It’s vital that canon lawyers do not repeat the mistakes past

Bishops arrive at a morning session of the synod (AP)

Many of the controversies surrounding the current meeting of the Synod of Bishops can be traced to a single issue: whether the local or universal Church should have primacy in resolving the complex pastoral situations faced by the Church today. In his intervention at the synod, the Bishop of Antwerp, Johan Bonny, raised this when he stated that the sacramental marriage is no longer the only model for family life among the faithful, and suggested giving local bishops the responsibility of formulating answers to these and other pastoral questions, for example regarding the admission of divorced and remarried persons to Holy Communion, and recognising same-sex unions. Interestingly, before the summer the editor of the Flemish Catholic weekly Kerk & Leven recommended decentralising this decision-making process, allowing local bishops to bless same-sex marriages. Amongst the Belgian bishops, Archbishop Léonard was a lone voice of protest.

As George Weigel rightly asked on Friday, it’s not clear what credibility European bishops have in these matters — only five per cent of Belgian Catholics attend Sunday Mass. Nevertheless, these views exist, and now plague the many and varied debates during these days of the meeting of the Synod.

In 1992 the Congregation for the Doctrine of the Faith addressed this question in its letter, Communionis notio. This document, crafted by then-Cardinal Joseph Ratzinger, states that local Churches arise “within and out of the universal Church, they have their ecclesiality in it and from it.” Thus we can say that these local Churches have their origin in the universal Church, as “particular expressions of the one unique Church of Jesus Christ.” This means that the universal Church should not be viewed simply as a federation of local Churches, but rather that the local Churches are themselves particular expressions of the universal Church; called to reflect the face of Jesus Christ, who is himself the origin of the Church’s universal mission (Dominus Iesus 1).

In the context of Canon Law, this principal is to be borne out in the interpretation and implementation of the law. The mere presence of a single Code of Canon Law for the entire Latin Church is a sign that the Church is governed by a common, universal series of laws, subject to divine and natural law and served by proper or local laws, themselves always in conformity with these higher forms. Where this basic principal has been ignored, chaos and injustice — the ultimate ends of lawlessness — have reigned.

A fairly dramatic example of this is to be found in the American Procedural Norms of 1970. This simplified procedure for marriage nullity cases in the United States was given experimental permission by the Holy See, until the promulgation of the new Code of Canon Law in 1983. Certainly aspects of the American Procedural Norms found their way into the new Code, but the main elements — which had led to widespread abuse and, already by 1973, a 90 per cent rate of affirmative decisions (that is, in favour of nullity) — were cast aside. As my colleague in the School of Canon Law at The Catholic University of America, John Beal, has noted, “It was sold to the Vatican with the idea that this would be used only very rarely and for cases that were completely open-and-shut.” The opposite was the case.

Why am I raising these issues in the midst of the XIV Ordinary General Assembly of the Synod of Bishops? Principally because, as a prelude to the meeting, Pope Francis issued revised procedural norms for the marriage nullity trial and now, with a new document in hand, canon lawyers are at a similar but no less important crossroads: be faithful to the teaching of the Church and the canonical tradition, or set this aside and make the same mistakes again.

In the Motu Proprio implementing the reform of the process for the declaration of marriage nullity, Mitis Iudex Dominus Iesus, Pope Francis confirms that “in the footsteps of our predecessors” he has sought to follow a judicial rather than administrative pathway for the declaration of marriage nullity, and so avoid the complete devaluation of the marriage nullity process. On his return flight from the United States last month, he said explicitly, “I closed the door to the administrative path, which was the path through which divorce could have entered.” Yet, in all truth, many canon lawyers — the very people who have been entrusted with the ministry of justice at the service of the salvation of souls — have not heeded these words, and are now setting out to resurrect past practices; practices which were not only a disservice to the People of God, but a troubling forerunner of the debates we see in the Synod today.

While it is true that the proof of the pudding is in the eating (we can’t know how these reforms will be implemented until they are used), we do know from recent history that a tendency exists, particularly in North American tribunals, to minimise or even ignore the limits and purposes of the law. As another colleague, William Daniel, has pointed out, even following the revised Code of Canon Law in 1983, and the Instruction Dignitas connubii (on the nullity process), American tribunals have continued to declare marriages null at a statistically unjustifiable rate. Based on figures from the Canon Law Society of America in 2012, an alarming 95 per cent of cases were resolved in favour of the nullity of the bond. In some tribunals, no marriage presented was found to be valid.

Oiling the cogs of tribunal practice, then, also risks a renewed fervour, not for an authentic meeting of justice and mercy but, frankly, mere speed and efficiency: the perfect ingredients for sloppy canonical work and the miscarriage of justice. Canonists and bishops who are concerned to avoid this unjust, and ultimately unhelpful direction, must look to the implementation of Mitis Iudex in their tribunals as an opportunity to teach and practice the law in favour of the institution of marriage, to guard and protect the family, and to dispense the balm of Christ’s divine mercy on the wounds of those in the field hospital of the Church, not watered down to make it more palatable, but from the vessel of truth and true justice; the only real source of our healing and salvation.