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
80 KURT MARTENS This might indicate that the principles, once approved and welcomed with great enthusiasm, were not as attractive when they had to guide the development of (new) legislation. When evaluating the Code of Canon Law and the outcome of the post-Vatican II revision process, there is a danger that this is done solely in light of those principles for the revision. However, it cannot be the goal to read the Code of Canon Law in light of the principles for the revision alone, and to point out where the principles were not correctly applied. Such an approach could be called a “hermeneutics of disappointment”. The principles clearly did not always work out very well, and their consistent application would not necessarily lead to good law. The primary goal of these principles was to ensure that the new code would be more than a merely technical revision of the 1917 Code of Canon Law: the new code would first and foremost reflect the new ideas of the Second Vatican Council. Two of these guiding principles dealt with the protection of the rights of the faithful: principles 69 10 11 and 7"'. What is important to note now is that the principles contain a mixture of several systems. While the sixth principle was a more general principle on the means by which the protection of rights of persons in the Church can be organized, principle seven attempted to protect subjective rights through a specific procedure. Power in the Church, whether exercised by the pope or by diocesan bishops within the area of their competence, is one power; or, in other words, the principle of separation of powers is absent.11 According to the wording of the sixth principle, this does not mean that such power can be exercised arbitrarily: natural law, divine positive law, and canon law forbid the arbitrary use of power. Still according to the same principle, the rights of every member of the faithful must be recognized and protected. However, not everyone enjoys the same status in the Church; therefore, it was suggested that the code start with a common juridic status for all faithful, before summing up the rights and duties for each ecclesiastical office. 9 Communicationes 1 (1969) 82-83. 10 Communicationes 1 (1969) 83. 11 See Onclin, W. H., The Church Society and the Organization of Its Powers, in The Jurist 27 (1967) 1-17. It should be noted that the distinction in c. 135 §1 between legislative, executive and judicial power was introduced at the proposal of Msgr. Willy Onclin, then adjunct secretary of the Commission for the Revision of the Code of Canon Law. Cf. Communicationes 5 (1989) 253: “Rev.mus Secretarius Ad. notât, e contra, aliam distinctionem introducendam esse, nempe, distinctionem inter potestatem legislativam, executivam et iudicialem, ita ut habeatur quod nomine ordinarii intelligatur qui saltern potestatem executivam habet.” Before, a distinction between the various powers in the Church according to canon law was at least unclear and debated in the canonical literature. For an overview, see Huysmans, R. G. W., De administratieve macht in de r.k. Kerk, hrug tussen de wetten en de noden van het godsvolk (Rede uitgesproken op 22 november 1996 door prof. dr. R.G. W. Huysmans bij gelegenheid van zijn afscheid als hoogleraar Canoniek Recht), Utrecht 1996.
