The Status of Women in the Code of Canon Law and in the United Nations Convention

by Marie-Thérèse van Lunen Chénu and Louise Wentholt

from Praxis juridique et religion 1 (1984) pp. 7-18.

translated from the French by Joanna Waller, and published on the Internet with permission of the authors and the publishers.

Civil and church society have paralleled each other for a long time (as parents) in their legal, practical and philosophical attitude towards women. The latter still led the former, if not always in terms of fact, then at least as regards prophesy, since its theology required it to declare woman’s ontological equivalence to man, despite her subordinate status. The ambivalence of the Christian status of woman therefore was still real progress compared to her complete lack of civil rights and dismissal by society. The Christian woman, despite the imbecillitas sexus [= weakness of her sex] which inhibits her participation in the world, was a daughter of God, promised salvation and even here sometimes enjoying this eschatological status by remaining a virgin or by following a life of extraordinary sanctity.

But in the last few years, as is well known, there has been a gradual culture change in the status of women and the relationship between the sexes, which has irreversibly shifted or transformed most legislation in Western societies. The same applies to legislative conditions governing the European Economic Commission and those on which the European Court of Justice is based, returning favourable judgements in cases sometimes brought even against parastatal organisations, for the offence of sexism against women. Most recently, the new United Nations Convention against the elimination of all forms of discrimination against women has been established alongside the Declaration on Human Rights as a cornerstone in the foundations of our new anthropology itself. Both these charters challenge all forms of racism and sexism, stating that all human beings, independent of class, race or sex have the same fundamental dignity and therefore the same rights and responsibilities, in order to guarantee them the same opportunities. Even before considering more closely the differences and divergences between the new United Nations clauses on the one hand, and the new Code of Canon Law on the other, it may be stated that the prophetic Christian advantage held previously over the lay and social views and provisions has not only disappeared, but the relationship has been reversed. In the double issue of the status of women and relations between the sexes, a matter both personal and public, the source of all relationships, the paradigm of the life of society and of the community, the prophetic challenge Christianity threw at humanism was in principle taken up by the latter, leaving Christianity to be the exception from now, a position arising precisely from the definition of sexism in relation to the values of Human Rights, and in particular as stated by the United Nations convention on this subject.

I.The Convention

The Convention on the elimination of all forms of discrimination against women came into effect on 3 September 1981 and France is preparing to ratify it, in the wake of about fifty other countries. Of all the United Nations Conventions, this one was signed and ratified with the least delay, appearing already as one of the greatest achievements of the decade of the woman, after a process of work and discussion lasting since 1967. The Convention includes all the particular clauses already implemented by specialist bodies of the United Nations, on all matters relating to the status of women. It is a monument that has been slowly constructed on a broad foundation of dialogue among a very varied group (specialist international bodies, representatives of the governments of member states, women’s associations, feminist movements, and many institutes representing the major cultural strands in society and social partners).

There are four points that seem to us to be irrevocable, anthropological determinants, whose scope is almost universal despite the partial disagreements they must presently encounter:

