Andrei Șaguna and ”The Organic Statute” – VI.4 The participation of the laymen in exercising the Church power: the organic or ecclesiastical constitutional principle

VI. THE CANONICAL PRINCIPLES OF ANDREI ŞAGUNA’S ECCLESIASTICAL ORGANIZATION

VI.4 The participation of the laymen in exercising the Church power: the organic or ecclesiastical constitutional principle

 VI.4.1 Notional clarifications

In the context of the nineteenth century, the most daring idea in Şaguna’s organizational work was the introduction of the lay people as an active part of the ecclesiastical organization: “This reform, whose canonicity has been long discussed, but which Şaguna sustained skilfully, diligently and successfully, is meant to become the angular stone in the revival of the universal Church. Şaguna’s greatness lies in this very wise prevision of reading the thoughts of the future centuries, which gives his work a lasting value.”[1]

The same authority – Jesus Christ – who invested the Apostles, respectively the bishops with entire power in the visible Church, wanted the lay people as a constitutive part both responsible and active in the Church, leaving the hierarchy the right to regulate the laymen’s rights depending on the Church’s needs. However, there are not two sources of power (a clerical and a non-clerical one) in the social organism of the Church, there is only one principle and one authority which holds the power: Jesus Christ himself, who invested the Apostles and the bishops with the entire power founded on grace, leaving the participation of the laymen in exercising the Church power to the bishops’s designation.[2]

The fundament of the ecclesiastical organization through the active involvement of the laymen is the canonical organic or ecclesiastical constitutional principle. This principle ensures the presence and activity of the laymen in all the fields of the Church life, on the grounds of the legitimate rights they are entitled to, not due to some concessions from the clergy. It is “the first and most important fundamental canonical principle of the Church rooted in the ecclesiology, that legitimates all the rights the laymen are entitled to in the life of the Church, and it permanently postulates the acknowledgement and enforcement of these rights.”[3] Despite its hierarchical-synodal character according to which the leadership of the Church belogs to the clergy, the ecclesial activity is not reduced at the clergy, because the laymen are also personal elements of the Church. Andrei Şaguna derived the laymen’s constitutional rights from their undisputable quality of members of Christ’s spiritual body.[4]

“It is called the organic principle or the principle of organic structure and work of the Church because, on the one hand it reflects the organic structure of the Church, meaning its structure resembling an organism, and on the other hand it also reflects the fact that all the parts of this organism contribute effectively to the completion of any activity in the Church. It is called the ecclesiastical constitutional principle because it expresses the specific canonical rule according to which all the Church’s units and leading organs are constituted through the expression of the will of all the members of the Church, not only the will of one leader or one category of members. And, as the leading organs of the Church are constituted through the will of all its members, the same the activity of these organs is achieved through the efficient co-operation of all categories of members of the Church.”[5]

The Church power the hierarchy holds has three branches: the holifying one (potestas ministerii/munus sanctificandi), the teaching one (potestas magisterii/munus docendi) and the leading one (potestas jurisdictionis/munus regendi).[6] “The Apostles had jure divino by Christ’s special mandate, the full entirety of the three branches of Church power. They were sent all over the world. Their competence was unlimited. But, in their own turn, the Apostles sent the bishops their entire holifying or sacramental power with the exception of the personal gifts (the Apostles were inspired, therefore infallible etc.) by consecration, while they gave them the other part of the Church power (potestas magisterii and potestas jurisdictionis) in its entirety, by missio canonica[7], by sending and investiture; but this was limited to a certain community and circle, only in that circle they [the bishops] had the right to exercise the entire Church power in its three branches, which means the teaching and leading power next to the holifying one.”[8]

The Church holifying power can be exercised directly exclusively by the clergy, the consecrated people. The character of this power is mystical and invariable and is received through the act of consecration.

The non-clerical people have no access to the direct and immediate exercise of this power.[9] An exception from this rule is the baptism administered by the laymen in emergency cases. Then, in order to clearly express the participation of the laymen in the exercise of the holifying power, a traditional rule was adopted that no Holy Liturgy would take place unless believers were present.[10]

The Church teaching and leading power have an external, variable character, which is given through missio canonica, on the basis of the holifying power.

As a special function, the power of teaching belongs only to the hierarchy (clergy), which exercises it as the special organ meant to do so, while its exercise by the laymen is forbidden and condemned by the Church. Still, the laymen participation in exercising this power conditioned by the rights of the hierarchy and accepted by it are allowed and very necessary. The laymen participated and still participate in its exercising by doing their religious duty as required by the conscience, and by the rights asserted and recognized along the history of the Church.[11]

The episcopacy holds the Church leading power in its entirety and exercises it in the same way as the teaching power. The bishopry is given the leadership of the Church as a special function, the exercise of the leading power in the Church being a right and a duty of the hierarchy. “No-one can assume in this respect any right independent of the will of the hierarchy, and whoever holds or exercises a function having a right that is related to the leading power does it because the hierarchical authority invested them to do so. However, the hierarchy never exercised this power in an absolute way, and if it did so, that was an abuse.”[12]

Although less important than the participation in the exercise of the first two branches of the Church power – the holifying power and the power of teaching –[13] , the participation of the laymen in the exercise of the third power branch – the leading power – has been on the one hand ever more visible, and on the other hand more discussed.

