Pontifical Council for Legislative Texts, Explanatory Note on Elements to Situate the Scope of the Canonical Responsibility of the Diocesan Bishop Concerning Presbyters Incardinated in His Diocese and Exercising Their Ministry Therein, 12 February 2004.
I. Ecclesiological premises
Diocesan bishops govern the particular Churches assigned to them as vicars and legates of Christ “by counsel, persuasion, and example, but also with authority and sacred power” [LG, 27; POPE JOHN PAUL II, Pastores gregis 43; CIC, c. 381].
Presbyters, in virtue of the sacrament of orders, are consecrated to preach the gospel, to shepherd the faithful and to celebrate divine worship, as true priests of the New Testament [see LG, 28]. According to the proper grade of their ministry, they participate in the function of Christ, the one mediator. Every presbyter must be incardinated in a particular Church or in an institute of consecrated life or a society of apostolic life which has0 this faculty (CIC, c. 265; see c. 357).
Between the diocesan bishop and his presbyters exists a communio sacramentalis in virtue of the ministerial or hierarchical priesthood, which is a participation in the one priesthood of Christ [see PO, 7; POPE JOHN PAUL II, Pastores gregis, 47].
Consequently, under the juridical profile, the relationship existing between the diocesan bishop and his presbyters is unable to be reduced to the relationship of hierarchical subordination of civil law in the legal system of the States, or in the relationship of dependent work between an employer and an employee.
II. The nature of the relationship of subordination between the presbyter and the diocesan bishop
The relationship between the diocesan bishop and presbyters, resulting from ordination and incardination, cannot be compared to the subordination which exists in the area of civil society in the relation between an employer and employee.
The bond of subordination of a presbyter to the diocesan bishop exists on the basis of the sacrament of orders and not merely by the duty of obedience required by clergy in general toward their proper ordinary (see CIC, c. 273; CCEO, c. 370), or by that of the vigilance on the part of the bishop (see CIC, c. 384; CCEO, c. 192 §§ 4-5).
Such a bond of subordination between the presbyters and the bishop, however, is limited to the area of the exercise of the proper ministry which presbyters must carry on in hierarchical communion with their own bishop. The diocesan presbyter, though, is not a mere passive executor of the directives received from the bishop. In fact, he enjoys a legitimate initiative and a just autonomy.
As regards ministerial obedience, concretely, it is a hierarchical obedience, limited to the area of provisions which the presbyter must carry out in the fulfillment of his proper office and which is unable to be assimilated to the type of obedience that is realized between an employer and an employee. The service that a presbyter performs in the diocese is bound to a stable and enduring commitment which he has assumed, not with the physical person of the bishop but with the diocese by means of incardination. Therefore, it is not a labor relationship easily rescindable at the decision of the “boss.” A bishop cannot, like an employer in the civil arena, “exonerate” the presbyter if he does not fulfill the precise conditions which do not depend on the discretion of the bishop but which are established by the law (cf. the cases of suspension from office or of dismissal from the clerical state). The presbyter does not “work” for the bishop.
Besides, even in the area of civil life there are relations of subordination – as, for example, in military life or in public administration – in which the superiors personally are not legally responsible for the criminal acts committed by their subordinates.
III. The sphere of hierarchical subordination between presbyters and the diocesan bishop
The bond of canonical subordination of the presbyter to his own bishop is limited to the sphere of the exercise of the ministry and, therefore, to acts directly connected to it, as well as to the general duties of the clerical state.
a) The diocesan bishop has the duty to pursue his presbyters with particular solicitude and to listen to them as his collaborators and counselors. Moreover, he must defend their rights and take care that the presbyters fulfill faithfully the obligations proper to their state, and that they have at their disposition the means and institutions which they need to nourish their spiritual and intellectual life. In addition, he must make sure that they are provided with decent sustenance and social assistance, according to the norm of law (see CIC, c. 384; CCEO, c. 192 §§ 4-5).
Such a duty of care and vigilance on the part of the bishop is limited to all that concerns the proper state of presbyters, but it does not constitute a generalized duty of vigilance over their entire life.
Above all, from a strictly juridico-canonical point of view, only the sphere of the general duties of their proper state of presbyters and of their ministry can and must be the object of vigilance on the part of the bishop.
b) Although a true right cannot be invoked on the part of the presbyter, the diocesan bishop should make provision to confer on him an office or a ministry to exercise in favor of the particular Church for whose service the presbyter himself had been promoted (see CIC, c. 266 § 1; CCEO, c. 358).
In this sphere, ministerial obedience to his proper ordinary is required of the presbyter (see CIC, c. 273; CCEO, c. 370), as is the duty to fulfill faithfully what is required by his office (see CIC, c. 274 § 2; CCEO, c. 371). The direct responsibility of the office, however, belongs to the office-holder and not to the one who had conferred it on him.
