonus (1988): The Vicarious Nature of the Roman Curia
Because the Code of Canon Law 1983 defined the Roman Curia very briefly in two canons (canons 360 and 361), its general regulation was referred to a specific law. In 1988, John Paul II promulgated the apostolic constitution Pastor Bonus, which adapted the structures and working methods of the curia to the new universal dimension of the church.Footnote 34 It emphasized both its hierarchical and clerical components, as well as the pastoral character of governmental action.Footnote 35
Pastor Bonus affirmed for the first time that the power of the Roman Curia was vicarious to the pope. This means that there is stable participation in direct collaboration with the capital office. The vicarious organ is distinct from the principal organ and acts under its responsibility, considering its relationship to dependence. Its acts should not be formally attributed to the Roman pontiff unless there is “specific approval”; therefore, they are subject to possible control.Footnote 36
The introduction of Pastor Bonus recognized that the participation of all types of faithful could make assistance to the pope more effective:
The Roman Curia calls into its service diocesan priests from all over the world, who by their sharing in the ministerial priesthood are closely united with the bishops, male religious, most of whom are priests, and female religious, all of whom in their various ways lead their lives according to the evangelical counsels, furthering the good of the Church, and bearing special witness for Christ before the world, and lay men and women who by virtue of baptism and confirmation are fulfilling their own apostolic role. By this coalition of many forces, all ranks within the Church join in the ministry of the Supreme Pontiff and more effectively help him by carrying out the pastoral work of the Roman Curia.Footnote 37
In any case, the dicasteries were to be headed by a cardinal or an archbishop, who were the proper members of the congregations.Footnote 38 Nevertheless, it was admitted that some clerics and other Christian faithful could be attached to the assembly (articles 3 and 7). In addition, article 7 indicates that matters requiring the exercise of governmental power should be reserved for those with sacred orders. As a solution to harmonize these articles, the vote on certain questions was reserved for the cardinals and bishops who were members of the dicastery. The Plenary Assembly, which is the most important organ of the collegial coetus, was deprived of this competence,Footnote 39 thus limiting the principle of collegiality in voting on questions of great importance.
A few years earlier, during the drafting of the 1983 Code of Canon Law, some problems of interpretation of the conciliar texts arose regarding whether the laity could participate or exercise the power of governance or jurisdiction. The church has consistently affirmed the distinction between the power of order and the power of jurisdiction Footnote 40 throughout history. While the power of order is received through the sacrament of Holy Orders and exercised in the sacraments, the power of jurisdiction is transmitted and received through what is called a canonical mission. The missio canonica, which is the act of granting the power of jurisdiction, determines the scope of this power. The power of order cannot be lost; in contrast, the power of jurisdiction ends when one ceases to hold an office or when the canonical mission is revoked. However, the Second Vatican Council preferred to speak of sacra potestas in a global sense. It did not insist on the classic distinction, but neither did it completely overcome it.Footnote 41 A doctrinal sector understood that the separation and distinction between the powers of order and jurisdiction was something medieval that had to be overcome. Therefore, according to this interpretation, all ecclesiastical power derived from Holy Orders and could not be separated from them.Footnote 42
Consequently, if it was understood that ecclesiastical power derived from the sacrament of Holy Orders, the participation of the laity in the power of jurisdiction was not possible, or at least had to be very limited. It is worth noting that the history of canon law provides much data that contradicts this view.Footnote 43
In this doctrinal debate, the 1983 Code of Canon Law took an eclectic position. Canon 129 proclaims that “those who have received sacred orders are qualified, according to the norm of the prescriptions of law, for the power of governance that exists in the Church by divine institution and is also called the power of jurisdiction.” On the other hand, canon 274, 1 proclaims that only clerics can receive offices, for the exercise of which the power of orders or the power of ecclesiastical governance is required. Finally, canon 1421, 2 states that the episcopal conference may authorize the appointment of some lay judges who, in case of necessity, may be selected to form a college. Harmonizing these three canons was not an easy task. Therefore, different interpretations were maintained in the years following the promulgation of the code. In other words, the inclusion of the laity in the dicasteries was still a very limited possibility,Footnote 44 even though the council had affirmed its co-responsibility in the church’s mission.
In short, in the system of the Roman Curia, the canonical status of those who worked in it was still significant. That requirement perhaps revealed a presumption of suitability, that is, that the clerics were better prepared than the laity.Footnote 45
There are justifications for such an approach. A cleric sent from his place of origin as an official may not have more scientific knowledge than the layperson, but he has gone through a long process of personal identification with the structure and goals of the ecclesiastical organization, which the layperson may lack. Moreover, he has made stable life choices precisely to serve that organization, choices that are not required of the non-ordained (although the lay faithful might take this path voluntarily). The ecclesiastical organization must provide the cleric with all the social benefits to which they are entitled; it must also provide for the ongoing formation of the clergy and protect them from secularism, whose influence can reach even the administration of the Roman Curia.Footnote 46
In the last years of Benedict XVI’s pontificate,Footnote 47 the need to review the functioning and coordination of some dicasteries was undisputed. There was an urgent need for economic review and financial transparency, as well as organizational simplification and optimization of resources.
