The Canonical Doctrine of Reception
by James A. Coriden
". . . For a law or rule to be an effective guide for the believing
community, it must be accepted by the community."
The canonical doctrine of reception, broadly stated, asserts that for a law or
rule to be an effective guide for the believing community it must be accepted
by that community.
This doctrine is very ancient. It began with John Gratian
in the twelfth century. Gratian based his version of
the teaching on the writings of Isidore of Seville
(seventh century) and Augustine of Hippo (fifth century). The development,
varieties and vicissitudes of reception have been explored in recent years in a
series of important studies by Luigi DeLuca, Yves Congar, Hubert Müller, Brian
Tierney, Geoffrey King, Richard Potz, Peter Leisching, and Werner Krämer.
This present work draws upon those historical studies and attempts to formulate
the doctrine itself. This is an effort to articulate the theory of canonical
reception.
Reception has been described as a spectrum of opinions about the establishment
of canonical rules and their acceptance or rejection by their subjects. It has
been characterized as no more than a series of explanations for failed laws.
But reception is much more than a way of explaining why laws did not work. It
is a sound canonical theory about rule-making which has firm footing and long
standing.
The theory of reception has taken a variety of forms. One is the philosophical
claim that the acceptance of law by the people is an essential part of the
law-making process. Another holds that reception is simply a way of
acknowledging that some laws are not very well cast and are, in fact,
ineffective. Because of the range of canonical viewpoints on reception the
"doctrine" sometimes appears obscure or amorphous. This present study
attempts to state a clear and coherent doctrine of canonical reception.
The study will proceed in the following stages: (A) a set of presuppositions;
(B) the origins of the doctrine; (C) some of the proponents of the doctrine;
(D) a summary of the opinions about reception; (E) the action taken by the
Inquisition; (F) a statement of the doctrine itself; (G) its theological
foundations; (H) some applications of reception.
1. This study focuses exclusively on canon law. Many
proponents of reception apply it to secular law as well, but here we simply prescind from that issue. We examine the acceptance of
rules within the Church, not in the state.
2. Canon law is law only by analogy. It is far more unlike secular law than it
is similar to it. Several reasons demonstrate the dissimilarity of canonical
rules.
a. The Church is a radically different kind of community
from the state; it is different in origin, purpose, history, identity, inner
dynamic and destiny.
b. Rules have a different purpose in the Church. They serve to keep good order
and protect personal rights, but their ultimate aim is the spiritual good of
the members, mutual love among them, and, indeed, their eternal salvation.
c. The sources of authority in the Church are the power of the Risen Lord and
the presence of the Holy Spirit; these are only acknowledged by people with
faith.
d. Canon law is a theological discipline, not a juridical one. Its principles
are drawn from divine revelation and the Church's tradition. Canonists are
ministers within the church, not lawyers.
e. The Church is a voluntary association. Membership in it cannot be coerced.
It is a community of free commitment. That is the context for its rules.
f. Rules within the Church have a different kind of reality and effectiveness.
They are more like guidelines than laws. Actions which are taken in
contravention of canonical rules still very often achieve their basic religious
purposes.
3. Canonical rules have both intrinsic and extrinsic
elements. Reception pertains to the intrinsic quality of the content of the
rules, and their consequent acceptance by their subjects. The extrinsic
elements, i.e., the formal authority of those issuing the rules and the
technical conditions of their promulgation, are not in question here.
4. The Spirit of God is present and operative in the community of faith, and in
each of its members. God's guidance is given to all, not only to a select
leadership group. All of the baptized are to be active participants in the
Church and sharers in its mission. All have something to say about its faith
and its discipline.
The canonical doctrine of reception originated in the statement of Gratian after canon 3 in Distinction IV of his Decretum
(circa 1140). He cited Isidore of Seville and
Augustine on the establishment of laws, and then wrote:
Laws are instituted when they are promulgated and they are confirmed when they
are approved by the practices of those who use them. Just as the contrary
practices of the users have abrogated some laws today, so the (conforming)
practices of the users confirm laws.
Gratian went on to illustrate the meaning of approval
of a law by the practices of its users. He gave the example of a papal law
ordering clergy to fast and abstain during Lent. Since the law was never
approved by the practices of the users, other clerics could not be accused of a
transgression for not obeying it.
