 
REFLECTONS ON THE HISTORY

OF PROCEDURAL LAW

Lawrence G. Wrenn

Text copyright © 2016 Lawrence G. Wrenn

all rights reserved

Smashwords Edition, License Notes

Thank you for downloading this free ebook. You are welcome to share it with your friends.

This book may be reproduced, copied and distributed for non-commercial purposes, provided the book remains in its original form.

Table of Contents

PREFACE

1. The American Procedural Norms, 1971

2. Remarks on Receiving the Role of Law Award, 1976

3. Community and Law, 1979

4. Introduction to Procedures, 1985

5. Matrimonial Procedures, 1985

6. In Search of a Balanced Procedural Law in Marriage Nullity Cases, 1986

7. An Historical Overview of Court Procedures in Marriage Cases, 1987

8. The Place of Law in the Church, 2001

9. A New Procedural Law for Marriage Cases ?, 2002

10. The Life Death and Possible Resurrection of the Summary Process, 2007

\+ + +
PREFACE

The ten articles in this collection are arranged in the chronological order of their publication, beginning with "The American Procedural Norms" in 1971 and ending with "The Life, Death and Possible Resurrection of the Summary Process" in 2007.

I should mention that even though article eight ("The Place of Law in the Church") does not specifically address procedural law, it is nevertheless included in this collection on procedural law because it lays a foundation for _all_ law, including, of course, the law that regulates the manner in which the tribunals of the Church carry out their mission.

I would also note that articles four and five, which originally appeared in the 1985 CLSA Commentary on the Code of Canon Law are reprinted here with the kind permission of both Paulist Press and the CLSA.

Finally, it should be noted that the ten articles included in this collection say nothing at all about the important developments that have occurred during the last dozen years, so let me very briefly summarize those events right now. Article nine of this collection concluded by noting that, as of July, 2003, Rome was still working on a new procedural law but exactly what it would look like remained unclear. Finally, on January 25, 2005 the Instruction _Dignitas Connubii_ was published with the stipulation that it be observed immediately by those to whom it pertained. _Dignitas Connubii_ was a lengthy document of 308 articles much like the _primum schema_ discussed in article nine. It was soon clear, however, that _Dignitas Connubii_ was altogether too cumbersome to be useful, and on August 15, 2015 Pope Francis promulgated _Mitis Iudex Dominus Iesus_ , thoroughly revising canons 1671-1691 and adding twenty-one articles that would now be the official procedural law for marriage cases. _Mitis Iudex_ is, I suppose, a kind of early 21st century version of the Summary Process, so perhaps it can now be said, in fact joyfully proclaimed that the Summary Process has indeed risen from the dead.

Lawrence G. Wrenn

July 30, 2016

Return to TOC

\+ + +

Article #1

**The American Procedural Norms, 1971**

_The American Ecclesiastical Review_ , Vol. CLXV, No. 3

A Breakthrough

The American Procedural Norms

Lawrence G. Wrenn

The Metropolitan Tribunal Hartford, Connecticut

Happy Birthday, A.P.N., wherever you are

This is a somewhat belated birthday card to a very dear friend, the American Procedural Norms, the norms that are now in use in the Tribunals of the United States for the hearing of those marriage cases that require formal trial. The norms were one year old on July 1, 1971.

For those of you who do not know my friend, I should tell you something about its period of gestation. The norms were originally conceived by a committee of the Canon Law Society of America chaired by Monsignor Stephen J. Kelleher. In May of 1968, Monsignor Kelleher sent the norms in their original form to all the members of the Society with a request for comment. The norms were then refined in the light of the comments received, and the revised version was unanimously endorsed by the Society on September 9, 1968, at its annual meeting.

The norms then went to the bishops. In the November 1968 meeting of the National Conference of Catholic Bishops it was moved, seconded and passed "that the Bishops consult with their canonical staff regarding the proposed procedural norms and that they submit in writing whatever observations they might have (in sufficient time to provide for a vote at the next General Meeting) on the norms presented or as revised in the light of these written observations."

The next General Meeting was in April of 1969, at which time the bishops voted to propose the norms to the Holy See for approval. The Holy Father, through Archbishop Casaroli of the Secretariat of State, then invited a committee from the United States, which included Bishops Primeau and Bernardin, to meet with an ad hoc committee of Roman officials headed by Cardinal Felici in order to discuss the norms. As a result of this meeting, which took place in January of 1970, the norms were further revised and the final product was then approved for use in the United States by Pope Paul. That was in April. The news came to us via a letter from Cardinal Villot, dated April 28, 1970, granting the norms for a three-year trial period beginning July 1, 1970.It was a happy day for Tribunal people. A friend of mine even passed out cigars that day. The cigars did not say anything on them like "It's a boy" or "It's a girl", but they were very good cigars. And we had a very good set of procedural norms for use in our marriage courts.

THE NORMS

In a way it is hard to say exactly what is so very good about them. There are twenty-three norms in all but they pretty much boil down, or so it seems to me, to the following:

1. An extension of competence. A court, for example, may now accept a case because, among other reasons, either one of the parties resides in the diocese. This used to be much more restrictive and highly technical depending on people's sex, religion, etc.

2. The faculty permitting one judge to hear a case. Formerly, every case required three judges, which somehow made a case seem three times more difficult than it really was.

3. A sense of urgency. This is generated by the not too subtle means of mentioning time limits at least a dozen times in a half dozen pages, either specific deadlines like saying this or that action must be taken in thirty days, or more general ones, by using terms like "prompt", "immediately", "as soon as available". And the whole process from start to finish in first instance must not exceed eight months.

4. A sense of confidence. Which is bred partly by no longer permitting missed technicalities to render the whole trial null and void and partly by making the whole procedure seem more reasonable.

In the old days many Tribunal officials were immobilized by the thought that one false step and months of work would be ipso facto eradicated. Now they know that a little slip is no big deal and besides if they do what seems right it will more than likely be right. Even if you did not know the law (which is extraordinarily simple and easy to learn now), little slips cou1d still be avoided just by being reasonable.

5. A positive appreciation of the rights of persons. It is not, I think, that the norms appreciate the marriage bond less but that they appreciate the rights of people more. This is seen in a lot of little ways, in extending competence, in permitting "any spouse, without qualification" to seek an annulment, in vigorously strengthening the hand of the advocate as protector of the people's rights, in permitting the judge to evaluate the testimony of people without demanding a double oath (or for that matter even a single one) plus a testimonial for each witness. And in a lot of other ways as well.

6. The discretionary appeal of an affirmative sentence. An appeal used to be mandatory. It used to be, in other words, that a person was not permitted to marry until two affirmative decisions were given. Now one suffices as long as the Defender of the Bond judges that the truth has been adequately served in first instance. Most Tribunal people consider the discretionary appeal to be the most helpful single feature of the new norms. One of my friends, in a burst of enthusiasm, even referred to it once as "the best thing since the wheel". Which strikes me as something of an exaggeration, though he may be right.

But the most important thing about the norms is that they work. It is still a little early to tell how well they work but a couple of recent surveys provide us with a fairly reliable profile.

RECENT SURVEYS

In each of these surveys about 130 dioceses responded, give or take a few, and the numerals in the table below refer to the number of dioceses. If the reader will spend a minute or two reading the table carefully, the broad picture of rather dramatic improvement will come quickly into focus:

CASES SENTENCED 1

Probably the two most obviously significant features of the table are first of all that the number of tribunals giving no sentences drops from 60 to 14 and secondly, the number sentencing more than 30 cases rises from 1 to 26.

But by simple addition a couple of other observations can be made: firstly, that the number of tribunals sentencing two cases or less drops from 99 to 29 and secondly that the estimate for next year is that 69 of the 130 or so tribunals reporting will sentence more than five cases, whereas only 17 tribunals managed to do that in 1968. So nothing magical or stupendous has happened. We certainly have no reason for complacency. But we have, it seems, begun to make our move. If we move relatively slowly at first, you must remember that we are awaking after a long, long hibernation.

The same survey, by the way, which provided us with the data used in the above table, offers us further information, some of which should be alluded to here. Two points particularly come to mind.

The first is that of the 1414 reported sentences in first instance during the last year, only 100, exactly 100, or roughly 7% of them were appealed under the new discretional appeal rule. 2 Besides being a great boon to the parties, this was also welcomed by Archdioceses and other appeal courts who could now devote their energies more exclusively to their own first instance cases, and it was appreciated as well in all first instance courts, many of whom saved valuable time by omitting the typing of certain acts. Furthermore, according to at least one respondent to the survey, the new appeal rule actually improved the quality of work in first instance. He wrote, "In my estimation, this more than anything else, has contributed to making the Courts take their work seriously because the final responsibility is now theirs and it has encouraged them to enhance the quality of their work for the same reason."

The other information from the survey which seems to me to merit mention here is that about 30% of the responding Tribunals saw themselves as "greatly" improved during the last year and almost all of them as improved to some degree. So there has been considerable advancement in self-esteem and self-image and with it new zeal and confidence and desire to help people. One respondent referred to the norms as the "best morale builder in my twenty years in the Tribunal", and most Tribunal people would agree that morale building, the imparting of impetus and momentum to tribunals across the country, has been the most profound, if inestimable, benefit of the A.P.N. 3

The key to all of this, it seems to me, is that we came to sense that these norms somehow caught the spirit of what church law really ought to be. Not that they are perfect by any means. But they have a style and a spirit about them that is congenial to a church. They are the kind of thing that can make a contribution to church life and order.

PROCEDURAL LEGISLATION IN THE CODE

This unfortunately seems not to have been true of the procedural legislation in the Code of Canon Law. The section of the Code dealing with procedural law contains 642 canons and from the point of view of completeness and technical sophistication is worthy of profound admiration. It is surely a superb instrument within its own framework.

But the framework is the problem. It is the framework not of a court but of a puppet show in which the judge is the principal marionette. His every move, to right or left, is directed from on high. And if he thinks at all it is to the effect that before he makes a move, any move, he had better check and re-read the directions once again. The law permits little initiative, even less discretion, and no spontaneity. The entire atmosphere is one of insecurity and lack of confidence, imposed by a system which distrusts not only the people but the judges themselves.

The effect - paralysis - should have been predictable. We have already seen what happened in the United States: that fifty years after the Code, two-thirds of our tribunals were giving two decisions or less a year. The U. S. Tribunals for fifty years remained practically catatonic. The maze of legislation and the tone of it left them bewildered, confused, incredulous and staring out into space. And this obviously is only the most measurable, the most tangible effect. It only hints at the millions of people who were deprived of the sacraments and yet had recourse only to a paper tribunal. This is where the real damage was done. The judges may have felt manipulated, but the people were starved for and deprived of the Bread of Life.

A NEW SPIRIT

The new procedural norms, however, have ushered in a whole new spirit. It is true, of course, that Cardinal Villot's letter introducing the norms stated explicitly that, except in those instances where the norms specifically derogated from the universal law, all 642 canons remained in force. And it is not that Cardinal Villot's admonition has been disregarded. But at the same time we came to realize that the 23 norms were really sufficient as far as law goes, that not everything has to be legislated, that indeed in a community such as ours only the minimum should be legislated. It is not law alone that rules. But we should be ruled as well by suitable amounts of tradition, custom, common sense, professional advice, jurisprudence, etc. Twenty or thirty norms are ample procedural law for a church. If you seek further information by way of background, foreground or sideground, there are many other sources to which one may look. But the law itself must scrupulously avoid overextending itself. The important thing, after all, is that the procedural law of a community instill confidence in the members that, should the need arise to clarify their rights or their status, the community is prepared to offer an expeditious, impartial decision. When the law has done that much, it has done well. It should not try to do more.

At the very root of all of this, though, is the conviction that we are no ordinary society but we are a community. Unless this point is clearly and thoroughly understood, we shall never be able to devise suitable legislation for ourselves. How, after all, can we possibly order our activities without first knowing who we are? This, then, must be the groundwork of all ecclesial law-making: the understanding that we are a community. As Vatican II put it so beautifully:

As God did not create man for life in isolation, but for the formation of social unity, so also "it has pleased God to make men holy and save them not merely as individuals, without bond or link between them but by making them into a single people, a people which acknowledges Him in truth and serves Him in holiness." So from the beginning of salvation history He has chosen men not just as individuals but as members of a certain community. Revealing His mind to them, God called these chosen ones "His people" (Ex. 3, 7-12), and even made a covenant with them on Sinai.

This communitarian character is developed and consummated in the work of Jesus Christ. For the very Word made flesh willed to share in the human fellowship. He was present at the wedding of Cana, visited the house of Zacchaeus, ate with publicans and sinners. He revealed the love of the Father and the sublime vocation of man in terms of the most common of social realities and by making use of the speech and the imagery of plain everyday life. Willingly obeying the laws of His country, He sanctified those human ties, especially family ones, which are the source of social structures. He chose to lead the life proper to an artisan of His time and place.

In His preaching, He clearly taught the sons of God to treat one another as brothers. In His prayers He pleaded that all His disciples might be "one." Indeed as the Redeemer of all, He offered Himself for all even to point of death. "Greater love than this no one has, that one lay down his life for his friends" (John 15, 13). He commanded His Apostles to preach to all peoples the Gospel's message that the human race was to become the family of God, in which the fullness of the Law would be love.

As the firstborn of many brethren and by the giving of His Spirit, He founded after His death and resurrection a new brotherly community composed of all those who receive Him in faith and in love. This He did through His Body, which is the Church. There everyone, as members one of the other, would render mutual service according to the different gifts bestowed on each.

This solidarity must be constantly increased until that day on which it will be brought to perfection. Then, saved by grace, men will offer flawless glory to God as a family beloved of God and of Christ their Brother. 4

A community, let it be remembered, is no ordinary society. Indeed, community is distinct from and opposed to ordinary society. Community is _Gemeinschaft_. Society is _Gesellschaft_.

Community, _Gemeinschaft_ , is based on kinship or neighborhood or friendship, where the people are united by a common spirit, by common work and common beliefs. Community is organic. 5 _Gesellschaft_ , on the other hand, is an organized people, a people bound together not by a common spirit but by contract or volition or sheer determination. They have an order imposed on them.

As Toennies himself, the great sociologist of community, put it:

The theory of the _Gesellschaft_ deals with the artificial construction of an aggregate of human beings which superficially resembles the _Gemeinschaft_ insofar as the individuals live and dwell together peacefully. However, in _Gemeinschaft_ they remain essentially united in spite of all separating factors, whereas in _Gesellschaft_ they are essentially separated in spite of all uniting factors. 6

COMMUNITY AND LAW

Now each of these social structures has a representative law. In community, law is the natural rich fruit of the tree of justice. The law is trim and spare. It never weighs heavy or becomes a burden. It testifies to the spirit of trust that flourishes among the members. The law of a community is not so much something which the members need as it is the written epitome of the spirit of justice which resides in that community. And at any rate, the law is always made for the people and never the people for the law.

But in an artificial society, the law is something quite different. Because when the spirit of justice goes out from a community (because there is no community), then the law frantically attempts to legislate fairness by plugging up every imaginable loophole, and the law itself becomes so absurdly complex and top-heavy that it unwittingly contributes to the toppling over of the whole structure. And in the end it helps to destroy the very thing it set out to save or at least to salvage. Once again, Toennies bears quoting:

In this new, revolutionary, disintegrating, and leveling sense, general and natural law is entirely an order characteristic of _Gesellschaft_ , manifested in its purest form in commercial law. In its beginning it seems quite innocent, it means nothing but progress, refinement, improvement and facilitations; it stands for fairness, reason, and enlightenment. This form persisted even in the moral decay of the Empire. Both trends, the elaboration, universalizing, and finally systematizing and codification of the law, on the one hand, and, on the other hand, the decay of life and mores along with brilliant political successes, capable administration, and an efficient and liberal jurisprudence, have often been described. But only a few seem to have realized the necessary connection between, and the unity and interdependence of, these two trends. Even the learned writers are seldom able to free themselves from prejudices and to arrive at an unbiased, strictly objective view of the physiology and pathology of social life. They admire the Roman Empire and the Roman Law; they abhor the decay of the family and of the mores. But they are unable to discuss the causal relationship between the two phenomena. 7

Admittedly _Gesellschaft_ legislation is neat and produces a neat if mechanical society, at least until the revolution. But even beyond the example of Rome, history has surely demonstrated that our instincts are not always trustworthy in distinguishing genuine from pseudo neatness or order. In John Fowles' novel, _The Magus_ , the sadistic Nazi S.S. Colonel Wimmel says:

You will remember that like every other officer I have one supreme purpose in my life, the German historical purpose \- to do my duty, which is to bring order into the chaos of Europe. Nothing - nothing! - stands between me and that duty.

But the shrewd old Conchis comments:

I cannot tell you how, but I knew he was lying. One of the great fallacies of our time is that the Nazis rose to power because they imposed order on chaos. Precisely the opposite is true - they were successful because they imposed chaos on order. They tore up the commandments, they denied the superego, what you will. They said, you may persecute the minority, you may kill, you may torture, you may couple and breed without love. They offered humanity all its great temptations. Nothing is true, everything is permitted. 8

So, first of all, one should not be too hasty in labeling as genuine order everything that is square, obedient, polished and salutes on sight. Military uniformity is not necessarily genuine order. And beyond that, even genuine order is at best a rather subsidiary virtue which must often cede to higher values. An order imposed from on high, for example, may seem to be of great benefit to the people and the society as a whole; but if it destroys initiative on the local level and has, as its principal result, the promotion of passivity and dependence on the part of the citizenry, then whatever incidental benefits might seem to accrue are in fact only illusory or even, on balance, detrimental. Frantz Fanon's remarks in a somewhat different context are certainly applicable here:

If the building of a bridge does not enrich the awareness of those who work on it, then that bridge ought not to be built and the citizen can go on swimming across the river or going by boat. The bridge should not be "parachuted down" from above; it should not be imposed by a _deus ex machina_ upon the social scene; on the contrary it should come from the muscles and the brains of the citizens. Certainly, there may well be need of engineers and architects, sometimes completely foreign engineers and architects; but the local party leaders should be always present, so that the new techniques can make their way into the cerebral desert of the citizen, so that the bridge in whole and in part can be taken up and conceived, and the responsibility for it assumed by the citizen. In this way, and in this way only, everything is possible. 9

The point may be made, of course, that _Gemeinschaft_ legislation is utopian (in its Marxian, pejorative sense 10), that it is unrealistic and naive and totally unfunctional. But we must never forget that in a community the essential thing is not the bridge but the brotherhood. The engineers and architects may benevolently imagine that they are opening up lines of communication by means of the bridge, but brotherhood is never imposed from the top down. And bridges that are foisted on the people are at best useless and at worst counterproductive. This surely is what Toennies was talking about when he said, "In _Gemeinschaft_ they remain essentially united in spite of all separating factors, whereas in _Gesellschaft_ they are essentially separated in spite of all uniting factors."

CONCLUSION

And besides that, what is most clear in all of this is that it was the 642 canons (the _Gesellschaft_ legislation) that failed. If anything was ever unrealistic, naive and totally unfunctional, they were. Many people are willing to accept their share of responsibility for the failure of the American courts over so many years. But the responsibility belongs not only to people. It belongs as well to the law itself because pervading the whole was a radical distrust of human nature. Not an accusation of malice really, just a judgment of unreliability.

But once that judgment is made, then the principle of the engendering power of expectancy 11 takes over and inexorably produces even greater unreliability. No law is an island. We cannot go on legislating on the assumption that people are unreliable and then simply congratulate ourselves when we discover that we were right, without ever facing up to the viciousness of the circle, to the engendering power of law. Law is creative in more ways than one. Distrustful law creates distrustful people.

Law, as every jurist knows, is an ordering, an "ordinatio," 12 although, as we have seen, in a community it tends to be more an expressive than a constitutive ordering. But _Gemeinschaft_ can never be ordered by _Gesellschaft_ legislation. Because they belong to _different orders_ , _Gesellschaft_ legislation in a community is an act of treason, a radical infidelity to the nature of the community and a crime against the people. It tends to stifle community, to inhibit the spirit and to perpetuate the artificial society. It can come to no good. It may seem to impose an order on things. It may even seem necessary to some. But in the end it will destroy us. And the one essential thing - our community. _Gesellschaft_ legislation is fine for _Gesellschaft_. But it is lethal for _Gemeinschaft_. One man's meat is another man's poison. 13

Law will never unite, though it may divide, the people of God. We are united to one another by the love of the Father, the holiness of the Spirit and the brotherhood of the Son. We are united by our common faith and aspirations and by our trust in one another. Distrustful law is a cancer in our body which must be rejected. It is high time that we have introduced into our midst a law that tells the world who we are the people of God. People, to be sure. Nothing more or less. But at the same time a people set apart. A community of people.

Return to TOC

ENDNOTES

1. The figures for the "Second year of A.P.N." (July 1971-72) are arrived at on the basis of cases opened in the last year. It is projected, in other words, that since 14 dioceses did not open a case last year, they will not sentence a case next year; that since 26 dioceses opened 30 cases last year, the same number of dioceses will sentence 30 cases next year. Like all projections this set of figures is an estimate and therefore not entirely reliable.

2. Although 7% might already seem low to some, it was, in fact, largely because of two dioceses that the percentage is as high as it is. One of those dioceses appealed 14 out of 14 decisions, and the other appealed 22 out of 44. Had it not been for them, there would have been a total of only 64 appeals of 1356 sentences. Or something under 5%.

3. Other statistics which would probably be of interest only to Tribunal people are first, that of the 2488 cases opened in U. S. Courts during the first year of using the A.P.N., 1406 (56%) were opened with one judge and secondly, that in 67 of the 130 reporting dioceses (51%) the Advocate had a hand in preparing the questionnaire.

4. _Constitution on the Church in the Modern World_ , n. 32.

5. _Constitution on the Church_ , n. 11.

6. Ferdinand Toennies, _Gemeinschaft und Gesellschaft_ , 1887, translated as _Community and Society_ (New York: Harper Torchbook, 1963), 64.

7. Ibid., 202. John Gardner's discussion of the proliferation of rules and "the trend to intricate elaboration" as found in his book _Self Renewal: the Individual and the Innovative Society_ (New York: Harper and Row, 1963) also bears reading.

8. John Fowles, _The Magus_ (New York: The Dell Publishing Company), 389.

9. Franz Fanon, _The Wretched of the Earth_ (New York: Grove Press), 200.

10. In its pristine sense, on the other hand, utopia is precisely what we must be striving to build. Buber, for example, says "Eschatology means perfection of creation; utopia the unfolding of the possibilities, latent in mankind's communal life, of a right order." Martin Buber, _Paths in Utopia_ (Boston: Beacon Press, 1949), 8. This volume, incidentally, is a must listing in any bibliography on communitarianism. Buber's analysis of the social thought of Proudhon, Kropotkin and Landauer is particularly incisive. See also the chapter entitled "Fantasy and Utopia" in Harvey Cox's _Feast of Fools_ , (Cambridge, Harvard University Press, 1970). This chapter is introduced with the words of Lewis Mumford, "Utopia has long been a name for the unreal and the impossible. We have set utopia over against the world. As a matter of fact, it is our utopias that make the world tolerable to us: the cities and mansions that people dream of are those in which they finally live."

11. See Gordon W. Allport's chapter entitled, "The Role of Expectancy", in _Tensions That Cause Wars_ , edited by H. Cantril (Urbana: University of Illinois Press, 1950). This same phenomenon is what R. K. Merton calls the "self-fulfilling prophecy." See the _Antioch Review_ 8 (1948), 193-210.

12. St. Thomas, for example, defines _lex_ as an "ordinatio rationis ad bonum commune ab eo, qui curam communitatis habet, promulgata" ( _Summa Theol._ I, II, Q. 90, A. 4). And Joseph Graneris defines _ius_ as an "ordinatio coercibilis actionis humanae in materia iustitiae socialis" ( _Philosophia Iuris_ , I, 146).

13. Lucretius, _De Rerum Natura_ , IV, 637.

\+ + +

Article #2

**Remarks on Receiving the Role of Law Award, 1976**

CLSA Proceedings

An Ecumenical Approach

Remarks on Receiving the Role of Law Award

This is an award that I shall always cherish. May I express my profound thanks to all of you for it, and especially to the members of the Board of Governors.

I know, that in receiving this award, I have been singled out as, in some sense, representative of people in Tribunal work. It takes no special humility on my part to be able to say that there are undoubtedly many Tribunal people who are deserving of the award. I can think of at least a dozen off the top of my head. But the lot has fallen to me, and I accept it with thanks.

It is the privilege of the recipient each year to pass on to the assembly a thought or two, or maybe even three, on the subject of law. Being a man of few words and even fewer ideas, I have only one thought for this evening. And that one thought is an ecumenical one.

Ecumenical ideas, especially when they aim at consensus, can, of course, get completely out of hand. We've probably all heard the story about Jesus attending an ecumenical gathering. He said, "Men, I've got an idea." "Very interesting," said the Presbyterian, "but is it sophisticated?" The Baptist said, "ls it moral?" The Methodist said, "Is it non-alcoholic?" The Disciple of Christ said, "Is it scriptural?" The Lutheran said, "ls it evangelical?" The Quaker said, "ls it quiet?" The Catholic said, "ls it authoritative?" The Episcopalian said, "Is it archaic?" And Jesus said, "Cheeripes! Forget it!"

My idea is not so complicated, and doesn't really aim at consensus. It's very simple really. Perhaps too simple. Maybe that's why nobody has tried it. But the idea is this: that as the Catholic Church sets out to renew and reform its law, it should investigate thoroughly the various legal systems of other Christian Churches with a view to using one or other of them, rather than the 1918 Code, as a model or starting point.

When a major new edifice is planned, say a museum or a civic center or a cathedral, a first step is always to invite several architectural firms to submit their designs for consideration. These plans are then weighed, one over against the other, in open competition, in the hope that the best, or at least the most feasible, design will be selected.

I would suggest that the proper first step in our post Vatican II reconstruction of church law should have involved a similar process of selection. The 1918 Code should certainly have been _one_ of the models considered. Perhaps it should even have been the favored model because it was the incumbent, and "melior est conditio possidentis." But it was, I think, a calamity that it was the _only_ model considered, that no other bids were accepted.

It is, I think, generally agreed, and need not be demonstrated here, that every society tends to produce its own type or style of law. A dictatorship has a different kind of law from a democracy. It is not just that the individual laws in a dictatorship are different from those in a democracy. Rather the whole style of legislating is different. They are different legal systems. They belong to different worlds. So, when a dictatorship is overthrown, the legislative architects of the new society do not take the old code and tinker with it, or try to democratize it. They start afresh. Or they look to a model law more congenial to the new society, and use that as their point of departure.

It cannot be denied, I think, that in recent years, the Catholic Church has undergone a profound change in philosophy. Not as diametric, certainly, as a shift from dictatorship to democracy, but profound nonetheless, and involving a dramatic change in the self image of the Church. Were this not the case, I, for one, would gladly settle for a tinkering with the 1918 Code. But the facts, it seems to me, demand either that we start afresh, or perhaps better still, that we investigate other already existing models that are more congenial to our present ecclesiology.

My specific recommendation is that one or other of the Protestant models, might serve us well as a starting point. I spent a good part of last year examining the law of sanctions and the procedural law of the early American Presbyterians, a law that was ratified and adopted in this City of Philadelphia in 1788. It is entirely different from Books IV and V of our Code. It is much simpler and more direct and more trustful and, I think, more Christian. It is probably much more like what we American Catholics would spontaneously devise today, if only we could divest ourselves of our excessive attachment to and dependence on the 1918 Code.

Not everyone of course, would prefer the Presbyterian law to the 1918 Code as a point of departure for reform. But our final preference or final choice of model is not the point. And, anyway, the 1788 Presbyterian law is obviously only illustrative. The point is that, if we're really serious about rebuilding our law, then it behooves us to open up the competition, and, at the very least, to acquaint ourselves with other designs.

To this end, the Departments of Canon Law in our Universities would do well, I think, to offer a course in Comparative Ecclesiastical Law, in which the legal systems of all Christian Churches would be investigated and compared. The Canon Law Society could perhaps give consideration to arranging a symposium on the subject of Comparative Church Law. Perhaps some year, at one of these annual conventions, we could even invite in five or six Anglican or Protestant experts in Church government, and hear them out on how they would revise our law were they in our shoes.

At any rate, we have, for too long now, acted as though the Catholic Church alone has a canon law, that other Christian Churches have none. This is not true. It is true that the Reformed Churches tend to take more seriously than do we, scriptural admonitions like St. Paul's that:

If you really died with Christ to the principles of this world, why do you still let rules dictate to you, as though you were still living in the world? 'It is forbidden to pick up this, it is forbidden to taste that, it is forbidden to touch something else;' all these prohibitions are only concerned with things that perish by their very use – an example of human doctrines and regulations. (Colossians 2, 20-23)

It is true that the Reformed Churches pay more attention to such passages than do we. It is even true that, because of such passages, the Reformed Churches have, on occasion, explicitly disclaimed any legislative power. But the matter is, at least to some extent, semantic. The Protestants, despite their disclaimer, are certainly not lawless or without law. They do, in fact, pass what we call laws, and they do, in fact, have what we call canon law.

Protestant law does, of course, maintain a much lower profile than does ours. The Protestants, partly because of their attention to St. Paul, have, over the years, been exquisitely sensitive to over legislating. Which is undoubtedly one of the important lessons we can learn from them in the Art of Legislating.

This, a t any rate, is what I'm talking about - the Art of Legislating - nothing less. There is no doubt but that this Canon Law Society has, for many years, been actively receptive to the insights of Protestant scholars on a variety of subjects; but, inexplicably, what we have failed to do is to examine and to appreciate their law as such, and their style of legislating.

Our Brethren have much to teach us on the role of law in the Church. We have much to learn from them, and I would urge that we postpone no longer the learning process.

