Reforming Canon Law

Pope Paul called the Second Vatican Council "the beginning not the end" of renewal in the Roman Catholic Church, but apart from the vernacular liturgy, change has come slowly. To get on with reform, a study group of the Canon Law Society of America--representing the U.S. experts who teach and explain the church's juridical code--met this month in Pittsburgh and put forth a series of recommendations for carrying out the spirit of Vatican II.

The proposals, which emphasize human rights rather than church discipline, deal not only with the canon-law code but with basic constitutional problems of the church. Arguing that the church should incorporate more of today's democratic ideals in its structure, they urge a more distinct separation of executive, legislative and judicial functions. Under the present code, explained Jesuit Ladislas Orsy of Catholic University, there is a certain "imbalance" in church government: in practice, the offices of the Roman Curia both plan church regulations and enforce them. A wiser mode of government would be to have the law-creating function carried out by a separate, non-Curial agency--such as a senate of bishops. Another problem is that the church's courts--from Rome's Rota down to diocesan tribunals--have no real powers to interpret the code of canon law, but merely apply it.

Elected Bishops? In the same spirit, the study group, which included theologians and Biblical experts as well as canon lawyers, proposed restoration of the ancient tradition by which laity and priests participated in the selection of bishops and elimination of free-and-easy transfer of bishops from see to see. Other proposals:

> Abolition of all prior censorship of books (by withholding the imprimatur), and all outmoded ecclesiastical penalties, such as automatic excommunication without prior hearing for violation of the seal of confession.

> Public justice, whenever possible, as compared with present star-chamber proceedings.

> "Full participation" of women in the life of the church--which some canonists interpret as a veiled recommendation that women be ordained to the priesthood.

> More allowance for local variation in applying a legal code that currently attempts to be universal in scope. As one canonist foresees it, church law in the U.S. might some day use some of the procedures of English common law rather than those of the more codified Roman law that underlies the existing canons.

>-A bill of rights for correcting grievances, which implies the need for new channels through which priests and nuns could appeal unjust orders of superiors.

Such proposals, which would be radical enough coming from a modern German theologian, are all the more so coming from canon lawyers, who by the nature of their profession tend to be conservatives. Although church officials from the beginning of Christianity found it necessary to draw up rules of proper ecclesiastical behavior, the first collection of such laws dates only from the Middle Ages. Inspired by the revival of study of Roman civil law, clerical scholars began to organize the various pronouncements of Popes and councils on ecclesiastical discipline over the centuries, deciding what rules were relevant. Canon law was not completely codified until 1917; it contains 2,414 articles in Latin, dealing with everything from the penalties for abortion (excommunication, revocable only by a bishop) to a description of the different kinds of vows (public or private, solemn or simple) taken by religious.

Judge of His Accuser. Based on the presumption that law is a means of enforcing community discipline rather than a guideline for regulating a society of equals, canon law contains numerous inequities that have become glaringly obvious in recent years. There are, for example, almost 50 canons detailing the duties of bishops, only one on the rights of laymen in the church. When Father William DuBay* of Los Angeles charged two years ago that his bishop, James Francis Cardinal Mclntyre, should be removed from office on grounds of "gross malfeasance in office," he had no chance for an unbiased hearing under church law. Had DuBay followed canon-law procedure, his complaint would have been sent to Rome's

Consistorial Congregation, which in turn would have passed it on to the apostolic delegate in Washington and thence to Mclntyre for comment and action. In effect, Mclntyre, the accused, became legal judge of his accuser.

Well aware that reform of canon law is the key to organizing Catholic progress, Pope John XXIII set up a pontifical commission in 1963 to revise the code. Pope Paul augmented the Commission, which now includes 61 cardinals and 88 consultors--nearly one-fourth of them Italians. Although the makeup of the commission suggests that reform of canon law will be slow and cautious, Monsignor Willem Onclin, its Belgian co-secretary, was present at the meeting of the U.S. Canon Law Society that received the study group's proposals, and returned to Rome astounded and pleased by the adventurous spirit of the suggested reforms. The recommendations will be received "with gratitude," Onclin assured the Americans.

* Who last week took a personal step toward correcting canonical injustice as he sees it by announcing the opening of a national office in Santa Monica of a proposed union of U.S. Catholic priests. Dues: $25 a year.

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