What canon law is for

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Canon law, not usually a household term, has come into the public eye of late, especially in the wake of the Royal Commission into Institutional Responses to Child Sex Abuse.

Second Vatican Council by Lothar WollehOne prominent example has been the question of the 'Pontifical secret', the prohibition of reporting information about a canonical trial in progress which is designed, like the sub iudice rule in common law, to prevent defamation of an innocent accused, and prejudice to a fair trial. (Note, this is not the same as the seal preventing a priest from revealing what he hears during the administration of the Sacrament of Penance, although some media reports have appeared to conflate the two.) Given this newfound prominence, it seems a good time to have a look at what canon law is — and what it isn't.

At its simplest, canon law is the law governing the Catholic Church. The word 'canon' (from the Greek for a measuring stick) has been used to refer to Church rules since the first century of the Christian era. While there are a number of sources for it including papal pronouncements, laws passed by bishops and bishops conferences and religious superiors, the principal ones are the Code of Canon Law 1983 (dealing with the Western or Latin Catholic Church) and the Code of Canons of the Eastern Churches 1990 (governing the Eastern Churches in communion with the Holy See).

The thornier question, and one which has quite reasonably provoked a lot of debate, is what canon law is for. The struggle of the Church in the ninth to 11th centuries for religious independence from the mediaeval monarchies led to the Church seeing itself as a legal entity in parallel to those states. This juridic approach to the world was given a fillip by the rediscovery of Roman law, which spurred a growth in legal science.

For these early canon lawyers, the message to the crowned heads of Europe was clear — we have our own legal system and our own rules and we won't be told who we appoint and how we act in our own sphere of competence. This 'defensive' use of canon law was spurred by the Reformation and Enlightenment, both of which were seen by many within the institutional Church as threats to both Church authority and its claim to stand as an institutional embodiment of the Christian message.

The Second Vatican Council (1962–1965) instituted a very different understanding of the Church and its role in the world. No longer was it seen primarily as an institution analogous to a kingdom (with all the attendant risks of clericalism). Instead, the Church was primarily seen as a community manifesting Christ's loving relationship with the world.

So, what did that mean for canon law? Unsurprisingly, there are a number of schools of thought, inevitably coloured by the backgrounds of the people who subscribe to them. There are three basic tendencies. For many jurists canon law is just that — a legal system, first and foremost, although a very special one given that it is law of the Church. For these, canon law rules should be interpreted like rules in other legal systems. A law like the Pontifical secret, for instance, should be read principally through legal lenses, much like its equivalent in common law where contempt of court attracts fines or other punishments in order to protect the integrity of the legal system.

 

"Many of the civil courts' most scathing denunciations of Church authorities have come from their failure to follow canon law procedures and, in so doing, covering up issues or denying people their rights."

 

Others, particularly from Opus Dei, stress the fact that canon law is of the Church. They agree that it is primarily law but stress that it is a law which must be consistent with Christian faith as interpreted by the Church. For them, how the Church interprets its rules plays a major role and so a norm like the Pontifical secret will be interpreted to uphold the Church's authority and ability to do justice.

The final school sees canon law as primarily an attempt to make the Church's theology practical — to live the life to which it is called as a community making God's love felt in the world. For these, including one of the main modern theorists of canon law, Ladislas Örsy, canon law is primarily a sacred science, giving practical effect to theology but doing so using juridical tools since it deals with questions of justice and rights. We might describe canon law in these terms as 'administrative theology'. This latter school is arguably most in tune with Vatican II because, while it recognises the institutional fact of the Church, what lies at its heart is rather that Church as sacrament — a community expressing Divine Love.

Juridical methods are still the bread and butter of this understanding of canon law — there is no love in failure to give the oppressed a remedy, in denying accused people a fair trial or in capricious decision making. On this reading, however, those methods serve goals beyond the merely legal. Space is left for listening to hurting people, for binding up the wounds of people damaged (all too often by rigid or clerical interpretations of law) and for redressing wrong (even, or perhaps especially, where it is the institutional Church which has caused it).

It is also possible to recognise (in a way that secular systems are ill-equipped to do) that certain laws are inapplicable to a given case or that the wellbeing of individuals demands custom made solutions which take their spiritual and physical needs into account. Rules like the Pontifical secret, for instance, should be read in such a way as to protect the rights of the innocent and avoid false accusations but should not be used to obstruct justice for victims. So, for example, they may not apply where a finding of guilt has established the truth of the accusation.

None of this suggests that canon law as it currently exists is perfect or measures up to justified community expectations. The Codes were drafted in particular times and places and represent something of an uneasy compromise between all three of these schools of thought. The absolute terms in which the Pontifical secret is currently expressed (prohibiting any reporting of cases in ecclesiastical curts while the cases are in progress)  is an example.

The Codes were also prepared long before the depth of the current abuse crisis was understood or acknowledged. Indeed, many of their provisions are currently being redrafted accordingly and in the light of issues such as those highlighted by Australia's Royal Commission.

