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THE SIGNIFICANCE FOR THE LATIN CHURCH
OF EASTERN CANONS 29-38 ON ASCRIPTION
Rev. Jobe Abbass, Conv.
Introduction
When the canons governing ascription in the Codex Iuris Canonici (CIC) are
compared to those in the Codex Canonum Ecclesiarum Orientalium (CCEO), it is
immediately evident that the norms in the latter are much more detailed. Indeed, while two
Latin canons (111-112) are devoted to ascription to a Church sui iuris, there are ten Eastern
canons (29-38) dedicated to the same subject.1 Although the Latin Code regards only the
Latin Church and the Eastern Code principally governs the Eastern Catholic Churches, the
two are not so separate and distinct as to be unrelated. The legislator, himself, meant to
establish an interrelationship of the Codes when he presented the new Eastern Code to the
twenty-eighth General Congregation of the Synod of Bishops on October 25, 1990. John
Paul II indicated that he regarded CCEO, together with CIC and Pastor bonus to be
integral parts of "one Corpus Iuris Canonici" in the universal Church.2 Even from the first
Eastern canon, His Holiness effectively codified this interrelationship. Unlike CIC canon
1,3 CCEO canon 1 states: "The canons of this Code concern all and only the Eastern
Catholic Churches, unless, with regard to relations with the Latin Church, it is expressly
(expresse) established otherwise."4
1
The CIC canons, with their CCEO counterparts in parenthesis, are: 111 §1 (29 §1); 111 §2 (30, 588);
112 §1, 1° (32 §1); 112 §1, 2° (33); 112 §1, 3° (34); 112 §2 is unique to CIC. The CCEO canons, with
their parallel CIC norms in parenthesis, are: 29 §1 (111 §1); 30 (111 §2); 32 §1 (112 §1, 1°); 33 (112 §1,
2°); 34 (112 §1, 3°). CCEO cc. 29 §2, 31, 35-38 are unique to the Eastern Code. See C.G. FÜRST,
Canones-Synopse zum Codex Iuris Canonici und Codex Canonum Ecclesiarum Orientalium, Freiburgim-Breisgau, Herder, 1992, pp. 4 and 118.
2
AAS, 83 (1991) 490. The pope stated: In presenting to this Assembly, so representative of the universal
Church, the code which governs the common discipline of all the Eastern Catholic Churches, I regard it
as an integral part of one Corpus Iuris Canonici...." Unless otherwise indicated, foreign language
translations are the writer’s.
3
CIC c. 1 states: The canons of this Code regard only the Latin Church."
4
In this study, English translations for the CCEO canons are generally taken from Code of Canons of the
Eastern Churches, Latin-English Edition, Washington, D.C., Canon Law Society of America, 2001.
English translations for the canons of the Codex Iuris Canonici (CIC) are taken from Code of Canon
Law, Latin-English Edition, Washington, D.C., Canon Law Society of America, 1999.
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There are, of course, nine CCEO canons which expressly, that is, explicitly oblige
the Latin Church.5 However, until recently, there was disagreement among canonists
regarding the exact interpretation to be applied to expresse. A minority of canonical
writers argued that, in using the term expresse, the legislator only intended the canons of
the Eastern Code to apply to the Latin Church when it is explicitly named. However,
consistent with a classical rule of interpretation, according to which whatever is expressly
(expresse) established in law can be indicated either explicitly or implicitly, a majority of
writers maintained that canons of the Eastern Code could also regard or oblige the Latin
Church implicitly by way of the use of the expression "Church sui iuris", which could refer
to the Latin as well as the Eastern Catholic Churches sui iuris.6 Then, on December 8,
2011, by way of an official Explanatory Note concerning the interpretation to be given
CCEO canon 1, the Pontifical Council for Legislative Texts essentially accepted the
majority view. The Council stated: " Consequently, one must hold that the Latin Church is
implicitly included by analogy each time that CCEO explicitly uses the term 'Church sui
iuris' in the context of interecclesial relations."7 Given the significance of the Pontifical
Council's Explanatory Note for future canonical interpretation, an English translation of the
original Italian text is offered in the Appendix to this study.8
Even when Eastern norms do not contain the expression "Church sui iuris," it
would also seem that the implicit (expresse) interrelationship of the Codes arises simply
because of the nature of the matter (ex natura rei), for example, in the context of ascription
or transfer from one Church sui iuris to another. Although the Explanatory Note does not
peremptorily limit the ways in which Eastern norms can implicitly include also the Latin
Church, it does not refer to a category of CCEO norms that implicitly oblige also the Latin
Church ex natura rei. Still, the Explanatory Note would appear to be open to such a
possibility in the context of interecclesial relations even though it does not specifically
address this line of interpretative reasoning. In any event, while it could be argued that all
the CCEO norms on ascription to be examined in this study expressly (implicitly) include
the Latin Church ex natura rei, the same canons will be looked at mainly from the
perspective of the interpretative rule established by the Pontifical Council regarding the use
of the expression "Church sui iuris." As all of the CCEO canons 29-28 on ascription
contain the expression "Church sui iuris," they will be analyzed to determine the extent to
which the Eastern norms expressly intend to include or oblige the Latin Church. Also, the
legislative history of these norms will be assessed, given the reported deliberations of the
5
The nine CCEO canons which explicitly regard the Latin Church are: CCEO cc. 37; 41; 207; 322; 432;
696 §§1-2; 830 §1; 916 §5; and 1465.
6
For an outline of these minority and majority positions, see J. ABBASS, "Transfer to another Church Sui
Iuris, Including the Latin Church (CCEO c. 32 §2)," in Jur, 72 (2012), pp. 646-655.
7
See Comm, 43 (2011), pp. 315-316.
8
For a commentary on the Pontifical Council’s official Explanatory Note, see J. ABBASS, "The
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Pontificia Commissio Codici Iuris Canonici Orientalis Recognoscendo (PCCICOR), to
determine if such an interpretation can be confirmed.
Now, as this writer has argued for some time, the interrelationship of the Eastern
and Latin Codes is not exhausted by CCEO canon 1.9 CIC canon 17, and its counterpart
CCEO canon 1499, effectively set up an interrelationship of the Latin and Eastern Codes as
complementary guides to canonical interpretation. Like CIC canon 17, CCEO canon 1499
states: "Laws must be understood according to the proper meaning of the words considered
in their text and context. If the meaning remains doubtful and obscure, they must be
understood according to the parallel passages, if there are such, to the purposes and
circumstances of the law, and to the mind of the legislator." While canon 18 of the 1917
Latin Code limited recourse to "parallel passages of this (Latin) Code," CIC canon 17 and
CCEO canon 1499 do not preclude making recourse to parallel texts of one or the other of
the Codes as an aid to canonical interpretation. Therefore, where the meaning of laws in
one Code remains doubtful, laws governing the same matters in the other Code can serve
as parallel passages to resolve ambiguities in interpretation. However, this interpretative
rule does not intend, nor can it, condition or undermine the authority of the legislator, or
those to whom he has granted the power, to interpret laws authentically (CIC c. 16 §1;
CCEO c. 1498 §1).10
Yet another area for a potential interrelationship of the Latin and Eastern Codes is
evidenced by CIC canon 19. It states: "If a custom or an express prescript of universal or
particular law is lacking in a certain matter, a case, unless it is penal, must be resolved in
light of laws issued in similar matters (legibus latis in similibus), general principles of law
applied with canonical equity, the jurisprudence and practice of the Roman Curia, and the
common and constant opinion of learned persons."11 Therefore, except in penal cases,
where there is a lacuna in the Latin Code, the case must be decided with reference to four
sources, one of which is laws enacted in similar matters. It only seems to follow, then,
that, where the Eastern Code contains laws to govern similar matters in the Latin Code,
those Eastern norms could serve to fill legislative gaps in the Latin Code. Indeed, since the
Explanatory Note regarding CCEO Canon 1: A Commentary," in StC, 46 (2012), pp. 293-318.
9
See J. ABBASS, "The Interrelationship of the Latin and Eastern Codes, in Jur, 58 (1998), pp. 1-40
(=ABBASS, "Interrelationship") and IDEM, "The Eastern Code at the Service of Interecclesial
Communion," in CLSAP, 68 (2006), pp. 65-86.
10
Like CIC c. 16 §1, CCEO c. 1498 §1 states: "The legislator authentically interprets laws as does the one
to whom the same legislator has conferred the power of authentically interpreting."
11
The interrelationship of the Codes is not established by CCEO c. 1501 since there is no reference to
"laws issued in similar matters." Regarding lacunae in the Eastern Code, CCEO c. 1501 states: "If an
express prescript of law is lacking in a certain matter, a case, unless it is penal, must be resolved
according to the canons of the synods and the holy fathers, legitimate custom, the general principles of
canon law applied with equity, ecclesiastical jurisprudence, and the common and constant canonical
doctrine."
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legislator promulgated the Eastern Code almost eight years after the Latin Code, it may
well be that he had certain lacunae in the Latin Code in mind when he enacted the newer
Eastern laws. Again, however, this interpretative norm can only be invoked in individual
cases and the executive or judicial authority resolving the matter can in no way replace the
authority of the legislator to intervene and remedy the lacunae definitively.
Given the interrelationship of the Codes established by these Eastern and Latin
canons of the one Corpus Iuris Canonici of the Catholic Church, the aim of this study will
be to indicate the significance, even for the Latin Church, of CCEO canons 29-38 on
ascription and transfer to a Church sui iuris. After a brief introductory section, denoting
the context and mindset of the pertinent study group within PCCICOR, each of the Eastern
canons will be examined successively. A commentary on each norm will be offered in the
light of CCEO canon 1 and, especially, the Pontifical Council's Explanatory Note. Where
applicable, reference to the interpretative rules contained in CIC canon 17 and 19 will also
be incorporated into the commentaries.
CCEO canons 29-38: Context and Mindset within PCCICOR
The task of revising the former Eastern norms on ascription was entrusted to the
second study group of PCCICOR, the Coetus de Normis Generalibus, Ritibus, Personis
physicis et moralis, Potestate ordinaria et delegata (Coetus de Ritibus). The study group,
composed of sixteen members, met from January 19-31, 1976 to revise the pertinent norms
contained in Cleri sanctitati (CS) canons 1-15.12 Although these norms had the title De
Ritibus orientalibus, many of them in fact also applied to the Latin Church. CS canon 15
stated: "Clerics and the faithful of any rite, the Latin rite by no means excluded, are bound
by the prescripts of canons 1 §2, 4, 5, 7, 10, 11 §2, and 13." However, from the outset, the
Coetus de Ritibus decided to suppress CS canon 15 since, as a general principle, the group
did not want to establish norms for Latins in the Eastern Code. Just as the members
worked to prepare a revised draft of CS canons 1-15, they hoped at the time that the
corresponding Latin commission would elaborate a revised schema of the same canons for
the Latin Church. Still, the Coetus de Ritibus knew full well that their proposed norms on
ascription and transfer among the various Churches of the whole Catholic Church would
implicitly involve the Latin Church. Since the expression "Church sui iuris" had not yet
entered into the formulation of the Eastern canons, one can only conclude that the study
group believed the new Eastern norms on ascription would implicitly regard the Latin
Church, as one of those various Churches, simply because of the nature of the matter (ex
natura rei). The study group's relator, Archimandrite Elias Jarawan, stated:
12
Nuntia, 3 (1976), pp. 44-45.
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As for can. 15 of C.S., the consultors were all agreed on its suppression.
Indeed, it appeared opportune to a majority of the consultors to avoid,
everywhere that was possible, to give prescripts concerning Latins in the
Eastern Code. All these prescripts ought to be incorporated in the Latin
Code itself, those regarding ascription to the Latin Church as well as those
concerning transfer from that great Church to an Eastern Church.
It is evident that the canons concerning Rites are general, and also involve
the Latin Church, but, in themselves, they find their place more naturally in
the CICO (Codex Iuris Canonici Orientalis), inasmuch as it applies to the
various Churches, while in the Latin Code, valid only for the Latin Church,
one can hope that the canons which are enumerated in C.S. 1-15, duly
revised, will be introduced.13
Clearly, the Latin commission did not introduce such detailed norms, as is evident
from only CIC canons 111–112. Now, given the mindset of the Eastern draftsmen that
would avoid legislating for Latins regarding ascription and transfer from one Church to
another, it is difficult to argue that CCEO canons 29-38 are Latin canons. Yet, as the
Coetus de Ritibus indicated, the Eastern norms in this matter implicitly regard the Latin
Church and that is true inasmuch as it is one of the twenty-three Catholic Churches united
in the See of Rome.
