|
|
|
|
|
|
|
|
TWENTY YEARS LATER: "SACRAE DISCIPLINAE LEGES" AND THE GUIDING PRINCIPLES FOR THE REVISION OF THE CODEINTRODUCTION 1983 was a great time of hope in the Church. The excitement from the results of the Second Vatican Council was still being felt in many places. A new Pope has been elected recently and he had already made his mark on the world. Bishops and canonists had eagerly been awaiting for the promised revision of the 1917 Code of Canon Law which, in view of the Council’s decrees and the contents of the post-conciliar legislation, had already become obsolete in many ways. Then, after the new
Code was promulgated on January 25th, there was great
activity in many parts of the world as bishops and canonists studied
the text and prepared for its coming into effect on November 27th of
the same year. Then, a few months later, the arduous task of preparing the complementary legislation called for by the new law began in earnest. The various Canadian decrees were prepared, studied, commented on, revised, and, eventually approved and given the required recognitio by the Holy See. However, as canonists become more familiar with the Code, they also began to see that some canons were not as clear as they would have liked them to be. Furthermore, new and unforeseen situations had to be faced and new solutions proposed. A number of official interpretations of the canons brought some clarity, but, as the world changed – and rapidly so – so too did the need to keep the "new" law up to date. In the twenty years
since the promulgation of the Code and its entering into effect,
there have indeed been many new laws, decrees, and policies adapted.
Some of them were very helpful. Others – such as the norms
on general absolution – caused serious pastoral concerns.
Furthermore, it soon became evident that to attempt to legislate
in a time of crisis was not a good thing. The emergence of sexual
abuse cases was probably the phenomenon that put the Code to its
greatest test. It simply had not been written in the perspective
of what dioceses now had to face. As the pressure increased for
bishops in various countries to act, they took steps to issue national
or local protocols addressing the situation. Many of these texts
have now gone through three or even more versions. Yet, in spite
of all the effort, the issue simply wouldn’t go away. A new
serious crisis arose, and the so-called " Indeed, when cooler heads will prevail, it will be interesting to look back on this recent period to see how the principles outlined in Pope John Paul’s constitution "Sacrae disciplinae leges" and in the Synodal document governing the preparation of the 1983 Code, were reflected in the "Dallas Norms" and related documents. For we must keep in mind that many of the principles put forward by the Pope in the Constitution have a lasting value. At the present time, twenty years later – with the exception of legislation relating to sexual and similar abuse – there is very little creative canon law work being done. Rather, new documents are more inclined to tighten up on so-called abuses, or to re-interpret the existing principles. We are perhaps in a holding pattern, for, as the "new" continues to grow, the "old" will not let go. We end up, then, with formal decisions being taken on such weighty(!) matters as whether persons can sit down after Communion, or whether they have to kneel. Indeed, it seems evident that we will, before too long, need new laws to address the situations the Church has to face. Perhaps the day is gone when a universal Code of law suffices for the entire Latin Church. Situations are just so different. Indeed, the fact of having held synods for various parts of the world in recent years shows a recognition of the characteristics proper to the various regions. But it is still to early to think of a major revision of the law. We would probably first need another Council to address new phenomena and signs of life in the Church. We would also need a new era of hope in the Church, as we experienced in the period after Vatican II, and we would require patience to see where the Holy Spirit is leading us at this particular moment. It could well be that, if we returned to the documents governing the preparation of the 1983 Code, we would find principles that might be applied in new ways today and would help us address some very serious situations in the Church that simply cannot go on indefinitely without some corrective measures, if the credibility of our legal system is to be maintained. These situations concern, among so many others, the re-organization of parishes; the role of the Conference of Bishops; the shortage of priests in many countries; financial arrangements and viability of Church structures; legislation pertaining to sexual mores; the application of collegiality in the life of the Church; the formation of candidates to priesthood and to various forms of lay ministry; the incardination of priests, particularly those identified with the newer movements; the rights and obligations arising from incardination; the involvement of the laity in apostolic activities; the place of new movements within the Church and their relation to existing structures; the pooling of financial resources; the establishment of new public juridic persons; the need for the recognition of new forms of consecrated life; the Church’s presence in health care; the protracted time it takes for recourse to Church tribunals, thus, for all practical purposes, severely restricting the possibility of obtaining justice; the procedures used in marriage tribunals and the recognition of the grounds of nullity; the situation of women in the Church (in spite of many statements on the subject); the non-acceptance of episcopal resignations and the length of time it takes to fill certain Sees (thus creating a void lasting at times for over five years); the qualifications for appointment of bishops; the renewed centralization of decisions in the Roman Curia, and so forth. All of these, in one way or another, are putting our laws to the test. They show how fast the world is changing, and how new situations have to be addressed. But, they also raise questions that we cannot ignore. Furthermore, we must recognize that, in many places, the current practice is often not in line with the text of the law. Before too long, it will even become more and more difficult for the Code to remain relevant. So, before it is too late, let us first turn back in recent history to see what we can learn, and then try to move ahead, slowly but surely, using the principles that were put forward before the Code was promulgated.. I. THE CONSTITUTION "SACRAE DISCIPLINAE LEGES" The Constitution "Sacrae disciplinae leges", after reviewing the process of preparation of the new Code, lays down a number of fundamental principles that certainly retain their validity today. The Pope begins by mentioning that "collegiality" was one of the more important factors at play in the elaboration of the new law. Following the involvement of Bishops in Vatican II, Conferences of Bishops were eager to lend a hand in the new process, and were given ample opportunity to present their insights into the contents of the new law. We know that a work prepared in common has a much better chance of ownership among the recipients once it is completed. This collegiality had but one intention, as the Pope notes: to work for "the renewal of Christian life." The Code must be viewed, to use his words, "as the fruit of collegial cooperation, which derives from the combined energies of experienced people and institutions throughout the whole Church." Secondly, he notes that the Code is not something that came into existence from nothing. Rather, it flows from the "distant heritage of law contained in the books of the Old and New Testaments. It is from this, as from its first source, that the whole juridical and legislative tradition of the Church derives." Christ fulfilled the law of old, so that it could, in a new and more sublime way, lead to the heritage of the New Testament. The writings of the New Testament allow us to perceive more clearly the great importance of this discipline and to understand better the bonds which link it ever more closely with the salvific character of the Gospel message. Thirdly, the Holy Father mentions something that is of great practical importance today: "It is sufficiently clear that the purpose of the Code is not in any way to replace faith, grace, charisms and above all charity in the life of the Church or of Christ’s faithful." Canon 605, on new forms of consecrated life, is an excellent example of this: the Church is open to the charismatic activity of the Spirit, and bishops are to do their utmost to see that such new gifts are nurtured and protected. The outpouring of new gifts since the end of Vatican II has been beyond any expectations. We have only to look at the number of new movements and associations of the faithful that have obtained recognition from the Holy See in recent years. Indeed, as the Pope noted, "the Code looks toward the achievement of order in the ecclesial society, such that while attributing a primacy to love, grace and the charisms, it facilitates at the same time an orderly development in the life both of the ecclesial society and of the individual persons who belong to it." A fourth point that the Constitution tells us is that the Code can be viewed as a great effort to translate the conciliar ecclesiological teaching into canonical terms. This was a major challenge. We now come to realize, however, that inserting a conciliar text literally into the Code changed its nature somewhat, because the text now has direct legal bearing. So, it follows that the temptation now is to interpret the Council in the light of the Code, rather than the opposite. Fifthly, Pope John Paul II mentions four elements in the Code which express the true and authentic image of the Church: - the teaching whereby the Church is presented as the people of God; - the further teaching which portrays the Church as a communion and then spells out the mutual relationships which must intervene between the particular and universal Church, and between collegiality and primacy; - the teaching by which all members of the people of God share, each in his own measure, in the threefold priestly, prophetic, and royal office of Christ, with which teaching is associated also that which looks to the duties and rights of Christ’s faithful and specifically the laity; - the assiduity which the Church must devote to ecumenism. And, sixthly, he also gives us four reasons why he considers that a Code is absolutely necessary for the Church: - so that its hierarchical and organic structure may be visible; - that its exercise of the functions divinely entrusted to it, particularly of sacred power and of the administration of the sacraments, is properly ordered; - that the mutual relationships of Christ’s faithful are reconciled in justice based on charity, with the rights of each safeguarded and defined; - that the common initiatives which are undertaken so that Christian life may be ever more perfectly carried out, are supported, strengthened and promoted by canonical laws. When we put all of these together, it is quite a programme! We will return to a number of these elements, in particular: the recognition of charisms; the significance of collegiality in decision-making, the rights of the faithful and their mutual relationships, and for the promotion of ecumenical relations. II. THE GUIDING PRINCIPLES FOR THE REVISION OF THE CODE As every canonist knows, the ten principles approved by the 1967 Synod of Bishops and used in preparing the Code were fundamental in reaching decisions as to which draft norm to retain, and which to put aside. For the most part, these guides would retain their validity today. In passing, we could note that it is more particularly in the abuse cases that many of the principles have been recently put to the test. When we consider the first principle, we note that the Code is to have a juridical character. After defining purposes and structures, it would also spell out obligations and rights of all members. It is not intended to be a manual for meditation, or a spiritual treatise, even though it contains many canons which could be the object of serious meditation. The second principle, on the relation between the internal forum and the external forum, is one that should be kept in mind today. Experience shows that it is not good to mix the two. The third principle reminded us that the Code was to be a pastoral instrument, marked by charity, temperance, humaneness, and moderation by which fairness shall be found not only in the application of the law by pastors, but also in the legislation itself. Any new norms today would have to be evaluated in this perspective. The fourth principle referred to dispensing faculties given to Bishops to enable them to carry out their duties. It would be important not to remove these faculties, under the guise of remedying abuses or of a need for greater centralization. The fifth principle related to subsidiarity – having decisions taken at the most appropriate level. It called for "provision for the interests of individual institutes by particular laws" and noted that "a healthy autonomy of particular executive powers is recognized as proper and necessary." The sixth principle, on the recognition of fundamental rights in the Church is probably the one that will need particular care and concern, in spite of all the good will surrounding the issue. The seventh one, which is closely related to the sixth, and which calls for appropriate measures for the faithful to be able to vindicate rights, is one that is severely put to the test today. The principle also called for a clear separation of legislative, administrative and judicial power; yet, we find a number of instances in the Roman Curia where the same persons make decisions and judge situations, sometimes even in both first and second instances. The eighth principle, on territoriality, has been very helpful, because it also provides for the creation of personal jurisdictional units. The development of so many new movements, with their own priests, is an example of this type of adaptation, although it raises quite a number of questions relating to the incardination of clerics. More on this later. The ninth principle, on the revision of penal law, could also be kept in mind today. Penalties should not be automatic, except where necessary, and a swift and just trial should be available for those who are accused of a canonical crime. The last principle, on the new plan for the Code, has served its purpose well, but is no longer a factor today. So, from these principles we can glean many ideas that would help us evaluate new legislation, whether at the diocesan, national, or even universal level. It is probably in regard to personal rights that the situation is most sensitive today. III. THE CHANGED SITUATION SINCE 1983 Where have these principles – as outlined in the Apostolic Constitution, or in the Synodal document – gone in recent times? When, for instance, we consider the first principle, we note that the challenge of creating harmony between doctrine and law is evident in many of the post-Code documents. Probably one of the best examples of this harmony can be found in the Apostolic Constitution, "Pastor bonus" on the re-organization of the Roman Curia. The first part of the document, "Introduction", gives the doctrinal principles upon which the service of the Curia is to be based. A careful reading of this important document reveals that the text insists on a service role, not primarily on one relating to power and control. At the same time, we should keep in mind the proper role of law: it should not be used to resolve psychological problems, or to cover for personal ineptitude. In this regard, we recognize that the norms relating to exorcism and other forms of deliverance are built on a sound doctrinal basis. Indeed, the working paper for the 2001 Synod of Bishops, basing itself on canon 1172, had stated: "In the fight against evil and the Evil One, the bishop must enlist, according to canon law, priests endowed with piety, knowledge, prudence and integrity of life to perform exorcisms and practice prayer so as to obtain healing from God." In passing, we could note that it would be important to keep these wise provisions in mind when dealing with various prayer groups that insist on practising deliverance in its various forms. But, even if the norms are carefully observed, there are still times when the diocesan bishop has to intervene: "Authoritative intervention by the diocesan bishop is proper and necessary when abuses are verified in liturgical or non-liturgical healing services, or when obvious scandal is given to the community of the faithful, or where there is a serious lack of observance of liturgical or disciplinary norms." So, as we can see, there is place for both doctrine and law in legal texts, keeping in mind the fundamental legal nature of a legislative document. When it comes to applying