The Reverend Lawrence G. Wrenn

October 13, 1976

\+ + +

Return to TOC

Article #3

**Community and Law, 1979**

John Witherspoon and Church Law:

An Exploration Into Comparative Church Law

Rome, 1979, Pontificia Universita Lateranense (Dissertation)

Four Positive Qualities of Law

Community and Law (Chapter IX)

The idea of building community is now a conservative concept. Perhaps for Calvin, and even for Jonathan Dickinson, and for the American Presbyterians of 1788, it was a liberal, liberating notion, in that it freed the local community from what was seen as an oppressive, impersonal, centralized power. But the Enlightenment and the French Revolution carried the notion a step further. Perhaps, as some say, they carried the Reformation to its "logical" conclusion. 1 From _local_ autonomy they went on to individual autonomy. And suddenly the local community was the bad guy; now it was its turn to be seen as the oppressive centralized power and, as such, to be jettisoned. After the French Revolution, therefore, a vote for strong, local community was a vote for the old order, for the _ancien regime_. Building community would now be part of the conservative platform. Indeed, the very essence of classical conservatism would, thereafter, consist in the "distribution of political centers."

Not only is building community a conservative notion, but it is, according to some, a positively retrogressive, anachronistic, unrealistic, futile wish. Pure nostalgia. Not that there weren't obvious advantages to the old style communities, the old neighborhoods, for example, where people had names instead of numbers, where the family doctor had gone to school with grampa, and the neighborhood grocer was your best friend's uncle. But only the fittest survive, and the old neighborhoods just weren't fit enough. They couldn't stand the competition. Numbers turned out to be more efficient than names, and the supermarkets and the superdoctors, the specialists, fast rendered their predecessors obsolete. In short, whether we like it or not, the community has gone the way of all dinosaurs. If it has not already disappeared completely, it is racing towards extinction. Community was a yesterday thing. The future is in the secular city with its myriad opportunities and choices, and its anonymity that permits people to do what they want to do instead of what community pressure forces them to do.

Or so say the critics of community. And if they're right, then it might seem the sheerest folly for the Church to see itself as a _communitas communitatum_ , to build on community. It might seem to be building on sand.

From another perspective, however, the apparent demise of community might just be an opportunity for the Church, an opportunity to disengage itself from the secular power structure. There is no question but that one of the great historical weaknesses of the Church has been that it has mimed the authority style of the state, despite Christ's explicit warning to His apostles to the contrary:

But Jesus called them to him and said. 'You know that the rulers of the Gentiles lord it over them, and their great men exercise authority over them. It shall not be so among you; but whoever would be great among you must be your servant. and whoever would be first among you must be your slave; even as the Son of man came not to be served but to serve, and to give his life as a ransom for many.' 2

Perhaps now, if the secular city really does move further and further away from community, perhaps at last it will become patently and undeniably clear to the Church that this is one secular path the Church cannot follow. Perhaps now the Church will be virtually forced to go its own way. Perhaps it will dawn on us now that to continue our policy of aping Gentile lords must inevitably lead to an eventual abandonment of our "communityhood." Which is to self destruct.

Because the Church is essentially community. It is the people of God gathered around the altar, partaking of the same Bread and Cup, and so united with one another in Christ. The Church is, by nature, a fellowship. And apart from it we cannot be saved. We are not saved as individuals but as members of the community we call "ecclesia." _Extra ecclesiam nulla salus_.

As the _Pastoral Constitution On the Church in The Modern World_ (Gaudium et Spes, article 32) said so beautifully:

As God did not create man for life in isolation. but for the formation of social unity, so also 'it has pleased God to make men holy and save them not merely as individuals, without bond or link between them but by making them into a single people, a people which acknowledge Him in truth and serves Him in holiness.' (Lumen Gentium, article 9). So from the beginning of salvation history He has chosen men not just as individuals but as members of a certain community. Revealing His mind to them, God called these chosen ones 'His People' (Ex. 3:7-12), and, furthermore, made a covenant with them on Sinai.

This communitarian character is developed and consummated in the work of Jesus Christ. For the very Word made flesh willed to share in the human fellowship. He was present at the wedding of Cana, visited the house of Zacchaeus, ate with publicans and sinners. He revealed the love of the Father and the sublime vocation of man in terms of the most common of social realities and by making use of the speech and the imagery of plain everyday life. Willingly obeying the laws of his country, He sanctified those human ties, especially family ones, from which social relationships arise. He chose to lead the life proper to an artisan of his time and place.

In His preaching He clearly taught the sons of God to treat one another as brothers. In His prayers He pleaded that all His disciples might be 'one.' Indeed, as the Redeemer of all, He offered Himself for all, even to point of death. 'Greater love than this no one has, that one lay down his life for his friends.' (Jn. 15:13). He commanded His apostles to preach to all peoples the gospel message, so that the human race might become the Family of God, in which the fullness of the Law would be love.

As the first-born of many brethren and through the gift of His Spirit, He founded after his death and resurrection a new brotherly community composed of all those who receive Him in faith and in love. This He did through His Body, which is the Church. There everyone, as members one of the other, would render mutual service according to the different gifts bestowed on each.

This solidarity must be constantly increased until that day on which it will be brought to perfection. Then, saved by grace. men will offer flawless glory to God as a family beloved of God and of Christ their brother.

The Church, then, is a "brotherly community." This is the way Christ founded it. And this is what it must be today -- a brotherly community. Perhaps it is true that other communities are on the way out. Perhaps they will soon be passé. But if the Church were to follow the same route and abandon its communityhood, then _ipso facto_ it would abandon its selfhood. It would become untrue to itself and to its Lord. Because _ecclesia_ is _communio_.

By recognizing the dignity and autonomy of the local church, the Second Vatican Council imparted a lively impetus to the work that lies ahead, the work of building community. The work begins, according to Vatican II's _Decree on the Ministry and Life of Priests_ ( _Presbyterorum Ordinis_ , article 6), on the parish level:

The office of pastor is not confined to the care of the faithful as individuals, but is also properly extended to the formation of a genuine Christian community . . . . No Christian community, however, can be built up unless it has its basis and center in the celebration of the most Holy Eucharist. Here, therefore, all education in the spirit of community must originate....

In building the Christian community, priests,... as heralds of the gospel and shepherds of the Church,... must devote themselves to the spiritual growth of the Body of Christ

The "basis and center" of Christian community will, therefore, always be the Eucharist, and it alone. Yet the law also has a part to play. It too can contribute to the building up of community.

The law does this mostly by remaining pure community law, that is to say, _Gemeinschaft_ law, and by resisting the advances, however seductive and flattering, or however subtle, of _Gesellschaft_ law. 3 All law is, of course, an ordering, an _ordinatio_. 4 But _Gemeinschaft_ can not be ordered by _Gesellschaft_ law. Because they belong to different orders. And what is order in one area can be disorder in another. Planting, for example, is a very neat type of order, very mathematical, with the seeds all in a row and equidistant within each row. And planting is fine for corn. Wheat, on the other hand, must be sown, not planted. It must be scattered helter-skelter in order to grow properly. Scattering helter-skelter does, of course, appear to be disorderly. It seems to involve a lack of order. But, for wheat it is, in fact, the best, most productive kind of order. Occasionally one might be tempted to plant wheat, especially considering the possibility that an enemy might sow weeds in among the wheat, 5 but it is a temptation to be overcome. Because, ultimately, to impose planting order on wheat would only stifle the wheat. And so it is with the law. To impose the neat, tidy centralized _Gesellschaft_ type law on _Gemeinschaft_ is to subject the _Gemeinschaft_ to an alien, uncongenial law that stifles the community. It appears orderly but, in fact, is a disorder, and a disservice to the community. This is a temptation to be resisted. If we are to build community, we must have a law that allows community to flourish.

Such a law would have many positive qualities. Perhaps the most obvious of which is that it would be TRIM. Trim, because, unlike the law in _Gesellschaft_ , which must scurry around frantically trying to protect everybody's rights and thus keep the society intact, the law of community starts with a sense of brotherhood and fellowship and then simply tries to express in words the sense of justice that prevails in the community. It is not picayune or petty. It presumes a degree of trust among the brethren, and it expects that all of the members will honor it as normative and binding. Even take pride in it. And other "peoples . . .when they hear all these statutes will say, 'Surely, this great nation is a wise and understanding people. ' " 6

Trimness in law has always been regarded as a basic virtue. St. Augustine's rule of thumb was, "A law enacted for the governing of people is concerned with upholding whatever is enough to maintain peace among enlightened men, so far as this is possible by man made laws." 7 Thomas Aquinas made it clear that law should be framed in a general way and should neither descend to particular cases nor attempt to repress all vices. 8 Montesquieu said, "religion, made to influence the heart, should give many counsels, and few precepts ...When, for instance, it gives rules, not for what is good, but for what is better; not to direct to what is right, but to what is perfect, it is expedient that these should be counsels, and not laws," because, said Montesquieu, if the legislator makes an excessive number of laws, he only wearies both himself and society. 9 And Thomas More said that in the ideal society he called "Utopia":

they have few laws, and such are their institutions that they need few. They strongly censure other nations, which cannot get along without an infinite number of laws and interpretations. They think it highly unjust to bind men by laws that are too numerous to be read and too obscure to be readily understood . . .But in Utopia everyone is skillful in the law. For the laws are very few, as I have said, and the plainest interpretation is the fairest. All laws, according to their view, are promulgated for the single purpose of teaching each man his duty. Subtle interpretations teach very few. for there are few who can understand them; the simpler and more obvious sense of the laws is clear to all. If laws are not clear, they are useless for the masses of people who need their guidance most. There might as well be no laws at all as to have laws which only men of great ability and long training can interpret. 10

When it comes to trimness, the procedural law of The 1788 Constitution of the American Presbyterians is a paragon. Prior to 1788 the American Presbyterians had been using a modified version of the Scottish Form of Process as found in _Pardovon_ , a document that contained nine chapters, and was twenty pages long. Which would seem trim enough. The Witherspoon committee, however, trimmed it still further, and the final draft was only eight pages long and contained only two chapters, the first on the general principles of procedural law and the second on the process against a minister. The Scottish Form of Process had contained no numbered canons. The American Presbyterians numbered their rules and enacted 17 for the first chapter and 14 for the second, for a total of 31canons on procedural law. The 1788 Form of Process, therefore, comprised two chapters, eight pages and 31 canons. Which would seem to be a model of brevity.

Certainly very different from the procedural law of the Roman Catholic Church, as found in Book IV of the Code of Canon Law, which includes 57 chapters, 152 pages and 643 canons. Indeed. on the basis of sheer volume, the Catholic procedural law, to pursue the example under discussion, looks suspiciously like _Gesellschaft_ legislation. And, in revising this law, the very first question we should ask ourselves is whether this is really the kind of law that encourages local autonomy and the building up of strong brotherly communities around the world, united to one another in Christ and in His Spirit. In my judgement, our present procedural law does the very opposite. It tends to stifle and repress the local community. It assumes the local community incapable of handling its own problems without 643 directions from on high. Instead of saying with St. Paul, "Can it be that there is no man among you wise enough to decide between members of the brotherhood ...?, 11 our present procedural law seems to say, "Presumably left to yourselves, there is no one among you wise enough to settle equitably your own disputes, but, perhaps, if you follow these 643 rules to the letter, perhaps then you will be able to come up with a just solution."

Maybe St. Paul was naive in thinking that there would always be enough wise men in every Christian community to settle, according to their own procedures, whatever disputes might arise. But more likely Paul was shrewd enough to realize that, when a community is not permitted to administer justice by itself and in its own way, then it ceases to be a community; and the community is the essential thing, because the community is the Church. Certainly there are advantages to having every judge the world over conduct his hearings in exactly the same way. It's very neat. But at what price neatness? If we must sacrifice or even weaken the local communities for the sake of universal neatness, then we are literally selling our soul. If nothing else, this is planting when we should be sowing. It is stifling community when we should be allowing it to flourish.

We would be far better off, it seems to me, with a good, trim procedural law that provides the local courts with some helpful general directions but, at the same time, respects their autonomy and their right and ability to administer justice in their own fashion. Perhaps something along the lines of the Presbyterian 1788 Form of Process would serve our needs. At the very least, it should merit our attention as an alternative style of legislating, as another model for our consideration, as the kind of law actually developed by another Christian Church which has traditionally attached greater importance than have we to the maintenance of strong local communities. If it served no other purpose, it might at least encourage us to rethink what it means to have a law that is really trim. 12

Another positive quality of community law is that it is SACRED. As there have always been atheists. so there have always been antinomians. And as some people have been scandalized into atheism by the hypocrisy of so-called believers, so many a person has been driven into antinomianism or even anarchy by stinking piles of legalisms that have masqueraded as law. Yet the law itself has always enjoyed a certain sacredness.

In a very general way law, as an _ordinatio_ , an ordering, has, however faintly, reflected God's ordering of the universe. As once the Spirit of God moved over the waters and changed chaos into cosmos, so the spirit of the law has held at bay and pushed back the ever present chaos, that land of strident ugliness that has always terrified man; the spirit of the law has given man a world of his own where everything has a name, a place he can recognize and in which he can feel safe, a cosmos of his own, an ordered enclave where his soul can relax and find peace, and not be swallowed up by the dark threatening waters of the unknown. So in this general sense, because its essential mission is godlike, the law has enjoyed a degree of sacredness.

And in a much more specific way, the traceable origins of law are not secular at all but quite explicitly religious. Historically, the earliest laws seem to have won acceptance not because they were just but because they were dictated by the religion of the people. Ancient peoples, as we know, regarded the deceased members of their family as sacred and deserving of worship. The dead were buried in the family tomb which was located, usually, near the front door of the home. The soul of the deceased, it was thought, remained in the tomb and indeed remained happy as long as the survivors brought food for his nourishment; but, if neglected, the deceased immediately left the tomb and became a wandering shade or even a malignant spirit. Every pious family, though, faithfully brought the funeral repast to its ancestors and worshipped them. So religion, in those ancient days, was entirely domestic. The gods of one family, namely their ancestors, were obviously not the gods of another family. Each family had its own gods.

One of the essential elements of that domestic religion was the sacred hearth fire, the fire that burned day and night on every family altar. The sacred fire represented for the ancients their ancestors and so it eventually came to be worshipped itself as a benevolent and provident family god. In both Greece and Rome, the sacred fire was always kept in the enclosed area of the house, never outside or even near the door, because the family worship was always private and secret. Every family developed its own creed and ceremony. No outside power had the right to regulate or modify in any way the family ritual. If, indeed. a family ceremony was, by chance, witnessed by a stranger. the ceremony was considered to be defiled because the sacred fire was a domestic fire, there to protect the members of that family and that family alone, and to repulse strangers.

In those ancient days, therefore, ancestor worship and the sacred fire made each family an independent entity. Indeed it was the sacred fire that made the family a family. The ancient Greek word for family. as a matter of fact, was _epistios_ , 13 which meant literally "those gathered by the sacred hearth."

The whole family structure, therefore, and all of the most important laws relating to the family, had their origins in the sacred. Marriage was, in effect, the abandonment by the bride of the worship of her own household gods and the acceptance of those of her husband. After which she was no longer regarded as descended from her blood family, but belonged entirely to the family whose ancestors she now worshipped. The awesome _patria potestas_ , the power of life and death which the father had over all other members of the family, was accorded him because he was the priest of the fire. The right of property was recognized among the Greeks and Romans and others who worshipped domestic gods because the gods had taken possession of the soil and thereby acquired it perpetually for their descendants. The right of succession and indivisible patrimony obtained because, on the death of the father, it became the duty of the eldest son to care for the sacred fire and he therefore inherited all the rights and obligations of the domestic high priest. Ancient private law, therefore, was essentially and radically sacred.

Eventually religion moved out of the home and into the city. Cities adopted deities for themselves; but when they did the cities became, as it were, urban families. Thereafter, a citizen was, by definition, a person who worshipped the gods of the city just, as before, the members of the family were those who had gathered around the hearth. The rights of citizenship, therefore, flowed in a sense directly from the altar. Strangers, that is to say, nonworshippers, did not enjoy those rights. We know that the Sumerians, before the time of Hammurabi, had developed a law based on the idea of a hierarchy under a city god. And the ancients in general regarded law not as something written by men but as handed down by the gods. Homer, for example, had old Nestor say to King Agammemnon, "Jove has vouchsafed you to wield the sceptre and to uphold righteousness, that you may take thought for your people under you." 14 And Plato began his _Laws_ with this exchange:

Athenian Stranger: Tell me, strangers, is a God or some man supposed to be the author of your laws?

Cleinias: A God, stranger; in very truth, a God: among us Cretans he is said to have been Zeus, but in Lacedaemon, whence our friend here comes, I believe they would say that Apollo is their lawgiver. 15

As time passed the law became less explicitly religious. Christ, who came in order to fulfill the law (Matthew 5:17), preached that the one true God did not belong exclusively to the family or to the city but to all men, and that the stranger should not therefore be regarded as an enemy, 16 but should rather be embraced. "For by one Spirit we were all baptized into one body -- Jews or Greeks, slaves or free." 17 Christianity set law free from the narrow dictates of elitist religions and permitted the law to develop instead according to the profound demands of justice. The father of the family would no longer retain the absolute power of life and death over his subjects, a power that he had derived from his family priesthood, but he would now enjoy only those parental powers that would benefit the children. The wife would begin to obtain equality with her husband. The source of the right to property would no longer be fear of disturbing the gods but rather labor, purchase, heredity, and other claims based on human justice. 18

Yet law remained sacred because the highest demands of justice are sacred. And there has always been a lively interaction between law and religion. The Christian emperors strove always to make Roman law more humane. 19 The Roman Pontiffs, right down to the great social encyclicals of our own time, have pleaded with the powerful to recognize the far reaching implications of justice to the poor. The law, for its part, has retained large amounts of ritual, with robes, wigs, bibles, and traditional language; and it begs not only that its decisions be accepted but that its principles be believed. For, somehow, when we do not believe in justice, it does not come to pass.

At its best, therefore, law is still sacred. And law is at its best in a community. Perhaps at its very best in an enlightened, religious community. The Presbyterians have always incorporated their law, that is to say, their Form of Government and Discipline, into a kind of holy book which contains as well their Confession of Faith, Catechisms, and Directory for the Worship of God. Which strikes me as a commendable way of symbolizing the sacredness of law and of keeping their law in close communication with the great principles of religion. An approach, surely, that should not be overlooked in the reform of Roman Catholic church law.

But beyond that, and more important, the law itself must avoid straying too far from the basic principles of justice. For, although basic justice is itself sacred, its extremely remote applications are not. One can easily agree, for example, that there is something sacred about the right of the accused to an impartial hearing, but there is no apparent sacredness to the law that declares a decision null simply because the date and place are omitted from it or because it is unsigned by the notary. 20 The specificity of a law, in other words, must remain moderate if the law itself is to be seen as sacred.

In a genuine community this is not a major problem because the legislator in community wishes only to express the spirit of justice and mercy and trust that prevails among the brethren and to make some primary applications of that spirit for the good order and government of the people. For, after all, the whole "object of laws . . .is to make those who use them happy." 21 The legislator feels no compulsion to spell out every last detail of how legal affairs are to be conducted. He trusts that the people will devise their own methods in particular matters; and, although those methods might differ from locale to locale, presumably they will all reflect the basic sense of justice in the community.

In the artificial society, however, where a sense of unity among the people and a sense of justice are lacking to begin with, then the legislator does feel compelled at least to prevent, as best he can, _disunity_ and _injustice_. He begins, therefore, not by trusting the people but by trying to outwit them. He becomes an expert in the fine art of subtle legal phrasing. He anticipates every possible eventuality. He plugs up every loophole. He carefully defines precise rights and duties in the hope of keeping friction to a minimum. And finally, sensing how really unsacred the whole mishmash really is, he tries to make it all appear respectable by superimposing, as a fake facade, the trappings of justice.

But this is precisely what the pharisees appear to have done. About whom Jesus said:

They bind heavy burdens, hard to bear, and lay them on men's shoulders; but they themselves will not move them with their fingers. They do all their deeds to be seen by men; for they make their phylacteries broad and their fringes long, and they love the place of honour at feasts and the best seats in the synagogues and salutations in the market places and being called rabbi by men . . . Woe to you, scribes and Pharisees, hypocrites! for you tithe mint and dill and cummin, and have neglected the weightier matters of the law, justice and mercy and faith. 22

Clearly, justice, mercy and faith 23 are the important things. Where these are lacking or deficient in a people, the people must, they must, somehow recover them. But meanwhile the law does no service to that society, and only demeans itself when it stoops to its level, when it takes the people "where they're at," when it adopts an ultra pragmatic attitude, when it settles for maintaining the status quo, for keeping people busy and in their place. When there is little justice in a society the temptation is to fill the vacuum with highly specific, orderly procedures so that the lack of real justice will go unnoticed. But this is to admit defeat. The challenge is for the law to inspire men to reach out for more justice, to extend themselves, to achieve their potential, to build more community, to climb at least to the next plateau. The law must lead. It must beckon us to something higher. It must call us to the transcendent. Ever since the coming of Christ, this is the only legitimate claim the law has to being sacred. Clearly its best opportunity to discharge this function is in a community setting.

Which brings us to the third quality of community law, namely, that it is DISTRIBUTIVE, that is to say, respectful and protective of the abilities of subordinate communities.

The American Presbyterians, as we have seen, struggled throughout most of the eighteenth century to establish and consolidate the right of the local community, particularly the presbytery, to self government. By 1788, they had not only developed a neatly graduated governmental structure within America, but they also elected, as the Presbyterian Church in the United States, to draw up their own American constitution, and thus to declare their independence from the Churches in England, Ireland and Scotland. This constituted neither schism, rebellion, revolt nor even disrespect to the mother churches. It was simply a declaration that the Church in America had achieved a suitable degree of maturity, and that conditions warranted their developing their own law.

It was, of course, an age of independence. America, as a nation, had declared its independence from Great Britain in 1776, and continued to struggle for that independence until 1783. The following year, the Methodist Church in America declared its independence from John Wesley's British based church. 24 In 1785 the Episcopal Church in the United States passed a constitution declaring itself "independent of all foreign authority." 25 In 1784, the Roman Catholic Church in America, which had previously been accountable to the Vicar Apostolic of London, was placed under the supervision of the Reverend John Carroll, a native American. The next year Carroll wrote to Rome saying that "no Vicar Apostolic dependent on the pleasure of the Sacred Congregation (should) ever be appointed for Republican America," and, although Rome took no immediate action on that request, it did, in 1789, name Carroll himself as the first Catholic bishop in America. Two years later, in 1791, Bishop Carroll convoked a synod at which were passed the first laws specifically designed for the government of the Catholic Church in America. 26 In 1788, the Dutch Reformed Church began a complete overhaul of its form of government in order to fit American conditions, a work that was not completed until 1793. 27 And that same year the German Reformed Church declared itself to be an independent body thereafter to be known as the Reformed German Church in the United States. 28

The Presbyterian Constitution of 1788 was, therefore, part of a much larger picture, the most obvious feature of which was that none of the Churches declaring their independence was in any way or to any degree, abandoning its religious heritage. The Presbyterians, in other words, were not becoming any less Presbyterian. They were simply harmonizing traditional Presbyterian principles with New World conditions.

The clearest specific example of this is the difference between the Westminster rendition and the American rendition of Chapter XXIII, III of the Confession of Faith. Westminster had said:

The civil magistrate may not assume to himself the administration of the word and sacraments, or the power of the keys of the kingdom of heaven; yet he hath authority, and it is his duty, to take order, that unity and peace be preserved in the church, that the Truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administered and observed. For the better effecting whereof, he hath power to call synods, to be present at them, and to provide that whatsoever is transacted in them be according to the mind of God.

The Americans revised this to read:

Civil magistrates may not assume to themselves the administration of the word and sacraments; or the power of the keys of the kingdom of heaven; or, in the least, interfere in matters of faith. Yet as nursing fathers, it is the duty of civil magistrates to protect the church of our common Lord, without giving the preference to any denomination of Christians above the rest, in such a manner, that all ecclesiastical persons whatever shall enjoy the full, free and unquestioned liberty of discharging every part of their sacred functions, without violence or danger. And, as Jesus Christ has appointed a regular government and discipline in his church, no law of any commonwealth should interfere with, let, or hinder the due exercise thereof, among the voluntary members of any denomination of Christians, according to their own profession and belief. It is the duty of civil magistrates to protect the person and good name of all their people, in such an effectual manner as that no person be suffered, either upon pretence of religion or infidelity, to offer any indignity, violence, abuse or injury to any other person whatsoever; and to take order that all religious and ecclesiastical assemblies be held without molestation or disturbance.

More generally, the establishment of a Presbyterian General Assembly in the United States, and the adoption of an American Presbyterian constitution said basically this, that the Presbyterian Church in America stood for maximum feasible autonomy both for the Church in America as a whole and for all of the individual churches at every level. The local church session, in other words, would be recognized as "competent to the spiritual government of the congregation" except insofar as it would be limited either by the gospel or by the legitimate authority of the next highest body, the Presbytery. The Presbytery, in turn, would be free to determine its own internal policies without interference from the Synod. And so on.

This, of course, is simply good management, good law. It is a practical application of what we have come to call, since the time of Pope Pius XI, the "principle of subsidiarity." In paragraphs 78 through 80 of his 1931 encyclical. _On Reconstructing The Social Order_ ( _Quadragesimo Anno_ ). Pius XI was, in fact, speaking about the civil order but the principles surely apply equally well to the ecclesiastical order, to church government. The Pope introduced his discussion of subsidiarity with some observations on the French Revolution:

Following upon the overthrow and near extinction of that rich social life which was once highly developed through associations of various kinds, there remain virtually only individuals and the State. This is to the great harm of the State itself; for, with a structure of self governance lost, and with the taking over of all the burdens to which the wrecked associations once bore, the State has become overwhelmed and crushed by almost infinite tasks and duties.

As history abundantly proves, it is true that on account of changed conditions many things which were done by small associations in former times cannot be done now save by large associations. Still, that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy. Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry, and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature, to furnish help to the members of the body social and never destroy and absorb them.

The supreme authority of the State ought, therefore, to let subordinate groups handle matters and concerns of lesser importance which would otherwise dissipate its efforts greatly. Thereby the State will more freely, powerfully, and effectively do all those things which belong to it alone because it alone can do them; directing, watching, urging, restraining, as occasion requires and necessity demands. Therefore, those in command should be sure that the more perfectly a graduated order is preserved among the various associations, in observance of the principle of 'subsidiary function,' the stronger social authority and effectiveness will be, and the happier and more prosperous the condition of the State.

If the Catholic Church had, years ago, incorporated this principle into its own governmental system, half as well as did the American Presbyterians of 1788, we would today have stronger parishes, much stronger deaneries, more effective bishops and a "happier and more prosperous . . .supreme authority." Although, in recent years, our legal thinking has become more distributive and there has been a modest reapportionment of powers in favor of subordinate communities, it may well be that the Catholic Church is still not thinking small enough and that canon law, instead of helping to build up the church will, in fact, find no room in the inn for the very structure that may be our salvation, namely the "basic community." Karl Rahner, at least, is of the opinion that:

Christianity today and particularly tomorrow can no longer be passed on simply by the power of a homogenous Christian society (examples of which are increasingly scarce), by administration from the top, by religious instruction as part of the compulsory education received by every child, but must be carried into the future through the life and witness of a genuine Christian community living out what Christianity really means. Such basic communities in the future will no longer be able simply to cover territorially and socially the whole of a populated area; but if they are both very intensively active and at the same time outward-looking, they will be able to be the bearers of the real missionary power of the Church for the future. 29

In Rahner's judgement, where such basic communities exist, they have a right to be recognized as Church by the episcopal great Church and to have their community leaders, providing they are capable of fulfilling the necessary functions, recognized by the great Church through ordination.30 The episcopal great Church, furthermore, has, according to Rahner, the task and duty of stimulating and contributing to the formation of such basic communities, for without them, he says, "the institutional Church will shrivel up into a Church without people." 31

Assuming that Rahner's prediction enjoys some validity, and that the basic community will, at least to some extent, be the hope of the future, the important question, it seems to me, is whether the Church and the Church's law are big enough to think that small.

Finally, a few observations on a fourth quality of genuine community law, namely, that it is PERSONAL. In order for law to be personal, it must do two things: it must protect the freedom of the individual person, and it must also properly estimate and utilize the abilities of the persons who make up the community.

The personal freedom of the Christian before the law has, of course, been recognized from the earliest times. St. Peter, at the Council of Jerusalem, said, "Why do you make trial of God by putting a yoke upon the neck of the disciples which neither our fathers nor we have been able to bear? But we believe that we shall be saved through the grace of the Lord Jesus, just as they will." 32 St. Paul said, "You were bought with a price; do not become slaves of men," 33 and again, "For freedom Christ has set us free; stand fast, therefore, and do not submit again to a yoke of slavery." 34 And still again:

If with Christ you died to the elemental spirits of the universe, why do you live as if you still belonged to the world? Why do you submit to regulations, 'Do not handle, Do not taste, Do not touch' (referring to things which all perish as they are used), according to human precepts and doctrines? These have indeed an appearance of wisdom in promoting rigour of devotion and self abasement and severity to the body, but they are of no value in checking the indulgence of the flesh. 35

The theme common to all of these passages is that personal freedom is precious and that the law should be extremely loathe to violate, or in any way restrict, that freedom. The Presbyterians, who have always given considerable emphasis to such passages, have formulated them into the slogan "God alone is the Lord of conscience." Which as slogans go, has an impressive ring of truth about it, but at the same time, is preposterously vague. An outsider is inclined to say, "Of course, God alone is the Lord. Naturally He is the Lord of conscience. But what has that to do with the law?" The Presbyterians, however, have always attached a quite specific meaning to their axiom. To them it says that the Church has no power whatsoever to legislate. And, although their synods are forever passing acts which we would call laws, the Presbyterians are always careful to note that such acts do not bind in conscience the man who sincerely dissents from them, and they should not therefore be referred to as laws.

