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Ottawa, in Partial Fulfillment of the Requirements for the Degree of Doctor of Canon Law

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Ottawa, in Partial Fulfillment of the Requirements for the Degree of Doctor of Canon Law THE DEVELOPMENT AND FUTURE OF THE ADMINISTRATIVE TRIBUNAL by Rev. Kevin Matthews A dissertation submitted to the Faculty of Canon Law, Saint Paul University, Ottawa, in partial fulfillment of the requirements for the degree of Doctor of Canon Law V[Ottaw a ww*u,«H<^*M«)» f"M Rev. Kevin Matthews, Ottawa, Canada, 1984. UMI Number: DC53815 INFORMATION TO USERS The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleed-through, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. UMI UMI Microform DC53815 Copyright 2011 by ProQuest LLC All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 ACKNOWLEDGEMENTS I wish to acknowledge the support and encouragement of Bishops Bryan Gallagher and Peter De Campo of the Diocese of Port Pirie, South Australia, which made possible my period of studies in Canon Law at St. Paul's University. Special acknowledgement is extended to the Canon Law Society of Australia and New Zealand which first introduced me to the topic of my thesis, and to Monsignor Pio Vito Pinto who first showed me what the Church and canonists were developing in this new field of law. To Fr. Jean Moncion O.M.I, who guided my early steps, and to Fr. Augustine Mendonca whose encouragement and guidance were constant, my sincere thanks. Finally, to my moderator, Fr. Francis Morrisey O.M.I, whose time, energy and attention to detail were of invaluable assistance, my deepest gratitude. TABLE OF CONTENTS ABBREVIATIONS ix INTRODUCTION xi Page CHAPTER ONE: THE DEVELOPMENT OF PROCEDURES FOR THE RESOLUTION OF CONFLICT IN THE EARLY CHURCH 1 A. Foundations provided in N.T. writings 2 1. Matthew - a system for disciplinary action 2 2. Paul - judgement and brotherly correction 6 a. A proposal for local judgement 6 b. The legal influences in the life of St. Paul 7 i. The Jewish influence 8 ii. The Greek influence 8 iii. The Roman influence 10 iv. Paul's personal vision 10 c. Insistence on legal provisions 11 d. Brotherly correction 14 e. A spiritual dimension to situations of conflict 17 3. Apostolic communities and conflict 18 B. Early Christian writings 21 1. Attitudes required in litigation 22 2. The nature of authority in the early Church 23 C. The right to appeal and accountability of ecclesiastical authorities 27 1. Appeals: Roman Law background 28 2. Church-State: mixed competence 31 a. Civil recognition of ecclesiastical judicial power 31 b. Balancing internal and external law 34 c. Justinian - a blend of previous legislation 35 d. Subjection to secular courts 37 D. The Synodal approach to justice 39 1. Development of the synod 40 a. A clearing house for major problems 41 b. The permanent synod 44 2. The activity and spirit of the synod 45 a. Legislation of the synods 47 IV b. Procedures of the provincial synod 51 i. Procedures in the diocesan synod 52 ii. Procedures encouraged by the synod 54 c. Attitudes required by the synod 56 i. Attitudes required in parties to recourse 56 ii. Attitudes of the bishop 57 iii. Attitudes of those being judged 59 iv. Guidelines for administration 61 E. Significance of early Church procedures 61 CHAPTER TWO: PROCEDURES OF COMPROMISE FOR THE RESOLUTION OF CONFLICT 64 A. Transaction 65 1. The nature of transaction 66 a. Juridical significance of transaction 67 b. Transaction with superiors 69 c. Reserved cases of transaction 70 2. Transaction from Gratian to the 1917 Code 70 a. The communion context of transaction 71 b. Decretal law on transaction 72 c. Transaction - a broader definition 73 d. Availability of transaction 74 e. Subject matter excluded from transaction 75 f. Types of transaction 76 g. The effects of transaction 77 h. Remedies against transaction 79 3. Transaction in the 1917 Code 80 a. Preference for peaceful resolution 81 b. A broader base for transaction 82 c. Canonisation of civil law 83 d. Effects of the compromise of transaction 85 B. Settlement of conflict by compromise with arbiters 85 1. Sources of law on arbitration 87 a. The use of arbitration 88 b. Constant practice of the Church 89 2. The nature and development of arbitration 91 a. The necessary arbiter 92 b. Compromissary arbiters 93 c. The arbitrator 94 d. The conciliator 95 3. The components of arbitration 97 a. The person of the arbiter 97 b. The parties to arbitration 99 V c. Matters subject to arbitration 100 d. The effects of entering arbitration 101 e. Effects of the arbitral decision 102 f. The termination of arbitration 102 g. Remedies against an arbitral sentence 103 4. Arbitration in the 1917 Code 