Is canon law fit for purpose?


 Is canon law fit for purpose?

Academic and canon lawyer Dr Helen Costigane prompted a lively discussion when she addressed the question of whether canon law is fit for purpose at a meeting of the Glasgow Newman circle.  This is an edited version of her talk.

There is a scene from the 1970’s film, The Life of Brian, in which members of the political group, the People’s Front of Judaea, are plotting revolution against their Roman imperialist masters.  One of the group, Reg, asks the question: ‘what did the Romans ever do for us?’   He expects the answer ‘nothing’ and is surprised when the group list things such as the aqueduct, roads, sanitation, irrigation, medication, education, wine, public baths, fresh water systems, keeping order, and bringing peace.

In the same way, we might ask that question about the 1983 Code of Canon Law: ‘what did canon law ever do for us?’  Furthermore, given the very negative press it has had in recent years in terms of the abuse crisis, we might ask the question whether it is still fit for purpose.  There is a perception that canon law is the arteriosclerosis in the Body of Christ; the shadow side of the Good News.  Yet this is not the whole story.

The 1983 Code of Canon Law governs internal church administration in relation to areas such as the administration of sacraments, temporal goods, and ministry.   This revised Code, superseding its predecessor of 1917, was promulgated by Pope John Paul II on 25th January 1983, by way of an apostolic constitution, in which he says that the purpose of the Code is not to replace faith, grace, charisms or charity, but ‘looks towards the achievement of order in the ecclesial society… such that 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’.

So it has a positive aspect: the preservation of right order; looking to the common good; and the rights of individuals.

Where does canon law come from?

What is now set out in the 1983 Code is derived from a long history, and its canons have various sources: scripture, ecclesiastical assemblies, imperial edicts, Church councils, the writings of the Fathers, and papal letters.  Ecumenical councils became a source of canons, the most well-known of which is that the Council of Trent (1545-1563) which enacted a series of decrees on the internal reform of the Church in addition to major doctrinal clarifications.  The revised Code of 1983 reflects the anthropology, ecclesiology and Christology articulated in the documents of the Second Vatican Council.

Rights and obligations

Perhaps one of the most interesting changes in the 1983 Code was the introduction of a list of rights (as well as obligations), not just for clergy, but for all Christ’s faithful.  As well as the obvious duty to preserve communion with the Church (canon 209) and obedience to pastors when representing Christ as teachers of the faith and rulers of the Church (canon 212), there are obligations incumbent on each person to build up the Body of Christ (canon 208), lead a holy life and promote the growth and sanctification of the Church (canon 210), and strive so that the divine message may reach all and everywhere (canon 211).  Duties imply rights, and the Code outlines a number of these.

The People of God, Christ’s Faithful, are free to make their needs and wishes known to pastors (canon 212).  They have the right to make known their views to other members of the Faithful, while respecting faith and morals, pastors, the common good, and the dignity of individuals. They have the right to be assisted spiritually by pastors, using the spiritual riches of the Church, especially the Word and the Sacraments (canon 213). There is a right of association and assembly for works of charity, piety and the fostering of the Christian vocation (canon 215), and to promote apostolic actions under their own initiative (canon 216).  There are rights to a Christian education (canon 217), freedom to choose a state of life (canon 219), to a good reputation and privacy (canon 220), and the right to defend rights before a competent ecclesiastical forum (canon 221).

One of the neuralgic issues in certain countries is canon 222 and providing for the needs of the Church.  In Germany, for example, Church tax is collected by the State and distributed to various ecclesial communities.  Many have taken exception to this and have tried to register their protest by trying to leave the Church, by declaring in court that they are no longer ‘Catholic’.