1 - Ascription of Children to a Church Sui Iuris (CCEO c. 29)
CCEO canon 29 governs the ascription of children up to fourteen years of age and
is divided into two paragraphs: §1 establishes a general rule regarding children presented
for baptism by their parents, while §2 concerns specific cases of children of an unwed
mother, of unknown parents or of non-baptized parents. CCEO canon 29 §1 parallels CIC
canon 111 §1 but the norms do not mutually correspond. CIC canon 111 §1 states:
"Through the reception of baptism, the child of parents who belong to the Latin Church is
enrolled in it, or, if one or the other does not belong to it, both parents have chosen by
mutual agreement to have the offspring baptized in the Latin Church. If there is no mutual
agreement, however, the child is enrolled in the ritual Church to which the father belongs."
In particular, while Eastern canon 29 §1 foresees that a child can be ascribed to the Church
sui iuris of his or her mother if both parents agree, it has been argued that Latin canon 111
§1 does not seem to allow for the same in the case of the Eastern Catholic mother.14
13
Nuntia, 3 (1976), pp. 52-53.
14
See: J.P. MCINTYRE, "Rite," in New Commentary on the Code of Canon Law, J.P. BEAL et al. (eds.),
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Indeed, as will be seen from the Eastern canon's iter within PCCICOR, more was
expressed and written on this point than perhaps any other subject regarding the Eastern
norms on ascription.
In general, CCEO canon 29 §1 stipulates that a child under fourteen is ascribed by
virtue of baptism to the Church sui iuris of the father. However, if only the mother is
Catholic or if both parents agree in requesting it (si ambo parentes concordi voluntate
petunt), the child can be ascribed to the Church of the mother. As will be seen, the
insertion of this clause was consistently opposed within PCCICOR by Easterners who
feared the diminishment, if not the disappearance, of the Eastern Catholics Churches sui
iuris especially in the diaspora. To temper this fear, the norm makes an exception by way
of particular law to provide special dispositions other than the general rule. CCEO canon
29 §1 states:
A son or daughter who has not yet completed fourteen years of age is
ascribed by virtue of baptism to the Church sui iuris to which his or her
Catholic father is ascribed; or if only the mother is Catholic, or if both
parents are of the same mind in requesting it, to the Church sui iuris of the
mother, without prejudice to particular law enacted by the Apostolic See.
Within PCCICOR, a first draft of this Eastern norm was proposed by the Coetus de
Ritibus in its revision of CS canon 6, which stated: "Among the different rites, a person
belongs to that one by whose ceremonies he was legitimately baptized." The study group
wanted to make clear that ascription is decided not by baptism but, rather, by the parents'
membership in a particular Church. Accordingly, the proposed draft stated: "By baptism
itself, one is ascribed to the particular Church of the father (patris); if however only the
mother is Catholic, to the Church of the mother."15 Since some consultors wanted to add,
after patris, the words vel si ambo parentes consentiant, matris, the clause was added
tentatively so that, as canon 10 §1 of the 1984 Schema canonum de constitutione
hierarchica Ecclesiarum orientalium (1984 Schema), the norm now stated: "By baptism
itself, one is ascribed to the Church of the father; if however only the mother is Catholic (or
New York, N.Y./Mahwah, N.J. Paulist Press, 2000, p. 151. The author states: "The first paragraph of the
canon (111) presents a restrictive norm. Suppose we find a Latin father and an Eastern mother. If both
parents agree, can the child be baptized in the Eastern rite? The canon does not permit this. If they both
agree, it must be in the Latin Church." See also: G. NEDUNGATT, "Churches sui iuris and Rites," in G.
NEDUNGATT (ed.), A Guide to the Eastern Code: A Commentary on the Code of Canons of the Eastern
Churches, Rome, Pontifical Oriental Institute, 2002, p. 119, note 43 (=NEDUNGATT, "Churches and
Rites"). The author states: "The corresponding CIC c. 111 §1 allows the parents to agree to choose the
Latin Church for their children at baptism, if one of the parents does not belong to it. The Latin Church
can happen to be the "ritual Church" (Church sui iuris) of the mother or father, but, according to the
wording of the canon, they cannot agree to choose the Eastern Church sui iuris of the mother but only of
the father."
15
Nuntia, 3 (1976), p. 49 (c. 7 §1).
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both parents consent), to the Church of the mother."16
During the denua recognitio of the 1984 Schema, canon 10 §1 was the subject of
intense criticism on account of the insertion of the clause vel si ambo parentes consentiant.
It was argued that permitting a child to be ascribed to the Church of the mother is against
Eastern tradition, according to which a child is to be ascribed to the Church of the father.
Then, the consultors maintained that, by allowing a child to be ascribed to the mother's
Church, and they clearly intended the Latin Church especially in the diaspora, it would lead
to the weakening and diminishment of the Eastern Catholic Churches. An excerpt from the
proceedings of PCCICOR shows the extent to which the Latin Church was implicitly
involved in the remarks made concerning canon 10 §1. They state:
1) Five consultative bodies declared themselves against the insertion of the
clause "si ambo parentes consentiant" in the canon, emphasizing the fact
that it is contrary to Eastern traditions, to the laws of the personal statutes in
force in the East, to the mentality of the Eastern faithful and because it
would lead to a weakening of the vitality and to an impoverishment of the
Eastern Churches present in Western territories.
2) Three consultative bodies proposed a differentiated discipline for the East
and the West, with the aim of protecting "the Eastern Churches that are a
minority in a Latin area, or in a territory in which several Latin dioceses
exist and operate, exercising a considerable influence on Easterners,
Catholic and Orthodox." ....
3) A Latin episcopal conference, wishing in any case to favour the existence
and blossoming of an Eastern Church in its territory, proposed that a
possibility be opened up for a "lex particularis," different from that
established in §1 or in cann. 111 and 112 of CIC.17
Essentially, there was a choice to be made either in favour of the prevailing Eastern
tradition to ascribe a child to the Church of the father or in favour of the equal right of the
father and mother to decide on the Church to which their child would be ascribed. The
proceedings state: "On the table was the difficult choice between giving precedence to the
primary rights of the parents, putting the husband and wife on the same level in this matter,
and what is consistent with Eastern traditions and a rooted mentality, and perhaps, required
for safeguarding the Eastern Churches."18 After several days of lively debate, the experts
16
Nuntia, 19 (1984), p. 22 (c. 10 §1).
17
Nuntia, 22 (1986), pp. 24-25 (c. 10 §1).
18
Nuntia, 22 (1986), p. 26 (c. 10 §1).
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entrusted with the denua recognitio of the 1984 Schema could not come to a consensus
regarding the insertion of the clause vel si ambo parentes consentiant. However, the
secretariat indicated that a solution could be found if, while keeping that clause, the clause
salvo iure particulari a Sede Apostolica statuto was added. The experts agreed (8 in
favour, 2 against, 1 abstention: 11 present) and canon 10 §1 now stated: "By baptism itself,
one is ascribed to the Church to which the father is ascribed; if however, only the mother is
Catholic or both parents agree in requesting it, the Church to which the mother belongs,
without prejudice to particular law established by the Apostolic See."19
As amended, canon 10 §1 subsequently became canon 28 §1of the 1986 Schema
Codicis Iuris Canonici Orientalis (1986 SCICO).20 After the members of PCCICOR made
their observations to the entire schema of the future Code, the Coetus de expensione
observationum was entrusted with the review and revision. Regarding SCICO canon 28 §1,
a first observation noted how the norm differed from CIC canon 111 §1 with respect to the
possible ascription of a child to the Church of his or her Eastern Catholic mother. With no
explanation, the Coetus simply replied that the same possibility exists also in the Latin
canon. The observation, together with the study group's response, stated:
If the canon is compared with CIC can. 111, we note that CIC does not open
the possibility of a transfer to an Eastern rite, while the Eastern Schema
allows the possibility of a transfer to the Latin rite, if the mother, for
example, is Latin. Indeed, in the case of a ritual difference between the two
parents, the child will always be able to be baptized in an Eastern rite given
that one of the two parents belongs to it.
Response: In CIC 111, there is the same possibility.21
At the same time, as was the case during the denua recognitio of the 1984 Schema,
members of PCCICOR objected to the clause "or, if the parents agree requesting it,"
because it is contrary to Eastern tradition and since it would inevitably lead to the
diminishment of the Eastern Catholic Churches especially in the diaspora. Even if the
Latin Church was never named explicitly in the canon, one can almost certainly conclude
19
Nuntia, 22 (1986), p. 27 (c. 10 §1).
20
Nuntia, 24-25 (1987), p. 5 (c. 28 §1).
21
Nuntia, 28 (1989), p. 20 (c. 28 §1). While CIC c. 111 §1 is certainly not explicit, it could be implied that
the ascription to the Latin Church is only one of the options open to the parents and that ascription to the
Eastern Church of the mother is not excluded. See D. SALACHAS, "L’appartenenza giuridica dei fedeli a
una Chiesa orientale sui iuris o alla Chiesa latina, " in Periodica de re canonica, 83 (1994), p. 27. The
author states: "The Coetus de expensione observationum replied that ‘there is the same possibility in
CIC,’ which is true, since CIC c. 111 §1 does not seem to exclude that the parents of different rites (Latin
and Eastern) can mutually agree to choose that the children be baptized in the Eastern Church, to which
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from the observations that the Latin Church figured as a main protagonist in the context of
the Eastern norm's discussion and the remarks that implied the impoverishment of the
Eastern Catholic Churches would inevitably occur at the hands of another Church. The
reported proceedings list the following reasons for the members' objections:
1) We absolutely refute the present text that gives the two spouses the right
to ascribe the child to the rite of the mother. It is contrary to Eastern
tradition. Moreover, in countries of the West, such easiness could, in the
long run, lead to the suppression of our Church (1 member).
2) According to Eastern tradition, a child baptized in the Catholic or
Orthodox Church is ascribed, even in civil registries, to the rite of the father.
Once of age, he or she can ascribe themselves, servatis de iure servandis, to
another rite. Can. 28 and can. 29 are fatal to our Eastern Churches. "They
will condemn them, one day, in the West, to disappearance. (1 member).
3) In a definitive way, the clause will contribute to make the number of
members of the Eastern Catholic Churches decrease, because the parents
will opt for that Church which is geographically closer and more convenient
for them....
4) This freedom will lack little to generate, at the heart of the home, discord
and tension. The mother could try to impose her will on the husband and the
Church to which the mother belongs could find an opening to pressure her
to obtain ascription of the child to the Church to which she belongs. It
seems wiser to opt for the Church of the father, a decision that is more
consistent with the Eastern spirit. Law aims at the general good of the
community and not to favour one community at the expense of another. If
freedom is granted in this way to parents to decide on the rite of their
children, would it not be necessary, then, to recognize the right of children
once of age to choose the Church to which they want to belong? As for the
particular law that we want to safeguard, namely, "without prejudice to the
particular law enacted by the Apostolic See," it seems that it would not
resolve eventual controversies and would also give rise to abuses (1
member).
5) According to the age-old tradition of the Eastern Churches and especially
according to the mentality of the faithful, in marriage the wife always
follows the rite of the husband (1 member).
one of the two spouses belongs."
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Since the Coetus de expensione observationum saw no difference in these
observations from those that prior study groups had considered, the group decided to
confirm the previous decisions. The Coetus stated: "The proposals have been at the centre
of the deliberations of prior Coetus. Their work, described in Nuntia 22, p. 24, can only be
confirmed since the equality of the parents' rights is a self-evident fundamental principle.