The Catholic, meanwhile, with a somewhat broader understanding of the word ''law," understands those same scripture passages not as denying to the Church the power to legislate but as reminding the Church that the law is made for man, and not man for the law. The Catholic understanding, in other words, is that the intent and effect of every law must be to explicitate justice in a given situation and thereby benefit man; the object of law must never be simply to keep everybody in line, either because the legislator is compulsively meticulous or because he thinks we make a better impression that way. It is no secret that the Church has, in its long history, sometimes failed to honor the freedom of the individual person, 36 but as Vatican II said:

There is a growing awareness of the exalted dignity proper to the human person, since he stands above all things, and his rights and duties are universal and inviolable. Therefore there must be made available to all men everything necessary for leading a life truly human. Such as...the right...to activity in accord with the proper norm of one's conscience...and to rightful freedom in matters religious too.

Hence, the social order and its development must unceasingly work to the benefit of the human person if the disposition of affairs is to be subordinate to the personal realm and not contrariwise, as the Lord indicated when He said that the Sabbath was made for man, and not man for the Sabbath (Mark 2:27). 37

Illustrations of this principle, namely that the law must be scrupulously respectful of personal freedom, flood the mind. What of a law, for example, that might deprive a Catholic living in an invalid marriage from receiving the Eucharist? Or what of a law that does not permit a priest to marry? Or that requires the people to accept the pastor or bishop assigned to them?

Obviously, personal freedom is, by no means, the only issue involved in such questions. At any rate this is certainly not the place for a full scale discussion of such complex issues. But perhaps at least this much can be said, first that, in establishing policy in such matters, Catholic law has traditionally given insufficient attention to personal freedom: and secondly that the only adequate way to correct this deficiency is to "communitize" the law, that is to say, establish strong local communities and then let the law float up from them, rather than be imposed from the top down. Communities are much better than bureaucracies in appreciating and respecting the God given freedom of the individual person.

The other way in which law qualifies as personal is by properly estimating and utilizing the abilities of the people.

In recent centuries, Catholic law has taken no prizes in this category. The 1917 Code of Canon Law, for example, contained only two general canons regarding lay people, and those two canons were the classic squelch. They could only be written in jest today. It is difficult to believe that they were in fact written as recently as 1917. The first canon said, in effect, that lay people had the right to receive the sacraments and other spiritual benefits from the clergy, and the second canon said that generally lay people did not have the right to wear clerical robes. 38 Today, of course. the situation is much improved. Pope John XXIII had pointed up the need, in all types of social organizations, for revitalizing "intermediary bodies" which should "present the form and substance of a true community." "This they will do," he added, "only if individual members are considered and treated as persons, and are encouraged to participate in the affairs of the group." 39 The same Pope also said, "The dignity of the human person involves the right to take an active part in public affairs and to contribute one's part to the common good of the citizens." 40 Such admonitions have, in recent years, been taken to heart in the Church, so that lay people today have become a vital force, active in diocesan and parish councils, and themselves dispensing spiritual benefits in a variety of ways.

The Presbyterians, of course, are still way out ahead. The active involvement of their elders at every level of church government, even at the level of the General Assembly, has long been a Presbyterian trademark; and there is no question but that their style of representative government was extremely influential in shaping the governmental system of the United States. 41

But the Catholic Church is making rapid strides in reactivating the lay person, and virtually every day it is closing the gap a bit. We have come to realize that a Church "which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes -- will find that with small men no great thing can really be accomplished." 42 And we have also come to realize that the great thing we have always wanted to accomplish is the little community.

Return to TOC

ENDNOTES

1. With friends who carry out one's best plans to their "logical" conclusion, who needs enemies?

2. Matthew 20:25-28 and Mark 10:42-45.

3. Toennies devotes a substantial part of _Community and Society_ to a discussion of law in _Gemeinschaft_ and law in _Gesellschaft_.

4. Lex is defined as an " _ordinatio rationis ad bonum commune ab eo, qui curam communitatis habet, promulgata_ " (St. Thomas, _Summa Theologica_ , I, II, Q. 90, A. 4), Ius is defined as an " _ordinatio coercibilis actionis humanae in materia iustitiae socialis_ " (Graneris, Joseph, _Philosophia Iuris_ , I, _De Notione Iuris_ , Torino, Societa Editrice Internationale, 1943, p. 146).

5. Matthew 13:24-30. See also Matthew 3:11.

6. Deuteronomy 4:6.

7. _De Libero Arbitrio_ (The Free Choice of the Will) I, 5.

8. _Summa Theologica_ , I, II, Q. 96, A. 1 and 2.

9. Montesquieu, Charles de, _The Spirit of Laws_ , Chicago, William Benton and Encyclopedia Britannica, 1952, p. 202, XXIV, 7. See also VI, 1; XXIV, 26; and XXIX, 1.

10. More, Thomas, _Utopia_ , New York, Appleton, Century, Crofts, 1949, pp. 60-61.

11. 1 Corinthians 6:5.

12. For a copy of the 1788 Form of Process, see Appendix XV in the original Thesis.

13. The more modern Greek word is _ephestios_. The word "estia" means the "hearth"" and the "shrine of the household gods" and also the "home" itself. The proper name "Estia" is the goddess Vesta.

14. Homer, _The Iliad_ , Chicago, William Benton and Encyclopedia Britannica, 1952, IX, 99, p. 58.

15. Plato, _Laws_ , Chicago, William Benton and Encyclopedia Britannica, 1952, I, 624, p. 640.

16. The Latin word _hostis_ meant both "stranger" and "enemy."

17. 1 Corinthians 12:13.

18. Fustel de Coulanges, Numa Denis, _The Ancient City_ , Garden City. Doubleday and Co., 1955, pp. 395-396 and passim.

19. Berman, Harold I., _The Interaction of Law and Religion_ , New York, Abingdon Press, 1974. p. 53.

20. _Codex Iuris Canonici_ , Romae, Typis Polyglottis Vaticanis, 1917, Canon 1984, 3° and 4°; and Canon 1874 §5.

21. Plato, op. cit., I, 631, p. 643.

22. Matthew 23:4-7 and 23.

23. The Greek word _pistis_ here translated as "faith", also means "trust" or "confidence."

24. Humphrey, Edward Frank, _Nationalism and Religion in America_ , New York, Russell and Russell, 1965, pp. 167-193.

25. Ibid., pp. 194-233.

26. Ibid., pp. 234-259.

27. Ibid., pp. 283-305.

28. Ibid., pp. 305-310.

29. Rahner. Karl. _The Shape of the Church To Come_ , New York, The Seabury Press, 1974, p. 117.

30. Ibid., p. 109.

31. Ibid., p. 114.

32. Acts 15:10-11.

33. 1 Corinthians 7:23.

34. Galatians 5:1.

35. Colossians 2:20-23.

36. The Second Vatican Council's _Declaration on Religious Freedom_ ( _Dignitatis Humanae Personae_ , article 12) commented, relative to religious freedom, "In the life of the People of God as it has made its pilgrim way through the vicissitudes of human history, there have at times appeared ways of acting which were less in accord with the spirit of the gospel and even opposed to it."

37. _Gaudium et Spes_ , article 26.

38. Canons 682 and 683.

39. Pope John XXIII, The encyclical letter _Christianity and Social Progress_ ( _Mater et Magistra_ ), Washington, NCWC, 1961, paragraph 65.

40. Pope John XXIII. The encyclical letter _Peace on Earth_ ( _Pacem in Terris_ ), Washington, NCWC, 1963, paragraph 26.

41. Funk, Henry D., "The Influence of the Presbyterian Church in Early American History", in the _Journal of the Presbyterian Historical Society_ , Vol. XII (1924-1927), pp. 26-63, 152-189, 193-224, 281-316. See especially pp. 60-63.

42. Mill, John Stuart, _On Liberty_ , Chicago, Henry Regnery Company, 1955, Chapter V, p. 171.

\+ + +

Article #4

**Introduction to Procedures, 1985**

_CLSA Commentary_ , pp. 945-949

Brief History – Procedures in General

Introduction to Procedures

1. Ecclesiastical Judgments before Constantine

The Church, it may be said, is one, holy, catholic, apostolic, and adjudicative. Courts and trials have been part of our community life from the very beginning.

According to Matthew, the Evangelist, it was Jesus himself who drafted the first procedural canon of the Church's law:

If your brother should commit some wrong against you, go and point out his fault, but keep it between the two of you. If he listens to you, you have won your brother over. If he does not listen, summon another, so that every case may stand on the word of two or three witnesses. If he ignores them, refer it to the church. If he ignores even the church, then treat him as you would a Gentile or a tax collector. I assure you, whatever you declare bound on earth shall be held bound in heaven, and whatever you declare loosed on earth shall be held loosed in heaven. 1

St. Paul obviously approved of the notion of having every case "stand on the word of two or three witnesses" because he twice reiterated that advice, once in his Second Letter to the Corinthians 2 and again in his First Letter to Timothy. 3

Paul regretted that there should ever be litigations among the followers of Jesus, but he nevertheless accepted them as necessary and inevitable in a sinful Church. In his First Letter to the Corinthians, Paul urged that the incestuous man among them be driven from the community:

What business is it of mine to judge outsiders? Is it not those inside the community you must judge? God will judge the others. "Expel the wicked man from your midst." 4

In the next (sixth) chapter of that letter, Paul, amplifying the notion of Christians judging insiders, suggests, in effect, that the Church establish a kind of court system of its own in order to settle its problems internally:

How can anyone with a case against another dare bring it for judgment to the wicked and not to God's holy people? Do you not know that the believers will judge the world? If the judgment of the world is to be yours, are you to be thought unworthy of judging in minor matters? Do you not know that we are to judge angels? Surely, then, we are up to deciding everyday affairs. If you have such matters to decide, do you accept as judges those who have no standing in the church? I say this in an attempt to shame you. Can it be that there is no one among you wise enough to settle a case between one member of the church and another? Must brother drag brother into court, and before unbelievers at that? 5

By the year 197, when Tertullian wrote his _Apology_ in an effort to convince the provincial governors of the Roman Empire that Christians were good, decent people, undeserving of the persecutions directed against them, he cited as one example of the uprightness of Christians their laudable court system. In the beautiful thirty-ninth chapter of the _Apology_ , Tertullian reminded the Roman rulers that

family possessions, which generally destroy brotherhood among you, create fraternal bonds among us. One in mind and soul, we do not hesitate to share our earthly goods with one another. All things are common among us but our wives.... But it is mainly the deeds of a love so noble that lead many to put a brand upon us. 'See,' they say, 'how they love one another.' We are a body knit together by a common religious profession, by unity of discipline, and by the bond of a common hope....We assemble to read our sacred writing...In the same place also exhortations are made, rebukes and sacred censures are administered. _For with a great gravity is the work of judging carried on among us, as befits those who feel assured that they are in the sight of God; and you have the most notable example of judgment to come when anyone has sinned so grievously as to require his severance from us in prayer, in the congregation and in all sacred intercourse. The tried men of our elders preside over us, obtaining that honor not by purchase, but by established character_. 6

It is clear from this text that the Matthaean exhortation about bringing one's brother before the community for judgment was still in practice, and indeed, of some import at the time of Tertullian. The _Didascalia_ , however, probably written within a few decades of the _Apology_ , spells out even more clearly what immense importance was attached to the role of judging in the early Church. Page after page of the _Didascalia_ is devoted to the Church's court system, with detailed instructions on such matters as how the bishop-judge ought to handle the case of a falsely accused person, how the judge ought not to accept bribes, how both sides should be given a hearing, how the judge ought not to be a respecter of persons, and even how the judicatures of Christians ought to be held on the second day of the week, so that the matter might be settled before the next Sabbath. 7

The "earliest Church historian," Eusebius, who was the bishop of Caesarea early in the fourth century, tells us that in the year 268, the then bishop of Antioch, because of his heretical beliefs and certain misdemeanors, had to be deposed. Among the specific complaints against the bishop were several that referred to his role as judge. It was alleged, and eventually proved, according to Eusebius that

he extorts from the brethren, depriving the injured of their rights and promising to assist them for reward, yet deceiving them, and plundering those who in their trouble are ready to give that they may obtain reconciliation with their oppressors . . . and . . . that he practices chicanery in ecclesiastical assemblies, contrives to glorify himself, and deceive with appearances, and astonish the minds of the simple, preparing for himself a Tribunal and lofty throne, not like a disciple of Christ, and possessing a 'secretum,' like the rulers of the world, and so calling it, and strike his thigh with his hand and stamping on the Tribunal with his feet; or in that he rebukes and insults those who do not applaud, and shake their handkerchiefs as in theatres, and shout and leap about like the men and women that are stationed around him. 8

It seems, therefore, that ecclesiastical courts, both good and bad, grew up along with the Church itself as part of the family. They were used and abused, admired and detested; but, above all, they were a fixture.

2. Ecclesiastical Judgments after Constantine

Once Constantine, the Roman emperor, became a Christian and, in particular, once he granted to bishops the same authority as civil judges in cases brought before them by the mutual consent of the parties, 9 it was inevitable that the procedural law of the Roman civil courts would influence and change the procedures of the Church courts. And so it did.

Perhaps the clearest single illustration of that influence of Roman law on church law is found in Gregory the Great's letter to John the Defender, the letter listed as number 45 in Book XIII of his collected letters. 10 Gregory was born in Rome somewhere around 540 to a distinguished patrician family. Before his ordination, Gregory was himself a judge in the civil system, prefect of the city of Rome, and president of the Roman Senate. When, therefore, he became pope in 590, he was a true expert in law and government. At a point in his pontificate, news came to Gregory of a couple of particularly delicate matters in Spain that had already come to the attention of the local church courts. Gregory sent John the Defender to Spain and, in Letter 45, Gregory instructed John, who had in effect been designated as Gregory's judicial vicar for these particular cases, how to proceed. The pope told John that he wanted him to review and evaluate the procedures, testimony, and merits of the first instance hearing; and time and time again, Gregory quoted chapter and verse for John from Justinian 's Code and Novels. Gregory was saying, in other words, that the rules and directives of Roman civil law (the Code and Novels, along with two other works called the Institutes and Digest, were a systematic collection of several centuries of imperial legislation ordered by and published under Emperor Justinian shortly before Gregory was born) could and should be utilized in church courts.

The influence of Roman law on ecclesiastical court procedures still endures. The following chapter headings, for example, which are immediately familiar to anyone conversant with the Codes of Canon Law, are in fact lifted verbatim from the Corpus Juris Civilis (as Justinian's four collections came to be known): De ordine iudiciorum, De foro competenti, De litis contestatione, De dilationibus, De procuratoribus, De actionibus et exceptionibus, De praescriptionibus, De re iudicata, De effectu sententiarum, and De restitutionibus in integrum. 11

3. The Decretals of Pope Gregory IX

Although a complete history of procedural law in the Church is far beyond the scope of these few introductory remarks, still there is one essential link between the early Church and the contemporary Church which is altogether too important to go unmentioned: the _Decretals_ of Pope Gregory IX. In the year 1234, Gregory IX collected several centuries' worth of ecclesiastical laws and arranged them (following the order utilized by Bernard of Pavia in his _Collectio Prima_ of some forty years earlier) into five books: _Iudex_ , _Iudicium_ , _Clerus_ , _Connubia_ , and _Crimen_.

Book II of the _Decretals_ was divided into thirty titles and a mere listing of them, at least for one acquainted with the titles of the two modern Codes, is a dramatic illustration of the continuity of procedural law in the Church over the centuries:

De iudiciis

De foro competenti

De libelli oblatione

De mutuis petitionibus

De litis contestatione

Ut lite non contestata non procedatur ad testium receptionem vel ad sententiam definitivam

De iuramento calumniae

De dilationibus

De feriis

De ordine cognitionum

De plus petitionibus

De causa possessionis et proprietatis

De restitutione spoliatorum

De dolo et contumacia

De eo, qui mittitur in possessionem causa rei servandae

Ut lite pendente nihil innovetur

De sequestratione possessionum et fructuum

De confessis

De probationibus

De testibus et attestationibus

De testibus cogendis vel non

De fide instrumentorum

De praesumptionibus

De iureiurando

De exceptionibus

De praescriptionibus

De sententia et re iudicata

De appellationibus, recusationibus, et relationibus

De clericis peregrinantibus

_De confirmatione utili vel inutili_ 12

4. An Outline of Book VII

The procedural law of the 1983 Code, which bears an amazingly strong likeness to its ancient ancestor, the _Decretals_ , consists of three hundred fifty-three canons (1400-1752) and is divided into five parts: I "Trials in General"; II "The Contentious Trial"; III "Certain Special Procedures"; IV "Penal Procedure"; and V "On the Manner of Procedure in Administrative Recourse and the Removal and Transfer of Pastors."

The specific subjects (called titles) treated in this Book VII are almost exactly the same as those in Book IV of the 1917 Code, but the distribution of the titles into sections and parts is quite different. Part I of the 1917 Code, as a matter of fact, included all of the titles treated in parts I, II, III, and IV of the revised Code.

The outline following par. 260 provides an overview of how the material is treated in both Codes. There, the author has used the English translation of all headings and occasionally abbreviated them, but, as already pointed out, the original Latin titles are often identical with those found in both Justinian (ca. 535) and Gregory IX (1234).

5. Some General Observations

a. The principal subject of the 1917 Code that is not repeated in the 1983 Code is 1917's part II on beatification and canonization procedures. Canon 1403 of the 1983 Code notes that henceforth investigations regarding canonizations will follow special pontifical norms which will not be included in the general Code of law for the Church.

b. It is also apparent that the 1983 Code introduces two new types of procedure, namely, "The Oral Contentious Process" (part II, section II) and "Recourse against Administrative Decrees" (part V, section I). These will both be discussed in place.

c. The matter of "Methods of Avoiding a Trial" (part III, title III) seems rather oddly placed in both the 1917 and the 1983 Codes, though interestingly, it was assigned the same relative position in the third century _Didascalia's_ own rather lengthy treatment of ecclesiastical judicatories. 13

d. The first seventeen titles, all treated in the 1917 Code as part I, section I, are better and more clearly distributed in the 1983 Code which treats only the first five titles, all general in nature, under part I, and then devotes part II, section I to a chronological explanation of a specific trial, beginning with "The Introduction of the Case" (title I) and ending with "Execution of the Sentence" (title XI).

e. Although "Matrimonial Procedures" (title I) and "Cases for Declaring Nullity of Sacred Ordination" (title II) are not listed under "The Contentious Trial" (part II), but are, instead, considered "Certain Special Procedures" (part III), it should nevertheless be noted that the canons regarding "Trials in General" (part I) and "The Ordinary Contentious Trial" (part II, section I) also apply to canonization cases (c. 1403), the oral contentious trial (c. 1670), marriage nullity cases (c. 1691), marriage separation cases (c. 1693), ordination nullity cases (c. 1710), and penal cases (c. 1728, §1) whenever the specific directives for these types of cases are wanting.

f. It should be noted further that, although marriage cases (which constitute practically the entire work load of our tribunals) have their own special norms and are thus treated under "Certain Special Procedures," they are nevertheless considered as falling under the general category of contentious cases (c. 1425, §1, 1°).

That marriage cases should automatically be considered contentious is itself a contentious matter. Of course every trial, by its very nature, does involve a legal controversy. A legal controversy, however, may be either _contentious_ (where one of the parties, e.g., the defender of the bond, contends the matter) or _non-contentious_ (where none of the parties but only a presumption of law disputes the allegation). Many American and other canonists have contended for years that those marriage cases in which neither the respondent nor the defender opposes an annulment should be considered not as contentious, but simply as declarative of a person's official status in the Catholic community.

This is not merely a semantic problem but rather an important question of taxonomy. If, on the one hand, the point of a marriage case is to determine whether a person is married or single "in the eyes of the Church" (and therefore whether that person is or is not free to remarry in the Church and receive the sacraments), then the trial can be conducted with a minimum of formalities, a maximum of privacy and confidentiality, and a suitable, discretionary defense of the marriage bond. But, if on the other hand, a marriage case is automatically considered a contentious matter (even where both parties and even the defender of the bond agree that the marriage was certainly and clearly invalid), then legal formalities and publicity, i.e., publicness, will be increased and the defense of the bond will tend to be artificial.

It is this taxonomical dispute that is at the heart of the procedural differences between the two canonical camps in the Church today.

6. Chronology of the 1983 Revision

The early years of this revision were marked by four significant dates:

1. _January 25, 1959_ – when Pope John XXIII issued the initial call for a revision of the Code;

2. _March 28, 1963_ – when the Pontifical Commission for the Revision of the Code was established;

3. _November 12, 1963_ – when it was decided to postpone the work of revision until the end of the Second Vatican Council;

4. _November 20, 1965_ – when Pope Paul VI inaugurated the work of the Commission.

Following Pope Paul's inauguration, the consultors comprising the various study groups began their meetings. The _De processibus_ group had its first meeting in May 1966 and for the next several years met, for a week or so at a time, two or three times a year. 14

Finally, after ten years of work, the Commission issued, on November 3, 1976, the _Schema Canonum De Modo Procedendi Pro Tutela Iurium seu de Processibus_ , which was distributed to the various bishops of the world and consultative organs. It was accompanied by a request that they return to the Commission any observations they might have on the schema by September 1977.

Using these observations, the consultors then met:

\- in April and May of 1978 - to revise the present canons 1400-1490; 15

\- in October, November and December of 1978 – to revise canons 1491-1649; 16

\- in March and May of 1979 – to revise canons 1650-1752 17

The final draft was then incorporated into the 1980 draft of the revised Code and from there, with some few more revisions, into the final text.

The revision of the procedural law for marriage annulment cases has its own history and will be discussed in place. 18

7. Some Basic Definitions

A _process_ ( _processus_ ) is a complexus of acts or solemnities, prescribed by law and to be observed by public authority, for solving questions or settling business.

A _procedure_ ( _procedura_ ) is simply a way of proceeding ( _modus procedendi_ ); it can be either judicial or extra-judicial.

A _trial_ ( _iudicium_ ) is a hearing, discussion, and settlement by a judge of a legal controversy which arises between a plaintiff and a respondent.

An _ecclesiastical trial_ is a discussion and settlement by an ecclesiastical tribunal of a controversy in a matter in which the Church enjoys competence.

8. Basic Elements of a Trial

There are five basic elements to a trial: the material object, the formal object, the active subject, the passive subject, and the form. These five elements comprise the subject matter of part I of this Book on procedural law. These elements are discussed according to the following order:

c. 1400 - _the material object_ , i.e., the matters that can, in general, be addressed by a court.

c. 1401 - _the active subject_ , i.e., the judge or tribunal before whom the case is tried. Canon 1401 states the general principle that the Catholic Church does indeed have the right to hear certain cases. Canons 1404-1475 (titles I-III) treat this matter more in detail.

c. 1402 - _the form_ , i.e., the procedures or solemnities that are followed in the adjudication of certain matters. This canon states the general rule.

c. 1476 - _the passive subject_ , i.e., the petitioner or respondent whose case is being heard. This matter, along with the procurators and advocates for the parties, is treated in canons 1476-1490 (title IV).

c. 1491 - _the formal object_ , i.e., the precise claim or counter-claim made by the parties in a particular hearing. This matter is treated in canons 1491-1500 (title V).

Return to TOC

ENDNOTES

1. Mt 18: 15-18.

2. 2 Cor 13: 1.

3. 1Tm 5: 19.

4. 1 Cor 5: 12-13.

5. 1 Cor 6: 1-6

6. _The Ante Nicene Fathers_ III, 46-47. Order of sentences slightly altered; italics the author's.

7. _Constitutions of the Holy Apostles_ , Book II, Sections III-VI, _The Ante Nicene Fathers_ VII, 398-421.

8. _The Church History of Eusebius_ , VII, 30, _The Nicene and Post Nicene Fathers_ , Second Series, I (New York: The Christian Literature Co., 1890), 314.

9. Codex _Theodosianus_ , I 27, 1; Mommson-Meyers (Berlin, 1905), 62.

10. _PL 77_ , 1294-1300.

11. Institutiones IV 6, 13; _Digesta_ IV l, XLII 1, XLIV 1, 2; Codex II 13, III 8, 9, 11, 13.

12. CorpusIC II, 239-448.

13. See also par. 29, a.

14. These meetings are described in _Comm_ 6 (1974),37-43; 216-219.

15. These meetings are described in _Comm_ 10 (1978), 209-272.

16. These meetings are described in _Comm_ 11 (1979), 67-162.

17. These meetings are described in _Comm_ 11 (1979), 243-296.

18. See par. 206.

\+ + +

Article #5

**Matrimonial Procedures, 1985**

_CLSA Commentary_ , pp. 1009-1011

Brief History – Marriage Procedures

Matrimonial Procedures

206. A Brief History

Paragraph one of this commentary noted that the Church has, virtually from its inception, been an adjudicative community. The early Church was, it seems, involved in the settlement of various sorts of disputes, but one of the earliest cases mentioned in the New Testament was a marriage case, the one in which Paul told the Christians in Corinth that they should sit in judgment of the incestuous man among them and expel him from their midst. 156

This, as it turned out, was but the first of many such marriage cases in which the Christian community would act as arbiter. In the year 314, the Council of Ancyra imposed a stiff penance on a man who had been involved in a similarly scandalous marital situation. 157 Gratian, particularly in Causes 27-32 of his decree, 158 also tells of many decisions that were made by the popes and fathers on marriage cases and questions over the years. Many other cases were, no doubt, handled at the local level and in administrative fashion, but by the twelfth century at least, marriage cases were generally heard according to the regular judicial process. In 1198, however, Pope Innocent III noted that the ordinary judicial process was not always and everywhere being observed for marriage cases, 159 and, in 1311, Pope Clement V, in his decretal _Dispendiosam_ , explicitly permitted marriage cases to be heard by a kind of summary process, a process that would be carried out, as he said "simpliciter et de plano, ac sine strepitu iudicii et figura. 160

By the sixteenth century, the Council of Trent apparently felt it necessary to crack down a bit and it ordered that marriage cases should no longer be heard by deans or archdeacons; only the local ordinary was empowered to hear such cases, and the judicial process was to be followed. 161

Abuses, however, persisted and, in an effort to curb them, Pope Benedict XIV issued, on November 3, 1741, his famous constitution _Dei miseratione_. 162 Benedict was particularly upset by the facility with which annulments were being granted in his day. Oftentimes the respondent would not appear at the trial at all, so there would be no one to defend the marriage (there was, in those days, no one designated as a defender of the bond). Sometimes both parties would appear, but either the respondent would be in collusion with the petitioner, or he or she would simply not be interested in appealing higher - the marriage would then be declared null after a single hearing (there was, in those days, no mandatory appeal). As a result, according to Benedict, men and women alike were having their first, second, and even third marriages declared null and were, with the blessing of the Church, blithely entering still another.

_Dei miseratione_ attempted to put an end to all this. _First_ it required that every diocese appoint a defender of marriage whose presence in every trial would be absolutely mandatory and whose duty it would be to defend the bond. _Secondly_ , it required the defender to appeal every first instance affirmative decision.

The modern era for the adjudication of marriage cases had begun.

A century later, on August 22, 1840, the Congregation of the Council issued a new Instruction 163 designed to reinforce, clarify and amplify _Dei miseratione_. The United States, however, was still mission territory and, until late in the nineteenth century (and, if the truth be known, until much, much later in some dioceses), marriage cases were still being heard quite informally. Father S.B. Smith, for example, in the Preface to his book, _The Marriage Process in the United States_ , published in 1893, wrote:

The subject of these pages - the marriage process - is comparatively new in this country. Down to the year 1884, marriage disputes, even those involving the validity of marriages already contracted, were, as a rule, decided, with us, by the bishop, or also by rectors of parishes, and sometimes even by assistant priests, without any judicial formalities whatever.

This mode of procedure was naturally open to serious inconveniences, and was calculated to imperil, in many cases, the stability and indissolubility of marriages.

To obviate these disadvantages, the S.C. de Prop. Fide, in 1884, issued the Instruction _Causae matrimoniales_ for this country. This Instruction or law substantially lays down and makes obligatory here, in matrimonial contentions involving the validity of a marriage contracted, the manner of proceeding which is prescribed by the general law of the Church and obtains throughout the entire Church. This mode of deciding marriage disputes is judicial and is to be conducted by the bishop's court for marriage causes. 164

The Instruction _Causae matrimoniales_ , 165 mentioned by Father Smith, required that henceforth all marriage cases heard in the United States follow a strictly judicial process, including involvement by the defender of marriage (7) and mandatory appeal of an affirmative decision (30). _Causae matrimoniales_ was the last significant document pertinent to marriage trials prior to the codification, in 1917, of the Church's law.

In their pre-Code manuals, Lega and Wernz both devoted brief sections to the special procedures followed in marriage cases. Lega was satisfied with simply reprinting _Causae matrimoniales_ , noting that it was practically the same as previous instructions issued for the Oriental Churches and for Austria. 166 Wernz, on the other hand, wrote his own treatment on the procedures to be followed in marriage cases, in which he commented on such matters as the right to petition for an annulment, the competent judge (marriage cases were heard by a single judge), suitable proofs, the involvement of the defender and the mandatory appeal of an affirmative decision. 167

The 1917 Code, in its section on trials in general, namely, in canon 1576, §1, required that all marriage nullity cases be heard by a college of three judges "with every contrary custom being reprobated and every contrary custom revoked." But, like the pre-Code authors, it also devoted a separate section, namely, canons 1960-1992, to marriage trials in particular, in which it treated briefly the predictable issues of competence, court personnel, the right to petition, proofs, publication, the conclusion _in causa_ , the sentence, the appeal, and, finally, certain clear cases, like prior bond, that could be proved by document and could therefore be handled informally.