It is worth reminding ourselves why we contribute money to the Church.  The range of material assistance is mentioned in Benedict XVI’s Deus Caritas est (2005), but a further dimension is highlighted.  As the Church spread throughout the world

‘…the exercise of charity became established as one of her essential activities, along with the administration of the sacraments and the proclamation of the word: love for widows and orphans, prisoners, and the sick and needy of every kind is as essential to her as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.[i]

This is a very significant statement as it puts charitable activity as a fundamental element of the Church’s life:

‘For the Church, charity is not a kind of welfare activity which could equally well be left to others, but is part of her nature, an indispensable expression of her very being’.[ii]

Canon law and change

1983 seems a long way away now.  Could anyone have foreseen that women might attempt to be ordained in the Catholic Church?  What about those who cannot petition to have the validity of their marriage examined because of the lack of tribunals in some parts of the world?  The application of the law requires interpretation, and the Pontifical Council for the Interpretation of Legislative Texts serves primarily to do that, addressing issues such as the celebration of the sacraments by priests who have attempted marriage (1997), the admission of divorced-remarried people to holy communion (2000), and leaving the Church by an act of formal defection (2006).

The law can also be amended or changed.  As there was no provision in the Code to excommunicate women who attempted to be ordained, or those ordaining them, this was remedied in 2008 by the Congregation for the Doctrine of the Faith.  Most recently, Pope Francis made changes to Book VII of the Code on procedures, introducing a shorter form for considering marriage nullity, which can be used especially in those areas of the world where there are no marriage tribunals.

 Where was canon law ‘then’?

One of the most distressing phenomena in the Roman Catholic Church in the last twenty years is that of sexual offences committed against people (often, though not exclusively, very young people) by clerics and those in religious congregations.  This raises the question of whether canon law was fit for purpose, now and then.

The Instruction, Crimen sollicitationis promulgated in 1922, then again in 1962 with amendments, was to be used (with necessary adjustments) for any grave sinful external obscene act attempted or committed with another man, a young person of either sex, or with an animal. Procedures were outlined when receiving denunciations, and some variations allowed, but the main thrust of these was to ensure the completeness, accuracy and validity of the denunciation – in short, the whole truth – and that secrecy was maintained.  The investigation process was to establish whether or not there was a foundation to the imputation, and what it might be, looking at things such as the previous history of the accused and the credibility of the accuser.  After this preliminary investigation, the Ordinary had a number of choices, including subjecting the accused to a penal process if certain or probable arguments existed to establish the accusation.

Canonical laws and a system were in force to deal with many of the abuse cases occurring over 30 years ago. The procedure which dealt with the crime of solicitation in the sacrament of Penance goes back as far as 1622 and was subsequently elaborated in 1866, 1890 and 1897, and updated in 1922, when the procedures were adapted to deal with the crime of clerical child sexual abuse.  The bishops were informed at that time, and even though it was under pontifical secret, standard authors clearly explained the substance of the Instruction.

The fact that many priests continued in ministry indicates perhaps that the secrecy surrounding Crimen sollicitationis worked against it in that clergy (perhaps even bishops) were not entirely aware that they could use it in its broader sense of dealing with paedophilia.[iii]  There may have been other issues why bishops did not act: to protect the institution, perceiving abuse as a moral failing rather than also as a criminal act, a misguided understanding of the place of law in the Church, and the lack of canonical structures to deal with cases. Further, there may have been an over-dependence on the therapeutic paradigm.  The report from the Dublin Archdiocese of 2009 noted that ‘canon law was used selectively when dealing with offending clergy, to the benefit of the cleric and the consequent disadvantage of his victims’.

Where are we now?

Steps have been taken to ensure that abuses of the past are less likely to be perpetrated, with the Church’s procedures for recruitment and deployment of personnel becoming more transparent.  However concerns have emerged as to whether, in seeking to uphold the rights of children and vulnerable adults, the protection of the rights of those working within the Church is in danger of being undermined.  It is clear that the Church needs to take steps to protect those who are within its care.  However, there is some question on whether some of the steps being advocated are blurring certain boundaries, and ignoring certain fundamental principles of canon law.

