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A Challenge: Making the Rights Real

James A. Coriden¹ 

A rugged monument to President Lyndon Johnson stands on the west bank of the Potomac river at Washington. It is a simple, roughhewn shaft of granite set in a grove of trees. On its base are inscribed the words Johnson spoke on January 14, 1969, at the end of his term of office: 

I hope it may be said, a hundred years from now, that by working together we helped to make our country more just for all its people ... I believe at least it will be said that we tried. He referred to the difficult struggle to enact and then enforce the Civil Rights Act of 1964. 

The Code of 1983 presents canonists with a similar challenge: to make our church more just for all its members. The Code contains a list of rights and obligations. Thus far they remain mere statements, unrealized in the life of the church. Can we make them real? Will it be said that at least we tried?² 

The challenge to make the rights real unfolds here as follows: 

            1. our church is frequently perceived as unfair or arbitrary especially in the way members suffer at the hands of leaders.

2. the 1983 Code proffers a "Bill of Rights" for members which is of constitutional status;

            3. our tradition demands that we take rights seriously: evidence  arises from, a) the New Testament, b) the medieval canonists, and c) the modem teaching on human rights;

            4. a theoretical corollary is found in the contemporary debate about rights in any society;

            5. practical proposals proceed along two lines: tribunals and alternatives.

 1. AN UNJUST CHURCH 

            The Roman Catholic Church labors under a popular perception that it is arbitrary and unjust. The kinds of actions an failings which create and verify that image are the everyday and commonplace things which befall ordinary faithful and their parishes. Grander injustices and more spectacular abuses at high levels serve to reinforce this image of an authoritarian and unfair church. But the real damage is done at the local level. The denials of rights, non-feasance of office and capricious behavior which affect the ordinary people in the pews—and for which there is no redress—are the failures which so powerfully convey the impression of a church without justice. Some familiar examples: 

! schools closed without adequate consultation;

! parishioners denied all voice in the life of their parish;

! parish communities without any serious a Christian education or spiritual formation;

            ! communities subject consistently to woefully in adequate preaching, negligent and non-participatory liturgical celebrations;

            ! churches where no financial accounting is made to the people;

! parish staff persons terminated without evaluation or explanation;

            ! parish facilities denied to groups because the nature of their discussions is judged to be controversial;

            ! dioceses where there are no avenues for the expression of opinions or recommendations, no realistic participation in policy-making.  

            It is only fair to say that sometimes these abuses are alleged and not actual. Sometimes they are imagined or exaggerated or temporarily justified by circumstances. Sometimes almost nothing can be done about them because of the quality of available personnel or simple human frailty. Often, however, such abuses are real and remedies are possible. Instead of responding to the complaints and vigorously seeking remedies, a bishop or pastor invokes the time-honored policy of stonewalling. The institution can always outlast the aggrieved individual, and the impression of callous unfairness grows. 

            Even when no solution to an abusive situation is evident, great good can be accomplished by a fair hearing. To have one's "day in court," to be taken seriously and treated with dignity, to be listened to and heard out—it alone revives a sense of fairness and relieves powerlessness of alienation. 

            The abuses mentioned above are all rights failures. They are related to the rights claims of church members asserted in the 1983 Code Rights which are declared but undefended are a mockery; when the claims cannot be vindicated, the rights are useless. Any society which fails to provide remedies for wrongs, reasonably adequate and available mechanisms for the redress of grievances, ways to insist on the basic claims which are constitutionally asserted, is not a just society. For those very reasons our church is perceived by many of its members, as well as by outside observers, to be an unjust church.  

2. THE BILL OF RIGHTS IN THE 1983 CODE 

            The impressive list of rights and responsibilities of all the members of our church, placed dramatically at the very outset of the book on The People of God,³ possesses constitutional status. It has fundamental and constitutive import. It is far more than a declaration or manifesto, like the Declaration of the Rights of Man and of the Citizen (France, 1789; or the Universal Declaration of Human Rights (United Nations, 1948) These have had considerable exemplary, educational and idealistic impact. The Code's bill of rights should have those effects and more. It has greater weight than the exhortatory or statutory canons of the Code The bill of rights is part of the bedrock upon which is based the rest of our canonical system. 

