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Msgr. Kenneth E. Boccafola, 2013 Role of Law Recipient
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Role of Law Response

Msgr. Kenneth E. Boccafola

I thank President Vaughan for his kind words of introduction and I want to express my deep gratitude to him, to the Board of Governors, and to the entire CSLA membership, for the honor they have accorded me by presenting me with the Canon Law Society's prestigious Role of Law Award. I have always valued my membership in this Society and so it is truly a pleasure, though an unexpected and undeserved one, for me to be considered worthy to join the list of distinguished American canonists who have received this recognition in prior years.

It is natural that, at the time the Society is celebrating its' 75th year, and honoring the past, our thoughts should turn to our history and those who have preceded us. My memory calls to mind the names of the many canonists of my generation that I encountered at the Society's conventions, some now no longer with us, like Larry Wrenn, Fred McManus, Jim Provost, Ed Pfnausch, Bill Varvaro, and others who are thankfully still making their important contribution as canonists like Tom Green, Jack Alesandro, Jim Coriden, and Frank Morrissey. Once I received the call to Rome to become a Judge of the Roman Rota, I was unfortunately no longer able to attend the annual conventions because of distance and the time frame in which the conventions are generally scheduled, and so I was not able to come to know too many of our more recent members, unless they had studied in Rome or took part in the Society's Rome visits.

It is precisely to those visits and the ongoing dialogue that the CLSA has maintained with the various dicasteries of the Roman Curia that my thoughts turn to today. Archbishop John Myers in his keynote address has spoken to us about the Role of Canon Law in the Church of the United States over these past decades, Similarly, I would like to reflect for a few moments on the Role of the Canon Law Society of America in the dialogue between the American Church and the Roman Curia and particularly, the Roman Rota.

I believe most of us are aware that our Society played a significant part in the consultations that led to the Revised Code of Canon Law of 1983. The Second Vatican Council ended in 1965 and all were awaiting the new Code of Canon Law that would put its teachings into practice. Rather than sit back and simply wait to see what the Commission for the Revision of the Code would present, the American Bishops' Conference sought and received the cooperation and expertise of the CLSA to advance possible solutions to perceived problems, such as developing new norms to speed-up the handling of marriage cases. These became the famous American Norms, which were granted to the American Bishops by Pope Paul VI in 1970. While not perfect, they did enable a process of experimentation which led to the issuance, first of new universal norms [Motu Proprio Causas Matrimoniales], and then to the procedures implemented in the new Code, and which later were further clarified by the Instruction Dignitas Conubii.

This farsighted and proactive stance of our Society was also demonstrated by the publishing of the first English Text and Commentary on the Code of Canon Law in 1985 soon after the new Code was officially promulgated. For, during the long process of revision, the Society had commissioned commentaries on the working schemata issued by the Code Commission from 23 of the most respected canonical scholars in the United States. Thus once the text became official, the Editors, Coriden, Green and Heintschel, were able to rapidly organize and harmonize the scholarly work already completed and so produce a Commentary on the Code that in their own words was destined "... to become the standard work for students, pastors and Church administrators for many years to come".

Then too the visits by the officers of the Society to Rome over the years have contributed much to foster greater knowledge and appreciation of the concerns that motivated canonists on each side of the ocean. The Roman officials, through personal contact, thus were better able to understand the situation in the United States, for example, its laws concerning lawsuits and civil liability. The CSLA by preparing precise questions to be raised during these meetings were able, from the answers or non-answers received, to get a sense of the current thinking on certain issues. Hence suggestions could be made, and were made, and even occasionally were accepted.

An example that comes to mind is an important innovation suggested by the officers of the CSLA on one of their visits to Rome soon after I began my work at the Rota and which led to the signing of an agreement between the Dean of the Rota and the American Bishops' Conference. It concerned the appointment of a Rotal Advocate to American cases. Instead of the usual practice of waiting for the parties to search out and engage their own Rotal lawyer it was agreed that the Diocese would send over a set fee with the case and then the Dean would immediately appoint a Rotal Advocate, thereby enabling the case to begin without further delay. Due to its success, this agreement became the model for similar one's made with the French and Irish Bishops' Conference.