Praedicate Evangelium (2022)Footnote 48
From the beginning of his pontificate, Pope Francis carried out several reforms in the Roman Curia, especially in economic and financial organizations.Footnote 49 Among these reforms, the apostolic constitution Praedicate Evangelium Footnote 50 was the result of a participatory process that lasted nine years.
The preamble of the Praedicate Evangelium recalls that the mission of the church is to proclaim the Gospel; therefore, the reform of the Roman Curia must be placed in the same context. Following the preamble are twelve guiding principles that could be summarized as follows: support for the pope and the bishops, promotion of co-responsibility, support for the particular churches and episcopal conferences, the vicarious nature of the Roman Curia, spirituality and integrity, professionalism, internal collaboration, and a reduction in the number of dicasteries. Importantly, the preamble emphasizes three other ideas: missionary service, synodality, and the need for authentic interior reform.
Missionary Service
The apostolic exhortation Evangelii Gaudium, which is the prophetic manifesto of Francis’s pontificate, states in paragraph 33 that ministry in a missionary key seeks to abandon the complacent attitude of “We have always done it this way.” He invited everyone to be bold and creative in this task of rethinking the objectives, structures, style, and methods in their respective community.Footnote 51
“This new Apostolic Constitution seeks to attune its present-day activity more effectively to the path of evangelization that the Church, especially in our time, has taken” (preamble, number 3). In contrast to previous reforms, which primarily emphasized the service function, Pope Francis emphasizes the missionary nature of the church; for this reason, the curia must be exemplary and welcoming (article 5). This will require overcoming any temptation for bureaucratization.Footnote 52
It is even said that the organs of justice must have as their purpose “the Church’s own mission: to proclaim and inaugurate the Kingdom of God and to work, through the order of justice applied with canonical equity, for the salvation of souls, which is always the supreme law in the Church” (article 189, section 1).
To ensure the good disposition of those who work in the Roman Curia, it is necessary that everyone, from the leaders to the officials, fulfill a series of conditions. Praedicate Evangelium mentions spiritual life, pastoral experience, sobriety, love for the poor, a spirit of communion and service, competence in the matters entrusted to them, and the ability to discern the signs of the times (preamble, 10). Careful attention must also be given to the process of selecting members, superiors, and officials (principles, number 7; article 14, section 4) to ensure that these conditions are met.
The orientation toward better service to the faithful should be manifested in matters such as the commitment to promptly acknowledge that files have been received, and the diligent examination of the matters that have been referred to it. It must be ensured that files affecting individuals and institutions are always processed in accordance with the law (article 23).
Synodality
Another new characteristic emphasized in Praedicate Evangelium is the “synodal” nature of the church (preamble, number 4). However, no definition of synodality is given. Pope Francis explained on another occasion that synodality is about walking together (laity, pastors, bishops of Rome). He admitted that it is an easy concept to express in words but difficult to put into practice. I dare to add that it is even more difficult to put such a concept into juridical terms. Thus, the normative specification is relatively generic and indeterminate.Footnote 53
Synodality encourages that decisions, especially the most important ones, be made in dialogue with the episcopate concerned (preamble number 12; article 42). Praedicate Evangelium insists that the curia is an entity at the service of the successor of Peter and at the service of the episcopate, in constant dialogue with the needs of the churches throughout the world.Footnote 54 The apostolic constitution also requires the dicasteries to support and collaborate with the episcopal bodies while respecting the proper authority of the bishops.Footnote 55 It is expressly stated that the Roman Curia “does not interpose itself between the Roman Pontiff and the Bishops, but places itself at the service of both, in a manner appropriate to the nature of each” (preamble, number 8; principles 1, 3, 4).
But how to coordinate the principles of collegiality, synodality and subsidiarity that inspired the reform? The universal collegiality of the episcopate is a fundamental feature of the church, of divine right. It is due to the specific relationship of the successor of Saint Peter with the successor of the college of the apostles. Therefore, it cannot be replaced or deactivated by synodality, however attractive it may be. Likewise, it is striking that article 33 of Praedicate Evangelium refers to the General Secretariat of the Synod, even though it is not an organ of the Roman Curia. Moreover, the expression “of the bishops” disappears. In fact, a group of non-bishops participated in the sixteenth Ordinary General Assembly of the Synod of Bishops in October 2023.
In a broad sense, I include within synodality the collegial, inclusive, and collaborative style that the administrative activity should have. Several articles promote the internationality of the members of the Roman Curia. Article 14, 3 states the desirability of having officials from different parts of the world so that the Roman Curia reflects the universality of the church. In addition, article 201 makes a similar recommendation in relation to the judges of the Roman Rota. This promotion of internationality, in my opinion, not only reflects the universality of the Catholic Church, but is also one more way of being able to count on the voice and participation of many within the framework of the great diversity among the faithful.
Praedicate Evangelium addresses another noteworthy aspect of synodality within the curia: collaboration or convergence within and among dicasteries (article 9). In fact, coordination among the dicastery has been pointed out as one of the weak points of the Roman Curia. Mutual listening should be encouraged (preamble, number 4) to develop dialogue and discussion that will help strengthen internal unity. For this reason, interdicasterial meetings and intradicasterial relations are recommended (articles 25, 28, 29). It is not specified in which situations such meetings should be convened or how often they should be held. Therefore, the decision will depend solely on the will of those in charge of the curial institutions.