Nevertheless, it is also true that many of the civil courts' most scathing denunciations of Church authorities have come from their failure to follow canon law procedures and, in so doing, covering up issues or denying people their rights. Real damage can be caused to people not only by covering up accusations but also by making false ones. While there is no doubt that the Church is always in need of reform, as the Council put it, the challenge will be to ensure that the reform of canon law keeps pace in order to restore broken trust and allow the Church to be the loving community which we believe it was always meant to be.

 

 

Justin GlynFr Justin Glyn SJ has a licentiate in canon law from St Paul University in Ottawa. Before entering the Society he practised law in South Africa and New Zealand and has a PhD in administrative and international law.

Main image: Second Vatican Council (Lothar Wolleh)

Topic tags: Justin Glyn, Canon Law, Catholic Church, Royal Commission, clergy sexual abuse, seal of confession

 

 

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Existing comments

Justice is the province of the rich. Cardinal Pell won the church's case against Ellis, running him out of money, and a tinny ruling that the church was an unincorporated association incapable of being sued. Then internal debate as to whether to pursue Ellis for hundreds of thousands of legal fees. The point of the subsequent chest beating by the church authorities was to dissuade victims from levelling claims. Pure and simple. When it comes down to it, Canon law is a cloak that can be pulled over a complaint so it can be described as a Pontifical secret- akin to Harry Potters cloak of invisibility. On the one hand, canon law, a secretive process administered by highly trained priests. A labyrinth for complainants. On the other, civil law which the church evades, eg the Ellis defence, to limit payouts to preserve church property. "Canon law is primarily a sacred science, giving practical effect to theology but doing so using juridical tools since it deals with questions of justice and rights " is not only a mystifying statement but one that should come under the conflict rules. Civil courts should have the right to interpret canon law precepts.
Frank Armstrong | 09 August 2018


Thank you for this clear exposition, very helpful to the lay person. If I understand it correctly, Frank Armstrong, the 'tinny ruling' in the Ellis case was a ruling in the civil court - it had nothing to do with canon law. I believe the Bishops have committed themselves to making sure there will always be a 'juridical person' who can be sued in a case like this, and this involves a change in civil law, not canon law.
Joan Seymour | 09 August 2018


Joan I appreciate your comment, but relying on a vague promise by "the Bishops" reminds me of Dean Swift's famous quote: "Promises and pie crusts are made to be broken." ~Jonathan Swift
Frank Armstrong | 10 August 2018


Joan. I would believe in the sincerity of the Bishops in regards to their promise to never use the "Ellis defence" if they reopened the cases where they used it and agreed to pay proper compensation. What we have now is a situation where there is a clash of laws: Canon law and established Australian law which currently compels the reporting of abuse to Police. The religious are asking for a special exemption. So, we have a decision to make.
Anonymous | 10 August 2018


Thomas Becket Archiepiscopus Cantabruensis used Canon Law and its notion of the Church as a Sovereign State, beyond the reach of secular authorities. Within all territories its institutions were untouchable enclaves. Becket used all that to shield Theologist thieves, Monastic murderers, Reverend rapists and Monastic murderers from the King's Justice. What could possibly go wrong!
james marchment | 10 August 2018


Justin describes an ideal world where secretive clerical systems of justice do in fact offer a fair hearing for the accused. One only has to look back to the case of Toowoomba Bishop Bill Morris to see that's not always how it works in practice (outlined here by Frank Brennan - https://www.eurekastreet.com.au/article.aspx?aeid=41603). Justice doesn't just have to be done - to be accepted by a community it has to be seen to be done. Catholics can hardly be blamed if they're tired of being left in the dark amid these Vatican deliberations.
Joseph Vine | 10 August 2018


Thanks, Justin, for your clarification between the seal of Confession and Official Pontifical (Institutional) Secrets - Or what has been publically proven to be, in the Royal Commission as a criminally corrupt 'Vow of Silence' or 'Omerta'. Steadfastly maintained by a culture of 'Career Clergy,' whose very existence is dependent on this 'Institutional Patronage. ( The same one our illustrious George Pell tried to enact on all his school teachers ten years ago) Amazingly, ubiquitously demonstrated in every Church Denomination before the Royal Commission, by a hapless Spiritual Leadership, all found wanting as 'Speaker of Truth and without honest recall". While this 'Canonical Rhetoric' may be of interest to the rank and file of uninformed, for most of the long-suffering Public and man in the Pews (All victims of the same Abuse in different forms), it is irrelevant - it just more business as usual and 'one more time with feeling'. As Sheep intuitively know, 'There is no Right answer to the Wrong Question', no matter how articulate and clever the Learned Lawyer.
Michael Wood | 10 August 2018


James it didnt help him much when Henry's knights obeyed his edict "who will rid me of this troublesome priest?" as they dashed his brains out on the cathedral altar.
Frank Armstrong | 10 August 2018


Well said Frank Armstrong as a speaker of Truth. I Pray you maintain your objective as an advocate of Truth and Justice, regardless of the cost.
Michael Wood | 10 August 2018