In particular situations, the final clause provides sufficiently."22
Before the Eastern Code was promulgated, members of PCCICOR met for its
second plenary assembly in Rome from November 3-14, 1988. There were thirty-six
members in attendance.23 Already on November 5th, ten members presented a motion to
re-examine three canons, including SCICO canon 28. In proposing that a child must
always follow the rite of the father, the members stated regarding the contested SCICO
canon 28 §1: "The draft of these canons not only does not defend the flourishing of the
Eastern Churches, but it will become a source of permanent dangers - especially in Western
regions - to their survival."24 Obviously, the same issues were at play as had been made
known to the previous study groups. As a result of the animated discussion that took place
over several days, a majority of the members of PCCICOR voted in favour of supressing
the clause aut, si ambo parentes concordi voluntate petunt in SCICO canon 28 §1.25 No
further changes were made to the canon before the Schema novissimum was presented to
the Holy Father on January 28, 1989. However, as part of some "last changes" made to the
draft, the Holy Father himself decided to re-insert the clause aut si ambo parentes concordi
voluntate petunt before the canon was promulgated as CCEO canon 29 §1.26
Given the iter of CCEO canon 29 §1, it is abundantly clear that the Latin Church is
implied in its text and the context of the interritual matter it governs. If the Latin Church is
not already implied by the nature of the matter, the Explanatory Note only confirms such a
conclusion. Indeed, at times within PCCICOR, the Latin Church appears to be the only
other Church sui iuris consultors and members of PCCICOR were worried about as they
argued to safeguard Eastern traditions and to protect the Eastern Catholic Churches from
inevitable impoverishment. Notwithstanding the importance of these things, the legislator
22
For the members’ observations and this response of the Coetus de expensione observationum, see
Nuntia, 28 (1989), pp. 20-21 (c. 28 §1). As a result of another member’s observation, however, the
Coetus did change the beginning of SCICO canon 28 §1, which read "By baptism itself, one is ascribed
to the Church to which the father is ascribed." The amendment was made to take into account the
Eastern norm (now CCEO c. 30) which allows those who are fourteen years old to choose the Church of
ascription. Therefore, the Coetus modified SCICO canon 28 §1 to begin as it does in the promulgated
CCEO canon 29 §1. See Nuntia, 28 (1989), p. 21 (c. 28 §1).
23
Nuntia, 29 (1989), pp. 24-25.
24
Nuntia, 29 (1989), p. 36.
25
Nuntia, 29 (1989), p. 40.
26
Nuntia, 31 (1990), p. 38 (c. 28 §1).
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decided to allow ascription to the Church of the mother if the parents mutually agree. In
this way, the legislator has meant to underscore in CCEO canon 29 §1 the fundamental
equality of spouses in making the choice regarding their child's ascription. Now, some
would argue that the same is foreseen, but apparently only for the Latin mother, in CIC
canon 111 §1. If the legislator really wanted the provisions of the Codes to be mutually
aligned, should CIC canon 111 §1 not be interpreted also to allow a child to be ascribed to
the Church of an Eastern mother? Although such an interpretation could be implied, an
authentic interpretation of CCEO canon 29 §1 would be helpful here as a doubt has been
raised in that specific context. Moreover, CCEO canon 29 §1 is an Eastern norm and, as
seen from the outset, the draftsmen did not want to legislate directly for Latins in the area
of ascription. However, it is clear that, in an interecclesial marriage (Latin-Eastern), an
Eastern mother could now invoke CCEO canon 29 §1to have her child ascribed to her
Eastern Church if her husband agrees. Then, given the aids to canonical interpretation in
CIC canons 17 and 19, it could also be argued that, as a later norm established for similar
circumstances, CCEO canon 29 §1 does clarify the doubt and otherwise fill the legislative
gap in CIC canon 111 §1.
Therefore, in accord with CCEO canon 29 §1, a child who is not yet fourteen years
old is to be ascribed to the Church sui iuris of his or her father. Being an Eastern norm, the
reference to "Church sui iuris" here intends one of the Eastern Churches. If only the
mother is Catholic, the child is to be ascribed to the Church sui iuris of the mother. Here,
again, "Church sui iuris" means Eastern Catholic Church. However, where the Catholic
parents mutually agree, they can opt to ascribe their child to the Church sui iuris of the
mother. Since this option presupposes an interecclesial marriage, the expression "Church
sui iuris" implicitly intends either another of the Eastern Catholic Churches or even the
Latin Church. The latter possibility is what caused so much debate among the consultors
and members of PCCICOR. However, with the clause salvo iure particulari a Sede
Apostolica statuto, the legislator has allowed for particular law (ius speciale and ad
tempus) that could be established to handle circumstantiated perils to Eastern Catholic
traditions or Churches caused by the provisions of CCEO canon 29 §1.27
With regard to CCEO canon 29 §2, its provisions are both new and unique to the
Eastern legislation. They establish:
If, however, a person who has not yet completed fourteen years of age:
1° is born of an unwed mother, he or she is ascribed to the Church
sui iuris to which the mother belongs;
27
In his discourse presenting the Eastern Code, John Paul II indicated that he would be happy to consider
such a particular law (ius speciale and ad tempus) should the circumstances warrant it. See AAS, 83
(1991), p. 492.
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2° is born of unknown parents, he or she is ascribed to the Church
to which belong those to whose care he or she has been
legitimately entrusted; if, however, it is a case of an adoptive
father and mother, §1 is to be applied;
3° is born of non-baptized parents, he or she is ascribed to the
Church sui iuris to which belongs the one who has undertaken
his or her education in the Catholic faith.
Within PCCICOR, the Coetus de Ritibus prepared a different first draft of this
norm. Canon 7 §2 of the proposed norms stated: "A child born after the father's death and
an illegitimate child, unless acknowledged publically by the father, belongs to the Church
of the mother; however, deserted and abandoned children are ascribed to the Church of the
adoptive parents or guardians or, in their absence, to the Church of the Hierarch to whom
those entrusted with their care are subject."28
The identical formulation became canon 10 §2 of the 1984 Schema.29 During the denua
recognitio of canon 10 §2, consultative bodies made a number of redactional observations
which the secretariat of PCCICOR considered and then proposed a new formulation. The
expert study group agreed "to accept the observations regarding §2, whose text is
simplified along the lines proposed by the secretariat." Canon 10 §2 now stated: "A child
born of an unwed mother is ascribed to the Church to which the mother belongs; a child
born of unknown parents is ascribed to the Church to which belong those to whose care he
or she has been legitimately entrusted; if, however, it is a case of an adoptive mother and
father, §1 is applied."30
Canon 10 §2 subsequently became SCICO canon 28 §2.31 When the 1986 Schema
was reviewed by the members of PCCICOR, the Coetus de expensioneobservationum
reformulated SCICO canon 28 §2 into three numbers. The added third number had been
SCICO canon 29 §2 and was more logically incorporated here. As reformulated, SCICO
canon 28 §2 was already identical to the promulgated CCEO canon 29 §2.32
28
Nuntia, 3 (1976), pp. 49-50 (c. 7 §2). Regarding this provisional norm, the study group stated: "We
discussed a lot so as to know to which particular Church children would belong who were born in an
Eastern region, but raised by missionaries or religious of the Latin rite. To underline the importance of
the local Church, the group added the last phrase: ‘or to the Church of the hierarch to whom those who
are taking care of those children are subject’."
29
Nuntia, 19 (1984), p. 22 (c. 10 §2).
30
Nuntia, 22 (1986), pp. 25-27 (c. 10 §2).
31
Nuntia, 24-25 (1987), p. 5 (c. 28 §2).
32
Nuntia, 28 (1989), p. 22 (c. 28 §1).
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To offer a commentary on CCEO canon 29 §2, it constitutes a part of Eastern law
that, barring an authoritative intervention on the part of the legislator, does not regard the
Latin Church directly unless, in individual cases, the Eastern norms are invoked to fill
legislative gaps regarding the same matters in the Latin Church (CIC c. 19).33 That does
not exclude, however, that CCEO canon 29 §2 can implicitly involve the Latin Church.
One presumes that the unwed mother, to whom CCEO canon 29 §2, 1° is addressed, is
Eastern and therefore that her Church would be one of the Eastern Catholic Churches.
However, besides the Eastern Catholic Churches, the Latin Church can be implied by the
expression "Church sui iuris" in either numbers 2 or 3 of CCEO canon 29 §2. To protect
the local Eastern Church, the Coetus de Ritibus had proposed to have children born of
unknown parents, but raised by Latin missionaries or religious, ascribed to the Church of
the Eastern hierarch to whom they were subject. Since their formulation of the norm never
survived within PCCICOR, it follows that children born of unknown or non-baptized
parents, but raised in an Eastern region by missionaries, religious or other faithful of the
Latin Church, would be ascribed to the Latin Church. Evidently, that would be so even if
the children were baptized according to an Eastern rite. This interpretation is also
confirmed by the Coetus de expensione observationum in the context of an observation
made regarding SCICO canon 29 §2 (now CCEO c. 29 §2, 3°). One member of PCCICOR
inquired: "We wonder if, when the educator in the Catholic faith is of the Latin rite, the
newly baptized must be ascribed tout seul to the Latin rite." To this question, the expert
study group simply responded: "It is obvious."34 To sum up, then, while the context of the
CCEO canon 29 §2 certainly foresees ascription in most cases to an Eastern Catholic
Church sui iuris, it does not exclude ascription to the Latin Church in the other cases
mentioned.
2 - Ascription of Persons Who Are at Least 14 Years Old (CCEO c. 30)
Regarding the ascription of anyone who has completed fourteen years of age, both
the Eastern and Latin Codes correspond in establishing the general rule that the person is
free to choose any Church sui iuris to which he or she is ascribed by virtue of baptism.
Like CIC canon 111 §2,35 CCEO canon 30 provides:
33
In support of this argument, that is, filling the legislative gaps in the Latin Code that are covered by
CCEO c. 29 §2, see also C. G. FÜRST, "Interdipendenza del diritto canonico latino ed orientale," in
Kuriakose Bharanikulangara (ed.), Il Diritto Canonico Orientale nell’ordinamento ecclesiale, Vatican
City, Libreria Editrice Vaticana, 1995, p. 30 (= FÜRST, "Interdipendenza").
34
Nuntia, 28 (1989), p. 24 (c. 29 §2).
35
CIC c. 111 §2 states: "Anyone to be baptized who has completed the fourteenth year of age can freely
choose to baptized in the Latin Church or in another ritual Church sui iuris; in that case, the person
belongs to the Church which he or she has chosen." As will be seen, the clause "with due regard for
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Anyone to be baptized who has completed the fourteenth year of age can
freely select any Church sui iuris in which he or she is ascribed by virtue of
baptism received in the same Church, with due regard for particular law
established by the Apostolic See.
Within PCCICOR, the Coetus de Ritibus proposed the first draft of this norm as
provisional canon 12. It stated: "Non-Christians receiving baptism can choose any
particular Church." The Relator provided the following rationale:
This is substantially can. 12 of C.S., but presented in a different
formulation.... The problem was raised regarding non-Christians who come
to the Catholic faith thanks to the preaching of Latin missionaries in Eastern
territories. In principle, the new Christians are free to choose the Church to
which they will belong. However, practically, are they not under the
influence of those on whom they are dependent for their belonging to the
faith? One would normally find that they choose to belong to the Church of
these missionaries. Still, is it not more normal and more in the ecumenical
spirit that these new Christians be incorporated as members of their local
Eastern Catholic Church? To allow them full liberty to choose a Church
other than the local Church, does that not uproot them from their culture and
their own tradition?
To reconcile this freedom of choice of a particular Church with what would
normally be done, certain consultors had proposed adding, at the end of the
canon, an exhortation addressed to these new Christians to choose the
Eastern particular Church in the majority in the region where they live.
The study group deemed that it is up to missionaries themselves to direct the
free choice of these new Catholic Christians towards the local Eastern
particular Church in the majority in the region.36
As a result, the Coetus proposed a text addressed to missionaries and sent it to another
study group that was dealing with canons regarding the evangelization of peoples. In fact,
the text would become part of CCEO canon 588.37 Almost identical to the promulgated
text, it read: "However, care should be taken lest anything should be recommended that
particular law established by the Apostolic See" was added to the Eastern norm to take into account
Eastern countries where personal statutes do not allow such choices to be made until persons reach the
age of majority.
36
Nuntia, 3 (1976), pp. 51-52 (c. 12).