            The arguments to demonstrate the primacy of the canons on rights and responsibilities follow. But first one needs to recall that the canons of the Code have very different "juridic weights" (just as the physical elements possess varying atomic weights). Some canons are far more important than others. This is perfectly obvious even to the most casual observer. In spite of the fact that all of the canons look alike (same size type, same short paragraphs, all numbered sequentially from 1 to 1752), and that all were issued by the same authority, on the same day, in the same act of promulgation, they represent a variety of literary and theological forms (e.g., dogma, doctrine, discipline, exhortation, admonition, pious wish, and vastly different levels of value, seriousness and structural significance.⁴ Compare canon 381 on the authority of a diocesan bishop with canon 571 which exhorts a chaplain to "maintain an appropriate close relationship with the pastor.  In short, some rules of the Code set forth the very framework of Roman Catholic Church order while others state relatively trivial disciplinary preferences. 

            Now to the constitutional quality of the Bill of Rights. The arguments run along six lines: 

            a) The rights had their origin in the constitutional statement. Lex Ecclesiae Fundamentalis  (The fundamental law of the Church);

            b) They were uniquely mandated by the Principia Quae Dirigant Recognitionem Codicis (The principles which guide the revision of the Code);

            c) Sacrae Disciplinae Leges (The Laws of the Sacred Discipline) asserts that the rights are a chief purpose of the Code;

            d) They occur at the beginning of the book De Populo Dei (On the People of God) where membership and its characteristics are delineated;

            e) Their content is of basic importance, that is, they are intrinsically fundamental claims;

            f) John Paul II singled out the charter of rights for special attention just after the promulgation of the Code. 

            a) The celebrated Lex Ecclesiae Fundamentalis resembled a canonical space rocket. It was launched under papal auspices, gained rapid momentum, rose high in the canonistic heavens, came under sharp attack, underwent repairs and mid-course corrections, and came crashing  to earth to an unexplained demise, never to be heard from again. 

            Pope Paul VI himself suggested a canonical constitution to the Commission for the Revision of the Code even before the close of Vatican Council II. He mentioned it specifically in his address of November 20, 1965, in which he propelled the revision process into action. The Commission had a draft ready for discussion by the middle of 1966, and a revised version in the following year. The 1967 Synod fathers urged the Commission on with the project. After three more sessions on the subject the consultors presented a first formal draft to the Commission's cardinals by 1969. 

            Paul VI spoke of a "common and fundamental code containing the constitutive law (ius constitutivum) of the church" which was to underlie both the Eastern and Western (Latin) codes.⁵ It was clearly what we refer to as a constitution. 

            When the Commission made the first draft of the Lex public in the Spring of 1969 (sub secreto. but widely circulated), it contained a set of canons (numbers 10 to 24) which are substantially the same as those in the 1983 Code's Book II, canons 208 - 223. Each one was identified with a source in the documents of the Vatican Council, mainly Lumen Gentium, by means of a footnote. The official Relatio referred to this section as "The Fundamental Duties and Rights (.officia et iura) of All of Christ's Faithful." Subsequent drafts repeated this tide. They spoke of those canons defining and determining the primary duties and rights (officia et iura primaria) which pertain to all of the People of God, namely to all Christ's faithful.⁶ 

            The Commission's communication to the Episcopal Synod of 1971 described the enumeration of rights of the faithful as fulfilling one of the chief purposes of the "fundamental code."⁷ 

            The whole Lex project was put to death, without explanation, in 1981 after it had been approved by a specially convened international commission earlier in the year. The canons on the rights and duties of members were transposed to the Code along with some elements from a set of rights which had been developed by the commission working on the text On The People Of God. In that process, the term officia was dropped in favor of obligationes (obligations), but the expresion for rights, iura, remained the same. 

            The origins of the Code's bill of rights were not in a Constitutional Congress, but its history and development clearly reveal its truly constitutional character. 

            b) The Commission for Revision of the Code, as one of its first tasks, articulated a set of ten "principles to guide the revision" and submitted them to the 1967 Synod of Bishops. The Synod approved them by overwhelming votes.⁸ Three of these ten directing principles dealt explicitly with the rights of members of the church: 

i) The very first principle, which had to do with the juridic nature of the Code, states that "the principal and essential object of canon law is to define and safeguard the rights and obligations of each person toward others and toward society."⁹ 

ii) The sixth principle was specifically concerned with safeguarding the rights of persons. It began: "A very important problem is proposed to be solved in the future Code, namely, how the rights of persons can be defined and safeguarded." It went on to say: 

The use of power in the Church must not be arbitrary, because that is prohibited by the natural law, by divine positive law, and by ecclesiastical law. The rights of each one of Christ's faithful must be acknowledged and protected, both those which are contained in the natural and divine positive law and those derived from those laws because of the social condition which the faithful acquire and possess in the Church.¹⁰ 

            In effect, the sixth principle explicitly called for a Bill of Right of the new Code. 

iii) The seventh principle had to do with established procedure for safeguarding subjective rights. In clarion tones it called for ready and realistic procedures for the actual vindication of personal rights: 

            The principle must be proclaimed in canon law that juridical protection applies equally to superiors and to subjects so that any suspicion of arbitrariness in ecclesiastical administration will entirely disappear. 

