Applying the Principles and Procedures of Civil Law to Canon Law: A Recipe for Frustration

Applying the Principles and Procedures of
Civil Law to Canon Law: A Recipe for Frustration
By Charles M. Wilson
§1. The legislator authentically interprets laws as does the one to whom the same legislator has entrusted
the power of authentically interpreting.
§2. An authentic interpretation put forth in the form of law has the same force as the law itself and must
be promulgated. If it only declares the words of the law which are certain in themselves, it is retroactive; if
it restricts or extends the law, or if it explains a doubtful law, it is not retroactive.
§3. An interpretation in the form of a judicial sentence or of an administrative act in a particular matter,
however, does not have the force of law and binds only those persons and affects only those matters for
which it was given.
Canon 6, 983 CIC
§1. The object of a trial is:
1° the pursuit or vindication of the rights of physical or juridic persons, or the declaration of ju-
ridic facts;
2° the imposition or declaration of a penalty for delicts.
§2. Nevertheless, controversies arising from an act of administrative power can be brought only before the
superior or an administrative tribunal.
Canon 400, 983 CIC
Contrary to the perception of some, canon lawyers are not “private attorneys general“; canonists qua
canonists cannot compel ecclesiastical authority figures to take or refrain from taking action on specific
cases. We can set out, to the best of our ability, the salient ecclesiastical issues in a case—and, of course,
await evaluation of our positions by qualified critics—but ultimately, responsibility rests with officials
in the local Church (or their hierarchic superiors) to investigate (or to direct the investigation of) impor-
tant pastoral and social matters such as those arising from the Terri Schiavo case. Or not, if that is what
they decide.
Edward N. Peters, JD, JCD
INTRODUCTION
gate hearings to the O.J. Simpson trial to the Clinton impeach-
Roughly  out of every 300 Americans is a lawyer. The re- ment trial, it sometimes seems that a growing percentage of
maining 299 of us who are not lawyers still have good reasons those who are not lawyers nonetheless fancy themselves as
to be interested in our legal system. Out of necessity, we have armchair legal strategists. Strictly speaking, there is nothing
to conduct much of our day-to-day affairs without a lawyer wrong with this; but when such non-lawyers try to deal with
standing beside us. Therefore we need to have at least some actual legal matters very serious problems can result. Gener-
knowledge about the law so as to anticipate the possible legal ally speaking, the same can be said of canon law and it makes
effects of our actions and, for sure, to know when to seek pro- little difference whether the offender is a common lawyer or
fessional counsel.
is simply someone who has watched too much Court TV, read
too many John Grisham novels or not stayed in a Holiday Inn
Aside from our personal involvement in legal matters, the Express.
give and take that is associated with legal processes and the
drama of the courtroom, where reputations, fortunes and
You might wonder how someone like me, who is not for-
sometimes even lives are at stake has attracted the attention of mally educated in either canon or civil law, would attempt
the general public throughout history. This is especially true to write even a superficial article about two complex legal
since the advent of television. From Perry Mason to the Water- systems. Obviously, I had to rely on the work of those who


---

are truly expert. One very valuable resource is the website of Dr.
supremacy; canon law is a system of legislative su-
Edward N. Peters. I am also grateful to the advice of my associ-
premacy. Grasp that, and one has the essence of the thing. Of
ates here at the Foundation, Michael Dunnigan and Duane Gal es
the 1,752 numbered provisions that make up the 1983 Code of
who, like Dr. Peters, are trained in both canon and civil law.2 Any
Canon Law, one of them (in fact, one section in one of them)
errors or shortcomings, however, are entirely my responsibility.
quietly sets forth this vitally important difference between the
ways these two great legal systems (common law, dating back
CANON LAW AND THE TEFLON DON
nearly 1,000 years, and canon law, which is nearly a millen-
nium older) function. (Emphasis in original.)
