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
100 KURT MARTENS curia. These departments, accordingly, operate in his name and with his authority for the good of the churches and in the service of the sacred pastors.” In the fine and highly theological introduction to the apostolic constitution Pastor bonus, John Paul II wrote that the Roman Pontiff “(...) has also taken pains to deal carefully with the business of particular Churches, referred to him by the bishops or in some other way come to his attention, in order to encourage his brothers in the faith (cf. Lk 22:32), by means of this wider experience and by virtue of his office as Vicar of Christ and pastor of the whole Church. For he was convinced that the reciprocal communion between the bishop of Rome and the bishops throughout the world, bonded in unity, charity, and peace, brought the greatest advantage in promoting and defending the unity of faith and discipline in the whole Church.” While the procedure of hierarchical recourse could be seen as a highly technical procedure, concerned about the minutia of the law, there is yet another way of looking at this particular procedure, namely as a form of reciprocal communion between the bishop of Rome and the bishops throughout the world. Or, hierarchical recourse can also be seen as yet another way of communication and exchange between the particular Church on the one hand and the universal Church on the other hand. I. Exercise of Supervision versus Protection of Rights We have classified the system of hierarchical recourse as a system in which the superior of the author of the administrative act is judge of his subordinate. In other words, the control of the exercise of administrative power is not done by judicial power, but by the same, albeit higher, administrative power. The procedure of hierarchical recourse looks therefore in the first place more like a procedure designed primarily and directly to exercise supervision (maintain the legality) of public administration and only secondarily and indirectly to protect rights. Or to put it differently: the procedure seems to be put in place to ensure that administrators apply and follow the law carefully. From that perspective, when recurrent claim they have won a case, it actually means that the law was put aside and not or only partially observed. In light of the abovementioned citon D.C. 1990. 923: “9. In exercenda suprema, plena et immediata potestate in universam Eccle- siam, Romanus Pontifex utitur Romanae Curiae Dicasteriis, quae proinde nomine et auctoritate illius munus suum expient in bonum Ecclesiarum et in servitium Sacrorum Pastorum.”
