Reflections on the History of Procedural Law

By Lawrence G. Wrenn

A collection of articles published over a period of 35 years on canonical procedural law.

• Language: English
• Publisher: Lawrence G. Wrenn
• Release date: Jul 29, 2016
• ISBN: 9781370797356

Lawrence G. Wrenn

Fr. Lawrence G. Wrenn is a Catholic priest of the Hartford Archdiocese. He was born in New Haven, CT in 1928 and ordained in 1953. Fr. Wrenn received a Licentiate (1960) and Doctorate (1976) in Canon Law from the Lateran University in Rome. His responsibilities for Hartford included service as the Judicial Vicar both for the Metropolitan Tribunal of the Archdiocese of Hartford and for the Provincial Court of Appeals. In addition to archdiocesan responsibilities, Fr.Wrenn also served as a lecturer for the Tribunal Institute of Catholic University of America, a consultant for the NCCB Committee on Canonical Affairs and a consultor for the Pontifical Commission for the Authentic Interpretation of Legislative Texts. His work in canon law has been recognized with numerous awards from the Canon Law Society of America including the “Role of Law Award” (1976), being named an “Honorary Member” (1994) and having a Festschrift commissioned (1999) and published (2002). He also received the Johannes Quasten Medal (2000) from the School of Religious Studies, Catholic University of America and was the James H. Provost lecturer (2007) for the School of Canon Law, Catholic University of America. Fr.Wrenn’s publications include texts on Marriage Tribunal procedures, decisions and case studies as well as interpretation of canon law. He has contributed articles to numerous publications including the New Catholic Encyclopedia, The Jurist, NCR, The American Ecclesiastical Review, Studia Canonica and The Catholic Lawyer. He also contributed articles in The Code of Canon Law: a Text and Commentary (1985) and The New Commentary on the Code of Canon Law (2000). Now in retirement in Sarasota, FL, Fr. Wrenn enjoys sharing his love of scripture in occasional daily homilies with the parishioners of St. Thomas More Catholic Church and exercising his golfing skills with friends at Stoneybrook.

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REFLECTONS ON THE HISTORY

OF PROCEDURAL LAW

Lawrence G. Wrenn

Text copyright © 2016 Lawrence G. Wrenn

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Table of Contents

PREFACE

1. The American Procedural Norms, 1971

2. Remarks on Receiving the Role of Law Award, 1976

3. Community and Law, 1979

4. Introduction to Procedures, 1985

5. Matrimonial Procedures, 1985

6. In Search of a Balanced Procedural Law in Marriage Nullity Cases, 1986

7. An Historical Overview of Court Procedures in Marriage Cases, 1987

8. The Place of Law in the Church, 2001

9. A New Procedural Law for Marriage Cases ?, 2002

10. The Life Death and Possible Resurrection of the Summary Process, 2007

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PREFACE

The ten articles in this collection are arranged in the chronological order of their publication, beginning with The American Procedural Norms in 1971 and ending with The Life, Death and Possible Resurrection of the Summary Process in 2007.

I should mention that even though article eight (The Place of Law in the Church) does not specifically address procedural law, it is nevertheless included in this collection on procedural law because it lays a foundation for all law, including, of course, the law that regulates the manner in which the tribunals of the Church carry out their mission.

I would also note that articles four and five, which originally appeared in the 1985 CLSA Commentary on the Code of Canon Law are reprinted here with the kind permission of both Paulist Press and the CLSA.

Finally, it should be noted that the ten articles included in this collection say nothing at all about the important developments that have occurred during the last dozen years, so let me very briefly summarize those events right now. Article nine of this collection concluded by noting that, as of July, 2003, Rome was still working on a new procedural law but exactly what it would look like remained unclear. Finally, on January 25, 2005 the Instruction Dignitas Connubii was published with the stipulation that it be observed immediately by those to whom it pertained. Dignitas Connubii was a lengthy document of 308 articles much like the primum schema discussed in article nine. It was soon clear, however, that Dignitas Connubii was altogether too cumbersome to be useful, and on August 15, 2015 Pope Francis promulgated Mitis Iudex Dominus Iesus, thoroughly revising canons 1671-1691 and adding twenty-one articles that would now be the official procedural law for marriage cases. Mitis Iudex is, I suppose, a kind of early 21st century version of the Summary Process, so perhaps it can now be said, in fact joyfully proclaimed that the Summary Process has indeed risen from the dead.