            This end can only be achieved by avenues of recourse wisely provided by the law which allow a person who thinks his or her rights were violated at a lower level to have them effectively restored at a higher level.¹¹ 

            The Commission went on to describe the need for better means of administrative recourse, and specifically for various degrees and kinds of administrative tribunals. Thus this principle set forth the need for realistic and effective remedies for grievances in addition to the declaration and delineation of the rights themselves. 

            The prominent attention which the Commission and the Synod gave to rights in advance of their formulation highlights the central importance they have in the new Code. 

            c) In his Apostolic Constitution Sacrae Disciplinae Leges which promulgated the revised Code, John Paul II raised up the theme of the rights of members of the church as a central accomplishment: 

Among the elements which characterize the true and genuine image of the Church we should emphasize especially the following: "...the doctrine according to which all the members of the people of God, in the way suited to each one of them, participate in the threefold priestly, prophetic and kingly office of Christ to which doctrine is also linked that which concerns the duties and rights of the faithful and particularly of the laity.”¹²

And among the reasons why the Code is necessary for the church, the pope stated: 

Since the Church is organized as a social and visible structure, it must also have norms: ... in order that the mutual relations of the faithful may be regulated according to justice based upon charity, with the rights of individuals guaranteed and well-defined.¹³ 

            The special focus on the delineation and protection of rights in the document of promulgation of the Code helps to support the characterization of the rights section of Book II as constitutional.  

            d) In real estate location is everything That is not true of the canons of the Code, but context does matter in understanding canons, as canon 17 states.¹⁴ And the placement of the  Bill of Rights in the Code does say something about its seriousness. It occurs at the very outset of the central and very important book of the Code, De Populo Dei. The canons on rights and obligations form part of the description of the very identity of the Christian faithful. Immediately after the Code defines who are the members of the church (canons 204 and 205), it sets  forth the implications of that membership: the rights and obligations of those who are fully incorporated, fully in communion. Prior to the treatment of sacred ministers, before the rules on the hierarchical structure of the church, and well before the regulation of religious institutes, comes this threshold articulation of what it means to be a fully participating member of our church. In sum, the contextual situation of these canons shows them to be of foundational significance. To call them constitutional is not an exaggeration. 

            c) The rights stated in the. code are intrinsically of fundamental importance. They are concerned with matters basic to human dignity and to the meaning of church  membership. Reflect on this listing of the rights and freedoms. 

1. The fundamental equality of all Christians based on baptism and equality and dignity in action; the right and freedom to cooperate in building up the Body of Christ (c. 208). 

2. The right to evangelize the nations (c. 211). 

3. The right to petition, that is, to make known to pastors one's needs (especially spiritual) and one's hopes (c. 212 # 2) 

4. The right to recommend: the right to advise pastors regarding the good of the church, and to participate in public opinion nd informing the faithful (c. 212 #3). 

5. The right to receive the word of God and the sacraments from pastors (c. 213) 

6. The right to participate in worship according to the legitimate norms of one's rite (c. 214). 

7. The right to one's proper spirituality (c. 214).

            8. The right to association: the right to found and direct associations with charitable purposes and as an expression of Christian vocation (c. 215). 

9. The right to assembly:  right to hold meetings for the same purpose as to associate (c. 215). 

10. The right to promote the apostolate and to one's own proper initiative in apostolic work, based on the right to participate in the church's mission (c. 216). 

11. The right to Christian education (c. 217).

12. Academic freedom: the right to research and to publication (c. 218). 

13. Freedom from force in choosing one's station in life (c. 219). 

14. The right to a good name and reputation (c. 220). 

15. Privacy: the right to have others respect what is intimate to one's self (c. 220). 

16. The right to vindicate one's rights in church court and to defend one's rights in church court (c. 221 #1) with equity and in accordance with law (c. 221 #2). 

