A Modest Proposal

The promulgation of the motu proprio Mitis Iudex kicked up a canonical dust storm about its intentions, interpretation and likely consequences.

In a previous post, I sought to outline what I thought were the objective pro’s and con’s of the legal reforms which Francis has introduced. On balance, and with nearly a week’s mass reflection by the canonical community, I am still persuaded that there is more good than bad to the reforms.

That which is bad about the reforms, in my estimation, for whatever that is worth, concerns mostly the lack of safeguards around the new short form process for handling marriage nullity cases. My greatest concern is that canonically inexpert (possibly even willfully ignorant) tribunal staff, and in some places there are many of them, will be left to their own ideas about what makes a marriage null and no longer have the basic, if admittedly imperfect, safeguard of every case getting at least a second look through an automatic appeal.

As I said in my last post, there is nothing airtight about an automatic appeal as a guarantee of a right decision, and I am not persuaded it is the best way of safeguarding the integrity of the decisions of tribunals. But it does, at the very least, double the opportunities for a canon lawyer to look at the case and this is important. The checks imposed by rigorous (or tedious, depending on your perspective) procedure only serve a purpose if the one who is doing the checking understands the law.

Similarly, the streamlining (or gutting, depending on your perspective) of procedure is only as much of a risk to the integrity of marriage as the people using it make it. The reformed procedure for marriage cases is a tool, and like all tools, it is as useful or dangerous as the workman wielding it.

Reformed procedure: as safe as the person using it.
Reformed procedure: as safe as the person using it.

The short form process is, in my opinion, a very effective but very dangerous precision tool which, for it to function properly, needs to be handled expertly to avoid causing harm, both to the parties in a case, and to justice itself. And, unfortunately, there is very little chance that this will be the case in many tribunals, at least in Britain and the United States. I say this because of the way the current system is often so poorly served.

In the course of an ordinary marriage case there should be six principal legal players in the process: a three judge panel, the defender of the bond, and an advocate for each party; the promoter of justice may also sometimes be involved, bringing our total to seven. All of these should have at least a license in canon law, and most are actually supposed to have a doctorate (cc. 1421 §3, 1435, 1483).

In my own experience of marriage tribunals, which is pretty diverse, more often than not none of the participants will have doctorates and only some of the judges will have licenses. In fact, usually it will be a single clerical judge, not a panel of three (formerly an exception widely granted in the United States, now made a universal option by Mitis Iudex) and the parties will usually not have advocates at all, when they do it is rare for these to be canon lawyers.

Less than half of the opinions from defenders of the bond which I have read as a judge are signed by a JCL. Usually they are signed by a priest, or increasingly a permanent deacon, without a canonical education and who has been assigned as defender of the bond as an unwelcome addition to their normal pastoral work in a parish. One defender of the bond I know actually submits exactly the same one-page brief for every single case to which he is assigned, and they have never yet penned an appeal.

This is made possible because a tribunal can petition the Apostolic Signatura to allow them to appoint “otherwise expert” (read “formally unqualified”) people to these positions when they are unable to come by enough qualified staff.

Now some of these “otherwise expert” staff are truly that, with decades of legal practice and expertise under their belts though simply without the ecclesiastical degree. But many are not; they are volunteers, part-time staff, or simply clerics whose only education in canon law was two classes in the seminary and maybe a weekend course in canon law taken over a summer vacation.

This isn’t to say they do not mean well, work hard, or merit respect and gratitude for their efforts; but it is ridiculous to expect them to fulfill vital roles like defender of the bond. Does anyone think either party in a marriage nullity case would consider allowing someone without a law degree to represent them in their civil divorce proceedings, still less a well-meaning volunteer?

In the new, stripped down, short form process there is one judge (the Diocesan Bishop), an instructor (the Judicial Vicar), two assessors (these are to be canon lawyers or experts in “human sciences”, whatever that means – PhD’s in literature perhaps?), and the defender of the bond, with the promoter of justice again getting involved if necessary. If the only two people in this new shorter process required to have formal canonical training are the instructor and the defender of the bond, with the preference for two more in the assessors, it seems fairly clear that it is even more important that they actually have it, and that much more dangerous if they do not.

The defender of the bond personifies the Church’s teaching on the indissolubility of marriage – he is the safeguard against abuse and his appeal to the second instance court is what guarantees his ability to fulfill this role. With the removal of mandatory appeal, his role becomes even more important and his legal discretion vital to the integrity of the whole process.

Procedural law is merely a means to an end. To what end is determined by those who use it. There are those who fear that the reformed process will lead, in practice, to Catholic no-fault divorce. In some places it might, just as in some places it frankly already is. There is no way to reform procedural law to totally exclude a bad intention by those using it. What we can do is ensure that such abuse is limited by a diversity of truly expert opinion on each case, which stops a minority intention from hijacking justice.

To this end I have a modest proposal which would go a long way to allaying the fears of many: as they incorporate the new process into tribunal practice, let each bishop decree that in his tribunal all officers of the court serving on short form cases must be qualified canon lawyers. The admitted hardship of many dioceses in coming by enough JCL’s to staff every case under the ordinary process is much mitigated by the reduced number of players in the new procedure. If bishops took this single, legally correct, step it would go far in advancing the integrity of the new process.

Alternatively, the Apostolic Signatura could begin issuing indults for “otherwise expert” personnel expressly excluding them from serving on short form cases.

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