the second principle, we find an example of internal forum matters
being dealt with in the recent letter from the Congregation for
the Doctrine of the Faith on same-sex unions. The text states that
for a Catholic lawmaker "to vote in favour of a law so harmful
to the common good is gravely immoral." We had a similar mixture
of the two fora in the CDF Declaration of In considering the third principle, we could say that norms that do not provide for the security and even the safety of priests who have been accused of various delicts, can hardly be classified today as "pastoral" documents. Norms that are retroactive, or practices which allow for easy dispensation from the canons on prescription could well be questioned as to their canonical appropriateness. Likewise, when referring
to this same third principle, on the pastoral character of the
Code, something that concerns me most particularly is the harsh
tone we find in recent Church documents. While the Code was to
be marked by moderation, charity, and so forth, we do not always
find these qualities in recent texts. For instance, in the Other examples of harsh wording can be found in recent statements relating to homosexuals, and to the divorced and remarried. Perhaps it is not necessary to hurt people in order to get a message across. As to the fourth principle, regarding the non-revocation of faculties, the 1987 response from the then Commission for Interpretation that a bishop may not dispense from the provisions of canon 767 relating to the homily, could be examined in this perspective. We could also ask whether it should not be possible for a bishop to be able to dispense from canonical form in the case of two Catholics who are not practising their faith regularly or who find themselves in particularly difficult circumstances. As to subsidiarity,
the fifth principle, the role of the Conference of Bishops in this
regard is one that would have to be re-examined before too long.
For, at the present time, we must recognize that the Conferences
are now quite limited in their capacity to make statements (except
for some rather minor matters) or to take important pastoral initiatives.
Furthermore, we must recognize that the principle is not as operative
as it could be in a number of areas. Thus, rather than leaving
decision-making with the persons involved, a number of recent documents
consider now that the Holy See or some other outside ecclesiastical
superiors are the appropriate persons to intervene. We have only
to think of the document (July 8, 1997) on diocesan synods which
asks that copies of all synodal documentation, and not just the
decrees, be sent to the Holy See. Another example would be the We must seriously question the application in some places of the sixth principle on rights. For instance, issues relating to confidentiality and protection of reputation have been raised in those instances when files and accusations concerning priests were made public without their consent. Rights relating to due process of law are also overlooked or placed in doubt. The Pope has returned to this, time and again, when referring to marriage nullity cases; the same principles would apply also in penal cases. The seventh principle on procedures for the protection of rights has been severely tested, and the results have been far from positive. For instance, recourses often take three to five years to resolve, while the situation simply festers and, by the time the decision is given, things have often gone beyond control. The Father Gruner (and Fatima) case is a good example of this – no matter which side of the question one is on. In the same vein,
I feel so saddened to see priests languishing in what we could
call "holding pens" – many for over 20 months now – without
any formal accusation, with no indication of if or when a trial
will take place, or of a possible outcome to situations arising
from accusations. We have our own Indeed, it is probably with the sixth and seventh principles – the protection and vindication of rights – that we are most deficient in our applications. Many rights of priests, as mentioned earlier, no longer seem to be recognized in some dioceses. For instance, once an accusation has been lodged, there is no longer a presumption of innocence. The priest is usually not informed of the name of the person making the accusation. The provisions on prescription are no longer guaranteed. Confidentiality is no longer respected when the names of the accused are made available to the media. Quite a number of priests are removed from the clerical state, even by administrative decree, and without any pension or reasonable form of support. Of course, I do not want to generalize. Fortunately, some dioceses have been exceptionally careful in seeing to the rights of priests and in providing for their needs. But, regretfully, many others have not been considering these rights when trying to address situations. As to trials, if such are mandated by the CDF, we must recognize that many dioceses and religious institutes are simply not equipped to offer penal trials speedily. Justice delayed is justice denied. It would seem that keeping a priest in limbo for more than six months without any action in his case is unacceptable. Also, priests are finding it very difficult to have access to canonical counsel, even though this is prescribed in the law (see canon 1481, §2). The principle of territoriality – No. 8 – is put to the test today when we consider the number of priests who are functioning on the basis of an