Why Canon Law Can Be Befuddling

Speaker Notes Differences With Civil Law at 1-Day Seminar

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WASHINGTON, D.C., JUNE 14, 2010 (Zenit.org).- The Church’s law code is the «oldest, continuously functioning legal system in the world,» but many people might struggle to understand it since it’s so different from the civil law systems that govern nations, a canon lawyer from New York has suggested.

Father Kevin McKenna, pastor of the cathedral community in Rochester, New York, made this observation May 25 at a one-day seminar on canon law sponsored by the U.S. episcopal conference.

The bishops’ conference paired with the Canon Law Society of America to offer the event, which they explained was «held in response to media interest in clergy sexual abuse.»

Videos and texts of the four speakers’ presentations, the questions-and-answers sessions, and a panel discussion are available online. ZENIT will provide commentaries on the talks on successive days this week.

Father McKenna, though not himself a civil lawyer, gave the introductory session on “Canon Law and Civil Law: Working Together for the Common Good.”

He offered a summary of «20 centuries of canon law development in one minute and a half,» explaining how the current Code of Canon Law traces its roots back to the compilation of regulations found in the Acts of the Apostles. Over the centuries, the legislation of popes and councils were added to the code, creating what he called a «very unwieldy and untidy situation» that was first codified in the 20th century.

The canon lawyer noted the influence of Roman Law on the code, and noted how when it was codified under Pope Pius X, it was «modeled after the Napoleonic codes which at the beginning of the 20th century were quite common in Europe.»

Pope John XXIII called for an update to the 1917 code and a new version — the current one — was released in 1983.


The Rochester priest went on to consider some similarities and differences between canon law and civil law, specifically of the United States.

Noting the three-branch system of civil government, he said this is one notable dissimilarity with canon law, which «invests all three functions within an ecclesiastical superior.»

«The checks and balances which are interwoven into the tri-partite system of our government is in the Church structure seen most visibly in its recourse system, in which some decisions that are made at the local level — normally dioceses — can be forwarded to a ‘higher’ level — normally a Roman Dicastery, or office, in Rome, using a very specific and time-related procedure,» he clarified.

Father McKenna spoke of other differences: the civil law system of judges defining law, as their decisions become precedent for other cases, is «not operative in the canon law system,» he said.

Another difference: the role of a constitution (or similar document) as the foundation or source of all law in the civil system. In this element, the priest noted an interesting fact about canon law: that during the last set of revisions, a sort of Church «Constitution» was considered, a draft that Pope John Paul II eventually rejected.

Father McKenna noted that civil law can change more rapidly than canon law. «The code system [of canon law] itself tries to provide basic concepts that can be adapted, hopefully to respond to changing circumstances, situations and individual cases, without the need for a new law,» he added.


A key difference indicated by the priest was in the efforts to find facts and evidence in a case; he pointed out that the Church does not have an independent fact-finding body like the FBI or a police force.

He explained: «Canon law is grounded in the continental European tradition which can be dated to Roman law. […] Roman-law based legal systems such as canon law, traditionally use an ‘inquiry-based’ approach to the investigation and adjudication of cases, while the common law uses more of an adversarial approach.»

This element has sometimes given rise to a «complaint» about the «confidentiality that is imposed on a canonical trial when an allegation of sexual abuse has been made,» Father McKenna noted. «In the canonical system it is the role of the judges — or those delegated by the judges — rather than the representatives — or lawyers — of the parties, to gather oral and written evidence. The process for finding facts and testimony takes place in a series of hearings that are normally conducted over a long stretch of time rather than in a single trial as in a civil case.

«Because in the canonical system of law evidence is normally to be accumulated and assembled over time, judges typically impose ‘confidentiality’ restrictions upon witnesses and their testimony to prevent the possible contamination of other witnesses who may appear later before the court. This is in contrast to the common law system and its trial procedures which would utilize cross-examination before juries.»

The priest went on to note the manners in which the two systems can obtain cooperation from witnesses, contrasting civil law’s possibility to impose physical punishments, and canon law’s recourse to moral influence.

Mixed forum

Father McKenna also took time to explain that canon law covers crimes of a sort called «mixed forum,» which means they are crimes both for the Church and for civil society. Sexual abuse would fall into this category.

«When an ecclesiastical court acts upon its proper jurisdiction to prosecute a crime, it should not interfere with the progress of a civil proceeding that is based on the same set of facts,» he clarified.

He then looked at recent controversy regarding if bishops can be considered Holy See employees, and the extent of Holy See authority over bishops and dioceses.

Noting that this is a complicated issue even theologically speaking, he explained how bishops are not employees in the commonly understood sense, and how an individual bishop exercises authority in his own diocese.

He suggested that a civil court seeking to define this relationship would «unquestionably be forced to go deeply into Catholic doctrine, theology, history and canon law — and perhaps ‘resolve’ theological issues heretofore not completely resolved by the Church itself.»

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More information: www.usccb.org/canonlawseminar/

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