The acts of the leading power can be subdivided into three categories or sub-branches, expressing three functions (inadequately called powers) of this power, namely: the legislative, executive and judicial functions.[14]

The laymen have participated in the exercise of the legislative function to a certain extent in the legislative activity of the Ecumenical Councils or of the local synods of different types, called mixed synods, general synods, assemblies, congresses, meetings etc. “Their contribution to the activity of these ecclesiastical legislative bodies is and remains among the most useful ones at the adoption of the norms which were appropriate for every period of the life of the Church.”[15]

The Church recorded the participation of the laymen in the exercise of the judicial function especially in the first four-five Christian centuries, “even in a form that meant their contribution not only to the achievement of a judicial act, but also of a holifying act, specific to the consecrated priesthood, which was the administration of the Holy Sacrament of  Penance. As we know, at that time the confession of sins as well as their absolution or the administration of penitence was done not only in the presence of the believers, but also with their active participation. Later on, within some disciplinary and even judiciary instances, it was accepted that representatives of the believers be present and cooperate in cases of moral deviation or general anti-social acts committed by the clergy, and also in the cases of litigations between clergymen and laymen.”[16]

The executive function consists in carrying out the decisions of the disciplinary and judiciary instances, and of the imperatives that derive from the ecclesiastical laws or from the decisions of the leading organs. In this light, the executive function is also called “church administration”, its field of work comprising: the common acts of ecclesiastical administration, the acts concerning the election of the clergy or the setting-up of other organs in the Church, as well as the actions related to the administration of the Church property.

The participation of the laymen in the exercise the executive function in the life of the Church was asserted from the very beginning, especially through their collaboration on the election of the clergy and other leading organs of the Church, and on the administration of the Church property. “These have remained, to this day, the acts which the lay believers participate on traditional and canonical grounds in, meaning that they have done so both due to the long practice which has become law, and due to some positive canonical norms, expressed in texts of Holy Canons and in other ecclesiastical laws.”[17]

The most important actions of the Church leading power in which the laymen participated and still do nowadays in the Orthodox Church are: the activities of the synods, the election of the clergy, and the administration of the Church property. This is how the ecclesiastical constitutionalism is achieved and expressed.[18]

VI.4.2 The mixed synodality

The “Project of Regulation” formulated the creation of five categories of mixed synods, which one third clergymen and two thirds laymen participated as members in. These categories were: the parish, the protopopiate, the eparchial, and the metropolitan synods.[19] The numerical ratio between the clergy and the laymen determined the composition of the synods, being in favour of the laymen, as it starts from the principle of individual equality.[20] The laymen’s participation in the mixed synods was made based on election and the representative principle.[21] The mixed synodality constituted through elections is one of the important points of the ecclesiastical organization conceived by Andrei Şaguna: “Metropolitan Şaguna was, maybe like no other one before him, preoccupied with the belief that the administration of the ecclesiastical affairs had to take place on good terms between the clergy and the lay people. But, because neither the clergy nor the laymen could assemble repeatedly for technical reasons in their entirety, Metropolitan Şaguna has the great merit of establishing precisely the representative principle.”[22]

As far as their structure is concerned, the synods may be: episcopal (composed only of bishops of different ranks); mixed (composed of bishops, priests, deacons and laymen). In “Anthorismos”, Andrei Şaguna made a difference between the episcopal synods (referred to only as “synods”[23]), and the mixed ones (referred to either as “assemblies”[24], or as “synods”): “Wir sind nämlich für die Behandlung der dogmatischen, sakramentalen, ritualen, gerichtlichen und disziplinaren Sachen für Metropolitan- Patriarchal- und Ökumenische [Sinoden], Kirchenfonds- und Volksschulgegenstände aber sind wir für Eparchial- und Metropolitanversammlungen zusammengesetzt aus den kirchlichen Würdenträgern und den Vertretern aller Faktoren, die sich in einer Eparchie und Metropolie befinden, als: der Priester, des Adels, der Literaten, und der Gläubigen. Oder, um jede Mißdeutung fern zu halten, sprechen wir unsere Meinung in Betreff der Organisierung unserer kirchlichen Angelegenheiten dahin aus, daß es vor allem nothwendig ist, daß in jeder Eparchie eine Sinode abgehalten werden soll, an welcher sowohl der höhere, als auch der Parochial und der Regular Klerus und die Laien durch ihre Vertreter Theil zu nehmen hätten, und nach Abhaltung dieser Sinoden schlagen wir eine allgemeine Metropolitan-Sinode vor.[25]

The mixed synods were the most numerous and frequent in the history of the Church, the episcopal ones taking place only occasionally at the beginning, namely when issues concerning the faith were discussed.[26] The mixed synodality evolved along with the episcopal synodality. The apostolic synod of Jerusalem (Acts of the Apostles, 15) is the prototype of the Church assemblies which both the clergy and the lay people participated in.[27] The laymen had no decisive voting right in the mixed synods; only the bishops had this right, as rectors of the churches; however, the role of the lay people was not only to be informed about the bishops’ decisions, for many laymen expressed their opinions, sustained or argued against an issue, thus influencing the taken decisions. “The participation of the laymen in the Ecumenical Councils generally was not excluded, nor was it in the other less important synods of the East.”[28] However, “after being of common use in the first centuries, the mixed synods stopped receiving too much consideration in time.”[29] They experienced exaggerations too[30], which does not mean that the institution is wrong in itself, but that it was subject to mistakes, like any other human institution.