incardination of convenience. The new associations of priests which are springing up in many parts of the world, are certainly a sign of the working of the Holy Spirit, yet they put Bishops in a very awkward position when it comes to the functioning of these priests – who are not "married" to the diocese of their incardination, but rather to the group to which they belong. This has very practical applications when it comes to pension plans, liability insurance, and the like. As to the ninth principle – on penal law – we must recognize that it is not easy to apply the canons on Book VI and the corresponding ones of Book VII; there are so many exception clauses. Furthermore, while the law spells out a number of safeguards, the recent practice – in view of the crisis that was faced – has not been totally in accordance with the principle of not having automatic penalties prescribed unless absolutely necessary. Interestingly enough, the first formal change to the Code had as one of its purposes to add new penalties. So, as we look at these various principles, we realize that the sailing has not always been smooth. There is, at times, a very serious discrepancy between what is taught and what is practiced. In some senses, the Code is put to a type of water torture, daily being subjected to pressures which it was not designed to bear, and to which it will not always be able to withstand. So, where does this leave us today? IV. WHERE ARE WE TODAY? If we were to return to Sacrae disciplinae leges, we might find some excellent hints for the protection of our legal system in the Church. A. Law and charisms Probably the point that struck me most in re-reading the document, was the insistence on the fact that the Code does not replace "faith, grace, or charisms". It is not always an easy task to discern charisms. Initial reactions can be very positive, but the long-term results must be awaited before any definitive judgment can be reached. I have referred earlier to the proliferation of new movements and groups in the Church. Those of us who have been involved with a number of them realize that not everything is rosy. A certain number have had to be officially suppressed or denounced. When it comes to consecrated life, for instance, I see significant pressures on many fronts to recognize other possibilities, such as an on-going temporary commitment, without having to make perpetual vows; the establishment of communities of men and women working together; the opening of institutes to persons other than Catholics, and the possibility of having family commitments recognized. In addition to problems of governance and group leadership, the question of associates is one that is opening new doors, but also giving rise to possible problems. It would be important, given the present climate, not to refer to associates as "members" of the institute; not to have them as observers as chapters, at least on a continual basis; not to have them living directly in community with the vowed members, as if there were no difference between the two. In addition to unforeseen liability issues, there are also other questions relating to the identity of the vowed members, and to their rights as members of an institute. The situation is not that clear for priests who wish to dedicate themselves to a community or to a movement which cannot incardinate its own priests. What obligations can the incardinating Bishop impose on the newly-ordained priests. For instance, can he oblige them to two or more years of direct pastoral service in the diocese before they are freed to carry out the work for which they feel called? What are a bishop’s rights and responsibilities if there are doctrinal deviations in the group to which the priests belong? B. Collegiality It is probably in regard to collegiality that we are finding the most difficulty with new documents these days. Pope John Paul referred in his Constitution to the importance of collegial efforts with the Bishops of the Church in preparing the new Code. Recently, the complaint we hear from Bishops is that new documents are issued without any general consultation of Conferences. At times, there is token consultation of a few selected Bishops – often not presented by the Conferences, but selected from other sources – but it can be asked how much these persons represent the ideas of the Conference. The establishment of "Vox clara" is one example, but there are many others. I seriously question how we can expect there to be any real ownership of new documents when there is very little input from those who are expected to implement them. When I look back at Vatican II and note that two subjects could not be discussed – priestly celibacy and birth control – we see how important it is to keep things in the open. Otherwise, they fester and smoulder under the carpet. They will not go away. The Pope addressed this matter of collegiality and collective input directly on January 18, 2002 when he spoke to the plenary meeting of the CDF: "the Church needs and lives on continuing fraternal debates, on their give and take, for it is the only way she can find more efficient and effective ways of collaboration among the offices of the Roman Curia, with the Episcopal Conferences and with the superiors general of institutes of consecrated life and societies of apostolic life. However, without an ability to work together that a common love for the Church makes happen, the Church cannot be her true self." He then continues later: "There is an obvious need for greater involvement of the Episcopal Conferences, of the individual bishops and, through them, of all the preachers of the Gospel in the work of knowing