For his part, the bishop must exercise vigilance that the presbyter is faithful to the fulfillment of his ministerial duties (see CIC, cc. 384, 392; CCEO, cc. 193 §§ 3-4, 201). A particular moment to verify this on the part of the bishop is represented by the pastoral visit (see CIC, cc. 396-397; CCEO, c. 205).
c) The bishop has the duty, moreover, to ensure effective respect for the rights of his presbyters which originate from incardination and from the exercise of the ministry in the diocese; among these can be mentioned the right to adequate remuneration and social provision (see CIC, c. 284; CCEO, c. 390), the right to a suitable time for holidays (see CIC, c. 283 § 2; CCEO, c. 392); the right to receive on-going formation (CIC, c. 279; CCEO, c. 372).
d) In the sphere of the duties of the clerical state, the bishop has, among others, the duty to recall the obligation of presbyters to observe perfect and perpetual continence for the kingdom of heaven and to conduct themselves with due prudence in relations with persons with whom familiarity can place into danger the fulfillment of those obligations or to evoke scandal to the faithful; it is for the bishop to judge the observance of this obligation in particular cases (see CIC, c. 277; CCEO, c. 374).
IV. The sphere of autonomy of the presbyter and the eventual responsibility of the diocesan bishop
The diocesan bishop cannot be held legally responsible for the acts which a diocesan presbyter performs by transgressing canonical norms, universal and particular.
a) The correct or, to the contrary, the unfaithful response of the presbyter to the norms of the law and to the directives of the bishop on the priestly state and ministry does not fall under the sphere of the juridic responsibility of the bishop, but under that of the presbyter himself, who will answer personally for his own acts, even for those performed in the exercise of the ministry.
Much less could the bishop be held legally responsible for the acts which regard the private life of presbyters, such as the administration of his own goods, residence, social relations, etc.
b) The diocesan bishop could eventually have responsibility only in reference to his duty of vigilance, but under two conditions:
– whenever the bishop has been uninterested in putting into place the necessary assistances required by canonical norms (see CIC, c. 384; CCEO, c. 192 §§ 4-5);
– whenever the bishop, having knowledge of contrary or directly criminal acts committed by the presbyter, had not taken adequate pastoral remedies (see CIC, c. 1341).
a) that the bond of canonical subordination between the presbyters and the diocesan bishop (see CIC, c. 273; CCEO, c. 370) does not generate a kind of generalized subjecion, but is limited to the areas of the exercise of the ministry and of the general duties of the clerical state;
b) that the duty of vigilance of the diocesan bishop (see CIC, c. 384; CCEO, c. 192 §§ 4-5), as a result, is not configured as an absolute and indiscriminate control over the entire life of the presbyter;
c) that the diocesan presbyter enjoys a sphere of decisional autonomy both in the exercise of the ministry and in his personal and private life;
d) that the diocesan bishop cannot be held legally responsible for the actions which, in transgression of universal and particular canonical norms, the presbyter commits within the sphere of such autonomy;
e) that the particular nature of the ministerial obedience required from the presbyter does not make the bishop the “boss” of the presbyter inasmuch as he does not “work” for the bishop and that, as a result, it is not legally correct to consider presbyteral ministry analogous to the relation of “dependent work” existing in civil society between an employer and an employee;
f) that the canonical notion of delict (see CIC, cc. 1312, 1321; CCEO, cc. 1414) and that of cooperation in a delict (see CIC, c. 1329; CCEO, c. 1417) exclude the possibility of blaming in any fashion the diocesan bishop for criminal action committed by a presbyter incardinated in his diocese, except for the cases listed exhaustively;
g) that the canonical order does not contemplate the so-called “objective responsibility,” not being able to ascribe to it a sufficient title for the imputation of the crime, but foresees the “cooperation in crime” which is certainly not verified by the sole fact that the bishop is the superior of the delinquent.
This Pontifical Council retains that the diocesan bishop, in general and in the specific case of the crime of pedophilia committed by a presbyter incardinated in a particular diocese, has no legal responsibility based in the relation of canonical subordination existing between them.
The criminal action of the presbyter and its penal consequences – also the eventual compensation for damages – are to be imputed to the presbyter who has committed the crime and not to the bishop or to the diocese of which the bishop is the legal representative (see CIC, c. 393; CCEO, c. 190).
Vatican City, 12 February 2004
JULIAN CARDINAL HERRANZ
Titular Bishop of Drivsto
Pontifical Council for Legislative Texts, Explanatory Note on Elements to Situate the Scope of the Canonical Responsibility of the Diocesan Bishop Concerning Presbyters Incardinated in His Diocese and Exercising Their Ministry Therein, 12 February 2004, Communicationes, 36 (2004) 33-38. English by: John A. Renken.