Litigation in Catholic Canon Law
I went to Catholic school, and so I have been long interested in the complex legal system that governs the Catholic Church. After speaking with Rabbi Shlomo Weissmann about dispute resolution under Jewish law, I decided I should interview someone about Catholic canon law.
But finding an expert was a challenge! Canon lawyers don’t advertise or maintain conspicuous offices. And so I was extremely fortunate that Dr. Edward Peters, a professor at the Sacred Heart Major Seminary, was willing to speak with me about canon law. And, like me, he also writes a law blog, and so I got to ask him about legal blog writing, too.
Why should you continue reading this post about Catholic canon law?
You are a movie producer who saw that The Da Vinci Code became a hit movie and now is looking for some other Catholic content to turn into a major motion picture.
You want to know if any lawyers still write about cases in Latin and, if so, why.
You want to know if canon law has discovery and whether that is why Catholics believe in hell.
Dr. Edward Peters is a professor at the Sacred Heart Major Seminary in Detroit, Michigan.
First, let me ask you a bit about yourself. You graduated from law school at the University of Missouri. What led you to become involved in canon law?
I was born and raised Catholic and attended only Catholic schools since kindergarten, but I knew nothing about canon law until my first year of law school when, in a legal history seminar, my professor, discussing medieval law on contracts, made some references to “canon law” and the “bishop’s tribunal.”
During a break I asked him what was this “canon law” thing he mentioned. He responded, “Don’t you know? It’s something you Catholics do.” I asked, “Really? Do we still do it?” and he replied, “I think so.”
By lunch time I was in the main campus library looking through the card catalogue for anything marked “canon law.” Things took off from there.
And you are a referendary of the Apostolic Signatura. What is the Apostolic Signatura?
The Apostolic Signatura, located in Rome (technically, in the Vatican City State), is the Church’s highest administrative court. Because administrative law is generally more influential in ecclesiastical matters than is ‘judicial law,’ the Signatura is effectively the Catholic Church’s supreme court, albeit under the Roman Pontiff.
And what do you do in your role as a referendary?
A referendary is basically a designated researcher and something of a law clerk. Referendaries do not vote on cases but are called upon, from time to time, to research specific questions and to prepare memoranda for the voting members of the court. It is not a full-time position by any means and we work on matters only if asked by one of the judges with an interest in a certain area.
In your role as a referendary, do you need to research canon law and write opinions? What resources do you use to research the law?
As above, but here is a good place to note that canon law still operates as a heavily book-based legal system so having physical access to older canonical commentaries and journals is important for technical work. Relatively little canon law is available online, but fortunately my personal canon law library is impressive and the library and staff at Sacred Heart Seminary in Detroit, where I teach, is very helpful as well in tracking down materials.
You also write a blog about Canon Law. From one legal blog writer to another, what do you enjoy about writing a law blog? And who do you see your target readership to be?
Well, blogs have certainly opened the floodgates for mediocre thinkers and writers, but they also allow others with proven skills to communicate more quickly their perspectives on current affairs.
My blog, after nearly 20 years and some 700 essay-length posts, has been less active the last couple of years but when I do write it is almost always done in order to explain to intelligent Catholics and other interested persons what the canonical angle of a given news item might be.
The secular media (and for that matter much of the Catholic media) know next-to-nothing about the legal system of the Catholic Church and so often misconstrue or misreport, sometimes badly, possible canonical aspects of a story. I attempt to sort out those misrepresentations.
Image credit: https://en.wikipedia.org/wiki/Canon_law#/media/File:Extract_from_Burchard_of_Worms'_Decretum.jpg
Let's turn to canon law. Does canon law apply to resolving disputes? If so, what kinds of disputes?
As canon law is the legal system of the international society known as the Catholic Church, pretty much anything that arises in Church life has, to a greater or lesser degree, a canonical aspect to it. Knowing whether and how canon law treats an issue can provide an objective measure for assessing possible responses to the issue and protects the Church from looking as if she is just making up replies to problems on the fly.
Resolution of disputes between the faithful and prosecution of canonical crimes is not what takes up most canon lawyers’ time, but those are important parts of our legal system.
What tribunals apply canon law? Are these tribunals only in the Vatican or are they elsewhere?
The goal, sometimes more honored in the breach than in the observance, is for every diocese and archdiocese to have a tribunal authorized to adjudicate canonical issues. Certainly every diocese has canonists on staff who advise ecclesiastical personnel, including bishops, about the canon law impacting a given matter. Such canonists work basically as in-house counsel for matters canonical.
Do canon lawyers argue cases before tribunals?
Yes they do, and have done so for centuries, but the canonical process looks rather different from what we are used to in a common law nation such as the United States.
Whereas the common law is an ‘adversarial-based’ system, canon law is an ‘inquiry-based’ system. The common law thinks, in theory at least, that arguments between opposing, and openly biased, sides is the best way to find the truth of a matter. And sometimes that is the best way. Canon law, in contrast, thinks that inquiry by qualified, and more dispassionate, experts into a matter is the best way to find out the truth about it. And sometimes that is the best way. I think both systems are good, but they operate with some significantly different assumptions. People used to seeing law done one way often, but incorrectly, looks askance at law being done in another way and conclude that it’s not really law.
