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NEWSLETTER: No. 135 SEPTEMBER 2003
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The Bishop as the Minor of
Justice and Equity in the Particular Church
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Vexatious and Violent
Respondents
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Twenty Years on from the
Promulgation of the Code
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Interpretation of Canon 1598 §2
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Giants of Canon Law
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Subsidiarity
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Gratian, Bologna and Marriage
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Canadian Canon Law Society
Conference
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Monsignor John Barry
DOCUMENT
No.I: The Bishop as the Mirror of Justice and Equity in the
Particular Churches
(Professor Augustine Mendonça)
DOCUMENT NO.
II: Documentation when the Respondent is a Violent or
Vexatious Litigant
(Fr. Ian Waters)
DOCUMENT NO.
III: Violent or Vexatious Respondents: Comment: (Mgr.Gordon
Read)
DOCUMENT NO.
IV: Twenty Years of Canonical Experience Since 1983 (Pope
John Paul II)
DOCUMENT NO.
V: Twenty Years On. Comment: (Mgr.Gordon Read)
DOCUMENT NO.
VI: The Interpretation of Canon 1598 §2
DOCUMENT NO.
VII: Giants of Canon Law: Matteo Conte a Coronata, Gommaire
Michiels,
Felix Cappello
DOCUMENT NO.
VIII: Subsidiarity as Jurisprudential and Canonical Theory
(Sister Rachel Harrington, SNID)
DOCUMENT NO.
IX: Gratian, Bologna and Marriage (Fr.Derek Vidler)
DOCUMENT
NO.X: Monsignor John Barry: Obituary
DOCUMENT NO.
XI: A Tribute to Monsignor Barry in
The Scotsman
In recent
months, voices have been raised over the world critical over
the way some Bishops have been exercising their Episcopal
authority. This was hardly something to have raised eyebrows
towards the end of the 19 Century in places like Australia
and the United States of America. Nuns (i.e. Sisters) were
for ever having their problems with Bishops and the latters’
exercise of authority; and many of these cases were not
solely the fault of the Sisters. There have been many pieces
recently written, specially in the USA, about the abuse of
power by Bishops; usually concerning the rising number of
cases involving clergy sexual abuse. Today more than ever,
people have become more and more aware of their rights and
obligations within society and within the Church; and not a
few of these have been clerics.
Professor
Augustine Mendonça of St Paul University in Ottawa has
reviewed the Annual Report of the Holy See; especially
examining the activities of the Signatura Apostolica between
the years 1994 and 1999. (At the time these volumes were the
most recent available). It seems that over this period, some
89 cases of recourse were received and examined by the
Sectio Altera of the Signatura; and of these 34
concerned Bishops’ decisions; also to be added are 19 cases
dealt with by the Signatura’s Collegiate Panel. Professor
Mendonça has described some of these in the CLSANZ
Newsletter No.1 for the year 2003 (cf. Document No.1). The
underlying principle made by Professor Mendonça is that if
the Code had been observed, such problems would rarely have
arisen.
It seems
there are more and more persons who wish to go head to head
with each other in marriage cases but more particularly this
applied in civil law courts. But now more and more it seems
to be happening in Canon Law, since this is the experience
of Tribunals throughout the world. One of the trouble spots
concerns a person’s acceptance (or here non- acceptance) of
the principle of invalidity. People can be presently
divorced and maybe living in happy second unions, but they
bridle at the notion that the other party is now suggesting
that the first union was invalid. On the other hand, the
problem might be that a party to an earlier (broken and
divorced union) does not hold with anyone’s remarriage. Such
people often fall under the heading of Vexatious Litigants.
Unfortunately, there is no procedure in Canon Law for
disbarring them from action as there is in civil law. Now
the European Courts act as a lure to a litigation - hungry
party. It is left to the unhappy Tribunal daily to open the
mail and for the heart to miss a beat when well known
writing appears amongst the envelopes. Father Ian Waters,
the Judicial Vicar of Melbourne (no stranger to the handling
of such cases in Australia), has contributed some special
documents for use from the beginning to the end of a case to
help those Officials in Tribunals in trying circumstances.
(See Document No. I Monsignor Gordon Read has added some
comments which are helpful to anyone ploughing a course
through this vexatious jungle. (See Document No. III).
The present
Code was promulgated on 25 January 1983 and it took effect
from the First Sunday of Advent that year. The Pontifical
Council for the Interpretation of Legislative Texts
organised a study day (on 24 January 2003) to mark the 20
Anniversary of the New Code. The Pope addressed the
participants. He asked lawyers to take the Code and the
Council together to develop a sound juridical culture. The
Pope’s Address (from L ‘Osservatore Romano of 5
February 2003 is at Document No. IV) Monsignor Gordon Read
has prepared a Commentary on the Address (see Document No.V).
