Pope Francis on Saturday issued a revised Fundamental Law for the Vatican City State, a kind of constitutional law for the tiny territory surrounding St. Peter’s Basilica.
The new constitution made a number of interesting reforms. But a key change in the text’s language raises deep questions about the legal thinking around Pope Francis — and it could point to an important undercurrent in the pope’s wide-ranging project of institutional reform for Church structures.
Most interesting, the new law allows for lay members to serve on the city state’s governing commission but removes all reference to the commission exercising the “power” of governance.
The significance of that change extends beyond a mere tonal emphasis of the pope’s immediate governing power over Vatican City, and suggests an important development in the debate over exercise of the power of governance by lay people.
But while the significance of the change is clear, its meaning has some canonists vexed.
Changes in the Vatican City State’s legal language could represent either a rollback on attempts to broaden lay governing power, or they could mean the opposite — a new legal formulation to allow lay people to assume a new range of governing offices.
The new law re-emphasizes the international sovereignty and legal independence of Vatican City, and includes new and explicit language about how the city-state’s temporal footprint ensures “the absolute and visible independence of the Holy See for the fulfillment of its lofty mission in the world and guarantees its indisputable sovereignty also in the international arena.”
While often referred to as a sovereign state, albeit a micro-state, Vatican City is not technically itself sovereign.
Instead, Vatican City State is recognized, both in its own law and in international law, as a territory governed by the Holy See, which is a distinct legal entity — sovereign but without territory — consisting of the Bishop of Rome and those institutions which he erects and maintains to assist him in his mission.
Vatican City is, in that sense, a sovereign territory governed by another sovereign entity, the Holy See, in the person of the Roman Pontiff.
The pope, according to Article 1 of the fundamental law (both the new and old versions) “has the full power of government, which includes the legislative, executive and judicial powers.”
Since the 1929 Lateran Treaty with Italy, which created the modern Vatican City state arrangement in international law, the pope has governed the territory through a governing commission, with the pontiff as the singular legal source of executive, legislative, and judicial power.
The pope can reserve some exercise of governing power to himself, but the ordinary work of the executive, legislative, and judicial branches of Vatican City operate on a stable basis according to the norms of the fundamental law.
The revised law released Saturday includes several key changes from the previous constitutions of 2001 and 1929.
The first and most obvious is that the pontifical commission, which constitutes the executive and legislative branches of the Vatican City government, will now include lay members. That change is in line with Praedicate evangelium, Francis’ 2022 constitution for the Roman curia, which created the possibility for laymen and women to lead curial departments and assume other offices and functions which had been previously restricted to clerics.
But another key change in the new fundamental law for Vatican City points to a wider debate on the ecclesiological understanding of power and governance which began with the promulgation of Praedicate evangelium.
The previous fundamental law, issued by Pope St. John Paul II in 2001, explicitly explained that legislative, executive, and judicial “power” was properly exercised by the city state’s governing commission — then composed exclusively of clerics — and courts.
But in the fundamental law issued Saturday, all reference to the exercise of ordinary governing “power” was removed.
Instead, the notion of governing “power” is only used in reference to the pope personally. The pontifical commission and the courts are said to exercise legislative, executive, and judicial “functions.”
That might seem like semantics.
But canonical scholars have been embroiled for decades in question of who can exercise the “power of governance” in the Church — and whether they need to be ordained to do it.
That issue came a head last March, when Praedicate evangelium seemingly opened the door for lay people to exercise the power of governance in the universal Church, by becoming prefects of curial dicasteries.
In a Vatican press conference after the promulgation, Cardinal Gianfranco Ghirlanda, SJ, a senior canon lawyer who helped draft the document, said that laypeople could lead Vatican departments because “the power of governance in the Church doesn't come from the sacrament of Holy Orders, but from the canonical mission.”
That was, for canonical scholars, a very sobering moment: A long contentious idea, that laypeople might exercise the ordinary power of governance, dropped into a papal press conference, with the appearance of papal approval, and some new laws to show for it.
The idea has been contentious because in canon law and in the Church’s sacramental theology, the exercise of the power of governance has long relied upon the power of orders — sacramental ordination — even when power is vicarious, exercised on behalf of a higher authority.
It is for this reason that diocesan judicial vicars and vicars general have to be priests.
While lay people can, according to the Church, “cooperate” in the exercise of the power of governance, the theoretical outer limits of their cooperation have been hotly contested among canonists for years.