By 1936 the Holy See, realizing that around the world very few marriage cases were being handled judicially by local tribunals, concluded that the thirty-three canons of the 1917 Code (CIC 1960-1992) devoted specifically to marriage cases, were not sufficient to aid the local judge in applying the canons on trials in general (CIC 1552-1924) to marriage cases. Accordingly, on August 15, 1936, the. Holy See issued a new Instruction, _Provida mater_ , 168 which consisted of two hundred forty articles that attempted, in effect, to rewrite general procedure as it might apply to marriage cases. _Provida mater_ was a valiant and, no doubt, well-intentioned effort to assist local judges, but the rigidity and complexity of the Instruction seemed to discourage judges even more, and thousands of bona fide marriage cases continued to go unheard. In the United States, for example, where, by the late 1960s, there were an estimated five million divorced Catholics, only a few hundred first instance affirmative decisions were being given each year. 169

In an effort to correct this situation, the Canon Law Society of America endorsed, at its annual meeting in 1968, a simple set of norms, called the _American Procedural Norms_ , with the request that the National Conference of Catholic Bishops propose them to Rome for approval. Approval was given, effective July 1, 1970, first for a three-year experimental period, then in 1973 for one more year, and finally in 1974, until the new procedural law for the Church universal would be promulgated. 170 The aim of the _American Procedural Norms_ was, on the one hand, to provide adequate defense of the marriage bond and thus avoid the scandalous sort of annulment that existed before _Dei miseratione_ , but, on the other hand, to provide to tribunals a procedure that could be carried out "simpliciter et de plano, ac sine strepitu iudicii et figura," and could thus enable them to give a hearing to the many thousands of people with legitimate grounds of annulment. The principal features of the _American Procedural Norms_ were the recognition of the petitioner's residence as a source of competence, trial by a single judge, discretionary publication by the judge, and discretionary appeal by the defender. The _American Procedural Norms_ were dramatically successful. By the late 1970s, thirty thousand annulments a year were being granted, judicially and judiciously, by United States tribunals. Although that figure was still only one-half of one percent of the number of divorced Catholics in the country (six million by that time), the _American Procedural Norms_ were, nevertheless, of benefit to a great many people.

Americans were not the only ones interested in simplified procedures. There was considerable interest around the world in providing for a more expeditious handling of marriage cases, and on March 28, 1971, Pope Paul VI issued, for the universal Church, the Apostolic Letter _Causas matrimoniales_ 171 which was not as liberal in its provisions as the _American Procedural Norms_ , but which did modify the prescriptions of the 1917 Code in the areas of competence, the number of judges, the use of lay people, and the appellate procedures.

By this time, of course, the work of revising the 1917 Code, specifically its procedural law, was well under way (par. 6) and when the 1976 schema on procedural law appeared, it contained, as was expected, the modifications introduced by _Causas matrimoniales_. Most of these have, in turn, been incorporated into the 1983 Code.

Return to TOC

ENDNOTES

156. 1 Cor 5: 1-13.

157. See c. 25 of the Council in _Nicene and Post Nicene Fathers_ , Second Series, XIV (New York: Scribners, 1900), 75.

158. _CorpusIC_ I, 1046-1148.

159. C. 1, X, II, 6 - _CorpusIC_ II, 258-259.

160. Clem II, 1, 2 - _CorpusIC_ II, 1143. The Latin phrase might be translated "simply and easily and without the pomp and circumstance of a judicial proceeding."

161. Sess. XXIV, ch. 20.

162. _CICFontes_ I, n. 318, 695-70 I.

163. _CICFontes_ VI, n. 4069, 345-350.

164. S.B. Smith, _The Marriage Process in the United States_ (New York: Benziger, 1893), 5.

165. _CICFontes_ VII, n. 4901, 479-492.

166. Lega IV, 592-608.

167. Wernz IV, 1087-1120.

168. _AAS_ 28 (1936), 313-361; _CLD_ 2, 471-529.

169. _CLSAP_ (l 969), 155.

170. For a brief history and evaluation of the APN. see T. Green, "'The American Procedural Norms: An Assessment," _Stud Can_ 8 (1974), 317-347.

171. The English text of the APN and CM are found in L. Wrenn, _Annulments_ , 3rd ed. (Toledo: CLSA, 1978), 115-123. The Latin texts are found in Gordon-Grocholewski, 248-252; 209-213.

\+ + +

Article #6

**In Search of a Balanced Procedural Law in Marriage Nullity Cases, 1986**

The Jurist

Finding Balance

In Search of a Balanced Procedural Law

**for Marriage Nullity Cases** *

Lawrence G. Wrenn

THE NEED FOR BALANCE

A church tribunal is a veritable depository of tension. It fairly teems with serried conflict.

1. There is, for example, the conflict that exists between the petitioner and the respondent (and/or the defender of the bond). At the level of the individual case, every trial involves a basic controversy. There are two "sides" in every case, and those two sides come together in court as opponents or antagonists. In marriage nullity cases, as we know, the respondents themselves are not, in practice, always interested in playing the adversarial role; but always there is a defender of the bond and always, therefore, there is at least to some extent, a proponent and an opponent, a position and an opposition.

The resulting tension is often quite emotional. Petitioners frequently object to the cumbersome, prolonged procedures devised, as they see it, by aloof, uncaring celibates. The requirement by the tribunal of highly detailed, highly personal information seems callous to many plaintiffs; often they have been deeply scarred by the broken marital relationship, and the relentless probing of the court seems a heartless opening of old wounds. "Why," they ask further, "does the court not accept their word as an accurate account? Why must they involve their relatives and friends as witnesses? Why must the process be so embarrassing and so painful?"

Respondents, meanwhile, are often offended by what they perceive to be the court's intrusion into their privacy. If they do eventually offer testimony, their account may differ markedly from that of the petitioner. They do not understand how the Church can annul a marriage which lasted for several years and which produced several children.

They are concerned that somehow their children will be regarded in the Church as less than legitimate. They fear the besmirchment of their own reputation. They regard the court's activities as legalistic meddling.

Often, furthermore, one or both parties are not Catholic, or even Christian; they may, therefore, see a Catholic tribunal as unsympathetic, threatening, and inquisitional.

These are all real tensions, and both court personnel and the law itself must do their best to reduce them to an absolute minimum. For left untended, they can easily blind all concerned to the essential fairness and equity of the proceeding itself, the whole purpose of which, after all, is simply to settle a disputed issue in accord with the best and wisest insights of the law.

2. There is also the tension between thoroughness and expeditiousness. Since the point of every trial is to uncover not just half-truths but the " _tota et sola veritas_ ," 1 the pursuit of that truth must always be vigorous and complete. Innocent III expressed this idea in the phrase " _Iudex . . . debet universa rimari_ ," 2 which has the connotation of leaving no stone unturned. The investigation, implied Innocent, should be both extensive, in that everything (" _universa_ ") is perused, as well as intensive, in that everything is turned over and pried into (" _rimari_ ").

Both Paul VI 3 and John Paul II, 4 in allocutions to the Rota, made the same point, each of them noting that the investigation should be a "complete and exhaustive" one.

At the same time, however, a trial should also be as expeditious as possible. In 1973, Pope Paul VI observed:

You want to exercise justice with canonical equity, and you want it to be speedier, more gentle, more even tempered. As far as being speedier is concerned, it is certainly true that prudence is not necessarily to be identified with a sluggish pace, which sometimes leads to real injustice and great damage to souls." 5

And in 1984 Pope John Paul II said:

In reforming canonical procedural law, an effort was made to meet a very frequently uttered criticism, which is not entirely unfounded and which concerns the slowness and excessive duration of causes. . . . An effort was made to make the administration of justice more agile and functional by simplifying procedures, by expediting formalities, by shortening terms, by increasing the judge's discretional powers, etc. This effort must not be rendered vain by delaying tactics or lack of care in studying cases, by an attitude of inertia, distrustful of entering upon the new fast lanes, and by lack of professional skill in applying procedures. 6

It is clear, therefore, that both thoroughness and expeditiousness are values to be protected in a judicial process; which means that a trial may be neither unduly prolonged for the sake of completeness nor unduly abbreviated for the sake of speed. Somehow the proper balance must be found in order to accommodate the two values.

3. Over the centuries the Church has also attempted to find the happy medium between overprotecting and underprotecting the bond of marriage. Benedict XIV certainly had a legitimate complaint in 1741 when he saw people having not just one but several marriages successively declared null by a single judge, with no defender of the bond and no appellate hearing. 7 But so did Paul VI and John Paul II when, in revising the 1917 code, 8 they modified that code's demand for at least two defenders of the bond and six judges before any marriage could be declared invalid. 9

It seems to us now that the bond of marriage was underprotected prior to 1741 and overprotected in the years following 1917. Whether the 1983 code has, in fact, now found the proper balance between these two extremes remains, for many, an arguable point.

4. In searching for balance in protecting the bond of marriage, a middle ground must also be sought in avoiding the two extremes of laxity on the one hand and rigidity on the other. As regards laxity, Paul VI spoke out in 1976 against the position taken by some which held that marital love alone and not marital consent is constitutive of marriage, so that whenever marital love does not exist or ceases to exist, the marriage is likewise non-existent. In at least one ecclesiastical tribunal marriages were actually declared null on that "ground" (which is, of course, a non-ground) and Paul VI rightly denounced the practice. 10 Two years later the same pope warned judges against "indulging in an easy-going attitude which would end up favoring permissiveness" and against granting "certain concessions as a matter of routine" which would result in "a practical evasion of the law." 11 In 1981 John Paul II spoke of how the stability of marriage and the family can be "negatively influenced by declarations or decisions of nullity when these have been obtained with too much ease." 12

But the opposite extreme, rigidity, can also be a problem. Certain judges, for example, can be so obsessed with the evil of divorce and the disruption of family life that they are loath to declare any marriage invalid for fear that doing so will contribute to the overall disintegration of society. Such judges, therefore, will tend to apply the law with exaggerated strictness and to ignore accepted jurisprudence, and so deprive people of a hearing that is truly just and fair. Or certain judges may claim, after hearing all the evidence, that even though in their own heart and mind they are, as people, personally convinced that a given marriage is invalid, still the law of the Church does not, for one reason or another, permit them as judges to declare officially that given marriage null. Such an attitude, as Pius XII pointed out, is excessively rigid and unjustifiable. Pius wrote:

No doubt there may at times be conflicts between "juridical formalism" and "the free weighing of the evidence," but they will usually be only apparent and hence not difficult to resolve. Now, as the objective truth is one, so too moral certainty objectively determined can be but one. Hence it is not admissible that a judge declare that personally, from the record of the case, he has moral certainty regarding the truth of the fact at issue, while at the same time, in his capacity as judge, he denies the same objective certainty on the basis of procedural law. Such contradictions should rather induce him to undertake a further and more accurate examination of the case. Not infrequently such conflicts are due to the fact that certain aspects of the case, which attain their full importance and value only when viewed as a whole, have not been properly weighed, or that the juridical-formal rules have been incorrectly understood or have been applied in a manner contrary to the mind and purpose of the legislator. In any event, the confidence of the people, which the tribunals should possess, demands that, if it is at all possible, such conflicts between the official opinion of judges and the reasonable public opinion of well educated people should be avoided and reconciled. 13

A balance must therefore be found between rigidity on the one hand and laxity on the other, and that balance consists in flexibility, or equity, which as Paul VI pointed out, is "an attitude of mind and spirit that tempers the rigor of the law . . . and a force for proper balance in the mental process that should guide a judge in pronouncing sentence." 14

5. A fifth tension found in tribunal work exists in the area of scholastic credentials versus experiential credentials on the part of judges, defenders of the bond, and advocates.

There is no question but that ecclesiastical tribunals, like their civil counterparts, should be run professionally. We want our courts to be sources of legitimate pride and worthy of winning the respect of all who are acquainted with them. This means, at the very least, that key court personnel should be not only kind, considerate, empathetic, well intentioned and efficient, but also that they be truly expert in their knowledge of the law and jurisprudence that bear on the settling of marriage cases.

In order to insure this end the 1917 code, 15 while preferring that the officialis, vice-officialis, defender and advocate possess a doctorate in canon law, 16 nevertheless accepted genuine expertise in the field as sufficient qualification for all judges, defenders and advocates.

The 1983 code, on the other hand, apparently feels that in the present age, a tribunal will not be truly professional unless all judges and defenders hold at least a licentiate degree, 17 though interestingly, a scholastic degree is not required for the advocate; it is sufficient for the advocate if he or she be "vere peritus." 18

Everyone recognizes that much has changed since the days when Paul reminded the Corinthians that, since we Christians "are to judge the world" and "since we are also to judge angels, it follows that we can judge matters of everyday life. . . . Can it be that there is no one among you wise enough to settle a case between one member of the church and another?" 19 These days more is required than simply being "wise." It is important that key personnel in church courts not be professionally underqualified. But it is probably of equal importance that the law not require that they be overqualified either. Because once a law loses its balance, it will inevitably slip. It may take some time before a loss of balance becomes noticeable, but once a law is put to the test of having to function in the real world, any imbalance that is present will, sooner or later, have negative consequences in the life of the Church.

Canon 1483 is certainly correct in noting that there are people who are "truly expert" even though they have not earned a licentiate in canon law. Every diocese of any size has at least a few such people, people who have perhaps never studied _De Bonis Temporalibus_ or _De Sanctionibus_ , but who know in great depth the Church's jurisprudence on marriage and who have the intelligence and wisdom to apply that jurisprudence to individual cases. The Church is no doubt right in encouraging such "experts" to assist the parties in a case as their advocates. But a law which, at the same time, disallows those same people from serving as defenders and judges (even as one of the judges on a collegiate tribunal) is, in the opinion of many, a law of dubious balance.

6. The matter of publicness versus confidentiality is still another area where balance is essential. Paul VI certainly stated the general principle clearly when, in a 1977 allocution, he said "a trial or process is to be, as a rule, public; and yet justice itself may require that the matter be handled secretly." 20

Despite Pope Paul's directive, however, and despite the fact that over the last century the Church's law on the publication of the acts has been reasonably nuanced and quite well balanced, 21 the 1983 canon on the matter came perilously close to grossly overprotecting publicness and underprotecting confidentiality. The canons in both the 1976 and the 1980 drafts did exactly that and, in the judgment of many, would have been bad and harmful law. 22 Fortunately the version of the canon that was finally promulgated (c. 1598) had managed to pull out of its nosedive in the very nick of time and landed right side up. But it was a close call.

7. Several of the tensions already mentioned are heightened and exacerbated by still another tension, the one, namely, that exists between the procedure that is to be used for ordinary contentious cases on the one hand and that which is to be used for marriage cases on the other. According to the present law (c. 1425, §1, 1°) marriage cases are, in general, regarded as contentious cases and must, in general, be handled by the process which is designed for those cases (c. 1691).

There is, however, a problem here and that is that the underlying assumption of this arrangement (namely, that a marriage case should necessarily be regarded as contentious) does not reflect reality. By definition, of course, every trial involves a controversy. Not every controversy, however, involves a genuine contention. We have all seen marriage cases where the respondent does not wish to be involved and where the evidence in favor of nullity is so positively and undeniably overwhelming that the defender is in no position to contest it. Such a case (and there are many of them) should be recognized as a noncontentious controversy. It remains, perhaps, a theoretical controversy because a legal presumption in favor of validity controverts or formally contradicts the allegation of nullity, but the clear facts of the case itself prohibit any genuine, honest contention that the marriage was in fact valid.

The present law of the Church does not, however, recognize that fact. It requires, rather, that marriage cases (even though many of them are, in fact, noncontentious) follow a procedural law that was specifically and admittedly designed for contentious cases. It is like putting new wine into old wineskins. Or, to use a less biblical metaphor, it is like wearing a borrowed suit of clothes, which tends to be tight where it should be loose and loose where it should be tight. A genuinely balanced procedural law, however, consists in exactly the opposite, that is, in being tight where it should be tight and loose where it should be loose; but that kind of balance is obtained, it would seem, only from a law that is truly tailored to the specific object of the trial.

The whole purpose of canons 1671-1707, of course, is precisely to perform this tailoring task, to adjust and adapt the procedures for the ordinary contentious trial to marriage cases, but it seems legitimate to wonder whether this is not too little too late; or to put it in more biblical terms, whether it does not involve "putting a piece of unshrunken cloth on to an old cloak."

8. An eighth tension in procedural law and tribunal work is found between tradition on the one hand and innovation on the other. This, of course, is a tension that pervades all of society and life itself. But every institution and every legal system is, in a special way, constantly faced with decisions about which items in the legislative inventory should be preserved, and which should be discarded altogether or modified in favor of something better.

The procedural law of the Catholic Church has a rich and venerable tradition of which we are justifiably proud. In general, at least, it has worked and worked reasonably well for hundreds of years; it makes sense, therefore, to deal with it in accord with the old adage, "If it isn't broken, don't fix it." At the same time, however, the Church has never viewed its procedural law as etched in stone. Without ever stripping the law of its stability (an essential quality for any law), the Church has nevertheless remained ever open to reexamining its law with a view toward improving it. 23 The 1983 code is but the latest example of this.

Think, for example (and it is but one example of many), of the axiom "Actor sequitur forum rei." This was an accepted principle in classical Roman law, 24 remained so throughout the Middle Ages, 25 and was quite naturally incorporated into the Pio-Benedictine code. 26 But by the time the 1983 code was promulgated, contemporary circumstances and attitudes seemed to warrant some modification of that principle, at least as far as marriage cases were concerned. So canon 1673, 3° gracefully acknowledged that, under certain circumstances, the petitioner's domicile may also be a source of competence; that is, that sometimes the "reus [or rather the _pars conventa_ ] sequitur forum actoris." This was a not untypical instance of what _Sacrae disciplinae leges_ called "fidelitas in novitate et novitas in fidelitate."

It should also be mentioned, though, that over the years the Church has not always been uniformly successful in excluding the bad elements (both old and new) and including the good elements (both old and new) in its body of law. Knowing which traditions to modify and which innovations to incorporate remains for each succeeding age a mighty challenge.

9. Still another tension that pervades tribunal work is the one between the common good and the individual good.

Tribunal personnel tend to look upon their work as primarily a mission to the individual people whose cases come under their purview. Jurisdictional power, as Paul VI noted, "is a pastoral power. This is to say that it is meant for service and that it looks to the good not of the person invested with the power but of those for whose sake authority is exercised." 27 It is in accord with that sentiment that courts try to give prompt, efficient, pastoral service to their clients. Tribunal work is seen basically as a ministry to individuals.

But there is another dimension to tribunal work, its contribution to the common good. Society as a whole, and especially the Catholic community, must know that within the Church there exists a judicial system that is available to all who need it, a system that follows catholic rules of evidence and catholic jurisprudence so that cases the world over will be judged according to the same basic standards. 28 Catholics should be confident that there exists, within their Church, a court system which profoundly respects the dignity and indissolubility of marriage in general, but which will nevertheless objectively and impartially investigate and adjudicate any legitimate claim that a given marriage was, for some demonstrable reason or another, invalid.

Neither the individual good nor the common good should be allowed to dominate. Excessive attention to the individual good can cause judges to become pandering and romantic while excessive concern for the common good can cause them to be insensitive and legalistic. Both "goods" or values should be protected and promoted but never to excess. Tribunals should see their work both as a ministry to persons and as a ministry to truth.

The procedural law of the Church, furthermore, should foster that approach, as indeed it does in many ways. In regard to the evaluation of evidence, for example, the 1983 code, with one eye on the common good, requires that certain standard rules of evaluation be followed (so that an allegation will be genuinely proved and not simply taken for granted); but, with the other eye on the individual good, the code sees to it that those rules are endowed with a certain flexibility (so that they can be applied with equity in individual cases). The two canons that primarily illustrate this point are the following:

Can. 1536, §2. In cases which concern the public good a judicial confession and the declarations of the parties which are not confessions can have a probative force to be evaluated by the judge along with the other circumstances of the case; but complete probative force cannot be attributed to them unless other elements are present which thoroughly corroborate them.

Can. 1573 The deposition of a single witness cannot constitute full proof unless a witness acting in an official capacity makes a deposition regarding duties performed ex officio or unless circumstances of things and persons suggest otherwise.

Both of these canons strike a nice balance and thereby provide direction to the many judges who strive to maintain that same sort of balance in their daily ministry.

10. A tenth and final example of the need for balance in procedural law can be found in the competing claims of what may be called the former marriage and the future marriage.

The _former_ marriage (i.e., the one that is the object of the petition for nullity) is, as everyone knows, presumably valid. But even beyond that, the Church, according to John Paul II, is reluctant and "disinclined" to grant annulments at all. In a verbatim quotation from Pius XII, 29 John Paul II noted:

As regards declarations of nullity of marriage, everyone knows that the Church is rather wary and disinclined to favor them. Indeed, if the tranquility, stability, and security of human intercourse in general demand that contracts be not lightly set aside, this is still more true of a contract of such importance as marriage, whose firmness and stability are necessary for the common welfare of human society as well as for the private good of the parties and the children, and whose sacramental dignity forbids that it be lightly exposed to the danger of profanation. 30

While it may be true, in a theoretical and general sense, that the Church is "disinclined" to favor annulments, still, when in practice a court is presented with a legitimate petition for nullity, it is duty bound to proceed with that case, and should demonstrate neither disinclination nor reluctance but should rather proceed promptly, courteously, and with pastoral concern. 31 Every petitioner has a right to this.

But even beyond this basic obligation of a court to adjudicate all bona fide cases presented to it, a court must, furthermore, respect and even champion the right of the parties to enter a _future_ marriage. That right exists, of course, only if the former marriage has been declared invalid, but it is precisely the court's obligation to clarify that right and to acknowledge it whenever and wherever it exists. The right to marry is a fundamental human right enjoyed by every person capable of it. 32 If, therefore, a former marriage was in fact invalid, then the parties in the case (assuming they are otherwise unimpeded) have a right to enter a future marriage. The declaration of canon 1058 to the effect that "all persons who are not prohibited by law can contract marriage" applies as much to them as to anyone else.

In practice, therefore, a typical tribunal is called upon repeatedly and perhaps even daily to respect both the right to a _future_ marriage and the presumed validity (with all the ramifications mentioned by Pius and John Paul) of a _former_ marriage. This, indeed, may be the most basic of all tribunal tensions.

There are, of course, other tensions 33 besides these ten to be found in the procedural law of the Church and in the work of its tribunals. But these ten can perhaps serve as a sufficient reminder of the need for constant vigilance on the part of the legislator so that the just, true and right balance will be achieved and maintained in every age and in every situation.

YESTERDAY'S SEARCH FOR BALANCE

In 1869, during the papacy of Pius IX, an article appeared in the _Acta Sanctae Sedis_ urging church courts not to be apprehensive about procedural technicalities. 34 Courts should proceed confidently to hear whatever cases come to their attention, said the anonymous author, without worrying about whether a missed technicality here or there might invalidate the whole proceeding. "In curias these days," he wrote, "practically all ecclesiastical trials can be handled in summary form" 35 and, in fact, they are so handled in the pope's own courts in Rome. 36 In marriage cases, of course, certain special procedures must be followed, like the presence of a defender of the bond and a mandatory appeal; 37 but as far as judicial solemnities are concerned, their actual use is, in general, left to the discretion of the judge. 38 The article closed, finally, with these words:

It is clear from all that has been said that the judicial canonical form is not difficult, since the form of summary judgments, by which practically all cases can be handled, amounts, when all is said and done, to that form which is demanded by the natural law and which is urged by equity. 39

The summary procedure of which the article spoke is no longer with us. It did, however, enjoy a long and highly successful history in church law and is a prime illustration of the Church 's search, over the centuries, for a balanced procedural law. The canonical origins of the summary procedure were principally in the early fourteenth century. 40 The procedure arose as a natural reaction to what was, at the time, a new rigidity in procedural law.

Prior to the Decree of Gratian (1141), as Charles Lefebvre has pointed out, judicial procedures were ruled by a mixed bag of somewhat vague principles stemming from Roman, Germanic, and canon law. This potpourri made applying the law tentative and difficult and, as a result, a _praxis paterna_ developed which tended to view the various procedural directives more as guidelines than as rigid rules that had to be followed exactly. 41

But when in the early twelfth century new methods were discovered of studying the texts of Roman law, the Roman procedural law suddenly became both quite clear and binding on church courts, and resulted in a totally untraditional procedural rigidity. 42 The Church responded to that rigidity by creating, as it were, an alternative process (which came to be called the "summary process") that would be more expeditious and more functional than the rigid and demanding ordinary process.

Boniface VIII (1294-1303), for example, allowed one case on record to be heard "sine strepitu iudicii et figura," 43 or, as we might say "without the pomp and circumstance of a judicial proceeding." Clement V (1305-1314) issued two famous decrees, _Saepe Contingit_ and _Dispendiosam_ , both of which used the same "sine strepitu" phrase, and which, together, became the acknowledged constitutional foundation of the summary process.

Major cases in those days were reserved to the pope. Many such cases were delegated out to courts around the world, often with the stipulation that they be heard "sine strepitu." When, however, the precise meaning of the "sine strepitu" clause began to confuse the courts, Clement V, in 1306, issued _Saepe Contingit_ in order to clarify exactly what the procedure involved. The decree read as follows:

It often happens that we delegate lower courts to hear cases, and in some of those cases we order those courts to proceed simply and easily and without the pomp and circumstance of a judicial proceeding. The precise meaning of these words, however, is a matter of considerable debate and there is some question therefore about how courts ought to proceed.

In the interest of settling as many of those questions as possible, we, by this decree, hereby declare as sacred and perpetual that a judge to whom we commit cases of this kind: need not necessarily demand a formal libellus or a joinder of issues; may proceed even on holidays in order to accommodate the needs of people who have been dispensed by the law; may shorten deadlines; may, to the extent that he can, shorten the trial by denying exceptions and dilatory and unnecessary appeals, and by restricting the contentions and disputes of the parties, advocates and procurators, and by limiting the number of witnesses.

A judge may not, however, abbreviate a trial by curtailing necessary proofs or legitimate defenses. Lest the truth remain concealed, furthermore, it is understood that the commissions of this kind neither the citation nor the taking of the usual oaths of good faith and intent and to tell the truth may ever be omitted. Also, since the pronouncement of the judge ought to be based on the original petition, the plaintiff's position and that of the respondent, if he or she countersues, should be made at the beginning of the trial either in writing or orally and should always be included in the acts. This is important for three reasons: so that the investigation may be based on those petitions, so that fuller certitude may be had, and so that the issue may be more clearly defined. And because traditional judicial practice has allowed the use of questionnaires, based on the statements of the parties, for the purpose of expediting the proceedings, as well as interrogatories for the purpose of obtaining clearer proofs, we, wishing to follow this practice, hereby declare that any judge deputed by us (unless he proceeds otherwise at the wish of the parties) may establish a deadline for submitting these questionnaires and interrogatories as well as for all other acts and defenses which the parties wish to be used in the case. After these articles have been submitted the judge may then assign an appropriate date for producing witnesses, with the understanding, however, that should the case be interrupted those witnesses, and documents as well, may be produced at a later date. The judge shall also question the parties either at their request or ex officio whenever equity recommends this.

Finally the judge, either standing or sitting, as he pleases, will hand down the written definitive sentence (with both parties having been cited for this action though not peremptorily) based on the petition, the proofs and other pleadings in the case. This he shall do even if, in his judgment, the evidence is not concluded.

All of which is also applicable to all those cases in which, through one or another of our constitutions, it is allowed that a judge may proceed easily and simply and without the pomp and circumstance of a judicial hearing. But if, in these cases, the solemn judicial order is, in fact, observed, in whole or in part, with the parties not disagreeing, the process will not, on that account, be either void or voidable. 44

Five years later, in 1311, the same pope issued _Dispendiosam_ , in which he spelled out the types of cases in which the summary process could be used. It read as follows:

In the interest of reducing the lengthy delays in court trials which sometimes result, as evidence has shown, from a scrupulous application of the judicial process to individual cases, we hereby decree that regarding not only future cases but present cases as well and even those cases pending appeal, a court may proceed simply and easily and without the pomp and circumstance of a judicial proceeding in the following cases: those regarding elections, postulations, provisions, dignities, personates, offices, canonicates, revenues or any ecclesiastical benefices, the exacting of tithes (including the possibility, after a proper warning, of coercing payment by ecclesiastical censure from those who are in arrears), and finally marriage and usury cases and all those touching on them in any way. 45

For the next six hundred years the two processes existed side by side in the Church: the ordinary process and the summary process. 46 More and more, though, the summary process prevailed and by 1869, as the article in the _Acta Sanctae Sedis_ noted, practically all cases ( _omnes fere causae_ ) were being heard in accord with it. 47

The 1869 article noted that there were only two types of cases that could _not_ be heard by the summary process, namely criminal cases of clerics, and cases involving beatification and canonization. 48 The process for these latter cases, however, has always been sui generis, and as regards the former the Congregation of Bishops and Regulars allowed, in an instruction of June 11, 1880, that even in criminal cases of clerics "processus confici potest formis summariis et absque iudicii strepitu, servatis semper regulis iustitiae substantialibus." 49

By the beginning of the twentieth century, therefore, the Clementine process was in effect the only process being used, while the more formal ordinary process had lapsed into desuetude. 50 So one might have logically expected that the legislator of the 1917 code would simply have codified the Clementine process and then incorporated it, as is, into the code. It was, after all, the Clementine process that was, for all practical purposes in possession.