Concerning Andrei Şaguna’s way of understanding the mixed synodality, his pastoral letter of December 5, 1855, is an important point of reference. It was written as a reaction to the subjective and provoking attitude of “The Transylvanian Gazette”, with the purpose of preventing its buying and reading by the Orthodox. In the second part of his pastoral letter, the bishop was forced to dedicate larger coverage the mixed synodality. A former Greek Catholic gazette editor – George Bariţiu – had published a calendar-chronicle of Transylvania, praising the laymen’s participation in the mixed eparchial Orthodox synod of March 1850[31]. Although the calendar author’s intention have been laudatory toward Andrei Şaguna, the bishop felt offended by the latter’s ignorance and incompetence: “the calendar’s writer says that our eparchial synod of 1850 had only one important significance, which was that not only the clergy, but also the lay people were represented there. Thus, the writer shows by his words that he was neither gifted, nor willing to write about our Church’s assembly, because otherwise he would have mentioned in the Transylvanian Chronicle – which he writes himself – another happening of the greatest significance, not that one which always happens wherever such an eparchial assembly is held in our [Orthodox] Church, as it was our assembly of 1850.”[32] Therefore, for the Bishop Andrei the mixed synodality was a “natural” thing in the Orthodox Church, something “which always happens wherever such an eparchial assembly is held”. The novelty of the eparchial synod of 1850 was, in his opinion, not the mixed synodality itself but the recognition of the Orthodox Transylvanian Church’s rights after over three hundred years, and consequently, the free assembling of the clergy and the laymen within that synod.[33]

The explanation of the mixed synodality was resumed in “Anthorismos”. The presence of some lay representatives in the eparchial synod could only be of ill augury for the caesaropapist intentions, that is why the mixed eparchial synods organized in Transylvania which were well-received by the Bukovinian believers, were fought against by the leadership of the Eparchy of Czernowitz. Andrei Şaguna’s argument in favour of mixed synodality was an elaborate one: “1. wir glauben und bekennen, daß wir kein kanonisches Fundament verletzt haben, als wir zu unseren Diöcesanversammlungen in Siebenbürgen neben den Vertretern des Klerus auch jene unserer Eparchioten zusammenberufen haben; wenn unsere Brüder aus der Bukovina zu wissen glauben, daß diese unsere bischöfliche That jedes kanonischen Fundamentes entbehrt und jene kanonischen Fundamente kennen, welche unsere bischöfliche That jedes kanonischen Fundamentes entbehren lassen: so mögen sie die Güte haben, uns mit denselben bekannt zu machen, quia ars est longa, sed vita brevis; 2.  wir glauben und bekennen, daß wir gefehlt und Partheihungen provoziert hätten, wie wir sie in der Bukovina aus den oberwähnten Worten unserer dortigen Brüder ersehen, falls wir zu den abgehaltenen und zu Regulierung der kirchlichen und Schulangelegenheiten abzuhaltenden Diöcesan Versammlungen die Vertereter des Eparchialvolkes nicht einberufen hätten und künftighin nicht einberufen würden, denn wir wissen es, daß einerseits eine derartige Manifestation weder die kanonischen Institutionen, noch die kirchlichen Interessen, noch jemandes Ansehen verletzen, sondern im Gegentheile alles dieses auf eine günstige Weise fördert; daß andererseits aber die Stelllung unserer Kirche in Siebenbürgen und ihrer Metropolie, worin sie sich bis heutigen Tags befindet, und woraus wir sie retten wollen, eine außerordentliche ist, denn in Folge der politischen Maßregeln ist die Kirche in den elendesten und abnormsten Zustand herabgesunken, und sie ist jetzt mit allen ihren Elementen, Faktoren, die in der Kirche vereinigt sind, auf den normalen Stand zurückzufüren, ist das Zusammenwirken nothwendig und solche Mittel, welche unausbleiblich die Kirche zu erneuern im Stande wären, und um mit den Worten des Apostels Paul zu reden (1 Corinth. 14,1), wir sind verpflichtet für solche Mittel zu sorgen, wodurch wir sicher sein können, daß die Kirche an der Erbauung Theil nehmen werde. […] Die väterliche Sorge eines Bischofes erkennet man damals am deutlichsten, wenn er Klerus und Volk um sich versammelt und persönlich beide aufklärt und kapazitiert; also zumal wir das Geistige lieben, so forschen wir nach dem, was für die Erbauung der Kirche zweckdienlich ist, damit wir in unseren Bestrebungen gedeihen…[34] He mentioned the 34 apostolic canon[35] and the canon 13 of the regional Council of Laodicea[36], which in his opinion legitimize the mixed synodality too, for the good functioning of the eparchy; then Bishop Andrei showed the purpose and important results of the mixed eparchial synods of 1850 and 1860, sustaining that he only followed the Apostles’ example, who decided together with  the Christians on the issue of charity, the acceptance of pagans among the Christians, Matthias’ election etc.[37] Although Andrei Şaguna was convinced that the mixed synodality was not un-canonical, he underlined that the foundation and supreme argument of mixed synodality is the very essence of the Church – the love: “3. wir glauben und bekennen, daß jene Handlung eines Bischofes, welche das gute Eiverständniß mit sich bringt, und die daraus resultierende Liebe zwischen dem Bischofe, dem Volk und Klerus, sowie auch allgemeine Thätigkeit in allen Gliedern der Kirche, die bewirkt hat, daß wir heute in Siebenbürgen über 600 Volksschulen unseres orthodoxen Ritus haben, nicht jedes kanonischen Fundaments bar genannt werden kann, denn dann hätte nicht Christus zu den Aposteln gesagt: ‘Ich gebe euch ein neues Gebot, daß ihr einander liebet; ja so einander liebet, wie ich euch geliebt habe.’ (Joh. Cap. 13,34); denn dann hätte auch der Apostel Paulus ohne Nutzen an die Römer geschrieben c. 13. v. 10: ‘Die Nächstenliebe füget Niemanden Schaden zu: die Liebe schließt also alle diese Gesetze in sich ein und erfüllt sie.’ Dann hätten auch die Worte des h. Johannes in seinem ersten Briefe cap. 4. v. 11 keinen Sinn, wodurch gelehrt wird: ‘daß wenn Gott uns so sehr geliebt, daß er seinen eingeborenen Sohn in die Welt geschickt hat, um sie zu erlösen, auch wir ja einander lieben müssen.’ Dann hätte nicht der nämliche Apostel in seinem ersten Brief c.3 v. 18,19,21,22 zum Troste der wahren Christen also geschrieben: ‘Meine lieben Kinder, weg mit bloßer Wortliebe, erweisen wir uns einander thätig, liebreich, nur hieraus erkennen wir, ob wir aus der Wahrheit seien. … Geliebte, wenn unser Herz uns nicht mehr bestraft und verdammet, so haben wir freudiges Vertrauen zu Gott; wir werden alles, um was wir ihn immer bitten, von ihm erhalten; denn wir sind ja unter denen, die seine Gebote halten, und thun, was ihm wohlgefällt.’ und endlich, hätte auch der Apostel in seinem Briefe an die Kolosser c. 3. v. 14. nicht gepredigt: ‘Ueber dieses alles haltet die Liebe, welche das Band der Vollkommenheit ist’.”[38]

