Temptations for the Weak and Burdens for the Virtuous
by R. Michael Dunnigan, JD, JCL
This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, . . . which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, "Suffer any wrong that can be done you rather than come here!"
—Charles Dickens, Bleak House
[T]he absence of any significant separation [of powers in the Church's legal system] creates a situation in which the guardians are in effect asked to be their own guardians, in which those who are most likely to be responsible for violations of rights are asked to assume the task of protecting rights. This may be tenable if we suppose a high level of virtue particularly in those charged with supervisory roles, or if we rely on very close bonds of community among the parties in a rights dispute. But it runs the risk of presenting either a heavy burden to the conscientious or an overly tempting opportunity to the weak or unscrupulous.
—Rev. John Langan, S.J.1
"Comparisons are odious," wrote William Shakespeare. However, although he wrote this line famously, Shakespeare was not the one who wrote the line first. The list of 16 and 17th century writers who included this phrase in their works includes Miguel de Cervantes, Christopher Marlowe, and John Donne. However, credit for coining the phrase belongs not to any member of this esteemed literary company, but rather to an English lawyer and judge named Sir John Fortescue.2 Strangely, this most famous condemnation of comparisons appears for the first time in a Fortescue treatise that is itself a comparison between English law and Roman law, De Laudibus Legum Angliae (In Praise of English Law).3
What are we to make of this seeming contradiction? Perhaps Fortescue's message is not that we should avoid drawing comparisons at all costs, but rather that we should recognize that comparisons are inevitable, but that they may also be misleading. If we keep this message in mind, we can seek a better understanding of the Church's system of canon law by considering its similarities with, and differences from, our secular American system of justice ("civil law" or the "civil system").4
As one would expect, such a comparison discloses certain strengths in the civil system that are absent from the canonical system, and vice versa. However, one's ultimate judgment as to the advantages and disadvantages of a system of law will depend in part on what one considers to be the primary purpose of law.
PERSPECTIVE AND EMPHASIS
The function of law that is most important to the Saint Joseph Foundation's apostolate is the protection of the rights of ordinary persons. As a result, the following comparison emphasizes the effectiveness of the civil and canonical systems in protecting rights. Considered from this perspective, it is difficult to escape the conclusion that our civil system is more effective than the canonical system in protecting rights. (If one were to emphasize a different function of the law— such as maintaining order—one might reach a different conclusion. Other functions are indeed important, but they are not as central to the work of the Saint Joseph Foundation as is the protection of rights.)
Three other points are important. First, although this article will focus on the rights of laypersons, it is important to remember that the Foundation also assists priests and religious. Second, my own experience is as a civil lawyer rather than a canonist. I was in private practice for seven years before joining the Foundation one and one-half years ago. Thus, although I work almost exclusively within the canonical system now, I still have more experience with the civil system. Third, this comparison will focus on cases that generally do not involve criminal or penal sanctions. Again the reasons come down to experience. My own private practice did not include criminal cases, and, at the Saint Joseph Foundation, most of our matters do not involve penal cases. (One exception was the widely-discussed case of the Hawaii Six. that case was a penal matter in which the Foundation obtained reversals of six decrees of excommunication.)
INEQUALITY AMONG THE PARTIES
The first category for comparison concerns a problem that is present in both the civil and the canonical systems, namely the inequality between the parties. In general, the reason for inequality in the civil system is money, and, in the canonical system, it is power.
The American system of justice is the envy of world, but participating in that system can be very expensive. This problem can become acute when an individual person sues, or is sued by, a corporation. The expense results in large part from the complexity of our legal system. This system includes procedures that protect the parties' rights but that also tend to delay resolution of the dispute. (One such procedure is "discovery," a process in which the parties gather and exchange information and documents.) Because our system is so complex, parties must retain highly-qualified (and therefore expensive) counsel.
In the canonical system, the inequality results from the fact that a pastor or bishop always has the advantage over the ordinary lay Catholic. My opinion is that inequality, though present in both systems, is worse in the canonical. The reason is that our civil system contains some components that help to reduce the inequality of that system (inequality in financial position), but the canonical system only exacerbates the inequality present in its system (inequality of power).