37
Nuntia, 3 (1976), p. 52 (c. 12).
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might prevent their ascription in the Church more appropriate to their culture."38
As for provisional canon 12, it became canon 15 of the 1984 Schema, which read:
"Non-Christians receiving baptism can choose any Church sui iuris."39 During the denua
recognitio of the 1984 Schema, consultative bodies proposed that the formulation of canon
12 be replaced with that of CIC canon 111 §2. The expert study group agreed so that
canon 15 now read: "Anyone to be baptized who has completed the fourteenth year of age
can freely choose any Church sui iuris to which he or she is also ascribed by virtue of
baptism." Canon 15 subsequently became SCICO canon 29 §1.40 Among the observations
received from members of PCCICOR regarding the 1986 Schema, only one concerned
SCICO canon 29 §1. The member noted that its formulation could be improved so as to
avoid the possibility that a person could be baptized in one Church only to choose to be
ascribed in another. The Coetus de expensione observationum agreed by replacing the
words "to which he or she is also ascribed by virtue of baptism" with "to which he or she is
ascribed by virtue of baptism received in that same Church."41
At the second plenary assembly of PCCICOR, the motion that ten members had
made to require a child to follow the rite of the father also included a motion to reconsider
the age of fourteen for the choice of a rite. In certain Middle Eastern countries, that
disposition would run counter to the civil law (personal statutes), which permit such a
choice only when one reaches the age of majority. Eventually, to resolve this question, a
member proposed that the clause salvo iure particulari a Sede Apostolica statuto be added
at the end of SCICO canon 29 §1 in order to overcome the problem raised by the age
limit.42 A majority of the members of PCCICOR voted in favour of the proposal and no
further amendments were made before the Eastern norm was promulgated as CCEO canon
30.
When CCEO canon 30 and CIC canon 111 §2 are taken together, it is clear that
they establish the same general rule for the entire Catholic Church. Anyone to be baptized
who is fourteen years of age can freely select the Church sui iuris, Eastern or Latin, to
which he or she is to be ascribed by virtue of baptism received in that same Church. The
exception clause in the Eastern canon was added ultimately to accommodate certain
Eastern regions where civil law requires a higher age limit. The only interpretative
difficulty in this area arises, not on account of CCEO canon 30, but because of the other
Eastern canon related to it. Characteristic of the Eastern Code, CCEO canon 588 states:
38
See Nuntia, 17 (1983), p. 13 (c. 7 §2).
39
Nuntia, 19 (1984), p. 22 (c. 15).
40
Nuntia, 24-25 (1987), p. 5 (c. 29 §1).
41
Nuntia, 28 (1989), p. 24 (c. 29 §1).
42
Nuntia, 28 (1989), pp. 46-47.
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Catechumens are free to be ascribed to any Church sui iuris, in accord with
the norm of can. 30; however, care should be taken (caveatur) lest anything
should be recommended that might prevent their ascription in the Church sui
iuris more appropriate to their culture.
Since CCEO canon 588 is an Eastern canon, one has to presume that it is addressed
only to the Eastern Catholic Churches. However, given the evident interecclesial context
and the Explanatory Note, it is clear that the expression "Church sui iuris" also includes the
Latin Church. Therefore, when dealing with catechumens, authorities of one Eastern
Catholic Church must abide by CCEO canon 588 in not recommending anything that might
prevent their ascription to another Eastern or even the Latin Church. However, does
CCEO canon 588 qualify CIC canon 111 §2 just as it does CCEO canon 30? Eastern
canon 588 makes no reference to CIC canon 111 §2 nor does it seem to be addressed to
Latin authorities. Yet, as mentioned above, the Coetus de Ritibus proposed the draft of
CCEO canon 588 mainly because of Latin missionaries in Eastern territories. Then, during
the denua recognitio of the same draft, a consultative body proposed that the caveatur
clause be replaced with the following, more positive formulation: "However, it is
recommended that a catechumen be ascribed to the rite that is more appropriate to his or
her culture." The expert study group replied: "This is not accepted and we remain in line
with what is referred to in the Praenotanda to the schema, p. 5: namely, it regards an
'admonition made to missionaries of any rite to safeguard fundamental human rights.'"43
That would seem to imply that missionaries of any rite, including the Latin rite, are bound
by CCEO canon 588. However, the unique Eastern canon 588 is not addressed to the Latin
Church nor does it oblige it expressly. Without the intervention of the legislator to apply
CCEO canon 588 directly also to the Latin Church, the Eastern norm could still be invoked
in individual cases, by way of CIC canon 19, to fill the Latin Code's legislative gap in the
same context of choosing one's Church of ascription.
3 - Delict of Inducing Someone to Transfer to Another Church Sui Iuris (CCEO c. 31)
Eastern canon 31 basically repeats CS canon 7, which stated: "No one is to presume
to induce in any way any faithful to assume another rite." According to CS canon 15, that
norm also obliged Latins. As mentioned earlier, the Coetus de Ritibus was deliberate in
not proposing ascription norms for the Latin Church. Given that the Latin Code has no
parallel norm, CCEO canon 31 is unique to the Eastern Code. It establishes: "No one is to
presume to induce in any way the Christian faithful to transfer to another Church sui iuris."
Does the canon nevertheless bind the Latin faithful and does it do so because of the
expression "Church sui iuris" or for some other reason?
43
Nuntia, 17 (1983), p. 13 (c. 7 §2).
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To answer these questions, a review of the canon's legislative history within
PCCICOR is a helpful, first step. The Coetus de Ritibus proposed the first draft of this
Eastern norm as canon 6 among its provisional canons regarding the Eastern rites. The
study group's relator stated: "Respect for the prescript addressed to each of the faithful to
preserve his/her own rite obliges him/her, as a consequence, not to incite someone to
abandon his/her rite in order to adopt another. The group believed it good to repeat canon
7 of CS here, retaining it as is...."44 Canon 6 became canon 22 of the 1984 Schema.45
During the denua recognitio of the 1984 Schema, the expert study group stated: "The fact
that this norm from the law in force (can. 7 of CS) has been retained in the schema has
encountered favorable judgment on the part of many and received a particular placet." At
the same time, however, the experts modified the norm's wording to state: "No one is to
presume to induce in any way the Christian faithful to transfer to another Church sui
iuris."46 Amended canon 22 was already identical to the promulgated CCEO canon 31.
To comment on CCEO canon 31, it is a unique norm that is certainly binding on
Eastern Catholics. To give one example in illustration of the prescript, no Maronite
Catholic is to induce another Catholic, of the Melkite or even the Latin Church, to transfer
to the Maronite Church. To apply the sense and meaning of the Explanatory Note, the
Latin Church is implicitly involved, by analogy, as one of the Churches sui iuris.
However, in the case of CCEO canon 31, the Eastern norm also expressly obliges the Latin
faithful by virtue of CCEO canon 1465, that establishes the penal sanction and explicitly
names the Latin Church with respect to any violation of the delict mentioned in CCEO
canon 31. Eastern canon 1465 states:
A person who, ascribed to any Church sui iuris, including the Latin Church,
and exercising an office, a ministry or another function in the Church, has
presumed to induce any member of the Christian faithful whatsoever to
transfer to another Church sui iuris contrary to can. 31, is to be punished
with an appropriate penalty.
Therefore, while CCEO canon 31 does not bind Latin Catholics in and of itself or because
it contains the expression "Church sui iuris", it does oblige Latin Catholics because of
CCEO canon 1465, which explicitly refers to persons of "any Church sui iuris, etiam
Ecclesiae latinae." Clearly, it effectively includes Latins among those persons who could
have violated CCEO canon 31. For example, then, no Latin Catholic is to induce another
Catholic, of the Maronite or Melkite Churches sui iuris, to transfer to the Latin Church.
44
Nuntia, 3 ( 1976), p. 48 (c. 6).
45
Nuntia, 19 (1984), p. 24 (c. 22).
46
Nuntia, 22 (1986), p. 37 (c. 22).
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4 - Transfer to Another Church Sui Iuris (CCEO c. 32)
Both the Eastern and Latin Codes establish the general rule that, without the
permission of the Roman Apostolic See, no one can transfer to another Church sui iuris.
Although CIC canon 112 §1, 1° makes no explicit mention of validity, the permission is a
true licentia and only after one will have obtained it (obtinuerit) will the transfer occur.47 If
there were still any doubt, one would only need to have recourse, by way of CIC canon 17,
to the parallel text in the later Eastern norm which explicitly speaks of validity.48 Parallel
to Latin canon 112 §1, 1°, CCEO canon 32 §1 states: "No one can validly transfer to
another Church sui iuris without the consent of the Apostolic See." Given that the Codes
establish mutually corresponding norms, the transfer among the Churches sui iuris, for
which the Holy See's consent is necessary, must include the Latin Church. It is evident
from the nature of the matter and the Explanatory Note only affirms such an interpretation.
The only problem regarding the meaning to be given the expression "Church sui
iuris" arose in connection with §2 of Eastern canon 32.49 It states: "In the case of Christian
faithful of an eparchy of a certain Church sui iuris who petitions to transfer to another
Church sui iuris which has its own eparchy in the same territory, this consent of the
Apostolic See is presumed, provided that the eparchial bishops of both eparchies consent to
the transfer in writing." As no norm parallel to CCEO canon 32 §2 was contained in CIC
canon 112, the Secretariat of State issued a special rescript ex audientia Sanctissimi dated
November 26, 1992. The rescript stated:
According to canon 112 §1, 1° of the Code of Canon law, anyone is
forbidden, after receiving baptism, from being ascribed to another ritual
Church sui iuris unless consent for it is given by the Apostolic See.
Concerning this, having accepted the opinion of the Pontifical Council for
Interpretation of Legislative Texts, the Supreme Pontiff John Paul II has
47
Cf. M. THÉRIAULT, "Canonical Questions Brought about by the Presence of Eastern Catholics in Latin
Areas in the Light of the Codex Canonum Ecclesiarum Orientalium," in Ius Ecclesiae, 3 (1991), p. 212.
The author stated: "It seems, prima facie, that Latins can transfer illicitly but validly to an Eastern
Catholic Church without the licentia of the Holy See, but that consensus of the Holy See is required ad
validitatem in the case of Eastern Catholics who wish to transfer to another Eastern Catholic Church or to
the Latin Church."
48
See FÜRST, "Interdipendenza," p. 29; and P. SZABÓ, "L’ascrizione dei fedeli orientali alle Chiese sui
iuris. Lettura dello ius vigens nella diaspora," in P. GEFAELL (ed.), Cristiani orientali e pastori latini,
Milan, Giuffrè Editore, 2012, p. 193. Szabó states: "For the majority of canonists, this doubt (regarding
CIC c. 112, §1, 1°) has been overcome with the entry into force of CCEO can. 32 §1, in which it is
expressly said that the intervention of the competent authority is a condition for the validity of the
transfer. In this way, the Eastern norm would function as an implicit, authentic interpretation."
49
For a study of this entire question, see J. ABBASS, "Transfer to Another Church Sui Iuris, Including the
Latin Church (CCEO c. 32 §2)," in Jur, 72 (2012), pp. 641-665.
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established that consent of that kind can be presumed whenever the
Christian faithful of the Latin Church have petitioned for the transfer to
another ritual Church sui iuris, which has an eparchy in the same territory,
provided the diocesan bishops of both dioceses consent to it in writing.50
Since these Eastern and Latin norms effectively appeared to be fully reciprocal, a
majority of canonists argued that, for transfers to be valid and the Holy See's consent
presumed, Latins can transfer to an Eastern Church and Easterners can transfer to another
Church sui iuris, including the Latin Church, if the Churches have dioceses (eparchies) in
the same territory and the bishops concerned consent in writing.51 However, in 1993,
Marco Brogi, who was then Undersecretary of the Congregation for Eastern Churches,
argued that, while the rescript allowed for transfers from the Latin to an Eastern Catholic
Church sui iuris, a Latin bishop who intends to receive an Easterner who wants to transfer
to the Latin Church could not invoke it.52 Stressing the autonomous nature of each code,
Brogi would not interpret any Eastern norm to concern the Latin Church unless it were
explicitly named. On the basis of this restrictive interpretation, CCEO canon 32 §2 could
only be invoked in cases of Easterners transferring from one Eastern Church to another
Eastern Church. Consequently, anyone wishing to transfer validly from an Eastern Catholic
Church to the Latin Church would still need to petition the Holy See. For many years, this
has been the position and the practice followed at the Congregation for Eastern Churches.
