Applying the Principles and Procedures of
Civil Law to Canon Law: A Recipe for Frustration
By Charles M. Wilson
§1. The legislator authentically interprets laws as does the
one to whom the same legislator has entrusted the power of
authentically interpreting.
§2. An authentic interpretation put forth in the form of law
has the same force as the law itself and must be promulgated.
If it only declares the words of the law which are certain in
themselves, it is retroactive; if it restricts or extends the law,
or if it explains a doubtful law, it is not retroactive.
§3. An interpretation in the form of a judicial sentence or of
an administrative act in a particular matter, however, does
not have the force of law and binds only those persons and
affects only those matters for which it was given.
Canon 16, 1983 CIC
§1. The object of a trial is:
1° the pursuit or vindication of the rights of physical or
juridic persons, or the declaration of
juridic facts;
2° the imposition or declaration of a
penalty for delicts.
§2. Nevertheless, controversies arising
from an act of administrative power
can be brought only before the superior
or an administrative tribunal.
Canon 1400, 1983 CIC
Contrary to the perception of some,
canon lawyers are not “private attorneys
general“; canonists qua canonists
cannot compel ecclesiastical authority
figures to take or refrain from
taking action on specific cases. We can
set out, to the best of our ability, the
salient ecclesiastical issues in a case—
and, of course, await evaluation of
our positions by qualified critics—but
ultimately, responsibility rests with
officials in the local Church (or their
hierarchic superiors) to investigate (or
to direct the investigation of) important
pastoral and social matters such
as those arising from the Terri Schiavo
case. Or not, if that is what they decide.
Edward N. Peters, JD, JCD1
INTRODUCTION
Roughly 1 out of every 300 Americans is a lawyer. The remaining
299 of us who are not lawyers still have good reasons
to be interested in our legal system. Out of necessity, we have
to conduct much of our day-to-day affairs without a lawyer
standing beside us. Therefore we need to have at least some
knowledge about the law so as to anticipate the possible legal
effects of our actions and, for sure, to know when to seek professional
counsel.
Aside from our personal involvement in legal matters, the
give and take that is associated with legal processes and the
drama of the courtroom, where reputations, fortunes and
sometimes even lives are at stake has attracted the attention
of the general public throughout history. This is especially
true since the advent of television. From Perry Mason to the
Watergate hearings to the O.J. Simpson
trial to the Clinton impeachment trial,
it sometimes seems that a growing percentage
of those who are not lawyers
nonetheless fancy themselves as armchair
legal strategists. Strictly speaking,
there is nothing wrong with this;
but when such non-lawyers try to deal
with actual legal matters very serious
problems can result. Generally speaking,
the same can be said of canon law
and it makes little difference whether
the offender is a common lawyer or is
simply someone who has watched too
much Court TV, read too many John
Grisham novels or not stayed in a Holiday
Inn Express.
You might wonder how someone
like me, who is not formally educated
in either canon or civil law, would attempt
to write even a superficial article
about two complex legal systems. Obviously,
I had to rely on the work of
those who are truly expert. One very
valuable resource is the website of Dr.
Edward N. Peters. I am also grateful to
the advice of my associates here at the
Foundation, Michael Dunnigan and
Duane Galles who, like Dr. Peters, are
trained in both canon and civil law.2 Any errors or shortcomings, however, are entirely my responsibility.
CANON LAW AND THE TEFLON DON
John Gotti, once called the “Teflon Don” for his ability to
slip through the fingers of the law and former head of the
Gambino crime family in New York City, died of cancer in
federal prison on June 10, 2002. At the time of his death he
was serving a life sentence for racketeering and other crimes,
including murder, for which he was convicted in 1992. The
Bishop of Brooklyn denied the Gotti family’s request for a funeral
Mass in accord with c. 11 84, §1, 3°. This canon prohibits
ecclesiastical funerals for “manifest sinners who cannot be
granted ecclesiastical funerals without public scandal of the
faithful,” unless they gave some sign of repentance before
death. However, the bishop did say that a Mass for the Dead
could be celebrated after burial, which was permitted in St.
John’s Cemetery in Queens.3
By now, the events surrounding the death of John Gotti
have long since exceeded the attention span of the general
public. Earlier this year, though, an article on the subject did
appear in the journal of St. John’s University School of Law.4
The piece was written by a civil lawyer, Patrick Gordon, who
claimed that Most Rev. Thomas Daily, the Bishop of Brooklyn
at the time, was wrong in denying Gotti a funeral Mass. Dr.
