Preface and introduction

Preface

(Extracts of the book Administrative Justice in the Catholic church, by Yves Alain Ducass, Paris 2018, 374 p).

Since the creation in 1967 of the second section of the Supreme Tribunal of the Apostolic Signatura, many books have discussed the administrative law of the Church, « describing in detail the procedures and the applicable jurisprudence, » as the author writes, adding—and one can only agree with his judgment, especially after having read the many notes and bibliographic references at the bottom of the pages— »But there does not exist, to our knowledge, any recent French book on the subject, which focuses on the administrative case law of the Church and which provides the basics of administrative canon law for the Catholic faithful. »

This is the book written by Alain Ducass.

Of course, the book that he presents to us implies a certain knowledge of the law of the Church and, I would even say, the secular law, but at the end we have not an abstract discussion, but a guide-book, based on a unique database, rigorously and clearly designed, explaining many real-life examples and subjecting them to a criticism that is always constructive.

It would be inappropriate simply to reiterate in a poor way what the author has written in a masterly way. Read for yourselves the « Historical Perspective », and you will discover the author’s method, with the reported facts and the remarkable bibliography accompanying this chapter. Read with attention Chapter 3 on the sources of jurisprudence, and discover a database which will give you an idea of the work and the mastery of the author, and which will allow you to understand the subject in greater detail.

Let yourselves be guided by the book.

It is essential, moreover, that you carefully read Chapter 11 on « Prospects for Development.” Too many canonical discussions, symposia and conventions, as interesting as they might be, only lead to the publication of a volume, intended most often for use within the confines of a library; but the work of Mr. Ducass opens many perspectives which are practical, reasoned, and desirable. This book is a guide for action.

Certainly these « Prospects for Development » will provoke some criticism and reticence. It is very difficult to accept changes in our habits of thinking and acting. A great connoisseur of men and their laws wrote in this regard:

We who reign, how many useless things

We say, without knowing the evil that we do!

When the truth comes, we are hostile,

We have reasons against reason.

In the field of administrative justice of the Church, we can and we must rule against Victor Hugo[1].

2016 is the 500^th anniversary of the first publication of Saint Thomas More’s Utopia, arguing for social justice.

Let us read a few sentences of this catholic English lawyer:

Two evils, greed and faction are the destruction of all justice.

Laws could be passed to keep the leader of a government from getting too much power.

Anyone who campaigns for public office becomes disqualified for holding any office at all.

The things we pray for, good Lord, give us grace to labor for.

~ Thomas More

 Let-us pray Saint Yves

 Saint Yves, you have lived among us,

You were an advocate for the poor,

The defender of widows and orphans,

The providence of all the needy.

Listen to our prayer today.

Make us love justice as you have loved it.

Help us to defend our rights,

Without prejudice to others,

Seeking reconciliation and peace above all else.

Inspire the defenders who plead the case of the oppressed

To ensure that justice is done in love.

Introduction

Faithful to the example and teaching of Christ, the Church, the light of the nations, fights against everything that hinders the full development of man, and in particular the culture of atheism which is sometimes an obstacle to the « free exercise of religion in society[3].” Over the centuries the Church has been committed to defending the rights of God, and to combating all forms of heresies that can deprive the faithful of grace and the salvation of their souls.

However,

Even if some, by the will of Christ, are established as doctors, stewards of the mysteries and pastors for the good of others, nevertheless, as to the dignity and activity common to all the faithful in the building up of the Body of Christ, a genuine equality reigns among all[4].

All the same,

The Church clasps sinners to its breast, it is therefore at once holy and always called to purify itself, constantly pursuing the path of penance and renewal [5].

Thus, despite the holiness of the Church, there still exist in our days some situations in which the Pastors of the Church behave like « mercenaries » (John 10, 12), as well as like legalists who « impose burdens hard to carry » (Luke 11, 46) on the shoulders of some of the faithful. Here is an example from Africa:

Unfortunately, very often some [diocesan] Curias of the south are dependent on the preconciliar structure of the Church, and are immersed in a cult of Authority proper to cultures of the third world, and are influenced by the way in which the civil authorities rule the nations of the Third World. They have forwarded the idea that the Curia is a center of power and decision-making, where the bishop directs his diocese with authoritarianism. It is not surprising to observe, in some cases, the absence of structures of pastoral consultation, and the faithful are unaware that it is their right to contact their bishop as the father of a family. It is even more surprising that this praxis is also found in the older churches, of which it is said that some have just freed themselves from the cult of power[6].

