Christ among the Doctors of the Law



Friday, July 01, 2005

A Canonical Case against Kerry

The now-abrogated 1917 Code of Canon Law expressly recognized the right of individual faithful to make formal denunciation of another's delict and to assert a personal right "to seek satisfaction or to recover damages" for an alleged canonical crime (see 1917 CIC 1935). In fact, this right of denunciation was recognized as a duty under natural law when the crime(s) alleged represented a "danger to faith or religion or some other imminent public evil was present."

Thus, under previous canon law (and however infrequent such filings might have been) a basis for recognizing the kind of denunciation apparently made against Senator John Kerry in the Archdiocese of Boston would have been clear. Granted, the complex course of justice would have to be followed, convictions (if any) would have to arise from the law and the facts of the case, and any punishments meted out would remain within the discretion of the judges. But for all that, something would have to be done as a result of the denunciation itself.

The matter is less clear under current canon law.

For starters, canonical commentators recognize that 1917 CIC 1935 was not carried into the revised 1983 Code. Thus, express authorization for this kind of individual denunciation is missing from the revised law. Not rejected, perhaps, but not asserted anymore.

Moreover, under 1983 CIC 1721, the filing of actual canonical charges against a member of the faithful is reserved to the Promoter of Justice (described in 1983 CIC 1430, but basically a canonical cross between in-house counsel and a district attorney), who in turn can file charges only when so authorized by the ordinary, usually, the diocesan bishop (1983 CIC 1341, 1720). Strictly speaking, the modern criminal process is not terribly different from the way things worked under the 1917 Code, but the removal of 1917 CIC 1935 somewhat alters the light under which preliminary penal procedural canons are read today.

Aside: It is ironic that just at the time when, in hindsight anyway, what we might call "private attorney general" actions might have played a role in circumventing episcopal lethargy in responding, say, to clergy sexual abuse cases, the very canon authorizing such actions was dropped from the revised law (yes, I know, for reasons totally unrelated to that looming crisis, which is why I termed it ironic, not duplicitous). Perhaps some consideration should now be given to restoring express recognition of the right of individual denunciation.

In any event, the values underlying 1917 CIC 1935 arose from natural law, and natural law applies regardless of whether it is specifically codified in human law. Hence, the basic right and duty to take the kind of action that seems to have been followed in the Kerry case is well-grounded. This natural law argument, plus a variety of relevant canonical rationales (and I have seen only news reports about the denunciation, not the document itself), will need to be carefully addressed by whatever level of ecclesiastical authority eventually treats this matter.

Whatever else this case does, it recognizes that the faith and conduct of a prominent Catholic is at issue, as is the welfare of the faith community with which he claims communion, to say nothing of the fate of untold third-parties whose very lives are at risk under certain measures strongly endorsed by Sen. John Kerry. Such concerns figure prominently among the issues that Christ charged His Church to watch over, and that makes the Kerry case something canon law speaks to.

I have been saying for many years that, as general knowledge of canon law spreads among the faithful, its ability to respond to a much wider range of questions than, say, clergy personnel matters and annulments, is going to become clear. This is good news. Two millennia of legal and pastoral experience is too much to ignore any longer. +++