Folia Theologica et Canonica 6. 28/20 (2017)
IUS CANONICUM - Kurt Martens, Hierarchical recourse as a dialogue between particular church and universal Church? Difficulties, challenges and opportunities
78 KURT MARTENS My contribution is divided in three major parts. In the first part, I will first look at some general principles and concepts about hierarchical recourse. This first part is important to understand the nature of hierarchical recourse and its various distinctions. In the second part, the focus will be on the procedure of hierarchical recourse as spelled out in the 1983 Code of Canon Law and special legislation. Finally, in the third and last part, I will expand on the recourse procedure as a form of dialogue between the particular and universal Church. I. A General Catalogue and Some Historical Notions The legal system of the Catholic Church, known as canon law, is part of the continental legal or civil law tradition.1 Continental civil law and canon law have influenced each other for centuries. An example of such mutual exchange is the system of protection of rights in the administrative life of the Church. As we will explain further, the Code of Canon Law provides a system of hierarchical recourse. The current canonical procedure of hierarchical recourse is strongly influenced by Italian civil administrative law. This should come as no surprise: Pio Ciprotti, an Italian professor of civil and canon law, highly influenced the outcome of this part of the revision process of the Code of Canon Law.1 2 However, other solutions could have been considered as well. That brings us to the various models that are used to describe and organize such a protection against arbitrary or abusive exercise of administrative or executive power and authority. 1. Toward a Better Protection of Rights? The Code Revision Process Long before Pope St. John XXIII announced on January 25, 1959 that he would not only convoke an ecumenical council, but would also organize a synod for the diocese of Rome and revise the 1917 Code of Canon Law,3 canon lawyers had pointed to the lack of protection of rights in the Church’s legal system, 1 Gauthier, A., Roman law and its contribution to the development of canon law, Ottawa 1996. Merryman, J. H. - Pérez-Perdomo, R., The Civil Law Tradition. An Introduction to the Legal Systems of Europe and Latin America, Stanford, CA. 2007. 6-14. Glendon, M. A. - Carozza, P. G. - Picker, C. B., Comparative Legal Traditions in a Nutshell (Nutshell Series), St. Paul, MN. 2008. 2 See on this point, Martens, K„ The Law that Never Was: the Motu Proprio Administrativae Potestatis on Administrative Procedures, in The Jurist 68 (2008) 185-203. 3 Ioannes XXIII, Allocution (25 ian. 1959): AAS 51(1959) 65-69.
