The Catholic Lawyer

Volume 7 Number 2 Volume 7, Spring 1961, Number 2 Article 12

Canonical Procedure; Philosophical-Juridic Study of Book IV of the Code of Canon Law

Bernard J. Ristuccia, C.M.

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CANONICAL PROCEDURE; PHILOSOPHICAL-JURIDIC STUDY OF BOOK IV OF THE CODE OF CANON LAW, by Fernando Della Rocca, trans. by John D. Fitzgerald

Bruce, Milwaukee, 1961. Pp. 384. $10.00

Reviewed by

BERNARD J. RISTUCCIA, C.M.*

William Howard Taft, when Chief Jus- layman, Catholic as well as non-Catholic, tice of the Supreme Court of the United has very little knowledge or appreciation States, was presented with a copy of the of the juridic element within the framework procedural laws of the . of the Catholic Church. At best he may After the Chief Justice had studied the have a vague idea that the Church has set book, he made the following remark: "I up tribunals to consider marriage cases. But have read the procedural laws of many that there also exists a complete juridic sys- nations, but I have found none that can tem to try criminal cases, and cases involv- equal the procedural laws of the Catholic ing property and damage rights would, Church." Undoubtedly these same senti- more than likely, come as a complete sur- ments would be shared by many members prise to him. To most people, the Catholic of the legal profession after studying Doc- Church is a society concerned almost exclu- tor Fernando Della Rocca's latest book, sively with spiritual and supernatural mat- Canonical Procedure; Philosophical-Juridic ters. If the average layman were told that Study of Book IV of the Code of Canon the Catholic Church is a perfect society, he Law. Though not every reader of this book would not appreciate the full meaning of might be as highly enthusiastic as Chief this expression. A perfect society is self- Justice Taft in his praise for the procedural sufficing, containing within itself all the re- law of the Church, still, it is quite certain sources needed for attaining its end. The that having read the work one would be purpose of the Catholic Church is to direct surprised at the discovery that such an and guide the lives of her members in the advanced system of procedural law exists realization of their supernatural destiny. To in the Catholic Church, and no doubt be achieve this goal, the Church must possess impressed by its thoroughness. The average the authority to legislate, interpret and exe- cute her laws, as well as to punish those Professor of Moral Theology, Mary Immaculate who transgress them. Consequently, she -Seminary, Northhampton, Pa. must enjoy legislative, executive and juridi- 7 CATHOLIC LAWYER, SPRING 1961

