Although judicial and administrative decision-makers focus most of their attention on the written law, they should remember that the unwritten principles of natural law are equally binding on their processes. The 1992 Senate confirmation hearings of Justice Clarence Thomas may have dealt a black eye to natural law theory, but there is no denying that our legal system has a tradition of acknowledging natural law principles, albeit by many other names. Most significantly, American courts read our constitutional guarantee of "due process of law" to require "fundamental fairness" in adjudicative procedures. Similarly, "human rights" is a modern name for some ancient principles of natural law and no judicial proceeding may licitly deny these rights, whether the proceeding be civil or canonical.

Because these natural law rights to fair procedures are most familiar in the context of our democratic institutions, some may take a discussion of them in the context of canon law to be a call for a wholesale incorporation of the civil processes of the Western democracies into Church proceedings. Such an interpretation would be a serious mistake. Any comparison between legal systems must keep in mind the Church’s altogether unique nature:

"The Church is not a human institution. It was founded not by men but by Jesus Christ. Christ gave its fundamental constitution, which is not that of a democracy—in the sense of a society ruled by the people through delegates whom the people freely choose and can freely remove from office. The Church is not a democratic society, but is in fact a ‘hierarchically constituted society’ (Lumen gentium 20), ruled by persons appointed from above."2 

That said, it is equally important to remember that the Lord’s bestowal of authority does not remove the human defects and weaknesses of those whom He chooses. For this reason, the canonical system is no more immune than the civil system from the arbitrary or abusive exercise of authority. Bishops and other Church authorities may not be accountable to the faithful, but they are obliged to act in fairness and good faith. Although this obligation is acknowledged in canon law, it arises first from the principles of natural law.

Natural law exists apart from positive law, whether civil or canonical, and it transcends both time and culture:

"In the Antigone of Sophocles, composed in 442 B.C., Antigone invokes a higher law, the law of nature and natural rights, when she says to King Creon: ‘But all your strength is weakness itself against the immortal unrecorded laws of God.’" 3 

Aristotle affirms that "there is such a thing as Natural Justice as well as justice not ordained by nature."4  Our own Declaration of Independence appeals to "the law of nature and of nature’s God." The natural law tradition is by no means foreign to the Church, but is in fact deeply indebted to Her: "[T]he principal bearer of an explicit theory about natural law happens, in our civilization, to have been the Roman Catholic Church."5 

Although certain peoples at various times have formulated these principles in particularly memorable language, these rights do not belong exclusively to any single nation or people. The widespread recognition of these rights by diverse traditions, individual nations and transnational organizations confirms that they are basic human rights. As evidence of this, articles 10 and 11(1) of the United Nations’ Universal Declaration of Human Rights recognize the rights to a fair hearing, an impartial tribunal, the presumption of innocence and an effective self-defense. Because these are basic human rights, all judicial and administrative procedures—whether civil or canonical—must ensure their protection. In 1977 the Committee of Ministers of the Council of Europe adopted a resolution entitled "On the Protection of the Individual in relation to the Acts of Administrative Authorities."7  Building on this resolution and on a long legal tradition, Fr. Thomas Paprocki, the Chancellor of the Archdiocese of Chicago, shows that Church administrative recourses should ensure the following five "basic procedural rights":

•  the right to an impartial decision-maker,

•  the right to adequate notice,

•  the right to be heard,

•  the right to assistance and representation, and

•  the right to an equitable decision and remedies.8

A student of the Church’s system of justice might well conclude, however, that these rights receive nearly as much honor in the breach as they do in the observance.

One formidable obstacle to obtaining justice in the canonical system is a situation that can be described as a practical embargo on information. Litigants generally have no right to obtain evidence or documents necessary to their defense or petition. One bishop levied the Church’s most severe sanction, that of excommunication, against a small group of Catholics without permitting them to view or challenge the evidence against them. With regard to issues that are less dramatic but of widespread application, the faithful are often told that a certain diocesan policy requires the administration of the sacraments or the renovation of their parish church in a particular way. However, when they request a copy of the policy, the diocesan personnel refuse to make it available.