A point has
arisen about the interpretation of this paragraph of Canon
1598. The Canon itself reads: “To complete the proofs, the
parties can propose other proofs to the Judge. When these
have been assembled, the occasion arises anew for the decree
mentioned in § 1, if the Judges considers it necessary”. It
will be recalled that in § 1 of the same Canon the Judge was
to decree that the parties and their advocates were
permitted to inspect the acts not yet known to them. A point
has been raised as to whether there has been a faulty
translation of the Canon in the new CLSA Commentary,
and in CLS: Letter and Spirit. This matter has been
taken up and studied by Monsignor Gordon Read. He does not
reach an identical conclusion on the matter as Professor
Augustine Mendonca in Roman Replies and Advisory Opinions
2001. (See Document No. VI).
The June
number of CLSN carried a review of the lives and canonical
contributions made by some of the juridical giants of the
past. The lives of Father Adam Ellis, SJ., Father T.Lincoln,
Bouscaren (of Bouscaren and Ellis fame) and of Father
William Doheny, CSC., were outlined by Father Larry Wrenn
writing in Studia Canonica vol.35/2, 2001, pp.11 if
This number of CLSN adds the names of Matteo Conte a
Coronata, OFM.Cap; Father Gommaire Michiels, OFM.Cap; and
finally and probably most important of all Father Felix
Cappello, SJ. It will surprise no one to learn that in due
course the Cause of Father Cappello may well be introduced.
(See Document No.VII).
The Editor
recalls that during the time that the Second Vatican Council
was being prepared, one of the in-words used was
Subsidiarity. This was the principle which was being put
forward in the faculties of Philosophy, Theology and Canon
Law at the Gregorian University. Indeed as was usual, it was
so much the in-word that everybody used it; and no one (or
very few) really understood what it was really about. It was
term slipped into exams. It was one of those things which
was clearly going to become very popular. It was the whole
background for consultation.
However, not
only has the Vatican Council been cited as the one main
protagonist for the application of the principle of
subsidiarity, but the term is now the in-word used in the
European Law. Of course, the European Constitutional
principles can do little harm in the eyes (and ears) of
ecclesiologists. An extremely interesting view of the
in-word has been written up by Professor John Warwick
Montgomery in Law and Justice no.148, 2002, pp. One
of his remarks obviously stimulates interest: “fellow
barrister friends at Lincolns Inn — including serious
Christian believers — have had nothing good whatever to say
about the impact of the doctrine on European community
relations”. There is also the comment that despite the
reasons for the deployment of the concept of subsidiarity
(i.e. protection against the growth of centralised
authority), the principle does not appear to provide the
needed answer to the vital question “how to interrelate the
levels of a hierarchical structure”. Sister Rachel
Harrington, SND, who devoted several years to writing a
thesis on the topic of subsidiarity has made a comment here
on the article of Professor Montgomery entitled Subsidiarity
as a Prudential and Canonical Theory. (See Document No.
VIII).
From about
the middle of the 10 Century, a reform movement can be
identified in Europe. There was the growth of centralised
government in the Church; and there can be identified an
increasing role of the Papacy in society. This was a time of
growing prosperity and commerce, and an increasing number of
important city states were demanding the civil law as well
as it applied in Church Law to regulate their modern life.
All this led to the increase in the importance of
Universities such as Bologna at the turn of the millennium.
By the end of the 11 Century Bologna had become one of the
important centres for the revival in the study of Roman Law;
and then Church Law. An interesting analysis of this
development is sketched out by Father Derek Vidler in
Document No.X.
The CCLS
will be holding its 38 Annual Conference between 20 and 23
October, 2003 in London, Ontario. This will be attended by
the President of the CLSGBI, Father John Conneely.
It was very
sad to hear of the death of Monsignor John Barry on 1 July
2003 in North Berwick. John was 85 when he died. He was born
a year before the end of the First World War. He was
ordained a year before the end of the Second World War. He
graduated as a Doctor of Canon Law from the Gregorian
University in 1949. Less than ten years after that he was
one of the Founding Fathers of the Canon Law Society.
He was the first Editor of Canon Law Abstracts. He
had a distinguished career as an outstanding Seminary
Rector, a celebrated Canon Lawyer, and a distinguished
parish priest. His Requiem was celebrated on Thursday 24
July 2003, at St Mary’s Cathedral in Edinburgh. May he rest
in peace. His obituary appears at Document No. X; and a very
interesting account of his life also appeared in The
Scotsman on 24 July 2003, written by Michael Turnbull.
(See Document No. XI).
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