The context of Gratian's remark on the acceptance of
law was his citation of Isidore's well-known
description of the necessary qualities of law:
A law will be moral, just, possible, in accord with nature, in keeping with the
custom of the homeland, suitable to the place and time, necessary, useful,
clear so that it not mask something unsuitable, not for private benefit, but
conceived for the common utility of the citizens.
Gratian was reflecting on the intrinsic
characteristics of law rather than its extrinsic qualities, that is, the
substantive content of the law rather than the formal authority of the lawgiver
and the mode of its promulgation. He then quoted Augustine to the effect that
laws are subject to judgment when they are first promulgated, but after they are
firmly in place, then judgments are made in accordance
with them.
John Gratian, celebrated as the founder of the
science of canon law, envisioned rule-making as a two-step process. First the
law is set forth by a legitimate ecclesiastical authority, e.g., pope, council,
bishop, chapter, etc. Then those for whom it is intended (the
"users") approve conformity with it. Or they withhold approval. They
do not conform their actions to the new rule. They do
not confirm it. In that event, others cannot be held to obey it.
In other words, the community to which the law is directed makes a judgment
about the law's intrinsic quality, and that in turn has an effect upon its
obligatory force. Without the confirming usage of its subjects, the law remains
incipient, and can eventually be considered abrogated.
Gratian adhered to an older way of thought, common
among the church fathers, which saw law as a norm of conduct rather than the
command of a sovereign legislator, and which judged the validity of law
according to its objective content, i.e., its conformity with divine revelation
and the tradition of the Church.
Many canonists after Gratian propounded some form of
a reception doctrine. Some did so in commenting on Gratian's
text, others in trying to resolve conflicts of law. For some it was a central
teaching, for others it was obiter dicta.
These authors represent diverse schools of thought and wrote in the midst of
various controversies. Some were conciliarists, Galicians and Febronians. Some
were Jansenists, monarchists and papal absolutists.
They were recognized scholars, teachers in universities, bishops, and even
cardinals. Their views on reception cannot be dismissed as mere polemics. Their
statements are reasoned and thoughtful. Running through them is a strong strain
of truth about canonical rules; they must be received to be effective.
Brian Tierney says of the decretists (the earliest
commentators on Gratian's Decree) in general:
For the canonists then, reception was an important criterion of the validity of
law . . . For the decretists the structure of law
actually in force, the law that guided the life of the Church, was precisely
the law that the Church has chosen to "receive."
The decretists developed hierarchies of the sources
of laws (e.g., gospels, apostles, four major councils, other councils, decrees
and decretial letters, holy fathers Ambrose,
Augustine, Jerome, etc.) in order to resolve conflicts among them. But they did
not abandon, and in fact reaffirmed their underlying doctrine that, whatever
the legislative source of a pronouncement, the ultimately decisive criteria for
determining its validity were its substantive content (its conformity with
divine truth) and its reception by the Church.
Canonists throughout the intervening centuries have expressed the theories of
reception in many ways. This brief survey of their writings is presented to
reveal the flavor of their language and the tenor of their arguments. A
selection of individual authors and their positions follows.
In a brief remark, the author of the
Glossa Palatina (circa 1215) stated that
the confirmation of law which is accomplished by the practice of its users is a de facto confirmation; law
is de jure
confirmed in its very institution. This
de facto, de jure distinction was subsequently repeated by many
other canonists.
Matthaeus Romanus
(circa 1325) thought the strongest form of the reception theory, namely, that
acceptance is one of the three requirements for a law to have binding force.
"Three things are required for a law to exist; first, that it be
instituted, second, that it be promulgated, third, that it be approved by the
practices of its users; and if one of these is missing, then the law is not
established."
Jean Gerson (1363-1429) thought that the people had a
great influence on their laws, either to give or take away their force,
especially at the outset, when the law was first issued. If the people did not
give their approval by observance, then the law never achieved a firm footing. Gerson strongly asserted the need to adapt law to the time,
place and circumstances of its subjects, "because a law which is useful
for one time and place, might be impossible or harmful in another time or place
or for other people."