In this aspect, too, no provision has been made for monitoring and control so that there can be constant improvement in the work of the curia.
Restructuring and Decentralization
“It has been necessary to reduce the number of the Dicasteries, unifying those whose purpose was very similar or complementary, and streamlining their functions with the aim of avoiding an overlap of competencies and improving the effectiveness of their work” (principles, number 11). In addition, principle 2 encourages the carrying out of “sound decentralization,” leaving to the competence of bishops the authority to resolve those issues with which they are familiar and that do not affect the church’s unity of doctrine, discipline, and communion (principles, number 2). However, despite these calls, the governance has undergone minimal alterations and the volume of tasks that correspond to the Holy See has not decreased substantially.Footnote 56 The number of ministries, now uniformly called dicasteries, was reduced only from twenty-one to sixteen.
The distinction between the congregations and the pontifical councils, which Pastor Bonus articulated around the jurisdictional authority of the congregations and the primarily pastoral character of the pontifical councils, disappears in Praedicate Evangelium. Footnote 57 The new constitution creates the term curial institution, which includes the Secretariat of State, the organisms, and the dicasteries. In addition, the Roman Curia is helped by the following offices: Prefecture of the Pontifical Household, the Office for Liturgical Celebrations of the Supreme Pontiff, and the Camerlengo of the Holy Roman Church. The Secretariat of State continues to have a unique role (article 12). There are other institutes that do not belong to the Roman Curia.Footnote 58
The new terminology should help to focus the activity of the organizational units on the functions assigned to them and to cushion some old rivalries. The service to the faithful should be what counts, not the dignity of the person who presides, the endowment of human and material resources, or the preponderance of functions. In fact, the juridical equality of the different entities is reaffirmed, as it was in Pastor Bonus (article 12, number1).
This potential for focus can be seen in the main novelties regarding the dicasteries and the volume of functions assigned to them.
A new dicastery, the Service of Charity, also called the Office of the Papal Almoner, assists the needy on behalf of the pope. Although it has no real impact on the government, it shows the essential and indispensable character of this task.
The priority of the Dicastery for Evangelization is established in the enumeration of the dicasteries; it is symbolically placed before the Dicastery for the Doctrine of the Faith to emphasize the importance of the missionary spirit and is presided over personally by the pope (article 54). When Benedict XV created the Congregation for the Oriental [Eastern] Churches in 1917, he stipulated that he would be the prefect. He wanted the solicitude of the Apostolic See for Eastern Catholics to be made clear and to show that the pope’s love was equal for Latin and Eastern Catholics.Footnote 59 It is not a novelty, but the pope’s presidency of the Dicastery for Evangelization has a great new significance because it explains the reason for the law of the Roman Curia: the evangelization of a church “which ‘goes forth.’”Footnote 60
It is likely that the decision will have more symbolic than real weight so that it will not excessively condition the ordinary work of the pontiff. In any case, it would be inadvisable for the pope to intervene in the ordinary activity of the curia. His administrative activity is not subject to control or supervision, as is the case with all acts of the curia that have been specifically approved by him. Regular formal or informal intervention by the Roman pontiff in the ordinary work of the Dicastery for Evangelization or elsewhere would limit the possibilities of defense for the faithful or juridical people who might consider themselves harmed by a decision.
In the reforms, some new functions have been recognized for the new Dicastery for Legislative Texts that it was already carrying out in practice. It is responsible for clarifications in the form of declarations and explanatory notes and for the resolution of dubia iuris that do not require an authentic interpretation (article 177). It seems important to me to emphasize that curial institutions do not have legislative power. Therefore, a declaration or note of the dicastery in case of doubt of law will not have binding value. The dicastery may also propose to the pope ways to fill legal gaps or to update existing legislation (article 178). It is charged with the promotion of the study of ecclesiastical law as well as the supervision of its correct application, denouncing the possible presence of illegitimate practices (article 182, numbers 1, 2). That is something more typical of universities or of a pontifical academy. This novelty contrasts with the scant attention that has been devoted to canon law in the Roman Curia in recent times.Footnote 61
The inclusion of the Pontifical Commission for the Protection of Minors within the Dicastery for the Doctrine of the Faith shows that particular attention is to be given to this issue (article 78, number 1). Its role is to develop appropriate strategies and procedures for an adequate response to cases of sexual abuse “by clergy and members of Institutes of Consecrated Life and Societies of Apostolic Life.” The commission has a delegated president who autonomously carries out tasks distinct from those of the dicastery; it also has a secretary and various officials (article 78, number 2). It must have among its members clerics, members of institutes of consecrated life and societies of apostolic life, and lay people of various nationalities. Given the characteristics of the commission, it seems appropriate that it should have a significant participation of lay people.