The Foundation’s original purpose was to advise and assist lay Catholics, but it is now receiving an increasing number of inquiries from priests. Although we are sometimes in the position of persuading lay Catholics that it would be best not to raise a controversy over a minor or merely technical violation of Church law or liturgical rubrics, we find that priests almost never request our assistance unless they face a serious and substantial threat to their rights. One disturbing development is the misuse of psychological treatment centers.9  One religious superior held a provincial council meeting to discuss his determination that one of his priests should be required to submit to an out-of-state psychological treatment program for six to twelve months, but he refused to allow the priest to receive representation at the meeting. The superior insisted that the priest attend a treatment center specializing in sexual and substance abuse problems, despite the absence of even a suggestion that the priest suffered from either problem. The superior charged only that the priest had problems with authority, but he declined to produce specific examples or evidence to substantiate even this allegation. An explanation for the superior’s actions may lie in the fact that the priest stands out for his orthodoxy in a religious order where the prevailing wind is from the "progressive" direction.

With regard to protecting fundamental rights to a fair proceeding, canon lawyers and Church authorities could benefit from some of the insights and practices of our civil system.10  Litigation concerning sexual misconduct by clergy is one of the areas in which a plaintiff has a theoretical choice between the civil and the canonical systems. It seems, however, that few (if any) plaintiffs have opted for the canonical system. One reason, of course, is that reports of large jury verdicts add luster to the civil system for many plaintiffs. However, the Foundation occasionally hears from potential plaintiffs who wish to "keep it in the family" and to work within the Church’s own structures. If any member of this latter group has received satisfaction within the canonical system, we are unaware of it. Even these persons seem eventually to bring a civil suit (or else forego any hope of justice).

One cannot expect an increase in respect for the quality of justice administered in the Church unless procedural fairness is first guaranteed. Although courts in the United States generally avoid involving themselves in canonical processes, Canadian courts have occasionally found it necessary to review canonical procedures to ensure their compliance with basic natural justice.11  This type of intervention would likely be unworkable and undesirable in the United States, but its prospect—however remote—is a reminder of the necessity of guaranteeing natural rights in canonical processes.

Civil governments mitigate abuses of authority by avoiding the concentration of power and by placing the legislative, executive and judicial powers into different hands. This solution does not translate well into the canonical system, however, because Our Lord’s founding of the papacy and the episcopacy appears to be a deliberate choice in favor of concentrated authority. Although we have not yet found an effective way to harmonize the Church’s divinely instituted structure with the requirements of natural justice, we can be assured that such a harmony is indeed possible because the Church and the natural law share a common source.

Notes

 1 Thomas J. Paprocki, J.C.D., Vindication and Defense of the Rights of the Christian Faithful Through Administrative Recourse in the Local Church (Ann Arbor, MI: UMI, 1995), p. 491 [hereinafter, "Paprocki"].

 2 Cormac Burke, Authority and Freedom in the Church (San Francisco: Ignatius Press, 1988), p. 29 [hereinafter, "Burke"].

 3 Paprocki, pp. 32-33. (footnote omitted)

4 Aristotle, Nichomachean Ethics (Cambridge, MA: Harvard University Press, 1982), V, vii, 4.

5 Paprocki, p. 68 (quoting John Finnis, Natural Law and Natural Rights, p. 124) (footnote and internal quotation marks omitted).

 6 See Forrest McDonald, Novus Ordo Seclorum (Lawrence, KS: University Press of Kansas, 1985), p. 37; see also Paprocki, p. 36.

 7 Paprocki, p. 363.

 8 Paprocki, pp. 456-57.

 9 See Lesley Payne, "Salt for Their Wounds," Catholic World Report (Febr. 1997), pp. 50-59.

 10 Rev. Francis G. Morrisey, O.M.I., "Canon Law Meets Civil Law," Studia Canonica, v. 32/1 (1998), p. 201 [hereinafter, "Morrisey"]. Apart from his diatribe against "certain so-called ‘Catholic’ foundations," quoted in "Straws in the Wind," Fr. Morrisey’s article makes several good points about justice in the Church.