Q: A group of us Catholics in our diocese have a lawfully erected lay institute that’s now almost 15 years old … [and] from the beginning it was our understanding that if it prospers, it might later be formed into a religious institute of some kind, with the bishop’s approval.
Now we have been told by officials in the chancery that we cannot become a religious institute because Pope Francis has changed the law. We have a new diocesan bishop and he is less enthusiastic about our apostolate than the previous bishop, and he doesn’t even want to meet with us to discuss this…. We aren’t sure what is happening and why. Can you assist us with any ideas? –Rodolfo
A: In order to get a clear idea of the full situation of this lay institute in Rodolfo’s diocese, we’d need a lot more information than this. But one element here is perfectly clear and merits discussion, and that is the reference to Pope Francis changing the law on founding new religious institutes. What Rodolfo’s diocesan officials say about this is technically accurate in part, but it sounds like the conclusions they’re drawing from it are misleading. Let’s see what the Pope did and why, and then we’ll have a better handle on what is happening in Rodolfo’s case. In the process, we’ll also see that there’s definitely some inconsistency in the stated reasons for some of the many changes in canon law coming out of the Vatican these days.
The law that is at the center of this issue is canon 579. When Pope John Paul II promulgated the current Code of Canon Law in 1983, the canon was worded like this:
Diocesan bishops, each in his own territory, can erect institutes of consecrated life by formal decree, provided that the Apostolic See has been consulted.
In “Canon Law and a Convent of Rebellious Sisters,” we took a look at religious institutes in the Church, like (but not limited to) convents of sisters and monasteries of monks, and we saw that they fall into either of two categories, depending on who erected them. Any type of religious institute can be erected by Rome, in which case it’s said to be of pontifical right; or a diocesan bishop may erect it, and it’s therefore of diocesan right (c. 589; cf. also c. 732, and see “Can a Bishop Expel a Sister from his Diocese?” for a discussion of this distinction in another context). Ordinarily, when a group of men or women wish to start some sort of religious house, they’re starting out small, so they generally begin by obtaining authorization from the bishop of the diocese where they wish to have their first house: a convent, or a monastery, or some other sort of building housing the members. Over time, if the institute attracts larger numbers of members and its superiors wish to expand, they may—although they don’t have to!—seek to change its status, obtaining recognition from the Vatican and thus becoming an institute of pontifical right.
In Rodolfo’s diocese, there’s a group of lay Catholics who are interested in becoming a religious institute—and it seems fairly clear that they want to be an institute of diocesan right, at least for starters. In this they are quite typical. So what’s the problem?
If you look at the original canon 579 as translated above, it told us one thing that a diocesan bishop needed to do if he wanted to erect a religious institute in his diocese: he was obliged to consult Rome on the matter first. The word “consult” indicated that the bishop merely had to ask the Vatican’s opinion; even if the Vatican wasn’t keen on the erection of the new institute, the bishop could decide to go ahead with it anyway. In other words, Rome’s view on the matter was not binding.
That doesn’t mean, of course, that a diocesan bishop should just ignore whatever the Vatican had to say! Vatican officials might have pointed out some key factors in the erection-process which the bishop had overlooked, or was unaware of. For example, does the new institute have adequate financial resources, or reliable future income, to maintain itself in the long term? If not, the bishop might find himself paying off its debts in years to come.
Or does the bishop know that in the diocese right next door to his own, there’s a religious institute which is virtually identical? It might make a lot more sense for the bishop simply to permit erection of a new house of that other institute in his own diocese, than to erect a completely new and separate institute. (Yes, it’s entirely possible for an institute of diocesan right to have houses in multiple dioceses. This was discussed in detail in the abovementioned “Canon Law and a Convent of Rebellious Sisters.”)