John Gotti, once called the “Teflon Don” for his ability to
slip through the fingers of the law and former head of the
Gambino crime family in New York City, died of cancer in
INTERPRETATION OF THE LAW
federal prison on June 0, 2002. At the time of his death he
The “one of them” referred to by Dr. Peters is canon 16, the
was serving a life sentence for racketeering and other crimes, full text of which appears at the top of page one. He proceeds
including murder, for which he was convicted in 992. The to explain the significance of this canon:
Bishop of Brooklyn denied the Gotti family’s request for a fu-
Every legal system worthy of the name faces a question: who
neral Mass in accord with c. 84, §, 3°. This canon prohib-
has the final authority to determine what a given law means?
its ecclesiastical funerals for “manifest sinners who cannot be
In a common law nation, the judiciary has the last word on
granted ecclesiastical funerals without public scandal of the
the interpretation to be accorded a specific legal provision (a
faithful,” unless they gave some sign of repentance before
power distinguishable from the legislature’s, or even the peo-
death. However, the bishop did say that a Mass for the Dead
ples’ power to change the text of the law itself. But, in a “Ro-
could be celebrated after burial, which was permitted in St.
man” or civil law system, the legislator himself generally has
John’s Cemetery in Queens.3
the power of “authentically interpreting” legal texts. Neither
By now, the events surrounding the death of John Gotti
the judicial supremacy approach nor the legislative supremacy
have long since exceeded the attention span of the general
approach is right or wrong and, I suggest, neither is particu-
public. Earlier this year, though, an article on the subject did
larly better than the other at doing what legal systems have
appear in the journal of St. John’s University School of Law.4
to do, namely, developing norms of conduct that can be un-
The piece was written by a civil lawyer, Patrick Gordon, who
derstood by and applied within their respective societies. Both
claimed that Most Rev. Thomas Daily, the Bishop of Brooklyn
systems have long and worthy records in upholding the rule
at the time, was wrong in denying Gotti a funeral Mass. Dr.
of law. But they obviously operate in very different ways, and
Peters took strong exception, saying:
lawyers well-trained in one tradition are at serious risk of mis-
Indeed, anyone with a background in canon law can see that
handling the provisions of the other unless they understand
Gordon’s article is a cornucopia of canonical errors and even
and accept the difference, in rather the same way that drivers
occasional gaffes. Gordon makes repeated mistakes in handling
who are used to driving on the right side of the road are highly
even the most rudimentary canonical sources and, because he
accident-prone when they go to a country that drives on the
wrongly utilizes techniques of legal interpretation that are
left. It says nothing about their basic skills behind the wheel,
sound in the common law system but which are gravely flawed
but it says much for the problems encountered when trying to
in the canonical, he utterly misconstrues the plain text of the
cope with a “foreign” way of doing things. Modern canon law
primary canon in question.
draws much more heavily from the classical Roman or civil le-
gal tradition, and not from the Anglo-American common law
Unfortunately, what would be quickly apparent to readers
tradition and as a consequence many canonical interpretive
with training in canon law will not necessarily be recognized
principles differ from those to which common law attorneys
by persons without. Given, therefore, the severity of the criti-
are accustomed.
cism that Gordon has visited upon a bishop who, I suggest,
was acting squarely within the scope of his authority, and be-
That canon law is a system of legislative supremacy is clear
cause that criticism rests on demonstrably shabby canonical
from the terms of 1983 CIC 16 § 1.
analysis, this reply is in order. 5
While the Pope can indeed interpret the law personally
The Peters article is seemingly severe, but is within the whenever he may choose to do so, he has entrusted the exer-
bounds of academic debate, given the seriousness of the defi- cise of this power to the Pontifical Council for the Interpreta-
ciencies he identifies in Gordon’s analysis. However, this arti- tion of Legislative texts (PCILT). PCILT can, with confirma-
cle is not about the rightness of Bishop Daily’s action, however tion by pontifical authority, issue authentic interpretations of
interesting a discussion of it might be. Mr. Gordon’s article is universal laws of the Church. It also assists other dicasteries
important to us because it illustrates so well the consequences of the Holy See in the issuance of general executory decrees,
of the failure to take into account the differences between two reviews general decrees of episcopal conferences and, at the
distinct legal systems. Dr. Peters states what is arguably the request of those interested, decides whether general decrees
key difference as follows:
of diocesan bishops or other legislators below the level of the
supreme authority are in conformance with the universal laws
I have encountered this attitude among common lawyers be-
of the Church.6
fore but, being trained in the common law system myself, I
It remains possible that an interpretation of the law could
think I understand what leads some of them so wrongly to his
[Gordon’s]
also be made in the course of a judicial decision or an admin-
conclusion. Canonical legislation does not read
istrative act. However, as stated in c. 6, §3, such an interpre-
like common law legislation for some very important reasons
tation would not have the force of law and would bind only
and common lawyers who would venture into canonical wa-
the parties involved.