This type of situation damaged the Church, as Jean-Paul Betegne indicated:

It is not uncommon to find in the Church abuses of law and authority on the part of the hierarchy, which has the duty to promote the law of the Church. […] One cannot measure enough the extent of the damage caused within the community of the faithful and in the eyes of the world by such attitudes. It is indeed the image of the Church which is tarnished, there are many faithful who disdain the social teachings of the Church, there are men and women who relativize the relevance of the evangelical message, the frequenting of the sacraments which are neglected, etc.[7]

Aware of these difficulties, the Second Vatican Council affirmed the rights and obligations of the faithful, and to enforce them, on 15 August 1967 Blessed Paul VI created the second section of the Supreme Tribunal of the Apostolic Signatura, responsible for deciding:

The disputes arising from the exercise of ecclesiastical administrative power, as well as those that are submitted in appeal against a decision of a competent Dicastery, when he is accused of having violated the law[8].

« How many of the faithful have had the feeling of not being understood, that they were sometimes rejected? » wonders Cardinal Sarah[9]. A survey conducted in Dakar in 2017 shows that more than half of the faithful surveyed[10]  remembered a situation of controversy due to ecclesiastical power, while none of them was aware of the existence of the Administrative Tribunal of the Church created on August 15^th 1967 or of the procedures of ex gratia, hierarchical and contentious-administrative recourse.

During those fifty years, canonists published treatises on the administrative law of the Church and scholarly articles in Italian, English, Spanish, German and Latin, describing in detail the procedures and the applicable jurisprudence. However, to our knowledge there is no recent book written on this subject with many practical examples about the administrative case law of the Church[11], which would provide the basics of administrative canon law to the Catholic faithful.

This book aims to fill these two gaps, from the thought of a French member of the Catholic faithful and a licensee in canon law[12] regularly working in Africa, with the reverence due to pastors[13], and taking account of the common good and the dignity of persons.

Drawing up a balance-sheet of fifty years of administrative justice is, however, an impossible task, for an inexperienced canonist, who is not plunged in the seraglio of the Supreme Tribunal of the Apostolic Signatura. Without claiming to achieve this, we propose these few pages of witness and of research that are based on five foundations:

• An academic framework, before and after the obtaining of a License of Canon Law;
• Regular contacts with the Catholic faithful on the network Canonists without Borders, which allow the author to collect many published or unpublished testimonies and interact with their authors, as does our colleague Cathy Caridi[14] in the English-speaking world;
• A database of 994 contentious-administrative cases and 1123 decisions of the Supreme Tribunal, compiled from 2005 canonical publications[15], and structured with the techniques of the engineer[16];
• A professional experience rich and varied in France and Africa, allowing us to take a step back regarding an institution;
• The comments received and research carried out after the first French edition of the book.

Written in French within five years of half-time work, and translated into Italian and English[17], the English edition of the book and its online database are intended for four categories of persons:

• The Catholic faithful, secular, religious or priests, experiencing administrative problems in the Church, and wishing to avoid the double pitfall of both sanctioning by their silence the practices that they believe to be wrong, and also putting the Church in difficulty, by addressing the civil courts or the means of social communication, without trusting in ecclesiastical justice;
• Lawyers and curious persons who want to learn more about canon law, or even undertake studies in this area[18];
• Canonists who will be able to access a lot of unpublished information on canonical administrative case law;
• Church leaders, who will find in these pages food for thought for their future decisions.

The first part of the book presents the context of ecclesiastical justice, with a reminder of its role in the history of the Church[19], the analysis of its theological foundation, a simplified presentation of the procedure, and the description of our database, all illustrated by numerous unpublished diagrams which are explained in the book, such as those of recourse procedures referenced below.

The second part presents the administrative justice of the Church in its daily reality, with a quick reminder of rights, the difficulties encountered and solutions since 1967, because, according to Sergio Aumenta,

The introduction of forms of verification of the administrative action (and in particular the institution of judicial review by the Supreme Tribunal) has constituted a substantial improvement for the safeguarding of subjective legal rights[20].

Five chapters present the difficulties and recourse concerning the lay faithful (chap. 4), clergy (chap. 5), consecrated persons (chap. 6), or the charisms (chap. 7) and the Dicasteries (chap. 8), all illustrated by many cases of jurisprudence, particularly in the following areas:

In the light of fifty years of practice, the third part of the book allows the reader to revisit recourse procedures, and to propose a few paths of development on the occasion of the jubilee. The book emphasizes systematically the primary sources, which documents are approved by the Holy Father and decisions of the second section of the Supreme Tribunal. Knowing that these sources are not always accessible to the public, especially because of their personal nature, a wide appeal was made to the work of canonists close to the Apostolic Signatura. The absence of available official sources requires the author to propose statistical estimates; but these remain uncertain as long as they are not backed with hard data from the second section of the Supreme Tribunal, to which the present work has been submitted.