In the civil system, a lawyer may offer a contingent fee arrangement in which he agrees that he will receive payment only if he wins the case. These arrangements make legal expertise available to individuals who could not otherwise afford it. In addition, some laws—such as those against racial discrimination—require a defendant to pay the attorneys fees of a successful plaintiff. This helps individuals to find lawyers because the fee provisions make their cases more attractive. Finally, courts have begun to reform the discovery procedure to require earlier disclosure of information, so as to reduce the time (and therefore the expense) of the process.
Canon law, by contrast, does little or nothing to reduce inequality, but instead increases the power of the already powerful. Most canonical disputes concern the exercise of authority by pastors and bishops. A typical example would be a layman's complaint about his pastor's introduction of abuses into the Mass (such as omitting the Nicene Creed on Sundays, allowing non-clerics to preach homilies, and requiring the faithful to stand during the eucharistic prayer). Canon law requires the layman first to seek justice from the pastor himself. In the words of Fr. John Langan, S.J., a rights scholar who holds a doctorate in philosophy, "[T]hose who are most likely to be responsible for violations of rights are asked to assume the task of protecting rights."5 Fr. James Coriden, a noted canonist, summarizes the prospect of obtaining justice in such a system:
Instead of responding to the complaints and vigorously seeking remedies, a bishop or pastor invokes the time-honored policy of stonewalling. The institution can always outlast the aggrieved individual.6
Even if the case is serious enough to warrant an appeal to Rome, the advantage still lies with the bishop. First, the individual files a petition with the Holy See. Then the Holy See contacts the bishop (and it may provide a copy of the complaint to him). The bishop responds, but the individual never receives a copy of that response and never receives an opportunity to reply to it.
This is not to say that justice is never done in canon law. In fact, many of the Foundation's clients obtain satisfactory results. However, I believe that this occurs not because of the canonical system, but often in spite of it. If a layperson is to have a reasonable hope of success, he will generally require at least three things: (1) tenacity, (2) professional assistance, and (3) a conscientiousness decision-maker with a commitment to justice. Needless to say, one has little control over the type of decision-maker that will rule on one's case. More importantly, Catholics with legitimate complaints ought to be able to rely on the fairness or the system rather than the hope that their cases will be decided by persons of extraordinary virtue. The fact that government and procedure exist at all—both in secular life and in the Church—is itself an acknowledgement of our weak human nature. "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."7
Canon law contains two types of processes. The first process is judicial, meaning that it involves Church tribunals and judges. For all practical purposes. Church tribunals handle only marriage cases (petitions for decrees of nullity). The second process is administrative. Almost all of the Foundation's cases fall into the administrative category. In the administrative process, a person may raise a complaint first with the pastor, then with the bishop, and finally with one of the dicasteries of the Holy See. For example, one would appeal a liturgical matter to the Congregation for Divine Worship and the Discipline of the Sacraments.
One of the bright spots in canon law is that there is no charge for filing complaints (recourses) at any point in the administrative process. The Saint Joseph Foundation is available to assist with advice and with the drafting of documents for administrative claims. Because the Foundation does not charge for its services, our clients receive professional assistance throughout the course of an administrative proceeding at no cost.
OPTIONS FOR AVOIDING LITIGATION
Both the civil and canonical systems encourage parties to resolve cases quickly and, if possible, informally. There are at least two reasons for this policy. First, avoidance and resolution of conflict serve both the individual and the common good by restoring some measure of peace and by allowing the parties to move beyond the dispute. Second, resolution of disputes relieves some of the burdens on judges and other decision-makers, which increases efficiency throughout the system. The civil system accomplishes this by requiring mediation of some disputes and by requiring the parties to participate in settlement conferences. Similarly, the code of canon law encourages early resolution of both administrative and judicial disputes (cc. 1446, 1713-1716, 1733).
In addition, canon law encourages resolution of conflicts in one very unique way. It does so by reminding Catholics of their moral obligations. Thus, the code contains a bill of rights," but it also states that, in exercising these rights, the faithful "must take account of the common good of the Church and of the rights of others as well as their own duties toward others" (c. 223 §1). In addition, for virtually every right that we have, the code reminds us that we also nave corresponding obligations. For example, the code states that Catholics have the right to make their opinions on the good of the Church known to others, but it obliges them to do so "with due regard for the integrity of faith and morals and reverence toward their pastors, and with consideration for the common good and the dignity of persons" (c. 212 §3). This pairing of rights with obligations is an outstanding feature or the code, and it is the principal area in which canon law offers a lesson that American society at large would do well to learn.