ters need to understand this before setting out. It is certainly
not my intention to defend the felicity of every expression used
in the Code of Canon Law but, if one aspect of the difference
ECCLESIASTICAL COURTS
between canon law and common law needs to be clearly un-
As we have seen, the principle of judicial review does
derstood, it is this: Common law is a system of judicial
not exist in canon law. Parenthetically, it might be noted
2

---

here that the notion of the separation of executive, judicial
LAW AND ORDER
and legislative power as expressed in the Constitution of
the United States is not present in ecclesiastical law. The
Public order is a hallmark of civilization and its preserva-
Pope is the supreme legislative, judicial and executive au- tion is a basic function of any organized society. Civilization
thority on the universal level and the diocesan bishops or can hardly exist if the people do not feel reasonably secure in
their equivalents wield equivalent powers in the particular their persons and possessions.
churches.
In the Church, law and order involves more than simply
It also follows that in a system of legislative supremacy the the protection of persons and property. The salvation of souls
courts — or tribunals, as they are called in the Code of Canon depends upon sorting out truth from error so that the mes-
Law — would have less power than their common law coun- sage of salvation can be effectively proclaimed until Christ
terparts, which is indeed true.
comes again. Those of us who have heard this message and
embraced the faith have a right to expect that those who teach
In the first place, we have canon 1400, §2, the text of which in the name of the Church will present the truth without error
appears above. This means that, for all practical purposes, or ambiguity. We also have a right to the spiritual goods of the
disputes arising from such actions as parish suppressions or Church and to worship according to the norms established
mergers, renovation of church buildings or the removal of by the competent authority and we are entitled to expect that
pastors can be appealed only to the superior because, as yet, those who have been entrusted with the exercise of author-
there are no administrative tribunals in the Church below the ity should follow the example of our Lord by caring for their
Second Section of the Supreme Tribunal of the Apostolic Sig- sheep. In short, it is our pastors and bishops who have the
natura.
duty to drive away the ravenous wolves and return the stray
Second, secular courts can, for example, compel persons sheep to the fold. This includes using, when necessary, the pe-
under their jurisdiction to testify or to produce evidence, for- nal sanctions provided by canon law.
bid public discussion of pending litigation and, in general, en-
Like other aspects of canon law, Book VI of the 983 Code,
force their rulings. Ecclesiastical tribunals could also do these titled Sanctions in the Church, differs in many ways from sec-
things and even could coerce; but their coercive power is only ular criminal law. However, there is one fundamental similar-
moral, whereas civil courts can physically coerce as well. ity. i.e., it is the role of the competent public authority, not the
There was a time when ecclesiastical tribunals could look to victim of wrongdoing, to determine guilt and impose penal-
the state to enforce their sentences; but since the Reformation ties. In the Church, under most circumstances, this authority
this is no longer the case, especially in the English-speaking is exercised by the diocesan bishops and their tribunals. In
world.
our secular system, it is exercised by the public prosecutors
Third, stare decisis or the law of precedent does not ex- and the courts. In short, neither system countenances vigilan-
ist in canon law in the same way that it does in common te justice.
law, where appellate judicial decisions have legal force be-
Especially since the sexual abuse crisis erupted in 2002,
yond the cases they actually decide. In arguing cases before we have had opportunities to see how the secular and eccle-
Church tribunals, canonists can and do cite judicial deci- siastical officials deal with the same offenses. For example,
sions to support their position; but such citations have only just as this article was being written, a newspaper article re-
moral rather than legal force. Moreover, the Roman Rota is ported that the “Sonoma County Sheriff’s Office has recom-
the only ecclesiastical tribunal that regularly publishes its mended criminal charges be filed against Santa Rosa Bishop
decisions and then only ten years after the decision is made Daniel Walsh for failing to timely report evidence of sexual
and with redactions made to protect the privacy of the par- abuse by a Sonoma priest who has since fled the country.”8
ties. That is why canonists rely heavily on the comments by The article also reported that “It will be up to the Sonoma
those learned in the law instead of judicial decision, as Dr. County district attorney’s office to decide whether it can
Peters explains:
prove Walsh broke the law and whether there is ‘sufficient
Scholarly commentaries are to canonistics what court
evidence and circumstances to sustain a conviction.“’9 Re-
cases are to common law. Where the common law turns to
calling the words of Dr. Peters at the top of page one, re-
court decisions to elucidate the meaning of laws, canon law
sponsibility rests with the District Attorney to prosecute
looks to scholarly writings to illumine the purview of its pro-
Bishop Walsh. Or not, if that is what he decides. As of this
visions. One must appreciate, then, that Gordon’s failure to
moment, the District Attorney has not announced his deci-
use so much as a single canonical commentary in support of
sion.