Nicholas of Cusa (1401-1464) systematically defended the
acceptance of law. He wrote that statutes, even those made by a pope, required
acceptance and use in order to become binding. Nicholas held that acceptance
was necessary for the validity and the efficaciousness of law. He said that
innumerable apostolic statutes, after being issued, were not accepted. In such
cases the rule is that those who did not observe the law are not to be accused
of transgression. They did not disregard or transgress the law because the law
was not yet in effect.
Juan de Torquemada (1388-1468) admitted that the
views of the bishops in council would outweigh a pope's proposed law if it was
a bad one. His example was that if the pope should try to depose all of the
bishops of the world, it would be harmful and should not be accepted. His
inference was that the intrinsic quality of the law deserves consideration as
well as the authority of the lawgiver. It is not that the subjects have a
greater authority than their superior, but that they can make a judgment about
the bad quality of the law.
Felinus Sandaeus
(1444-1503) stated that for a human law to have obligatory force it must be
accepted by a majority of the community for which it was promulgated. He also
held that a law which was disobeyed or disregarded from the very beginning
could more easily and quickly be abrogated by contrary custom than a law which
had been received.
John Major (1469-1550) said that approval by the people gives durability and
permanence to a law. But a superior should not try to oblige people to obey a law
when they have a good reason for not accepting it; it would be an empty
obligation.
Joannes Driedo (1480-1535)
argued that a law which the community finds unacceptable will be the source of
disturbance rather than contributing to the common good. Further, it is the
role of community to judge whether a law is in keeping with local custom. A
lawgiver who acts against such an expression of popular opinion would not be
acting rationally, and rationality is an essential quality of law.
Bartholome Medina (1528-1580) wrote that a legislator
who tries to impose laws on an unwilling populace is acting irrationally, and
therefore need not be obeyed.
Gregorio de Valencia (1549-1603) taught that it is not right for people to have
laws imposed on them against their will, and that a law which commands
something abhorrent to the community is not just. Such a law is dangerous
rather than useful, destructive rather than constructive.
Valerius Reginaldus
(1543-1623) said that when people are given a law which causes them to be
unwilling and rebellious there is a presumption that the law is not suitable
for that community. He interpreted Gratian's
confirming effect of the approving practices of the law's users to mean that
the law receives force to bind its subjects by that acceptance.
Martin Becanus (1563-1642) presumed that the pope, in
legislating, always wishes to build up the Church, and to take account of local
circumstances and to respect local customs. If a law fails to do so, which
becomes apparent when the law is not accepted by a particular community, then
it is presumed that the pope does not know the local circumstances and that he
would change the law if he knew them. Thus the law does not oblige.
Pierre Dupuy (1582-1651 )
wrote that two things are necessary for the validity of any law, legitimate
promulgation and reception. Once a law or a custom has been received, it cannot
easily be abrogated, even by a papal decree to the contrary.
Pierre de Marca (1594-1662) argued that the prince
has the power to make laws, but they are not binding until they have been
accepted by the judgment of the people. The people are to judge whether the
laws are suitable and useful. He based this principle on Roman law, but he
applied it to church law. Christ distinguished the authority of church leaders
(for service) from that of the rulers of the gentiles (for domination). De Marca cited John Chrysostom:
"this is the rule of Christianity, this is the exact definition of it, this is the point eminent above all others; to look after
the common good." He added that the purpose of civil rule is for the
common good, and sometimes unwilling citizens have to be coerced for the good
of others, but the aim of rule in the Church is for the salvation of each
individual. One lost sheep may have to be sought out while the ninety-nine are
left in the wilderness.
Claude Fleury (1640-1723) applied the principle of
reception to the decrees of general councils. We are not bound to observe laws
which have clearly not been put into practice. The reason he gave is that power
in the Church should not be exercised in a despotic way such that nothing but
the will of the sovereign is law; it should be a government of charity (citing Lk. 22:25- 7 and 1 Peter 5:3).