In fact, however, that is not what happened. Instead, the legislator first resurrected, as it were, the solemn process and then took the two processes, the solemn and the summary, and made a synthesis or amalgam of them. Authors disagree as to whether the 1917 synthesis had more in common with the solemn or with the summary procedure; 51 but one thing is clear, and that is that the synthesis was considerably more solemn and formal than the Clementine process had been. It seems fair to say, therefore, that following the promulgation of the 1917 code the judicial procedure for the hearing of marriage nullity cases was more formal than it had been in at least six centuries and perhaps in the entire history of the Church.52

But there was more. Besides demanding extra formalities in judicial procedures, the Pio-Benedictine code introduced a new rigidity that was not unlike the rigidity of the thirteenth century, except perhaps that it was more centralized. No longer could it be said, as the 1869 _Acta_ article had said,

the words "canonical form" are highly equivocal and can have as many meanings as there are styles of judging in legitimate tribunals: for all tribunals customarily have their own special form of proceeding, either by reason of an old and legitimate custom or by reason of special laws imposed on them; all of which is especially evident in Rome itself: and all of these forms are worthily called "canonical." 53

After the Pio-Benedictine code was promulgated there was only one procedural form, namely the form that was entitled _De Iudiciis in Genere_ , which comprised canons 1556 to 1924. It was all quite formal and was so scrupulously applied by courts around the world that it paralyzed many of them. In the United States, for example, a survey of the Latin Rite dioceses showed that in the year 1968 (fifty years after the effective date of the code), 60 tribunals gave no sentences at all, 20 more tribunals gave only one, and 19 more gave only two; only 17 tribunals of the 130 reporting (out of a possible 145) gave more than five decisions and only 1 tribunal gave more than thirty. 54

In that same year, 1968, however, there was a reaction to this rigidity. Once again a balance was sought. In November of that year the National Conference of Catholic Bishops in the United States voted to study and comment on the newly drafted _American Procedural Norms_ , and in April of 1969 the same conference voted to propose the norms to the Holy See for approval. Approval was granted and the norms went into effect in the United States in 1970 and remained in effect for the next thirteen years.

The _American Procedural Norms_ were very much in the spirit of _Saepe Contingit_ and _Dispendiosam_. The content, of course, was quite different (it was a different age), but the spirit was very similar. It was a spirit in search of a judicial procedure that could be conducted "simpliciter et de plano, ac sine strepitu iudicii et figura." It was a spirit in search of balance.

When Paul VI issued _Causas matrimoniales_ in 1971, he, to some extent at least, passed that spirit on to the rest of the world; both of these documents, _Causas matrimoniales_ and (in a less direct way) the _American Procedural Norms_ , influenced the drafting of the new procedural law. As in the 1917 code, however, a marriage case in the 1983 code is perceived as a contentious case (c. 1425, §1, l°) and the marriage process follows, in general, the rules for the ordinary and contentious process (c. 1691).

The ordinary contentious process of the 1983 code incorporates most, if not all, of the specific relaxations of the old Clementine process, and in that sense, perhaps, it qualifies as an accurate reflection of the old summary process. 55 Two points, however, should be made here. First, since specific elements change with the times (and the times have changed a great deal since 1306), perhaps a more accurate test of whether the present ordinary contentious process should or should not be classified as "summary" is not to compare the specific elements of the 1983 document with those of the 1306 document, but rather to look to Wernz' description (the summary process contains only those elements required by the natural law and omits those required by human law) 56 or to Lega's (the summary process contains only the necessary elements and omits those that are merely useful), 57 and then to ask whether these descriptions really apply to our present ordinary contentious process . The second point is that when all is said and done, the real question is not whether the new procedural law of the Church is Clementine but whether it is clement. The question is not whether our law fits the letter of the old summary process; the question, rather, is whether our law is inspired with the spirit of balance, and is thus prepared to meet the present needs of our people.

TODAY'S SEARCH FOR BALANCE

Since practically all of the cases heard in church courts today are marriage cases, 58 the primary procedural need in our time is for a process that is truly suited to the hearing of these cases. The question, then, is whether our present procedural law is a reasonably effective instrument for investigating and adjudicating the many claims of marriage nullity that come to the attention of our courts.

The basic structure for the processing of marriage cases under the 1983 code is the same as that of the 1917 code. In both codes, marriage cases are ruled first of all by several hundred canons on trials in general and then by a handful of canons on marriage processes in particular.

In the years following the promulgation of the 1917 code, it was discovered that this system worked poorly. There were two basic problems with the system. The first was that local tribunals found it difficult to be trying constantly to apply the general procedural norms to marriage cases. Indeed, the stated purpose of the 1936 instruction, _Provida Mater Ecclesia_ , was precisely to correct this problem. The second paragraph of _Provida_ noted:

experience has shown that the judges of diocesan curiae, when they come to apply the procedural laws, especially the general ones, to particular cases, sometimes encounter many difficulties. 59

But besides the problem of having to apply the general norms to particular types of cases, like marriage cases, there was the second problem of having to apply a contentious process to non-contentious cases. Vittorio Bartocetti, in his commentary on _Provida_ , noted that there is a big difference between marriage cases and contentious cases, 60 and it was this difference, he said, that was the principal reason why local judges were having such problems prior to _Provida_. "There are" said Bartocetti

many difficulties in fitting rules, especially procedural rules, to particular cases. This will appear inevitable to anyone who thinks about the very special nature of a marriage process which, as we have seen, can not be perfectly identified with a purely contentious process . . . 61

Given the "many difficulties" mentioned by both _Provida_ and Bartocetti, and given the fact that the source of those difficulties had been identified as the basic structure of the 1917 procedural law, one would have expected that in revising that law, the 1983 code would have avoided repeating the same mistake. In fact, however, the _De Processibus_ coetus decided, in its wisdom, that all things considered, it would be best to follow the basic procedural format of the Pio-Benedictine code. 62

That decision of the coetus was, in the minds of many, a most unfortunate one, mostly because once again it has left the tribunals of the world, which deal almost exclusively with marriage cases, without a process specifically designed for those cases. The tribunals of the world are once again being asked to "make do" with a process that is fundamentally ill-suited to their work.

It could be argued, of course, that enough specific improvements have been made in the 1983 code to insure that there will be no repetition of the post-1917 experience. But the problem is more fundamental than that. The problem is that the whole tone of a contentious process is wrong for a marriage case, especially an open-and-shut one that is completely uncontested, and all the tinkering in the world is not going to correct that problem. True balance is never achieved that way.

It would seem, therefore, that the only solution now is for the Church to issue, just as it did in 1936, a new piece of legislation, legislation that will regulate the procedure to be followed by courts in adjudicating marriage cases. What is needed, however, is not just another _Provida_ , because as Doheney noted, _Provida_ was merely "a coordinated restatement of the rulings of the Code on matrimonial procedure." 63 _Provida_ , in other words, accepted and implicitly endorsed the premise that the contentious process and the matrimonial process were basically compatible, and so for the most part it merely took the existing contentious process and "matrimonialized" it , so to speak. That approach, however, left the underlying problem untouched, and _Provida_ therefore turned out to be an exquisitely crafted nonsolution. The tribunals of the world remained just as catatonic after it as they were before. This is not what we need today.

What we do need today is a complete procedural law designed from top to bottom for marriage cases. This does not mean, of course, that the great wisdom to be found in the Church's traditional process would be ignored. But it does mean that we could start with a clean slate, free of any artificial encumbrances imposed from without.

To draft a complete procedural law from start to finish with only marriage cases in mind would be no easy task. Such a law would have to achieve over and over again that often elusive and delicate balance between all those competing values and sometimes seductive extremes that pervade tribunal work, some examples of which were mentioned in the first section of this article. But starting from scratch would, at least, have the very great advantage of allowing the legislator first to take the full and exact measure of a marriage case (weighing its specific nature and all its complexities), and then to fashion for it a truly tailor-made process which marriage cases certainly deserve.

Such a process would, among other things, probably address such questions as: Should a marriage process be absolutely universal in every detail or should local circumstances be allowed to prevail in certain areas? What rights should be enjoyed by a respondent who, with the purely spiteful intention of depriving the petitioner of the sacraments, refuses to cooperate in a first instance proceeding? Are there any conditions under which a defender would be permitted to argue not _pro vinculo_ but _pro rei veritate_? Under what circumstances should a defender appeal a first instance affirmative decision? Is the ratification process (many feel it has already deteriorated into mere formalism) really workable? Is it really necessary to involve four judges and (usually) two defenders before any marriage case, even the simplest, can be finally settled? Is it really necessary for all judges and defenders to have scholastic degrees (there are indications already that some canon law schools, largely because of this requirement, are lowering their standards for the licentiate, the overall effect of which would certainly be damaging)? Should there be such a thing as curable nullity? Under what conditions should guardians and curators be appointed? Under what conditions can the caput nullitatis be changed, even minimally, during the course of a trial? Must the names of witnesses always be submitted to the parties? In what areas should tribunals be protected from civil subpoenas and suits? Does the respondent always have the right to read the sentence? Do the parties have an absolute right to appeal a first instance decision to the Rota? When is a third instance hearing permitted apart from the Rota?

These questions and a host of others should be answered by a new matrmonial process which would be drafted within the context of a consistent, balanced philosophy and theology regarding the sacrament of matrimony in general and the right of a spouse, in a particular instance, to allege the nullity of a given marriage. That and only that should be the complete and total context within which the process would be drafted.

With such a process in place, the situation would be not unlike that which existed prior to the 1917 code; i.e., we would have, for all practical purposes, two side-by-side processes: the ordinary process (which would be used rather rarely), and an extraordinary process (a marriage process, actually, which would be used in almost all cases heard by tribunals). 64 The objection could be raised that this would, in effect, put us back to the turn of the century, and, in a sense, that is true. But it is also true that a return to the past is not always bad.

Return to TOC

ENDNOTES

* This article also appears in the festschrift in honor of Luigi De Luca, La Tutela del sentimento religioso nella societa postindustriale.

1. 1983 code, cc. 1530 and 1562, §1.

2. X, 2, 22, 10.

3. Paul VI, allocution of January 28, 1978: _AAS_ 70 (1978) 182; _CLD_ 9: 921.

4. John Paul II, allocution of January 24, 1981: AAS 73 (1981) 232; CLD 9: 946. See also the allocution of February 4, 1980: _AAS_ 72 (1980) 175; _CLD_ 9: 937.

5. Paul VI, allocution of February 8, 1973: _AAS_ 65 (1973) 103; The Pope Speaks [ _TPS_ ] 18 (1973) 82.

6. John Paul II, allocution of January 26, 1984: _AAS_ 76 (1984) 647; _Origins_ 13/35 (1984) 584.

7. Benedict XIV, _Dei Miseratione_ , November 3, 1741: _Fontes_ n. 318, 1: 695-701.

8. Paul VI by _Causas matrimoniales_ , John Paul II by the 1983 code.

9. 1917 code, cc. 1576. §1, 1°; 1586, 1986 and 1987.

10. Paul VI, allocution of February 9, 1976: _AAS_ 68 (1976) 204-208; _CLD_ 8: 790-795.

11. Paul VI, allocution of January 28, 1978: _AAS_ 70 (1978) 183; _CLD_ 9: 922.

12. John Paul II, allocution of January 24, 1981: _AAS_ 73 (1981) 231; _CLD_ 9: 945.

13. Pius XII, allocution of October 1, 1942: _AAS_ 34 (1942) 341-342; _CLD_ 3: 609-6!0.

14. Paul VI, allocution of February 8, 1973: _AAS_ 65 (1973) 99; _TPS_ 18 (1973) 79.

15. 1917 code, cc. 1573, §4; 1574, §1; 1589, §1; 1657, §2.

16. The 1917 code did not expect synodal and prosynodal judges to hold scholastic degrees. Cf. c. 1574, § 1.

17. 1983 code, cc. 1420, §4; 1421, §3; 1435.

18. 1983 code, c. 1483.

19. 1 Cor. 6: 1-6.

20. Paul VI, allocution of February 4, 1977: _AAS_ 69 (1977) 152; _CLD_ 8: 110.

21. Lawrence G. Wrenn in _The Code of Canon Law: A Text and Commentary_ , ed. James A. Coriden et al. (New York/Mahwah: Paulist, 1985), pp. 991-992.

22. John G. Proctor, "Procedural Change in the 1983 Code: The Experience of the Ecclesiastical Provinces of California," _The Jurist_ 44 (1984) 475-476.

23. For some reflections by Paul VI on this topic, see his allocution of January 28, 1971: _AAS_ 53 (1971) 139; _TPS_ 16 (1971) 76.

24. _Corpus Iuris Civilis, Codex_ , III, XIII, 2.

25. C. III, q. 6, c. 16: C. XI, q. l, c. 15, 16, 45; X, II, 2, 8.

26. 1917 code, c. 1559, §3.

27. Paul VI, allocution of January 30, 1975: _AAS_ 67 (1975) 179-180; _TPS_ 20 (1975) 83.

28. 1983 code, c. 221.

29. Pius XII, allocution of October 3, 1941: _AAS_ 33 (1941) 423; _CLD_ 2: 456.

30. John Paul II, allocution of January 24, 1981: _AAS_ 73 (1981) 232; _CLD_ 9: 945-946.

31. See, for example, cc. 1453 and 1505, §1.

32. X, IV, 1, 23.

33. Should defenders, for example, argue "pro rei veritate" or "pro validitate matrimonii"? The answer, of course, is that they should do both. See Pius XII's allocution of October 2, 1944: _AAS_ 36 (1944) 285; English text in Lawrence Wrenn, _Annulments_ , 4th edition (Washington: CLSA, 1983), p. 134. Or, to take another, much more fundamental, example, should Christians be seeking a legal ruling in order to determine their freedom to marry, or should they rather be following the Spirit? St. Paul seemed to suggest a genuine tension here when he wrote, "If you are guided by the Spirit you are not under the law" (Gal. 5: 18). A vast body of literature has sought to find the balanced response to this question.

34. "De Potestate Ecclesiastica ludicandi deque Iudiciis Summariis," _ASS_ 5 (1869) 35-48.

35. Ibid., p. 39.

36. Ibid., pp. 43-46.

37. Ibid., p. 47.

38. Ibid.

39. Ibid., p. 48.

40. For its more remote origins in Roman and canon law see Charles Lefebvre, "Les Origines Romaines de la Procedure Sommaire aux XII et XIII s.," _Ephemerides Iuris Canonici_ 12 (1956) 149-197.

41. Charles Lefebvre, "De Iudicio Reddendo in Ecclesia (Lineamenta Historica)." _Monitor Ecclesiasticus_ 101 (1976) 226, 228.

42. Ibid., p. 228.

43. VI°, I, 6, 43.

44. Clem. V, 11, 2.

45. Clem. II, I, 2.

46. The summary process was exactly the process described by Clement V and has, indeed, been referred to as the "Clementine process." F. X. Wernz in his pre-code manual _Ius Decretalium_ (Prati, 1914), defined a summary trial as "a trial in which the solemnities required by the natural law are observed while those formalities which retard the expeditious pace of the proceeding and which are required only by human law are omitted" (5: 568). Wernz, pp. 570-572, listed six elements which could be omitted in the summary process (e.g., the written libellus) and five elements which had to be retained (e.g., necessary proofs), all of which were taken directly from _Saepe Contingit_.

47. Wernz, pp. 572-573, listed eight different categories of cases that could be handled by the Clementine process, including the cases of poor people, cases requiring an expeditious hearing because of some imminent danger, and of course, marriage cases.

48. _ASS_ 5 (1869) 39.

49. _Fontes_ 6: 1023, art. 10.

50. M. Lcga - Vittorio Bartocetti, _Commentarius in Iudicia Ecclesiastica_ (Rome, 1938) 2: 964, note 4.

51. Zenon Grocholewski, "Natura ed Oggetto del Processo Contenzioso Sommario," _Ephemerides Juris Canonici_ 34 (1978) 117-1 19.

52. It should also be noted that whereas before the 1917 code, marriage cases could be heard by a single judge (see, for example, _Causae Matrimoniales_ , nn. 6, 9, and 24 in _Fontes_ 7: 480, 482-483), the 1917 code itself (c. 1576, §I, 1°) required a college of three judges. Before the 1917 code, in other words, a single judge could follow the Clementine process; after the code, a college of judges had to follow the ordinary process. Perhaps it should also be remembered that in the United States and other mission territories, prior to 1884 when _Causae Matrimoniales_ was promulgated, marriage cases were often heard by a local priest, without any judicial formalities at all.

53. _ASS_ 5 (1869) 38.

54. Lawrence Wrenn, "The American Procedural Norms," _The American Ecclesiastical Review_ 165 (1971) 178.

55. Besides the ordinary contentious process, the 1983 code also contains an oral contentious process, which was indeed called the summary contentious process in the 1976 draft. The oral process, however, is both more liberal and more conservative than the Clementine process. It is more liberal in that it is extremely simple and expeditious; it is more conservative in that it can be utilized in only a few types of cases. In a 1979 meeting of the _De Processibus coetus_ , as a matter of fact, one of the consultors suggested that the oral process should be suppressed since it would hardly ever be used; _Communicationes_ 11 (1979) 248. For a thorough commentary on the oral contentious process see L. Madero, "El Proceso Contencioso oral en el Codex Juris Canonici de 1983," _Ius Canonicum_ 24 (1984) 197-291.

56. Sec above, note 46.

57. M. Lega, _Praelectiones de Iudiciis Ecclesiasticis_ (Rome, 1905) I: 65.

58. _Communicationes_ 10 (1978) 211; 11 (1979) 67, 80-81, 134, 152. See also Statistical Yearbook of the Church 1981 (Vatican City: Officium Statisticum), p. 335.

59. _CLD_ 2: 471; _AAS_ 28 (1936) 313.

60. Vittorio Bartocetti, _De Causis Matrimonialibus_ (Rome, 1950), p. 5.

61. Ibid., p. 12.

62. _Communicationes_ 6 (1974) 39-41; 10 (1978) 209-212 .

63. William Doheny, _Canonical Procedure in Matrimonial Cases: Formal Judicial Procedure_ (Milwaukee: Bruce, 1938), p. 3.

64. As observed above in footnote 55, it is anticipated that the oral contentious process will be used only minimally, at least for the foreseeable future.

\+ + +

Article #7

**An Historical Overview of Court Procedures in Marriage Cases, 1987**

_Procedures_ (a CSLA publication)

The Seven Stages

An Historical Overview of Court Procedures in Marriage Cases

The history of the involvement of Church tribunals in marriage cases is an interesting one and may be viewed under the following seven historical stages or eras:

1. The Early Centuries (1st - 3rd) – PASTORAL

a. In the early centuries of Christianity, Church courts dealt basically with two types of cases. The _first_ type, called a "contentious" case, involved a controversy between two individual Christians. According to St. Matthew's Gospel, Jesus himself laid down the basic procedural rules to be followed in such cases:

If your brother should commit some wrong against you, go and point out his fault, but keep it between the two of you. If he listens to you, you have won your brother over. If he does not listen, summon another, so that every case may stand on the word of two or three witnesses. If he ignores them, refer it to the church. If he ignores even the church, then treat him as you would a Gentile or a tax collector. I assure you, whatever you declare bound on earth shall be held bound in heaven, and whatever you declare loosed on earth shall be held loosed in heaven. 1

During the early centuries of Christianity these words of Jesus became the guiding principle of Church courts in dealing with all contentious cases.

The _second_ type of case handled by Church courts was the disciplinary case, i.e., the case in which a crime was committed, a crime that distressed the community; and the community then felt some legal action was in order. An example of this type of case is found in I Corinthians 5 where Paul tells the Christians in Corinth that they should sit in judgment of the incestuous man and expel him from their midst.

b. The process used in both contentious and disciplinary cases was basically the same. There would be an initial attempt at conciliation and, if that proved unsuccessful, the case would then go to court. Often there was a collegiate tribunal consisting of a bishop, a priest and a deacon. The Gospel directive about the two or three witnesses was always observed but in places like Greece, Egypt and Syria local judicial traditions were followed as well.

c. Some cases heard in Church courts dealt with marital matters, like the incestuous man at Corinth, but there were no marriage cases as such, i.e., cases dealing with the question of possible invalidity. Church courts were in place and could be utilized to judge marriage nullity cases if and when they arose but it's important to note that the procedures followed in Church courts at that time were designed not for marriage cases but for contentious and disciplinary cases.

2. The Age of Constantine (4th and 5th) - ROMAN

a. After Constantine converted, and Christianity became an approved religion with close ties to the Empire, Church courts tended to adopt more and more of the procedures found in Roman law, like for example, the petition, the citation and the appeal. Nevertheless certain local customs were still retained in various Christian centers.

b. Disciplinary cases, especially those involving heretics, were, by far, the most prevalent. The notion of marriage as being indissoluble was still not fully developed and marriage cases as we know them were still non-existent.

3. The Middle Ages (6th - 11th) - MUDDLED

a. With the fall of the Roman Empire, the invasion of Europe by the tribes from the north and their eventual conversion to Christianity, new legal traditions were introduced into the Church, especially the Germanic traditions of trial by ordeal and trial by compurgation. Today we tend to see these Germanic traditions as primitive, and as grossly inferior to Roman law, in that Roman law attached great importance to the judge and to the judge's reasonable decisions whereas Germanic law tended to diminish the role of the judge, attaching prevailing importance instead either to magic, chance or God (in the case of ordeal) or (in the case of compurgation) to the number of people who would swear in behalf of the parties.

But the differences between Roman law and Germanic law were, in fact, much more profound and pervasive than that. On this point Harold J. Berman writes:

Law was for the peoples of Europe, in the early stages of their history, not primarily a matter of making and applying rules in order to determine guilt and fix judgment, not an instrument to separate people from one another on the basis of a set of principles, but rather a matter of holding people together, a matter of reconciliation. Law was conceived primarily as a mediating process, a mode of communication, rather than primarily as a process of rule-making and decision-making.

In these respects, Germanic and other European folklaw had much in common with certain Eastern legal philosophies. In the Sufi tradition of the Middle East, one of the stories told of the Mulla Nasrudin depicts him as a magistrate hearing his first case. The plaintiff argues so persuasively that Nasrudin exclaims, "I believe you are right." The clerk of the court begs him to restrain himself, since the defendant is yet to be heard. Listening to the defendant's argument, Nasrudin is again so carried away that he cries out, "I believe you are right." The clerk of the court cannot allow this. "Your honor," he says, "they cannot both be right." "I believe you are right," Nasrudin replies.

Both are right, yet both cannot be right. The answer is not to be found by asking the question, Who is right? The answer is to be found by saving the honor of both sides and thereby restoring the right relationship between them. 2

In much the same way Germanic folklaw was interested not so much in determining objective rights or facts as it was in bringing harmony into individual and social relationships. It was a system vastly different from Roman law, and yet during the Middle Ages both systems were used sort of side by side, in an uneasy, awkward arrangement.

b. It also bears noting that during the course of these same centuries (to complicate the matter even further) the texts of Roman law were lost, and lawyers came then to have only a fragmented knowledge of the Roman legal system. This, of course, muddled the procedural picture even further.

c. During the Middle Ages, therefore, court procedures were influenced by a wide array of legal traditions - Roman, canonical, local and Germanic, many of which were poorly understood. And, as a result, the procedures that were actually followed in individual cases were, to a great extent, left to the discretion of the judge.

d. Perhaps there were some marriage cases heard in Church courts during this period but if so they were quite isolated and would have involved only members of the noble class. Certainly cases were brought before Church councils regarding such matters as degrees of invalidating consanguinity and affinity, and whether consummation was required for validity but marriage cases brought before local tribunals were, at best, few and far between, and little is known of court procedures as applied to marriage cases during this period. 3

e. The main point is this: that in the days prior to Gratian's Decree there were many, often conflicting legal traditions influencing the courts and consequently a great deal of confusion. As a result, a "praxis paterna" developed leaving judges considerable freedom in investigating and adjudicating cases. 4

4. The Early Classical Age (12th - 13th) - RIGID

a. When, during this period, the Roman law texts themselves were rediscovered, and interpretation of them was raised to an art, and when, coincidentally, the Church's influence was solidified under Gregory VII, Roman law became, hands down, the _major_ source for Church law and specifically for the procedural law to be followed in Church courts. A great scholarship developed in this field and, for a century or so, a period of extreme rigidity set in. Courts did a complete flip-flop. Whereas in the _tenth_ century courts followed a "praxis paterna," by the _thirteenth_ century, courts were following a strict "praxis canonica" which was in effect, an ecclesiastical adaptation of classical Roman law.

b. By this time, furthermore, marriage had come to be recognized first of all as indissoluble and secondly as one of the seven sacraments. During this period, therefore, it came to be widely accepted that marriage cases fell under the jurisdiction not of the civil courts but of the church courts, and there is considerable evidence during this period that marriage cases as we know them, were now being heard in the tribunals of the Church.

c. The main point is this: that during this Early Classical Age two things happened: 1) for the first time in the Church's history, cases of marriage nullity came to be heard in significant numbers and 2) the procedures followed in the courts in adjudicating those cases were highly technical and very rigid. This is the situation that prevailed throughout most of the thirteenth century.

5. The Later Classical Age (14th - 15th) - INFORMAL

a. Very early on in the fourteenth century there was a reaction on the part of Rome to this procedural rigidity. By way of background it is useful to remember that, following the great centralization of power under such popes as Gregory VII and Innocent III, local tribunals were competent to hear only minor cases. All major cases were reserved to the Pope. In practice, however, the Pope often delegated many of these cases back to the local tribunals. The _Corpus Iuris Canonici_ contains a decretal of Pope Boniface VIII (who died in 1301) in which he instructed a local court to hear a case "sine strepitu iudicii et figura" or, as we might say, "without the pomp and circumstance of a judicial proceeding". 5 This directive of Boniface VIII is the first known instance of a Pope saying, in effect, that the strict procedural law that had developed during the previous century or so might be dispensed with in a particular case.

b. Over the next few years it appears that several such dispensations were granted and in all cases the phrase "sine strepitu iudicii et figura" was used. There was, however, widespread confusion over what exactly that phrase meant so, in 1306, Pope Clement V issued the famous decretal _Saepe Contingit_ in which he spelled out the precise meaning of the phrase. The decretal reads as follows:

It often happens that we delegate lower courts to hear cases, and in some of those cases we order those courts to proceed simply and easily and without the pomp and circumstance of a judicial proceeding. The precise meaning of these words, however, is a matter of considerable debate and there is some question therefore about how courts ought to proceed.

In the interest of settling as many of those questions as possible, we, by this decree, hereby declare as sacred and perpetual that a judge to whom we commit cases of this kind: need not necessarily demand a formal libellus or a joinder of issues; may proceed even on holidays in order to accommodate the needs of people who have been dispensed by the law; may shorten deadlines; may, to the extent that he can, shorten the trial by denying exceptions and dilatory and unnecessary appeals, and by restricting the contentions and disputes of the parties, advocates and procurators, and by limiting the number of witnesses.

A judge may not, however, abbreviate a trial by curtailing necessary proofs or legitimate defenses. Lest the truth remain concealed, furthermore, it is understood, that in commissions of this kind neither the citation nor the taking of the usual oaths of good faith and intent, and to tell the truth may ever be omitted. Also, since the pronouncement of the judge ought to be based on the original petition, the plaintiff's position, and that of the respondent if he or she countersues, should be made at the beginning of the trial either in writing or orally and should always be included in the acts. This is important for three reasons: so that the investigation may be based on those petitions, so that fuller certitude may be had, and so that the issue may be more clearly defined. And because traditional judicial practice has allowed the use of questionnaires, based on the statements of the parties, for the purpose of expediting the proceedings, as well as interrogatories for the purpose of obtaining clearer proofs, we, wishing to follow this practice, hereby declare that any judge deputed by us (unless he proceeds otherwise at the wish of the parties) may establish a deadline for submitting these questionnaires and interrogatories as well as for all other acts and defenses which the parties wish to be used in the case. After these articles have been submitted the judge may then assign an appropriate date for producing witnesses, with the understanding, however, that should the case be interrupted, those witnesses, and documents as well, may be produced at a later date. The judge shall also question the parties either at their request or ex officio whenever equity recommends this.

Finally the judge, either standing or sitting, as he pleases, will hand down the written definitive sentence (with both parties having been cited for this action though not peremptorily) based on the petition, the proofs and other pleadings in the case. This he shall do even if, in his judgment, the evidence is not concluded.

All of which is also applicable to all those cases in which, through one or another of our constitutions, it is allowed that a judge may proceed simply and easily and without the pomp and circumstance of a judicial proceeding. But if, in these cases, the solemn judicial order is, in fact, observed, in whole or in part, with the parties not disagreeing, the process will not on that account, be either void or voidable. 6

c. Within another five years it had become apparent that this less formal procedure (which came to be called the Clementine procedure) was working quite well. Pope Clement therefore decided that, rather than give dispensations for its use on an ad hoc basis, he would grant a general permission for all courts to use this informal procedure in certain types of cases (which, in fact, included most cases). Clement did this in 1311 in his decretal _Dispendiosam_ , which reads as follows:

In the interest of reducing the lengthy delays in court trials which sometimes result, as evidence has shown, from a scrupulous application of the judicial process to individual cases, we hereby decree that, regarding not only future cases but present cases as well and even those cases pending appeal, a court may proceed simply and easily and without the pomp and circumstance of a judicial proceeding in the following cases: those regarding elections, postulations, provisions, dignities, personates, offices, canonicates, revenues or any ecclesiastical benefices, the exacting of tithes (including the possibility, after a proper warning, of coercing payment by ecclesiastical censure from those who are in arrears) and finally marriage and usury cases and all those touching on them in any way. 7

d. From the year 1311 on, then, practically all marriage cases were heard not by the formal process but by the Clementine or informal process. Indeed, at some times and in some places even the Clementine process was not followed but something less formal and judicial than that.

