A Question of Rights
Due Process, the Vatican, & ARCC

By James E. Biechler

Is there anyone left who still does not know that the bishops of the world recommended that the revised Code of Canon Law provide for administrative tribunals which would resolve the disputes which arise in the ordinary course of ecclesiastical life? Is there anyone who does not know that the Vatican authorities, at the very last moment, scratched that section of canon law? Is there anyone who does not know that most Catholics are now left twisting in the wind if ever they seek redress of grievances in the church? Perhaps even more important, is there anyone who does not know that the Vatican refusal to permit administrative tribunals, and therefore due process, was met by hardly a word of complaint by the world's hierarchy? The Canon Law Society of America produced a set of voluntary norms for due process but these have proven mostly ineffectual. The most the Code of Canon Law permits is that conferences of bishops or individual bishops might establish "a kind of permanent office or council" [officium quoddam vel consilium] to mediate grievances. The United States Catholic Conference has not done this and only a few dioceses have established any such permanent office. Even with such an office however, if such mediation fails, the aggrieved party has nowhere to turn but to the hierarchical superior of the person accused of the violation. It does not take much experience in human affairs to see the defect in this procedure. 

The present law assumes that hierarchical superiors are both just and wise, that they are objective and impartial. Having participated, as a canonist, in several cases involving recourse to hierarchical superiors, it has been my experience that superiors are invariably biased in favor of their clerical appointees, that the hierarchical system lacks sensitivity to the rights of non-clerics in the church, and that the present system is inherently subjective in its essence. In one case in which I participated, the pastor of a parish fired a group of teachers because they wished to form an association for collective bargaining, a right, incidentally, which has been recognized by popes since Leo XIII's encyclical Rerum novarum. When they took their case to diocesan authorities they were denied any standing because they were no longer teachers and hence had no complaint! When they appealed to Rome they were reprimanded because they had the audacity to seek legal redress in the civil courts. With that Roman decision the case was ended. While one cannot generalize from one case, it does expose the vitiating defects in the present system. A hierarchical system is a graduated system of sacred power, absolute because of its "sacred" essence. Such absolute power is no match for the rights of mere underlings unless those rights are buttressed by an independent judicial system. 

Papal absolutism and Roman centralism have fluctuated through the years of Christian history. Papal pretensions were more pronounced and absolutistic at some times than at others. At present we are witnessing another peak in papal absolutism. Perhaps this is a response to perceived problems associated with Vatican II. The 15-year retreat from Vatican II seems to have reached its high point. It is difficult for thinking Catholics to imagine just how much more suffocating things could become. Clearly, there is no hope whatever that due process within a system of administrative tribunals could ever become a reality under the present papacy. 

In his dissertation on due process entitled Vindication and Defense of the Rights of the Christian Faithful through Administrative Recourse in the Local Church (Rome: Pontifical Gregorian University, 1991), Reverend Thomas J. Paprocki agrees that money and personnel problems all but preclude the establishment of a system of administrative tribunals in the church. He believes hierarchic recourse could be structured to provide vindication and defense of the faithful's rights. The major obstacle to this view, I believe, is what Professor Lawrence Barmann [The Catholic Historical Review, 80:4 (October, 1994), 827] calls "Roman clerical culture," very much a reality in today's church. The seminary system established by the Council of Trent, Barmann writes, 

"...fostered a clerical culture which was self-consciously separate from lay Catholic culture and which was directed and controlled from Rome, not from diocesan centers. This system isolated seminarians from their secular counterparts; limited and censored what they could read and do; subtly and not so subtly insinuated a sense of self-righteous superiority; educated on a diet of ersatz scholasticism which was militantly anti-Protestant and rejected most contemporary ideas; used Scripture in snippets as an armory for apologetics; inculcated a rigid sense of hierarchical authoritarianism; created an exaggerated patriarchal and misogynist mind-set; and eliminated any real theological pluralism by making the reigning pope's opinions and those of the theological faculties he favored the final arbiter of orthodoxy."

Dr. Biechler, an emeritus professor of religion, is a member of ARCC's board of directors. He also holds a licentiate in canon law and is a longtime member of the Canon Law Society of America. 

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