Peters took strong exception, saying:
Indeed, anyone with a background in canon law can see that
Gordon’s article is a cornucopia of canonical errors and even
occasional gaffes. Gordon makes repeated mistakes in handling
even the most rudimentary canonical sources and, because he
wrongly utilizes techniques of legal interpretation that are
sound in the common law system but which are gravely flawed
in the canonical, he utterly misconstrues the plain text of the
primary canon in question.
Unfortunately, what would be quickly apparent to readers
with training in canon law will not necessarily be recognized
by persons without. Given, therefore, the severity of the criticism
that Gordon has visited upon a bishop who, I suggest,
was acting squarely within the scope of his authority, and because
that criticism rests on demonstrably shabby canonical
analysis, this reply is in order. 5
The Peters article is seemingly severe, but is within the
bounds of academic debate, given the seriousness of the deficiencies
he identifies in Gordon’s analysis. However, this article
is not about the rightness of Bishop Daily’s action, however
interesting a discussion of it might be. Mr. Gordon’s article is
important to us because it illustrates so well the consequences
of the failure to take into account the differences between two
distinct legal systems. Dr. Peters states what is arguably the
key difference as follows:
I have encountered this attitude among common lawyers before
but, being trained in the common law system myself, I
think I understand what leads some of them so wrongly to his
[Gordon’s] conclusion. Canonical legislation does not read
like common law legislation for some very important reasons
and common lawyers who would venture into canonical waters
need to understand this before setting out. It is certainly
not my intention to defend the felicity of every expression used
in the Code of Canon Law but, if one aspect of the difference
between canon law and common law needs to be clearly understood,
it is this: Common law is a system of judicial
supremacy; canon law is a system of legislative supremacy.
Grasp that, and one has the essence of the thing. Of
the 1,752 numbered provisions that make up the 1983 Code of
Canon Law, one of them (in fact, one section in one of them)
quietly sets forth this vitally important difference between the
ways these two great legal systems (common law, dating back
nearly 1,000 years, and canon law, which is nearly a millennium
older) function. (Emphasis in original.)
INTERPRETATION OF THE LAW
The “one of them” referred to by Dr. Peters is canon 16, the
full text of which appears at the top of page one. He proceeds
to explain the significance of this canon:
Every legal system worthy of the name faces a question: who
has the final authority to determine what a given law means?
In a common law nation, the judiciary has the last word on
the interpretation to be accorded a specific legal provision (a
power distinguishable from the legislature’s, or even the peoples’
power to change the text of the law itself. But, in a “Roman”
or civil law system, the legislator himself generally has
the power of “authentically interpreting” legal texts. Neither
the judicial supremacy approach nor the legislative supremacy
approach is right or wrong and, I suggest, neither is particularly
better than the other at doing what legal systems have
to do, namely, developing norms of conduct that can be understood
by and applied within their respective societies. Both
systems have long and worthy records in upholding the rule
of law. But they obviously operate in very different ways, and
lawyers well-trained in one tradition are at serious risk of mishandling
the provisions of the other unless they understand
and accept the difference, in rather the same way that drivers
who are used to driving on the right side of the road are highly
accident-prone when they go to a country that drives on the
left. It says nothing about their basic skills behind the wheel,
but it says much for the problems encountered when trying to
cope with a “foreign” way of doing things. Modern canon law
draws much more heavily from the classical Roman or civil legal
tradition, and not from the Anglo-American common law
tradition and as a consequence many canonical interpretive
principles differ from those to which common law attorneys
are accustomed.
That canon law is a system of legislative supremacy is clear
from the terms of 1983 CIC 16 § 1.
While the Pope can indeed interpret the law personally
whenever he may choose to do so, he has entrusted the exercise
of this power to the Pontifical Council for the Interpretation
of Legislative texts (PCILT). PCILT can, with confirmation
by pontifical authority, issue authentic interpretations of
universal laws of the Church. It also assists other dicasteries
of the Holy See in the issuance of general executory decrees,
reviews general decrees of episcopal conferences and, at the
request of those interested, decides whether general decrees
of diocesan bishops or other legislators below the level of the
supreme authority are in conformance with the universal laws
of the Church.6
It remains possible that an interpretation of the law could
also be made in the course of a judicial decision or an administrative
act. However, as stated in c. 16, §3, such an interpretation
would not have the force of law and would bind only
the parties involved.