6. The Tridentine and Post Tridentine Age (16th - 19th) - CENTRALIZED

a. By the time of the Council of Trent (1563) marriage cases were, in some places, being heard by deans and archdeacons, sometimes without following a judicial process. The Council of Trent ordered that, in the future, all marriage cases would be heard only at the diocesan level, and, in all cases, the judicial procedure (not necessarily the formal but at least the informal or Clementine judicial procedure) should be followed. 8

b. Abuses, however, persisted and, in an effort to curb them, Pope Benedict XIV issued, on November 3, 1741, his famous constitution _Dei miseratione_. 9 Benedict was particularly upset by the facility with which annulments were being granted in his day. Oftentimes the respondent would not appear at the trial at all, so there would be no one to defend the marriage (there was, in those days, no one designated as a defender of the bond). Sometimes both parties would appear, but either the respondent would be in collusion with the petitioner, or he or she would simply not be interested in appealing higher and the marriage would then be declared null after a single hearing (there was, in those days, no mandatory appeal). As a result, according to Benedict, men and women alike were having their first, second, and even third marriages declared null and were, with the blessing of the Church, blithely entering still another.

_Dei miseratione_ attempted to put an end to all this. First it required that every diocese appoint a defender of marriage whose presence in every trial would be absolutely mandatory and whose duty it would be to defend the bond. Secondly, it required the defender to appeal every first instance affirmative decision.

It bears noting, however, that marriage cases were heard in those days not by three judges but by one. This, indeed, would remain the law of the Church until the 1917 code.

It further bears noting that the scandalous situation that existed prior to _Dei miseratione_ seems to have been due at least partly to the fact that there was, at the time, no process in Church courts that was specifically designed for the hearing of marriage cases. One of Benedict's principal contributions, therefore, was that, in introducing the office of defensor matrimonii and the notion of mandatory appeal, he was, for the first time, adding to the procedural law of the Church elements that referred specifically to marriage cases. Predictably it resulted in a significant improvement in the system.

c. In 1840 the Congregation of the Council issued a new Instruction, _Cum moneat_ , 10 designed to reinforce, clarify and amplify _Dei miseratione_. The United States, however, was still mission territory and in this country, therefore, marriage cases were, at least until 1884, still being settled in the rectory with no judicial formalities whatsoever.

d. In 1884 the Congregation for the Propagation of the Faith issued for this country the Instruction _Causae Matrimoniales_ 11 which, in effect, required that all marriage cases be heard by the diocesan tribunal using the Clementine process along with the adjustments required by _Dei miseratione_ (i.e., the presence of a defender and a mandatory appeal of an affirmative decision). _Causae Matrimoniales_ was the last significant document pertinent to marriage trials prior to the codification in 1917 of the Church's law.

7. The Age of the Codes (20th) - RIGID

a. By the turn of the century the ordinary process had lapsed altogether into desuetude, and only the summary process was being used, in marriage cases and almost all other types of cases as well.

b. In their pre-Code manuals, Lega and Wernz both devoted brief sections to the special procedures followed in marriage cases. Lega was satisfied with simply reprinting _Causae Matrimoniales_ , noting that it was practically the same as previous instructions issued for the Oriental Churches and for Austria. Wernz, on the other hand, wrote his own treatment on the procedures to be followed in marriage cases, in which he commented on such matters as the right to petition for an annulment, the competent judge (marriage cases, remember, were heard by a single judge) suitable proofs, the involvement of the defender and the mandatory appeal of an affirmative decision.

c. The 1917 Code made a kind of amalgam of the summary process and the old ordinary process, thereby making the process more formal than it had been in centuries. Among other things, it required, in C. 1576 §1, that all marriage nullity cases be heard by a college of three judges "with every contrary custom being reprobated and every contrary privilege revoked." But, like the pre-Code authors, it also devoted a separate section, namely, canons 1960-1992, to marriage trials in particular, in which it treated briefly the predictable issues of competence, court personnel, the right to petition, proofs, publication, the conclusion in causa, the sentence, the appeal, and, finally, certain clear cases, like prior bond, that could be proved by document and could therefore be handled informally.

d. By 1936 the Holy See, realizing that around the world very few marriage cases were being handled judicially by local tribunals, concluded that the thirty-three canons of the 1917 Code (canons 1960-1992) devoted specifically to marriage cases, were not sufficient to aid the local judge in applying the canons on trials in general (canons 1552-1924) to marriage cases. Accordingly, on August 15, 1936, the Holy See issued a new Instruction, _Provida mater_ 12, which consisted of two hundred forty articles that attempted, in effect, to rewrite general procedure as it might apply to marriage cases. _Provida mater_ was a valiant and, no doubt, well-intentioned effort to assist local judges, but the rigidity and complexity of the Instruction seemed to discourage judges even more, and thousands of _bona fide_ marriage cases continued to go unheard. In the United States, for example, where, by the late 1960s, there were an estimated five million divorced Catholics, only a few hundred first instance affirmative decisions were being given each year.

e. In an effort to correct this situation, the Canon Law Society of America endorsed, at its annual meeting in 1968, a simple set of norms, called the _American Procedural Norms_ , with the request that the National Conference of Catholic Bishops propose them to Rome for approval. Approval was given, effective July 1, 1970, first for a three-year experimental period, then in 1973 for one more year, and finally in 1974, until the new procedural law for the Church universal would be promulgated. The aim of the _American Procedural Norms_ was, on the one hand, to provide adequate defense of the marriage bond and thus avoid the scandalous sort of annulment that existed before _Dei miseratione_ , but, on the other hand, to provide to tribunals a procedure that could be carried out "simpliciter et de plano, ac sine strepitu iudicii et figura," and could thus enable them to give a hearing to the many thousands of people with legitimate grounds of annulment. The principal features of the _American Procedural Norms_ were the recognition of .the petitioner's residence as a source of competence, trial by a single judge, discretionary appeal by the defender. The _American Procedural Norms_ were dramatically successful. By the late 1970s, thirty thousand annulments a year were being granted, judicially and judiciously, by United States tribunals. Although that figure was still only one-half of one percent of the number of divorced Catholics in the country (six million by that time), the _American Procedural Norms_ were, nevertheless, of benefit to a great many people.

f. Americans were not the only ones interested in simplified procedures. There was considerable interest around the world in providing for a more expeditious handling of marriage cases, and on March 28, 1971, Pope Paul VI issued, for the universal Church, the Apostolic Letter _Causas matrimoniales_ which was not as liberal in its provisions as the _American Procedural Norms_ , but which did modify the prescriptions of the 1917 Code in the areas of competence, the number of judges, the use of lay people, and the appellate procedures.

By this time, of course, the work of revising the 1917 Code, specifically its procedural law, was well under way and when the 1976 schema on procedural law appeared, it contained, as was expected, the modifications introduced by _Causas matrimoniales_. Most of these have, in turn, been incorporated into the 1983 Code.

g. The 1983 Code, however, still requires that marriage cases be processed in accord with procedural rules that were designed for contentious cases. This unfortunate and apparently artificial arrangement, which seems to favor the system over the needs of people, prevents, in the opinion of this author, Book VII of the 1983 Code (unlike the Code as a whole) from moving on to Stage Eight which would be characterized as PASTORAL.

Return to TOC

ENDNOTES

1. Mt. 18: 15-18.

2. Harold J. Berman, _Law and Revolution_ (Cambridge, Harvard University Press, 1983), p. 78.

3. George H. Joyce, Christian Marriage (London, Sheed and Ward, 1933) pp. 214.-236.

4. Charles Lefebvre "De ludicio Reddendo in Ecclesia (Lineamenta Historica)," _Monitor Ecclesiasticus_ 1972, 11-111, p. 228.

5. VI°, 1, 6, 43.

6. Clem.V, 11, 2.

7. Clem. II, 1, 2.

8. Session XXIV, ch. 20.

9. _Fontes_ I, n. 318, 695-701.

10. _Fontes_ VI, n. 4069, 345-350.

11. _Fontes_ VII, n. 4901, 479-492.

12. _CLD_ 2, 471-529.

\+ + +

Article #8

**The Place of Law in the Church, 2001**

The Jurist

Respecting Freedom – Partnering with Prophets

The Place of Law in the Church

Lawrence G. Wrenn *

Thirty years ago a best selling novel told the story of a man named Chance who had never gone to school and who could neither read nor write. From the time he was a little boy he had worked as a gardener in a large house in Manhattan. His mother had died in childbirth and his father was a "pater ignotus" as we used to say, so Chance was an orphan. The story is set in about 1970 at which time Chance is probably in his forties. When Chance isn't gardening he's watching television, and television is literarily his only contact with the outside world. In his entire life he has never once set foot outside that Manhattan house with the big garden out back.

But then the owner of the house dies and Chance is forced to leave the house, so he takes the owner's valise, packs it up with some of the owner's clothes, walks out the front door and down that street in New York. He only goes a short distance, however, when he is injured slightly when a chauffeur-driven limousine backs into him. The limo is owned by Benjamin Rand, the chairman of the board of a major financial institution and friend of the president of the United States. And within the next few days Chance gets to meet the Secretary General of the U.N., the Soviet ambassador to the United States and the president himself. Most of the time Chance doesn't have the faintest idea what these people are talking about. But when he is asked a question he responds with some folksy observation about gardening like "In a garden growth has its season;" and everyone thinks he's speaking metaphorically and insightfully about the economy; so very quickly Chance comes to be regarded as a brilliant, decisive leader; exactly what the country and the world need.

The book, as many of you recognize, was written by Jerzy Kosinski and was called _Being There_.1 Well, when Father Steve Happel telephoned a couple of months ago to talk about the Quasten lecture, it was this book that came immediately to mind. I felt that some gigantic mistake had been made in selecting the likes of me to receive this distinguished honor. Especially, perhaps, on this hundredth anniversary of Father Quasten's birth. But there is, of course, one qualification I do have and that is "Being There." I've been active in the field of church law for almost forty-five years now; so I've been "being there" for a long time and, thank God, I'm still here and still enjoying it, and am more grateful than I can tell you for your extraordinary kindness in extending to me this honor.

But more importantly, the selection of a canonist as this year's lecturer and medalist is, I trust, a demonstration of the School's esteem for the discipline of canon law in general and more especially perhaps for the hundreds of canon lawyers, each in his or her own little corner of the Church in America, who are working, in various ways, to obtain justice for their people. One cannot help but think, furthermore, that it does honor to our beloved Jim Provost who did so much both for this University and for the field of canon law throughout the world.

So let me try to offer a few thoughts this afternoon on the place of law in this wonderful Church of ours.

The Grand Inquisitor

In 1879 Feodor Dostoyevsky wrote his last novel, _The Brothers Karamazov_. In the course of that novel Ivan Karamazov tells his younger brother, Alyosha, a story which is loosely based on St. Matthew's account of the temptation of Christ 2 where the devil urges Jesus first to turn stones into bread, then to bank on the angels for protection against injury, and finally to assume power over all the kingdoms of the earth. The story, which Ivan calls "The Grand Inquisitor", takes up only about twenty pages in a novel of almost 900 pages, 3 but it has, as it were, taken on a life of its own, and has long been considered a masterpiece. Lionel Trilling, for example, wrote: "Of 'The Grand Inquisitor' it can be said almost categorically that no other work of literature has made so strong an impression on the modern consciousness or has seemed so relevant to virtually any speculation about the destiny of man . . . No other modern literary work has speculated on human fate in terms so grandiose." 4

The story is set in Seville, Spain during the height of the Inquisition when, as Ivan says, "fires were lighted every day to the glory of God, and in the splendid _auto da fe_ , the wicked heretics were burnt." One day, in the midst of all these executions, Jesus came, to be with his beloved people. This opening scene about the coming of Jesus, despite its length, deserves, I think, to be quoted more or less in full. It sets the stage for everything that follows, and, except for some minor editing, it goes like this:

He came softly, unobserved, and yet, strange to say, every one recognized Him . . . . The people are irresistibly drawn to Him, they surround Him, they flock about Him, follow Him. He moves silently in their midst with a gentle smile of infinite compassion. The sun of love burns in His heart, light and power shine from His eyes, and their radiance, shed on the people, stirs their hearts with responsive love. He holds out His hands to them, blesses them, and a healing virtue comes from contact with Him, even with His garments. An old man in the crowd, blind from childhood, cries out, 'O Lord, heal me and I shall see Thee!' and, as it were, scales fall from his eyes and the blind man sees Him. The crowd weeps and kisses the earth under His feet. Children throw flowers before Him, sing, and cry hosannah. 'It is He -- it is He!' all repeat. 'It must be He, it can be no one but Him!' He stops at the steps of the Seville cathedral at the moment when the weeping mourners are bringing in a little open white coffin. In it lies a child of seven . . . . At the urging of the crowd the mother says to him, 'If it is Thou, raise my child' and the man says to the child 'Maiden, arise' and the maiden arises.

There are cries, sobs, confusion among the people, and at that moment the cardinal himself, the Grand Inquisitor, passes by the cathedral. He is an old man, almost ninety, tall and erect, with a withered face and sunken eyes, in which there is still a gleam of light. He is not dressed in his gorgeous cardinal's robes, as he was the day before, when he was burning [almost a hundred of] the enemies of the Roman Church -- at this moment he was wearing his coarse, old, monk's cassock. At a distance behind him come his gloomy assistants and slaves and the 'holy guard.' He stops at the sight of the crowd and watches it from a distance. He sees everything; he sees them set the coffin down at the feet of the mysterious one, sees the child rise up, and his face darkens. He knits his thick gray brows and his eyes gleam with a sinister fire. He holds out his finger and bids the guards take Him. And such is his power, so completely are the people cowed into submission and trembling obedience to Him, that the crowd immediately make way for the guards, and in the midst of deathlike silence they lay hands on Him and lead Him away. The crowd instantly bows down to the earth, like one man, before the old inquisitor. He blesses the people in silence and passes on. The guards lead their prisoner to the close, gloomy vaulted prison in the ancient palace of the Holy Inquisition and shut Him in it. The day passes and is followed by the dark, burning 'breathless' night of Seville. The air is 'fragrant with laurel and lemon.' In the pitch darkness the iron door of the prison is suddenly opened and the Grand Inquisitor himself comes in with a light in his hand. He is alone, the door is closed at once behind him. He stands in the doorway and for a minute or two gazes into His face. At last he goes up slowly, sets the light on the table and speaks.

'Is it Thou? Thou'? But receiving no answer, he adds at once, 'Don't answer, be silent. What canst Thou say, indeed? I know too well what Thou wouldst say. And Thou hast no right to add anything to what Thou hadst said of old. Why, then, art Thou come to hinder us? For Thou hast come to hinder us, and Thou knowest that. But dost Thou know what will be tomorrow? I know not who Thou art and care not to know whether it is Thou or only a semblance of Him, but tomorrow I shall condemn Thee and burn Thee at the stake as the worst of heretics. And the very people who have today kissed Thy feet, tomorrow at the faintest sign from me will rush to heap up the embers of Thy fire. Knowest Thou that? Yes, maybe Thou knowest it,' he added with thoughtful penetration, never for a moment taking his eyes off the Prisoner.

In reading these opening lines one senses immediately that what we have here is a dramatic, explicit confrontation between good and evil, between God and Satan, and the eyes of the two protagonists tell all. Light and power shine from the eyes of Jesus and their radiance stirs the hearts of the people, while the Inquisitor's eyes are sunken, and though initially there is a gleam of light in them, the gleam quickly turns into a sinister fire. So, the issue is joined; the battle has begun. And ultimately, as we shall see, at least according to one reading of the story, it will be a battle over jurisdiction in the Church, over who will rule and how. It will, in short, be a battle over the quality and place of law in the Church.

But let me continue with the story. After the initial face off, the Grand Inquisitor then goes on to condemn Jesus for the way Jesus handled what we, but not the Grand Inquisitor, call the three "temptations" of Christ. The Grand Inquisitor calls them not 'temptations' but 'questions,' and he regards those questions as beyond brilliant. "The statement of those three questions" he says "was itself the miracle," and he asks Jesus, "dost Thou believe that all the wisdom of the earth united could have invented anything in depth and force equal to the three questions which were actually put to Thee then by the wise and mighty spirit in the wilderness?" . . . For in those three questions, he says, "the whole subsequent history of mankind is, as it were, brought together into one whole."

According to the original gospel account, of course, the devil is portrayed as trying to seduce Jesus with three very personal temptations. The Inquisitor, however, gives an entirely different spin to the event. For him they were not three personal temptations at all; they were, rather, three amazing, cosmic opportunities which, if only they had been seized, would have won for Jesus the allegiance of every person ever to be born and enabled him to achieve an Earthly Paradise for every human being. Jesus, however, because of his naively exaggerated regard for human freedom and human dignity, failed to seize the moment. The one-time opportunity was lost and history was thereby changed forever.

As regards the first question about turning the stones into bread, if only Jesus had agreed to do that, then, says the Inquisitor to Jesus, mankind would "run after Thee like a flock of sheep, grateful and obedient, though forever trembling, lest Thou withdraw Thy hand and deny them Thy bread." If only Jesus had done that, he would have held the human race in the palm of his hand and they would have done whatever he asked. Jesus, however, rejected that offer because he did not want to buy people's faith or bribe them. He wanted to leave them free to follow him or not. And he trusted that, with God's grace, every person is capable of being his disciple.

With the second question the devil suggested that Jesus could throw himself from the pinnacle of the temple and count on a miraculous and flamboyant rescue by angels. Had Jesus done that, says the Inquisitor, people would have flocked to him because they are "foolish children" who love miracles more than they love God himself, but again, says the Inquisitor to Jesus, "Thou wouldst not enslave man by a miracle, and didst crave faith given freely, not based on miracle" but "I swear, man is weaker and baser by nature than Thou hast believed him --Thou Who hadst loved him more than Thyself."

And finally Jesus is offered dominion over all the kingdoms of the earth but that too he rejects because he has no wish to be a Caesar or a Ghengis-Khan who subdues people and treats them like dogs. "Hadst Thou taken the world and Caesar's purple" said the Inquisitor, 'Thou wouldst have founded the universal state and given universal peace." But Jesus knew that there was no true peace without human freedom and human dignity, and he rejected this offer of Satan as well.

And so, says the Cardinal Inquisitor, since Jesus made those fateful and foolish decisions, we (meaning the Roman Catholic hierarchy) we have had to correct the work of Jesus (that's the word the Cardinal uses several times: "correct") we have had to correct the work of Jesus. And the Cardinal Inquisitor says to Jesus, "We have taken the sword of Caesar, and in taking it, of course, have rejected Thee and followed _him_ " (meaning Satan). "Listen," he says, "we are not working with Thee but with _him_."

In correcting the work of Jesus, what they came up with was the Spanish Inquisition; which was law at its worst, a law where those accused did not know who their accusers were and so could not confront or challenge them, where the accused were obliged under oath to incriminate themselves. 5 where many informants were themselves criminals, where there was no counsel and no defense and where people were tortured and burned at the stake by the hundreds. As represented in the story of "The Grand Inquisitor," furthermore, the whole philosophy of the "correctors," those who were correcting the work of Jesus, was to deceive the people, whom they regarded as "weak, pitiful children," and to persuade them, (and this is a quote) "to persuade them that they will only become free when they renounce their freedom to us and submit to us." This, according to Ivan's story (or poem, as he called it), this was the entire basis and foundation of their legal system.

Well this, in brief, is the legend of the Grand Inquisitor. But what specifically is it saying to us about the place of law in the Church? Four things, I think.

First and most fundamentally it is clearly, although implicitly, accepting the truth of the axiom _ubi societas, ibi ius_. It is, in other words, recognizing the fact that in every society there will always be some kind of law. Secondly it is making the point that where good law is lacking, bad law will rush in to fill the vacuum; indeed, within an ecclesial society, where good Christian law is absent, the devil's law will quickly take its place. Thirdly (and this is by far the most important point) it is telling us that, for Jesus, the absolutely indispensable principle upon which law should be based is this: that, come what may, whatever the consequences, human dignity and legitimate human freedom are always and everywhere to be protected. According to the legend, indeed, it was precisely Christ's refusal to dilute or skirt this sacred principle that accounts for the human race being where it is today, with our dignity and freedom more or less intact, it is true, but at the same time, with so much suffering, hunger, violence, squabbling religions, and rampant destruction of the environment plaguing the world.

Nevertheless, in the grand scheme the fact is that preserving human dignity and human freedom is, on balance, more important, more essential than eradicating the negative consequences that necessarily flow from that freedom. And right between the lines of the Karamazov story our fourth point is being made, namely, that when the Church establishes its system of governance, it must have always before its eyes that principle that Jesus considered so inviolable: that, come what may, human dignity and legitimate human freedom are always and everywhere to be protected. For without that principle in place the Church's law will be a disastrous failure and will only impede our witnessing to the Gospel.

What then can be said about the state of the Church's law at this turn of the twenty-first century? Does our present law, our Code of Canon Law adequately respect and honor the freedom and dignity of the human person? Given the fact that, from the very beginning of the process of revising the prior code, it was understood that the teachings of the Second Vatican Council would be a principal guide and inspiration in the drafting of the new code, and given the fact that the council, especially perhaps in its final document, _Dignitatis humanae_ , spoke so eloquently about human freedom and dignity, one would expect that those teachings would indeed be incorporated into the new code. And so they were. Not in every instance, perhaps, but in general, I think, to an acceptable degree.

Listen, for example, to just a few of the canons in the 1983 code that speak of human freedom and dignity. All of these canons, incidentally, are brand new with the 1983 code; none of them was found in the 1917 code.

c. 208: From their rebirth in Christ, there exists among all the Christian faithful a true equality regarding dignity and action by which they all cooperate in the building up of the Body of Christ according to each one's own condition and function.

c. 212 §3: According to the knowledge, competence, and prestige which they possess, (the Christian faithful) have the right and even at times the duty to manifest to the sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful, without prejudice to the integrity of faith and morals, with reverence toward their pastors, and attentive to common advantage and the dignity of persons.

c. 218: Those engaged in the sacred disciplines have a just freedom of inquiry and of expressing their opinion prudently on those matters in which they possess expertise, while observing the respect due to the magisterium of the Church.

c. 386 §2: Through [more] suitable means (the diocesan bishop) is firmly to protect the integrity and unity of the faith to be believed, while nonetheless acknowledging a just freedom in further investigating its truths.

c. 768 §2. (Those who proclaim the divine word are) to impart to the faithful the doctrine which the magisterium of the Church sets forth concerning the dignity and freedom of the human person, the unity and stability of the family and its duties, the obligations which people have from being joined together in society, and the ordering of temporal affairs according to the plan established by God.

These five canons, just a sampling of the many canons that touch on the subject, illustrate, I hope, the Church's deepening awareness and appreciation of the crucial position that the freedom and dignity of the human person must occupy in the law of the Church. The Church seems well aware now that a profound respect for the human person, for every human person, is an absolutely essential ingredient in the making of good Christian law.

But even good law, good Christian law, is, of course, only one element, one dimension of the Church. For a closer look at where that element fits into the larger picture, we turn our attention now to an interesting "odd couple" in the Church, namely, the law and the prophets. Let me first offer a few examples from the Gospels.

The Odd Couple

St. Matthew, in his account of the Transfiguration, described Jesus as taking Peter, James and John up a high mountain by themselves, and once there, the face of Jesus shone like the sun and his clothes became white as light, and then suddenly Moses and Elijah were there, conversing with Jesus. 6 Moses and Elijah: Moses, as has often been pointed out, representing the law; Elijah representing the prophets. The law and the prophets.

Jesus once told a story about a rich man who ignored the plight of a poor man whom he passed daily outside his gate. Both died and their fates were reversed. The rich man then asked Abraham to send someone to warn his family lest they end up as he did, saying: "If someone were to rise from death and go to them, then they would turn from their sins." But Abraham said: "If they will not listen to Moses and the prophets (Moses once again representing the law, if they will not listen to the law and the prophets), they will not be convinced even if someone were to rise from the dead." 7 The law and the prophets.

In the Sermon on the Mount Jesus said, "Do not think that I have come to abolish the law or the prophets. I have come not to abolish but to fulfill." To fulfill the law and the prophets. And then Jesus immediately launches into that long series of "You have heard it said -- But I tell you," during which he calls us to a higher standard regarding such matters as killing, adultery, divorce, revenge, and general respect for our neighbor. 8 But this clearly was only one of the ways that Jesus was fulfilling the law and the prophets.

And one final example. One day some Pharisees gathered around Jesus, and one of them, a scholar of the law, tested Jesus by asking: "Teacher, which commandment of the law is the greatest? Jesus said to them, "You shall love the Lord your God with all your heart, with all your soul, and with all your mind. This is the greatest and the first commandment. The second is like it. You should love your neighbor as yourself." And then Jesus says, "On these two commandments depend the whole law and the prophets." 9

The law and the prophets. An odd couple if ever there was one. Like television's Tony Randall and Jack Klugman, or the film's Jack Lemon and Walter Matthau. The law and the prophets are the Church's own Felix and Oscar. In what sense? Well, like Felix (which incidentally means "the happy one") the law searches for neatness and preciseness whereas prophecy is too passionate to be concerned about such matters. The law also favors a relatively tight ship and going by the book on the ground that it is fairer and more even handed, while prophecy favors a looser, more adaptable structure in order to meet new challenges and to remain more fully open to the Spirit. The law tends to overlook or accept the faults of the society (in this case, the Church) and to concentrate instead on its basic health and soundness, whereas prophecy tends to be outspoken about failings within the group, in the earnest hope of improving it. The law accentuates authority; prophecy accentuates freedom. The law is stable; prophecy is dynamic. The law is characterized by patience; prophecy by a sense of urgency.

But perhaps the most important thing about the law and the prophets is not their oddness but their coupleness. They are, it is true, an _odd_ couple, but above all they are a _couple_. They respect and support each other and even bring out the best in each other. And it would be a sad Church indeed, as Jesus, I think, was telling us, were one to dominate the other.

There are many examples of how law and prophecy approach an issue differently but let me mention just one, the college of cardinals, an institution that has been around for a thousand years or so. The law, that is to say, the 1983 Code of Canon Law, devotes eleven canons to the subject. These canons outline the nomination, rights, duties, ranks, obligations, and privileges of cardinals. There is no fault finding here. Basically the institution is accepted as a useful one, and the canons seem to want to keep it that way. They strive only to provide some helpful regulations. 10 Prophecy, on the other hand, sees problems. In his book, _The Reform of the Papacy_ , Archbishop John Quinn pointed out that there are three major problems with the college of cardinals, first, that it is a college within a college and, in practice, often makes the rest of the college of bishops a college of second rank; second, that the relationship between cardinals and the patriarchs of the Eastern Churches is awkward and potentially offensive to the patriarchs; and third, that, viewed ecumenically, the limiting of voting eligibility to cardinals in a papal election would undoubtedly prove a considerable hurdle to the union of all Christians, especially for those churches where lay persons customarily participate in the election of bishops. 11

Clearly both of these approaches, both the law and the prophets, provide a great service to the Church, and, at the same time, they actually complement each other. The tendency, perhaps, is to concentrate excessively on the differences between law and prophecy, on their oddness, so to speak, but the fact is that they are a real couple.

Much the same point was eloquently made in the famous section eight of _Lumen gentium_ , the first paragraph of which absolutely begs to be quoted here. It reads:

Christ, the one Mediator, established and ceaselessly sustains here on earth His holy church, the community of faith, hope, and charity, as a visible structure. Through her He communicates truth and grace to all. But the society furnished with hierarchical agencies and the Mystical Body of Christ are not to be considered as two realities, nor are the visible assembly and the spiritual community, nor the earthly Church and the Church enriched with heavenly things. Rather they form one interlocked reality which is comprised of a divine and human element. For this reason, by an excellent analogy, this reality is compared to the mystery of the incarnate Word. Just as the assumed nature inseparably united to the divine Word serves Him as a living instrument of salvation, so, in a similar way, does the communal structure of the Church serve Christ's Spirit, who vivifies it by way of building up the body (cf. Eph. 4: 16).

While it is true that, strictly speaking, this paragraph from _Lumen gentium_ is talking about the coupling or integration not of the law and the prophets but of "the visible assembly" and "the spiritual community", nevertheless the principle stated in the paragraph, it seems to me, also applies, perhaps even equally, to the law and the prophets, so that they too, as _Lumen gentium_ says: "form one interlocked reality."

Which brings to mind a kind of vision that Pope John Paul II had some years ago. What he envisioned was a triangle, what he called "an ideal triangle" of books. At the top, of course, was sacred scripture, "the eternal book of the Word of God, the center and heart of which is the Gospel." This naturally is at "the summit of transcendent eminence", said the pope. But at the two lower angles of the triangle were the acts of the Second Vatican Council on the one side and the Code of Canon Law on the other. And these two books, said the pope, these two books are "a very valid and significant combination." 12

So the pope calls them "a very valid and significant combination" but they could also be called, I think, an odd couple. Because obviously the code represents the law whereas the documents of Vatican II represent the voice of prophecy. The pope's vision, therefore, is, if I may say so, almost a variation on the appearance of Moses and Elijah at the Transfiguration event.

Concluding Remarks

Let me conclude finally with some summary observations:

l. Law is necessary in the Church, not only because _ubi societas, ibi ius_ , but also because law, as one half of the law-prophecy team, is one of the two great dimensions of ecclesial life.

2. Law plays a modest role in the life of the Church, first in the sense that it finds both its foundation and its justification in theology; and secondly in that the extent or amount of law in the Church should be as limited as possible 13 in accord with the example set by the apostles and elders at the Council of Jerusalem when they said, "It has been decided by the Holy Spirit and by ourselves to impose no burden on you beyond what is necessary." 14

3. Church law should always be respectful of human dignity and human freedom by being "animated by charity and ordered to justice", and when it does that, says Pope John Paul II, "the law lives, il diritto vive." 15

Return to TOC

ENDNOTES

* Judge, Metropolitan Tribunal, Archdiocese of Hartford. Lecture given December 6, 2000 on the occasion of his reception of the Johannes Quasten Medal.