Concerning the statement of the Bukovinians that the mixed synodality was Bishop Andrei Şaguna’s “innovation” in the Transylvanian Orthodox Church, because in the past no laymen participated in the Transylvanian synods, the unionist synods of 1700 and the elective one of 1809 being mentioned as proofs, he replied: “Wir wundern uns und müssen uns darüber wundern, wie sich unsere Brüder für die Begründung ihrer Meinung Beispiele sogar auch solcher Verhältnißen vorzubringen bemühen, die nur per jus fortioris von Seiten der politischen Behörde in unserer Kirche aus Siebenbürgen eingeführt wurden.”[39]

Seeing the laymen’s presence in the deliberative bodies as a sure guarantee of the revival of the ecclesiastical life, Andrei Şaguna was aware, at the same time, of the danger of the spreading of clericalism, which was so active in his age both in the West and the East[40]:  “I ask you, please, do not let go off the once gained freedom for the gathering of the synod which the representatives of both the clergy and the Christians [the laymen] implicitly will take part in. Use this freedom, for, believe me, you will find in it the revival of the numb and lethargic ecclesiastical spirit. I assure you that our enemies, whose number is legion, will know how to use their despotism if you are not able to use your freedom.”[41] In answer to this, the laymen loved the bishop who supported their dignity of limbs of the Church, entitled them to take part in the decisional acts that concerned it: “If I could instil in our superiors Your Excellency’s thoughts, the sufferance for the goodness, honour, autonomy, the advancement of the Orthodox Mother Church and for the concentration of its separated and isolated members – only a spark from Your Excellency’s vitality, energy, keenness.”[42]

Even the laymen of Serbia admired the bishop of Transylvania for his works: “Your Excellency are for those parts, especially for our Romanians brothers, a true and lucky phenomenon…”[43]

VI.4.3 The participation of the laymen in the election of the clergy[44]

Among the most important attributions of the ecclesiastical mixed corporations conceived by Andrei Şaguna was the election of the clergy of all degrees: “Yes, it is a consequence of the sheer ignorance of the dignity which Christians are entitled to enjoy, when someone doubts the Christians’ right of electing their bishops or priests and of managing the ecclesiastical-economic affairs.[45] The election of the clergy from the lowest levels to the metropolitan was in the charge of the mixed synods, at the level corresponding to each of them: the parish synod would elect the parish priests and deacons[46], the protopopiate synod would elect the protopope[47], the eparchial synod would elect the bishop[48], the metropolitan synod (the church congress) would elect the metropolitan[49].

Since the foundation of the Church, the appointment of the clergymen has been done through the collaboration of the lay people and the hierarchy, of the conducted Church and the leading one. “It is true that the power of appointing clergymen of all degrees was given to the hierarchy and it rightfully belongs to it, but not so absolutely that it excludes the co-operation of all the other elements composing the Church. […] The practice of the Universal Church abounds in clear evidences on this issue, although sometimes this thing is forgotten and so, what the whole Church – both in the East and in the West – has noticed from the very beginning and preserved in its tradition, is treated as Protestant or with Protestant inclination innovation.”[50] If in the first ten-elf Christian centuries the participation of the laymen in the election of the clergy – the expression of the elective principle – was generally adopted in the Church, after that it was maintained almost exclusively in the Orthodox Church, and it appeared in a new, deviated form, in the sixteenth century’s Protestantism.[51]

An appointment of the clergy only by the hierarchy, although within the law, it “is not meant to reach its goal; for an election to be real and serve the Church better, it has to be the result of the co-operation between the entire Church, the faithful and the hierarchy. […] Although the Christians cannot impose a shepherd directly through elections because the ecclesiastical authority can reject him on serious grounds, they can still resort to resistance, and using such a means they can refuse to accept unwanted persons. The canons themselves assure us of this right of resistance. Imposing an unwanted shepherd is un-understandable in the Church and not only useless but also harmful, because an unwanted shepherd does not make for the sheep’s protection, but their dissolution.”[52]

The bishops’ election was the object of special attention during the entire Christian era, due to the importance of this function. In the ancient times, all the Christians in a vacant eparchy were invited to co-operate for the election of the hierarch together with the neighbouring bishops. There were also times when there were attempts at eliminating the laymen or at least reduce their position to a decorative role, but the power of a tradition lasting for centuries could not be defeated.[53]

The laymen are entitled to co-operate for the election of the bishops, but their role is not as important as that of the bishops’ synod, which has the right to censor the choice made by the laymen. Still, “the laymen’s co-operation is indispensable, because an election made only by the bishops is almost as inappropriate with the spirit of the Christian Church as one made only by the laymen. The collaboration of these two elements is absolutely necessary. The laymen’s role is that of choosing and presenting one or more candidates eligible for the bishopric to the higher censorship of the bishops’ college; in this way, the laymen have practically a right of presentation, of candidature.”[54]