Zeger Bernard van Espen
(1649-1728) thought that papal laws needed to be published in each diocese by
the bishop in order to be valid, because it was for the bishop to judge whether
or not the law was suited to local circumstances. The law had to be appropriate
to local conditions. A distant legislator cannot always know the local
situation with its peculiar customs, laws and privileges, so it is difficult
for that person to judge whether the law is in the public interest for that
place. Christ wanted Church government to be a parent-child relationship, not
master-slave. From earliest times, van Espen said,
papal decrees were sent to metropolitans who sent them on to the bishops of the
province for local promulgation. It is of the essence of law that it be
promulgated within each local community.
Antoine Arnauld (1612-1694) said that reception is
necessary for the obligatory force of
civil laws and a fortiori of
ecclesiastical laws. It would be "lording it over
them" for rulers in the church to force people to obey laws which they had
never accepted and which were repugnant to them. He argued that laws
prohibiting the translation of the breviary and the bible into the vernacular
were never received or put into practice. "Everyone agrees that a
prohibiting law, which is purely human, and which protects something which is
protected by neither divine nor natural law, in no way obliges and has not the
force of law, if it has never been received or observed."
Johann Nikolas von Hontheim
(1701-1790) stated that laws have no force until they are acknowledged and
admitted by the Church. The pope proposes laws; it is for the Church to decide
whether to accept the proposals. Bishops must judge whether Roman decrees will
be useful or will lead to tumult. He quoted Gregory the Great: "I have not
given a command, rather I have taken care to point out
what is useful." He also asserted that the great collections of canons, Gratian's Decree and the Decretals
of Gregory IX, obtained the force of law by reception and observance.
Gregor Zallwein (1712-1766)
argued strongly for the necessity of reception of papal laws by bishops
together with the pope as rulers of the Church. They share with him solicitude
for the entire Church. Church laws must be adapted to the genius and customs of
different peoples. These conditions are met when the local bishop judges
whether or not to accept laws. Therefore the pope, from the very institution of
Christ, must attach to each law the tacit condition, "if it is accepted by
the local bishop." It is of the essence of law to be useful, and how can
it be useful unless it is accepted?
Joseph Ponsius (1730-1816) claimed that many laws
lacked effect because they had not been properly promulgated or received in
certain territories. Such laws were ill-adapted to circumstances of time and
place or to the customs of a particular nation or region. Sometimes the laws
never took effect because of a contrary custom already in existence.
Remigius Maschat (circa
1854) believed that when a community has a justified complaint against a law,
when it seems morally impossible to observe or not be useful to the community,
then the law loses its force. He based his reasoning on the need for laws to
have the intrinsic qualities listed by Isidore in his
description of law. When those qualities are lacking, then the laws do not
oblige in certain places.
J. P. Gury (circa 1887) said that the sanior pars of a community would not reject a law unless
there were good reasons for thinking that the law would produce serious
inconvenience, scandal, or disturbance. "The reason is clear, because the sanior pars of the people
is made up of learned, trustworthy and prudent persons. These
people and the many who follow them would not find a
law repugnant unless they had reason to fear that grave inconvenience or
scandal or disturbance would result from it."
All of these authors, from their various historical and theological
perspectives, expressed an understanding that the obligatory force of church
law is affected by its reception by the community.
Canonical literature, as the foregoing citations testify, reveals a wide
spectrum of opinions about the reception of laws by those subject to them.
Authors have asserted and observed a wide range of juridical effects. The
following propositions, from the strongest to the mildest, illustrate the
various strains or variations of the theory.
1. Reception is a necessary or essential element, along with the authority of
the lawgiver and promulgation, in the establishment of a law. If the law is not
received, it is not valid.
2. The legislator attaches an implicit or tacit condition to laws, to the
effect that if they are not accepted, they are not valid.
3. If a law is not received by its subjects, and the lawgiver knows and does
nothing, the law is abrogated. The lawmaker has granted a tacit dispensation, or at least epikeia applies.
4. When a law is not accepted, it is an indication that the lawgiver has acted
irrationally and the law need not be obeyed.
5. If the law is very burdensome and difficult to observe it is really a signal
that the legislator did not wish to oblige the community.
6. The non-reception of a law is an indication of the onset of a contrary
custom, or it shortens the time in which a contrary custom obtains the force of
law, e.g., from thirty years to ten.
7. Reception of law by its subjects signifies a de facto (as over against de
lure) confirmation of the law. It lends durability and permanence to the law,
and makes it more stable and less subject to abrogation by desuetude.