Given the Pontifical Council's Explanatory Note, this practice may well change but, before
any wothwhile commentary regarding CCEO canon 32 §2 can be made, a review of its
legislative history is indispensable.
Within PCCICOR, the Coetus de Ritibus proposed the first draft of Eastern canon
32, to replace CS canon 8, and it appeared as canon 8 of the 1976 provisional canons on the
50
AAS, 85 (1993), p. 81.
51
See D. SALACHAS, "Problematiche interrituali nei due Codici orientale e latino," in Apollinaris, 67
(1994), p. 644; FÜRST, "Interdipendenza," pp. 30-31; J. ABBASS, Two Codes in Comparison, Rome,
Pontificio Istituto Orientale, 2007, p. 287; IDEM, "Interrelationship," p. 18; IDEM, "CCEO and CIC in
Comparison," in G. NEDUNGATT (ed.), A Guide to the Eastern Code: A Commentary on the Code of
Canons of the Eastern Churches, Rome, Pontificio Istituto Orientale, 2002, pp. 890-891; NEDUNGATT,
"Churches and Rites," pp.121-122; and L. LORUSSO, Gli orientali cattolici e I pastori latini:
Problematiche e norme canoniche, Rome, Pontificio Istituto Orientale, 2003, pp. 72-73.
52
M. BROGI, "Licenza presunta della Santa Sede per il cambiamento di Chiesa sui iuris," in Revista
Española de Derecho Cánonico, 50 (1993), pp. 665-666. The author states: "As for the terminology, that
used in CCEO is all Eastern: ‘ecclesia sui iuris’, ‘eparchia’, ‘episcopi eparchialis’. However, the
terminology of the Rescript is twofold: Latin when it refers to the Latin Church - ‘Ecclesiam ritualem sui
iuris’, ‘dioecesis’, ‘episcopi dioecesani’ - and eastern (‘eparchia’) when it refers to the Church ‘ad quem’,
which obviously cannot be other than Eastern, and it is rather this precise detail that dispels what had
appeared to me to be a minor uncertainty in the text: it indicates, in fact, that the relative pronoun ‘quae’
refers not to the nearby ‘Ecclesia latina’ but to the more distant ‘Ecclesia ritualis sui iuris’, which is
necessarily Eastern."
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Eastern rites.53 Draft canon 8 stated:
§1. No one can validly transfer to another particular Church without the
consent of the Apostolic See.
§2. However, the consent of the Apostolic See is presumed, if the Hierarchs
(Heads) of the Churches from which and to which the transfer is made, for a
grave reason, consent in writing.54
Subsequently, draft canon 8 appeared as canon 11 of the 1984 Schema.55 The only
change in the formulation was that "Church sui iuris" replaced the expression "particular
Church."56 During the denua recognitio of the 1984 Schema, four consultative bodies
proposed that the transfer cases in which the consent of the Holy See is presumed ought to
be handled by way of a petition for the consent of the two bishops concerned rather than
the heads of each Church sui iuris. One other consultative body simply requested the
omission of §2 of canon 11 because "it would open the door to innumerable abuses." To
these observations, the special study group replied:
The study group has left §1 unchanged. After a careful examination in three
rounds, §2 has been limited only to cases in which it is a question of two
eparchial bishops of a different rite, who have jurisdiction in the same
territory. Indeed, in other cases, §2 cannot be applied because it would entail
for the Easterner, who wishes to transfer to another rite, the rather
disconcerting necessity of obtaining a written consent from an eparchial
bishop to whom he is subject and who does not belong to the same Church
sui iuris (e.g. an Easterner, subject to a Latin bishop, who wishes to transfer
to another Eastern Church). Given all this and to avoid any ambiguity, the
text of §2 has been redacted as follows, keeping in mind that a "licentia
praesumpta" is a real "licentia" and that §1 is, therefore, observed. §2 is the
following:
§2. Attamen in casu christifidelis eparchiae alicuius Ecclesiae sui iuris, qui
transire petit ad aliam Ecclesiam sui iuris, pro qua in eodem territorio
propria eparchia constituta est, haec licentia Sedis Apostolicae
53
CS c. 8 stated: "Without the consent of the Apostolic See, no one can validly transfer to another rite or,
after a legitimate transfer, return to the former."
54
Nuntia, 3 (1976), p. 50 (c. 8).
55
Nuntia, 19 (1984), p. 22 (c. 11).
56
By a vote of 6 in favor, 5 against and 2 abstentions, PCCICOR’s Coetus centralis effected this change
"pro bono pacis", since the expression "particular Church" was used in the West to mean diocese. See the
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praesumitur, dummodo Episcopi eparchiales utriusque eparchiae ad
transitum scripto consentiunt.57
As a result, except for minor redactional changes to the text, canon 11 §2 became
SCICO canon 30 §2.58 When the 1986 SCICO was sent to members of PCCICOR for their
observations, two members stated that SCICO canon 30 §2 seemed unnecessary. Two
reasons were stated:
1) The change of rite must be granted only in exceptional cases and for truly
serious reasons; otherwise, in the present social circumstances, it is gravely
prejudicial to the faithful of the Eastern Churches who are not very
numerous and dispersed among the faithful of other rites. (1 member).
2) If a faithful is permitted to be ascribed to another Church, simply because
his or her Church is unable to take care of him or her, that will obstruct the
development of this Church. The "Big brother" mentality of some Latin
bishops could even suffocate (stifle) some Eastern Churches. (1 member).
The Coetus de expensione observationum replied: "These are questions belonging to the
executive power; regarding the proponents' pastoral concern, the 'Episcopus a quo' (the
bishop of the Church from which the faithful is transferring) makes provision there."59 As
a result, SCICO canon 30 §2 went unchanged and, without any further redactional
amendments either by PCCICOR or the legislator, the norm was promulgated as CCEO
canon 32 §2.
Given this legislative history, a commentary can now be offered regarding CCEO
canon 32 §2 and its correct interpretation especially in the light of the Pontifical Council's
Explanatory Note. In the test applied to determine whether or not the norm also implicitly
regards the Latin Church, the norm's text and context must be considered in accord with
CCEO canon 1499. First, the norm does contain the expression "Church sui iuris" and,
among the Catholic Churches to which an Easterner might petition to transfer, the Latin
Church is one, as it is a Church sui iuris. The Explanatory Note also confirms this
interpretation by analogy. Secondly, CCEO canon 32 §2 is part of a chapter of norms
concerning ascription, which by their very nature (ex ipsa rei natura) concern juridical
relations with the different Catholic Churches sui iuris. The context, then, also meets the
test for implicitly involving the Latin Church. Finally, if a doubt were to remain after
Praenotanda to the 1984 Schema in Nuntia, 19 (1984), p. 5.
57
Nuntia, 22 (1986), pp. 27-28 (c. 11).
58
Nuntia, 24-25 (1987), p. 5 (c. 30 §2).
59
For these two motions and the Coetus’ response, see Nuntia, 28 (1989), pp. 24-25 (c. 30 §2).
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examining the norm's text and context, the purpose of the law and the mind of the
legislator could be considered in accord with CCEO canon 1499. In an application of the
principle of subsidiarity, the purpose of CCEO canon 32 §2 is to allow for valid transfers
from an Eastern Church to another Church sui iuris without the intervention of the Holy
See. Assessing the mind of the legislator is not difficult here as the tenor of the
Explanatory Note undoubtedly supports including the Latin Church as another of the
Churches sui iuris to which an Easterner might petition to transfer. In addition, the reported
proceedings of PCCICOR are of some help in determining the mens legislatoris as they
report what the Eastern draftsmen essentially intended when formulating the Eastern norm.
True, the legislative history of CCEO canon 32 §2 provides no explicit evidence that the
expression "Church sui iuris" meant also to include the Latin Church. However, as George
Nedungatt has stated, this fact may well have been taken for granted by study group II
since, in elaborating such a norm, the members would hardly have conceived of finding
anywhere in the world that overlapping jurisdictions do not involve the Latin Church.60
Moreover, it is obvious from the observations made by the members of PCCICOR during
the review of the 1986 SCICO that the Latin Church still figured among their concerns,
whether because of the alleged "big brother" mentality of some bishops of the Latin Church
or because of the risk of diminishment transfers to it posed for the Eastern Churches.
To apply this interpretation, then, to a concrete case, let us suppose that an Eastern
Catholic, who belongs to the Maronite Church and lives in Montréal, wishes to transfer to
the Latin Church. According to CCEO canon 32 §2, the transfer would be valid and the
consent of the Holy See presumed if the Easterner petitioned the Maronite and Latin
bishops in Montréal and they consented in writing. A question might arise in the case of a
Maronite, who lives in Vancouver, and wishes to transfer to the Latin Church. The only
Maronite bishop in Canada is resident in Montréal but he has jurisdiction over all Maronite
faithful in the country. Because CCEO canon 32 §2 requires that both eparchies be in the
same territory, does it mean the territory must coincide exactly? Neither the canon nor the
Explanatory Note addresses this question. However, to insist that the territories correspond
exactly, would render the Eastern norm mostly inapplicable since a majority of the Eastern
Catholic jurisdictions in Canada and the United States, at least, extend over more than one
diocesan territory. Therefore, in both cases, the consent in writing of the Maronite and the
60
NEDUNGATT, "Churches and Rites," pp. 121-122. The author writes: "But is the Latin Church included
here among the Churches sui iuris? Opinions are divided. The inclusion of the Latin Church was taken
for granted when the motion about overlapping jurisdiction was proposed in the PCCICOR Study Group
- indeed, there is very little place on earth where the Latin Church has no territorial jurisdiction. But §2
does not contain the usual formula etiam Ecclesiae latinae. This omission gave rise to a dubium iuris.
The question had to await a rescript of the Secretariat of State, ex audientia Sanctissimi, dated 26
November 1992. But, curiously enough, in this rescript there is no reference to CCEO c. 32 §1 but only
to CIC c. 112 §1, 1°. However, the whole idea and phraseology is of CCEO, like Isaac hearing Jacob’s
voice and feeling Esau’s hands. The rescript speaks explicitly only of the transfer from the Latin Church,
and not to it, but this latter must be interpreted to be included from analogy."
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corresponding Latin bishop would be sufficient for the Easterner to transfer validly to the
Latin Church. Nor should the risk of diminishment be a concern just because the Holy
See's consent is not required since, as the Coetus de expensione observationum indicated
during the review of the 1986 SCICO, it is up to the Maronite bishop, if he deems it
necessary, not to consent to the transfer.
5 - Transfer of the Wife to the Husband's Church Sui Iuris (CCEO c. 33)
CIC canon 112 §1, 2° foresees that, at the celebration of or during marriage, either
spouse can transfer to the ritual Church sui iuris of the other spouse.61 At variance with the
Latin norm, CCEO canon 33 only allows for the transfer of the wife to the husband's
Church sui iuris in these circumstances. The Eastern norm basically repeats CS canon 9
and reflects the Eastern tradition that a wife follows the rite of her husband. CCEO canon
33 states:
A wife is free to transfer to the Church sui iuris of the husband in the
celebration of or during the marriage; when the marriage has ended, she can
freely return to the original Church sui iuris.
As in the case of CCEO canon 29, the legislative history of CCEO canon 33 is
particularly helpful in determining whether or not the Latin Church is included in the
norm's first use of the expression "Church sui iuris."62 Within PCCICOR, the Coetus de
Ritibus proposed a first draft of the Eastern norm which essentially repeated CS canon 9.63
The provisional norm became canon 12 of the 1984 Schema.64 However, the Eastern norm
now followed the Latin formulation of CIC canon 112 §1, 2°, allowing the spouses the
equal right to transfer. During the denua recognitio of the 1984 Schema, four consultative
bodies argued for a return to the original draft, that repeated CS canon 9, but, after a rather
long debate, the members voted in favour of keeping the text as formulated in the 1984
Schema. As they had done in the draft of CCEO canon 29 §1, they also added the clause
nisi ius particulare a Sede Apostolica statum aliud fert. As amended, canon 12 now stated:
"A spouse is free to transfer to the Church of the other spouse at the time of the marriage or
61
CIC c. 112 §1, 2° states: "After the reception of baptism, the following are enrolled in another ritual
Church sui iuris: a spouse who, at the time of or during marriage, has declared that he or she is
transferring to the ritual Church sui iuris of the other spouse; when the marriage has ended, however, the
person can freely return to the Latin Church."