1. Jerzy Kosinski, _Being There_ (New York: Grove Press, 1970).

2. Matthew 4: 1-11.

3. Feodor Dostoyevsky, _The Brothers Karamazov_ (New York: Grosset and Dunlap, undated). "The Grand Inquisitor" appears on pages 270-291.

4. Lionel Trilling, _The Experience of Literature_ (Garden City, N.Y.: Doubleday, 1967) 482.

5. Compare this situation with canon 1728 §2 indicating that an accused in a criminal process is not bound to confess the delict and that an oath cannot be administered to him or her.

6. Matthew 17: 1-4.

7. Luke 16: 30-31.

8. Matthew 5.

9. Matthew 22: 34-38.

10. Canons 349-359.

11. John R. Quinn, _The Reform of the Papacy_ (New York: Crossroad, 1999) 140-153.

12. _Communicationes_ 15 (1983) 16.

13. Rosalia Castillo Lara, "Il posto del diritto canonico in una visione conciliare della Chiesa," in _Iustus Iudex_ (Essen: Ludgerus Verl ag, 1990) 9-14.

14. Acts of the Apostles 15: 28.

15. _Communicationes_ 15 (1983) 15.

\+ + +

Article #9

**A New Procedural Law for Marriage Cases ?, 2002**

The Jurist

Two Schema for the New Law

A New Procedural Law for Marriage Cases?

Lawrence G. Wrenn

**I.** _The True Nature of the Marriage Process_

Pope John Paul II, in his 1996 allocution to the Roman Rota, addressed the fundamental and cardinal issue of what he called "the true and genuine nature of marriage nullity procedures." 1

Central among the pope's observations was the fact that, while marriage case procedures are, in accord with the Latin canon 1691 and the Eastern canon 1376, set in the broader framework of contentious procedures, nevertheless the marriage case procedure and the contentious procedure are in fact quite different from each other in several areas. For one thing a contentious case ordinarily results in a res iudicata (1983 code, c. 1641) whereas a marriage case never becomes a res iudicata (1983 code, c. 1643). As His Holiness observed, in a marriage case, "it is not a question of conducting a process to be definitively resolved in a constitutive sentence." 2 Secondly, in a contentious case the right claimed by one party is contested by another whereas in a marriage case the only real right involved is not a contestable one. On this point the pope said:

Moreover, it must be remembered that the spouses, who in any case have the right to allege the nullity of their marriage, do not however have either the right to its nullity or the right to its validity. In fact, it is not a question of conducting a process to be definitively resolved in a constitutive sentence, but rather of the juridical ability to submit the question of the nullity of one's marriage to the competent church authority and to request a decision in the matter. 3

Thirdly, given the nature of a marriage case as essentially an investigation into the marital status of the two persons involved, the contestation in such cases is not always a personal one, as it is in a contentious case, but is often only a procedural one. On this point the pope said:

Looming over all is the publicistic nature of the process of marriage nullity and along with that its juridic specificity of ascertaining the status of the parties, which is _the procedural contestation_ of an objective reality, namely the existence of a bond that is either valid or null. 4

And finally, in terms of specific procedures, the pope noted that, given the considerable differences in the object of the two trials, certain legal practices commonly observed in contentious cases should not be followed in marriage cases. As regards the marriage procedure the pope said:

It must never be forgotten that it is a question of a good that cannot be disposed of at will and that the ultimate goal is the determination of an objective truth, which also concerns the common good. From this standpoint, such procedural acts as the proposal of certain "incidental questions" or delaying, irrelevant, pointless actions or those which even impede the attainment of this goal, cannot be allowed in a canonical trial.

In this overall framework, it thus seems presumptuous to have recourse to complaints based on alleged injuries of the right to defense as well as to attempt to apply to the judgment of marital nullity procedural norms which are valid in other sorts of procedures but are completely inappropriate to cases that never become a _res iudicata_. 5

Pope John Paul II's basic thesis, namely that the procedures to be followed in adjudicating marriage cases should be and in fact are _sui generis_ , is not new. Vittorio Bartocetti, for example, in his book _De Causis Matrimonialibus_ , published in 1950, wrote:

We must not forget that [marriage] cases differ greatly from contentious cases because in the latter there is always a plaintiff and a defendant who are in positions antithetical to each other: the defendant possesses something that the plaintiff claims belongs to him; the plaintiff affirms something; the defendant denies it, etc. Also in marriage cases very often there is not one spouse who claims that the marriage is null while the other denies it, but often both spouses agree in asserting that the marriage had been and therefore is null, and both wish to be relieved of the yoke of indissolubility. From this absence of a proper _contestatio litis_ (c. 1726), i.e. a contradictory between the parties, flow extremely important consequences in terms of the whole makeup of the process, which should necessarily be regulated by norms that are very different from those which apply in a purely contentious process and which are based on a contradictory of the parties, for without this contradictory a true lawsuit cannot come into existence or even be conceived. 6

Bartocetti's position unfortunately never gained full acceptance in the canonical world and in the first CLSA commentary on the 1983 code I found it necessary to write:

It should be noted further that, although marriage cases (which constitute practically the entire work load of our tribunals) have their own special norms and are thus treated under "Certain Special Procedures," they are nevertheless considered as falling under the general category of _contentious_ cases (c. 1425, §1, l°).

That marriage cases should automatically be considered contentious is itself a contentious matter. Of course every trial, by its very nature, does involve a legal controversy. A legal controversy, however, may be either contentious (where one of the parties, e.g., the defender of the bond , contends the matter) or non-contentious (where none of the parties but only a presumption of law disputes the allegation). Many American and other canonists have contended for years that those marriage cases in which neither the respondent nor the defender opposes an annulment should be considered not as contentious, but simply as declarative of a person 's official status in the Catholic community.

This is not merely a semantic problem but rather an important question of taxonomy. If, on the one hand, the point of a marriage case is to determine whether a person is married or single "in the eyes of the Church" (and therefore whether that person is or is not free to remarry in the Church and receive the sacraments), then the trial can be conducted with a minimum of formalities, a maximum of privacy and confidentiality, and a suitable, discretionary defense of the marriage bond. But, if on the other hand, a marriage case is automatically considered a contentious matter (even where both parties and even the defender of the bond agree that the marriage was certainly and clearly invalid), then legal formalities and publicity, i.e., publicness, will be increased and the defense of the bond will tend to be artificial.

It is this taxonomical dispute that is at the heart of the procedural differences between the two canonical camps in the Church today. 7

Also, a 1986 _Jurist_ article, after noting that the _De processibus_ coetus of the Commission for the Revision of the Code decided not to draft a special process for marriage cases but instead to rely primarily on the contentious process 8, offered the following comment:

That decision of the coetus was, in the minds of many, a most unfortunate one, mostly because once again it has left the tribunals of the world, which deal almost exclusively with marriage cases, without a process specifically designed for those cases. The tribunals of the world are once again being asked to "make do" with a process that is fundamentally ill-suited to their work 9

Pope John Paul II, at any rate, having pointed out in his allocution that the specific characteristic of the matrimonial procedure is the determination of one's marital status, made it clear that "this qualification cannot [i.e. must not] be obscured in the actual conduct of the case by the fact that a nullity procedure is set in the broader framework of contentious procedures"; 10 and accordingly he called for "corrective measures by the legislator." 11

**II.** _The_ **Primum Schema**

The initial corrective measures were not long in coming. On February 24, 1996, just about a month after the pope's allocution, 12 Cardinal Sodano, the Secretary of State, wrote to the Prefect of the Signatura, the Dean of the Rota, and the President of the Council for the Interpretation of Legislative Texts (Law Council) advising them that, under the auspices of the Signatura, an instruction on matrimonial procedure was to be drafted by an interdicasterial commission composed of six members, two from each of the three dicasteries. Frans Daneels and Charles Scicluna were the members then proposed by the Signatura, Raffaelo Funghini and Josef Huber by the Rota, and Urbano Navarrete and Velasio De Paolis by the Law Council. On March 15 Cardinal Sodano wrote that His Holiness had approved the proposed members of the commission, and the work of drafting a procedural law for marriage cases began. 13

Between May 20, 1996 and February 22, 1999 the commission met forty six times and produced a first draft of a procedural law for marriage cases consisting of 308 articles arranged under fifteen titles. It printed out to eighty three pages. The fifteen titles in somewhat abbreviated form were as follows: the competent forum, tribunals, the discipline to be observed, the parties, the introduction of a case, the cessation of an instance, proofs, incidental cases, publication of the acts, pronouncements of the judge, appeal, impugning of a sentence, the documentary process, adnotations, and judicial expenses. 14

This first draft or _Primum Schema_ was then sent out to the 106 conferences of bishops around the world, and when asked by our conference to offer observations on the Schema, I replied, on July 9, 1999, as follows:

I am writing about the Primum Schema of the Matrimonial Process. Let me begin by noting two things: first that I am equally aware both of the estimable erudition and scholarship of the drafters of the document as well as my own limitations and shortcomings, and secondly that my own approach to law in the Church is quite different from theirs. While this justifiably and strongly favors their approach over my own, I am nevertheless sufficiently emboldened by your request for my observations on the Schema to state them as clearly as I can and, for what they are worth, to send them on to you.

I would make three basic points:

1. _The Primum Schema is not, as I see it, an appropriate style of legislation for a Christian community._

It is understood that this is, of course, what the Catholic Church is: a community. Or better, a community of communities, a _communitas communitatum_. Article 8 of _Lumen Gentium_ , for example, refers to the Church as a "community of faith, hope and charity", and Article 32 of _Gaudium et spes_ reads:

As God did not create people for life in isolation, but for the formation of social unity, so also "it has pleased God to make people holy and save them not merely as individuals, without bond or link between them but by making them into a single people, a people which acknowledges Him in truth and serves Him in holiness." So from the beginning of salvation history He has chosen people not just as individuals but as members of a certain community. Revealing His mind to them, God called those chosen ones "His people" (Ex 3,7-12), and even made a covenant with them on Sinai.

This communitarian character is developed and consummated in the work of Jesus Christ. For the very Word made flesh willed to share in the human fellowship. He was present at the wedding feast at Cana, visited the house of Zacchaeus, ate with the publicans and sinners. He revealed the love of the Father and humanity's sublime vocation in terms of the most common of social realities and making use of the speech and the imagery of plain everyday life. Willingly obeying the laws of His country, He sanctified those human ties, especially family ones, which are the source of social structures. He chose to lead the life proper to an artisan of His time and place.

In His preaching, He clearly taught the sons and daughters of God to treat one another as brothers and sisters. In His prayers He pleaded that all His disciples might be "one." Indeed as the Redeemer of all, He offered Himself for all even to the point of death. "Greater love than this no one has, that one lay down his life for his friends" ( _John 15, 13_ ). He commanded His Apostles to preach to all peoples the Gospel's message that the human race was to become the family of God, in which the fullness of the Law would be love.

As the firstborn of many and by the giving of His Spirit, He founded after His death and resurrection a new community composed of sisters and brothers all those who receive Him in Faith and in Love. This He did through His Body, which is the Church. There everyone, as members one of the other, would render mutual service according to the different gifts bestowed on each.

This solidarity must be constantly increased until that day on which it will be brought to perfection. Then, saved by grace, people will offer flawless glory to God as a family beloved of God and of Christ their Brother.

When Tertullian wrote his Apology in the year 197, he noted, in Chapter 39, how different the Christian community was from other, more selfish societies. "We are", he said, "a body knit together by a common religious profession, by unity of discipline and by the bond of a common hope. . . . Though we have our treasure chest . . . these gifts are, as it were, piety's deposit fund. For they are not taken from there and spent on feasts . . . but to bury poor people, to supply the needs of children who are destitute of means and parents, and of old persons confined to the house. . . . One in mind and soul, we do not hesitate to share our earthly goods with one another."

In 1845, in the novel, _Sybil_ , Benjamin Disraeli, like Tertullian before him, observed the marked difference between a community on the one hand and what he called an "aggregation" on the other. Disraeli wrote,

There is no community in England; there is aggregation, but aggregation under circumstances which make it rather a dissociating than a uniting principle . . . It is a community of purpose that constitutes society. Without that men may be drawn into contiguity but they still continue virtually isolated . . . . In great cities men are brought together by the desire of gain. They are not in a state of cooperation, but of isolation, as to the making of fortunes; and for all the rest they are careless of neighbors. Christianity teaches us to love our neighbor as ourself; modern society acknowledges no neighbor.

In 1887, six years after Disraeli's death, Ferdinand Toennies, the great sociologist of community, wrote his famous _Gemeinschaft und Gesellschaft_ , which has been translated into English as _Community and Society_ , though perhaps Disraeli's "aggregation" is a better translation of _Gesellschaft_ than "society." Toennies, at any rate, seems almost to have echoed Disraeli when he wrote:

The theory of the _Gesellschaft_ deals with the artificial construction of an aggregate of human beings which superficially resembles the _Gemeinschaft_ insofar as the individuals live and dwell together peacefully. However, in _Gemeinschaft_ they remain essentially united in spite of all separating factors, whereas in _Gesellschaft_ they are essentially separated in spite of all uniting factors.

Toennies took a great interest in the two different styles of law which were characteristic of those two types of social structures and noted that they were "diametrically opposed systems of law."

Perhaps the difference can be summarized this way. In _Gemeinschaft_ , law is the natural rich fruit of the tree of justice. The law is trim and spare. It never weighs heavy or becomes a burden. It testifies to the spirit of trust that flourishes among the members. The law of a community is not so much something which the members need as it is the written epitome of the spirit of justice which resides in that community. It is not picayune or petty. It presumes a degree of trust among the brothers and sisters and it expects that all of the members will honor it as normative and binding. And at any rate, the law is always made for the people and never the people for the law. In Utopia, for example, St. Thomas More pointed out that:

They have few laws, and such are their institutions that they need few. They strongly censure other nations, which cannot get along without an infinite number of laws and interpretations. They think it highly unjust to bind men by laws that are too numerous to be read and too obscure to be readily understood . . . . But in Utopia every one is skillful in the law. For the laws are very few, as I have said, and the plainest interpretation is the fairest. All laws, according to their view, are promulgated for the single purpose of teaching each man his duty. Subtle interpretations teach very few for there are few who can understand them: the simpler and more obvious sense of the law is clear to all. If laws are not clear, they are useless for the masses of people who need their guidance most. There might as well be no laws at all as to have laws which only men of great ability and long training can interpret.

In _Gesellschaft_ , however, the law is something quite different. Because when the spirit of justice goes out from a community (because there is no community), then the law becomes distrustful and frantically attempts to legislate fairness by plugging up every imaginable loophole. It scurries around trying to protect everyone's rights and thus keep the society intact; and the law itself becomes so absurdly complex and top-heavy that it unwittingly contributes to the toppling over of the whole structure. And in the end it helps to destroy the very thing it set out to save or at least to salvage.

All law is, of course, an ordering, an ordinatio. But _Gemeinschaft_ can not be ordered by _Gesellschaft_ law. Because they belong to different orders. And what is order in one area can be disorder in another. Planting, for example, is a very neat type of order, very mathematical, with the seeds all in a row and equidistant within each row. And planting is fine for corn. Wheat, on the other hand, must be sown, not planted. It must be scattered helter-skelter in order to grow properly. Scattering helter-skelter does, of course, appear to be disorderly. It seems to involve a lack of order. But for wheat it is, in fact, the best, most productive kind of order. Occasionally one might be tempted to plant wheat, especially considering the possibility that an enemy might sow weeds in among the wheat, but it is a temptation to be overcome. Because, ultimately, to impose planting order on wheat would only stifle the wheat. And so it is with the law. To impose the neat, tidy centralized _Gesellschaft_ type law on _Gemeinschaft_ is to subject the _Gemeinschaft_ to an alien, uncongenial law that stifles the community. It appears orderly but, in fact, is a disorder, and a disservice to the community. This is a temptation to be resisted. If we are to build community, we must have a law that allows community to flourish.

To my eyes the Primum Schema, with its 308 articles (often subdivided many times into multiple paragraphs and/or numbers) looks suspiciously like _Gesellschaft_ legislation. Instead of saying with St. Paul, "Can it be that there is no man among you wise enough to decide between members of the brotherhood . . ?" the Primum Schema seems to say, "Presumably left to yourselves, there is no one among you wise enough to settle equitably the cases that come before you, but perhaps, if you follow these 308 rules to the letter, perhaps then you will be able to come up with a just solution ."

Maybe St. Paul was naive in thinking that there would always be enough wise men in every Christian community to settle, according to their own procedures, whatever disputes might arise. But more likely Paul was shrewd enough to realize that, when a community is not permitted to administer justice by itself and in its own way, then it ceases to be a community; and the community is the essential thing, because the community is the Church. Certainly there are advantages to having every judge the world over conduct his hearings in exactly the same way. It's very neat. But at what price neatness? If we must sacrifice or even weaken the local communities for the sake of universal neatness, then we are literally selling our soul. If nothing else, this is planting when we should be sowing. It is stifling community when we should be allowing it to flourish.

_Gesellschaft_ legislation in a community is, it seems to me. an act of treason, a radical infidelity to the nature of the community and a crime against the people. It tends to stifle community, to inhibit the spirit and to perpetuate the artificial society. It can come to no good. It may seem to impose an order on things. It may even seem necessary to some. But in the end it will destroy us. And the one essential thing - our community. _Gesellschaft_ legislation is fine for _Gesellschaft_. But it is lethal for _Gemeinschaft_.

It seems ironic, does it not, that in 1869, at the very beginning of the First Vatican Council, when our ecclesiology was, at least in theory, far less communitarian than it is today, our procedural law was far more communitarian. In that well-known article that appeared in the _Acta Sanctae Sedis_ that year, entitled "De Potestate Ecclesiastica Iudicandi deque Iudiciis Summariis" (ASS 5, 35-48) the author, in speaking about the "canonical form", that is to say, the procedural laws regulating the processes followed in ecclesiastical tribunals, noted:

The words "canonical form" are highly equivocal and can have as many meanings as there are styles of judging in legitimate tribunals: for all tribunals customarily have their own special form of proceeding, either by reason of an old and legitimate custom or by reason of special laws imposed on them; all of which is especially evident in Rome itself; and all of these forms are worthily called "canonical."

And the author concluded that article by saying:

It is clear from all that has been said that the judicial canonical form is not difficult, since the form of summary judgments, by which practically all cases can be handled, amounts, when all is said and done, to that form which is demanded by the natural law and which is urged by equity.

This, it seems to me, is genuine _Gemeinschaft_ law. Is there really any reason why the Church cannot do in 1999 what it did in 1869?

2. The Primum Schema is a minimalist implementation of the original mandate.

In his 1996 allocution to the Roman Rota, Pope John Paul II spoke of the "true and genuine nature of the procedures regarding marriage nullity." In that allocution the Pope portrayed the marriage case as _sui generis_ and as something of a hybrid. On the one hand, he would say, marriage cases are, except for canons 1671-1685, ruled by the canons on trials in general and on the ordinary contentious trial, but on the other hand, "it seems presumptuous . . . to attempt to apply to the judgment of the nullity of a marriage procedural norms which are valid in other sorts of procedures but are completely inappropriate to cases that never become a _res iudicata_." On the one hand, says the Pope, a marriage case involves the public good, but, on the other hand, there is a "need to evaluate and weigh every individual case, taking into account the individuality of the subject and at the same time the particular nature of the culture in which the person grew up and lives." On the one hand, according to the allocution, the marriage case is set in the broader framework of contentious procedures but, on the other hand, this should not obscure the fact that the juridic specificity of a marriage case is the determination of one's status, which involves a "procedural contestation" of an objective reality, namely whether the marriage is or is not valid, and therefore certain procedural acts that might impede the attainment of that goal should not be allowed.

Finally the Pontiff observed,

Since the abstract law finds its application in individual, concrete instances, it is a task of great responsibility to evaluate the specific cases in their various aspects in order to determine whether and in what way they are governed by what the law envisages. It is precisely at this stage that the judge's prudence carries out the role most its own; here he truly _dicit ius_ , by fulfilling the law and its purpose beyond preconceived mental categories, which are perhaps valid in a given culture and a particular historical period, but which cannot be applied a priori always and everywhere and in each individual case.

It was in light of all this complexity and ambiguity that the Pope announced, as part of this allocution to the Rota of January 22, 1996, that specific norms for marriage cases should be drawn up. Within two months of that announcement an interdicasterial commission was then established to implement this mandate.

The Primum Schema drafted by this commission has not, it seems to me, captured the various and complex attributes that should characterize the matrimonial process as outlined by His Holiness. It has instead emphasized the contentious aspects of the process and seemingly overlooked most of the nuances. There do seem to be a few cosmetic nods recognizing the special nature of a marriage case, as in articles 218 and 303 §2, but I counted more than two dozen instances where the schema set out to seal off apparent loopholes or to patch up tiny cracks in the legal wall (articles 11 §§2 and 3, 13, 14, 33, 35 §§2 and 3, 36, 43 §4, 46, §1, 56 §§4, 5 and 6, 61, 73 §1, 105 §2, 199, 216 §2, 238, 250, 3°, 251, 257 §3, 268 §2, 279 §2 and 292 §1). For the most part, it should be noted, the problem is not so much in the substance of these articles. The problem rather is in the emphasis on a certain procedural correctness and uniformity that reduces to an absolute minimum the areas of discretionary judgment consigned to the judge, thus depriving the judge of a rightful dignity and independence, and effectively removing from him the ability to use his knowledge of both the local culture and the particular circumstances of the case, in order to truly _dicere ius_.

Because of the peculiar and heterogeneous nature of the marriage case, the Holy Father's mandate to produce a procedure that would incorporate all of its sometimes disparate parts was not an easy one to complete; and the Primum Schema, with its uneven attention to the sundry aspects of the process, has, it seems to me, insufficiently and incompletely met the challenge.

3. While exquisitely crafted, the Primum Schema does not meet the needs of active tribunals and the people they serve.

Many tribunals these days receive three, four, five hundred, even a thousand, petitions a year (while, incidentally, the number of priests available to work on these tribunals dwindles). Increasingly a significant number of these cases involve marriages that were extremely short in duration, lasting perhaps only weeks or even days, and often involving severely impaired people who were grossly lacking any commitment or discretion. In short, the type of case referred to in article 56 §5 where "nothing against the nullity of the marriage can be reasonably proposed."

One wonders whether, as part of this enterprise, a special procedure could be provided for the hearing of such cases. Often times, after all, the invalidity of a marriage is apparent even before the trial begins or certainly very early on in the proceedings, after which time, observing the usual procedures seems a pure formality and a waste of valuable time.

The objection to permitting such a procedure, I suppose, is that the privilege would be abused and tribunals would utilize the special procedure even in cases where the question of validity should be subjected to a more thorough and systematic investigation.

This, however, is a dangerous and self-defeating attitude. Because there is an "engendering power of expectancy" at work. Distrustful laws tend to develop untrustworthy judges and people, who are forever trying to circumvent the law. When, however, the law puts its trust in the wisdom and prudence of the judge and allows the judge a healthy degree of responsibility, the judge will, by and large, rise to the occasion. Which is a clear benefit to the entire judicial system and to the people it serves.

But even in regard to those cases where invalidity is not evident and where the standard procedures should, in general, be followed, the Primum Schema does not serve tribunals well. For two reasons. First because this piling on, this overabundance of laws that characterizes the Primum Schema tends to promote juridical formalism and to turn judges into functionaries (and functionaries are notorious for their lack of imagination and creativity - qualities that are essential for a judge). And secondly the Primum Schema does not make sufficient room for sound local practice that enables tribunals to provide justice for its people in a reasonably expeditious manner.

Drafting a balanced procedural law for matrimonial cases is an immense challenge. But the drafters, it seems to me, must be knowledgeable in the law and experienced in the work, and the final product should be of a style that is congenial to a Christian community, in accord with the complexity outlined by Pope John Paul II in his 1996 allocution, and user-friendly. Not every good idea has to be legislated.

I realize that these observations are somewhat foreign to what has been the Catholic style of legislating over the past several decades, but hope that, in spite of that, they will not be entirely useless.

Thus concludes the critique by just one reviewer from just one of the 106 conferences of bishops. The lnterdicasterial Commission undoubtedly received dozens of opinions on the _Primum Schema_ , many of which, no doubt, were considerably more laudatory of the _Schema_ than was this one. Archbishop Zenon Grocholewski, the Prefect of the Signatura, had sent the _Primum Schema_ to the various conferences of bishops in a letter dated "The Ides of March, 1999", and requested that the conferences return their _vota_ to the Signatura by August 31, 1999 15; and once all the _vota_ or opinions had been received, studied, and digested by the members of the Commission it was time to begin the drafting of a second schema. In mid-November, however, the sixty-year-old Archbishop Grocholewski was named Prefect of the Congregation for Catholic Education and was replaced at the Signatura by the seventy-year-old Archbishop Mario Pompedda. Needless to say, speculation became rampant soon thereafter as to what if any impact this might have on the work of the Interdicasterial Commission as it set out to write a second draft of a procedural law for marriage cases.

**III.** _The_ **Novissimum Schema**

Almost three years later, on July 12, 2002, the Secretariat of State forwarded what was called the _Novissimum Schema_ to the dicasteries of the Holy See that had an interest in the matter.

The _Novissimum Schema_ was drastically different from the _Primum Schema_. It contained only forty seven articles, and had it been printed in the same format as the earlier schema, it would have printed out to only ten or twelve pages. The forty seven articles were grouped under the following eleven titles: the competent forum, tribunals, the parties and their procurators and advocates, the introduction of a case, the cessation and suspension of an instance, proofs, incidental cases, the publication, discussion and definition of the case, the execution of the sentence, judicial expenses, and special circumstances.

The highlights of the _Novissimum Schema_ , especially those that derogated from the prescripts of the 1983 code, were as follows: 1) the domicile of the petitioner is recognized as a source of jurisdiction even when both parties do not live in the territory of the same conference of bishops, provided that the respondent's judicial vicar, after hearing the respondent, gives his consent. 2) The office of judicial vicar may be held by a deacon. 3) When neither the judicial vicar nor his adjutant is able to preside over a collegiate tribunal, this role may be exercised by any judge, even a lay judge provided the other two judges are clerics. 4) The tribunal is obliged to provide a stable of procurators and advocates to assist parties who wish to avail themselves of their services. 5) "When it is impossible to obtain other proofs regarding the merits of the case, the declarations of both spouses, or even of only one, can constitute full proof of the invalidity of the marriage, provided that the complete credibility of the parties is established from other circumstances, supporting factors and indications in the case" (Art. 35 §2). 6) After the publication of the acts, the advocate and the defender are to write their briefs at the same time, without the defender having the right to a second animadversion. And 7) an appeal of an affirmative decision is not required when the following four conditions are met: the case was decided in first instance by a collegiate tribunal, the college does not require an appeal, neither the parties nor the defender oppose the affirmative decision, and the moderator of the tribunal (the diocesan bishop for a diocesan tribunal; the group of bishops or the bishop designated by the group for a regional tribunal) gives consent.

Clearly both the legislative style and the whole tenor of the _Novissimum Schema_ differed vastly from the _Primum Schema_ , and if the _Novissimum Schema_ were promulgated more or less as is, it would introduce significant changes into the procedure s followed by many tribunals in the adjudication of marriage cases.

The _Novissimum Schema_ was issued as a confidential document, but by the autumn of 2002 several American canonists had become aware not only of its existence but of some of its norms as well. There was, furthermore, considerable optimism in certain circles that the document would, in fact, be promulgated in the near future, perhaps even before the end of the year. As the winter wore on, however, and no word was heard, reality set in, and there was a growing realization that the _Novissimum Schema_ had probably met with sufficient opposition among the consultants 16 to render its promulgation, at least its expeditious promulgation, precarious at best.

It was, of course, generally understood that it was Cardinal Pompedda 17 who was the chief architect of and primary stimulus behind the _Novissimum Schema_. But more specifically it was learned from a canon law professor in Rome that, after Archbishop Pompedda had been appointed Prefect of the Signatura, he had judged the _Primum Schema_ to be unacceptable, and had then established a new commission composed entirely of prelates; and it was this new commission, under the direction of Cardinal Pompedda, that had produced the _Novissimum Schema_.

To the disappointment of many, however, it was learned in the spring of 2003 that, at least according to an apparently well-founded rumor, the _Novissimum Schema_ was ultimately not accepted "by the higher authority."

And if this is true, then we are, as they say, back to square one or perhaps square two. At any rate the future of a new procedural law for marriage cases, as called for by His Holiness in January, 1996, is, as of this writing (in July, 2003), shrouded in uncertainty. Which is why the title of this brief article ends with a question mark. 18

Return to TOC

ENDNOTES

1. _AAS_ 88 (1996) 773. For an English translation of the allocution see _Origins_ 25:36 (February 29, 1996) 615-616.

2. _AAS_ 88 (1996) 775. Emphasis the author's.

3. _AAS_ 88 (1996) 775.

4. Ibid., 774. Emphasis the author's.

5. _AAS_ 88 (1996) 775.

6. Vittorio Bartocetti, _De Causis Martimonialibis_ (Rome, 1950) 5.

7. _The Code of Canon Law: A Text and Commentary_ , ed. James A. Coriden et al. (New York: Paulist, 1985) 947-948.

8. _Communicationes_ 6 (1974) 39-41; 10 (1978) 209-212.

9. Lawrence G. Wrenn, "In Search of a Balanced Procedural Law for Marriage Nullity Cases," _The Jurist_ 46 (l986) 621.

10. _AAS_ 88 (1996) 775.