ECCLESIASTICAL COURTS
As we have seen, the principle of judicial review does
not exist in canon law. Parenthetically, it might be noted here that the notion of the separation of executive, judicial
and legislative power as expressed in the Constitution of
the United States is not present in ecclesiastical law. The
Pope is the supreme legislative, judicial and executive authority
on the universal level and the diocesan bishops or
their equivalents wield equivalent powers in the particular
churches.
It also follows that in a system of legislative supremacy the
courts — or tribunals, as they are called in the Code of Canon
Law — would have less power than their common law counterparts,
which is indeed true.
In the first place, we have canon 1400, §2, the text of which
appears above. This means that, for all practical purposes,
disputes arising from such actions as parish suppressions or
mergers, renovation of church buildings or the removal of
pastors can be appealed only to the superior because, as yet,
there are no administrative tribunals in the Church below the
Second Section of the Supreme Tribunal of the Apostolic Signatura.
Second, secular courts can, for example, compel persons
under their jurisdiction to testify or to produce evidence, forbid
public discussion of pending litigation and, in general, enforce
their rulings. Ecclesiastical tribunals could also do these
things and even could coerce; but their coercive power is only
moral, whereas civil courts can physically coerce as well.
There was a time when ecclesiastical tribunals could look to
the state to enforce their sentences; but since the Reformation
this is no longer the case, especially in the English-speaking
world.
Third, stare decisis or the law of precedent does not exist
in canon law in the same way that it does in common
law, where appellate judicial decisions have legal force beyond
the cases they actually decide. In arguing cases before
Church tribunals, canonists can and do cite judicial decisions
to support their position; but such citations have only
moral rather than legal force. Moreover, the Roman Rota is
the only ecclesiastical tribunal that regularly publishes its
decisions and then only ten years after the decision is made
and with redactions made to protect the privacy of the parties.
That is why canonists rely heavily on the comments by
those learned in the law instead of judicial decision, as Dr.
Peters explains:
Scholarly commentaries are to canonistics what court
cases are to common law. Where the common law turns to
court decisions to elucidate the meaning of laws, canon law
looks to scholarly writings to illumine the purview of its provisions.
One must appreciate, then, that Gordon’s failure to
use so much as a single canonical commentary in support of
his interpretation of Canon 1184 is akin to an appellate lawyer’s
fashioning a constitutional argument without reference
to even one Supreme Court case dealing with the provision in
question. (Emphasis in original.)
This is reflected in the holdings of the St. Joseph Foundation’s
library. Out of over fifteen hundred books, academic
journals, other periodicals and documents, only two deal exclusively
with the decisions of ecclesiastical tribunals.
In the service of their clients, conscientious canon and civil
lawyers will first consider alternatives to litigation. However,
if alternate means of resolution prove fruitless, the common
lawyer usually heads for the courthouse. The canon lawyer,
on the other hand, may also head for the tribunal; but usually
looks elsewhere.7 In both canon and common law, approaching
the wrong forum may prove fatal to the case.
LAW AND ORDER
Public order is a hallmark of civilization and its preservation
is a basic function of any organized society. Civilization
can hardly exist if the people do not feel reasonably secure in
their persons and possessions.
In the Church, law and order involves more than simply
the protection of persons and property. The salvation of souls
depends upon sorting out truth from error so that the message
of salvation can be effectively proclaimed until Christ
comes again. Those of us who have heard this message and
embraced the faith have a right to expect that those who teach
in the name of the Church will present the truth without error
or ambiguity. We also have a right to the spiritual goods of the
Church and to worship according to the norms established
by the competent authority and we are entitled to expect that
those who have been entrusted with the exercise of authority
should follow the example of our Lord by caring for their
sheep. In short, it is our pastors and bishops who have the
duty to drive away the ravenous wolves and return the stray
sheep to the fold. This includes using, when necessary, the penal
sanctions provided by canon law.
Like other aspects of canon law, Book VI of the 1983 Code,
titled Sanctions in the Church, differs in many ways from secular
criminal law. However, there is one fundamental similarity.
i.e., it is the role of the competent public authority, not the
victim of wrongdoing, to determine guilt and impose penalties.