Another novelty is the provision of article 105, number 2, which stipulates that it is up to the Dicastery for Bishops, in agreement with the episcopal conferences, to determine the criteria for the election of candidates to the episcopate, according to the various cultural requirements. The requirement of the candidate’s solid faith, required by the Code of Canon Law (canon 378, 1), is omitted. In my opinion, no one should be promoted to the episcopate who does not manifest a solid faith; this is more important than any local cultural requirement. The new wording of the cited article indicates that the dicastery receives information about candidates through the pontifical legates, but also immediately from the presidency of the respective episcopal conference, from the metropolitan, and from members of the People of God of the dioceses concerned. This new formulation requires some reform of the norm foreseen in the Code of Canon Law for the appointment of bishops (canon 377, 3).Footnote 62
The list of functions of the Dicastery for the Laity is very broad and perhaps unmanageable. It is responsible for evaluating the apostolate of the lay faithful, the pastoral care of the young, the elderly, the family, and its mission, as well as the promotion and protection of life (article 128). Other challenges listed are particularly complex, such as that of promoting protagonist role models for women in the Church (article 131); there are objectives that, because of their doctrinal relevance, fall within the competence of various dicasteries due to their theological and juridical repercussions. For example, article 133 refers to the evaluation and approval of proposals from episcopal conferences to institute new ecclesiastical ministries and offices that can be entrusted to the laity according to the needs of the particular churches. Finally, other competencies are excessively technical and seem to exceed what corresponds to the nature of a dicastery. For instance, article 139 states that it shall study “the principal problems of biomedicine and law concerning human life.” In my opinion, a realistic work plan and adequate procedures should be envisaged.
Regarding the economic bodies, the Praedicate Evangelium has created new entities to complete the long process of reform that began during the pontificate of Benedict XVI. In articles 205–27, the composition, and competencies of these six bodies are delimited: the Council for Economic Affairs; the Secretariat for Economic Affairs; the Administration of the Patrimony of the Apostolic See; the Office of the Auditor General; the Commission for Confidential Matters; and the Committee for Investments.Footnote 63
The institutions of justice—the Apostolic Penitentiary, the Supreme Tribunal of the Apostolic Signatura, and the Tribunal of the Roman Rota—have not undergone relevant changes.
Vicarious Power of Jurisdiction
The preamble of the Praedicate Evangelium emphasizes that the pope, bishops, and other ordained ministers are not the only evangelizers in the church: lay persons (men and women alike) can participate in the functions of governance and responsibility. Any member of the faithful can preside over a dicastery or curial body, given its particular competence, governing power, and function because every institution of the Roman Curia acts by virtue of the power entrusted to it by the pope (preamble, number 10).
The Praedicate Evangelium clarifies that a prefect or secretary of a dicastery who is a bishop does not have authority as such but exercises the authority conferred on him by the bishop of Rome. In the sphere of the Roman Curia, the power is the same whether it is received by a bishop, a priest, a religious, a layperson.Footnote 64 This is a logical consequence of the equality conferred by baptism on all the faithful in dignity and action. Therefore, the requirement of Pastor Bonus that matters requiring the power of government to be reserved to those who have been ordained, is abrogated.Footnote 65 The previous norms affirmed vicarious power but did not permit the laity to exercise the power of jurisdiction.Footnote 66
Praedicate Evangelium therefore gives a broad interpretation of canon 129, 2 of the Code of Canon Law. Those who assist the pope and the diocesan bishops in the area of universal government participate in the power of the pope in a stable manner according to law. The restrictive interpretation of canon 129, 1 was motivated by reasons of expediency, not because there was an incapacity. These were historical, not legal, considerations.Footnote 67
In any case, the Praedicate Evangelium still maintains some limits to the participation of the laity, as I discuss below.
Suitability: Spiritual Qualities and Professionalism
Benedict XVI, following the teachings of Saint Bonaventure, spoke of the reform of the church as an ablatio, the elimination of accidental and extraneous elements that obscure its nobilis forma or essence. He therefore stressed that the true reform did not consist in erecting new facades, but in a greater sanctity of life and in a lessening of bureaucracy and politics, in the pejorative sense of the expression.Footnote 68
Praedicate Evangelium specifies the spiritual characteristics and virtues that should distinguish everyone, from leaders to officials. The pastoral and missionary nature of work in the curia implies that everyone should strive to lead an exemplary life with dedication, piety, welcome to all and a spirit of service (article 5). Members of Institutes of Consecrated Life and Societies of Apostolic Life, as well as lay people, are encouraged to carry out some form of pastoral collaboration to the extent of their abilities and possibilities (article 6).
The pastoral dimension of curial work and the good of those concerned implies putting in place means to avoid “careerism.”Footnote 69 The aim is to prevent priests and consecrated people from becoming definitively detached from their dioceses or institutions of origin. For this reason, appointments are made for five years, although they are renewable (article 17, number 1). The temporariness of the officials at lower levels is greater since they can only continue for another five-year period. This limitation does not apply to higher levels and only affects clerics or members of institutes of consecrated life or societies of apostolic life. It does not, therefore, affect the lay faithful (article 17, number 4). Temporariness can be an obstacle to the promotion of professional growth and ongoing formation recommended by principle 7 and article 7. Even if there is the possibility of a longer term of office, instability can lead to a decrease in interest in formation and commitment. In addition, institutions will have to train new staff on an ongoing basis, which will make it difficult to create stable teams.