17. The right to be judged (c. 221 #2). 

18. The right to legality regarding sanctions, that is, the right to expect the church to impose sanctions only in accordance with law (c. 221 #3).¹⁵ 

            These rights and freedoms are not peripheral or inconsequential.. They go to the heart of the reasons for belonging to a church. They are central to participation in a Christian community of faith and love. They are to life within the church what freedom of speech, freedom of religion, due process of law, suffrage and representation are to life as citizens. They are tantamount to what we are accustomed to refer to as constitutional rights. 

            f) Pope John Paul II called special attention to the Bill of Rights in his address to the Roman Rota just one month after the promulgation of the new Code: 

The Church has always affirmed and protected the rights of the faithful. In the new code, indeed, she has promulgated them as a "fundamental charter" ("carta fondamentale") (confer canons 208-223). She thus offers opportune judicial guarantees for protecting and safeguarding adequately the desired reciprocity between the rights and duties inscribed in the dignity of the person of the "faithful Christian."¹⁶ 

            The mind of the legislator seems to be that this statement of the basic rights of the members of the church is of unique and fundamental importance.

            The foregoing six lines of argumentation converge to a convincing conclusion: that the Code's Bill of Rights holds a genuinely constitutional status. It makes up an essential part of the fundamental order of our church, along with other foundational articulations in the Code. 

            What are the implications of constitutional status? Juridic priority The rights of church members must be accorded a certain antecedent They deserve and command juridical anteriority in relationship to other canonical dispositions. More concretely, when reflecting on a canonical action, before considering pastoral prerogatives or episcopal responsibilities or official duties, the first concern must be for the rights of the Christian faithful affected by the action. They have the primacy of constitutional claims. 

            Not only do these rights have to be taken seriously, they must also be safeguarded. They compel our attention and respect, but, more crucially, we must see that the rights receive the protection which befits constitutional guarantees. The practical means for the vindication of rights remains an urgent concern in our church. More about that below.  

3. OUR TRADITION ON RIGHTS 

            Much in the Roman Catholic tradition recommends taking rights seriously. Popular impressions to the contrary notwithstanding, the personal claims of members of our church have frequently been proclaimed, honored and vindicated both in theory and in practice. The teaching and the discipline of our church strongly support rights claim. For the present purpose three examples will serve to illuminate this tradition: a) two passages from the New Testament writings, b) a glance at the medieval canonists, and c) the modem social teaching on human rights. 

            a) In the young community of Christians at Corinth it happened disputes between members were taken into the secular courts of the for resolution. When the Apostle Paul learned of this, he took strong exception: 

How can anyone with a case against another dare bring it for judgment to the wicked and not to God's holy people? . . . Can it be that there is no one among you wise enough to settle a case between one member of the church and another? Must brother drag brother into court and before unbelievers at that?¹⁷ 

            "It is a brazen act, Paul declares, for one Christian to enter a lawsuit against another Christian before a pagan court."¹⁸ It bespeaks an indifference to the requirements of unity and communion in Christian society. Paul wants Christians to resolve their differences among themselves. He might prefer that they simply turn the other cheek, forgive, and avoid seeking any redress at all, but if the dispute must be settle should be done within the community of believers. 

            Paul has in mind that people in the church should choose mediators or judges acceptable to both disputing parties, and he wants to as that the judges would be those who had standing in the church on basis of proper spiritual qualification. 'The Christian mediator should have in view the reconciliation of the parties that they might get rightly related to the forgiving and loving God by forgiving one another."¹⁹ 

            In Paul's view such incidents as taking disputes between Christians to the pagan law courts bring the witness and communion of the church into disrepute among pagans, and harm the spirit of communion within the church. If the unity, peace and communion within the church not be preserved in a spirit of Christian love and forgiveness, how can the church fulfill its mission among the nations of the world?²⁰ 

            Matthew's gospel also refers to the situation of injuries or grievances occurring within the community of faith. A procedure for the resolution of such problems, derived from Jewish rules of evidence, is outlined: 

If your neighbor should commit some wrong against you, go and point out the fault, but keep it between the two of you. If he or she listens to you, you have won your neighbor over. If your neighbor does not listen, summon another, so that every case may stand on the word of two or three witnesses. If he or she ignores them, refer it to the church. If he or she ignores even the church, then treat him or her as you would a Gentile or a tax collector.²¹ 

            The saying concerns personal offenses and the willingness refusal of reconciliation within the local community.²² The witnesses are to attest the neighbor's readiness to forgive and be reconciled give evidence of the injury or wrong. The process is a part community's own discipline, and it indicates the sensitivity to the resolution of disputes which was present in the earliest Christian churches.²³ 

            To read a "theory of rights" into these texts about dispute resolution in two New Testament churches would probably be unwarranted. But the references are to personal harm or perceived wrongs, and the careful attention paid to the manner of their settlement within the community shows that matters involving what we now call "rights” were taken quite seriously. 