In the Church, under most circumstances, this authority
is exercised by the diocesan bishops and their tribunals. In
our secular system, it is exercised by the public prosecutors
and the courts. In short, neither system countenances vigilante
justice.
Especially since the sexual abuse crisis erupted in 2002,
we have had opportunities to see how the secular and ecclesiastical
officials deal with the same offenses. For example,
just as this article was being written, a newspaper article reported
that the “Sonoma County Sheriff’s Office has recommended
criminal charges be filed against Santa Rosa Bishop
Daniel Walsh for failing to timely report evidence of sexual
abuse by a Sonoma priest who has since fled the country.”8
The article also reported that “It will be up to the Sonoma
County district attorney’s office to decide whether it can
prove Walsh broke the law and whether there is ‘sufficient
evidence and circumstances to sustain a conviction.“’9 Recalling
the words of Dr. Peters at the top of page one, responsibility
rests with the District Attorney to prosecute
Bishop Walsh. Or not, if that is what he decides. As of this
moment, the District Attorney has not announced his decision.
One might say that the one thing that the secular and ecclesiastical
systems have most in common is that neither is perfect.
Sometimes, in the former, an innocent person is wrongly
convicted; although, more often, the perpetrator is erroneously
acquitted or is never prosecuted at all. For instance, Carlo
Gambino, the boss of the same crime family later headed by
John Gotti, died of natural causes — which itself seems to be
the exception rather than the rule for mobsters — without
ever being convicted of a crime. In contrast, though, we often
get the impression that ecclesiastical penal law is hardly ever
used to call violators to account.
Finally, there is one more similarity between the two systems.
Both depend on the honor, commitment to justice and
competency of those in charge.
HOW THE SYSTEMS CAN BE CONFUSED
The St. Joseph Foundation has acquired considerable experience
regarding law and order in the Church. Over twentytwo
years, we have recorded in our database a total of 3,109
requests for assistance. Of these, 422 had to do with canonical
discipline and another 1,235 involved allegations that Church
authorities failed to take action to correct abuses pertaining to
the liturgy, doctrine or the exercise of governance.10 We have
seen that it is quite common for Catholics to assume that the
Church’s penal law works in much the same way as does the
secular criminal justice system. And this confusion of the two
systems leads to frustration and disappointment.
A penal case in either system usually begins the same way,
with a complaint being made to the proper authority. A civil
complaint is normally made to the law enforcement authority,
while an ecclesiastical complaint or denunciation is made to
the diocesan bishop. After the denunciation has been made,
the differences between the two systems become apparent
and among them are the following:
1. The Church does not have, nor does it really need, a separate
and extensive investigative apparatus like the police or
the FBI. According to canon 1717, the ordinary can conduct
the preliminary investigation “personally or through some
suitable person” The “Straws” in this issue from the dioceses
of Springfield, IL and Bridgeport, CT are examples of bishops
using others to investigate. Unlike these incidents, most allegations
in canon law are not crimes in civil law and outside
investigators are seldom involved. Thus, given the lack of investigative
resources, it is essential that denunciations include
as many proofs as can be collected.
2. There is an ecclesiastical office that is roughly equivalent
to the district attorney: i.e., “A promoter of justice is to be appointed
in a diocese for contentious cases which can endanger
the public good and for penal cases; the promoter of justice is
bound by office to provide for the public good” (canon 1430).
The problem is that the office of promoter of justice is usually
held by a priest, although the law permits the appointment of
a layman or laywoman, who has many other responsibilities.
He may also be the pastor of a busy parish or have additional
duties at the chancery. Moreover, he does not have a number
of deputies and other staff at his disposal, which provides another
reason for a denunciation to be considerably more comprehensive
than a secular criminal complaint.
3. Once the investigative phase is complete and it has been
determined that it is likely that an offense has been committed, “The Ordinary is to start a judicial or an administrative
procedure for the imposition of penalties only when he perceives
that neither by fraternal correction or reproof, nor by
any methods of pastoral care, can the scandal be sufficiently
repaired, justice restored and the offender reformed” (canon
1341). As the Santa Rosa case cited above indicates, a civil
prosecutor can exercise discretion; though we know of no state
or federal law that requires that alternatives to prosecution
must be considered. That is why a well prepared denunciation
should contain persuasive arguments in favor of proceeding
with a penal process rather than the alternatives proposed in
canon 1341.