8. Violators of a law which has not been received may be guilty of a fault, but
may not be penalized. The law may not be enforced in the external forum.
9. Laws are not received because they are perceived to be destructive of the
church community, rather than building it up. A rule which is seen to be
potentially disruptive of the community, instead of contributing to the common
good, cannot be honored in practice.
10. Non-reception lessens the practical binding force of a law. It reduces its
influence on the community and its obligation on the members.
11. The non-acceptance of a law justifies an appeal, to a superior authority,
and if there is no reply, the law is considered abrogated.
12. Reception and non-reception apply to prior consultation, as when a
legislative authority tries out a proposed law on a group of consultors, e.g., a consistory or a council, and is
influenced by their reactions.
This range or spectrum of opinions about the effects of the acceptance or
non-acceptance of rules by some part of the church community bears witness to
the creative efforts of canonists to account for the phenomenon. But there is a
common reality beneath the variant views: reception has a decisive influence on
the establishment and effectiveness of a rule in the Church.
An action taken on September 24, 1665, by the Holy Roman and Universal
Inquisition (the predecessor of the Holy Office and of the present Congregation
for the Doctrine of the Faith), and approved by Pope Alexander VII, cast the
doctrine of reception into the shadow of disapproval. The Inquisition did not
actually condemn reception, but its reproof produced much the same effect.
The Inquisition condemned a series of twenty-eight propositions as "at
least scandalous" and prohibited anyone from teaching or defending them.
The propositions concerned moral discipline. They were all identified with "laxist"
moral teaching, except the last one, which had to do with the reception of law.
Some examples of the condemned propositions will serve to indicate their source
and direction: A nobleman may accept a challenge to duel if otherwise he will
be judged afraid. A confessor who assigns salacious reading as a penance is not
guilty of solicitation. A priest may take two or more stipends for one
The larger context for the Inquisition's action was the debate raging between laxist moral theologians, Jesuits, Jansenists,
and other writers (e.g., Blaise Pascal) in the early
and mid-seventeenth century. The theological faculties of
The propositions condemned and prohibited by the Inquisition were taken,
sometimes verbatim, from the documents issued by the
Proposition twenty-eight reads: "The people do not sin even though they,
without any reason, do not receive a law promulgated by the prince."
This condemnation was clearly a response to the Gallicans
who had defied papal authority. It was not directed at the canonical doctrine
of reception as such. In reality, it condemned the claim of the French civil
authorities to the placet, that is to a censorship or veto power over church decrees.
This demand and the Holy See's reaction to it arose
from the centuries-long Gallican controversy. The
condemnation was a product of the ongoing Church-State conflict, and had almost
nothing to do with reception as a canonical theory. However, the condemnation
of proposition twenty-eight made it difficult for mainstream canonists to
espouse the doctrine of reception after that time. It cast a pall over
reception which is only now being lifted.
Four final observations about the Inquisition's proposition twenty-eight are in
order.
1. The formulation of
the condemned proposition was deliberately distorted. The clause "without
any reason" makes the statement an obvious exaggeration. It was and is a
position defended by no one. The Inquisition chose an exaggerated formulation
in order to make clear that its target was the action of the political Gallicans and not the canonical theory of reception.
2. In canon law, restrictive laws must
be interpreted strictly. The condemnation of 1665 is clearly a restrictive
decree and, as such, must be construed narrowly.
3. The proposition refers only to the
sin of the people, not to the establishment or effectiveness of the law. It
speaks only of moral guilt, not of canonical obligation.
4. It is applicable only to those who
fail to accept a rule "without any reason," not to those who perceive
themselves to have good reason for non-acceptance or non-compliance.
The 1665 action of the Inquisition had a serous negative impact on the doctrine
of reception. But it is wrong to say that the doctrine was condemned by that
action. In fact, the Inquisition's use of an exaggerated formulation of
reception theory avoided any denunciation of the legitimate canonical teaching.
1. What is Reception?
In canonical treatises the question about reception was often formulated,
"Is acceptance by the people required for the establishment of a
law?" The doctrine of reception responds to that question in the
affirmative. For a canonical regulation to be fully and effectively in place,
the group for whom it is enacted must accept it.
