Synodal self-empowerments

Who is the true sovereign? The decisions of Synodal Forum I on power and the separation of powers in the Church.

One of the basic assumptions of the Synodal Path is the conviction that one of the main causes of the deep crisis of the Church in Germany is a (never further defined) "clerical abuse of power". This is supposed to be remedied by the model of the "separation of powers", which is familiar from political science and constitutional law, but which is not used in the sense of the distinction between legislative, executive and judicial power (cf. c. 135 § 1 CIC). Rather, as the explanatory title of "Synodal Forum 1" ("Power and Separation of Powers in the Church") states, it should be about something different - above all more far-reaching: the "common participation and sharing in the mission". That forum wanted to clarify how two goals could be achieved, "power reduction" and "distribution of power". Apparently, no one seems to have noticed that these two goals are in tension with each other, which is not easy to resolve: If power is reduced, it no longer needs to be distributed. What the Synodical Path is ultimately about becomes clear from a closer study of its texts, namely a different distribution of "power".

"Consult and decide together"

This is well illustrated by the action text "Consult and decide together". It was not adopted at the 5th Synodal Assembly of March 2023 due to time constraints. Instead, it was referred to the "synodal committee" "appointed" by the 4th Synodal Assembly in September 2022, admittedly not even mentioned in the Statutes or Rules of Procedure of the Synodal Path (for which, in turn, there are as yet neither Statutes nor Rules of Procedure). This and other procedural oddities (counting abstentions as votes not cast, alleged "precedence" of roll-call votes over secret ballots) need not be discussed further here. Let us concentrate on the content of the text of the action: From text modules from the Council Constitution "Lumen Gentium" and norms of canon law quoted in loose succession in the introduction, especially the task of the diocesan bishop to promote the various expressions of the apostolate, the action text reaches the surprising conclusion, "Therefore", it is part of the Bishop's task to create "binding structures of participation and co-determination of the faithful" in his diocese, as well as (not without redundancy) "to take common decisions together in the binding bodies of the Diocese". An amendment adopted at the Plenary Assembly of the Bishops' Conference and introduced by one of the diocesan bishops attempted to defuse the passage by adding the clause that "Synodal bodies" could not "override the authority of sacramental ministers as established in canon law".

So what does "joint consultation and decision-making" mean? The diocesan bishop - with the consent of the "existing Synodal bodies of the Diocese" (whoever that may be) - is to issue regulations for "Synodal councils" at Diocesan and parish level. These councils are to be elected by the "faithful entitled to vote" in the diocese or parish "in free, equal and secret elections".

The diocesan council is given the possibility of co-opting "further members" by simple majority vote (not limited in number), i.e. to supplement itself. Considering the persistently low voter turnout in parish council elections (it averaged 12.75 per cent in Bavaria last year), there is a serious legitimacy problem here: such a council would not even have a quarter of the faithful behind it; and this quarter would not even know about the additionally appointed members.

Shifted decision-making competences

The subject of "joint consultation and decision-making" should be "issues of diocesan-wide importance" or "all important decisions" of the parish. Obviously, the text of the action assumes that the actual decision-making body is the "Synodal Council". And a legally effective (!) decision is supposed to come about when the bishop or the pastor agrees to it. Let us therefore note as an interim result: The decision-making competence is shifted from the bishop or pastor to the "Synodal Council". The "power" is distributed differently, in accordance with the goal set.

But what happens if the bishop or the pastor in charge does not agree to a "decision"? For this case, the authors of the action text have devised a complex mediation procedure: A new consultation has to take place. If there is no agreement, the "Synodal Council" can contradict the "vote" of the bishop or pastor with a two-thirds majority. If the bishop or pastor still does not change his mind, a conciliation procedure is to begin, to which all parties involved undertake to adhere in advance. If the procedure concerns the diocesan level, it should also be possible for "Bishops and Synod members from other dioceses" (!) to be involved. The amendment tabled by the Bishops' Conference probably intends to set somewhat higher hurdles for mediation, which is now called "consensus procedure": It is to take place only if it "turns out" (How?) that "the relationship of trust has been shaken" (What does that mean? Who decides?).

The role of the pastor

For the parish level, this procedure does not bring anything fundamentally new. Many diocesan parish council statutes already reduce the role of the parish priest in relation to parish council decisions to a "right of veto" - in clear conflict with universal canon law. If an agreement proves impossible, either a conciliation procedure takes place or the Ordinary decides as the next higher authority. What quite a few bishops have imposed on their pastors in the past will in future also affect them.

The authors of the statutes already in force, and even more so of the text of the action, must hardly have been aware that such a basic model of the assignment of bishop or pastor and "Synodal Council" or parish council has been found for some time in a practically relevant area of regulation in the German legal system: in state municipal law. Here, the mayor must object to a municipal council resolution that he considers to be unlawful. If no agreement can be reached, he must submit the matter to the legal supervisory authority, which then decides. In municipal law, this regulation is appropriate, since the municipal ordinances constitute the mayor and the municipal council as equal main organs of the municipality.

Bishops and pastors cannot "renounce" power

In canon law this is fundamentally different: the bishop has "all" ordinary, autonomous and direct power in his diocese (c. 381 § 1 CIC). It is incumbent on pastors to "exercise" in the community entrusted to them the ministries of teaching, sanctifying and - in our context: above all - leading, while the laity "assist" in this, "according to law" (c. 519 CIC). In the depths of their hearts (and minds, both canonical and ecclesiological), the authors of the text of the action did not fail to notice the considerable tension between their model and the hierarchical constitution of the Church.

Voluntary sharing of power

They try to resolve it by an artifice that an isolated voice from a canon law background fed into the Frankfurt debates, namely the idea that bishops and pastors could share their "power" with "Synodal Councils" in "self-binding", of course "voluntarily". Such a notion exposes a fundamentally incorrect understanding of "competence" (the legal category for "power"): As in state law, competences are to be exercised and exercised by the competent office bearers.

They simply cannot "do without" them or transfer them to other actors (such as "Synodal Councils") who have not been declared competent by the legal system or who are completely unknown to it. A competence - unlike a (fundamental) right - is assigned to its bearer to safeguard the (ecclesiastical) common good, not for its own development. In short: The entitled person can renounce fundamental rights, the office bearer cannot renounce his competences.

The Sovereign of the church

Behind all these ecclesiological and ecclesiastical autonomies is a basic assumption articulated in undisguised speech by a leading voice of the Synodal Path: the "Synodal Assembly" is "the sovereign". This turns things upside down: church action is only legitimate if it is aligned with the foundation and will of Jesus Christ. This is popularly expressed in the line of the hymn (currently significantly re-penned): "The Church is built on Jesus Christ alone". He - and He alone - is the sovereign of the Church.

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