But the decision is made by the bishops’ college. By vote, the bishops can accept or refuse – should the reason be very serious – to promote a candidate proposed by the laymen for the position of bishop. However, the bishops cannot impose anyone against the laymen’s indicative will. That is why, as a correction factor of the episcopal college’s arbitrariness, “the people have the right to refuse to accept a hierarch who is neither wanted nor loved by them.”[55]

The limits of the laymen’s involvement in the act of electing the hierarchs is therefore established and lies in the right to propose candidates to bishopric and to refuse the inappropriate hierarch – the right of opposition. The bishops are the rulers of the Christian society by divine right, they are entitled to decide on the election of the new bishops, but in this decision they are obliged to take into consideration the wish of the people “for in the Orthodox Church the authority is not exercised in an absolutist way.”[56]

In the “Project of Regulation” handed in to the mixed synod of 1864, Andrei Şaguna established the election of the bishops to be made by the eparchial synod composed of forty laymen and twenty clergymen[57], the bishops’ synod being the one that had to control the canonicity and to censor the election[58] made by the eparchial synod. The metropolitan was elected by the metropolitan synod, composed of all the bishops and  the representatives of the believers (maximum ninety in number) among which two thirds were laymen and one third were clergymen.[59] As per §198 the metropolitan was elected from among the bishops; however, in §197 it was stipulated in this case too the bishops’ synod censorship of the election made by the mixed synod. “We can rightly say that, concerning the participation of the laymen in the direct elections of bishops and metropolitans, Metropolitan Şaguna has the uncontested merit of giving decisive directions to the entire Orthodox Church.”[60]

In “The Organic Statute” was adopted, with some amendments, the system of electing the bishops formulated in the “Project”.[61] Innovations was introduced concerning the election of the metropolitan, made by an elective body composed of hundred and twenty members, sixty from the Eparchy of Sibiu and sixty from the other two eparchies of the Metropolitanate.[62] The suffragan bishops, if not elected as deputies in the special elective body, had no right to take part in the election of the metropolitan.[63] By §157 point 15 the way in which Andrei Şaguna decided that the elections would be censored by the bishops’ synod was changed, this taking place after the elected one was confirmed by the emperor. The elected one was not necessarily a bishop. The censorship by the bishops’ synod took place only when the elected one was not a bishop, a bishop elected as metropolitan not being censored anymore by the bishops’ synod, but directly enthroned by the congress in the metropolitan see.

Comparing the way in which the Serbian metropolitan and bishops were elected, for instance, with the one proposed by Andrei Şaguna, the latter is highly canonical. In the Serbian example, only the metropolitan’s election was canonical, both the clergy and the believers being represented in the elective college. The bishops were elected by the bishops’ synod and confirmed by the emperor.[64]

But the practice of the Church, including the Romanian Orthodox Church, was not always canonical, as it happened with the Romanian law of 1925 concerning the ecclesiastical organization, according to which all the bishops, clergymen, and laymen who composed the elective college had equal voting right.[65] The right of the bishops’ synod to examine the candidate from the canonical point of view was annulled, but it was covered partly by its right to censor the election. Then, the representatives of the clergy and laymen from the entire Romanian Church were part of the elective college, not only those coming from the vacant eparchy.

The elective principle, as an expression of the Christian spirit which is the basis of the ecclesiastical constitutionalism, was adopted by the Church not only when hierarchs, but also priests and other members of the clergy were appointed.[66] In the primary Church it was observed from the very beginning the practice that the laymen were entitled to co-operate by the election of the priests and deacons too, not only by that of the bishops. “This participation is considered to be a means which strengthens the moral bond that has to exist between the priest and the people. […] The prejudice of the aim of the Church, which is the redemption, by placing an unwanted shepherd authoritatively, a fact which would scandalise the believers, deprives the priesthood from its reason of being.”[67] It is known from the Apostles’ practice that the people were consulted regarding the eligibility of the candidates, even for the office of a deacon. The practice of the priests’ election with the believers’ co-operation was maintained until the fist half of the twenteenth century, almost everywhere in the Orthodox Church.[68] Still, the bishop is the one who truly enjoys the right of election (for the co-operant role of the believers the term “election” is the improper one). The bishop decides in the end on the candidate or candidates presented, proposed by the community. According to the principles of the Orthodox canon law, the election by the community confers the elected one only the title of candidate in front of the bishop, who accepts him or – due to serious reasons – can reject him.

According to the “Project of Regulation” of 1864, the election of the priests and deacons was made by the parish synod whose chairman was the protopope, with a majority of votes, from among the competing candidates.[69] The election of the protopopes was made by the protopopiate synod, composed of two thirds laymen and one third priests, who were representatives of the parishes in the protopopiate.[70] The eparchial consistory proposed three candidates to that mixed synod, which elected one of them.[71]

“The Organic Statute” adopted the provisions of the “Project” concerning the election of the priests, deacons and protopopes[72], but it ignored the reference to the number of three candidates proposed by the consistory, in the case of protopopes’ election. On the contrary, the first three candidates elected by the mixed synod were presented to the consistory, which appointed one of them.[73]

The ecclesiastical laws of the old Romanian Kingdom[74] did not comprise such provisions as the election of the priests, deacons and protopopes[75] and they were also introduced in “The Statute of the Organization of the Romanian Orthodox Church”[76] from 6 May 1925, thus doing away with a very important provision of the ecclesiastical organization conceived by Andrei Şaguna: the election of the church servants by the participation of the believers.[77]

VI.4.4 The involvement of the laymen in the administration of the Church property[78]

There is no need for sacramental priesthood for the office of administration of the material property of the Church, so every Christian has theoretically the capacity to do that. The appointment is not made through a special act, as is in the case of the priesthood. But the certification for this office has to be made by the competent authority, which is the bishop. The right to manage the Church property does not belong to the community, but to the bishop[79] who was entrusted with the administration of the eparchy.