62
Of course, if it were a Latin wife who, after the marriage, returned to her original Church, she would, in
any event, follow CIC c. 112 §1, 2°.
63
Nuntia, 3 (1976), p. 50 (c. 9).
64
Nuntia, 19 (1984), p. 22 (c. 12).
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during it, unless particular law established by the Apostolic See provides otherwise; but
when the marriage has ended that spouse can freely return to the original Church."65
Canon 12 subsequently became SCICO canon 31.66 Practically all the observations
made by members of PCCICOR with regard to this canon, requested a return to the norm in
CS , by replacing the word coniugi with mulieri. The following reasons, together with the
negative response of the Coetus de expensione observationum, are reported:
1) It is better to establish, first of all, a restrictive norm (excluding the vir)
as in CS can. 13 and then indicate the way for other possibilities established
by the Holy See with a ius particulare....
2) The same danger referred to regarding can. 28 (CCEO c. 29) could repeat
itself in this case, with the same combination of tension and dissension in
the family. These causes of friction could surpass the family circle itself and
poison the good relations that must prevail among the different Churches.
We add that it would be the rather little Churches to suffer because of this
freedom and to lose definitively in number and quality. Therefore, it seems
to me wiser to close this door and adopt the old canon.
3) We must avoid the danger that Easterners living in Western regions
become absorbed, after a brief time, by the Latin faithful.
Response: It is necessary to respect, as much in the East as in the West, the
more fundamental rights of the spouses.67
At the second plenary assembly of PCCICOR, the same motion that ten members
had made to require a child to follow the rite of the father also included a request to reexamine SCICO canon 31 because, as the motion stated: "The rite of the husband, on the
occasion of marriage, must not be changed."68 Once again, the animated discussion
extended over six days (November 5-10, 1988). As in the case of SCICO canon 28 §1,
which allowed for ascription of a child to the Church of the mother, the discussion around
SCICO canon 31, allowing a husband to transfer to the Church of his wife, insisted that
these norms were contrary to Eastern traditions and that they threatened the survival of the
Eastern Catholic Churches especially in the diaspora. On the other hand, it was argued that
65
For these developments during the denua recognitio of canon 12, see Nuntia, 22 (1986), pp. 28-30
(c.12).
66
Nuntia, 24-25 (1987), p. 6 (c. 31).
67
Nuntia, 28 (1989), pp. 25-26 (c. 31).
68
Nuntia, 29 (1989), p. 36.
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the canons merely recognized more fundamental human rights in the equality of the
spouses.69 In the end, a majority of the PCCICOR members voted in favour to amend
SCICO canon 31 and effectively return to the ius vigens in CS canon 9. The new text
stated: "A wife is free to transfer to the Church of the husband in the celebration of or
during the marriage; when the marriage has ended, she can freely return to the original
Church." Except for the addition of sui iuris after each mention of "Church",70 the canon
remained unchanged and the legislator promulgated it as CCEO canon 33.
According to CCEO canon 33, unlike CIC canon 112 §1, 2°, only a wife has the
legal right to transfer to the Church sui iuris of her husband in the celebration of or during
the marriage.71 Evidently, the argument that claimed giving the Eastern husband that right
represented a threat to the survival of the Eastern Catholic Churches and was contrary to
their traditions won out over the argument in favour of the equality rights of the spouses.
However, since the opposite result was reached in CCEO canon 29 §1, it cannot be argued
that the legislator intended in any way to diminish the fundamental right of equality
between spouses. What is clear from the legislative history of CCEO canon 33 is that
consultors and members of PCCICOR specifically had the Latin Church in their sights
when criticizing the formulation that would have extended the right also to an Eastern
husband. Especially in the diaspora, given the numerical superiority of the Latin Church,
they feared an eventual impoverishment of the Eastern Catholic Churches. That fear was
added to the concern for maintaining the Eastern tradition everywhere that the wife follow
the rite of her husband. Given these things, if it is not already evident from the nature of
the matter, the first reference to Church sui iuris in CCEO canon 33 expressly intends the
Latin Church. This is clear not only from its text and context of interecclesial relations but
it is also implicitly confirmed by the Pontifical Council's Explanatory Note.
6 - Parents' Transfer: Resulting Ascription of Children (CCEO c. 34)
Regarding parents' transfer to another Church sui iuris, CCEO canon 34 considers
three cases: i) both Catholic parents transfer; ii) the Catholic spouse in a mixed marriage
transfers; and iii) one of the Catholic spouses transfers. In the first two cases, the children
69
For these observations, see Nuntia, 29 (1989), pp. 44-45.
70
These changes were made by the Coetus de coordinatione after the second plenary assembly of
PCCICOR but are not noted in Nuntia, 27 (1988), p. 81. See, instead, I. ŽUŽEK, Modifiche dello Schema
Codicis Iuris Canonici Orientalis al testo definitivo del Codex Canonum Ecclesiarum Orientalium, Rome,
Pontificium Institutum Orientalium Studiorum, 1992, p. 7.
71
However, as mentioned in regards to CCEO canon 32, an Eastern husband who wishes to transfer validly
to the Latin Church of his wife can either petition the Roman See or obtain the written consent of the
Eastern and Latin bishops in the same territory.
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under fourteen are ascribed to the same Church sui iuris to which the parents have
transferred. In the third case, the children are ascribed to the other Church sui iuris only if
both parents consent. Upon completion of the fourteenth year of age, in all three cases, the
children can return to the original Church sui iuris. While CIC canon 112 §1, 3° is the
parallel for the Latin Church, it does not seem to have contemplated the third case. If one
argues that the same case is covered by the Latin norm, since the parent will have obtained
permission of the Holy See to transfer under §1, 1°, then that constitutes a difference
between the two Codes because the children will be ascribed to the other Church sui iuris
without requiring the consent of both parents.72 In any event, to resolve this doubt or, by
way of CIC canon 19, to fill a legislative gap in the Latin Code regarding this third case,
recourse could be made in individual cases to CCEO canon 34. It states:
If the parents, or the Catholic spouse in the case of a mixed marriage,
transfer to another Church sui iuris, children who have not completed
fourteen years of age, by the law itself are ascribed to the same Church; if,
however, in a marriage between Catholics, only one parent transfers to
another Church sui iuris, the children transfer only if both parents have
given consent. Upon completion of the fourteenth year of age, the children
can return to the original Church sui iuris.
To the extent that the Eastern and Latin norms in this matter correspond, one can
presume that, just as CIC canon 112 §1, 3° contemplates transfer to another ritual (Eastern)
Catholic Church sui iuris, CCEO canon 34 also foresees transfer to the Latin or another
Eastern Catholic Church sui iuris. An examination of the latter's iter within PCCICOR
helps to determine if such an interpretation is in any way erroneous. Apart from a
consideration of the very nature of the matter, does the expression "Church sui iuris" in
CCEO canon 34 also imply the Latin Church?
Within PCCICOR, a first draft of CCEO canon 34 was introduced by the Coetus de
Ritibus and based upon a different formulation of the prior CS canon 10. Canon 10 of the
1976 provisional canons on ascription stated: "If the father, or the Catholic mother in a
mixed marriage, legitimately transfer to another particular Church, young children transfer
by the law itself to the same Church; however, other children of minor age can transfer, if
they themselves wish."
Provisional canon 10 became canon 13 of the 1984 Schema.73 During the denua
recognitio of the 1984 Schema, following the objection of some consultative bodies to the
72
As a practical example, consider two Latin parents. One has received permission from the Holy See to
transfer to the Melkite Church (c. 112 §1, 1°). According to c. 112 §1, 3°, the children would also be
ascribed to the Melkite Church, apparently, without the consent of the other parent.
73
Nuntia, 19 (1984), p. 22 (c. 13).
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clause allowing minors to change rites, the expert study group sent the canon for further
study. The experts reported that, despite the reluctance of some of the consultors, a
reformulated text of the norm with the contested clause was subsequently approved
because it was proper to CIC canon 112 §1, 3°, from which they did not want to differ
substantially.74 It was this approved reformulation that contained the third case in which
only one of the Catholic spouses transfers. Except for a slight reformulation of the Latin
text, the norm subsequently appeared as SCICO canon 32.75 The canon was not the subject
of any further changes or reported observations before being promulgated as CCEO canon
34.
On the basis of the iter of CCEO canon 34, surely nothing appears to exclude that the
transfer to another "Church sui iuris" could also imply the Latin Church. In fact, since the
expert study group wanted no substantial difference with CIC canon 112 §1, 3°, it would
even seem that they aimed at having the Eastern norm as its complement. Therefore, to
take some concrete examples, if both Maronite parents, or the Maronite spouse married to a
Protestant, obtained consent in accord with CCEO canon 32 § 1 or § 2 to transfer to the
Latin Church, their children under fourteen would also be ascribed to the Latin Church.
Now, in the third scenario not covered by the Latin Code, if one of the two Maronites
obtains consent to transfer to the Latin Church, then the children under fourteen will be
ascribed to the Latin Church only if the other Maronite parent consents. In these cases,
when the children turn fourteen, they can return to the Maronite Church.
7 - Ascription to a Church Sui Iuris of Non-Catholics Becoming Catholic (CCEO c.
35)
CCEO canon 35 stipulates that non-Catholics coming into full communion with the
See of Rome are to be ascribed to the Church sui iuris of the same rite to which they
belong. This Eastern norm is literally based upon OE 4.76 As part of a conciliar decree, the
force of this prescript applies in the Latin Church even though it has not been incorporated
into the Latin Code. Unique to the Eastern Code, then, CCEO canon 35 states:
Baptized non-Catholics coming into full communion with the Catholic
Church should retain (retineant) and practice (colant) their own rite and
should observe (observent) it everywhere in the world as much as humanly
74
See Nuntia, 22 (1986), p. 31 (c. 13).
75
Nuntia, 24-25 (1987), p. 6 (c. 32).
76
OE 4 states: "Each and every Catholic as well as baptized members of any non-Catholic Church should
keep (retineant), follow (colant) and as far as possible observe (observent) their own rite everywhere in
the world, without prejudice to the right of recourse to the Apostolic See in cases of persons,
communities or regions." See TANNER, 901.
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possible. Thus, they are to be ascribed to the Church sui iuris of the same
rite with due regard for the right of approaching the Apostolic See in special
cases of persons, communities or regions.
To determine whether or not the expression "Church sui iuris" implicitly involves
the Latin Church in CCEO canon 35, an examination of its iter within PCCICOR is
particularly helpful. Its first draft was proposed by the Coetus de Ritibus as canon 11 of the
1976 provisional canons on ascription. The study group intended to replace the former CS
canon 11 §1, which stated: "Baptized non-Catholics of an Eastern rite, who are admitted to
the Catholic Church, can embrace the rite they wish (ritum quem maluerint amplecti
possunt); however, choosing so that they retain their own rite." The Coetus' relator stated:
The text of the canon differs substantially from that of C.S. c. 11, and
affirms the norm in O.E. 4, which makes it an obligation for baptized nonCatholics to preserve their rite. Therefore, they will be ascribed to the
particular Catholic Church of their own rite, with due regard for the right of
recourse to the Apostolic See in particular cases regarding persons,
communities or regions.
The exhortation to preserve their own rite, contained in C.S., becomes an
obligation here. The wording of the text is that of O.E. 4. To avoid
pronouncing on the question of validity or liceity, which O.E. leaves
doubtful, the group preferred putting in the new text "are ascribed."77
As a result, provisional canon 11 stated: "Baptized non-Catholics of any Church or
Community coming to the fullness of catholic communion, are ascribed to the Church of
their own rite, with due regard for recourse to the Apostolic See in particular cases
regarding persons, communities or regions."