Another area in which the CLSA has been in the forefront has been in the effort to make Rotal jurisprudence more readily available to those who are called upon to use it in their everyday work, namely the Judges, Defenders of the Bond and the Advocates of our Tribunals. The purpose of a Tribunal is to say what the law is (ius dicere) in the particular case. Blessed Pope John Paul II in his address to the Rota on January 26, 1984 put it in these terms: "In the strict sense, the true authentic interpretation which declares the general meaning of the law for the entire community is reserved to the legislator according to the well known principle: 'The source of law is the source also of interpretation". Nevertheless, the judge plays a very important role in deciding the meaning of the law. Above all the judgement expresses an authentic interpretation of law for the parties [W. Woestman. Papal Allocutions to the Roman Rota 1939-2002, Ottawa 2002]". Thus the activity of tribunals, and particularly that of the Roman Rota, creates jurisprudence, that is, the interpretative authority inherent in the fact that many cases have been similarly decided ["auctoritas rerum perpetuo similiter judicatarum"].

True canonical jurisprudence is especially that "of the Roman Rota" because the decisions of other Tribunals are not universal or definitive, since they are themselves subject to revision, and furthermore only the Roman Curia acts in the name of the Supreme Legislator. The Apostolic Constitution Pastor Bonus confirms this role for the Rota when it declares that the Rota is to "foster unity of jurisprudence and by virtue of its own decisions, provide assistance to lower tribunals". For as John Paul II remarked: "To the vigilance of the Signatura and the jurisprudence of the Rota must correspond equally wise and responsible work in the lower courts [Woestman, Papal Allocutions to the Roman Rota, 1994]".

It is precisely to foster this wise and responsible work in the diocesan Tribunals that the CLSA has taken a leading role in the effort to make Rotal Jurisprudence more known and readily available, particularly for those in the English speaking world.

The officers of the Society on their visits to the Rota often encouraged a more rapid editing and publishing of the sentences in the official Vatican collection. I think there was even a suggestion that perhaps sentences might be able to be published on the internet, but this proposal then ran into problems of confidentiality.

It is true that every canonist should have some knowledge of Latin but it is a far cry from knowing the basics to being able to rapidly read and understand the nuances of the law section of a Rotal sentence. I must admit that even I occasionally have difficulty decipering what I originally meant in some passage of the original Latin sentence that I wrote. Thus the Society's recent publication: Rotal Jurisprudence: Selected Translations, edited by Sr. Victoria Vondenberger, with the help and cooperation of a team of translators, constitutes a significant resource to the members of the Society and all those interested in English translations of Rotal Jurisprudence. This project originated in a committee of the CLSA and was approved and encouraged by the former Dean of the Roman Rota, Bishop Anthony Stankiewicz and so it constitutes a further example of the CLSA's fifty year ongoing dialogue with the Roman Curia to foster greater understanding and correct implementation of the Church's Canon Law.

Finally, in closing, as we all are grateful for the Society's contributions over the past 50 years to this dialogue with the Roman Curia, may I dare to suggest that, as a Society, we rekindle our historic proactive involvement in seeking necessary revision and amelioration of certain portions of the current law, especially for example, the penal law. For a good amount of time many canonists have been of the opinion that the penal law contained in the 1983 Code has not really been adequate for the task it is called upon to fulfill. In examining that penal law it strikes one as incongruous that the law itself in many places seems to discourage its own use. So much discretion is left to the Ordinary and to the Judge in the application of the law and in the determination of the punishment that in the end the canons seem not to propose a law but simply to offer a series of suggestions and exhortations. So it seems that a revision of the penal law is something necessary and useful.

In this context, perhaps the CLSA could offer some concrete proposals as it did during the process of revision which led to the Code of 1983. For it seems that from an excessively lenient universal penal law - that was often not even used, or if it was, did not give the perception of justice done nor scandal repaired - we've seen the immediate passage to more rigorous particular laws which, on the other hand, often do not seem to respect or safeguard the presumed innocence of the accused. Yet in the present climate the Bishops have to be able to take immediate effective action or else they are faced with being accused of a cover up. Perhaps, then, the experience of members of the CLSA in conducting local trials or being advocates for the accused under the procedures used by the Congregation for the Doctrine of the Faith could lead them to propose revisions to the 1983 Code's general penal law that would assist the Bishops placed in a very delicate position, and at the same time facilitate the accused's right of defense.

In any case, I am sure that the CLSA of the present and future will carry on the tradition of its past 75 years and will continue to be a privileged participant in the discourse between the American Bishops and the Roman Curia on how best to implement the Church's supreme law, the salvation of souls.

Once again, I thank you most sincerely for the honor accorded me.

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