11. Ibid.

12. The date of the allocution was January 22, 1996..

13. _Commissio Interdicasterialis "Per il primo progetto di una istruzione sui processi matrimoniali" 1996-1999. Primum Schema, i._

14. Ibid., ii-vi.

15. Signatura protocol number 26792/96 VAR .

16. The consulting process for the _Novissimum Schema_ seems to have been considerably more limited than it was for the _Primum Schema_.

17. He was made a cardinal in February, 2001.

18. The late and much admired Jim Provost always appreciated and respected a good question, and in the classroom he was a master at responding to one. I suspect, however, that, were he still with us, he would be a bit impatient with this one.

\+ + +

Article #10

**The Life Death and Possible Resurrection of the Summary Process, 2007**

The Jurist

The Summary Process

The Life, Death and Possible Resurrection

**of the Summary Process** 1

Lawrence G. Wrenn *

First, I want to thank Monsignor Ferme and the faculty of the School of Canon Law for inviting me to give this lecture; and I am grateful too that the School is sponsoring this lecture series in memory of our dear friend, Jim Provost, whom we remember as an outstanding scholar, of course, but also as a gentleman, a servant/priest, a _mensch_ , a _magister optimus_ , a man of prayer, a supportive friend, and always a true, real, genuine Christian.

My topic deals with procedural law and more specifically with what was, for some six hundred years, known as the summary process. We begin with some historical background that helps to explain the birth and development of the summary process.

I. Three Defining Compilations

It is, I think, accurate to say that in the long history of canon law there have been three defining moments, three landmark compilations of law that permanently changed the legal landscape, three watershed collections of law that substantially transformed not only the way we conceived of law in the Church but also the way the members of the Church were affected by its law; and those three events are: 1) The Decree of Gratian, 2) the Decretals of Gregory IX, and 3) the first codification of law as promulgated by Pope Benedict XV.

1. The Decree of Gratian.

The _Decree_ or _Decretum_ of Gratian dates from 1140 or thereabouts. Its formal title is _Concordia Discordantium Canonum_ which is usually translated _A Concordance of Discordant Canons_ , though it could also, I suppose, be called _Settling Antinomies_ , antinomy being our word for conflicting laws. This, at any rate, is what Gratian did. He gathered together more than three thousand rulings 2 from popes, bishops and church councils, pointed out where two or more rulings were in conflict and then, by argumentation from reason, suitability or authority, tried to settle the conflict and advise the reader which ruling was to be preferred. It was an amazing piece of work; and because of it canon law came, within a few years of the publication of the _Decretum_ , to be taught no longer as part of theology but rather as a distinct discipline. 3 As James Brundage has pointed out:

The dialectical argumentation of the _Decretum_ is what made Gratian's work far more attractive to teachers of canon law than any available alternative. It is precisely because of the book's complex and sometimes subtle argumentation that canon law teachers within a decade or two of its appearance overwhelmingly adopted it as the fundamental textbook of their subject. It marked such a crucial break with earlier canon law collections that it has become customary to count its appearance as the beginning of the so-called 'classical' period of canon law (1140-1375), the period when canon law attained its definitive shape and most enduring characteristics. 4

And the great Stephan Kuttner famously referred to Gratian as "the father of the science of Canon Law" noting that

with his outstanding work [i.e. the _Decretum_ ], a comprehensive canonical collection and a didactic text book in one, the canonist's activity changed its shape from a more or less imperfect collecting of the manifold sources into a scientific reasoning on, and interpretation of the sources. Canon Law became a system of concepts and rules, a juridical, self-supporting science by the writing and teaching of this eminent man; upon the foundations he laid, a school of Canon Law arose for the first time in the history of the Church, and this school not only formed generations of learned scholars, but also created the intellectual conditions for the legislative work of the great jurist-popes. 5

This _Decree_ of Gratian is, then, the first of the defining moments in the history of the discipline.

2. The Decretals of Gregory IX.

The second landmark collection of ecclesiastical rulings that created a sea change in the field of canon law were the _Decretals_ of Gregory IX. Unlike the _Decree_ of Gratian which, as the work of a private individual, never achieved any official status, the _Decretals_ not only became universal law upon promulgation but then remained the law of the Church for the next seven centuries. James Brundage succinctly explained the matter as follows:

Pope Gregory IX (1227-41) commissioned an eminent Catalan canonist, Raymond of Penyafort (d. 1275) to prepare a new official decretal collection that would include all of the relevant papal and conciliar law since Gratian up to his own time. The resulting text, entitled the _Gregorian decretals_ ( _Decretales Gregorii IX_ ), but more informally known as the _Liber extra_ , was a massive compilation of almost 2,000 decretals, arranged according to the plan that Bernard of Pavia had employed in his _Breviarium_. The pope published the work officially in September 1234, and in his letter of transmission to the Universities of Bologna and Paris directed that it be taught in the law faculties as the official law of the Roman church. The _Liber extra_ remained officially in force among Roman Catholics until 1918. 6

Brian Ferme expressed the transformative quality of the _Decretals_ even more forcefully. He wrote that the _Liber extra_ "was in every sense of the word a new, definitive and exclusive law book that practically ushered in a revolutionary change in canon law. It was a _novus habitus mentis_ which would determine the direction and path of canon law until the present." 7

3. The 1917 Code.

Pope Pius X, in his 1904 motu proprio _Arduum sane munus_ , 8 created a Pontifical Commission whose arduous task ( _arduum munus_ ) it would be to "reduce the laws of the Church into one - _Ecclesiae leges in unum redigendis_." It is interesting to note that nowhere in the three page motu proprio is the word " _Codex_ " used. Rather the Pope speaks only of collecting the laws of the Church "into one". Perhaps Pius X avoided the word " _codex_ " because the canonical world was not yet fully prepared to accept the idea of a codification of church law. It was something that had never been tried before, and some felt that the codification of church law would be not only an _arduous_ task but an _impossible_ one. And while everyone understood that something had to be done in order to bring some clarity and order into the labyrinthine maze of laws that existed at the time, not everyone agreed that a code was the best means of accomplishing that goal. There was, for example, some concern that a code of law would result in a rigid system that would constitute a traumatic break from the flexibility that had for centuries characterized the Church's approach to law. And there was also concern perhaps that a code would create laws that were cut off from the circumstances that originally explained and justified them. The great Francis Xavier Wernz, S.J., for example, was keenly aware of the intimate connection that exists between a law and its history. In volume I of his _Ius Decretalium_ , published in 1898, six years before _Arduum sane munus_ , he wrote, "In order to have a full and perfect knowledge of ecclesiastical law we must, especially in our time, utilize an historical method. For the current discipline can never be perfectly understood unless we know its origin and occasion, its vicissitudes and changes, its cessations and restorations." 9 And later, in that same volume, Wernz reflected, "The idea of compiling a new _corpus iuris canonici_ was proposed at the Vatican Council by the bishops themselves but the rather serious difficulties involved in implementing such a proposal are not always sufficiently appreciated by everyone. We should, furthermore, face the fact that both the necessity and the utility of a new codification of a universal canon law are greatly exaggerated, and we should also face the fact that the means that had been proposed by certain bishops for the drafting of a new codification can scarcely be regarded as either suitable or opportune." 10

Despite the reservations of Wernz and others, however, the Pio Benedictine Code, which had been inaugurated by Pius X's _Arduum sane munus_ was, as we know, promulgated by Benedict XV in 1917. It was an extraordinary accomplishment and was warmly received; but for all its merits, and there were many, Stephan Kuttner felt compelled to note:

We have here an almost paradoxical fact: the Code, although it preserved in substance a great part of earlier legislation, nonetheless inevitably led to a sharp division between history and law much more so than had ever been the case in the past. In the course of the Church's history no legislation had ever been enacted which completely absorbed all preceding discipline and formally abolished all earlier collections. The _Codex_ was the first to do this; as a result - though certainly not intended - history became divorced from present-day law. Today this separation can be observed, with a few notable exceptions, both in the teaching and in the practical application of canon law.

The historical explanation of this phenomenon must be sought in the methodological principles which shaped the code and clearly distinguish it from the canonical texts of the ancient, the medieval, and the post-Tridentine Church; principles which place the Code close to - indeed, insert it into - the long line of the civil law codifications of the nineteenth century. From the _Code Napoleon_ to the German _Biirgerliches Gesetzbuch_ , the nineteenth century witnessed the triumphs of _Begriffsjurisprudenz_ ; and of conceptual juridical abstraction. With an absolute trust in the ideal of the abstract formula, jurists sought to arrive at an almost mathematically constructed, impeccable system of legislation; a rational aggregate of all juridical norms, each reduced to the most absolute formulation and conceived as completely set apart from the concrete social situations which in life are the main spring of law itself. 11

So while the 1917 code was unquestionably a magnificent opus, it was also one which broke sharply with the Church 's traditional legislative style and thereby set the law of the Church on a whole new path, thus easily qualifying it as one of the great turning points, one of the great defining moments in the Church's legal history.

II. Procedural Law in the Three Defining Compilations

1. Gratian's Decree.

Someone once said that to seek order in the _Decretum_ is like fishing in the woods or hunting in the sea, 12 and this is perhaps nowhere more true than in the area of procedural law. Most of Gratian's material on procedural law is sprinkled throughout the _Causae_ of part II, but there is nothing in the Decree that even slightly resembles a chronological tracing of how an ecclesiastical trial should be conducted. Wernz-Vidal summed it up by saying that procedural law "is found for the most part in part II of the Decree of Gratian, the canons and dicta of which, _if they were arranged in some systematic order_ , would show forth reasonably well the canonical process in the middle of the twelfth century." 13

2. The Gregorian Decretals.

Unlike the _Decretum_ , Book II of the _Decretals of Gregory_ offers the reader, in 99 pages and under 30 titles, the law that regulates the personnel of a court and the method of conducting a trial; and it treats in orderly fashion such institutes as the competent forum, the libellus, the joinder of issues, proofs in general, confessions, witnesses, documentary evidence, the sentence, and the appeal of a sentence. It was legislation that was easily explained and elaborated on by the many decretalists who wrote their manuals and commentaries over the next seven hundred years.

3. The 1917 Code.

The Pio Benedictine Code did for procedural law what a code is supposed to do in that it rendered into clear, succinct, accurate, precise canons or rules the then existing, though at times imperfectly formulated, legislation on processes. As we shall see, however, this particular code was strangely selective in the material it included in its Book Four, the book entitled _De Processibus_.

III. The Summary Process, its Life and Death

By the early fourteenth century, only seventy years or so after the promulgation of the _Gregorian Decretals_ , the judicial process as delineated in the _Decretals_ was being found overly cumbersome and demanding; and some cases were being allowed by both Boniface VIII (1294-1303) 14 and Clement V (1305-1314) to be heard " _sine strepitu iudicii et figura_ ," that is to say, without excessive formality.

It soon became clear, however, that the _sine strepitu_ phrase needed clarification; so in 1306 Pope Clement V issued the decree _Saepe contingit_ spelling out quite precisely what practices needed to be _followed_ as well as those that could be _omitted_ in this new judicial process. For the next few years permission for a _sine strepitu_ process was granted by Pope Clement on a case-by-case basis; but in 1311 he deemed it opportune to issue the decree _Dispendiosam_ which, in effect, granted the general faculty to all tribunals to hear, under the _sine strepitu_ rubric, all the types of cases listed in this _Dispendiosam_ decree.

And with these two decrees, _Saepe contingit_ of 1306 and _Dispendiosam_ of 1311 was born what came to be known as the Summary Process.

The two decrees read as follows:

Saepe contingit

It often happens that we delegate lower courts to hear cases, and in some of those cases we order those courts to proceed simply and easily and sine strepitu iudicii et figura. The precise meaning of these words, however, is a matter of considerable debate and there is some question therefore about how courts ought to proceed.

In the interest of settling as many of those questions as possible, we, by this decree, hereby declare as sacred and perpetual that a judge to whom we commit cases of this kind need not necessarily demand a formal libellus or a joinder of issues; may proceed even on holidays in order to accommodate the needs of people who have been dispensed by the law; may shorten deadlines; may, to the extent that he can, shorten the trial by denying exceptions and dilatory and unnecessary appeals, by restricting the contentions and disputes of the parties, advocates and procurators, and by limiting the number of witnesses.

A judge may not, however, abbreviate a trial by curtailing necessary proofs or legitimate defenses. Lest the truth remain concealed, furthermore, it is understood that in commissions of this kind neither the citation nor the taking of the usual oaths of good faith and intent to tell the truth may ever be omitted. Also, since the pronouncement of the judge ought to be based on the original petition, the plaintiff 's position and that of the respondent, if he or she countersues, should be made at the beginning of the trial either in writing or orally and should always be included in the acts. This is important for three reasons: so that the investigation may be based on those petitions, so that fuller certitude may be had, and so that the issue may be more clearly defined. And because traditional judicial practice has allowed the use of questionnaires based on the statements of the parties for the purpose of expediting the proceedings, as well as interrogatories for the purpose of obtaining clearer proofs, we, wishing to follow this practice, hereby declare that any judge deputed by us (unless he proceeds otherwise at the wish of the parties) may establish a deadline for submitting these questionnaires and interrogatories as well as for all the other acts and defenses which the parties wish to be used in the case. After these articles have been submitted the judge may then assign an appropriate date for producing witnesses, with the understanding, however, that should the case be interrupted, those witnesses, and documents as well, may be produced at a later date. The judge shall also question the parties either at their request or ex officio whenever equity recommends this.

Finally the judge, either standing or sitting, as he pleases, will hand down the written definitive sentence (with both parties having been cited for this action though not peremptorily) based on the petition, the proofs and other pleadings in the case. This he shall do even if, in his judgment, the evidence is not concluded.

All of which is also applicable to all those cases in which, through one or another of our constitutions, it is allowed that a judge may proceed simply and easily and _sine strepitu iudicii et figura_. But if, in these cases, the solemn judicial order is, in fact, observed, in whole or in part, with the parties not disagreeing, the process will not, on that account, be either void or voidable. 15

Dispendiosam

In the interest of reducing the lengthy delays in court trials which sometimes result, as evidence has shown, from a scrupulous application of the judicial process to individual cases, we hereby decree that regarding not only future cases but present cases as well and even those cases pending appeal, a court may proceed simply and easily and _sine strepitu iudicii et figura_ in the following cases: those regarding elections, postulations, provisions, dignities, personates, offices, canonicates, revenues or any ecclesiastical benefices, the exacting of tithes (including the possibility, after a proper warning, of coercing payment by ecclesiastical censure from those who are in arrears), and finally marriage and usury cases and all those touching on them in any way. 16

So what happened to this summary process? What happened was that it lived a long and productive life and died finally at the ripe old age of 607, which is not as old as Methuselah was when he died but was still a pretty good life span. I'll get to its death shortly but first a little about its remarkable life. For all of those 607 years the summary process lived in the same house as its older sibling, the solemn process. The summary process remained, of course, a true judicial process, not an administrative one and was defined by Wernz as "a trial in which the solemnities required by the natural law are observed while those formalities which retard the swift expedition of the proceeding and which are required only by human law are omitted." 17 Michael Lega, furthermore, in his _Praelectiones_ , published in 1905, noted that the summary process would, in practice, be used differently depending on whether the case was one of lesser or greater importance. In cases of lesser importance, as for example, incidental cases where any possible problems can be corrected in the final sentence, then the trial could be conducted summarily not only in terms of the solemnities but also in terms of proofs. In such cases, for example, a single witness rather than two might suffice. But in cases of _greater_ importance, such as one involving the possible invalidity of a marriage, then the process would be carried out in summary fashion only in regard to the solemnities, not in regard to proofs. In these cases the ordinary and standard rules of evidence would be strictly adhered to. 18

The summary process was always popular and at some point, as we shall see, became virtually the only judicial process used in the Church. Right to the end, however, the decretalists continued to write their commentaries principally on the solemn process as set forth in the _Gregorian Decretals_ , while appearing to relegate to a position of lesser importance the much more widely used summary process. In fact, however, this approach actually made reasonably good sense; for as Lega wrote, "Since the summary trial is instructed precisely by excluding some solemnity requirements of the ordinary trial, it is obvious that the summary process can not be suitably conducted unless the ordinary process is fully understood." 19

An excellent example of this approach of the decretalists is the _Ius Ecclesiasticum_ of Francis Schmalzgrueber, S.J. who died in 1735. In Pope Gregory IX's _Liber Extra_ the judicial process was treated in Book II; so Schmalzgrueber, in his _Ius Ecclesiasticum_ , devoted his tome II to the same topic, namely the judicial process. Schmalzgrueber's tome II, incidentally, comprised 1056 pages under the same 30 titles as the _Liber Extra_. Early on in tome II Schmalzgrueber offered two brief, introductory observations on the summary process: first, a rather standard description of the process based directly on _Saepe contingit_ , 20 and secondly a comment on the employment of the process, namely that it may be used for two basic reasons, either because the case requires swift expedition (like a marriage case) or because it is a case of lesser importance (like a case involving a petty crime). 21

Generally, however, Schmalzgrueber's entire commentary on ecclesiastical trials dealt primarily with the solemn process, and dealt with the summary process only incidentally and when necessary. In commenting on the joinder of issues, to cite one example, Schmalzgrueber posed the question: whether the joinder of issues is required for the substance of a trial. He responded in the affirmative and noted that consequently, if the joinder were omitted, the entire trial including the sentence would, generally speaking, be invalid, because, he said, the joinder of issues is the basis, foundation and cornerstone of the trial; so if that is lacking, there is nothing on which to build the edifice. But then he added, I say "generally speaking" because in some cases, namely when the summary process is used, the trial can exist even without a joinder of issues. And the reason for that, he said, was that in a summary trial only the solemnities required by the natural law must be observed, not those of the positive law. 22

As already briefly alluded to, over the years the summary process became more and more popular and eventually became virtually the only process used in tribunals, even in those of the Holy See. In 1869 an article appeared in the _Acta Sanctae Sedis_ in which the author observed with approval and gratification that almost all cases ( _omnes fere causae_ ) were, by that time, being heard using the summary process, and the author further noted:

the words "canonical form" are highly equivocal and can have as many meanings as there are styles of judging in legitimate tribunals: for all tribunals customarily have their own special form of proceeding, either by reason of an old and legitimate custom or by reason of special laws imposed on them; all of which is especially evident in Rome itself; and all of these forms are worthily called "canonical". 23

Lega, in his 1905 _Praelectiones_ , furthermore, wrote:

"Our daily experience tells us that tribunals these days are making great use of the summary process because the only cases that are now being heard are cases that deal either with spiritual matters, benefices, or disciplinary matters; and all of these cases require, by their very nature, a swift definition. And meanwhile the use of solemnities is everywhere avoided because of the narrow mindedness that restricts the exercise of ecclesiastical power." 24

And Lega-Bartocetti, in the 1939 commentary, observed that "even before the promulgation of the Code . . . . the solemn order of trials had lapsed into desuetude and cases were being handled by the summary process." 25

So this pretty much was the life, the illustrious life of the summary process. Its life, however, was soon to be snuffed out; and the culprit, if we may call it that, was the 1917 code. The summary process, though, did not go gently into that good night. It did not die without a fight. Nor did it die without friends and defenders, chief among them being the esteemed Francis Xavier Wernz, about whom something should, I think, be said at this point. After teaching canon law for seven years in England and Wales as a young Jesuit, Wernz then taught at the Gregorian University for twenty-four years, from 1882 until 1906, when he was elected Father General of the Society of Jesus. He was admired and respected by generations of students, by canonists around the world and even, or perhaps especially, by popes. After Wernz published the first four volumes of his magisterial _Ius Decretalium_ , for example, Pope Pius X, in 1905, wrote him a warm letter of congratulations. Benedict XV, who promulgated the 1917 code, called Wernz "the prince of modern canonists" and said that "his name will be written in letters of gold in the history of Ecclesiastical law." And in 1967, on the occasion of the fiftieth anniversary of the 1917 code, Paul VI, after paying homage to Pius X, Benedict XV, and Cardinal Gasparri, said that "along with these elect names is that of Francis Xavier Wernz who, through his _Ius Decretalium_ laid the foundations for this admirable enterprise." 26

Wernz died in 1914, three years before the code was promulgated; but in 1904 he was appointed a consultor to the Pontifical Commission that had been established through the motu proprio, _Arduum sane munus_ ; and in the _consulta_ of May 23, 1904, he came to the defense of the summary process, urging apparently that it be recognized in the new formulation of law as the primary judicial procedure of the Church. The minutes of that meeting said that "Wernz was of the opinion that it was necessary to examine the question of the relationship between the solemn ordinary process and the summary process." The former, he said, "was no longer used ( _non si usa piu_ ); but the process that in fact has been practiced from the seventeenth century to the present is the summary process. The tendency of the Church", said Wernz, "is to simplify and to remove excessive formality; so we must produce a process that actually exists in practice". Agreeing with this opinion, said the minutes, were Ianuarius Bucceroni, Marianus DeLuca, Joseph Latini and Carolus Lombardi. This was, so to speak, the "If it ain't broke, don't fix it" position, and in 1904 it was the prevailing position. 27

Others, however, seemed to favor codifying just one single contentious process which would not be the summary process. Rather it would consist of the basic structure of the solemn process with many of the elements of the summary process being incorporated into it.

Over the next few years there were still, of course, those who wanted the summary process to be recognized in the new code if not as the only contentious process, at least as a separate, stand alone process that could be used for many if not most cases. In 1908, for example, Seraphino Many, the Rotal auditor and consultor to the Commission, submitted a study draft of _De Iudiciis_ containing 293 canons, the last five of which neatly summarized _Saepe contingit_ and were, in fact, entitled _De iudicio summario_. 28 By including the two separate contentious processes, the solemn and the summary, Many's votum accurately reflected what had, in fact, been the uncontested, peaceful status of the Church's procedural law for several centuries; and in that respect it appeared to be the logical and altogether appropriate model for codification.

Ultimately, however, this seemingly obvious and sensible position of Many, Wernz, and others did not prevail, and it was decided, alas, to exclude from the 1917 code a separate summary contentious process and to include only the somewhat deformalized solemn contentious process. So the summary process as a separate procedure was now dead.

IV. The Summary Process, its Possible Resurrection

The claim could be made, I suppose, that the summary process has already been resurrected, since the 1983 code contains the oral contentious process (cc. 1656-1670), which was actually called the summary contentious process in the 1976 draft 29 and is, in fact, called the summary contentious process in the Eastern code (CCEO cc. 1343-1356). There is, however, a major difference between this new process and the old Clementine process in that the Clementine process was used for practically all cases whereas the new procedure is used in hardly any. Indeed, at the March 26, 1979 meeting of the _coetus_ dealing with procedures, one of the consultors suggested that the oral contentious process be suppressed since it would hardly ever be used. 30

Of course, _if_ a couple of canons about the need for a defender of the bond and an appropriate appellate procedure in marriage cases were added to the oral process and the process were then permitted both for marriage cases 31 and for criminal cases of clerics, 32 then perhaps it could be said that the old summary process had indeed been resurrected. But that, as they say, is a big if and, as we know, is not about to happen in the near future.

Nevertheless things change. And perhaps in the not too distant future we will come to realize more fully than we do at present that codifying the Church's law injected into our law an anti-traditional, anti-historical rigidity that now needs to be tempered. Perhaps, in other words, the Church of 2020 or 2030 or whenever will realize that, just as Clement V tempered the law of Gregory IX, so the time has once again come for a certain tempering of the extant law. Perhaps we will come to realize that just as the Clementine or summary procedure worked well for 600 years, so it can do so again. The heart of the summary procedure is, after all, quite simple. As Wernz pointed out, it simply means observing the solemnities required by the natural law while omitting those which retard the swift expedition of the proceeding and which are required only by human law. With suitable adjustments it is a formula that can be applied to any situation at any stage of history.

Perhaps too we will come to realize more fully than we do now that codifying a universal law inevitably results in a centralization of legislative authority that can disturb the proper balance between the petrine office and the college of bishops. If, indeed, we are not careful, it can result in such a concentration of power at the center that it contributes to what has been called an imperial papacy and deprives local bishops and particular churches of their legitimate authority. In regard to _jurisprudence_ , uniformity is, of course, essential because, in a marriage case, for example, the decision cannot hinge simply on the location of the competent tribunal (geographical justice is injustice); but it must rather be based on whether, in fact, one of the universally recognized invalidating marital defects was or was not actually present in the marriage being considered. Unlike jurisprudence, however, _procedural law_ does _not_ demand uniformity, as is abundantly clear from the situation described in that 1869 _Acta Sanctae Sedis_ article where there were as many legitimate procedural styles as there were tribunals. And as messy as that might sound, there is something to be said for it because a certain openness to local practice in tribunal procedures might, at least in some small way, help to maintain or, if need be, to restore that delicate balance between the great Church and the particular church that is so essential to Catholicism.

At this point an old adage comes to mind, an adage that Pope John XXIII used to quote occasionally. I quote it here because it captures, I think, the spirit if not quite the letter of an ideal ecclesiastical law regulating trials. Let me close with it.

In necessary things, unity.

In doubtful things, liberty.

In all things, charity.

Return to TOC

ENDNOTES

* Judicial Vicar Emeritus, Archdiocese of Hartford, Connecticut.

1. This article was the fourth James H. Provost Memorial Lecture, which was given at Catholic University on Thursday, March 22, 2007.

2. Amleto Cicognani, _Canon Law_ (Westminster: The Newman Bookshop, 1934) 276.

3. Ibid., 282.

4. James Brundage, _Medieval Canon Law_ (New York: Longman, 1995) 48.

5. Stephan Kuttner, "The Father of the Science of Canon Law," _The Jurist_ 1 (1941) 2.

6. Brundage, 55. Bernard of Pavia's plan consisted of five books: Iudex, Iudicium Clerus, Connubia and Crimen. So Book II for both Bernard and Gregory was Iudicium or De Iudiciis.

7. Brian Ferme, "Ius Condere: Historical Reflections on the 1983 Code," _The Jurist_ 63 (2003) 186. For the Italian version of this article see _Vent' Anni di Esperienza Canonica_ 1983-2003. (Libreria Editrice Vaticana, 2003) 43-55.

8. _ASS_ 36 (1904) 549-551.

9. Franciscus X. Wernz, _Ius Decretalium_ (Rome: Ex Typ. Poly. S.C. De Prop. Fide, 1898) I, 69.

10. Ibid., 346, n. 265.

11. Stephen Kuttner, "The Code of Canon Law in Historical Perspective," _The Jurist_ 28 (1968) 139-140.

12. Dumoulin as quoted in Cicognani , 276.

13. F. Wernz and P. Vidal, _Ius Canonicum_ (Rome: Univ. Gregoriana, 1949) Vol. 6, 5. Italics not in the original.

14. VI, 1, 6, 43.

15. Clem. V, 11, 2.

16. Clem. II, 1, 2.

17. Franciscus Wernz. _Ius Decretalium_ (Prati: Giachetti, 1914) V, 568, n. 749.

18. Michael Lega, _Praelectiones De Iudiciis Ecclesiasticis_ (Rome: Ex Typ. Poly. S.C. De Prop. Fide, 1905) Vol. 1, 514, n. 618.

19. Ibid., 519, n. 626.

20. Francisco Schmalzgrueber, _Ius Ecclesiasticum_ (Rome: Ex Typ. Rev. Cam. Ap., 1844) 2, 1, 1, 10. In this 1844 edition, comprising twelve volumes, tome II takes up two volumes (volumes 3 and 4). Volume 3 contains the first seventeen titles and volume 4 contains the last thirteen.

21. Ibid. 2, 1 , 3, 11.

22. Ibid. 2, 1, 5, 4.

23. _ASS_ 5 (1869) 38-39. For more on this see Lawrence Wrenn, "In Search of a Balanced Procedural Law for Marriage Cases," _The Jurist_ 46 (1986) 602-623 and _Il Diritto Ecclesiastico_ (1987) 1191-1218.

24. Lega, 1: 519, n. 626.

25. Michael Lcga and Victorio Bartocetti, _Commentarius In Iudicia Ecclesiastica_ (Rome: A.L.C.I., 1939) 2: 964, note 4.

26. All such information and tributes are recorded in Clarence Gallagher, "Francis Xavier Wernz, S.J., The Last of the Decretalists," in _Investigationes Theologico-Canonicae_ (Rome: Pontifical Gregorian University, 1978) 169-184.

27. Joseph Llobell, Enrique DeLeon and Jesus Navarette, _Il Libro 'De Processibus' nella Codificazione del 1917_ (Milan: Giuffre, 1999) I: 100-101, note 30 and 349 under Tit. XX. Roberti, incidentally, also noted that the Rota constantly used the summary rite _from the seventeenth century_. Franciscus Roberti, _De Processibus_ (Rome: Lib. Pont. Inst. Utriusque Iuris 1941) 11.

28. Llobell, DeLeon, and Navarette, Il Libro 'De Processibus,' 669-670.

29. _Communicatciones_ 11 (1979) 247.

30. Ibid., 248.

31. For a different approach regarding marriage cases see Lawrence Wrenn, "In Search of a Balanced Procedural Law for Marriage Cases," _passim_ but especially 608-609, n. 7 and _Il Diritto Ecclesiastico_ (1987) 1191-1218, especially 1198-1199, n.7; also see idem, "A New Procedural Law for Marriage Cases?" _The Jurist_ 62 (2002) 196-198.

32. On June 11, 1880 the Congregation of Bishops and Regulars allowed the summary process to be used in criminal cases involving clerics. Regarding these cases the Congregation said, "Processus confici potest formis summariis et absque iudicii strepitu, servatis semper regulis iustitiae substantialibus". _Fontes_ 6: 1023, art. 10.

\+ + +