Provisional canon 11 became canon 14 of the 1984 Schema.78 During the denua
recognitio of the 1984 Schema, one consultative body proposed that the norm be
prescribed for validity while eleven other consultative bodies proposed that the norm
specify that it is only for liceity. To this proposal, the experts replied: "Although it is
agreed that the canon is ad liceitatem, that is nevertheless not specified in order to adhere
more to the conciliar text and because, in this regard, the general norms are sufficient
concerning the interpretation of canons (Schema De normis can. 131 [now CCEO c. 1495]
77
Nuntia, 3 (1976), p. 51 (c. 11).
78
Nuntia, 19 (1984), p. 22 (c. 14). A note to canon 14 indicates that an equal number of consultors had
proposed that, instead of "are ascribed," the norm state "can only validly be ascribed to the Church of
their own rite.
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= CIC can. 10)."79 After the expert study group reformulated so as to adhere even more
closely to the conciliar text, canon 14 was substantially similar to the promulgated text.
The norm only underwent minor changes in the Latin text when it subsequently appeared
as SCICO canon 33.80
Although no further changes were made to the norm before promulgation as CCEO
canon 35, members of PCCICOR specifically dealt with the norm during its second plenary
assembly. A motion made by five members focused on Protestant communities and asked
for a clarification. Given the norm's prescript, the Latin Church was obviously in play but
some members argued that Protestants should be free to choose any Church sui iuris and
they proposed that a second paragraph be added to the canon to that effect. The motion of
November 5, 1988 stated:
If it is the desire of the PCCICOR to maintain the position taken in
Orientalium Ecclesiarum, a clarification should be made regarding the
Protestant communities. If the validity of the orders of these communities is
not recognized, can they be said to follow a "rite"? This is especially true
regarding many of the groups which are not "mainstream" Protestant.81
In the debate that followed, one member "also pointed out the case of the Anglican
Protestants that wanted to become Catholics of Eastern rite. According to the provisions of
can. 33, that would not be possible. He underlined the necessity of favouring this type of
conversions and giving greater room for the liberty of choice of rite, with the addition of a
§2 to the canon." At one point in the debate, the secretary of PCCICOR, Ivan Žužek,
"stressed that the question regarding can. 33 was much debated at the Council, that it had
been explicit in the matter. Now, one could not make something re-enter, so to say, per
fenestram what the Council had left outside the door. Canon 33 was a conciliar text and it
could not be changed." In the end, the members of PCCICOR voted (25 in favour, 2
against) to retain canon 33 as it appeared in SCICO.
Given the legislative history of CCEO canon 35, it should be clear that the
expression "Church sui iuris" also implies the Latin Church. That was evident not only
79
Among the other proposals made, one argued that Protestants in the West should not be obliged to follow
the conciliar text but, rather, should be free to choose for their ascription any Church sui iuris. The study
group stated: "In that regard, it was highlighted in the study group that the Council was entirely explicit
in wishing to abolish the rule ritum quem maluerint amplecti possunt (CS can. 11) and that, quoad
baptizatos acatholicos, without distinction, establishing modo positivo the observantia ritus pro omnibus
et ubique terrarum." For all the proposals made during the denua recognitio of canon 14, see Nuntia, 22
(1986), pp. 31-32 (c. 14).
80
Nuntia, 24-25 (1987), p. 6 (c. 33).
81
Nuntia, 29 (1989), p. 48 (c. 33).
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during the denua recognitio but, especially, at the second plenary assembly of PCCICOR
when members effectively proposed that Protestants becoming Catholics be free to choose
for their ascription any Eastern Catholic Church sui iuris instead of the Latin Church as
prescribed by OE 4, and CCEO canon 35 that repeats it literally. To the extent that the iter
of Eastern canon 35 further clarifies the meaning of OE 4 and fills a legislative gap in the
Latin Code, recourse can also be made, in individual cases, to CCEO canon 35 for
guidance in resolving questions of ascription of baptized non-Catholics coming into full
communion. While CCEO canon 35 is not ad validitatem, it nevertheless establishes an
obligation according to the mind of the Council and the Eastern draftsmen. To give some
practical examples, then, Greek Orthodox faithful coming into full communion with the
Catholic Church are to be ascribed to the Greek Catholic Church while Russian Orthodox
coming into full communion with Rome are to be ascribed to the Russian Catholic Church.
On the other hand, Protestants of the Anglican Communion joining the Catholic Church
are to be ascribed to the Latin Church just as Lutherans are since their ritual origin is more
directly tied to the Latin Church.
8 - Process for Transfer to Another Church Sui Iuris (CCEO c. 36)
Regarding transfers to another Church sui iuris, CCEO canon 36 prescribes the
formalities required for these transfers to take effect. The transfers include those made in
accord with CCEO canon 32, either with the consent of the Holy See or the consent of the
bishops concerned, as well as CCEO canon 33, which grants an Eastern Catholic wife the
right to transfer to the Church sui iuris of her husband in the celebration of or during their
marriage.82 Unique to the Eastern Code, CCEO canon 36 states:
Every transfer to another Church sui iuris takes effect at the moment a
declaration is made before the local hierarch of the same Church or the
proper pastor or a priest delegated by either of them and two witnesses,
unless the rescript of the Apostolic See provides otherwise.
As concluded above in relation to CCEO canons 32 and 33, such transfers
implicitly involve the Latin Church as a possibility in these circumstances. Therefore,
unless the legislative history of CCEO canon 36 excludes that possibility, it only seems
logical to find that the transfer formalities are to be followed not only when an Easterner
82
CCEO c. 36 replaces CS canon 13 §1, which stated: "Unless the rescript of the Apostolic See establishes
otherwise, transfer to another rite takes effect from the moment of the declaration made before the proper
Hierarch of the new rite or the pastor or a priest delegated by either of them and two witnesses, except a
transfer which, after the wife’s written declaration is sent beforehand, is made at the beginning of a
marriage."
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transfers to another Eastern Catholic Church sui iuris but, also, when he or she transfers to
the Latin Church.
Within PCCICOR, the Coetus de Ritibus first presented the norm as canon 13 §1 of
the 1976 provisional canons on ascription. Besides the transfer cases referred to in CS
canon 13, the study group also intended the norm to cover the ascription of baptized nonCatholics coming into full communion with the Catholic Church (CCEO c. 35). Canon 13
§1 stated: "Unless the rescript of the Apostolic See provides otherwise, ascription to a
Church which is not done by baptism itself (ascriptio quae non fit ipso baptismo), or
transfer to another particular Church takes effect from the moment of the declaration made
before the Hierarch of the same Church, or the proper pastor, or a priest delegated by either
of them and two witnesses, except the transfer which, after the wife's written declaration is
sent beforehand, is made at the beginning of a marriage."
Provisional canon 13 §1 became canon 16 §1 of the 1984 Schema.83 During the
denua recognitio of canon 16 §1, six consultative bodies asked that the words vel eo
durante (or during it) be added to §1 so as to be consistent with the formula in the draft to
CCEO canon 33, allowing the wife to transfer at the celebration of or during the marriage.
Another consultative body proposed that the declaration of transfer be done in writing.
After having considered these motions carefully, the expert study group replied:
After a careful examination of the canon and these proposals, the study
group considered it essential that every transitus ad aliam Ecclesiam sui
iuris ought to have a clear juridical limit a quo and, therefore, that at least a
formal declaratio oralis mentioned in §1 is always necessary. Spouses who
effect the transitus during the marriage should not be exempt from that nor
should those who do it in matrimonio ineundo. On this basis, the study
group simplified the wording of the canon, eliminating from it the
inconsistency of the distinction between the ascriptio quae non fit ipso
baptismo and the transitus, specifying in the canon that is a question of
Hierarcha loci and placing at the end of §1 the clause regarding the ius
speciale defined in the rescripta Sedis Apostolicae.84
As a result, canon 16 §1 now stated: "The transfer to another Church sui iuris takes effect
at the moment of a declaration made before the local hierarch of the same Church sui iuris,
or the proper pastor or a priest delegated by either of them and two witnesses, unless the
rescript of the Apostolic See provides otherwise."
83
Nuntia, 19 (1984), p. 23 (c. 16 §1).
84
Nuntia, 22 (1986), pp. 33-34 (c. 16 §1).
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Canon 16 §1 later became SCICO canon 35, which was practically identical to the
promulgated CCEO canon 36.85 Only one subsequent change was made to the Eastern
norm. This change was effected ex officio by the Coetus de expensione observationum
following an observation that had been made in the context of reviewing the draft to CCEO
canon 33. That observation pointed out that CS canon 13 had exempted a wife from its
oral declaration rule if she sent in a written declaration beforehand that, at the beginning of
the marriage, she intended to transfer to the Church of the husband.86 Since the Eastern
draftsmen's stated intention was to oblige all those transferring to another Church sui iuris
to make at least an oral declaration, the Coetus de expensione observationum added the
word Omnis to the beginning of the Eastern norm to qualify transitus.87
Consistent with the interpretation made earlier regarding CCEO canons 32 and 33,
nothing in the legislative history of the related CCEO canon 36 excludes the Latin Church
from being implied among the Churches sui iuris to which the Eastern Catholic faithful
might choose to transfer. Therefore, unless the Holy See's rescript provides otherwise in the
case of those transferring to another Church sui iuris in accord with CCEO canon 32 §1,
Eastern faithful who transfer to another Eastern, or even the Latin Church, either with the
consent of the Roman See or the bishops concerned (CCEO c. 32 §§1 and 2), are obliged to
make at least an oral declaration before the local hierarch, the proper pastor or another
priest delegated by either of them and two witnesses. Similarly, an Eastern wife
transferring, in accord with CCEO canon 33, to the Eastern Church sui iuris, or Latin
Church, of her husband is bound by the same formalities for the transfer to take effect.
While CCEO canon 36 is a characteristic Eastern norm, recourse can be made to it in
individual cases by Latin authorities to fill the legislative gap in the Latin Code regarding
the formalities that govern transfer in these cases (CIC c. 19). However, this suggestion
does not intend in any way to condition the competence of the legislator or the Pontifical
Council for Legislative Texts who have the authority to intervene authoritatively for the
Latin Church in this matter (CIC c. 16 §1).
9 - Registering Ascription/Transfer to Another Church Sui Iuris (CCEO c. 37)
With respect to recording ascription to a Church sui iuris or transfer to another
Church sui iuris, CCEO canon 37 establishes a rule that evidently applies to the Latin
Church. Being one of the nine CCEO canons that explicitly name the Latin Church, there is
no need to examine the iter of Eastern canon 37 to determine whether or not the canon also
85
Nuntia, 24-25 ( 1987), p. 6 (c. 35).
86
Nuntia, 28 (1989), p. 26 (c. 31).
87
Nuntia, 28 (1989), p. 28 (c. 35).
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expressly obliges the Latin Church. Unique to the Eastern Code, CCEO canon 37 states:
Every ascription to a Church sui iuris or transfer to another Church sui iuris
is to be recorded in the baptismal register of the parish where the baptism
was celebrated; even if it is a parish of the Latin Church. However, if this is
not possible, the recording is to be done in another document which is to be
preserved in the parish archives of the proper pastor of the Church sui iuris
to which the ascription was made.
The requirement to record one's ascription to a Church sui iuris in the baptismal
register is not contained in CIC canon 535 §2, which states: "In the baptismal register are
also to be noted those things which pertain to the canonical status of the Christian faithful
by reason of marriage, without prejudice to the prescript of can. 1133, of adoption, of the
reception of sacred orders, of perpetual profession made in a religious institute, and of
change of rite. These notations are always to be noted on a baptismal certificate."
Similarly, the requirement to record one's ascription to a Church sui iuris is not mentioned
in CIC canon 877 §1, which states: "The pastor of the place where the baptism is
celebrated must carefully and without delay record in the baptismal register the names of
the baptized, with mention made of the minister, parents, sponsors, witnesses, if any, the
place and date of the conferral of the baptism, and the date and place of birth."