his interpretation of Canon 1184 is akin to an appellate law-
One might say that the one thing that the secular and eccle-
yer’s fashioning a constitutional argument without reference
siastical systems have most in common is that neither is per-
to even one Supreme Court case dealing with the provision in
fect. Sometimes, in the former, an innocent person is wrongly
question. (Emphasis in original.)
convicted; although, more often, the perpetrator is erroneous-
This is reflected in the holdings of the St. Joseph Founda- ly acquitted or is never prosecuted at all. For instance, Carlo
tion’s library. Out of over fifteen hundred books, academic Gambino, the boss of the same crime family later headed by
journals, other periodicals and documents, only two deal ex- John Gotti, died of natural causes — which itself seems to be
clusively with the decisions of ecclesiastical tribunals.
the exception rather than the rule for mobsters — without
In the service of their clients, conscientious canon and civil ever being convicted of a crime. In contrast, though, we often
lawyers will first consider alternatives to litigation. However, get the impression that ecclesiastical penal law is hardly ever
if alternate means of resolution prove fruitless, the common used to call violators to account.
lawyer usually heads for the courthouse. The canon lawyer,
Finally, there is one more similarity between the two sys-
on the other hand, may also head for the tribunal; but usually tems. Both depend on the honor, commitment to justice and
looks elsewhere.7 In both canon and common law, approach- competency of those in charge.
ing the wrong forum may prove fatal to the case.
3

---

HOW THE SYSTEMS CAN BE CONFUSED
theory, the same is true in canon law. In practice, it falls upon
The St. Joseph Foundation has acquired considerable expe- the one who files the denunciation to build the case.
rience regarding law and order in the Church. Over twenty-
two years, we have recorded in our database a total of 3,09
CONCLUSION
requests for assistance. Of these, 422 had to do with canonical
Being finite and imperfect creatures, men are incapable of
discipline and another ,235 involved allegations that Church creating anything that is perfect, including a legal system. If
authorities failed to take action to correct abuses pertaining to we were perfect, then it would be reasonable to expect that
the liturgy, doctrine or the exercise of governance.0 We have our legal systems would always dispense perfect justice com-
seen that it is quite common for Catholics to assume that the bined with perfect mercy. Our Lord commands us to be per-
Church’s penal law works in much the same way as does the fect as our Father in Heaven is perfect. Sadly, try as we will,
secular criminal justice system. And this confusion of the two few of us will attain perfection in this life and neither will the
systems leads to frustration and disappointment.
legal systems that we devise and manage.
A penal case in either system usually begins the same way,
In addition to being imperfect, canonical processes, like
with a complaint being made to the proper authority. A civil their civil counterparts, are often complex and difficult. We
complaint is normally made to the law enforcement authority, do not need to make them any more so and jeopardize our
while an ecclesiastical complaint or denunciation is made to chances of success by applying the procedures of our secular
the diocesan bishop. After the denunciation has been made, legal system.
the differences between the two systems become apparent
and among them are the following:
(Endnotes)
. The Church does not have, nor does it really need, a sep-
arate and extensive investigative apparatus like the police or  http://www.canonlaw.info/2006/06/closer-canonical-look-at-
the FBI. According to canon 77, the ordinary can conduct schiavo.html. Dr. Peters currently holds the Edmund Cardinal Szoka
the preliminary investigation “personally or through some Chair at Sacred Heart Major Seminary in Detroit. This comment is
taken from a commentary concerning potential canonical problems
suitable person” The “Straws” in this issue from the dioceses with the wedding under Catholic auspices of Michael Schiavo and
of Springfield, IL and Bridgeport, CT are examples of bishops Jodi Centonze. This commentary was published as an article in the
using others to investigate. Unlike these incidents, most alle- Fellowship of Catholic Scholars Quarterly 29:2 (Summer 2006) pp. 6-8.