cal power. To exercise her juridical power effect on the process are both discussed. properly, a perfect society must embrace a The section closes with an explanation of system of procedural law whereby juridic the manner in which a trial is brought to guilt and innocence may be established and a conclusion. Consideration is next given to the rights of individuals and institutions de- the sentences of the judges and the-method fined and protected. It is this procedural employed in their formation, pronounce- law of the Catholic Church which is the ment, publication and corrections. For the subject matter of Doctor Della Rocca's most part, the fifth concerns itself with latest book. the rights of the parties to attack the sen- In this volume, the author presents a tence of the judge and to seek an appeal thorough and scholarly presentation of all from the sentence pronounced. The fol- the elements contained in ecclesiastical lowing section takes up two points: the trials. His treatment of this subject follows judicial expenses involved in the conduct- the same general outline as that which is ing of a canonical process and the manner found in the fourth book of the Code of in which the actual execution of the sen- Canon Law, which is entitled De Processi- tence takes place. The final title considers bus. the possibility of extra judicial settlement of cases and provides an adequate treat- The book is divided into seven sections ment of the principal methods of transac- or , the first of which contains general tion, arbitration and compromise. notions affording a background knowledge of such topics as jurisdiction, the basic A study of this volume readily reveals meaning of action or suit, and the place of the great amount of research and prepara- procedural powers in a system of law. The tion that went into its production. The book second section, entitled "The Formation of is much more than a translation or general the Process," considers the various institu- commentary on the various canons of the tions that are employed in the construction fourth book of the Code. It truly is, as the of a procedural system. In this section, the author states, a philosophical-juridic study author considers the various types of actions of the fourth book of the Code of Canon that may be made the object of procedure, Law, and is the first book of this type to the personnel employed in an ecclesiastical appear in English. Translations of this par- trial, the manner of determining due compe- ticular section of the Code, as well as brief tency, the various tribunals in the Church's commentaries on these canons have often legal system, and the parties of the process. appeared in English before, but none of The actual evolution of the trial is taken up these translations, as such, have presented in the third title. Here the author gives a as thorough and scholarly a treatment of most thorough treatment of the various this matter as has this work of Doctor Della types of proofs that are employed in eccle- Rocca. One of the outstanding features of siastical trials, explaining the procedure this work is the excellent source material used in arriving at a joinder of issues. The used by the author in its compilation. Three manner of handling incidental cases which particularly significant sources should be might arise during the course of a trial as singled out for special consideration: well as the notion of contumacy and its (1) The writings of so many of the out- BOOK REVIEWS standing canon lawyers of the Catholic carrying out their functions, make use of Church, including such eminent scholars as: several particular sets of procedural laws in Maroto, Roberti, Ciprotti, Lega, Cappello, addition to the prescriptions contained in Coronata, Ottaviani, Wernz-Vidal, Berutti, the fourth book of the Code. These unique Oesterle, and Regatillo, to mention but a bits of legislation originate within the vari- few. The author used not only the standard ous Sacred Congregations and Tribunals of manuals of these writers, but also their con- the Church as norms to be observed in the tributions to periodicals. It should be noted exercise of their duties. There are, for ex- that the most recent as well as the earlier ample, the Regulae Rotae and the Regulae canon lawyers of note are also frequently Signaturae. These are systems of procedu- referred to in the author's well-documented ral laws used by the Sacred Rota and footnotes. the Signatura Apostolica respectively. The Sacred Congregation of the Sacraments has (2) The decisions of the Sacred Roman also issued several Normae and Regulae Rota. Anyone at all familiar with procedu- types ral law knows the tremendous value that is which are to be employed in various of matrimonial processes. Very often, as attached to previous decisions of the court. the author so clearly indicates, such spe- In the Catholic Church, the Sacred Rota is cific legislation throws greater light on the the court of last instance as well as the court more general and hence less obvious pre- of final decision. It is also the privileged scriptions of the Code, thus clarifying and forum of those persons in the Church who, canons. because of their dignity, are entitled to use explaining the procedural it rather than the local diocesan tribunals. The use of these three types of source Consequently, the decisions of this tribunal material, while adding greatly to the value are of particular importance in interpreting of this book, is by no means the sole reason the various prescriptions of the fourth book for its valuable contribution to the study of of the Code. The author makes repeated the procedural process of the Catholic use of these decisions in his explanations of Church. Mention must also be made of the the various statutes which constitute the personal qualifications of the author him- procedural laws of the Catholic Church. self. Doctor Della Rocca has a doctorate irt The very nature of the book, however, pre- jurisprudence granted him by the Univer- cludes the author from developing to any sity of and a doctorate in Canon- great extent the jurisprudence underlying Law gained at the Lateran Pontifical Uni- many of the notions contained in this law. versity. He is an advocate of the Sacred In particular instances, however, where the and has practiced law i jurisprudence involved in certain canonical Rome. In addition, he is a professor of prescriptions is of special interest, the au- Roman Law at the University of Rome, as thor lists in a footnote several decisions of well as a regular contributor to both civil the Rota which contain in the sentences of and canon law journals in Europe. Accord- the judges the jurisprudence at issue. ingly, the author himself qualifies as an (3) The norms of procedurallaw proper outstanding authority on the subject matter to specific tribunals of the Church. The of this book. In light of this, his profes- various tribunals of the Catholic Church, in sional opinions and explanations of the 7 CATHOLIC LAWYER, SPRING 1961