105 a. Canonisation of civil law 106 b. The components of arbitration 107 c. Significance of the arbitral decision 109 C. Recent proposals for resolution of conflict ...110 1. "Due Process" in United States particular law 111 a. The conciliation process 111 b. The arbitration process 112 c. The office of arbitration 113 d. Disputes with adminstrative superiors 114 e. Review of decisions 115 2. The conciliation procedure of England and Wales 116 3. The Forum Arbitrii Conciliatonis of West Germany 118 4. The Ombudsman approach of New Zealand 120 D. Concilation and arbitration in the 1983 Code ..123 1. Norms governing conciliation and arbitration 124 2. Matters subject to conciliation and arbitration 125 3. Juridical value of arbitral decision 126 4. Remedies available 126 5. Significance of procedures of compromise 127 CHAPTER THREE: EXTRAJUDICIAL APPEAL AND HIERARCHICAL RECOURSE 130 A. The extrajudicial appeal 130 1. From supplication to extrajudicial appeal 132 a. Supplication and appeal 133 b. Appeal: judicial and extrajudicial 134 c. Right to defense 135 d. Reception of the extrajudicial appeal 137 e. Grounds for an extrajudicial appeal 139 f. The effects of extrajudicial appeal 140 g. The suspensive effect of extra­ judicial appeal 141 2. Changes in the structure of extra­ judicial appeal 144 a. The Council of Trent and extra­ judicial appeal 145 VI b. Introduction of administrative resolution of conflict 148 c. Gradual removal of suspensive effect 149 d. Civil law influences 150 e. Division of powers within the Papal States 152 f. Decline of extrajudicial appeal 155 B. "Sapienti consilio" and hierarchical recourse 156 1. Reformation of the Roman Curia 157 a. "Sapienti consilio" 158 b. Separate organisms for the resolution of conflict 159 c. The "Ius subiectivum - interesse" dispute 161 2. Distinction between judicial and administrative power 164 a. The division of powers or functions 166 b. The nature of the different organisms 169 c. The essential difference between the the processes 170 d. The ultimate distinction 172 C. Relative value of judicial and administrative procedures 174 1. The system of single jurisdiction 175 2. The system of superior-judge 176 3. A movement for change 178 CHAPTER FOUR: THE SECOND SECTION OF THE APOSTOLIC SIGNATURA 182 A. Competence of the Second Section 183 1. Competence from "Regimini" 184 2. Competence from the "Normae speciales" 185 3. Competence from jurisprudence of the Second Section 186 a. Conditions regarding acts received 188 b. The parties 189 c. Suspensive effect 190 d. Judgements indicate limits of competence 190 4. Nature of the Second Section 192 a. System of double jurisdiction 193 b. Judicial and administrative debate 194 c. A new category 196 B. Procedures before the Second Section 198 1. General aspects of the process 198 2. Introduction of the case 199 Vll 3. Admission or rejection of recourse 200 4. Judgement of the recourse 201 5. Execution of judgement 202 C Essence of the process before the Second Section 204 1. The question of harm 204 2. Subjective rights and legitimacy 206 3. Legitimacy or violation of law as the basis 210 a. A choice of objective law 210 b. Meaning of violation of law 212 c. Linking violation of law and rights 216 4. Discretionary power 220 a. Errors - an ordinary part of administration 221 b. Activity outside the scope of control 222 D. A new approach to administrative justice 224 1. Nullity and rescindibility in law 225 2. Nullity and rescindibility in the Second Section 227 a. Basis for rescission or annulment of acts 228 b. A new form of invalidity 229 3. The question of rights 230 E. The value of the judgement of legitimacy 232 1. Relative value of systems 233 a. Benefits beyond the administrative decision 234 b. Communion context of administrative procedures 235 2. Deficiencies of the Second Section 237 a. Lack of development in administrative law 237 b. Areas where clarification is needed 240 3. Anomalies of existing procedures 242 CHAPTER FIVE: THE 1983 LAW AND PRINCIPLES FOR FUTURE DEVELOPMENT..244 A. The 1983 provisions for administrative recourse 244 1. Procedures in administrative recourse 245 a. Activity subject to administrative recourse 246 b. An equitable solution 247 c. Procedures for recourse 249 i. The preliminary recourse 249 ii. Administrative recourse 250 Vlll iii. Suspension of execution 252 iv. Assistance available 252 2. Powers of the hierarchical superior 253 a. Rights and damages 254 b. Judging the "merit" of the case 256 3. Significance of the 1983 provisions 256 a. Limitations of provisions 257 b. Non-acceptance of the administrative tribunal 258 c. Internal difficulties 260 B. Oriental Law proposals for administrative justice 262 1.
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