INDEPENDENCE OF DECISION-MAKERS
As discussed above, a person with a canonical complaint must first address the party with whom he has the dispute. This is the same wise practice that the Lord commends to us: "If your brother sins against you, go and tell him his fault, between you and him alone" (Matthew 18:15). However, a difficulty arises because the canonical system gives no opportunity at any point for the layperson to plead his case before a truly impartial decision-maker. Consider the example of liturgical abuses discussed above.
A layman who wishes to have the Mass celebrated according to the practice of the universal Church—rather than his pastor's whim—must first petition that pastor. Most or all such pastors are already aware that the Creed is required on Sunday, that laypersons may not preach homilies, and that the faithful are to kneel during the eucharistic prayer. Needless to say, few such pastors agree to amend their illicit practices.
The next step is to appeal to the bishop. Although the bishop is more removed from the issue than the pastor is, he is not necessarily more impartial. He will inevitably have a closer connection to the pastor than to the layperson. He will certainly know the pastor personally (which would disqualify him from hearing the case in the civil system). The bishop may have given this very parish assignment to the pastor and, in any event, will probably wish to maintain a cordial relationship with the pastor.
In addition, a finding against the pastor may reflect on the bishop himself. It may appear as an acknowledgment that abuses occur in his diocese. One must also consider the bishop's options. What can he do if the pastor defies his directive to cease the illicit practices? Perhaps such defiance will embolden other pastors to introduce their own innovations into the Mass. The bishop may be willing to remove one defiant pastor, but would he remove 50? And if he did, would he be able to find replacements for even half of them?
This should not be taken to impugn the integrity of bishops. The point is not that bishops are motivated by crass self-interest. Rather, the point is that the administrative process asks bishops to decide matters in which they themselves hold an interest. The civil law has wisely concluded that this is too much to ask of any person. In a 19th century case concerning whether a mayor could make a contract with the city and then impartially administer the same contract for the city, the Georgia Supreme Court said the following:
Can he do it disinterestedly? Possibly he may; but the law regarding our fallen nature as all weak, and profiting by the prayer which the Son of God prescribed for all men, forbids that such temptation be laid in the path of any man, however exalted his office or pure his character.8
The respected canonist, Fr. Francis Morrisey, O.M.I., identifies several weaknesses of the canonical system in comparison with Anglo-American systems. Prominent among Fr. Morrisey's concerns is this lack of independent decision-makers.9 As Fr. Langan says, the canonical system, as it now stands, "runs the risk of presenting either a heavy burden to the conscientious or an overly tempting opportunity to the weak or unscrupulous."10
ACCESS TO INFORMATION
A party in a civil suit—even a single individual suing a large corporation—is entitled to see any of his opponent's documents that are relevant to the lawsuit.11 As discussed above, the discovery process can be expensive but, without it, most parties would be unable to obtain the evidence necessary to prove their cases (or to defend themselves). By striking contrast, the canonical system affords no right to information.
In cases of liturgical abuses, laypersons may be able to obtain information on their own. However, in cases involving hospital mergers, sexual misconduct, or home schooling guidelines, the ecclesiastical authority controls all or most of the information and the layperson has no right of access to it. Thus, Fr. Morrisey describes "an excessive preoccupation with secrecy" that pervades the canonical system.12 If a layman appeals a bishop's decision to the Holy See in an administrative case, the layman is never permitted to see the bishop's response. In the judicial process, the Church's highest court routinely prohibits the parties from making the court's opinions public.13 Archbishop Thomas Roberts once charged that the members of the Holy Office use methods for which they could be arrested if they were in Great Britain.14 This is a harsh judgment and, no doubt, an exaggeration, but it testifies to the distrust and frustration that excessive secrecy engenders.
CONCLUSION
The above comparison suggests that canon law is significantly less effective than our civil system in protecting rights. However, improvements in the canonical system need not simply imitate the civil system, and they need not compromise the hierarchical nature of the Church.
