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.
One 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.
Fr 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)