Lawrence G. Wrenn

July 30, 2016

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Article #1

The American Procedural Norms, 1971

The American Ecclesiastical Review, Vol. CLXV, No. 3

A Breakthrough

The American Procedural Norms

Lawrence G. Wrenn

The Metropolitan Tribunal Hartford, Connecticut

Happy Birthday, A.P.N., wherever you are

This is a somewhat belated birthday card to a very dear friend, the American Procedural Norms, the norms that are now in use in the Tribunals of the United States for the hearing of those marriage cases that require formal trial. The norms were one year old on July 1, 1971.

For those of you who do not know my friend, I should tell you something about its period of gestation. The norms were originally conceived by a committee of the Canon Law Society of America chaired by Monsignor Stephen J. Kelleher. In May of 1968, Monsignor Kelleher sent the norms in their original form to all the members of the Society with a request for comment. The norms were then refined in the light of the comments received, and the revised version was unanimously endorsed by the Society on September 9, 1968, at its annual meeting.

The norms then went to the bishops. In the November 1968 meeting of the National Conference of Catholic Bishops it was moved, seconded and passed that the Bishops consult with their canonical staff regarding the proposed procedural norms and that they submit in writing whatever observations they might have (in sufficient time to provide for a vote at the next General Meeting) on the norms presented or as revised in the light of these written observations.

The next General Meeting was in April of 1969, at which time the bishops voted to propose the norms to the Holy See for approval. The Holy Father, through Archbishop Casaroli of the Secretariat of State, then invited a committee from the United States, which included Bishops Primeau and Bernardin, to meet with an ad hoc committee of Roman officials headed by Cardinal Felici in order to discuss the norms. As a result of this meeting, which took place in January of 1970, the norms were further revised and the final product was then approved for use in the United States by Pope Paul. That was in April. The news came to us via a letter from Cardinal Villot, dated April 28, 1970, granting the norms for a three-year trial period beginning July 1, 1970.It was a happy day for Tribunal people. A friend of mine even passed out cigars that day. The cigars did not say anything on them like It's a boy or It's a girl, but they were very good cigars. And we had a very good set of procedural norms for use in our marriage courts.

THE NORMS

In a way it is hard to say exactly what is so very good about them. There are twenty-three norms in all but they pretty much boil down, or so it seems to me, to the following:

1. An extension of competence. A court, for example, may now accept a case because, among other reasons, either one of the parties resides in the diocese. This used to be much more restrictive and highly technical depending on people's sex, religion, etc.

2. The faculty permitting one judge to hear a case. Formerly, every case required three judges, which somehow made a case seem three times more difficult than it really was.

3. A sense of urgency. This is generated by the not too subtle means of mentioning time limits at least a dozen times in a half dozen pages, either specific deadlines like saying this or that action must be taken in thirty days, or more general ones, by using terms like prompt, immediately, as soon as available. And the whole process from start to finish in first instance must not exceed eight months.

4. A sense of confidence. Which is bred partly by no longer permitting missed technicalities to render the whole trial null and void and partly by making the whole procedure seem more reasonable.

In the old days many Tribunal officials were immobilized by the thought that one false step and months of work would be ipso facto eradicated. Now they know that a little slip is no big deal and besides if they do what seems right it will more than likely be right. Even if you did not know the law (which is extraordinarily simple and easy to learn now), little slips cou1d still be avoided just by being reasonable.

5. A positive appreciation of the rights of persons. It is not, I think, that the norms appreciate the marriage bond less but that they appreciate the rights of people more. This is seen in a lot of little ways, in extending competence, in permitting any spouse, without qualification to seek an annulment, in vigorously strengthening the hand of the advocate as protector of the people's rights, in permitting the judge to evaluate the testimony of people without demanding a double oath (or for that matter even a single one) plus a testimonial for each witness. And in a lot of other ways as well.

6. The discretionary appeal of an affirmative sentence. An appeal used to be mandatory. It used to be, in other words, that a person was not permitted to marry until two affirmative decisions were given. Now one suffices as long as the Defender of the Bond judges that the truth has been adequately served in first instance. Most Tribunal people consider the discretionary appeal to be the most helpful single feature of the new norms. One of my friends, in a burst of enthusiasm, even referred to it once as the best thing since the wheel. Which strikes me as something of an exaggeration, though he may be right.

But the most important thing about the norms is that they work. It is still a little early to tell how well they work but a couple of recent surveys provide us with a fairly reliable profile.

