The Vow of Poverty and Its Civil Law Implications
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The Catholic Lawyer Volume 8 Number 2 Volume 8, Spring 1962, Number 2 Article 4 The Vow of Poverty and Its Civil Law Implications Romaeus W. O'Brien, O. Carm. Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons, Civil Rights and Discrimination Commons, First Amendment Commons, and the Religion Law Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE VOW OF POVERTY AND ITS CIVIL LAW IMPLICATIONSt ROMAEUS W. O'BRIEN, 0. CARM.* T HE RELIGIOUS STATE is a juridical status of persons in the Church in which the members profess the public vows of poverty, chastity, and obedience. In virtue of positive legislation of the Church these public vows are essentially necessary but they are not ends in themselves. They are mere means whereby the individual is assisted in his pursuit of per- fection by the observance of the evangelical counsels. One of these, the vow of poverty, aims at the acquisition of the virtue of poverty and a spirit of detachment from temporal goods. Although this virtue and spirit should motivate and influence the life of every religious, the actual occasions on which the vow of poverty calls for the observance of pre- cise formalities of law by the subject are not too frequent. Nevertheless, the proper fulfillment of these demands creates situations where canon and civil law should be examined in relationship to one another so that the latter can be utilized for the better fulfillment of the canons. This is the specific area with which this paper is concerned. The questions to be examined are not offered as an exhaustive compilation. Rather it is hoped that they will illustrate the possible relationship of canon and civil law in matters pertinent to the vow of poverty and that they will be of service in the solution of actual problems when they arise. When civil law is called upon to reinforce canonical prescriptions, as it is in these cases, it is understood to be an area for one competent in questions of civil law to work towards the fulfillment of the canonical regulations. Some preliminary facts should be recalled before turning to a consid- eration of particular problems. In the first place, the vow of poverty itself should be understood. It is a promise made to God by which a religious, t Reprinted with permission from 21 THE JURIST 435 (1961). * Member of the faculty of the Catholic University of America, Associate Editor of THE JURIST. Vow OF POVERTY desirous of striving after supernatural per- simple vow, the religious retains the radical fection, binds himself in accordance with right of ownership of property already pos- the particular law of an institute not to ac- sessed as well as the right to acquire prop- cept, use, or dispose of temporal goods erty. On the other hand, the religious who without permission of the lawful superior.1 professes the solemn vow of poverty sur- The canonical restrictions placed upon renders his natural right to possessions so the conduct of an individual by the vow of that he no longer retains a patrimony or 2 poverty extend only as far as ownership or the right to acquire one. rights derived from it are involved. Conse- The subject of the property of religious quently, the religious retains reasonable dis- is treated in six canons of the Code. Even cretionary power in certain instances where a hasty perusal of them indicates how the at first appearance the vow of poverty law wishes a religious to disassociate him- seems to apply. Thus, for example, he may self permanently from preoccupation with refuse to accept a gift whenever he judges personal possessions from the time of his that its refusal can be justified by his own entrance into religious life. At the same particular law and the virtue of piety. Or time, the law realistically provides for the again, he may, in similar circumstances, protection of one's patrimony so that it will channel a possible gift away from himself be kept intact in case necessity or other without violation of the vow or virtue of considerations should dictate a return to poverty. This may be done since the vow the world. Thus canon 568 states that the of poverty does not oblige one to accept novice may not renounce his possessions everything that is offered to him. Prior to after entering the novitiate. He must ap- his acceptance of gifts, there is no ques- point an administrator to care for them,8 tion of ownership on his part; it is the and, if he is a novice in a religious congre- exercise of acts of ownership which is reg- gation, he is to make a will 4 which cannot ulated by the vow. be arbitrarily changed.5 Furthermore, the The historical evolution of religious law patrimony cannot be disposed of or en- recognizes a distinction between a solemn cumbered by the religious in a congrega- and a simple vow of poverty. They do not tion without special permission. 6 Thus the differ intrinsically, but ecclesiastical law canons cover the entire life of the religious treats them differently. The solemn vow is in relation to his personal possessions. In generally professed in the older orders addition, the law considers him to be in- where the individual surrenders the right of corporated into a new family by religious ownership at solemn profession, while the profession and, consequently, whatever he simple vow is characteristic of religious acquires as a religious is acquired by the 7 congregations where this right is retained institute. by the individual. Both vows, however, effectively restrict the individual's right to 2 Beste, loc. cit.; Wernz-Vidal, De Religiosis (Ro- Universitatis Gregorianae, use and to administer property. Under the mae: Apud Aedes 1933), nn. 327-330. 3 Can. 569, § 1. I Pius IX, litt. ap. Quam maxina, 13 Nov. 1847; 4Can. 569, § 3. Normae, art. 113; Beste, Introductio in Codicem 5 Can. 580, § 3. (Collegeville, Minn.: St. John's Abbey Press. 6 Can. 580, § 3; 583, 1. 1956), ad can. 479, III. 7 Can. 580, § 2. 8 CATHOLIC LAWYER, SPRING 1962 The canons also distinguish between the cerned. In allowing such freedom, it seems rights of those with a simple vow and the only reasonable to expect that the canon rights of those with a solemn vow. Personal will be observed in such a way that the acquisitions are still possible for the former, civil law will insure its fulfillment when a but they must be incorporated into his notable sum is involved. patrimonial goodss and ultimately disposed N o specific value is established in the of by will 9 if the religious perseveres in his law whereby one can determine that a par- vocation. Since the solemnly professed re- ticular amount of possessions is to be con- ligious renounces the right of ownership, sidered patrimony. A refinement of the the law allows him to dispose freely of his concept is nevertheless possible in the light patrimonial goods in the two months before of the purpose of the patrimony: it is in- solemn profession. 10 tended to be a means of support for the In the framework of these preliminary religious if he fails to persevere in his vo- points of law certain problems involving cation. It follows that a sum suitable for the application of civil and canon law re- this purpose should be considered patri- main to be considered. Both laws are con- mony. Thus, for example, an amount of cerned with these matters, namely, the money regarded as a suitable charitable appointment of an administrator for tem- subsidy under canon 643, § 2, for a reli- poral goods, the formulation of a last will, gious returning to the world can be taken the renunciation of property before solemn as a norm for determining what value con- vows, the acceptance of legacies, and con- stitutes patrimony. Such a sum should, tracts for personal services. therefore, be turned over to an adminis- trator. Appointment of an Administrator and Although the law does not prescribe how Designation of Use for Interest an administrator is to be appointed, there and Usufruct is greater need for this to be accomplished In the course of the novitiate, a novice in accordance with the regulations of civil is to appoint an administrator for his patri- law as the value of a patrimony increases. mony and, also, to arrange for the disposi- Informal agreements with a friend, a mem- tion of the interest or income from his ber of the family, or the community itself 1 estate. Both actions are to be quasi- may be acceptable when the patrimony is permanent so that a subsequent change is of minor value, but when its value is nota- only permissible for a good reason and ble, informality should not be tolerated. with the authorization of the general supe- The purpose of the law is twofold: the 1 2 rior. In making these prescriptions, how- preservation of the temporal possessions ever, the canon allows broad discretionary of the religious and the elimination of fu- authority to the individual in so far as the ture preoccupation regarding his posses- choice, manner of appointment, and in- sions. Reasonable efforts necessary, there- structions to the administrator are con- fore, to reinforce the canon with the 8 Can.