            b) "The twelfth and thirteenth centuries were an age not only of increasing awareness of rights but of the rise of the legal science provided the means of asserting rights in court."²⁴ Canonists participated in and contributed to this development in a major way.²⁵ 

            Harold Herman, in Law and Revolution: The Formation Western Legal Tradition²⁶ asserts that "the first modem Western system was the canon law of the Roman Catholic Church."²⁷ He describes at length the growth of the canonical system, which he relates to the "Papal Revolution" (i.e., the Gregorian Reform, 1050-1122), and the considerable impact which its innovations .procedures and principles made on the further shaping of western law.²⁸ 

            The canonical system had long historical and theological roots, but its rules arose from the life of the people: 

Out of the system of ecclesiastical constitutional law there gradually developed relatively coherent bodies of substantive rules .... There also developed rules of judicial procedure. These bodies of law were not conceptualized in the same way that autonomous branches of law came to be conceptualized later centuries: the canonists of the twelfth and thirteenth centuries did not attempt to organize each branch of law—property, contract, crime, and so forth—as a self-contained set of rules stemming logically from various principles and doctrines . . . .  The canon law was less abstract, less "logical." Its categories had grown out of the jurisdiction of the ecclesiastical court; and out of the legal problems confronting those courts rather than out of the speculative reasoning of academic jurists. . . . the canon law tended to be systematized more on the basis of procedure than of substantive rules.²⁹ 

            Berman mentions three interesting examples of this process of evolving procedural law. One was the process of "prorogation" by which the church offered the benefit of its jurisdiction to all who wished to choose it. Parties to any civil dispute could, by agreement, submit their dispute to an ecclesiastical court or to ecclesiastical arbitration. Parties to civil contracts often wrote in clauses providing in advance for such submissions.

In addition, according to canon law any person could bring suit in an ecclesiastical court, or remove a case from a secular court to an ecclesiastical court, even against the will of the other party, on the ground of "default of secular justice." Thus the church ultimately offered its jurisdiction and its law to anyone for any type of case, but only under exceptional circumstances, that is. when justice itself, in the most elementary sense, was at stake.³⁰

            One of the advances which canon law provided beyond the earlier Roman procedures and Germanic customs was a simplified process:

The canonists also invented the concept of a dual system of procedure, one solemn and formal, the other simple and equitable. The simple procedure was available for certain types of civil cases, including those involving poor or oppressed person and those for which an ordinary legal remedy was not available. It dispensed with legal counsel as well as with written pleading; and written interrogatories.³¹ 

            Eventually the canonists did the speculative reasoning which led to legal theories. Henry of Susa, better known as Cardinal Hostiensis, was one of the most highly respected canonists of the "golden age of canon law." He was a "decretalist" (i.e., a commentator on the Decreta Pope Gregory IX, 1234), active from about 1230 to 1271. When Hostiensis wrote on the purpose of law he focused on the need for declaring rights and protecting them with fair procedures. He quoted Gregory’s own intentions in promulgating his collection of decretals:

Laws are given so that harmful passions might be restrained under the rule of law, so that humankind might be trained to live decently, that we might not harm one another, and that each one might be given his or her due.³² 

Hostiensis added that laws are to protect the innocent from dishonest, to show compassion for the oppressed, to see to it that justice is done in the courts (and excessive costs and delays avoided therein), to avoid discord and to remedy frauds.³³ 

            Clarence Gallagher, in his study of the legal views of Hostiensis in his most influential work, the Summa Aurea, points out the great canonist’s concern for the "delineation of rights and duties and legal protection through due process."³⁴ Hostiensis frequently repeated the widely accepted maxim that "it does little good to have rights in society unless there is someone to make them real."³⁵ 

            The canonical collections and commentaries of the middle ages filled with clarifications of rights and duties and the procedures to sue them. Nearly all of the rules were for the hierarchy, the clergy and religious, the chapters and synods, the officials and courts. There was no "Bill of Rights" for the members of the church. But the medieval canonists had a keen concern for justice, developed a sense of individual and collective rights, and made great strides toward due process. 

            c) Our church's modem social teaching provides a sound basis for the right claims in the revised Code. David Hollenbach's study, Claims in Conflict: Retrieving and Renewing the Catholic Human Rights,³⁶ exposes this facet of our doctrine and traces its development the past one hundred years. This teaching possesses a soundness, consistency and elegance which commands respect, but it also stands as a challenge to the inner life of the church. 

            The centerpiece and foundational principle of the modem Catholic tradition on human rights is the dignity of the human person. This primary truth runs through the entire teaching on rights.