Are there trials or discovery?
There are trials, but they do not look like American trials. In fact, canonical trials much more resemble continental European trials, especially in that canonical trials are largely document-based with little, often no, direct confrontation between sides and witnesses.
There is something like discovery that is closely linked to taking testimony. But as for pretrial motions (I can think of a couple), they are so rare as to make mention of them unnecessary.
Are proceedings in these tribunals open to the public?
Generally tribunal proceedings are not open to the public. But keep in mind, most actual disputed cases heard in tribunals deal with marriage and divorce, so the personal nature of the matters being discussed therein is not appropriate for the general public. The parties to the case and their ‘advocates’ (the canonical term for attorney) have access to what the other side is saying, of course, but the public would not.
Do canon lawyers need to have a law degree or any specific education or training?
Canon 1483 of the Code of Canon Law requires advocates to have a doctorate in canon law (or its near equivalent) before taking on cases of any sort. That educational program requires at least three, and more like five, years to complete.
When I started canon law studies back in the 1980s, despite my already having a J.D. degree, I had to start from scratch for the canonical degrees because, as I quickly learned, the two legal systems are so different.
Do tribunals applying canon law conduct proceedings in local languages, Italian, or Latin?
As a practical matter, most canonical cases are conducted in the language of the parties to the case. But, strictly speaking, the official language of canon law is Latin and, if a given case goes to Rome on recourse or appeal, it will most likely have to be translated into Latin. This, too, makes, sense as the Roman officials who might have to rule on the case are from many different countries.
Most canon lawyers work on matters that never leave their home country and language, so Latin plays less of a role than it did even a couple generations ago. But it is not unusual for a canonical researcher or higher official to have a good grasp of three, four, or five languages besides Latin.
Are there published canon law decisions? Could you provide a link for one?
As mentioned above, canon law is still largely a hard-copy legal discipline (we have basically nothing like Westlaw, for example) so examples of on-line canonical decisions are hard to come by.
As it happens, though, I myself translated and posted the text of a short Roman Rota (a high court) case for my marriage law students a few years back, so you might look here: http://www.canonlaw.info/personal_rotacase.htm
How do appeals work in the canon law system?
Every mature legal system has a mechanism to review lower level decisions and canon law is no exception. Recalling what I mentioned earlier, that canon law is a mix of administrative and judicial processes, recourse and appeal in both areas is outlined largely in Book VII of the Code of Canon Law. There are more rules than those contained in Book VII, but that is good place to get a sense of the process.
I would add that recourse against administrative actions and appeal of tribunal cases is much less frequent in canon law than it is in common law if, perhaps, for some good reasons (e.g., decisions are generally sound to begin with) and for some not-so-good ones (e.g., delays in hearing cases in Rome can be considerable).
On your website, you mention the Johanno-Pauline Code and the Pio-Benedictine Code. Do canon lawyers cite other sources of canon law besides these codes?
Well, first, the Johanno-Pauline Code of 1983, as amended, is the only current Code of Canon Law for the Roman Catholic Church. The Pio-Benedictine Code of 1917 has been abrogated so, in an actual case, only the 1983 Code would be controlling, but the 1917 Code remains very important in our work for its insights into earlier canonical concepts and because it contributed so much to the development of the 1983 Code.
Besides these two “Western” Codes, there is the 1990 Code of Canon Law for the Eastern Catholic Churches, and there are many other legal texts issued by Roman dicasteries (offices), religious orders, national episcopal conferences, and so on. These documents might be relevant in a given matter.
Are all of the parties to disputes involving canon law Catholic, or are non-Catholics ever involved?
Almost always the parties in a canonical matter are Catholic.
Marriage cases (known as “annulment” cases) are the most likely place one might see non-Catholics involved in a canonical case. Assessing how non-Catholics, or even non-baptized persons, might figure in a canonical matter is important but, outside of marriage cases, it is seldom needed.
What are the strengths of the canon law system? What are its weaknesses?
Having worked in the field of canon law for more than 30 years, I could give you an earful on both questions but until one has a clearer idea what the purposes of the Church’s legal system are, trying to outline its strengths and weaknesses might cause more confusion than it settles.
Briefly put, in many areas of Church life, canon law defers to civil law (see Canon 22); in some important areas of Church life canon law does not defer to civil law (see also Canon 22). In most respects, however, canon law (like the Church it serves) is concerned with different issues than those encountered in civil law and secular society.
Understanding better what concerns actually belong to the Church and occupy most of her attention is crucial toward understanding whether the two-millennium old system of canon law that she uses has advantages or disadvantages over other systems in the pursuit of that mission. Put another way, while canon law is unquestionably a legal system capable of being evaluated legally, appreciating canon law properly requires a good grounding in theology as well.