On the other hand, for a person to be considered suitable, a previous professional qualification and an adequate number of years of experience in pastoral activities are required. To carry out an effective ministry, Praedicate Evangelium insists on the need for greater professional formation of those who work in the Roman Curia (iura novit curia).Footnote 70 As for the officials, it demands that the selection process be carried out according to objective criteria and transparency (article 14, numbers 3, 4). However, the text does not specify how it is to be ensured that they are chosen based on equality, merit, and ability.
The Laity
Pope Francis affirmed in the apostolic exhortation Evangelii Gaudium that it was necessary to involve the laity in general in the mission of the church, even in positions of responsibility.Footnote 71 He also stressed that there should be a greater presence of women in the church, including in the places where important decisions are made.Footnote 72
In 2015, a significant step was taken when the motu proprio Mitis Iudex reformed canon 1673, 3. The change allowed for two lay people to sit on ecclesiastical tribunals that are made up of three judges; however, the president was to remain a cleric. As Carmen Peña Garcia points out, this is a realistic measure that respects the responsibility of the laity in the life and work of the church. Moreover, it is consistent with the growing presence of lay canonists in universities and in legal practice.Footnote 73
Praedicate Evangelium affirms the desirability of all types of faithful—priests, consecrated persons, deacons, and laity—serving in the curia (preamble, number 10).Footnote 74 The reasons for this change are the catholicity of the church and the co-responsibility of the lay faithful in the mission of the People of God. It is not a concession of extraordinary or merely auxiliary functions.Footnote 75 On the contrary, their presence, and participation are essential because they cooperate for the good of the whole church; their specific preparation can enhance the professionalism of the Roman Curia (preamble, number 10).
Furthermore, principle 5 declares that every curial institution fulfills its mission by virtue of the power it has received from the Roman pontiff, in whose name it acts with vicarious power. For this reason, any laypersonFootnote 76 can preside over a dicastery or an organism, depending on the competence, the power of government and the function of those organisms.Footnote 77
It is important to keep in mind that lay in Praedicate Evangelium means the faithful who has not received the sacrament of Holy Orders in any of its degrees; therefore, it also includes members of institutes of consecrated life who have not been ordained.Footnote 78 It is certainly an incomplete and rather negative concept of the lay faithful, but this is the meaning of the word in the document.Footnote 79 In any case, the specific lifestyle of the laity is to live in the midst of the world exercising their apostolate through their work, family life, transformation, and participation in social structures. The laity, according to their state in life, are called by God to exercise their apostolate in the world as leaven, with the ardor of the spirit of Christ; therefore, it will be usual for them to exercise their co-responsibility precisely by living their own lay vocation.Footnote 80
The prefect must be a cardinal or archbishop only in two cases: the Council for Economic Affairs (article 206, number 2) and the Tribunal of the Apostolic Signatura (article 195, number 1). In all other cases, the pope may appoint any member of the faithful; there may be reasons of convenience that make the appointment of a layperson advisable; this would be the case, for example, in the Dicastery for the Laity, Family, and Life or the Dicastery for Communication; on the other hand, it would not be a good choice in the Dicastery for Bishops, that of the clergy or that of the Eastern churches. Access to the laity does not mean denying the appropriateness of reserving certain functions to clerics because of the subject or pastoral competencies.
Consequently, it is surprising that Praedicate Evangelium continues to speak of the cardinals as “primary members.” Article 15 says: “The members of curial institutions are appointed from among the cardinals living in Rome or outside the city, to whom are added some Bishops, especially diocesan or eparchial ones, insofar as they have expertise in the particular matters involved. Depending on the nature of the dicastery, priests, deacons, those in Institutes of Consecrated Life and Societies of Apostolic Life and lay faithful may also be appointed members.” In other words, the Roman Curia continues to be understood as a curia of cardinals with a decisive position in the dicasteries.
It is likely that the new General Regulations of the Roman Curia will establish some specific requirements to guarantee the suitability of the laity for the missionFootnote 81 that goes beyond mere professional service. Suitability for service in the Roman Curia must be checked not only at the beginning of service, but also throughout it. In the case of laypersons, particular care must be taken to ensure that they have sufficient ecclesial formation for the service they are to render.Footnote 82
Has the Praedicate Evangelium brought about a real change by including lay people in positions of responsibility in the Roman Curia?Footnote 83
For the moment, it seems not. The presidency of dicasteries or other bodies is assigned mainly to cardinals. Only the prefect of the Dicastery for Communication and the prefect of the Secretariat for the Economy (article 212) are lay people. The first has a highly technical profile. The latter functions as the Papal Secretariat, which controls and supervises the administrative, economic, and financial affairs of the curial institutions, offices and other institutions linked to the Holy See; it also controls the Saint Peter’s Pence and other papal funds.
The secretary of the Dicastery for the Laity, the secretary of the Dicastery for Integral Human Development, and the secretary of the Administration of the Patrimony of the Apostolic See are laypersons. And there may also be lay officials (article 14) and consultors appointed for their knowledge, proven ability, and prudence (articles 16; 17, number 1; 25, number 2; 27).