The thread that ties all these documents together is their common concern for the protection of the dignity of the human person. In a speech delivered in May, 1961, John XXIII stated that the entire modem tradition "is always dominated by one basic theme—an unshakable affirmation and vigorous defense of the dignity and rights of the human person." In John XXIII's view, human dignity is the concrete normative value which the entire tradition has attempted to defend. Respect for the dignity and worth of the person is the foundation of all the specific human rights and more general social  ethical frameworks adopted by the encyclicals and other Church teachings.³⁷ 

            This central and fundamental truth has not been simply repeated; it has been nuanced and developed through the decades. Pope Leo XIII's encyclicals (chiefly Rerum Novarum, 1891) laid the groundwork for the modem Catholic theory of human rights. Human dignity is the foundation of his theory of human rights. In both the political and economic spheres he interpreted the demands of human dignity with the help of an analysis of the impact of social, economic and political institutions on human persons.³⁸ 

            Pius XI, facing different world problems forty years later (Quadragesimo Anno, 1931), added a new dimension to our human rights heritage. He held that the notion of social justice as a regulative principle for societal institutions is based on the conviction that human dignity is a social rather than a purely private affair. Human dignity makes a genuine moral demand upon the organizational patterns by which public life is structured. Pius XI‘s writings represented a major development in the tradition's recognition of the social conditions and limits which enter into the specification of the meaning of human dignity and human rights.³⁹ 

            During and after the agony of the Second World War Pius XII reflected on human rights and government's role in maintaining them The order which he saw as the concrete realization of social morality is a juridical or constitutional order of rights. The realization of such an order is a duty incumbent on all persons, and this duty is to be carried out in a partial but very important way through constitutional government. The role of government is the promotion of the common good—that  form of society in which responsible citizens act in a way which leads to mutual respect for rights and dignity. The common good, since it is founded on mutual dignity, is not in opposition to human rights, but rather their guarantee. This role of the common good and the role of government in protecting it shows that, for Pius XII as well as for the entire tradition, human rights cannot be understood apart from  interdependence, nor can social well-being be understood apart from personal rights. This approach introduced a strong emphasis developmental and dynamic character of rights.⁴⁰ 

            Pope John XXIII further nuanced the Catholic teaching on rights by insisting on the interdependence of societal factors in their support for rights and by specifying the rights more explicitly and complete ever before. The single basic norm of respect for human dignity to understand both civil-political rights and social-economic rights within a single integrated theoretical framework. Pacem in Terris maintained that the protection and coordination of human rights increasingly a task which calls for organized action within society as a whole. The list of rights articulated in Pacem in Terris represents systematic recapitulation of the rights claims made by the tradition since Leo XIII.⁴¹ 

            The Second Vatican Council plunged the rights discussion reality of history by acknowledging that the demands of human are historically conditioned. Gaudium et spes (1965) taught that if persons  in society possess a transcendental worth, then the structure social organization are confronted with claims to serve and protect personal dignity. The precise content of these claims, however, is historically conditioned. Thus it is impossible to specify the conditions of  human dignity a priori. Any justification of particular claims that would grant them the status of rights involves a measure of historical judgment.⁴² 

            Pope Paul VI's chief statements on human rights were contained in Populorun Progressio (1967) and Octagesima Adveniens (1971). he stressed the concept of "integral development," raised material needs to a new level of importance, and emphasized that can be realized only in social collaboration. The human personality is multifaceted. The protection of human dignity, therefore, respect for the multiple social, economic, intellectual, interpersonal and religious conditions of personal development. Material well-being is not simply an instrumental value, simply a means to a dignified life. Rather, it is integral to the standard of all moral value, human dignity. Human rights, therefore, are expressions of the more fundamental moral experience of human solidarity. Whether these rights be negative immunities or positive entitlement they presuppose that persons recognize that they are bound together in a moral community of mutual dependence.⁴³ 

            The statement. Justice in the World, of the 1971 Synod of Bishops added the fundamental and complex notions of the right of participation and the right of development. Marginalization or lack of participation has become a primary criterion for judging if human dignity is being violated. Lack of adequate nourishment, housing, education and political self-determination are seen as a consequence of this lack of participation. The relational quality of human dignity was spelled out by the Synod in terms of a fundamental right to participation which integrates all the other rights with each other and provides their operational foundation. The right to development affirmed by the Synod is the first specification of the demands of dignity in the present historical situation. Respect for persons demands active participation in the process of social change and development. The right to development is a comparative right; its content can only be discovered by regarding the individual person within his or her own social context and in relation to other persons. The rights to participation and development have become conditions for the realization of all other rights.⁴⁴ 

            For our present purpose the 1971 Synod document is of special significance, for it explicitly insists that rights be fully respected in the internal structures and procedures of the church. In this context it affirms the right to a just wage, the right to participation, the rights of women, the rights to freedom of expression and thought, and the right to due process of law.⁴⁵ The Synod urged us to take justice claims seriously and to work for the rights of persons within the church as well as in the civil order. Its words are both familiar and challenging to us. 