In this context, who are "the people"? Or, in Gratian's
terms, who are "the users" of the law? The people, subjects of the
law, a community capable of receiving a law, or "users" of the law
can signify a variety of groups within the Church. The bishops of the world are
the subjects of many laws. The priests of a diocese and the members of a religious
community are subjects of laws. The faithful people of a nation or of a diocese
constitute user groups. They are all capable of receiving canonical statutes.
In order for a canonical regulation to have real effect, those for whom it was
made must acknowledge it and comply with it. In a very true sense the rule is
confirmed by the practice of its users, as Gratian
said. It is really obligatory for its subjects only when they have accorded it
acceptance.
The law is validly enacted when it is duly promulgated by a person or group
which possesses legitimate legislative authority. But it is not yet a part of
the life of its subject community. It is incipient. The ship has been launched,
but will it sail? The rule-making process is still unfinished. The norm is not
yet fully realized, not yet fully binding.
Reception pertains to the existence of the canonical rule. Some authors, like Matthaeus Romanus, have said that
three elements are equally necessary to make a law; legitimate authority,
suitable promulgation, and acceptance by its users. That is the strongest
statement of the doctrine. But it suffices to say, as Nicholas of Cusa did, that without the acceptance a norm is not fully
constituted, nor fully in being. It becomes truly operative and obligatory for
the community only after it has been received, that is, after they have
confirmed it by their actions.
One way of describing the process of establishing a rule is that it is
initiated when it is promulgated by legitimate authority, but it is fully in
force, fully obligatory when it has been received by its subjects. It has at
least two levels of existence. Like a computer program, it may be designed and
marketed, but it is not really effective until its "user group"
actually makes use of it. Or, like the designs of an architect, they may appear
correct and in accord with the canons of the art, but until they are carried
out and the results seen, they are only incipient, a good beginning. They are
blueprints, not a building.
Reception is a matter of vim and vigor. A freshly promulgated law may be
perfectly legitimate, but it does not yet have force or active influence in the
life of the community. It does not yet have any real effect on the behavior of
the people.
Reception implies more than a de facto accommodation of the law on the part of
the community because it has juridical implications as well. The actual force
and effect of the law is greatly influenced by its reception or non-reception.
It obliges or not depending on its acceptance. It is enforceable only after it
has been received. .
Thomas Aquinas conceived the classic definition of law, namely, "an
ordination of reason for the common good promulgated by one who has care of the
community." Reception is a part of the process. Thomas said that the whole
multitude is to direct things toward the common good, or someone acting on
behalf of the multitude is to do so. In other words, the users of the law are
or pertain to those "who have care of the community." The regulation
of the life of the Church community is never entirely outside of that
community. Thus the community has a share in its own care, in its own direction
toward its common good. One way in which it plays that part is by accepting or
rejecting the laws promulgated for its use.
2. Indications in the Code of Canon Law
"Laws are instituted when they are promulgated,"
the code states (c. 7). The code uses the same Latin verb that Gratian did: instituo. It can
have a slightly different shade of meaning than constituo. Instituo means to found, to plant, to
set up, even to undertake, to begin, to
prepare. Constituo
means to cause to stand, to fix firmly, to establish, to settle, to confirm.
Laws begin with promulgation but they are not fully constituted until they are
received.
The code also refers to a community's reception of laws. When setting forth the
conditions for a custom to obtain the force of law, canon 25 states that the
community forming the custom must be a "community capable of receiving
law." It means that the community must be identifiable, of a certain size
and stability. But a community which is capable of receiving a law is also
capable of not receiving it. The canon is open to the possibility of the
doctrine of reception. The community's non-reception of law has a juridical
effect, just as its practices can have the juridical effect of establishing a
custom which eventually takes on the force of law.
A canonical analogy to the concept of a law which has been promulgated but not
yet accepted is the non-consummated marriage. The canons (cc. 1055-1061, 1141,
1142) clearly state that a ratified marriage, even a sacramental one, may be
dissolved if it has not been consummated by the conjugal act. (For centuries
such a union was dissolved by religious profession.) Consent makes the
marriage, but the bond is not finally established until the union has been
physically consummated. Similarly, the legislative act begins a law, but it is
only established when put into practice.