But there are certain ways of working that in practice prevent the laity (and other members of the curia) from playing an active role. The regular meetings of the curial institutions are the Congress, the Ordinary, and the Plenary sessions (preamble, number 9).Footnote 84 The plenary sessions are infrequent, and they do not influence the daily work of the government. There is a danger, both in the Congress and in the usual handling of ordinary matters, that the leader, who is usually a cardinal, becomes too influential, with a practically exclusive role in decision-making, to the point of neglecting the principles of consultation and collegiality.Footnote 85 In practice, therefore, the participation of the laity in the collegial decisions of the dicasteries of the Roman Curia can still depend on many factors.
There are certain curial institutions in which a greater presence of the laity would be desirable. For example, the broadening of the competencies of the Dicastery for Legislative Texts could make it advisable for a more significant number of lay jurists to play a prominent role, even as presidents.
Praedicate Evangelium does not pronounce on the composition of the Dicastery for the Laity, the Family, and Life. Precisely in this dicastery it would be appropriate to promote a significant participation of lay faithful who are specialists in certain fields of knowledge (articles 128–41). At present, in addition to the secretary and two undersecretaries, several members and consultors are lay people.
It also seems appropriate that the Dicastery for Integral Human Development should include lay people in its structure. Praedicate Evangelium does not specify its potential members. At present, the prefect is a cardinal, a nun holds the position of secretary, and there are two undersecretaries who are priests.Footnote 86 This dicastery is dedicated to especially secular issues such as sustainability, migration, respect for human rights, promotion of peace, humanitarian aid and oversight of Caritas Internationalis, among many other areas. Therefore, the contribution of the laity could be especially enriching.
As for the organisms of justice, the Roman Rota will be composed of a certain number of judges (article 201), without further specification of their canonical status. Its law of 1994 refers to the judges as “prelate” auditors but provides for the possibility that the promoter of justice, the defender of the bond and the moderator of the offices of the chancery may not be presbyters by way of exception.Footnote 87
The Tribunal of the Apostolic Signatura continues to have a fully clerical composition (article 195 and article 1 of the Proper Law of the Supreme Tribunal of the Apostolic Signatura); it is composed of cardinals, bishops and priests, and the prefect must be a cardinal (article 195,number 1). Therefore, it excludes that deacons can be judges.Footnote 88
The reform of the Roman Curia might have been a good time to allow lay judges in these tribunals. Canon 1673, 3 of the Code of Canon Law allows for up to two lay judges in a college of judges in the matrimonial process; for other processes only one is admitted (canon 1421, 2).
And finally, what is the participation of the laity in the economic bodies? The Council of Economy is composed of eight cardinals or bishops and seven lay people (article 206). It must be chaired by a cardinal coordinator. As can be seen, the composition is not equal, and no explanation has been given in this regard. In principle, this appears to be inconsistent with the principles of the Praedicate Evangelium.
Article 117 of Praedicate Evangelium
Commenting on one article of Praedicate Evangelium might seem unnecessary or perhaps disproportionate within the scope of this article. However, the media impact of the news and the subsequent consequences of the change introduced justify these lines.
Article 117 of the Praedicate Evangelium changed the interlocutor of the Personal Prelatures in the Holy See, moving it from the Dicastery for Bishops to the Dicastery for the Clergy. In fact, the only existing personal prelature has 90,000 lay members and 2,000 priests; given this reality, the transfer of competencies to the Dicastery for the Clergy was difficult to understand. The article changed the provisions of three apostolic constitutions of two different popes, which included personal prelatures among the responsibilities of the Congregation (now the Dicastery) of Bishops: Regimini Ecclesiae Universae of Paul VI (1967) and two apostolic constitutions of John Paul II: Ut sit (1982), and Pastor Bonus (1988) on the Roman Curia. Moreover, the conciliar decree Presbyterorum ordinis, number 10 instituted the personal prelatures as an entity distinct from the territorial prelature nullius dioecesis, thus not as a clerical entity. Finally, it also contradicted the letter Communionis notio (1992). The latter stated that complementary hierarchical communities, such as the personal prelature, did not harm the unity of the particular church but, on the contrary, contributed to its interior unity in the diversity proper to communion.Footnote 89
The reorganization of the competencies of the dicasteries was the first step in a series of normative dispositions of greater significance. In July 2022, the motu proprio Ad charisma tuendum Footnote 90 declared that it intended to apply the broad reforms of the Praedicate Evangelium to the institution of personal prelatures. It modified some points of the apostolic constitution Ut Sit and called for an adaptation of the statutes to Opus Dei, the only existing prelature. A year later, on August 8, 2023, a second motu proprio modified canons 295–96 of the Code of Canon Law regarding personal prelatures.Footnote 91 According to the new wording of canon 295, 1, these were assimilated to public clerical associations of pontifical right with the faculty to incardinate clerics.Footnote 92
As Geraldina Boni points out, the assimilation of two such heterogeneous entities is questionable. In her opinion, the motu proprio adopted a minority doctrinal position in the debate on the hierarchical nature of the prelatures.Footnote 93
The elasticity of canon law makes it possible to find adequate solutions that do not compress life into an inappropriate structure. This is what the Praedicate Evangelium proposes when speaking of synodality.