While the Church is bound to give witness to justice, she recognizes that anyone who ventures to speak to people about justice must first be just in their eyes. Hence we must undertake an examination of the modes of acting and of the possessions and life style found within the Church herself.

Within the Church rights must be preserved.⁴⁶ 

            The constitutional rights declared in the 1983 Code find firm footing in modem Catholic social teaching. In fact, the 1971 Synod statement brings these theories home and insists that they are to be applied within the community of faith. 

            The foregoing samplings from our tradition—the New Testament churches, the medieval canonists, modem social teaching—demonstrate that human rights claims and their procedural protections are quite in keeping with that tradition. "Rights talk" is familiar language for Catholics; what is needed is to move from conversation to effective action in the life of the church.  

4. CONTEMPORARY DISCUSSION OF RIGHTS 

            In the last fifteen years a remarkable literature has sprung up in the area of political theory.⁴⁷   These highly intelligent and plausible speculations of philosophers, political scientists and students of government have resulted in both a rich literature and a lively discussion, one which spills over from the ivory towers of academia to more practical levels of political debate. The ultimate concern of most of this writing is the area of distributive justice: What does a society owe its members? How are the resources to be equitably distributed? How are the disadvantaged to be treated: the poor, the ill, the old, the young, the handicapped? These radical and politically sensitive issues are the final preoccupation of the debate, but along the way the participants are forced to reflect upon and define basic concepts like liberties, claims and rights. 

            John Rawls is probably the most celebrated of these contemporary theorists. His book, A Theory of Justice, published in 1971, seems to have sparked the debate. As Robert Nozick, another major voice in the discussion, wrote in 1974, "Political philosophers now must either wort within Rawls' theory or explain why not."⁴⁸ But many others have contributed to the scholarly dialogue: some social contract theorists, some natural law proponents, some utilitarians. It is a dense and intriguing discourse. 

            The whole enterprise can be envisioned as an attempt to bridge the chasm between liberal democratic theories which prize civil and political rights, and Marxist theories which give primary emphasis to social and economic rights. This sharp conflict of political theories, which divides the socialist/communist regimes from the capitalist democracies of the world, was consciously papered over by the 1948 United Nations Declaration of Human Rights. These contemporary theorists are trying to build a bridge between these two worlds, or, rather, to construct a middle ground so that a truly just society can emerge. 

            Canonists should be aware of this learned, largely secular discussion; we should take part in it, and we certainly can learn from it as we ponder the issues related to rights in our church. By way of a single example, can we adopt the view of John Rawls in our appropriate to conical rights?

Justice is the first virtue of social institutions, as truth is of systems of thought. A theory, however elegant and economical, must be rejected or revised if it is untrue; likewise laws and institutions, no matter how efficient and well-arranged, must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.⁴⁹ 

            Rawls declares that the first principle of that justice which is at the basis of any society is "equality in the assignment of basic rights and duties,"⁵⁰ and that "each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.”⁵¹ 

5. PRACTICAL PROPOSALS 

            Both Francis Morrisey and Ladislas Orsy, writing recently on the subject of rights in the church, stressed the need for innovations at the practical level in order to make the rights real.

Indeed, rights are of little avail if they cannot be implemented or vindicated when necessary. Probably here more than anywhere else in the new code will we have to change our way of thinking. It is not simply a question of pouring new wine into old skins: present mechanisms in many instances are simply unable to cope with this new and fascinating dimension of  Church law. Some form of recourse will have to become available to ensure that rights are respected.⁵² 

Orsy wrote of the need to go beyond theology and theory about rights and work toward "practical legal means to redress any violation speedily," to work "toward setting up an efficient judicial machinery to uphold fundamental rights and to enforce fundamental duties. The aim is concrete action. The field of inquiry is the practical demands of justice.”⁵³ 

            The following two suggestions attempt to meet the need  seriously by providing realistic means for their vindication  

            a) Adapt our existing diocesan tribunals to adjudicate a variety of disputes besides those involving the nullity of the bond of marriage.  