procedural laws as incorporated in his work civil law, the works of the early pre-Code are of the utmost importance: His personal canonists, civil law authors, and legal dic- experience in the Sacred Rota and his con- tionaries. The specific source whence each sequent familiarity with Rota Decisions of these references was taken is carefully have rendered him capable of making a noted in critically documented footnotes. most pertinent selection of the particular In addition, constant footnote reference is Rota Decisions which best illustrate and made to various prescriptions in the other clarify -the particular issues discussed in sections of the Code that deal with eccle- this book. siastical legislation. Thus, one is able to get a The very format of the book itself is better understanding of the institu- both interesting and valuable. The author tions and terminology of the more general prefaces each chapter with a brief sum- legislative procedure of the Church. Brief ,mary of the issues that are to be subse- commentaries and explanations of relevant quently treated in greater detail. Corre- points are included. Such clarifications, sponding numerals in the summary and the while very helpful in the understanding of text identify the points at issue. As the the text, were still not called for within the treatment of each specific topic is con- text itself. Finally, the well detailed index cluded, the author has appended a short makes the book very helpful for occasional bibliography of texts and periodicals, well citation purposes. annotated, which he designates as Refer- The advance notices of Doctor Della ences. If one were interested in further Rocca's book stated that it was written for study of any particular item of canonical priests engaged in the works of the various -procedure, he could readily pursue this ecclesiastical tribunals, for professors teach- bent by referring to the sections of the ing Canon Law in seminaries, and for books or periodicals listed in the Refer- schools where special courses in Canon ences. It is obvious, that in a treatise of Law are offered. There can be no doubt -this nature, which is essentially only a sum- that this volume will be warmly received mary, handling of the entire field of pro- and appreciated by those for whom it was -cedural law, the author cannot give as com- specifically intended. A few observations, -plete a treatment as is possible to each of however, should be made for the benefit of the myriad details constituting it. Conse- those potential readers not designated in quently, the References, inserted at the end the aforesaid categories. We have espe- ,of almost every numbered section, supply a cially in mind here those members of the .certain completeness which the author him- 'legal profession interested in the procedural self could not possibly offer the reader. law of the Catholic Church and desirous of -studying it so as to contrast procedural It has already been mentioned in this systems in church and civil law. review that frequent references are made to the opinions of canonists, Rota Deci- What must be first pointed out is the sions and particular sets of laws to illumi- extensive use of the Latin language in both nate the author's treatment of the various the writing and the translating of this book. prescriptions of procedural law. He also, Monsignor John D. Fitzgerald, J.C.D. must, 'tliough not as repeatedly, quotes codes of in general, be commended for his excellent BOOK REVIEWS work of translation. A book of this nature, sight as to how these processes are con- permeated throughout with endless techni- ducted will find some difficulty in grasping cal phraseology, presents a real challenge the full meaning of the various points to the translator whose task it is to pre- discussed. serve intact the precision and exactness of Despite these handicaps, a civil lawyer expression that is demanded. Monsignor should still find much in this book to both Fitzgerald has, on the whole, realized this enlighten and assist him towards a better responsibility admirably. In many instances, realization of his own profession. In regard however, both in the text and the foot- to a thorough understanding of judicial notes, he has preserved the Latin which pr6cesses, any obstacle which the frequent undoubtedly must have appeared in the use of latinisms presents may be greatly original Italian writing. Consequently, any reduced if, previous to a study of this reader not fully conversant with the finer work, the civil lawyer familiarizes himself, points of the Latin language, particularly at least remotely, with the actual function- the more subtle nuances of technical idioms ing of a canonical trial, as well as with the employed in the Code and by canon law- personnel and general terminology involved. yers, will have difficulty 'understanding Such an acquaintance could be easily made many parts of this work. Furthermore, the either by discussion with a canon lawyer or average civil lawyer will not have at his the perusal of a more basic text treating of ready disposal the texts and periodicals as canonical procedure. Any treatise contain- well as the volumes of Rota Decisions men- ing a translation and a minimum commen- tioned in both the footnotes and Refer- tary on the canons of the fourth book of ences. It should be mentioned here, too, the Code of Canon Law should supply the that the greater majority of these works are fundamental background needed to fully also written in Latin. Thus, even if avail- appreciate this more advanced and schol- able, their use will be restricted to a select arly treatment of canonical procedures. few. The basic concepts treated in this work Since Doctor Della Rocca's purpose was are, in themselves, familiar to the civil to provide a deeper study of procedural law lawyer: actions, exceptions, jurisdiction, to those persons already familiar with basic competency, parties, sentence, appeal, Canon Law and steeped in a thorough ap- proofs, and many others. When, then, he is preciation of the theory and practice of able to fully appreciate their relationship canonical procedure, he does not attempt to an ecclesiastical trial, he will ac the same to present any fundamental academic out- time penetrate the vast treasury of canoni- line of the actual functioning of a canonical cal information that Doctor Della Rocca trial. Thus, one who is lacking a sharp in- offers us in his outstanding study. 9 TIIE CATHOLIC LAWYER

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