Final Remarks: Vision, Mission, and Purpose of the New Roman Curia
Throughout the profound historical changes, the definition or vision of the Roman Curia, has remained unchanged: it is an organ of assistance to the Roman pontiff in the universal government of the Catholic Church. On the other hand, there has been an evolution in the understanding of its mission and purpose. Praedicate Evangelium proposes a model of a Roman Curia aimed at evangelization, fostering a deeper communion, in which all share responsibility. To this end, those who work in the curial bodies must work with the same purpose: to serve all with professionalism, apostolic sensitivity, and institutional loyalty.
The promotion of collegiality, the internationalization, the dimensioning, and professionalization of the curia are objectives that were present in other previous reforms, with a greater or lesser degree of intensity.
Decentralization and synodality, however, appear in a novel way in the reform. The problem is that these concepts are difficult to translate into juridical-canonical language. It is telling that the terms synodality and collegiality do not appear in the canons of the Code of Canon Law, while synods and colleges are extensively regulated. For this reason, there is a risk that such ambitious objectives will remain merely declaratory and will not be concretized or put into practice; it is also necessary to avoid making decisions without first having carefully reflected on the ecclesiological and canonical implications. For example, Pastor Bonus mentioned episcopal conferences only five times. Praedicate Evangelium names them sixty-three times; however, it is not clear in practice how they will carry out their new collaboration. It should not be ruled out that this strengthening of the episcopal conferences could lead to greater bureaucratization, making it more difficult for the bishops to attend to their respective dioceses.
The great novelty of Praedicate Evangelium concerning the vicarious power of the organisms of the curia demands further reflection. It cannot be overlooked that this new approach will have repercussions on the juridical order of the church as a whole; it will probably lead to future modifications of the canons of the 1983 Codex Iuris Canonici regarding the governance of the particular churches. If, indeed, from now on, laypeople can assume the office of prefect or be part of the group of members of a dicastery, the possibility of their holding other offices such as that of judicial vicar in the dioceses (canon 1420, 4) will have to be reconsidered. The common priesthood of the faithful and the person as the center of the activity of government is valued.
Presently, the number of laypersons in principal positions in the dicasteries is still scarce; nevertheless, there are more laypeople occupying other types of tasks in the Roman Curia.Footnote 94 Moreover, noteworthy is the exponential increase in lay women appointed by Pope Francis to various positions in the Vatican:Footnote 95 the director of the Vatican Museums; the secretary of the Pontifical Commission for Latin America; the director of the Theological and Pastoral Directorate of the Dicastery for Communication; and the deputy director of the Holy See Press Office.Footnote 96 It is necessary to go deeper into the possible contribution of women in the Roman Curia to overcome the errors of the past, to humanize and supernaturalize the structures, and to foster personal relationships. Praedicate Evangelium could have established some kind of temporary measure to facilitate the incorporation of more women into positions of responsibility.
In reality, positive discrimination is foreseen in some articles of the Praedicate Evangelium. In article 14, number 3, it is requested that the officers come, as far as possible, from different parts of the country. Article 206 states that the Council for the Economy should be composed of eight cardinals (or bishops) and seven laypeople. Why could measures be implemented to achieve a proportional participation of women in curial bodies?
Could the exclusion of the laity from the Supreme Tribunal of the Apostolic Signatura (article 195, number 1) be qualified as a discriminatory practice? If there is no justified juridical or theological reason for such a prohibition, it would be an unjustified exclusion. From my standpoint, it is not only a matter of giving greater presence to the laity in the Roman Curia but, above all, of eliminating clericalism and widespread curialism.Footnote 97
Finally, I note the Council of Cardinals created by Pope Francis to collaborate in the project of reforming the Roman Curia and in its governance.Footnote 98 It is surprising that this council is not mentioned or regulated in the Praedicate Evangelium despite the role it has played lately. Although it is logical for the pope to address himself to people he trusts, it is debatable whether the opinion of this council prevails over that of other councilors of the College of Bishops or the College of Cardinals. A system of government of councilors chosen by the ruler can become a closed and exclusive group around the authority. On the other hand, the principle of episcopal collegiality requires that information flow between the pope and the episcopate, and that the episcopate be able to participate in matters that affect it. Collegiality is not only external assistance of the bishops to the primate in decision-making; it is the joint participation of the primate and the episcopate in hierarchical communion.
Ultimately, the consistent application of the principles of the Praedicate Evangelium requires a profound change in the culture of governance and in the mentality of those who work in the Holy See. To achieve this requires an open disposition to horizontal collaboration, to work in a collegial way and professionally, in the joint work of cardinals and other faithful.
The Protection of the Rights of the Faithful since Praedicate Evangelium
Pope Francis, in his address on the eve of Christmas 2015, asked members of the Roman Curia to make an examination of conscience about fifteen possible “diseases” they may have contracted during their life in the service of the church: lack of professionalism, gossip, careerism, clericalism, dangerous belief in one’s own immortality or indispensability, excessive busyness leading to neglect of spiritual well-being, the risk of becoming rigid and insensitive, lack of coordination, rivalry, and idolatry of superiors for one’s own benefit.Footnote 99
As the old proverb says, desperate diseases require desperate cures. Praedicate Evangelium is not a desperate, radical cure. It will improve some aspects of the curia, but unless I am mistaken, it will not bring about a drastic change; there are still several important problems to be resolved that seriously affect the protection of the rights of the faithful.