Given that the requirement to record one's ascription in the baptismal register
applies also to Latin parishes where a baptism is celebrated, CCEO canon 37 takes on
particular importance in the context of interecclesial marriages. Suppose that a Maronite
father and Latin mother ask for baptism for their son in the Latin parish they are attending
in Vancouver. Canada. Both CCEO canon 29 §1 and CIC canon 111 §1 agree that the
child could either be ascribed to the Maronite Church or, if the parents agree, to the Latin
Church. In either case, CCEO canon 37 establishes, as a general rule, that his ascription is
to be recorded in the baptismal register of the Latin parish. However, the Eastern norm
further states that, if this is not possible, then the recording is to be done in another
document which is to be preserved in the parish archives of the proper pastor of the Church
sui iuris to which the ascription was made. Presumably this would apply if, for some
reason, the child's ascription to the Maronite Church could not be recorded in the baptismal
register since it is hard to conceive of an impossibility to record the child's ascription to the
Latin Church in the Latin parish's baptismal register after just being baptized there. In
recording the child's ascription to the Maronite Church, therefore, it would be done in
another document and sent to be preserved in the parish archives of the Maronite father's
proper pastor. As there is no Maronite parish in Vancouver, his proper pastor is designated
by the Maronite bishop of Montréal in accord with CCEO canon 916 §4.88
88
CCEO c. 916 §4 states: "If there is no pastor for the Christian faithful of a certain Church sui iuris, the
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10 - Easterners Entrusted to Hierarch/Pastor of Another Church Sui Iuris (CCEO c.
38)
A long established principle in canon law states that Eastern Catholics remain
ascribed to their Church sui iuris even if they are subject to a hierarch or pastor of another
Church, not excluding the Latin Church. Based upon the 1894 apostolic letter of Leo XIII,
Orientalium dignitas (n. IX) and repeated in CS canon 14, the principle is stated in CCEO
canon 38. Unique to the Eastern Code, CCEO canon 38 provides: "Christian faithful of
Eastern Churches, even if committed to the care of a hierarch or pastor of another Church
sui iuris, nevertheless remain ascribed in their own Church sui iuris."
Within PCCICOR, the Coetus de Ritibus proposed a first draft of this norm as
canon 14 of the 1976 provisional canons on ascription. Canon 14 stated: "Eastern faithful
(Fideles orientales), even if entrusted to the care of a hierarch or a pastor of a different
particular Church, nevertheless remain ascribed to their own Church." The study group
stated: "The text of the canon is substantially the same as that of C.S. 14. The wording
"legitimately subject" of C.S. can. 14 has been replaced with the term "entrusted", which
underscores the fundamental belonging of the Eastern faithful to their own particular
Eastern Church."89
Provisional canon 14 became canon 17 of the 1984 Schema. There, the expression
"particular Church" was replaced with "Church sui iuris."90 During the denua recognitio of
the 1984 Schema, the secretariat of PCCICOR noted that an objection had been raised
concerning the Coetus' substitution of the term subiecti with the wording curae commissi
since the latter "would not indicate the true jurisdiction that the local bishop exercises over
the christifideles mentioned in the canon." However, the expert study group did not agree,
maintaining that commissi was preferable to subiecti. As a result, no essential change was
made to the norm; only the word Fideles was replaced with Christifideles at the beginning
of the canon.91 Canon 17 subsequently appeared as SCICO canon 37, which was, except
for one later redactional change, already identical to CCEO canon 38.92
Certainly, CCEO canon 38 is an Eastern norm regarding ascription and nothing in
the iter of the canon hints in any way that it is also a Latin norm on ascription.
Nevertheless, in the canon's first use of the expression "Church sui iuris," the Latin Church
eparchial bishop for those same faithful is to designate the pastor of another Church sui iuris, who is to
assume their care as their proper pastor, with the consent, however, of the eparchial bishop of the pastor
to be designated."
89
Nuntia, 3 (1976), p. 52 (c. 14).
90
Nuntia, 19 (1984), p. 23 (c. 17).
91
Nuntia, 22 (1986), pp. 34-35 (c. 17).
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is implicitly involved. This is true because Eastern Catholics can be entrusted to the care of
a Latin bishop as CCEO canon 916 §5 makes clear. Another of the nine Eastern canons
which regards the Latin Church explicitly, Eastern canon 916 §5 states:
In places where not even an exarchy has been erected for the Christian
faithful of a certain Church sui iuris, the local hierarch of another Church
sui iuris, even the Latin Church, is to be considered as the proper hierarch of
these faithful, with due regard for can. 101. If, however, there are several
hierarchs, that one whom the Apostolic See has designated is to be
considered as their proper hierarch or, if it concerns the Christian faithful of
a certain patriarchal Church, the one whom the patriarch has designated
with the assent of the Apostolic See.
Furthermore, CCEO canon 916 §4 also implies that Eastern Catholics can conceivably be
entrusted to the care of a pastor of a Latin parish as their proper pastor. To illustrate the
meaning of CCEO canon 38, then, even if Coptic Catholics in Vancouver, Canada, may be
subject, according to CCEO canon 916 §5, to the Latin bishop since there is no Coptic
Catholic hierarchy established there, these faithful nevertheless remain ascribed to the
Coptic Catholic Church. Then, even if Maronite Catholics in Vancouver, Canada, may be
entrusted, in accord with CCEO canon 916 §4, to the pastor of a Latin parish since there is
no Maronite parish there, the Maronites remain ascribed to the Maronite Catholic Church.
Conclusion
Based upon the Holy See's official Explanatory Note regarding CCEO canon 1 in
which the Pontifical Council for Legislative Texts indicated that "the Latin Church is
implicitly included by analogy each time that CCEO explicitly uses the term 'Church sui
iuris' in the context of interecclesial relations," this paper studied CCEO canons 29-38 on
ascription to determine the extent to which these Eastern canons expressly intend to regard
or oblige even the Latin Church. Since all of CCEO canons 29-38 contain the expression
"Church sui iuris," the study examined the canons in the light of the Explanatory Note and
with the help of their legislative history as reported in Nuntia.
By way of CCEO canon 1, the legislator implicitly set up an interrelationship of the
Eastern and Latin Codes and the authoritative conclusion reached in the Explanatory Note
assuredly confirms it. Admitted this interrelationship each time the Eastern Code uses the
expression "Church sui iuris" in the context of interecclesial relations, where else in CCEO
92
Nuntia, 24-25 (1987), p. 6 (c. 37). For the redactional change, see Nuntia, 27 (1988), p. 37 (c. 37).
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might this interrelationship of the Codes be established? Besides CCEO canons which
encourage interecclesial collaboration or Eastern norms which, because of the nature of the
matter, necessarily include the Latin Church, this study also referred to other CCEO canons
which effectively create a complementary interrelationship of the Codes. In cases where
the meaning of Latin canons remains doubtful, it was argued that, by way of CIC canon 17,
recourse can be made to parallel passages in the Eastern Code as an aid to resolving those
ambiguities. Also, if legislative gaps are evident in the Latin Code, CIC canon 19 can be
invoked and those lacunae filled, in individual cases, with Eastern laws made in similar
matters (legibus latis in similibus). Where applicable, the interpretative rules in CIC
canons 17 and 19 were applied in the commentaries offered here regarding CCEO canons
29-38. Of course, the application of these aids to canonical interpretation do not intend to
replace or undermine the authority of the legislator or those to whom he has granted the
power to interpret laws authentically (CIC c. 16).
As canonical science continues to define and shape the one body of canon law of
the universal Church, it would seem that a knowledge of the Latin Code, together with the
Eastern Code, and their interrelationship in that one body will become indispensable.
Hopefully, this study of just the one area of ascription in CCEO canons 29-38 will help to
make these Eastern norms better known while, at the same time, highlighting the
significance, even for the Latin Church, of the Eastern Code, an integral, yet separate, part
of the one Corpus Iuris Canonici of the Catholic Church.
Rev. Jobe Abbass, O.F.M. Conv.
Faculty of Canon Law
Saint Paul University
223 Main Street
Ottawa, ON K1S 1C4
Canada
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APPENDIX
Explanatory Note regarding CCEO canon 1
For some years, the Pontifical Council for Legislative Texts, with the help of a
broad group of Consultors, has steadily conducted work to harmonize the normative
provisions of the CIC and the CCEO, that more immediately affect ordinary pastoral
activity, in keeping with what has emerged from the experience of these years.
One of the arguments examined has regarded CCEO canon 1and, concretely, the
meaning that, in the above-mentioned canon and in the entire discipline of the Eastern
code, the term expresse has, a question that in a recurring way affects numerous situations
of pastoral importance considered by CCEO. The working Commission of the Pontifical
Council has begun an in depth study of the theme in question, checking the contexts in
which the canons of CCEO use the term expresse with regard to relations among the
various Churches sui iuris and looking to verify if the Legislator intended in those
situations to include also the Latin Church.
Although, for other matters currently being studied, this Pontifical Council intends
to present some legislative changes to the Legislator, regarding the significance of the term
expresse in CCEO canon 1, however, following the proposals of the working Commission,
we have considered it sufficient to compose an Explanatory Note, which gives an official
explanation of it without, on the other hand, having to make recourse to an authentic
Interpretation.
Regarding the theme in question, there has not been complete unanimity among
scholars. As is known, in the proceedings of the Eastern codification, it was decided that
the cases in which the Latin Church remains bound by the norms of CCEO are to be
absolutely peremptory (Nuntia 22, p. 22, cfr. also ibid., p. 13).93 This imposes a strict
criterion in considering if an Eastern norm expressly includes the Latin Church. In this
sense, some authors have affirmed that the Latin Church is included only when it is
93
This writer had argued, after a complete examination of the iter of CCEO c. 1, that the draftsmen
intended only to exclude peremptorily the possibility that the same canon be interpreted to mean that it
applied to the Orthodox. While the relevant study group did agree upon a less extensive application of
the Eastern code to the Latin Church than had previously been proposed, the group intended to oblige the
Latin Church in many canons where no explicit mention of it was made and, by way of canon 1, it only
meant to confirm the necessary connection between the two codes in the ever more frequent cases of
interecclesial relations. See J. ABBASS, "CCEO canon 1 and Absolving Eastern Catholics in the Latin
Church," in StC, 46 (2012), pp. 79-83.
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"explicitly" named by the norms of CCEO. However, the majority of authors believe that
the express mention of the Latin Church in the canons can occur both in an "explicit" and
an "implicit" way, when that follows reasonably from the context in which the norm is
placed. Indeed, the term expresse would only be opposed to tacite, while an express
mention could be made both in an explicit and an implicit way.
According to this distinction, that appears reasonably confirmed by the normative
provisions of CCEO, besides the canons in which the Latin Church is "explicitly" named,
there are also other canons of the same code in which it is included "implicitly", if one
takes into account the text and context of the norm, as CCEO canon 1499 requires. It is
therefore necessary to begin with the expressions contained in the norm to be interpreted
and with the context in which it is found to determine if the Latin Church is implicitly
included in it or not. This is the case, for example, of the CCEO norms that concern
juridical relations with the various Churches of the one Catholic Church.
Consequently, one must hold that the Latin Church is implicitly included by
analogy each time that CCEO explicitly uses the term "Church sui iuris" in the context of
interecclesial relations. We say "by analogy" keeping in mind that the characteristics of the
Latin Church, though not coinciding completely with those of the Church sui iuris
described in canons 27 and 28 §1 of CCEO, are nevertheless, in this regard, substantially
similar.94
Vatican City, 8 December 2011.
Francesco Coccopalmerio
President
94
Juan Ignacio Arrieta
Secretary
Certainly, while the Latin Church is a Church sui iuris, it cannot be likened entirely to the juridical figure
of an Eastern Catholic Church sui iuris. Ivan Žužek made this quite evident even before the 1990
promulgation of the Eastern Code. He stated: "It is not out of place to note here, regarding the Latin
Church, itself also an ‘Ecclesia ritualis sui iuris" as is obvious from CIC canons 111 and 112, that its
nature is such that it is beyond the juridical figures (patriarchal, major archiepiscopal and metropolitan
Churches sui iuris) outlined above, even if among the Roman Pontiff’s titles there is the one of
‘patriarch’." See I. ŽUŽEK, "Le ‘Ecclesiae sui iuris’ nella revisione del diritto canonico," in Vaticano II,
bilancio e prospettive venticinque anni dopo (1962-1987), in R. LATOURELLE (ed.), Assisi, Gregorian
University Press, 1987, vol. II, p. 878.
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