3. What Reception Is Not
It might help, by way of contrast, to state what reception
is not. It is not the same thing as the abrogation of a law by means of a
contrary custom, but it embodies the same principle of response to laws on the
part of Church communities. Contrary custom applies only where a law has been
fully established and then falls into desuetude. Reception applies where a law
has been promulgated but not yet acted upon, not yet complied with.
Non-reception is not the same as rebellious disobedience or disregard for
rightful authority Reception and non-reception are exercises of virtue, not
vice. Reception calls for the
virtue of epikeia,
the sensitive application of universal rules to specific situations, and of
prudence, the selection of appropriate means to achieve an end. Reception
requires Christian maturity, and prayerful reflection. The difference between a
prudent non- reception and mere disobedience is readily discernible.
Reception is not subversive of legitimate authority. Rather, it supports and
enhances it. Promulgated laws are usually acknowledged and obeyed, and that
compliance obviously strengthens both the laws and the authority which issued
them. On the rare occasions when laws are not received, it is because they do
not suit the community. The believing, Spirit-filled subjects discern that the
rules are not apt for the attainment of their stated purposes or for the common
good. Authority is preserved from the more serious negative reactions to unwise
legislation, e.g., alienation of the people. Finally, reception is not a demonstration
of popular sovereignty or an outcropping of populist democracy. It is a
legitimate participation by the people in their own governance. They actively
collaborate with the lawmaking authorities for their communities. They are
simply exercising, in a responsible manner, their rightful role in the ruling
function of the Church.
The canonical doctrine of reception is firmly based on a whole set of
fundamental theological and pastoral convictions. Some are mentioned here by
way of brief reminder .
1. There exists a true equality among the members of the
Church. All have rights and duties as members. All are to be active in building
up the Body of Christ, and to that end, are to give cooperative assistance to
their pastors.
2. An active dialogue is to be carried on in the Church. Lay persons are to
reveal to their pastors in freedom their needs, desires, and opinions. They are
also to take their own initiatives. Aided by the advice and experience of
lay-persons, pastors will make better decisions in spiritual and temporal
matters.
3. Particular churches are true and authentic churches with autonomy. Out of
them is built up the universal Church. They are linked by the unique bonds of
communion, and their leaders are joined in a genuine collegiality. The diocesan
bishop is the pastor and minister of governance for the local church entrusted
to him.
4. Appropriate adaptations are to be made in the life and worship of the Church
to the genius and traditions of peoples. Inculturation
is an integral part of evangelization. Rigid uniformity gives way to legitimate
adaptation whenever possible.
5. In the Church, authority must always been seen as service, never as
dominance. "Among you. ..let the leader be as
servant. . . I am among you as the one who serves" (Lk.
22:26-27; Mt. 20:25-28; Mk. 10:42-45; In. 13:3-16).
Each one of these familiar theological themes, and all taken together strongly
supports an active part for the people in the rule-making processes within the
Church. Reception is one form of that responsible participation.
Over the centuries canonists have applied the principle of reception to many
areas and items in the discipline of the Church. Some examples will both
clarify the operational effect of the doctrine and the range of issues addressed.
Gratian's own illustration of the principle concerned
letters from two popes, Telephorus and Gregory, which
set up regulations for fast and abstinence for clerics at certain times of the
liturgical year. Gratian said that the rules were not
approved by common usage and therefore those who did not observe them could not
be accused as guilty of transgression.
Goffredo da Trani, Pope Innocent IV, and Cardinal Hostiensis
all applied the doctrine of reception to the canon of the Third Lateral Council
(1179) which ordered a "truce of God" to be observed by warring
parties during certain days and seasons of the Church year. Bishops were
ordered to punish violators of the truce with excommunication. Apparently the
truce was not much observed, and bishops did not try to enforce it. These
canonists said that the bishops should not be punished because the decretal had not been approved by the practice of the
users.
Canonists sometimes disputed the relative authority of the sources of rules.
For example, does the word of a church father take precedence over the decree
of a local council? One such debate focused on a matrimonial impediment. Can a
rapist later licitly enter marriage with his victim?
