Mitis Iudex: While Canonists Hesitate, Rome Speaks

On Monday of this week, the Canon Law Society of America began its annual conference. While seminars have dealt with a range of issues, Mitis Iudex and its proper implementation have, unsurprisingly, been the major focus.

On Tuesday, Francis Morissey, a well known but controversial canonist, addressed the general assembly. Morissey was not a member of the group commissioned by Pope Francis to review the process of handling marriage nullity cases, and which drafted the reforms which became Mitis Iudex. It appears he was asked to feed into the process in an informal way, and because of that he was invited to address the conference on how to put Mitis Iudex into practice.

Among the opinions he expressed, and which the attendees were encouraged to consider as authoritative, he suggested that the new short form process for examining a case of nullity could be used even if only of one of the parties was participating in the process, arguing that the silence of the absent party presumes assent.

This caused considerable concern in the hall, as many canonists saw it as a direct challenge to the essential canonical principle that consent is (and requires) a positive act of the will.

Using the short form process as the normal means of handling cases (as opposed to an exceptional process for exceptional cases) was also given as an authentic interpretation of the intentions of Mitis Iudex. This too was considered controversial, to say the least, by many in the hall. Nevertheless, these interpretations were reinforced during a panel Q&A later on the same day.

Yet on Wednesday morning attendees were discussing a dramatic clarification of just these points by the Pontifical Council for Legislative Texts, which had surfaced overnight.

Cardinal Coccopalmerio

In a letter responding to questions about the correct implementation of the reforms of Mitis Iudex, Cardinal Coccopalmerio, who was a full and formal member of the committee which drafted Mitis Iudex and is the head of the Vatican department charged with issuing authoritative legal interpretations, said the “explicit consent” of the respondent was a “condition sine qua non” for the short form process to be used. He also reaffirmed that the full process is properly termed the “ordinary process”.

It’s unknown if the timing of this clarification being circulated was related to the previous day’s discussion, but a member read the text of the letter out from the floor and pointedly noted that, had it not come to light when it did, hundreds of delegates would have returned to their tribunals with a totally flawed understanding of how to use the short form process.

The matter was raised during a debate on a resolution to agree upon some basic procedural guidelines for tribunals to use in implementing Mitis Iudex, including the correct understanding of the respondent’s active consent. The resolution, sadly, failed as many members believed it was premature and that the potential for confusion or abuse was “greatly exaggerated”, despite the immediate example to hand.

As the conference draws to a close tomorrow morning, many members will leave shaking their heads at a missed opportunity to prevent needless confusion as Mitis Iudex is brought into the everyday life of tribunals. Those who voted against the resolution generally wanted to take a “wait and see” approach. Those who voted in its favour worry that this curiosity could come at a painful price for tribunal petitioners.

If canonical associations can’t or won’t reach a practical consensus before the new system comes online on December 8th, then our best hope for a smooth transition is that Cardinal Coccopalmerio writes many, many more letters.

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