Reflections on the Revision of the Code and on its final days

Reflections on the Revision of the Code and on its final days

Pope John Paul II promulgated the revised Code of Canon Law on January 25, 1983. It became Law on the First Sunday of Advent, November 27th of that same year.

For me that was the completion of a journey that began unknowingly in Octobr 1958 in the very week that I began post-graduate studies in Canon Law. Father Joseph Fuertes, C.M.F. the Professor of the Second Book of De Personis of the Pio Benedictine Code at the Urban University in Rome, in a literal flood of Latin, Spanish and Italian, gave us a list of reputable commentaries to study, pronounced us to be reasonably intelligent men and declared his task to be the formation within us of the mens juridicalis so that we would be able to cope with the coming of the new Code. At that stage of my canonical history, only the mention of the possibility of the writing of a new Gospel would have shocked me more.

Then I awoke from my siesta on the afternoon of January 25th 1959, to hear on my radio Pope John XXIII announcing to Cardinals gathered in the Benedictine Monastery of St. Paul outside the Walls that he was planning a Synod for the Diocese of Rome, an Ecumenical Council for the Church and the revision of the Code of Canon Law. Initially, the planned Revision of the Code caused little excitement after all it would be a comparatively simple task, as would the holding of the Council in the view of many.

It was March 28th, 1963 before Pope John XXIII appointed twenty-nine Cardinals to the Commission for the Revision of the Code of Canon Law. Paul VI appointed twelve more Cardinals to the Commission in November, 1963 which promptly decided to adjourn until after the conclusion of the Council. Among these early Commission members were Cardinals William Conway of Armagh, Norman Gilroy of Sydney and John Carmel Heenan of Westminster. By 1969 there were 125 consultors and there was no doubt that the consultation was wide, genuine and serious.

Pope Paul VI officially inaugurated the work of the Code Commission on November 25th, 1965. On that same occasion he referred to the question whether it would be useful to establish a common and fundamental Code containing the constitutional law of the Church given that there were two Canon Laws, one for the Latin Church and one for the Oriental Church.

Cardinals John Carmel Heenan (Westminster), Norman Gilroy (Sydney), William Conway (Armagh)

Cardinals John Carmel Heenan (Westminster), Norman Gilroy (Sydney), William Conway (Armagh)

The Code Commission was hard at work during the late 1960s. Ten principles of revision were presented to the Synod of Bishops in October 1967. They were concerned with the juridical nature of the Code; the relationship between the internal and external fora; the pastoral dimension of the Code; the incorporation of special faculties into the Code; the principle of subsidiarity; the protection of personal rights; the procedures for safeguarding personal rights; the territorial ordering of the Church; the revision of penal law and the systematic order of the Code.

Meantime, in the immediate post-conciliar years, the Law of the Church was changing rapidly and dramatically. The November 1963 Apostolic Letter Pastorale Munus, of Paul VI which graned certain faculties and privileges to Bishops, was followed rapidly by Apostolico Sollicitudo, in September 1965, establishing the Synod of Bishops; De Episcoporum Muneribus, extending and totally renewing the dispensing powers of Bishops, in June, 1966; and Ecclesiae Sanctae, in August 1966, containing the norms for implementing the counciliar decree on bishops and priests, on religious and on the missions.

After the death of Cardinal Ciriaci at the end of 1966, Archbishop Pericles Felici, who had been a very distinguished Rotal Judge prior to his becoming Secretary-General to the Second Vatican Council, was appointed Pro-President of the Commission in February, 1967. He became a Cardinal and President of the Commission in June, 1967 and remained so until his premature and sudden death in March, 1982 when he was aged 70. Cardinal Felici is the great figure of the new Code. He was a truly learned canonist, possessed of an encylopaedic knowledge of the documents of the Council and of the background to them, he consulted widely and sincerely, was determined to balance the need for consultation, especially with Conferences of Bishops, with the actual production of a new Law within a reasonable time. He was a most talented Latinist, was shrewd, had a wicked sense of humour, was tolerant but impatient with those who wished to reverse the work of the Council, refrained from imposing his personal opinion on points in canonical dispute and made short work of those who attempted to delay his massive task. He was an implacable opponent of attempts by Roman Congregations to make Law or Laws.

From 1972 until late 1978, the Drafts (Schemata) of the proposed canons were distributed for comment and consideration by BishopsConferences, the International Union of Superiors General, the organs of the Roman Curia and to Pontifical Universities and Faculties. A comparatively small number of responses came back to the Commission. Of course, many Conferences of Bishops simply lacked the organization, resources and personnel for such a mammoth task. In hindsight, the energy, efficiency and learning supplied by the Canon Law Societies of Australia and New Zealand, Canada, Great Britain and Ireland and the United States were of immense service to their Episcopal Conferences, both individually and co-operatively, and to many other Conferences especially in mission lands.

The arrival of the drafts among the Canonists of the various societies saw the outbreak of a sort of juridical fever not only at local levels, but also in terms of international collaboration. Opinions were circulated, learned papers written and gathered and translated and exchanged. Quickly it was realized that an inter-episcopal Conference meeting would be invaluable. From August 15th-19th, 1977, representatives, Episcopal and canonical, from Australia, Canada, England and Wales, Ireland, Scotland, South Africa and the U.S.A. gathered at Holy Cross College, Clonliffe, at the invitation of the Irish Episcopal Conference. The particular focus of the meeting was the Schema De Processibus. General dissatisfaction with the draft in certain areas was agreed upon and there is no doubt that the fruits of that meeting eventually influenced the final revision of the procedural canons.