RECENT SURVEYS

In each of these surveys about 130 dioceses responded, give or take a few, and the numerals in the table below refer to the number of dioceses. If the reader will spend a minute or two reading the table carefully, the broad picture of rather dramatic improvement will come quickly into focus:

CASES SENTENCED ¹

Probably the two most obviously significant features of the table are first of all that the number of tribunals giving no sentences drops from 60 to 14 and secondly, the number sentencing more than 30 cases rises from 1 to 26.

But by simple addition a couple of other observations can be made: firstly, that the number of tribunals sentencing two cases or less drops from 99 to 29 and secondly that the estimate for next year is that 69 of the 130 or so tribunals reporting will sentence more than five cases, whereas only 17 tribunals managed to do that in 1968. So nothing magical or stupendous has happened. We certainly have no reason for complacency. But we have, it seems, begun to make our move. If we move relatively slowly at first, you must remember that we are awaking after a long, long hibernation.

The same survey, by the way, which provided us with the data used in the above table, offers us further information, some of which should be alluded to here. Two points particularly come to mind.

The first is that of the 1414 reported sentences in first instance during the last year, only 100, exactly 100, or roughly 7% of them were appealed under the new discretional appeal rule. ² Besides being a great boon to the parties, this was also welcomed by Archdioceses and other appeal courts who could now devote their energies more exclusively to their own first instance cases, and it was appreciated as well in all first instance courts, many of whom saved valuable time by omitting the typing of certain acts. Furthermore, according to at least one respondent to the survey, the new appeal rule actually improved the quality of work in first instance. He wrote, In my estimation, this more than anything else, has contributed to making the Courts take their work seriously because the final responsibility is now theirs and it has encouraged them to enhance the quality of their work for the same reason.

The other information from the survey which seems to me to merit mention here is that about 30% of the responding Tribunals saw themselves as greatly improved during the last year and almost all of them as improved to some degree. So there has been considerable advancement in self-esteem and self-image and with it new zeal and confidence and desire to help people. One respondent referred to the norms as the best morale builder in my twenty years in the Tribunal, and most Tribunal people would agree that morale building, the imparting of impetus and momentum to tribunals across the country, has been the most profound, if inestimable, benefit of the A.P.N. ³

The key to all of this, it seems to me, is that we came to sense that these norms somehow caught the spirit of what church law really ought to be. Not that they are perfect by any means. But they have a style and a spirit about them that is congenial to a church. They are the kind of thing that can make a contribution to church life and order.

PROCEDURAL LEGISLATION IN THE CODE

This unfortunately seems not to have been true of the procedural legislation in the Code of Canon Law. The section of the Code dealing with procedural law contains 642 canons and from the point of view of completeness and technical sophistication is worthy of profound admiration. It is surely a superb instrument within its own framework.

But the framework is the problem. It is the framework not of a court but of a puppet show in which the judge is the principal marionette. His every move, to right or left, is directed from on high. And if he thinks at all it is to the effect that before he makes a move, any move, he had better check and re-read the directions once again. The law permits little initiative, even less discretion, and no spontaneity. The entire atmosphere is one of insecurity and lack of confidence, imposed by a system which distrusts not only the people but the judges themselves.

The effect - paralysis - should have been predictable. We have already seen what happened in the United States: that fifty years after the Code, two-thirds of our tribunals were giving two decisions or less a year. The U. S. Tribunals for fifty years remained practically catatonic. The maze of legislation and the tone of it left them bewildered, confused, incredulous and staring out into space. And this obviously is only the most measurable, the most tangible effect. It only hints at the millions of people who were deprived of the sacraments and yet had recourse only to a paper tribunal. This is where the real damage was done. The judges may have felt manipulated, but the people were starved for and deprived of the Bread of Life.

A NEW SPIRIT

The new procedural norms, however, have ushered in a whole new spirit. It is true, of course, that Cardinal Villot's letter introducing the norms stated explicitly that, except in those instances where the norms specifically derogated from the universal law, all 642 canons remained in force. And it is not that Cardinal Villot's admonition has been disregarded. But at the same time we came to realize that the 23 norms were really sufficient as far as law goes, that not everything has to be legislated, that indeed in a community such as ours only the minimum should be legislated. It is not law alone that rules. But we should be ruled as well by suitable amounts of tradition, custom, common sense, professional advice, jurisprudence, etc. Twenty or thirty norms are ample procedural law for a church. If you seek further information by way of background, foreground or sideground, there are many other