In addition to the unavailability of sources, the very vast field of administrative law of the Church and the time limits of the 50^th Jubilee, the parameters of this book are mainly those which its author determined should be set.

He is a member of the Catholic faithful in France, aged 60 years, married, a father and grandfather. His profession of engineer in the service of the French State, and then as consultant to African Governments, has conferred on him a practical experience of administrative law. This has been supplemented by a solid training in canon law[21], by three years of research in the library and by a field experiment with Canonists without Borders, including the preparation and follow up of numerous hierarchical and contentious-administrative recourses.

His professional success and the support of his company energeTIC provide moral and financial independence, conditions essential to freedom of speech, used with the moderation imposed by the fear of God, love of the Church and scientific honesty, which free a person from the three corresponding slaveries that are egocentrism, closed-minded thought and the lie[22].

[1]  Hugo (Victor) The Art of Being a Grandfather IV, 4

[2] http://droit.regiminal.free.fr/

[3] Dignitatis humanae, No 1.

[4] Lumen Gentium, No 32.

[5] Lumen Gentium, No 8.

[6] Kitambala (Hilaire Iwaka) L’office de chancelier dans le Code de droit canonique de 1983, l’Harmattan, Paris 2017, p. 38-39 / 245.

[7] Betengne (Jean-Paul) Catholic University of Central Africa, Catholic Institute of Yaoundé, “Canonical Culture and Juridic Cultures in Africa,” 6 October 2017 conference at the International Convention of the Consociatio.

[8] Regimini Ecclesiae Universae, article 106.

[9] Sarah (Cardinal Robert), Dieu ou rien, interviewed by Nicolas Piat, Paris 2016, ed Pluriel, p. 223/420.

[10] The sample was made up of 25 participants of mature age, participating in the international symposium organized by the Center Saint Augustin in Dakar on the occasion of its 30^th anniversary.

[11] A notable exception is the doctoral thesis of Msgr. Patrick Valdrini, pro-Rector and Professor of Canon Law at the Pontifical Lateran University in Rome.  His dissertation formed the basis of two books published in Strasbourg: Conflits et recours dans l’Église, Cerdic 1978; Injustices et protection des droits dans l’Église, Cerdic, 1984.

[12] This diploma, awarded by the Archbishop of Strasbourg, corresponds to the second Master’s of Canon Law of the University of Strasbourg and the diploma of Propaedeutics of Theology of l’Institut catholique de Paris.

[13] In the course of his work in administrative bodies, the (inter)diocesan Church courts, the author has been able to appreciate the professionalism, seriousness and the generosity of the clergy in charge of ecclesiastical justice for the recognition of the invalidity of marriage, and the dedication of the volunteers who help them. It has to be strongly recommended to other Catholic faithful to undertake studies on the canon law of marriage for work in the diocesan chancery or in their parish, to come to the aid of people in suffering, who seek to discern if their marriage is valid and indissoluble, or null, with a view to starting another stage in life.

[14] Caridi (Cathy), Canon made easy, http://canonlawmadeeasy.com/

[15] Status of the database on 1 January 2017.

[16] The database on which the book relies is presented in Chapter Three.

[17] The English translation has been made with the help of an American canonist and of a teacher and translator, Célie-Anne Ducass

[18] L’Institut catholique de Paris (ICP) puts online free training dedicated to canon law, entitled « La loi des hommes et la loi de Dieu, » cf. www.droitcanonique.ICP.fr. Cf. www.droitcanonique.icp.fr

[19] During a pilgrimage on foot toward Compostela, the author was consulted by a German pilgrim, who said he had distanced himself from the Catholic Church, because of its conduct during the 17th century in Germany with the episode of the witch hunt

[20] Aumenta (Sergio Felice), La tutela dei diritti dei fedeli nel processo contenzioso amministrativo canonico, Pontifica università lateranese, Mursia, p. 173.

[21]  Three years of studies at the Institute of canon law of Strasbourg, two years of theology at the Catholic Institute of Paris, followed by experiences of canon lawyer without payment: as a notary, advocate, and defender of the bond in the diocesan offices of Paris, Versailles, Cotonou and Dakar as a mediator within Catholic parishes in France, as a lawyer advisor of priests, religious and laymen in France and Africa or mediator within French parishes.

[22] I, the LORD, am your God, who brought you out of the land of Egypt, that place of slavery. Deut. 5, 6..