Under the original canon 579, a bishop was expected to listen to Rome’s opinion. But he wasn’t obliged to follow it, and was instead free to act as he thought best. This is consistent with the Church’s theological understanding of a diocese, as “a particular church in which the one, holy, catholic, and apostolic Church of Christ is truly present and operative” (c. 369). The phraseology of this canon, by the way, is taken largely verbatim from Christus Dominus, Vatican II’s Decree on the Pastoral Office of Bishops in the Church. It was the Second Vatican Council which affirmed that the authority of a diocesan bishop in his own territory is not merely delegated to him by the Pope; once he has lawfully become the bishop of a diocese, he exercises the offices of teaching, governing, and sanctifying in his own right, so long as he remains in hierarchical communion with the Pope and the other members of the College of Bishops (cf. Lumen Gentium 21).
In 1996, after a Synod held on the specific topic of religious life, then-Pope John Paul II issued a Post-synodal Exhortation called Vita Consecrata, in which he unambiguously encouraged bishops to foster religious institutes in their dioceses:
Bishops are asked to welcome and esteem the charisms of the consecrated life, and to give them a place in the pastoral plans of the Diocese. They should have a particular concern for institutes of diocesan right, which are entrusted to the special care of the local Bishop. A Diocese which lacked the consecrated life would not only be deprived of many spiritual gifts, of suitable places for people to seek God, of specific apostolic activities and pastoral approaches, but it would also risk a great weakening of that missionary spirit which is characteristic of the majority of institutes. There is a duty then to respond to the gift of the consecrated life which the Spirit awakens in the particular Churches, by welcoming it with generosity and thanksgiving. (48)
In 2016, the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life (CICLSAL) asked Pope Francis to clarify the existing law—a request which obliquely suggests, at least, that for some reason(s) what bishops were doing in this regard was causing difficulties. The Pope agreed, and stated that the consultation with the Apostolic See which is mentioned in canon 579 is required for validity. In other words, if a bishop decided to erect a brand-new religious institute of diocesan right in his own diocese, but failed to first consult the Vatican on the subject, the erection of that new institute would be null and void.
Was the erection by bishops of new religious institutes of diocesan right subsequently proving to be a problem? Were they creating unstable new institutes without bothering first to consult with Rome at all? Or what? It could very well be that the Vatican had subsequently dealt repeatedly with issues stemming from the imprudent creation of such institutes by diocesan bishops; but since such issues are normally addressed/resolved privately, we on the outside wouldn’t necessarily know anything about them. It does sound, however, like the Vatican had a beef with diocesan bishops for the way that many of them were using (or misusing?) canon 579.
In any event, whatever CICLSAL hoped to accomplish with this 2016 papal clarification doesn’t seem to have been sufficient. That’s because in 2020, Pope Francis issued Authenticum Charismatis, a motu proprio document amending canon 579. This time around, the Pope didn’t just clarify the meaning of the existing canon—he actually reworded it. Pope Francis notes in this motu proprio that “The Apostolic See has the responsibility to accompany the Pastors [i.e., diocesan bishops] in the process of discernment leading to the ecclesial recognition of a new Institute or a new Society under diocesan law.” Now, for the valid erection of a religious institute of diocesan right, a diocesan bishop must first obtain permission from the Vatican. If Rome refuses to grant permission for whatever reason, the bishop is now unable validly to establish a new religious institute in his diocese.
This motu proprio is somewhat bewildering, for a couple of different reasons. The first one is the notion that “permission” is required for validity. As we saw in “How do You Fix an Illicit Sacrament?” when the Code of Canon Law uses the word “permission,” this has always indicated that the issue is one of liceity. Put differently, if you fail to obtain the required permission to carry out an action, in the world of canon law that failure has always made the action illicit, or illegal—but not invalid. (See “Are They Really Catholic? Part II” for a more in-depth discussion of the difference between validity and liceity.) Now, however, we are given a new canon 579 which connects permission with validity—something which naturally gives a canon lawyer pause. Of course as the Supreme Legislator (cf. c. 331), the Pope can choose to make that connection if he wishes … but it’s not terribly consistent with established canonical terminology.
