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
92 KURT MARTENS rity cannot act without prior authorization to do so by higher administrative authority. Once authorization is obtained, it is not required to act upon receiving the authorization. In other words: the administrative authority can decide not to act. Approval then means that a decision of a lower administrative authority has no legal consequences unless approval by higher authority is sought and obtained. 2. Scope of the Procedure of Hierarchical Recourse Once a singular administrative act has been given, the non-contentious procedure ends. If there is disagreement with a particular singular administrative act, such act can be challenged through the procedure of hierarchical recourse. The scope of the procedure of hierarchical recourse is clearly defined in CIC Can. 1732: “What is established in the canons of this section concerning decrees must be applied to all singular administrative acts which are given in the external forum outside a trial excepting those which have been issued by the Roman Pontiff or an ecumenical council.” This means that hierarchical recourse is only possible against singular administrative acts in the sense of title IV of book I of the Code, that is, acts given in the external forum (cc. 35-93).4S * * 48 A singular administrative act can be defined as "any singular and unilateral juridical act issued by the competent executive authority in the extrajudicial sphere.”49 Singular administrative acts issued by the Roman Pontiff or by an Ecumenical Council cannot be subject of a hierarchical recourse. Also excluded from the scope of the procedure of hierarchical recourse are all legislative actions. to comply with canon 127 § 1. The minutes of the meeting should clearly show that the diocesan bishop asked for and heard the advice of the council members, even if this does not culminate in a tally of votes. Otherwise, the consultation may be vulnerable to attack as being invalid for failure to comply with canons 515 § 2 and 127 § 2, 2°.” 48 See in this regard also: Canon 1400 § 2. Controversies from an Act of Administrative Power, in Vann, K. W. - Jarrell, L. (ed.), Roman Replies and CLSA Advisors Opinions 1991, Washington DC. 1991.32-38. 49 Capparos, E. (ed.), Code of Canon Law Annotated, Montréal 2004. 1358 (Labandeira, E.,).
