The Life, Death and Possible Resurrection of the Summary Process1

THE LIFE, DEATH AND POSSIBLE RESURRECTION OF THE SUMMARY PROCESS1 Lawrence G. Wrenn* First, I want to thank Monsignor Ferme and the faculty of the School of Canon Law for inviting me to give this lecture; and I am grateful too that the School is sponsoring this lecture series in memory of our dear friend, Jim Provost, whom we remember as an outstanding scholar, of course, but also as a gentleman, a servant/priest, a mensch, a magister optimus , a man of prayer, a supportive friend, and always a true, real, genuine Christian. My topic deals with procedural law and more specifically with what was, for some six hundred years, known as the summary process. We begin with some historical background that helps to explain the birth and development of the summary process. I. Three Defining Compilations It is, I think, accurate to say that in the long history of canon law there have been three defining moments, three landmark compilations of law that permanently changed the legal landscape, three watershed collections of law that substantially transformed not only the way we conceived of law in the Church but also the way the members of the Church were affected by its law; and those three events are: 1) The Decree of Gratian, 2) the Decretals of Gregory IX, and 3) the first codification of law as promulgated by Pope Benedict XV. 1. The Decree of Gratian. The Decree or Decretum of Gratian dates from 1140 or thereabouts. Its formal title is Concordia Discordantium Canonum which is usually translated A Concordance of Discordant Canons, though it could also, I suppose, be called Settling Antinomies, antinomy being our word for conflicting laws. This, at any rate, is what Gratian did. He gathered together more than three thousand rulings2 from popes, bishops and church The Jurist 67 (2007) 520–534 520 * Judicial Vicar Emeritus, Archdiocese of Hartford, Connecticut. 1 This article was the fourth James H. Provost Memorial Lecture, which was given at Catholic University on Thursday, March 22, 2007. 2 Amleto Cicognani, Canon Law (Westminster: The Newman Bookshop, 1934) 276. councils, pointed out where two or more rulings were in conflict and then, by argumentation from reason, suitability or authority, tried to settle the conflict and advise the reader which ruling was to be preferred. It was an amazing piece of work; and because of it canon law came, within a few years of the publication of the Decretum, to be taught no longer as part of theology but rather as a distinct discipline.3 As James Brundage has pointed out: The dialectical argumentation of the Decretum is what made Gratian’s work far more attractive to teachers of canon law than any available alternative. It is precisely because of the book’s complex and sometimes subtle argumentation that canon law teachers within a decade or two of its appearance overwhelmingly adopted it as the fundamental textbook of their subject. It marked such a crucial break with earlier canon law collections that it has become customary to count its appearance as the beginning of the so-called ‘classical’ period of canon law (1140–1375), the period when canon law attained its definitive shape and most enduring characteristics.4 And the great Stephan Kuttner famously referred to Gratian as “the father of the science of Canon Law” noting that with his outstanding work [i.e. the Decretum], a comprehensive canonical collection and a didactic text book in one, the canonist ’s activity changed its shape from a more or less imperfect collecting of the manifold sources into a scientific reasoning on, and interpretation of the sources. Canon Law became a system of concepts and rules, a juridical, self-supporting science by the writing and teaching of this eminent man; upon the foundations he laid, a school of Canon Law arose for the first time in the history of the Church, and this school not only formed generations of learned scholars, but also created the intellectual conditions for the legislative work of the great jurist-popes.5 This Decree of Gratian is, then, the first of the defining moments in the history of the discipline. the possible resurrection of the summary process 521 3...