  1. The conclusion of the first systematic studies undertaken throughout the world under the aegis of the UN, resulting in the adoption of the Convention, showed that the oppression suffered by women was the result of a system which is international, societal within each culture and more specifically sexual, especially with a conjugal and family context. "The present position of women in the world is an overwhelming illustration of the cumulative processes of ever-increasing discrimination". This observation invalidates the presumption of a permanent "natural" state of woman’s personal inferiority and consequently of a "naturally" established relationship between the sexes which would escape new contingencies of history and culture.
  2. Article 1 and article 5 of the Convention provide a precise definition of the meaning of sexism or discrimination against women. The latter "shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women…on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field" (art.1). While article 5 includes among discriminatory factors "prejudices…customary and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women". This is a new development: the hierarchical relationship between the sexes was known – and challenged already. It was necessary, however, to await the result of systematic analyses intended to reveal the particularly subtle nature of sexism, in order to assimilate the effects of systematic specification based on membership of one sex with the effects of hierarchisation. Both are now considered to be stereotyping prejudices.
  3. In challenging the stereotypes or prejudices of hierarchisation and specification (or systematic specialisation) based on membership of one sex, the Convention obviously does not deny the difference between the sexes. More than sixty times it mentions man and woman together, naming each of them. Similarly, it recognises the capacities and particular contribution women make to motherhood. It is clear, however, that it means no more than that personal differences, even though these are particularly marked in one sex, should be systematically coded and should not become a pretext for a reduction in rights. The aim is in no way to confuse "egalitarianism" and "identitarianism" but to assert on the contrary that only true enjoyment of equal rights would enable people to manifest their full capabilities, and thus their proper differences. Moreover, it is precisely women’s potential capabilities that are meant here, especially in all sectors of development. This global vision, which intends for all to have the opportunity to participate in all possible dialectics of difference, is stated in the epigraph to the Convention, on its cover page: "…the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields".
  4. Finally, a very important point relates precisely to our prime concern: the relation between religion and society, faith and culture. Article 5, which actually links prejudice to discrimination, that is to the offence of sexism, lists very explicitly the prejudices "customary and all other practices" which, as we have indicated already, are based either on sexual hierarchy or on systematic specification of the sexes. This is the precise core of the confrontation. Christianity intends, for its part, to retain a codified specification between the sexes and the new code of canon law does not deviate from this, but rather brings it into an overall hierarchical process. This is what we will explain.

II. Calling a spade a spade

As regards the rights of Christians, c. 87 of the 1917 code based the exception made in the case of women, referring to the conditions of the law, on sex. This appears together with the disturbing obex or disciplinary obstacle. In its finished form, as it would go down in history, the code only used the inferiority of the sex argument relating to c. 2218 §1, for example, where in less polished language, sex is considered in a context of inferiority. Cc. 96 and 208 of the new code (in force in November 1983), beneath an even more modest veil, in no way repudiates this legacy: Sex used as the basis of an exception is known as "condition". C. 96 actually states that "By baptism one is incorporated into the Church and constituted a person in it, with the duties and the rights which are proper to christians in accordance with their condition." The 1983 code in dealing with this condition proper to women, of which all expected and possible conditioning is still unknown, applies its logic in two main areas.

  • C. 1024 reserves the capability of being ordinained to men only and therefore excludes women from the priesthood and the sacramental diaconate. It should however be noted that the magisterium has not put this precise question in the area of divine law (c. 1024). This returns the basic question to the theological "magisterium", from which no legislation, of any kind whatever, excludes women, but from which she is conspicuously absent, that is, excluded in fact.
  • Women do not, moreover, enjoy the full rights and duties of the laity; since the role of reader and acolyte that are open to lay people (c. 230) are explicitly reserved to men. Given that there are thousands of women, throughout the world, ready to take on "ministerial" tasks (customary right?) far exceeding those provided for readers and acolytes, that they are school, prison and hospital chaplains, responsible for parishes, etc., they teach priests, who are sometimes under their authority, it must be agreed that these notorious discriminatory canons are probably not there by chance.

There is certainly some progress in the area of female religious congregations. There is a willingness to allow women to hold the position of judge in the Church. However it is perhaps too early to celebrate the new position of lay people, including women, at this stage. It has been a difficult struggle since the Motu proprio, Causas matrimoniales of 28 March 1971. This text states: "If it is not possible to create a college of three judges who are also clerics, the Episcopal conference has the option of allowing the composition of a college in the first and second degree consisting of two clerics and a lay man/uno viro laico". This text was included in the preparatory first draft of the new code – De Processibus – issued in 1976. In the Relatio of 1981, it appeared that some cardinals (Suenens, Freeman, and Carter) and bishops (Bernardin and O’Connell) called it an unjust discrimination. However, the "lay male judge" appeared again in the 1982 draft (c. 1421 §2), a draft that was submitted to the pope for a final study, before the code was promulgated. The discriminatory text then disappeared. The final commission ratified the change the pope approved, since in c. 1421 §2 it speaks only of a lay judge. Is this a final elimination of our question? It is not certain, bearing in mind the restriction of need and especially the theology and the procedure itself.