For example, the conference of bishops in the United States could request that the Holy See establish a regional administrative tribunal to hear appeals from the various dioceses.15 This would allow a layperson to appeal a bishop's decision to an impartial body within the United States. Another improvement would be to increase the role of judges in canon law generally and to provide greater opportunities for lay-persons to have their disputes heard before ecclesiastical courts.16
However, the greatest weakness of the canonical system is its "preoccupation with secrecy." If the Church's legal system can be purified of its reliance on secrecy, then one can say about it the same thing that the Lord said about those who emerge from the shadows and enter into the light:
But he who does what is true comes to the light, that it may be clearly seen that his deeds have been wrought in God" (John 3:20-21).
Notes
1. John Langan, S.J., "Can There Be a Human Rights Problem in the Church?" The Jurist, v. 46 (1986:1), 14-42, at 18 [hereinafter, "Langan"].
2. See Bartlett's Familiar Quotations, http://www.columbia.edu/ acis/bartleby/bartlett. Although Shakespeare is often credited with the phrase, he actually used the word "odorous," rather than "odious." Much Ado About Nothing, act III, scene v. In the works of all of the other cited authors, except John Donne, the phrase is identical to the quotation contained in the main text. John Fortescue, De Laudibus Legum Angliae, chap. xix; Miguel de Cervantes, Don Quixote, part II, chap. xxiii; Christopher Marlowe, Lust's Dominion, act III, scene iv; John Donne, Elegy 8, The Comparison ("She and comparisons are odious."). Another anthology of quotations cites some additional sources, but the only one that predates Fortescue is much too different to be considered the same quotation. Bergen Evans, Dictionary of Quotations (New York: Delacorte Press, 1968), 118 (citing John Lydgate: "Comparisouns doon offte gret grevaunce.").
3. Bryce Lyon, A Constitutional and Legal History of Medieval England (New York: W.W. Norton & Co., 1980), 570.
4. It is important to keep in mind that "civil law" has a number of different meanings. (1) Canonists normally understand civil law to refer in general to any secular system of law, such as the American or the Italian legal system. This is the sense in which this article uses the term "civil law." (2) Students of international and comparative law understand "civil law" to refer to legal systems such as those on the European Continent that are based on a code of law established by a legislator, as opposed to the Anglo-American system of "common law" in which the decisions of judges have value as precedent. (3) Finally, within our own secular system of law, American lawyers understand "civil law" to refer generally to disputes between private parties, as opposed to "criminal law," which concerns actions by the government against persons alleged to have committed crimes. Duane Galles gives a fuller explanation of the various meanings of "civil law." Duane L.C.M. Galles, "The Civil Law," The Jurist, v. 49 (1989:1), 241-248.
5. Langan, 18.
6. James A. Coriden, "A Challenge: Making the Rights Real," The Jurist, v. 45 (1985:1): 1-23, at 3.
7. Federalist 51.
8. Macon v. Huff, 60 Ga. 221, 225 (1878) (Jackson, J.)
9. "It would not be appropriate according to the spirit of the common law for the same persons to be legislators and those charged with implementing the law and adjudicating its observance; although in the Church these same three functions are often held by the same persons, thus leaving very little room for movement or even recourse." Rev. Francis G. Morrisey, O.M.I., "Canon Law Meets Civil Law," Studia Canonica, v. 32 (1998), 183-202, at 192 [hereinafter, "Morrisey"].
10. Langan, 18.
11. In fact, one is entitled not only to relevant documents, but to all documents that might lead to the discovery of admissible evidence. However, one is not entitled to review documents that are protected by a privilege, such as the privilege between attorneys and clients.
12. "The common law does not favor acts carried out in secret. Yet, in canon law we note an excessive preoccupation with secrecy, based at times on the principle of confidentiality." Morrisey, 193.
13. Ibid.
14. Henri Fesquet, The Drama of Vatican II (New York: Random House, 1967), 354. Archbishop Roberts made this statement during Vatican II at a press conference that he gave on 22 October 1963. Ibid.
15. Duane Galles puts forward this suggestion. Duane L.C.M. Galles, "The Church's Administrative Law System," Christifidelis, v. 10, no. I (Epiphany 1992), 8. A draft of the 1983 code of canon law provided for regional administrative tribunals, but the provision was omitted from the final version. Ibid.
16. See Morrisey, 193. © Christifidelis, Saint Joseph Foundation, 11107 Wurzbach, #601B, San Antonio, TX 78230-2553, (210) 697-0717.
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