            Canon 221 states that "the Christian faithful can legitimately vindicate and defend the rights which they enjoy in the Church before a competent ecclesiastical court in accord with the norm of  law.” The canon could not be clearer. The church's courts are to be open to the rights claims of church members. Believers are to receive justice in tribunals of their church. But in fact our courts are not accessible to them in instances of the violation of their rights. The courts only marriage cases, and that is all they are prepared to hear. 

            Since the Code gives a mandate to make the courts accessible we should not shrink back from or delay doing so. And to broader scope of their activity, to accept and decide other kinds of disputes may not be as awesome a prospect as is often imagined.⁵⁴ A brief comment on three elements of our judicial process may be in order here: on personnel, on procedures, and on a learning process. 

            Each community recognizes within it certain of its members who are almost universally respected, who seem to embody a Christian wisdom, maturity, objectivity and common sense. Such persons are trusted implicitly, and their opinions valued. They could function effective judges without their having to be experts in canon law or in the are; human conflict. Their decisions in the forum of the tribunal would be honored. A few in each diocese would suffice; cases should not be frequent. 

            The Code offers a speedier and simpler process than the ordinary one for contentious cases. The oral contentious process (canons 1656 to 1670); derived from the early fourteenth century) is designed to provide a fair hearing and a prompt decision with a minimum of preparation, lapse or record keeping. It might serve as an effective procedure for resolving many disputes quickly and "in accord with the norm of the law." 

            A learning process will be required, because few persons have experienced the use of church courts for a diversity of cases. Sharing cases, procedures and results will be vital; tribunals will learn from another just as they have done with marriage cases. 

            The same pastoral sensitivity, dedication and ingenuity which has vastly improved tribunal performance in reconciling those who have experienced the tragedy of divorce could become a powerful force in shaping a more just church. 

            b) Create alternative means of conflict resolution and grievance redress. 

            The revised Code provides ample warrant for setting up and utilizing other kinds of procedures for the settlement of rights claims. "With du regard for justice, all the Christian faithful, especially bishops, are to strive earnestly to avoid lawsuits among the people of God as much as possible, and to resolve them peacefully as soon as possible" (canon 1446, #1). The second paragraph of the same canon urges the judge "to encourage and assist the parties to collaborate in working out an equitable solution to the controversy . . . even employing the services of reputable persons for mediation."  The third paragraph instructs the judge to ascertain whether the litigation can "be resolved through a negotiated settlement or through arbitration." 

            Under the title, "Methods of Avoiding a Trial," the Code recommends a process of settlement or reconciliation by means of arbitration (canons 1713 to 1716). And again, when the Code treats of administrative recourse, conciliation or arbitration are given as very desirable means to resolve contentious differences (canon 1733, #1). The second paragraph of the same canon provides for the establishment of permanent offices or councils in each diocese for the purpose of working out equitable solutions to administrative grievances. 

            These canons recall the due process procedures elaborated by the Canon Law Society of America⁵⁵ and approved for diocesan use by the National Conference of Catholic Bishops in 1969.⁵⁶ These processes have been successfully employed in several dioceses in the intervening years;⁵⁷ the very existence of grievance procedures has been perceived as beneficial in many places. The lack of any effective sharing of the experiences of these processes is lamentable; it limits the possibilities of learning, imitation and improvement.  

            Other resources also are available in our society; the services of the American Arbitration Association are among them.⁵⁸ We must search for simple and expeditious procedures which safeguard fairness and give adequate hearing but avoid the pitfalls of cumbersomeness, expensive transcription, excessive delays and adversarial postures. 

            These two “suggestions’ are not really voluntary options; they integral parts of the current discipline of our church. They are canonical requirements. More importantly, they are urgently needed for protection of the rights of the Christian faithful. 

            Will we try to make our church more just for all its people'' We have a new canonical “Bill of Rights.” It is part of the church’s constitutional structure. And it resonates with the church's authentic tradition. Will we try to make the rights real for our people? We must improvise new procedures and put old ones to new purposes. We can learn from own past, from secular parallels, from other churches.

            Pope John Paul II spoke to the Dutch church recently about liberty and law: Christ established his church as a well-ordered and free people,” he said.⁵⁹ "Christ called us to true freedom. He alone can make us truly free.  That is why the church gives so much care throughout the world to defending and furthering authentic human liberty.”⁶⁰ What our church attempts throughout the world we must assure at home: respect for the rights of Christ’s faithful, and the means to make those rights real. Only then will we actually be a free and well-ordered people.⁶¹

Other voices

Another Voice

Questions From a Ewe

Challenges Facing Catholicism
(Bishop Geoffrey Robinson in converation with Dr Ingrid Shafer)