Reviewed by: The Power of the Congregation for the Doctrine of the Faith to Derogate from Prescription: An Evaluation of the Legality and Justice of the 2002 Rescript by Brian Thomas Austin Michael J. Mazza The Power of the Congregation for the Doctrine of the Faith to Derogate from Prescription: An Evaluation of the Legality and Justice of the 2002 Rescript, by Brian Thomas Austin. JCD Dissertation. Leuven: Catholic University of Leuven, 2020. Pp. xlix- 285. This timely contribution to the ongoing debate concerning prescription touches both the procedural and substantive aspects of a foundational question—that is, how a derogation from prescription affects fundamental due process. The dissertation's author, a priest of the Priestly Fraternity of St. Peter, is to be commended for adding a valuable work of scholarship [End Page 358] to the discussion at a time when passionate voices often tend to drown out a rational consideration of basic human rights. At the heart of Austin's study is the November 2002 rescript ex audientia by which Pope St. John Paul II authorized the Congregation for the Doctrine of the Faith, then led by Cardinal Joseph Ratzinger, "to derogate from the terms of prescription on a case-by-case basis, at the motivated request of individual bishops." Never officially published, this rescript was one of several papal acts promulgated in two private audiences with Cardinal Ratzinger in February 2003. Austin cites a 2005 article in The Jurist by Robert Kaslyn stating that the rescript in question was eventually included in an unpaginated collection of photocopies of "emendations, dispensations, derogations and faculties" that were made part of a collection entitled Decisiones Summi Pontificis. The author maintains in the Introduction that his is "the first book-length treatment of the 2002 rescript," and that as such he intends "to make a significant and unique contribution to the academic literature on this complex and controversial topic" (15). Austin notes that because much of the previous scholarship on the themes of extinctive prescription and of the principle of legality has not been conducted in English, his thesis is the means by which the fruits of such research are being made available for the first time to English-speaking canonists. He makes good on his claim. Consistently following a clearly articulated methodology throughout his work, Austin presents in a clear and engaging way centuries of scholarly discourse on the important themes of prescription and legality. He begins by describing, explaining, and evaluating the canonical institute of extinctive prescription in criminal cases, a task he says is especially important given that the rescript "sets aside a juridic institute which is poorly understood in theory and rarely invoked in practice" (14). Austin then explains the rescript, and spends two entire chapters—almost half of his thesis—evaluating the legality and the justice of the rescript itself. He concludes with a list of recommendations in which he offers some "legal remedies which might be more effective than the 2002 rescript" (15). Of particular note in this study is the use the author makes of civil law. For instance, Austin compares and contrasts the ways in which various civil juridic systems have employed the principle of legality. He reviews, for example, the ius commune, the Universal Declaration of Human Rights, [End Page 359] the European Convention on Human Rights, the Rome Statute of the International Criminal Court, the Constitution of the United States, and the legislation of the Vatican City State. In taking on such a broad selection of law, he does not pretend to be performing an exhaustive review of the material, or even a historical survey. Rather, his intent is to compare the way in which other juridical orders have grappled with the problems posed by the retroactive application of law in criminal matters, and to the central question of his thesis: How does a system of justice balance the rights of victims and the rights of the accused? Subsequent to the publication of Austin's work, of course, changes were made (on October 11, 2021) to Sacramentorum sanctitatis tutela. In addition, the new Book VI of the code went into effect on December 8 of the same year. The changes contained therein...
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Jul 1, 2022
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