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2008 Role of Law Acceptance Speech

Click here to view Rev. Paul Counce's introduction


Thank you president Counce for your kind words of introduction. And thanks to the Board of Governors and members of the Canon law Society of America who have honored me by naming me this year’s recipient of the Role of law Award. It is indeed an honor which I will long cherish.

In “The Clerk’s Tale,” Geoffrey Chaucer portrayed the papal dissolution of the marriage of Walter and Griselda as “a fiction, obtained as an adjunct to a hoax.”[1]  Chaucer could parody the canonical process, confident that most of his readers would not be offended by,  but would share his “unspoken assumption” that the workings of canon law, both inside and outside the marriage tribunal, were “the magical product of an incomprehensible process in which legal reasons play no part and [clerical] discretion is absolute.”[2]  The passage of over 600 years has not dissipated the cloud of suspicion bordering on cynicism that has hung over our canonical enterprise since at least the age of Chaucer. Even as we commemorate the twenty-fifth anniversary of the promulgation of the revised Code of Canon Law, the most critical challenge facing the Church’s legal system and us who are its practitioners is a crisis of legitimacy.
 
In relatively simple and clearly stratified societies, the legitimation of the legal order often requires little more than the identification of the source or warrant for the exercise of authority by those in power. Thus, canon lawyers have often been content to point to the divine law warrant for papal and episcopal governance of the Church and to assume that legitimacy of the canon law that flows from that governance is adequately secured. However, as societies become more complex and functionally differentiated, legitimation increasingly requires not only “blanket certification of the source of power” but also “a sustained justification of its use.”[3] In the climate in which we live and move and have our being, no institution, whether secular or religious, can long retain its legitimacy unless its use of power is characterized by accountability and transparency. And it is the manner in which power has been and still is used in the Church that has been the crux of the crisis of legitimacy for canon law.
 
Unfortunately, concern for transparency and accountability has not been the hallmark of our canonical tradition or of the ecclesiastical administration based on it. Lack of transparency in the annulment process is at least part of the reason why the characterization of the process as “Catholic gobbledegook” resonated with many Catholics, including many grateful recipients of annulments. And lack of transparency in dealing with wayward clerics and managing church finances has been a major factor in the erosion of confidence in ecclesiastical leadership on the part of the faithful. Canon law does provide for lines of accountability upward along the hierarchical chain of command, but it has not provided structures and procedures for insuring the accountability of bishops and pastors to the portions of the people of God entrusted to their shepherd’s care. Nor has it created a climate conducive to the flourishing among church leaders of a strong sense that they have fiduciary duties to the communities entrusted to their care. As a result, church leaders have sometimes seemed more concerned with protecting the image of an impersonal institution than with keeping faith with the concrete, flesh and blood church communities entrusted to them.[4]
 
Thus, a critical challenge facing canon law and canon lawyers today is to develop such structures of accountability and foster a climate in which accountability and transparency can flourish. In doing so, however, we will have to go against the grain of codified law in whose dynamic “the relations between hierarchy and faithful are a one-way street: of the governors over against the governed, of the teachers over against the taught, and of the celebrants [of the liturgy] over against the spectators.”[5] Without mechanisms to insure structured reciprocity, accountability and transparency in decision-making codified law will continue to juxtapose the “active” clergy who administer the means of salvation and the “passive” laity who are so many individuals to be saved. Once this juxtaposition is accepted as “the way things are,” the easier it is to imagine the Church as a spiritual welfare state in which the clergy administer the spiritual goods of the Church to the dependent faithful and the law, supplemented by a generous dose of discretion, provides the criteria for distinguishing the “deserving” faithful from the “undeserving.”[6] The more or less benevolent paternalism that results treats the faithful as children, sometimes rambunctious children to be reined in, sometimes precious children to be indulged, sometimes naughty children to be corrected, but not as adults, full partners in the Church’s mission.
 
Even without the legitimacy that flows from accountability and transparency in the exercise of authority, canon law provides church leaders ample power to maintain order in the Church by cajoling the reluctant and coercing the recalcitrant. However, absent such legitimacy, church leaders will be hard pressed to generate the sustained consent needed to mobilize the faithful for carrying out the Church’s mission in and to the world. As Charles Taylor has there is something curiously contradictory about “a Church tightly held together by hierarchical authority” but nevertheless “filled with practitioners of heartfelt devotion.”[7] Resolving this contradiction will require not more nervous scolding or heavy-handed repression, but a readiness to give a respectful, cogent, and compelling account of this hope of ours.[8]
 

 

-Reverend John P. Beal


[1]John T. Noonan, Power to Dissolve: Lawyers and Marriage in the Courts of the Roman Curia (Cambridge, MA: Belknap Press, 1972) xiii.
[2] Ibid.
[3] Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New Brunswick, NJ: Transaction Publishers, 2005) 56.
[4] Mark A. Sargent, “The Diocese After Chapter 11,” Seton Hall Legislative Journal 29 (2004-2005) 427-434. See also Id., “Lawyers in the Perfect Storm,” Washburn Law Journal 43 (2003-2004) 1-43.
[5] Hervé-Marie Legrand, “Grâce et institution dans l’Église : Les fondements théologique du droit canonique, ? in L’Église : Institution et Foi, ed. Jean Monneron (Brussel : Publications des Facultés Saint-Louis, 1984) 148. See also Charles Wackenheim, ?L’influence des modèles juridique sur le théologie catholique, ? Revue de Droit Canonique 39 (1989) 31-41.
[6] Legrand, 82.
[7] Charles Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007) 466.
[8] 1 Peter 3:15.
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