A papal Bull entitled In Coena Domini contained a list of censures from which only the
pope could absolve. It was first issued in the fourteenth century, and with
additions, was republished each Holy Thursday until finally revoked by Pius IX.
Several authors maintained that it was not effective in
Juan de Torquemada mentioned that the Oriental
Churches did not receive the law concerning the celibacy of priests. "A
papal constitution may not be possible. ..on the part
of the subjects, as when he might want to establish something which is not in
keeping with the practices and customs of the subjects . . . of which we have
the example of the statute about continence not being received by the bishops
of the Oriental Church."
Vitus Pichler maintained
that the law on fasting from cheese and eggs did not oblige in
Some provisions of the 1917 Code of Canon Law, for example, that provincial
councils were to be held every twenty years (c. 283) and diocesan synods
convened at least every ten years (c. 356), were not received in many regions
of the church. The examples could be multiplied. Some rules, indeed, were
initially acted upon and then fell into desuetude, but many were simply never
accepted.
Those who can recall the legislative results of the relatively few diocesan
synods which were held after the 1917 code can also testify that many of the
rules enacted were completely ignored. The same can be said of the Roman synod
held in 1960. Many of the 755 norms issued by that synod for the diocese of
A prominent example of non-received papal legislation in modern times is the apostolic constitution Veterum Sapientia,
which prescribed the use of Latin for teaching in seminaries and other church
institutions. It was widely disregarded because it was viewed as completely
impractical.
These examples of the non-reception of canonical regulations, of course, stand
in sharp contrast to the many hundreds of enactments which have been accepted
by their subject communities. In these vastly more numerous instances the rules
have been strengthened and made more permanent by the fact of their reception.
The doctrine of reception is concerned with the substantive element of
rule-making, as over against the formal elements, i.e., the authority of the
rule-giver and the means of promulgation. It goes to the content of the norm,
to its intrinsic quality. The community of users of the rule must judge its
suitability, in this specific time and place, for assisting them toward their
common good.
The medieval canonists often used the term "consonant" to describe
the criterion for this judgment. The community of believers judged whether a
norm issued for their guidance was consonant with the Scriptures, with their
traditions, with truth. If they perceived it to be authentic
and in harmony with their Christian lives, they received it and lived by it.
They confirmed or ratified the rule by their actions.
The doctrine of reception has not fared well in recent canonical history. It
fell from favor for three main reasons. In each instance, the matter is now
differently understood.
1. The 1665 condemnation of an exaggerated formulation of
the doctrine by the Holy Inquisition cast the teaching into a shadow and made
it difficult to espouse. That reproof had little to do with canonical thinking
about the establishment of law, and everything to do with the conflict between
the Holy See and political Gallicans, as was
demonstrated above. Viewing that action in its historical context corrects our
understanding of the condemnation and clears the way for a rehabilitation of
reception.
2. The dominance of canonical thought by voluntarists
militated against the development of reception. Voluntarists,
following the influential Francisco Suarez (1548-1612), insist that the only
elements necessary for the establishment of laws are the power of the lawgiver,
the will to make a law, and a legitimate form of promulgation. In that scheme,
which prevailed among canonists for a long time, there is no role for
acceptance by the users of the law. Rationalists, following Thomas Aquinas,
view law as ordered to the common good, as means to an end. The community plays
an active role in the attainment of its own common good. Reception is at home
here.
3. The theological viewpoint that Church authority resides exclusively in the
office-holder, entirely unrelated to the Christian community, was also
unfriendly to a doctrine of reception. Before 1900 the opinion that ordained
hierarchs received authority directly from above was widespread. The
conviction, prevalent since the Second Vatican Council, that prelates are
related to and not dominant over communities of believers, provides fertile
soil for this teaching about the reception of rules by those communities.
The reception of canonical rules by the communities regulated by them is an
ancient and honored part of the Catholic tradition. The users really do confirm
their laws by their own practice, as Gratian said.
This study has attempted to trace the origins and variations of the doctrine of
reception, and to describe its present reality .The doctrine deserves to be
restored to a prominent place in canonical teaching and interpretation.
About
the Author
James
A. Coriden is the Academic Dean Emeritus at