Of course, those questions have not applied to the governance of the Vatican City State, since the Holy See’s governance of the territory concerns civil, rather than sacred affairs.
For example: in canonical courts, lay judges can only work alongside clerics, as members of judicial panels which must include clerics. But in Vatican City, laypeople sit as judges in their own right, forming entirely lay panels to try cases.
Under the old fundamental law, those lay judges exercised “judicial power” stably under the pope, while the new law defines that they exercise only a judicial “function,” with all power properly speaking residing in, and presumably exercised by, the pope personally.
The change in the lex fundamentalis is potentially profound, especially as it comes amid fierce debate and shifting sands on the lay power of governance.
But it remains unclear whether the change offers a new template for the Ghirlanda school of expanded lay participation in governance, or is instead the beginning of its rollback.
Because the governance of Vatican City concerns civil, not sacred affairs, there is no ecclesiological issue raised if the pope chooses to delegate governing authority to laypeople, since he does so as the temporal governor of a territory and not the spiritual head of a sacramental Church.
But the new law actually stripped lay people of the expicit ordinary exercise of the power of governance in the Vatican City State. So what does that mean?
It might suggest that Francis is now relying on a different set of legal advisors to draft his legislation, and pointedly minimizing the entire notion of “lay governance” in the Church, even while increasing lay cooperation in the theologically uncomplicated governance of a temporal state.
If that is the case, it might explain why the widely predicted lay appointments to lead curial departments have mostly failed to materialize after the launch of Praedicate evangelium last year.
On the other hand, new legal language, by which lay people exercise a governing “function” without themselves having governing “power,” could represent a template for the expanded exercise of governance by lay people in ecclesiastical offices of the Church.
If that is the case, similar language will likely feature in future canonical legislation, too, in the near future.
There is a third possible interpretation, which seems the least likely: that the change was made simply to emphasize the pope’s direct and personal governing authority of Vatican City.
That appears the least likely interpretation for two reasons:
First, it would be redundant. The pope’s immediate governing power over Vatican City is well established in international law, and explicitly enshrined in Article 1 of both the new and old editions of the fundamental law.
Second, as a point of emphasis, it would actually be counterproductive, and run contrary to the Holy See’s current interests.
While firmly established in international law, the status of Vatican City and the credibility of its governing structures have, in recent years, been routinely called into question in the context of the ongoing Vatican financial crimes scandal and trial.
Among the 10 defendants indicted in that sprawling and ongoing legal process, which is being tried before an all-lay panel of Vatican City judges, several have lodged complaints against the process, claiming that it is, in effect, a papal kangaroo court in which the pope can and has capriciously intervened in the process, changing laws to favor the prosecution.
Those same criticisms have been echoed even by figures otherwise bullish on the prosecution of those same cases, like the recently deceased Cardinal George Pell in his originally pseudonymous Demos Memo, even while a fuller analysis of Francis’ handling of the case could suggest that pope acted within the law, and with respect for both due process and the rights of defense.
In any event, the broader atmosphere of criticism makes it highly unlikely that drafters of the new fundamental law saw placing an absolute emphasis on immediate and total papal exercise of all governing power as a timely or helpful guiding principle to their work. In fact, close reading of the text suggests the opposite.
The previous version of the law stated that “judicial power [in Vatican City] is exercised, in the name of the Supreme Pontiff, by the organs constituted according to the judicial structure of the State,” which is “is regulated by the law.”
The revised fundamental law, on the other hand, states that “the judicial function is exercised, in the name of the Supreme Pontiff.” But while including previous law’s treatment of personal papal prerogatives on judicial issues like clemency and prosecutorial discretion, the new law also presents a new article stating that “In every process, the impartiality of the judge, the right of defense and the right to be heard between the parties are guaranteed.”
While this principle was certainly considered operative under the old law, its explicit inclusion in the text suggests that the new fundamental law was drafted with a particular sensitivity to criticism of judicial independence in Vatican City, and how the new language on the power of governance could be interpreted.
While the full import of the new law, and the underlying legal philosophy it articulates, may only be clarified by other future reforms, what does seem evident for the moment is that something big has changed, and presumably for a big reason.
Editor’s Note: This analysis originally stated that judicial panels in diocesan marriage tribunals must have a majority clerical membership; this provision was removed from the law by the papal motu proprio Mitis Iudex Dominus Iesus.
The Pillar regrets the error and enjoyed the author having to suffer correction.