Almost all interpreters of c. 1421 of the new code do not admit that the lay person here holds an office that includes an exercise of the power of governance. In relation to c. 129 §2, it is clear that the lay person can cooperate "ad normam iuris" in the exercise of the power of governance. This reference to the explicit standards of the legislation of the same body of laws deprives this same canon of any intrinsic legal significance. This canon is, moreover, so general and indefinite that it is impossible to grasp the precise content of this co-operation and under what conditions it operates. If everything is referred to the conditions of the law, it may in the end only be "an affirmation of principle rather than a true norm". Given too that the official and the vice-official, the "premier" judges are always priests (c. 1420 §4), the diocesan judges are always clerics (c. 1421 §1) including deacons (c. 266 §1), but excluding women, c. 1421 §2 ascribes to a particular logic. The lay judge can only exercise his "co-operation", whose nature is poorly defined, within a college (c. 1421 §2).

But while the function of the lay judge is poorly defined, the position in which he may exercise this function is carefully and explicitly stated. Unlike the other judges, the lay judge must be authorised by the Bishops’ conference (c. 1421 §2), with the diocesan bishop thus being obliged to justify the need for a lay judge (c. 1421 §2). Consequently as regards the lay judge, who is always numerically in the minority and is theologically non-existent, there is scarcely any risk of having to put up with the imbecillitas sexus, according to the old Roman adage, of a woman.

III. The witness of history and of the canon lawyers

It would be easy to continue the above analysis in terms of application by noting the number of women actually employed as lay judges in official bodies, the number of female professors of dogmatic or moral theology, or of canon law in France. Or we could make a list of canons that sustain inequality of the sexes. We could continue with an analysis of c. 517, stating that parish responsibility may only be given as aa auxiliary position, and c. 150 which states that "the office which carries with it the full care of souls may only be exercised by someone who has received priestly ordination." C. 230 §3 may be appended to this. It appears that the matter is present in all areas of the code. It is a question of grasping something of the process whereby the new legislation was developed.

The history of the birth of the 1983 code speaks volumes as regards the collusion between magisterium, theology and law. There was not one woman among the 127 members of the Commission for revision of Canon Law (1982 directory) and if some lay people were consulted, how many of those were women? Who chose them? The Roman hierarchy, it is well known, as regards the issue of women, has never agreed to create a structure which would truly give them a voice. The study commission that the bishops requested at the 1971 Synod was only established together with a "secret" memorandum that set out in advance the restrictions permitted for the work and its conclusions. It then appeared that 5 out of the 15 women members – two of whom chaired international women’s associations – were refused permission to submit a minority report that they wanted to include with the final report, which they considered to be questionable and which, however, the chairman of the commission went ahead and read to the Bishops in their 1974 Synod, without further consultation.

Anyone who knows the already lengthy history of the attempts of feminism and women’s associations to dialogue with the religious authorities, would consider they had the right to doubt the true legitimacy of a jurisdiction and a theological function which remains the monopoly of an exclusively masculine authority. This is an old debate, which falls within the realm of feminism long before it becomes a properly religious issue. The first Convention on the rights of women, adopted at Seneca Falls, in the USA in 1848 declared: "Man has usurped the prerogatives of Jehovah himself, in assigning a sphere of action to woman, when this belongs to the conscience of the woman herself and to God."

If we proceed beyond the stage of producing a code intended also for Christian women, but without their contribution, might we not at least dare to hope that the manuals and commentaries would be ready to stress the distance which separates the laws of the Church from the society of human rights? However, here too, most of these texts only disappoint the woman of today. We will give only a few outstanding examples.