In the Transylvanian Orthodox Church, Andrei Şaguna paid special attention on this aspect of exercising the Church power. Thus, on the occasion of the eparchial mixed synod of March 1850 was founded the eparchial trusteeship, composed of two clergymen and four laymen, with the bishop as chairman, its purpose being the administration of the eparchy’s property.[80] The trustees of the parish churches are mentioned in the documents of the mixed synod of 1860.[81] Then, the “Project of Regulation” stipulated the competences of the parish trustees in detail (two to four, according to the parish size), elected by the parish synod.[82] There was also an eparchial respectively arch-eparchial trusteeship for each eparchy, comprising two clergymen and four laymen, a cashier and an auditor.[83]

“The Organic Statute” adopted in its entirety the disposition in the “Project” concerning the parish trusteeship.[84] On the level of the protopopiate it was added, next to the protopopiate committee[85], the protopopiate trusteeship[86] composed of four trustees and two substitutes, elected by the protopopiate synod. For each eparchy, there was a trustees’ senate[87] with a variable number of members, one third clergymen and two thirds laymen.

The right conclusion on the above analyzed church organization and its principles is: “Without sacrificing the hierarchical principle, Şaguna knew how to implement it in a harmonious way with the social evolution and the special condition of the Romanian Church in Transylvania, giving the believers an important, but well-defined part within the ecclesiastical organization. For we see how he, although recognizing the rights of the laymen to elect the Church officials from the deacon to the metropolitan, and also to manage the Church’s possessions, conditioned their position on the approval of the hierarchy, which was given the plenitude of the Church power in a divine way.”[88]

Image: Ecumenical Council represented in the Menologion of the Emperor Basilius II of Byzantium, ca. 1000. One can see besides the Bishops in the forefront many laymen who took part in that Council.

[1] A. MAGIER, Cu ce datorăm azi amintirei lui Şaguna, 202-203.

The fact that Andrei Şaguna was providential by the mobilization of the laymen in the life of the Church is proven by the Second Vatican Council (1962-1965), which did the same thing in the Roman Church, but hundred years later. See Thomas A. AMANN, Laien als Träger der Leitungsgewalt?, St. Ottilien 1996; W. AYMANS, Kirchenrechtliche Beiträge zur Ekklesiologie, 219-238; E. CORECCO, Ordinatio Fidei, 357- 401; Libero GEROSA, Vollmacht und Gemeinschaft in der Kirche, in: S. DEMEL, L. MÜLLER (Hrsg.), Krönung oder Entwertung des Konzils?, 39-55; Peter MARX, Räte und Konvente in ihrem Dienst an der Teilkirche, in: S. DEMEL, L. MÜLLER (Hrsg.), Krönung oder Entwertung des Konzils?, 190-216.

[2] Cf. L. STAN, Mirenii în biserică, 32-34.

[3] L. STAN, Biserica cu sau fără laici?, 616.

[4] Cf. the chapter V.4 herein.

[5] L. STAN, Legislaţia Bisericii Ortodoxe Române în timpul arhipăstoririi Prea Fericitului Părinte Patriarh Justinian, 279-280.

[6] On the three branches of the Church power see, e.g., Felix BERNARD, Zur Genese der Drei-Gewalten-Lehre, in: ÖAKR 36 (1986), 232-236; Yves CONGAR, Sur la trilogie Prophete-Roi-Prêtre, in: RSPhTh 67 (1983), 97-116; Ludwig SCHICK, Das dreifache Amt Christi und der Kirche. Zur Entstehung und Entwicklung der Trilogien, Bern 1982; D. STĂNILOAE, Orthodoxe Dogmatik, Bd. 2, 89-122.

[7] “Missio canonica is the jurisdictional act by which the bishops (and the other honorary ranks derived from the bishop’s rank: archbishop, metropolitan, exarch, patriarch) are invested in the eparchy they will shepherd, and the priests and the deacons are installed in the church or parish which they will serve. This act adds nothing else to the capability obtained through the sacred, spiritual act of consecration. This administrative, jurisdictional measure was taken in order to avoid ordaining more people than it is necessary to ensure the believers’ religious assistance. Canon 6 of the Fourth Ecumenical Council regulates the consecrations only as part of an office created in advance as a necessity, declaring null the consecrations made without a certain destination.” I. IVAN, Câţiva termeni canonici, 97-98.

[8] L. STAN, Mirenii în biserică, 103-104.

For the Catholic comprehension of sacra potestas and missio canonica, before and after the Second Vatican Council, see E. CORECCO, Ordinatio Fidei, 223-248; Libero GEROSA, Vollmacht und Gemeinschaft in der Kirche, in: S. DEMEL, L. MÜLLER (Hrsg.), Krönung oder Entwertung des Konzils?, 39-55 here 39-47; Peter KRÄMER, Dienst und Vollmacht in der Kirche. Eine rechtstheologische Untersuchung zur Sacra Potestas-Lehre des II. Vatikanischen Konzils, Trier 1973; IDEM, Sacra potestas im Zusammenspiel von sakramentaler Weihe und kanonischer Sendung, 23-33.

[9] The general priesthood, which all the members of Christ’s mystical body enjoy, is not to be mistaken for the ordained priesthood in its three stages (bishops, priests, deacons), instituted by Jesus Christ, therefore being of divine right. Besides the divine hierarchy there are three stages of a human hierarchy: hypodeacon, anagnost (analogous to the lector in the Roman Catholic Church) and psaltist (church singer). Cf. I. IVAN, Câţiva termeni canonici, 95-97.