Canon 1717 (paragraph 1) reads: ‘Whenever an ordinary has knowledge, which at least seems true, of a delict, he is carefully to enquire personally or through another suitable person about the facts, circumstances and imputability, unless such an enquiry seems entirely superfluous’.[iv]

There are a number of key points here.  The first is that any penal process is not to be undertaken lightly in view of the possible consequences for the person who is accused.  The Ordinary (who may be a diocesan bishop, a vicar general or episcopal vicar, or a major superior of a clerical religious institute) may delegate the task of enquiry to a cleric or lay person.  In some instances, a priest may be more effective in speaking to an accused cleric, while in other cases, people trained in dealing with children or young people may be preferable in talking to alleged victims.

The knowledge gained by the superior ‘seems true’, or ‘has at least the semblance of truth’: vague rumour alone is not enough to begin this process, though there is little indication what criteria may be employed to make a decision on the degree of knowledge required.  Such an enquiry would ‘seem entirely superfluous’, perhaps because of the existing notoriety of the facts, or when the Ordinary is already in possession of evidence which can generate moral certitude, or that the accused has already confessed voluntarily to the offence. This preliminary investigation is to consider the facts of the allegation, the circumstances, and the question of imputability.

Paragraph 2 of canon 1717 reflects canon 220 in affirming that ‘care must be taken so that the good name of anyone is not endangered from this investigation’.  This requires that any investigation be carried out discreetly and with sensitivity.  It also suggests that, at this point, there is a presumption of innocence in favour of the person who has been accused.  However, at this stage, it is sufficient that there is a strong probability, rather than certainty, that a crime has been committed.

What are the potential issues arising?   Normally when an allegation is made, the priest is immediately removed from ministry until criminal proceedings have been concluded.  While this is understandable, it raises the question of to what extent he ought to have ongoing emotional and financial support from his diocese or religious congregation.  It is also the case that priests may often have to fund their own legal representation.   It may be argued that practices dealing with alleged abuses appear to have been borrowed from a secular context wholesale without taking into account the particular nature of priesthood, ordination and incardination, and the relationship with the bishop.

The process itself may take some time.  It is not unknown for priests to be out of ministry for a year or longer, before it is established that there is no case to answer.  Not only does this lead to financial problems, but can cause a great deal of emotional and psychological trauma.  The maxim ‘justice delayed is justice denied’ suggests that every effort be made to bring any canonical investigation to a speedy conclusion, particularly when civil authorities have clearly established that there is no case to answer and that the allegations are unfounded.

Finally, it is important in any jurisdiction that the system the Church uses to ensure safeguarding for children and vulnerable people is fit for purpose.  Sadly, this is not always the case.  William Richardson observes that in Ireland ‘the arbitrary procedures endorsed by the bishops’ conference in Ireland presume allegations of sexual abuse against clerics to be true’.[v]  What is needed is an ongoing review to ensure that systems for dealing with these cases allow justice and equity for all involved.

Is canon law fit for purpose?

The answer is yes, but we need to bear the following in mind.  We need to know the law, the official text and its meaning, the meaning of the word, and what values are expressed by the rule.  Strict laws are to be interpreted strictly, discretion and prudence are to be exercised, as is equity which ‘takes the form of mercy and pastoral charity, and seeks not a rigid application of the law but the true welfare of the people’.[vi]  In the wrong hands, the Code of Canon Law can be a weapon of mass destruction; but as canon 1752 (the last one in the Code) reminds us: ‘the supreme law of the Church is the salvation of souls’.

Dr Helen Costigane SHCJ is Vice Principal – Academic at Heythrop College, London.

[i]  Paragraph 22.

[ii]  Deus caritas est, paragraph 25

[iii]  See U. Lopez, ‘Casus conscientiae’, Periodica, 27, 1938, 32-34.

[iv]  Canon Law Society of America, Code of Canon Law: Latin-English Translation, 1983

[v]  W. Richardson, The Presumption of Innocence in Canonical Trials of Clerics Accused of Child Sexual Abuse (Leuven, Peeters, 2011), p. 304.

[vi]  James Coriden, An Introduction to Canon Law (London, Burns & Oates, 2004), p. 205

Feb/Mar 2020

In June 2019 Open House held a conference exploring possible new directions for the Catholic Church in Scotland. See conference papers.

Open House also held a conference on the role of lay people in the governance of the Catholic Church in November 2013. See conference papers.