The recognition of the distinction between legislative, administrative, and judicial functions in the 1983 Code of Canon Law was of undoubted value. It made it possible to guarantee equal juridical protection for superiors and subjects, to prevent the ecclesiastical administration from acting arbitrarily; it can prevent administrative bodies from encroaching on the functions of the legislator or administrative norms from contradicting those of legislative rank. To this end, it is essential that the curia submit to the principle of legality in the broad sense, faithfully respecting the provisions of canon law.
For the moment, the composition of the Signatura presents an unresolved issue with the current system of administrative justice. As the administrative tribunal of the curia, it judges appeals against individual administrative acts of the dicasteries. It is the one who determines whether such acts have violated any law in their deliberation or procedure. The tribunal is composed of cardinals and bishops, who are often not in an objective situation of impartiality: they are simultaneously members of several dicasteries and may have a particular interest in the activities of one of these bodies. Because they exercise this mission alongside other pastoral tasks, their professionalism cannot be guaranteed.
Moreover, there has been no change regarding the lack of publication of jurisprudence, which directly affects the right of the faithful to the proper administration of justice (articles 194–199). The right of defense of the faithful requires that they be able to know the judgments to be able to invoke a certain constant criterion or to verify the equality of treatment.Footnote 100
It is also necessary to specify how the procedures for the selection of personnel will be carried out, for they are not mentioned in the apostolic constitution. If the faithful can know the formation and qualities of those entrusted with positions of governance, they could exercise control over the procedures followed.Footnote 101
Article 30 of Praedicate Evangelium refers to the subsequent approval by the Roman pontiff of what is proposed by a dicastery: “A curial institution cannot issue laws or general decrees having the force of law, nor can it derogate from the prescriptions of the current universal law, except in individual and particular cases, and with the approval of the Roman Pontiff in forma specifica.” The specific approval supposes that the Roman pontiff assumes this norm, which can no longer be challenged. Therefore, it is significant that the dicastery has seriously studied the subject since the authority of the Roman pontiff is directly implicated.Footnote 102 Furthermore, pontifical approvals should not be an escape route to prevent dicasteries or other curial institutions from assuming their responsibility and having their acts judged by the Apostolic Signatura.Footnote 103
Pontifical power is supreme but not absolute. The traditional principle of primacy is expressed in the formula prima sedes a nemine iudicatur (the first seat is judged by no one). However, this principle cannot be interpreted as if everything that comes from the Roman pontiff is justifiable, even if it harms the common good or the fundamental rights of the faithful. The pope is subject to divine law. Although he may apply other norms of human law discretionally, he must not contradict the law of the church without just cause, utilitas Ecclesiae. This was established by the First Vatican Council. However, there is no foreseen human authority that can control the correct exercise of pontifical power.Footnote 104 From this derives the grave responsibility of avoiding at the root any abuse of power and of guaranteeing respect for basic human rights such as the right to equality, the right to defense, the impartiality of the organs of justice, the principle of legality or the principle of non-retroactivity in criminal matters.
The idea I propose is somewhat audacious: the possibility of establishing a system of self-regulation for the exercise of primate power. The pope would establish nonnegotiable criteria that he would voluntarily assume in the form of a code of conduct. Norms of behavior would not be required by canon law, nor would there be a system of sanctions. The freely self-assumed commitment to act in accordance with the established criteria would be publicly declared by the interested party (or parties). The content of the codes of conduct should conform to the postulates of current canon law. This approach would be exemplary and would promote trust and legal certainty for all the faithful. At the state level, these self-regulatory techniques are designed to safeguard the general interest.Footnote 105 It may be a considerable time before this approach is applied in the church. However, I believe it is a path that will ultimately lead to a positive outcome.
Currently, the General Regulations of the Roman Curia and the norms proper to the curial institutions and offices are in the process of being drawn up. It would be desirable that these norms guarantee the missionary service dimension of the work, the protection of the rights of those to whom the acts of the curia are addressed, and the transparency and accountability of those who carry out the various functions of the curia.Footnote 106
It is striking that the word service appears seventy-one times in this apostolic constitution. In contrast, the word rights is used only six times in relation to the faithful. Specifically, the right to good governance is not mentioned, just as it does not appear in the Code of Canon Law.Footnote 107 Obviously, there should be an explicit reference to the right of the faithful to receive a timely response; the right to know the reasons for an administrative decision; the right to intervene in the process of making a certain decision; the right to respect the formality of acts to guarantee the defense of those to whom they are addressed; the right to know with certainty who the author of a juridical act is; and so many other rights.Footnote 108 Ensuring the proper exercise of government is a real legal obligation and not just a matter of ethics, virtue, or goodwill.Footnote 109
Acknowledgments and Citation Guide
Research support for this article came from the Project PID2020-114400GB-I00, funded by the Spanish Ministry of Science and Innovation and the Spanish State Research Agency (10.13039/501100011033). The author has no competing interests to declare. This article is cited consistent with the Chicago Manual of Style, 17th edition.
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