THE VIOLATION OF THE OBLIGATION OF RESIDENCE: AN EXAMINATION OF CANON 1396 IN THE 1983 CODE OF CANON LAW

• Published in: Studia canonica Vol. 43; no. 1; pp. 141 - 159
• Main Author: FOSTE, John J. M
• Format: Journal Article
• Language: English
• Published: Ottawa, ON Université Saint-Paul, Faculté de droit canonique 2009; Studia Canonica
• Subjects: 19th-20th century; Canon law; Catholic church; Christianity; Christians; Clergy; History and sciences of religions; Law; Modern period; Residences; Canon law; Grief; Obligation; Ecclesiastical office; Code 1983; Residence; Code 1917
• ISSN: 0039-310X

The Code articulates the parameters of the obligation of residence for bishops, pastors, and parochial vicars. A bishop may be legitimately absent from his diocese for a just cause for one continuous or interrupted month each year, "provided that he makes provision so that the diocese will suffer no detriment from his absence" (c. 395, §2). Not to be included in this one month period is the time spent for the bishop's ad limino visit or his participation at councils, synods of bishops, conferences of bishops,29 or "some other duty legitimately entrusted to him" (c. 395, §2). A 1996 response by the Pontifical Council for Legislative Texts clarified that the phrase "duty legitimately entrusted to him" cannot be understood to apply to just any offices, roles, or functions the bishop takes on. Rather, the duties referred to in the canon are connected to some office he has received from superior authority.30 Two examples will serve to illustrate the pontifical council's point. In the first, a bishop is appointed by the Holy See to participate in an ecumenical dialogue in another country. In the second, a bishop, who has been elected to serve as an officer for his state's Catholic conference,31 is called to another part of the state for several days of meetings and events concerning issues touching the Church. In the first example, the bishop's absence can be considered legitimate because the Holy See, the bishop's only superior, gave him the commission. Consequently, the days of his absence for the ecumenical dialogue would not count against the one month period of absence permitted by canon 395, §2. On the other hand, because the bishop in the second example received his commission to participate in the meetings and events from his brother bishops-and not from the Holy See-the days would be subtracted from the one month allotted in the canon, despite the fact that both bishops are engaged in the work of the Church. The pontifical council goes on to note that while extra-diocesan academic and ministerial activities are good in themselves, they do not pertain directly to the bishop's pastoral care of his particular church. Any days a bishop spends in such activities are to be counted as part of his one month of vacation.32 A non-taxative list of such activities includes retreats preached outside the diocese, lectures, regional or national meetings of associations or movements, or serving as a guide for non-diocesan pilgrimages.33 As evidenced from its nominal and adjectival usages in the 1983 Code, the term residentia appears to be a technical form oí commoratio. Residentia, however, is often, though not exclusively,8 connected with an obligation, e.g., "a pastor is obliged to reside..." (Parochus obligatione tenetur residendi...).9 Peter Reilly has noted two types of residence: material and formal. He defines material residence as the "mere corporal presence or abiding in a place, without the execution of the proper office."10 Formal residence, on the other hand, means "that one is not only physically present but performs the duties, to which he is assigned."" Thus, "mere living in a place, without the performance of the labours enjoined by one's state, is not the proper fulfilment of the precept of canonical residence."12 By way of example, Reilly observed that, under the 1917 Code, formal residence for a pastor meant more than supervising his assistant priests but also undertaking his share of the pastoral duties.13 Residence, then, not only provides for the availability of ministers to care for the people entrusted to their care, but also entails the actual fulfilment ofthat care.