gations in canon law are not crimes in civil law and outside 2 The term civil law itself has multiple meanings. For the purposes
investigators are seldom involved. Thus, given the lack of in- of this article, it can be defined as secular law and I use the terms
vestigative resources, it is essential that denunciations include civil law, secular law and common law interchangeably. For a more
as many proofs as can be collected.
detailed discussion see Duane L.C.M. Galles, “The Civil Law”, The
2. There is an ecclesiastical office that is roughly equivalent Jurist 49 (989) 24-248.
to the district attorney: i.e., “A promoter of justice is to be ap- 3 http://en.wikipedia.org/wiki/John_Gotti. Also interred with Got-
pointed in a diocese for contentious cases which can endanger ti at St. John’s Cemetery are other figures connected with organized
the public good and for penal cases; the promoter of justice is crime, including Lucky Luciano, Carlo Gambino, Vito Genovese,
bound by office to provide for the public good” (canon 1430). Salvatore Maranzano and Carmine Galante.
The problem is that the office of promoter of justice is usually 4 See Patrick Gordon, “Gotti, Mob Funerals and the Catholic
held by a priest, although the law permits the appointment of Church”, Journal of Catholic Legal Studies 44(2005) 253-276. For
a layman or laywoman, who has many other responsibilities. the full text of the article, see: http://stjohns.edu/media/3/
He may also be the pastor of a busy parish or have additional 287de4bc44a64bb8954f79d0573d2464.pdf
duties at the chancery. Moreover, he does not have a number 5 Edward N. Peters, “Lest Amateurs Argue Canon Law: A Reply to
of deputies and other staff at his disposal, which provides an- Patrick Gordon’s Brief Against Bp. Thomas Daily“, Angelicum (2006)
other reason for a denunciation to be considerably more com- 2-42. Angelicum is an academic review published by the Pontifi-
cal University of St. Thomas Aquinas in Rome. A copy of the issue
prehensive than a secular criminal complaint.
was not available when this article was written. Therefore I used
3. Once the investigative phase is complete and it has been the text as it appeared on Dr. Peters’ website, which accounts for the
determined that it is likely that an offense has been commit- lack of page references. In order to avoid repetitious citations, all
ted, “The Ordinary is to start a judicial or an administrative excerpts from the article will be indented and in italics.
procedure for the imposition of penalties only when he per- 6 Apostolic Constitution Pastor bonus, Articles 54-58.
ceives that neither by fraternal correction or reproof, nor by 7 See Note  above.
any methods of pastoral care, can the scandal be sufficiently 8 San Francisco Chronicle, August 26, 2006, page B-2.
repaired, justice restored and the offender reformed” (canon
34). As the Santa Rosa case cited above indicates, a civil 9 Ibid. The internal quotation is from the statement of Lt. Dave Ed-
monds of the Sonoma County Sheriff’s Office.
prosecutor can exercise discretion; though we know of no state
or federal law that requires that alternatives to prosecution 0 For example, see: Charles M. Wilson, “More Weeds in the Canoni-
cal Garden,” Christifidelis, May 2, 997, http://www.st-joseph-foun-
must be considered. That is why a well prepared denunciation dation.org/cfd5-2.htm; Philip L.C. Gray, J.C.L, “The Necessity of
should contain persuasive arguments in favor of proceeding Law and Order,” Christifidelis, June 9, 1997, http://www.st-joseph-
with a penal process rather than the alternatives proposed in foundation.org/cfd5-3.htm; R. Michael Dunnigan, “Temptations
canon 34.
for the Weak and Burdens for the Virtuous: A Comparison of Canon
The victim of or a witness to a civil crime has only to report Law with Civil Law,” Christifidelis, June 3, 999, http://www.st-
it to the authorities and cooperate in the investigation, which joseph-foundation.org/cfd7-3.htm; and, Charles M. Wilson, M.T.S.
is normally conducted by professional law enforcement offi- and R. Michael Dunnigan, J.D., J.C.L., “Overdosing on the Medicine
cers who have the authority of government behind them. The of Mercy,” Christifidelis, June 22, 2004, http://www.st-joseph-foun-
dation.org/newsletter/lead.php?document=2004/22-3
victim does not have to worry about interviewing witnesses,
collecting other evidence and presenting the case in court. In  MT 5:48.
4

---