how to present the more difficult topics of the faith today." If such dialogue and working together is so important today, it would be important not to condemn immediately anyone who has an opinion different that of ours. The regime of secret denunciations, condemnations, silencing of theologians and others, is a far cry from what the Pope is calling for. In another area, during the month of August 2003, there was much written and spoken in the media about the 1962 Holy Office document, "Crimen sollicitationis". Many unfair statements were made, stating that this document was a "smoking gun", showing that the Church forbid access to civil authorities in sexual abuse cases by imposing pontifical secrecy. We all know that the document had a completely different purpose (i.e., to protect the sanctity of the sacrament of penance), but there is no way that this can be justified in the minds of some people today when they simply do not want to listen. However, the controversy teaches us an important lesson. It shows how important it is today not to have so-called "secret" laws. How can bishops apply laws that they do not even know exist? How can their advisors assist them when they do not know what are the procedures to be applied? As an example, when the new CDF reglations on Graviora delicta were issued, the procedural norms were not part of the documentation. This made it difficult to take the appropriate steps to prepare the documentation. Of course, these norms were made public later. But this only led to more frustration, especially since Graviora delicta was made public months before the Papal motu proprio authorizing the matter was even officially promulgated. If the Conferences had been involved in the preparation and distribution of these documents, there would have been a much more sensitive response to situations being faced today. There have been many similar incidents in regard to liturgical norms and texts. C. Ecumenism Another important principle outlined in the Constitution and used for the preparation of the new Code was "the assiduity which the Church must devote to ecumenism." A continuing concern for this was very carefully illustrated in the 1993 Directory on Ecumenism. The document was open-minded; it was based on a true interpretation of the Vatican II documents (and not on contrived applications), it was very sensitive to the feelings of Christians not in full communion with the Catholic Church, and it exposed the doctrine clearly and succinctly. The recent agreements
with the Lutheran communion, and with the D. Respect of rights There was a fourth element in "Sacrae disciplinae leges" that we could consider today. The Pope called for a law wherein "the mutual relationships of Christ’s faithful are reconciled in justice based on charity, with the rights of each safeguarded and defined." Perhaps I have been insisting too much here on this point, but for me it is capital, if we wish to have a law that is credible and is well-received. In Canada, we would need to have some type of conciliation or mediation board so that disputes which arise can be resolved quickly, before they fester and then become public, thus creating even more division within the Church. Proposals have been sent to the Bishops’ Conference in this regard, and the Canon Law Society has been directly involved, but there does not seem to be much interest in the proposal. Yet, if we don’t have a suitable mechanism at our disposal, it is very difficult to continue stating that the Church is interested in the protection of the rights of the faithful. So, for me, it is also a question of credibility, in addition to being one of expediency. In Another area where rights are involved, and to which I have alluded on other occasions, are those of Church employees. On many occasions, Church authorities have tried to arrange employment for persons who otherwise would not have been gainfully employed, and this is a great act of charity. But, once they are employed, these people should be able to rely on certain protections in addition to those provided by the civil law in effect in the country. I am thinking more particularly of policies relating to the termination of employment and to retirement. Perhaps our Society could make this a priority in the years ahead. CONCLUSION So, where does this leave us, particularly as members of the Canadian Canon Law Society? We see how both the
Pope and the Synod of Bishop traced great principles for us. They
provided an excellent backdrop against which to evaluate current
and new legislation. But they also prod us today to move a step
further and make sure that any new legislation or statements in I hope and pray that we will all be vigilant to make sure that the canon law of the Church will not become discredited in the years ahead because of our failure to apply the guiding principles put forth so clearly for us. Francis G. MORRISEY, O.M.I., Faculty of Canon Law, NOTES *
Paper presented on the occasion of the 38th annual convention
of the Canadian Canon Law Society, |
Search
By financially supporting Benedict XVI January IntentionsGeneral Intention: That the family may become more and more a place of training in charity, personal growth and transmission of the faith. Mission Intention: That the different Christian confessions, aware of the need for a new evangelisation in this period of profound transformations, may be committed to announcing the Good News and moving towards the full unity of all Christians in order to offer a more credible testimony of the Gospel. Quick Links to OBS Comments:
On the PriesthoodPope Benedict XVI ChaplainChaplain's MessageMonitor this page for changes |