Monsignor Ralph Brown of Westminster, Monsignor Gerard Sheehy of Dublin, Father Frank Morrisey, O.M.I. of Ottawa, Father Frank Harman of Melbourne and Father (now Bishop) Geoff Robinson of Sydney emerged at that first Inter-Conference meeting as an outstanding core group of canonical advisers who contributed most positively to the shape of the new Code.

In mid-August, 1978, delegates from France, Germany and Zaire joined the Dublin group for a second inter-episcopal Conference meeting in Ottawa. Paul VI had died a few days before this meeting. Professor Winfried Aymans of Munich and the late Archbishop Kevin McNamara of Dublin, then Bishop of Kerry, gave memorable assistance in helping draw up a critique of the draft De Populo Deiwhich had a most definite influence on the final shape of the Second Book of the present Code.

The Schemata Codicis Iuris Canonici was presented to Pope John Paul II on the Feast of the Holy Apostles Peter and Paul, 1980. There were many calls for a second round of consultations along the lines of the first. The Brazilian Bishops even suggested a meeting of the Synod of Bishops be devoted to the Schemata. Cardinals Felici, Palazzini and Schroffer were asked to find a suitable way of providing for further consultation. Their solution was to suggest to the Holy Father that he increased the representative character of the Commission by adding more Cardinals to its membership and if the Holy Father were to find it opportune, Vescovi, particolarmente versati nel diritto canonica. I was nominated by the Australian Episcopal Conference and became one of the 26 new members 18 Cardinals and 18 Bishops, added to the Commission early in 1981.

From 1965 until January 1980, the LEF (Fundamental Law of the Church) had been through seven drafts, but in response it would seem, to further interventions, the LEF has never been published. Specially chosen Canons were included in the 1983 Code.

The Relatio synthesizing the observations of the Fathers of the Commission was published on July 16th, 1981. The Canon Law Society of America and the Canadian Canon Law Society held a joint meeting in Chicago from October 12th-15th, 1981. Monsignors Brown and Sheehy, Father Frank Harman and the present writer went to Chicago for last minute conferences prior to the Final Plenary Session of the Commission in Rome from October 20th-29th, 1981. I was fortunate in having the generous and truly learned advice of Monsignors Brown, Sheehy and John Alesandro (of the Diocese of Rockville Center, New York) and of Father Frank Morrisey throughout the Plenary Session. Cardinal Felici chaired the meetings most amiably and efficiently and in the most silvestrine Latin.

There were six ex officio special questions chosen by the Secretariat. From ourpoint of view the two important issues were the exercise of jurisdiction by lay persons and the mandatory appeal. The exercise of jurisdiction by lay persons was retained and so, practically, the use of lay associate judges was confirmed. One thing that emerged in this discussion was that even though doctrinal questions remained unresolved, in practice decisions had to be taken.   Non possumus sine fine manere sine lege, said Cardinal Felici on this question. The mandatory appeal of every First Instance Decision was retained, though many of the participants felt that this question may have been resolved differently had it been treated later in the meeting when the Fathers had become more accustomed to working with each other.

Thirty-five other questions proposed by the Members were discussed. Eight of these questions concerned the canons on matrimonial consent. They were passed virtually unanimously.

So the Commission concluded its work and forwarded the amended draft to the Pope. 36 Canons from the Lex Fundamentalis were added to the Schemata. The Pope worked through the Schema with seven experts and with three Cardinals and Archbishop Fagiolo. The final version had several notable differences from the Schema.

On May 3rd, 1982, Cardinal Casaroli, the Secretary of State, wrote to Episcopal Conferences at the direction of Pope John Paul II to say that His Holiness is ready to take into account any remarks and observations that Bishops may still send him in good time. Again, the Cardinal wrote on July 26th, 1982. He noted that the Pope was not suggesting a further consultation but was interested in proposals intended to make the renewed canonical legislation as adequate as possible for meeting the Churchs present needs which the bishops experience in the daily exercise of their pastoral ministry.

In December 1982, John Paul II announced that he would promulgate the Code in the following January. This was surprisingly quick and the subsequent discovery of many minor errors suggest that the Commission needed more time for the careful editing which this magnum opus deserved. The Codex Iuris Canonici was promulgated on January 25th, 1983.

                                                                        Bishop Joseph OConnell

                                                                        Auxiliary Bishop of Melbourne

 

Bishop Joe was interviewed following his retirement. An extract of this interview is as follows:

'Looking back over the span of his career, Bishop Joe cites Vatican II and the changes to Canon Law that followed as the biggest change he has seen in the Church.
"I often think how I would have reacted to all that had I not had the Roman experience. I had...two professors in Rome…that were intent upon preparing us for the coming of the new Canon Law. I didn't know there was going to be a new Canon Law and I ended up very much involved in it!" he said.

"I was on the commission for the revision of Canon Law. I was the youngest bishop at that and I'm one of the few left alive. Of course, one who was involved in it and is still alive is the [current] Pope." [Benedict XVI]  January 2007

 

Originally written on 1st December, 1994 : Revised 15th September, 2007. Further revised: 9 July 2016 (Rev James O'Kane)

Bishop Joe died in his 81st year on 27 Apr 2013.  Requiescant in pace

Bishop Joe died in his 81st year on 27 Apr 2013.  Requiescant in pace