|A Question of Rights
Canon Law Reform is Now
By James E. Biechler
“In a recent issue of
ARCC Light I read a short piece in which a European lawyer claimed that
the church’s canon law needs reform. It took 65 years to reform the
first code and that reform was about 20 years after the Second Vatican
Council. As a canon lawyer don’t you think looking for another reform
is asking too much?”
—C. G. B., Seattle, WA
Your question is even more
appropriate when you consider that the first Code of Canon Law appeared
in 1917. There never had been a comprehensive codified system of
law in the church until our very own century. Before that time several
rather large and unwieldy collections of decrees, papal decretal letters,
conciliar legislation and canonical treatises served the church’s administrators.
It is possible to shape a
rather cogent argument that the codification of the law in 1917 was not
actually the best idea for the church. It helped create the illusion
that the church is an organization like a state or civil government which
enacts legislation, makes decrees like an emperor, and has a system of
courts run by judges. When he announced the Second Vatican Council,
Saint John XXIII also announced a revision of the Code of Canon Law.
That was an understandable act at the time. After all, he had no
idea that the council would precipitate a revolution in the church, a major
“paradigm shift” akin to those in the scientific world as described to
Thomas Kuhn in his book The Structures of Scientific Revolutions.
Pope Paul VI recognized this
major shift brought about by the council’s work. On several occasions
in speaking about the reform of canon law he referred to a “novus habitus
mentis” (a new mindset) which henceforth must characterize the normative
dimension of the church. The council had given the church a new vision
of itself, the People of God, along with a new sense of its relationship
to the world. The church is a “mystical body” and not at all patterned
after the civil order. The canonist and ARCC board member, James
Coriden, has argued that canon law is law only in an analogous sense, more
different than it is like civil law. When church administrators lose
sight of this their leadership lacks the mystical quality essential to
You can gather that I am
going to answer your question in the negative. No, another reform
of canon law is NOT asking too much. Thirty five years after Vatican
II it is now clearer than ever that because a major paradigm shift has
taken place in the church, a set of norms patterning itself on a law book
that had not heard of subsidiarity, collegiality, religious liberty, that
had little or no sense of the dignity and equality of women, that saw the
church in essentially European terms, that embodied a pyramidal social
structure and a caste-like system of social divisions—such a church exists
now only in the corridors of Vatican power. It has mostly disappeared
elsewhere and where it hasn’t it is destined to disappear before long.
Paradigm shifts in science,
Kuhn tells us, require a reconstruction of prior theory and the re-evaluation
of prior fact, “an intrinsically revolutionary process that is seldom completed
by a single person and never overnight.” It’s almost as if he had
lived through Vatican II and its aftermath! He tells us that the
shift from one paradigm to another involves a “conversion experience.”
Paul VI’s “new mindset” says the same thing. The Code of Canon Law,
even in its revised version, as much an improvement as it really represented,
is still seriously deficient in its sense of the church.
The canonist Ladislas Orsy,
S.J., has pointed out that the revised code, for example, underlines the
clergy-laity distinction. “Few people,” he said, “are aware that,
in some ways the distinction between laity and clergy in the Roman Catholic
church today is much sharper than it has ever been in the course of Christian
history. Before quite recently—the turning point was the 1983 publication
of the new Code of Canon Law—the laity could participate in a number of
ways in the decision-making processes of the internal life of the church.”
So clericalism was actually enhanced by the revised code.
Many canonists and others
have pointed out that canon law does not adequately protect the rights
of church members. If you have a grievance against a pastor or bishop
because of what you believe was a violation of your rights as a Catholic,
your only recourse is to take the matter to the ecclesiastical superior
of that person. Your chance of getting a just resolution is just
that, mere chance. There is no judicial tribunal which could hear
your complaint. The advocacy group “Justice for Priests and Deacons”
has been in existence less than a year and already has handled 122 complaints.
There are lines and lines of Catholic laity who have been fired from their
jobs or denied adequate employment benefits but are without recourse.
Most just give up and walk away embittered. Reputable canonists have
long pointed out the crying need for a new approach to marriage law.
The present system which denies the Eucharist to the divorced and remarried
does not reflect the love and mercy of God.
I’m sure you’ll have to admit
that, with a list like this, serious structural reforms are necessary.
The matter is actually critical as we see more and more disenfranchised
and abused Catholics leave the church.
Dr. Biechler, an emeritus
professor of religion, is a member of ARCC's board of directors. He also
holds a licentiate in canon law and is a longtime member of the Canon Law
Society of America.
Comments to Dr. Biechler