The Law that Never Was: The Motu Proprio Administrativae Potestatis on Administrative Procedures

Abstract

THE LAW THAT NEVER WAS: THE MOTU PROPRIO ADMINISTRATIVAE POTESTATIS ON ADMINISTRATIVE PROCEDURES Kurt Martens* Introduction The Second Vatican Council was important not only for the life of the Church, it was also important for the renewal of the legal system of the Church. When Blessed Pope John XXIII announced on January 25, 1958 that he would convoke an ecumenical council, he also announced two other events: (1) a synod for the diocese of Rome, and (2) the revision of the1917CodeofCanonLaw.1 Forabout25years,thisrevisionoftheCode of Canon Law would, in one way or another dominate the discussions amongcanonlawyersandeventheologians.Thepromulgationofthe1983 Code of Canon Law would mark the end of this revision process and the beginning of a new era: the application of the revised law of the Church. Before the actual revision process started, ten guiding principles for the revision of the Code of Canon Law were drafted and approved.2 Although these guiding principles were not without importance, their primary goal was to ensure that the new Code of Canon Law would be more than a technical revision of the 1917 Code of Canon Law: the new code would also and foremost reflect the new ideas and insights of the Second Vatican Council. Two of these guiding principles deal with the protection of the rights of the faithful and are thus important for the purposes of this contribution. One of the projected innovations of the new code was an elaborate administrative procedure, including the establishment of administrative triThe Jurist 68 (2008) 178–222 178 * School of Canon Law, Catholic University of America 1 John XXIII, Sollemnis Allocutio ad Em̃os Patres Cardinales in Urbe praesentes habita, die XXV ianuarii anno MCMLIX, in coenobio Monachorum Benedictinorum ad s. Pauli extra Moenia, post Missarum sollemnia, quibus Beatissimus Pater in Patriarchali Basilica Ostiensi interfuerat, AAS 51 (1959) 65–69, esp. 68: “Pronunciamo innanzi a voi, certo tremando un poco di commozione, ma insieme con umile risolutezza di proposito, il nome e la proposta della duplice celebrazione: di un Sinodo Diocesano per l’Urbe, e di un Concilio Ecumenico per la Chiesa Universale. . . . Esse condurranno felicemente all’auspicato e atteso aggiornamento del Codice di Diritto Canonico, . . .”. 2 Pontificia Commissio Codici Iuris Canonici Recognoscendo, Principia quae Codicis Iuris Canonici recognitionem dirigant a Pontificia Commissione proposita et primi generalis coetus «Synodi Episcoporum» examini subiecta (Rome: Typis Polyglottis Vaticanis , 1967). bunals. The initial expectations were rather high; however, the final outcome of the revision process in the area of administrative procedures and tribunals was for many canonists rather disappointing. The projected administrative tribunals were not even included in the Code of Canon Law: only two references—canon 149 § 2 and canon 1400 § 2—are the sole remaining witnesses of a proposed sophisticated system of protection of rights, combining hierarchical recourse and appeal to an administrative tribunal. We will not discuss in detail why the elaborate administrative procedure was notably downsized. In this contribution, we will focus on one element that is not well known: the proposed motu proprio Administrativae potestatis. Pope Paul VI had the intention to promulgate ad experimentum the new law on administrative procedures, even before the new code would be ready to be promulgated. The plan was almost realized . The motu proprio was ready in 1973, but for two details: the signature of the Holy Father, and the date of promulgation. We will first look at the 1967 synod of bishops and the approval of the tenprinciplesfortherevisionoftheCodeofCanonLaw.Thenwewillturn to the preparation for the first public draft of the administrative procedure, the 1972 schema, before we concentrate on the motu proprio and subsequent further developments. This contribution as such is historical in nature , since it gives a comprehensive overview of the genesis of the administrative procedure, and is therefore a fitting tribute to John E. Lynch, C.S.P., whose scholarly work mainly focused on history and canon law. i. the 1967 synod of bishops and the principles for the revision of the 1917 code of canon law As we mentioned already in the introduction to this article, before the process of revision of the 1917 code started, ten guiding principles were presented to the 1967 synod of bishops.3 Those principles would serve as the...