[10] Cf. L. STAN, Elementul laic în Biserica Ortodoxă, 11. Details on the laymen’s participation in exercising the holifying power see at L. STAN, Mirenii în biserică, 46-63.

[11] Cf. L. STAN, Elementul laic în Biserica Ortodoxă, 11. Details on the laymen’s participation in exercising the teaching power see at L. STAN, Mirenii în biserică, 64-109.

See also Peter KRÄMER, Wer sind die Träger des kirchlichen Verkündigungsdienstes?, in: Communio in Ecclesiae Mysterio. Festschrift für Winfried Aymans zum 65. Geburtstag, hrsg. von Karl-Theodor Geringer – Heribert Schmitz, St. Ottilien 2001, 247-267.

[12] L. STAN, Mirenii în biserică, 110.

[13] On the very actual issue of participation of the laymen in the exercise of the holifying power and the power of teaching within Roman Catholic Church see Beatrix LAUKEMPER-ISERMANN, Der Anteil der Gläubigen an der geistlichen Vollmacht. Erster Beitrag, in: Sabine DEMEL, Libero GEROSA, Peter KRÄMER, Ludger MÜLLER (Hrsg.), Im Dienst der Gemeinde, Münster 2002, 261-272; Thomas AMMAN, Der Anteil der Gläubigen an der geistlichen Vollmacht. Zweiter Beitrag, in: Sabine DEMEL, Libero GEROSA, Peter KRÄMER, Ludger MÜLLER (Hrsg.), Im Dienst der Gemeinde, Münster 2002, 273- 284.

[14] Of course, although the usual political-juridical language related to power division in the state is used (Montesquieu described the division of political power among a legislative, an executive and a judicial), in the case of the Church power we do not deal with a separation, as is the case of the state powers, but with the difference between the functions of one and the same power. Cf. I. IVAN, Câţiva termeni canonici, 97-98.

[15] L. STAN, Elementul laic în Biserica Ortodoxă, 12.

[16] Ibid., 12.

[17] Ibid., 13.

[18] Cf. L. STAN, Mirenii în biserică, 112.

[19] Cf. the chapters V.2 and V.3 herein.

[20] Cf. A. Baronu de SIAGUN`A, Compendiu, 378.

[21] Cf. the chapter VI.2.2.3 herein.

[22] V. ŞESAN,  Reflexiuni asupra unificării, 29-30.

[23] In the Orthodox Church, the bishops’ synods (the so-called “pure synodality”) have been always called in this way, but not only them. The term “synod” is used exclusively for the bishops’ synods in the Oriental Catholic Churches’ Code of Canon Law (CCEO).

[24] The term “assembly” used to refer to the mixed synod, is also used in the current legislation of the Romanian Orthodox Church.

[25] A. Baron de SCHAGUNA, Anthorismos oder berichtigende Erörterung, 127.

[26] A detailed approach of the mixed synodality throughout the time, see at L. STAN, Mirenii în biserică, 112-244.

[27] Cf L. STAN, Mirenii în biserică, 114-115; N. DURĂ, Le Régime de la Synodalité, 391 et seqq.

[28] L. STAN, Mirenii în biserică, 127.

[29] Ibid., 128.

[30] For instance, there was in France around the year 800, a system of mixed synods in which the decisions were taken with a majority of votes, its members – bishops and laymen – all having an equal vote. It is, certainly, an un-canonical system, because one cannot tolerate any equality of votes between the bishops and other lay representatives, because the episcopal character of the Church organization would be destroyed when the laymen were a majority, and the bishops had to accept the decisions of the lay majority only because they belong to the majority, not because they are right from the point of view of the Church. Cf. L. STAN, Mirenii în biserică, 129-130.

[31] On this synod see the chapter III.2.5 herein.

[32] Andrei Şaguna’s pastoral letter No. 1090/1855, in: Gh. TULBURE, Mitropolitul Şaguna, 195-201 here 198.

[33] Cf. ibid., 198-199.

[34] A. Baron de SCHAGUNA, Anthorismos oder berichtigende Erörterung, 105-106.

[35] According to ap. c. 34 the bishops of every nation have to know the one among them who is the premier or chief, and to recognise him as their head. Each bishop enjoys autonomy in his eparchy, being connected to the hierarchical subordination and to the synodality.

See the text of the canon.

[36] According to c. 13 of Laodicea is not permitted to the “others” (the mobs and disorderly multitude of cities) to conduct the election of candidates for the priesthood.

See the text of the canon.

[37] Cf. A. Baron de SCHAGUNA, Anthorismos oder berichtigende Erörterung, 109-114.

[38] Ibid., 108-109.

[39] Ibid., 115-116.

[40] Towards the end of the modern times – and in the Romanian Principalities especially during the Phanariot régime (in the eighteenth century) but also later – the clericalist spirit developed in Orthodoxy too, under the Western influence. Cf. L. STAN, Biserica cu sau fără laici?, 612.

[41] “Şaguna cătră Georgiu Hurmuzachi” (“Şaguna to Georgiu Hurmuzachi”), dated Sibiu, January 21, 1861, in: Il. PUŞCARIU, Metropolia, colecţia de acte, 180-181here 181.

[42] “Respunsul lui G. Hurmuzachi cătră Şaguna” (“G. Hurmuzachi’s answer to Şaguna”), dated Czernowitz, February 9/21, 1861, in: Il. PUŞCARIU, Metropolia, colecţia de acte, 182-185 here 184.

[43] “Gheorghe Contici către Andrei Şaguna” (“Gheorghe Contici to Andrei Şaguna”), dated November 12, 1862, in: A. ŞAGUNA, Corespondenţa I/2, 219-221 here 219.