On a more theological level, Pope Francis has now essentially centralized the creation of new religious institutes, by taking the power to do this away from diocesan bishops altogether. Yes, a bishop may still reach the conclusion that it’s a great idea to found a new institute of religious in his diocese; but if Rome disagrees, the bishop’s hands are thereby tied and he can do nothing. So what we see happening here is a diminution of the power a bishop has within his own diocese: on the one hand the Church still acknowledges, of course, that a diocesan bishop holds the offices of teaching, sanctifying, and governing within his territory—but on the other hand, if in the exercise of those offices the bishop decides that it is good and worthwhile to establish a new religious institute in his territory, he no longer has the authority to do that on his own!
The Secretary of CICLSAL, Archbishop José Rodríguez Carballo, stated back in 2016 that CICLSAL wanted to prevent the “careless” creation of new religious institutes by diocesan bishops. Unfortunately, no definition or specific example of this “carelessness” was provided, so it’s not clear what exactly he/CICLSAL had in mind. There’s no denying that sometimes, a bishop might agree to erect a new religious institute in his diocese, only to see it fail dramatically because of the incompetence of its leadership, or dissension among inadequately trained members, or poor articulation of its charism and its particular apostolate. Perhaps in some cases the potential for these problems could have been spotted in advance, if the bishop had been more astute—but not necessarily. The world is filled with all sorts of initiatives which sound promising at first, and without the proverbial crystal ball it often would be impossible for anyone to know that they will turn out to be dismal failures.
Regular readers may recall that in “Retranslating the Liturgy: Pope Francis Changes the Law (Episcopal Authority, Part I),” we saw that Pope Francis rewrote yet another canon a few months ago (c. 838), giving more authority over liturgical translations to conferences of bishops around the world. In order to give bishops this greater authority, the Pope took it away from Rome, thereby partially decentralizing the process. At the time, the Prefect of the Congregation for Divine Worship (CDW) declared that this was intended to foster “a climate of collaboration and dialogue” between bishops and the Vatican.
This ecclesiological attitude stands in stark contrast to the abovementioned comment by the Secretary of CICLSAL, asserting the need for the Vatican to centralize power over the creation of new religious institutes, due to bishops’ “carelessness.” If bishops have the potential to be “careless” about erecting a new religious institute, doesn’t they have similar potential for such “carelessness” when it comes to making new translations of liturgical books? And yet as we can see, in one instance Rome has given more authority to bishops, while in the other Rome has taken it away. One has to wonder why CICLSAL couldn’t act more along the lines of CDW, and enact procedures to foster “a climate of collaboration and dialogue” whenever a bishop wants to create a new religious institute of diocesan right. It is difficult, to put it mildly, to see much consistency here in the Vatican’s overall attitude toward episcopal power vis-à-vis Rome.
Putting that aside, let’s turn to the specific case which Rodolfo mentions in his question. He notes that for many years, there has been in his diocese a lay association engaged in some type of apostolate/charitable work (see “When Can a Bishop Intervene in a Lay Association of the Faithful?” for more on what these associations are all about). As often happens, the members have now become interested in possibly changing the status of the association, morphing into “a religious institute of some kind, with the bishop’s approval.”
As we’ve just seen, it is still entirely possible for Rodolfo’s bishop to erect a religious institute of diocesan right within his diocese; it’s just that now he has to seek and obtain permission from the Vatican first. True, this might perhaps involve additional procedural hassle for the diocese–but if the creation of the proposed new institute is justifiable, there’s no reason to assume up-front that Rome will refuse to grant the required permission. Thus it is incorrect to state that it “cannot become a religious institute because Pope Francis has changed the law.”
It could be that Rodolfo misunderstood what the chancery officials told the group. Alternately, it’s possible that the person in the chancery who said this was confused about what effect the change in the law actually had. Or maybe the diocesan bishop is not convinced that erecting a new institute is a good idea, and chancery officials were diplomatically (or not!) trying to convey that message to the association’s members.
Absent a lot more information, this is the best we can do to assess the situation of Rodolfo’s lay association. If the bishop agrees that it should now be erected into a religious institute of diocesan right, he can do that—provided that he gets the Vatican’s permission first.
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Canon lawyers are not responsible for the content of canon law. The Supreme Legislator is. Only Pope Francis can change the Code of Canon Law, so if you're not happy with what the law says, please take it up with him.