Sometimes law isn’t enough. All the American Founding Father knew that a virtuous citizenry was indispensable to a free society. But our society has rejected virtue. Hollywood promotes violence and porn; the Culture of Death promotes abortion and euthanasia; no-fault divorce facilitates family breakdowns; and Marxists promote a rejection of the moral order and “disintegration of the system.” In such a society, “everybody knew” about Harvey Weinstein and Cardinal Theodore Mc Carrick’s sexual misbehaviour, and did nothing. Interestingly, Mc Carrick was a signatory to the 1967 Land O’ Lakes Statement in which Catholic university presidents declared “academic freedom in the face of authority of whatever kind, lay or clerical.” It freed Catholic education from the obligation to be faithfully Catholic, and many colleges and universities embraced relativism and political correctness. Ironically, last month Professor John Mc Adams won a court case against Marquette Jesuit University which has suspended him for criticizing a lecturer who had refused to allow a student to put forth an argument against same-sex marriage. Wrote Justice Daniel Kelly, “The University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract’s guarantee of academic freedom.”
Ross Howard | 10 August 2018


I bow, as a non-lawyer, to the wealth of dissentients here who successfully, in my view, take Dr Glynn and his 'canonical' exposition on. This, however, I do know: Justin massively understates the importance of the subject when in his introductory sentence he says "Canon law has come into the public eye of late". His article should have started with his later remark about Vatican II transposing canonical impacts as "administratively theological". However, I doubt if this too would have commanded a better hearing, since my understanding is that the major impact of the Council was intended to be pastoral. Therein lies the problem with trying to reprise an all but moribund system of laws when what the People of God are crying out for is a more obvious and licit pastoral theology. In sum, Fr Glynn's article, while nicely comprehensive, just isn't critical enough and, while cleverly focused on explanation, fails to address the more pressing obligations of a Servant Church.
Dr Michael Furtado | 11 August 2018


As welcome as this article by Justin Glynn is, it only addresses a small part of a complex system of church law. It does however, thankfully open the way for much needed further discussion and constructive criticism. On 10 August, National Catholic Reporter published two articles; one reporting the death of Richard Sipe; the other, some suggestions by Anchorage,Alaska Archbishop Paul Etienne. Both have direct and indirect relevance. There is much to discuss. Let's get going!
John Casey | 12 August 2018


Father Flader [Catholic Weekly] correctly states about the Plenary Council: "In the first place all the bishops are to attend and it is only they who have what is called a deliberative vote, meaning that only their votes count in passing any legislation (cf. Can. 443, §1). Reform of course is always possible, a hope of Concerned Catholics in the Canberra/Goulbourn diocese. Legalisms and legalese were not a high priority for Christ in the New Testament but some modern days proponents argue of Humanae Vitae - though it is a papal encyclical rather than canon law - that contraception is an acid test of Christianity. Canon law can be a disciplinary system to promote order in Church Affairs; it can also be used as system to entrench hierarchical, clerical power as well as ensure the laity are relegated, in Bishop Long's terms, to the pyramid base. When one reflects on Matthew 4,5 & 6 there is a metanoia, an internal conversion of the heart that relates to the values of the Kingdom and frankly, there is much not legalese or canon law evident in the core values Jesus proclaims.
PeterD | 13 August 2018


Sorry, Justin! A 'Glyn' by any other name.............
Michael Furtado | 13 August 2018


Peter D, it would be an anachronism to expect of Jesus's words in Scripture expressions of canonical legalese. Herbert McCabe OP's classic "Law, Love and Language" provides a penetrating exposition of connections between these basic social realities, critiquing the fatuity of the "all you need is love" mentality on the one hand, and the distortion of an exclusively legalistic conception of Christian discipleship on the other.
John | 14 August 2018


Hi John, Jesus was familiar with Judaic Law which had hundreds of observances for living out the Torah. The OT expression - 'their hearts are far from me' suggests a deeper orientation rather than outward observances. There is a general point I can agree with in your posting: that it is not a simple dichotomy. There are some frameworks for Christianity and spirituality to flourish - take the Divine Office, Ignatian spiritual exercises, the Liturgical cycles etc but my general point is that the litigious, the legal/canon law perspectives are just too prominent in our world. Even the connection between food taboos and religion is tenuous in my view. The facts seem to be, paradoxically, that when you have strict religious observances, Lenten practices, set times for Islamic prayer, Judaic observances etc: religion is more established and indeed clearer to disciples. The relationship between inner and outer spiritual dispositions is a perennial challenge. My view generally is that living out a Christian spirituality in community is probably more critical than knowing a lot of Church doctrine or Canon Law.
PeterD | 14 August 2018


Yes, Peter, the psalmist emphasizes the desirability and priority of " a clean heart" and an "upright spirit" over legal observance, and Ignatius stated that ideally his companeros of Jesus would require no written constitution. Benedict XVI strikes a happy balance, I think, when he speaks of our faith as a "contoured" one.
John | 15 August 2018


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