[44] See a historical-canonical analysis of the laymen’s participation in the election of the clergy at L. STAN, Mirenii în biserică, 245-709.

As it could be noticed considering the large space which Canonist Liviu Stan uses in the quoted work to clarify the problem of the participation of the believers in the election of the clergy, this aspect of the participation of the laymen in the ecclesiastical affairs had and has a special importance in the life of the Church.

[45] A. Baronu de SIAGUN`A, Compendiu, 175.

[46] Cf. A. Baronu de SIAGUNA, Proiectu de unu Regulamentu, §26 point 2; Statutul organic, §7 point 2.

[47] Cf. A. Baronu de SIAGUNA, Proiectu de unu Regulamentu, §72-§77; Statutul organic, §39, §50-§53.

[48] Cf. A. Baronu de SIAGUNA, Proiectu de unu Regulamentu, §100-§107, §136 pct. 2; Statutul organic, §96-§103.

[49] Cf. A. Baronu de SIAGUNA, Proiectu de unu Regulamentu, §139, §193-§200; Statutul organic, §154-§157.

[50] L. STAN, Mirenii în biserică, 246.

[51] Cf. ibid., 246-247.

[52] Ibid., 247-249.

[53] Cf. ibid., 607. See also Hubert MÜLLER, Der Anteil der Laien an der Bischofswahl. Ein Beitrag zur Geschichte der Kanonistik von Gratian bis Gregor IX., Amsterdam 1977; L. GEROSA, Gesetzeauslegung im Kirchenrecht, 161-178.

[54] L. STAN, Mirenii în biserică, 608.

[55] Ibid., 609.

[56] Ibid., 609.

[57] Cf. A. Baronu de SIAGUNA, Proiectu de unu Regulamentu, §100.

[58] Cf. ibid., §123.

[59] Ibid., §139 and §193.

[60] V. ŞESAN,  Reflexiuni asupra unificării, 24.

[61] Cf. Statutul organic, §97-§105.

[62] Ibid., §155 al.1.

[63] Statutul organic, §155 al.2.

[64] Cf. I. MATEIU, Contribuţiuni la istoria dreptului bisericesc, 242.

[65] See Legea din 6 mai 1925 pentru organizarea Bisericii Ortodoxe Române, art. 12; Statutul pentru organizarea Bisericii Ortodoxe Romane, din 6 mai 1925, art. 9 lit. j).

[66] At length on the laymen’s participation in the election of the priests and deacons at L. STAN, Mirenii în biserică, 610-709.

[67] L. STAN, Mirenii în biserică, 610.

[68] Cf. ibid., 707.

[69] Cf. A. Baronu de SIAGUNA, Proiectu de unu Regulamentu, §26 point 2, §32.

[70] Ibid., §74.

[71] Ibid., §75.

[72] Statutul organic, §7 point 2 and §13.

[73] Statutul organic, §51-§53.

[74] It is about the Romanian Provinces Moldavia and Wallachia, united politically firstly in 1859, as Romanian United Principalities, on December 24, 1861 proclaimed as state Romania under the Ottoman suzerainty and in 1881 proclaimed kingdom under the reign of Carol I of Hohenzollern-Sigmaringen. The Romanian Kingdom (1918-1947) included almost all aged Romanian territories. Cf. History of Romania. Compendium, 505 et seqq. See also the map in the annex VI herein.

[75] In the era of the Organic Regulations – adopted in Wallachia in 1831 and in Moldavia in 1832, as a consequence of the provisions of the Russian-Turkish Treaty of Adrianople (1829), and confirming a powerful Russian influence – it was impossible to avoid totally, in the Romanian Orthodox Church of the Principalities, the caesaropapist type of absolutism introduced by Peter the Great in the Russian Church. Cf. History of Romania. Compendium, 456.

[76] Cf. the chapter VII.5 herein.

[77] Some arguments for abandoning the provisions concerning the clergy’s election by the parish communities at M. CRISTEA, Principii fundamentale, 32-33.

[78] At length on the laymen’s involvement in the administration of the Church property see L. STAN, Mirenii în biserică, 710-752.

We decided to do not give a large space to this subject, because both the East and the West preserved quite well during the centuries the participation of the lay people in exercising this function of the Church leading power.

For the actual situation within Catholic Church see Hans HEIMERL, Helmuth PREE, Bruno PRIMETSHOFER, Handbuch des Vermögensrechts der katholischen Kirche unter besonderer Berücksitigung der Rechtsverhältnisse in Bayern und Österreich, Regensburg 1993; Helmuth PREE, Bruno PRIMETSHOFER, Das kirchliche Vermögen, seine Verwaltung und Vertretung. Eine praktische Handreichung, Wien 2007.

[79] Cf. the apostolic canons 38 and 41.

According to ap. c. 38 the bishop has the care of all ecclesiastical matters and he manages them, on the understanding that God is overseeing and supervising.

According to ap. c. 41 the bishop has authority over the property of the Church.

See the text of these canons.

[80] See Actele Soboarelor…1850 şi 1860, 48;  P. BRUSANOWSKI, Reforma constituţională, 92.

[81] Cf. Actele Soboarelor…1850 şi 1860, 126 et seqq.

[82] Cf. A. Baronu de SIAGUNA, Proiectu de unu Regulamentu, §45-§48.

[83] Ibid., §156-§174.

[84] Cf. Statutul organic, §24-§27.

[85] Ibid., §56-§63.

[86] Ibid., §64-§65.

[87] Ibid., §132-§137.

[88] I. MATEIU, Contribuţiuni la istoria dreptului bisericesc, 194.

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mihaela.stan February 1, 2017 Drept si Religie