Cutting Edge Problems in Canon Law:
"Postea Videbimus" Comes True for Leaders
Introduction: Canon law and moral theology at the Gregorian University in the 1960s era were done in the first
two years of study. Due to the short two year time in class, some questions had to be put off as "We will see this later"
(Postea videbimus). Some of these topics proved to be perennial. Cutting edge topics of the time were
Due Process, Subsidiarity, and Selection of Bishops. These continue. New topics, inconceivable in the 1960s, have
arisen. At the cutting edge of canon law are changes in Tribunal Process, and the Poblem of Sexual Abuse of Minors.
Due Process: There are four cutting edge considerations. First, in every case the path of appeal should be
made clear. Within church structure, there is always an appeal in administrative matters to the superior of the person
making the decision not satisfactory to the petitioner. In administrative matters, issues may be appealed even up to
the Apostolic Signatura, or even the Pope, whose decisions cannot be appealed (c. 333, par. 3). Second, although the
local bishop has the authority to disregard the decisions of his due process structures, such disregard lessens the credibility
of the due process structure which is set up to promote the just application of law in the local church. Third, as a
church which fosters peace and reconciliation, due process efforts must address the need to listen to people's complaints
(c. 212, par. 2), encourage abundant apologies (despite what civil attorneys might recommend), and at times accept the "cross"
of being misunderstood and maltreated. Fourth, some national norms are being developed by the bishops' conference,
but these have not been finalized and will need the recognitio of the Holy See for their promulgation. See
Canon Law Society of America, Proceedings 63 (2001): 37.
Subsidiarity in the Church: Abundant literature and differing interpretations about subsidiarity lead to the question:
is the principle of subsidiarity fully applicable in the church? And "fully" means not only the positive aspect that
the central authority reserves something to itself, but also the negative aspect of not impeding other levels of government
from doing what they have the capacity to do. At the end of the 1985 Synod of Bishops, Pope John Paul II said the principle
of subsidiarity "is a subtle question which takes its origin from problems of a social, not ecclesiastical nature."
The Pope added, "My predecessors Pius XI and Pius XII accepted it as a valid principle for social life, whereas for the
life of the Church they pointed out that any application must be made 'without compromising the Chruch's hierarchical structure'."
See Pope John Paul II, "Implementing the 1985 Synod," in Origins 16 (1986-1987): 195. In the Pope's opinion
the principle of subsidiarity is not fully applicable in the Church. It appears that the principle of subsidiarity has
never really been applied and will never be applied, except by analogy to civil society. See Msgr. Roch Page, "The Principle
of Subsidiarity Revisited," in CLSA Proceedings 64 (2002): 207. We know the two realities are analogous when
there are similarities and differences, but the differences are greater than the similarities. If the Church and civil
society resemble each other in that they are composed of human persons seeking a common good, they are nevertheless essentially
distinct from each other by the hierarchical structure of ecclesial society, whose existence is not based on a social contract
established among the members, but on the will of its Founder. So the mission of the Church leaders is to conduct its
members toward unity and toward communion in the larger Church, which will always be considered its final goal.
Subsidiarity and Penal Law: The document from the Congregation of the Doctrine of Faith, 18 May 2001, on
the handling of certain grave offences, takes away from the diocesan bishops the right to implement penal law on their own.
See the text in Origins 31 (2001-2002): 528-529 and related articles. This document seriously restricts the
coercive power of the bishop and centralizes a good portion of this power at a higher level. However, this may
actually be an application of the principle of subsidiarity in its positive aspect, which is giving assistance. In June
2002, legal norms were prepared in Dallas on zero tolerance in cases of sexual abuse. In the light of the provisions
of this controversial document, the Holy See can be of help to the Episcopal Conference and local bishops by receiving administrative
recourse. See CLSA Proceedings 64 (2002): 202 and 206.
Selection of Bishops: The clergy sex abuse scandal of 2002 has spotlighted a number of shortcomings related to
the selection of bishops in the United States. Improvements in the process of selection of bishops are needed.
First, consultation on the needs of the diocese and the quality of the candidates should be through and open. Second,
greater transparency in the process would eleminate the suspicion of favoritism and inspire confidence in the system.
Third, episcopal "problems" must be reported faithfully and effectively. Fourth, transfers from one diocese to another,
espcially after short periods of time, are harmful to the church, by reducing local churches to "stepping stones." See
CLSA Proceedings 65 (2003): 65.
"New" Marriage Annulment Instruction: Norms of Book VII of the 1983 Code of Canon Law were promulgated
at a time when the Holy See was concerned about "abuses" in the application of procedural law. Many of the canons were
an over-reaction. The Pope himself raised the need for some new instruction: see Pope John Paul II, Origins
25 (1995-1998): 615-616. The Pope raised the problem for a second time: see Pope John Paul II, Origins
27 (1997-1998): 584-586. A Commission was formed 24 February 1996 (Prot. N. 388,342) to help the Apostolic Signatura
issue an Instruction on matrimonial processes. The first draft was submitted o 22 February 1999. Bishops commented.
A second draft was distributed in 2002. The finished Instruction Dignitas Connubii (15 January 2005) was published
by the Pontifical Council for Legislative Texts, and signed by Julian Cardinal Herranz. In addition to its helpful update
on marriage processes, the Instruction also gives insight into the mind of the Roman Curia, one of the norms (c. 19)
for the interpretation of the Code of Canon Law.
Sexual Abuse of Minors: Concerning "procedural penal law," all other tribunals are absolutely incompetent without
the prior authorization of the Congregation for the Doctrine of Faith, which can refer the case: 1) back to the local
bishop, 2) to itself, or 3) to the Pope for immediate dismissal. Concerning "substantive penal law," the Code
of Canon Law, canon 1395, paragraph 2, is applicable, "A cleric who... has committed an offense against the sixth commandment
of the Decalogue, if the delict was committed by force or threats or publically with a minor below the age of 16 years, is
to be punished with just penalties, not excluding dismissal from the clerical state, if the case so warrants. In the
United States: 1) the age was raised to 18 years, 2) "clerics" applies only to priests and deacons (and not before ordination),
and 3) a dispensation can be obtained from the "statute of limitations". The problem in Substantive Law in the United
States is the the norms adopted in Dallas mandate "no tolerance." There are also questions in Applied Law: 1)
does the accused really have the right of defense? and 2) is there proportionality between blame and penalty (see c.
1324 on mitigation)?