Rechtsbescherming in de Kerk. Ontwikkeling en aanwending van rechtsmiddelen tegen overheidsbeslissingen in de roomskatholieke Kerk by Kurt Martens (review)

RECHTSBESCHERMING IN DE KERK. Ontwikkeling en aanwending van rechtsmiddelen tegen overheidsbeslissingen in de roomskatholieke Kerk by Kurt Martens. Brussel: Larcier, 2007. The protection of subjective rights of the faithful was one of the objectives of the Code of Canon Law, formulated in the principles of revision (1967). The revised code adopted some of the proposals made in this regard, but the reference to administrative tribunals partly disappeared from the draft-texts after the 1981 plenary session of the Pontifical Commission for the Revision of the Code of Canon Law and almost completely in the last stage just before the promulgation of the code on January 25, 1983. However, the establishment of such tribunals does not seem fully excluded, provided that approval from the Apostolic See is obtained . The work of Professor Martens, a canonist with a civil law background , is an extensive study of administrative procedure in the Church, its development in history, the drafting of the relevant canons, different procedures according to universal and particular law, a comparison with several civil systems of right-protection, and a view on further developments of the administrative procedures in the Church. This book consists of three chapters. The first chapter deals with possible models of the protection of rights.An overview is presented of civil law rights protection-systems in Belgium, Germany, France, the United Kingdom, and the United States ofAmerica (nn. 23–76).An overview of the history of the Church with regard to rights-protection procedures follows (nn. 95–145).A second chapter offers a survey of the process of the revision of the 1917 Code of Canon Law. This chapter contains quite an amount of unpublished material and is most helpful for those who want to study the genesis of the canons. The third chapter represents the actual church legislation on administrative procedures (reconciliation and dispute resolution, recourse against administrative decrees, procedure in the removal or transfer of pastors). Here attention is paid to particular legislation in The Netherlands, Belgium (Flanders), and—more succinctly— in Germany and France. Furthermore, the author offers the mainlines of due process in the United States and the conciliation procedure in England and Wales. Finally the author discusses several pronouncements of civil judges in church matters and finds a certain tendency to check the degree and “quality” of rights-protection offered by Church regulations. The Belgian author, now associate professor at The School of Canon Law of the Catholic University of America (CUA) in Washington D.C., places at the disposal of a larger circle of canonists a re-elaborated edi502 the jurist tion of his doctoral thesis at the Catholic University of Louvain. Msgr. Brian E. Ferme, former Dean of the CUA School of Canon Law, wrote a foreword in which this work, not without reason, is welcomed as “an extremely important piece of original and exhaustive scholarship” (p. I). The author deplores the fact that administrative tribunals are not introduced in the Code of Canon Law: “disillusion” and “disappointment” are words he uses (nn. 463, 473, 727). In considering possible reasons why such a rights-protection system has not been adopted in the code, the author is somewhat speculative: the Polish background of Pope John Paul II (nn. 452 and 461) and an unwillingness to prepare qualified (lay) people (n. 411) are suggested as possible factors. With regard to the important theological theme of the relationship between the power of orders (potestas ordinis) and the power of jurisdiction or power of governance (potestas iurisdictionis, potestas regiminis), the author expresses the view that such an emphasis on the link between power of order and jurisdiction (“potestas sacra”) was introduced only after the Second Vatican Council and provided “a concentration of power” (n. 448; cf. n. 416 vv. 86–89). According to the author, ordination becomes “a means to keep control of the [hierarchical] system” (n. 432; cf. nn. 440–445 and 728), especially when the “sacra potestas” view of the then Cardinal J. Ratzinger and canonists of the Munich-school is applied. Here, more theological sensitiveness would have done no harm. As a possible “escape” from the present-day canonical situation, an idea of Torfs (published in CLSA Proceedings 1999, pp. 367–374...