The victim of or a witness to a civil crime has only to report
it to the authorities and cooperate in the investigation, which
is normally conducted by professional law enforcement officers
who have the authority of government behind them. The
victim does not have to worry about interviewing witnesses,
collecting other evidence and presenting the case in court.
In
theory, the same is true in canon law. In practice, it falls upon
the one who files the denunciation to build the case.
CONCLUSION
Being finite and imperfect creatures, men are incapable of
creating anything that is perfect, including a legal system. If
we were perfect, then it would be reasonable to expect that
our legal systems would always dispense perfect justice combined
with perfect mercy. Our Lord commands us to be perfect
as our Father in Heaven is perfect.11 Sadly, try as we will,
few of us will attain perfection in this life and neither will the
legal systems that we devise and manage.
In addition to being imperfect, canonical processes, like
their civil counterparts, are often complex and difficult. We
do not need to make them any more so and jeopardize our
chances of success by applying the procedures of our secular
legal system.
(Endnotes)
1 http://www.canonlaw.info/2006/06/closer-canonical-look-atschiavo.
html. Dr. Peters currently holds the Edmund Cardinal Szoka
Chair at Sacred Heart Major Seminary in Detroit. This comment is
taken from a commentary concerning potential canonical problems
with the wedding under Catholic auspices of Michael Schiavo and
Jodi Centonze. This commentary was published as an article in the
Fellowship of Catholic Scholars Quarterly 29:2 (Summer 2006) pp. 6-8.
2 The term civil law itself has multiple meanings. For the purposes
of this article, it can be defined as secular law and I use the terms
civil law, secular law and common law interchangeably. For a more
detailed discussion see Duane L.C.M. Galles, “The Civil Law”, The
Jurist 49 (1989) 241-248.
3 http://en.wikipedia.org/wiki/John_Gotti. Also interred with Gotti
at St. John’s Cemetery are other figures connected with organized
crime, including Lucky Luciano, Carlo Gambino, Vito Genovese,
Salvatore Maranzano and Carmine Galante.
4 See Patrick Gordon, “Gotti, Mob Funerals and the Catholic
Church”, Journal of Catholic Legal Studies 44(2005) 253-276. For
the full text of the article, see: http://stjohns.edu/media/3/
287de4bc44a64bb8954f79d0573d2464.pdf
5 Edward N. Peters, “Lest Amateurs Argue Canon Law: A Reply to
Patrick Gordon’s Brief Against Bp. Thomas Daily“, Angelicum (2006)
121-142. Angelicum is an academic review published by the Pontifical
University of St. Thomas Aquinas in Rome. A copy of the issue
was not available when this article was written. Therefore I used
the text as it appeared on Dr. Peters’ website, which accounts for the
lack of page references. In order to avoid repetitious citations, all
excerpts from the article will be indented and in italics.
6 Apostolic Constitution Pastor bonus, Articles 154-158.
7 See Note 1 above.
8 San Francisco Chronicle, August 26, 2006, page B-2.
9 Ibid. The internal quotation is from the statement of Lt. Dave Edmonds
of the Sonoma County Sheriff’s Office.
10 For example, see: Charles M. Wilson, “More Weeds in the Canonical
Garden,” Christifidelis, May 2, 1997, http://www.st-joseph-foundation.
org/cfd15-2.htm; Philip L.C. Gray, J.C.L, “The Necessity of
Law and Order,” Christifidelis, June 9, 1997, http://www.st-josephfoundation.
org/cfd15-3.htm; R. Michael Dunnigan, “Temptations
for the Weak and Burdens for the Virtuous: A Comparison of Canon
Law with Civil Law,” Christifidelis, June 13, 1999, http://www.stjoseph-
foundation.org/cfd17-3.htm; and, Charles M. Wilson, M.T.S.
and R. Michael Dunnigan, J.D., J.C.L., “Overdosing on the Medicine
of Mercy,” Christifidelis, June 22, 2004, http://www.st-joseph-foundation.
org/newsletter/lead.php?document=2004/22-3
11 MT 5:48.
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PRAYER FOR PROTECTION
St. Joseph, you are the faithful protector
and intercessor for all who love and venerate
you. I have special confidence in you, for
you are all-powerful with God and will
never abandon your faithful servants. I humbly
invoke you and commend myself with
all who are dear to me to your protection
and intercession. Do not abandon me or
them during life, and assist me and them
when we die.
Amen.
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