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 propo-sitions 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 Mass. A deliberately invalid confession satisfies the obligation to
confess. One may kill a false accuser, false witness, or even the judge who is
about to pronounce a wicked sentence, if there is no other way to avoid harm
to an innocent party. A husband may, on his own authority, kill his adulterous
wife. When two litigating parties each have equally probably opinions on their
side, a judge may take money to decide in favor of one over the other.
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 Louvain and the Sorbonne, among others, censured such
laxist opinions. But the Sorbonne's list of errors contained one which labeled
Rome's claims of papal infallibility as "contrary to the liberties of the
Gallican church." In reaction, Pope Alexander VII issued a Bull on June 26,
1665, condemning the Sorbonne document. The Bull was greeted with hostility in
France and impugned as an implicit approval of the laxist positions. On July
29 the French Parlement forbade the printing, reading, or retaining of
the papal Bull. This rebuff to papal authority occasioned the Inquisition's
action of September 24.
The propositions condemned and prohibited by the Inquisition were taken,
sometimes verbatim, from the documents issued by the Louvain and Sorbonne
Faculties. They were recognized laxist theses. The Holy See wished to show
that it did not approve of these laxist positions despite its action against
the Sorbonne document. But the final proposition was not identified with
laxism. It was not propounded by any of the laxist authors, nor did it appear
on any of the lists of errors censured by the theological faculties. The last
proposition, number twenty-eight, was added to the list in response to the
Paris Parlement, which had tried to prevent the promulgation of the
papal Bull by its action in July.
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? St.
Jerome's view, that such a marriage could be licit, was preferred to the
decision of the council of Aachen, according to Alanus, "because of the
approbation of the Church." Huguccio said it was based on the "general custom
of the Church."
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
France or Germany because it had never been received in those lands.
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 Germany, since it was never received there. Several authors
agreed that some of the disciplinary decrees of the Council of Trent were
never received in some parts of the world.
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
Rome remain only "on the books."
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 Washington Theological
Union, where he also teaches canon law. Ordained in 1957, he holds degrees in
theology, canon law, and civil law. He has written most often on matters of
church discipline and ministry, and has served as co-editor of the Canon Law
Society of America's commentary on the Revised Code of Canon Law. He has
published books on an Introduction to Canon Law and on The Parish in Catholic
Tradition. Currently, he is engaged as co-editor of a new CLSA commentary on
the Code of Canon Law.