In France, the most significant work, from this point of view is without doubt that of Mgr. Bernard Franck: Vers un nouveau droit canonique? [Towards a new canon law?]. Resolutely theological in its aims and in its arguments, this attempt to describe the code from the 1980 draft does not fail itself to cause surprise by its sexist proposals. Let us use the example of the promotor of justice, who in the Roman Catholic Church fulfils a function similar to that of the state prosecutor in French law. Mgr. Franck provides a commentary on c. 1387 and 1380 §2 of the 1980 draft. He writes: "…it is a matter of… clerici vel laici, without further specification. But it seems difficult to accept that a woman may be (could be) given the responsibility of promoter of justice in the Church. It is therefore necessary to assume that this is a question of a lapsus calami[= a slip of the pen], an omission or mistake by the editors of the draft…". However, the study group responsible for considering the first draft – De Processibus – issued in 1976, had already decided unanimously at the meeting on the 8 April 1978 that lay people, both men and women, could act as promotor of justice and defender of the bond (c. 35 of the 1976 draft). Lapsus calami? But when will we see the first female promotor of justice, while there is no question of the priesthood and there is no opposition from the point of view of the 1983 code?

In France, there is no manual of canon law on the new code, while abroad they are not uncommon. We will consider here the most representative of these, selling 7000 copies in two months. This is the manual written by Professors Listl / Müller / Schmitz, a collaborative effort by 46 experts, all men, as we are told in the introduction. If we look more closely, we find one woman participated in setting up the tables under the direction of a professor. Further on, reading the texts regarding one of the questions which has become a panacea on the development of the Church for some authors, the famous female judge, we find once more the restriction on Causas matrimoniales. This relates to the viri laici judices, "männliche Laien". Here, the code itself has thus not yet penetrated in a manual, whose task is nonetheless to explain it.

Proceeding to Spain, where the famous Opus Dei university at Pamplona has also published its annotated edition: Código de derecho canónico. This commentary is exclusively masculine. A woman has also co-authored a table, the one for correspondences between the codes of 1917 and 1983. It definitely appears that for canon lawyers, woman is that useful tool, a researcher. It is therefore hardly surprising that for these authors, the code appears to show no discrimination in matters relating to the rights of the faithful. And necessity is such a restricted requirement as regards provisional positions that the Pamplona authors treat it as a "seriously illicit" dereliction if it is put into general use.

This careful language of the canon lawyer, setting out precise limits, is answered by the fuzzy referential concepts from authority when setting out its "theology of woman". The language, often "impregnated with poetry" slides over ideas that are never defined, nor even circumscribed within a precise epistemological field. From destiny, role and vocation, through "what is and is not suitable for a woman", her gifts, charisms, "the dignity of womanhood", legitimate freedoms… in accordance with their human nature and their femininity", we reach a "condition" which ends in exclusion, totally rejected by civil law. Léon Richer, in the journal Le droit des femmes, summarised the aim of the first Universal international congress for the emancipation of women in 1879 as follows: "What we want for women is the law, the law without reduction, without distinction, without limits, the whole of the law".

This code comes too late to turn discrimination against women into law, and to retain a thesis of whose hypothesis, now inadmissible, we can no longer speak. In the end, it is less logical – and thus, less honest – than the old scholastic account of the status of woman based on the philosophy of the time (woman, whose nature is essentially secondary), on the biology of the time (man alone gives life, his sperm is spoiled when it leads to a feminine conditioning which is only deficient humanity), on the social status of the time (woman in a subordinate civil status).

This code comes too soon, since clearly the Church in the majority was not ready to convert to its misogyny, or ready to recognise that it was not ready, nor ready to reserve, one way or another – but nonetheless with the necessary touch of modesty – the double question, which is becoming an ever more acute problem: that of the status of woman linked to that of the exclusively masculine character of the responsibilities recognised and often anchored in the priesthood. Too late, too soon; irrelevant for history and for itself, it is precisely a historical mistake.