The Society and The 1983 Code (2024)

A significant contribution made by the Canon Law Society was its involvement in the revision of the Code of Canon Law. Pope John XXIII had announced the Council in 1959, and later on he also directed that, as a result of the Second Vatican Council, there would need to be a new Code of Canon Law. This would replace the old Pio-Benedictine Code. Already between 1917 and 1959 there had been changes in the Law. Most of these changes had not been by new legislation but by dispensation.

The Second Vatican Council issued a momentous statement calledChristus Dominuson 28^thOctober 1965, dealing with the pastoral office of Bishops in the Church. Subsequently a document implementingChristus DominuscalledEcclesiae Sanctaewas issued on 6^thAugust 1966. This indicated the scale of the changes to be made in the revision of the Code. The Commission of Cardinals for the Revision of the Code had already been established by Pope John XX111. Shortly before the end of the Council in 1965 Pope Paul V1 had inaugurated the work of the Commission. The first question put to the Commission by the Pope was“Should there be a Code for the West and a Code for the East, and if so, should there be some common form of principles of law for these churches?”This matter concerned the Code Commission for some years. In 1980 it was decided that there would be no commonLex Ecclesiae Fundamentalis;but there would be Codes for the East and for the West. Long prior to this decision, the Canon Law Society had already been involved in comment on theLex Ecclesiae Fundamentalisfrom 1972 onwards. The view of the Working Party of the Society had been against theLex.[A summary of the report by the Society can be found in CLSN 146, June 2006, and the whole report can be found in CLSN 10, September 1971]. The CLSN Report was sent to Rome in September 1972 as the view of the Conference of Bishops of England and Wales.

The Society participated in comment on all the Schemata of the Revised Code as they appeared. Considerable work was put into the comment onDe Poenistogether with work onDe Sacramentis;likewise onDe Processibus. The last two of these generated meetings in 1976 and 1977 in Dublin and in Ottawa, involving English speaking

Canonists from throughout the world. The comments on each of theSchematawere presented by the Society to the Conference of Bishops of England and Wales (by this time Cardinal George Basil Hume was a member of the Commission of Cardinals for the Revision of the Code). The Bishops were warm in their thanks and congratulations to the Society for the reports which were adopted by the Bishops and sent to Rome as their own comment.

The work of the Code Commission was concluded with a draft of the Code which was put to the Pope on the Feast of SS Peter and Paul in 1980. A meeting of the Code Commission took place in October 1981 to consider six special questions posed by the Secretariat of the Commission and 35 other questions raised by the Members themselves.

Cardinal Hume attended the meeting in October 1981. He took as his advisers Monsignor Gerard Sheehy and the undersigned, who was President at the time. The details of the meeting are described by another Member of the Commission, Bishop Joseph O’Connell, Auxiliary Bishop of Melbourne.

The part played by Cardinal Hume can be seen from the specially publishedRelatioof that meeting. From that time onwards the Cardinal always regarded himself as an expert in Canon Law.Cardinal Felici, (Left) the Secretary of the whole meeting, complimented Cardinal Hume on his elegant Latin used in his interventions. Since these had been written by Monsignor Sheehy, everyone was pleased! (seeCongregatio plenaria,20-29 October 1981: Vat. Polyglott Press).The Cardinal’s interventions can be seen in the index of theRelatio).

Pope John Paul II promulgated the revised Code of Canon Law on January 25, 1983. It became Law on the First Sunday of Advent, November 27^thof that same year.

For me that was the completion of a journey that began unknowingly in Octobr 1958 in the very week that I began post-graduate studies in Canon Law. Father Joseph Fuertes, C.M.F. the Professor of the Second Book of“De Personis”of the Pio Benedictine Code at the Urban University in Rome, in a literal flood of Latin, Spanish and Italian, gave us a list of reputable commentaries to study, pronounced us to be reasonably intelligent men and declared his task to be the formation within us of the“mens juridicalis”so that we would be able to cope with the coming of the new Code. At that stage of my canonical history, only the mention of the possibility of the writing of a new Gospel would have shocked me more.

Then I awoke from my siesta on the afternoon of January 25^th1959, to hear on my radio Pope John XXIII announcing to Cardinals gathered in the Benedictine Monastery of St. Paul outside the Walls that he was planning a Synod for the Diocese of Rome, an Ecumenical Council for the Church and the revision of the Code of Canon Law. Initially, the planned Revision of the Code caused little excitement–after all it would be a comparatively simple task, as would the holding of the Council in the view of many.

It was March 28^th, 1963 before Pope John XXIII appointed twenty-nine Cardinals to the Commission for the Revision of the Code of Canon Law. Paul VI appointed twelve more Cardinals to the Commission in November, 1963 which promptly decided to adjourn until after the conclusion of the Council. Among these early Commission members wereCardinals William Conway of Armagh, Norman Gilroy of Sydney and John Carmel Heenan of Westminster.By 1969 there were 125 consultors and there was no doubt that the consultation was wide, genuine and serious.

Pope Paul VI officially inaugurated the work of the Code Commission on November 25^th, 1965. On that same occasion he referred to the question whether it would be useful to establish a common and fundamental Code containing the constitutional law of the Church given that there were two Canon Laws, one for the Latin Church and one for the Oriental Church.

The Code Commission was hard at work during the late 1960s. Ten principles of revision were presented to the Synod of Bishops in October 1967. They were concerned with the juridical nature of the Code; the relationship between the internal and externalfora;the pastoral dimension of the Code; the incorporation of special faculties into the Code; the principle of subsidiarity; the protection of personal rights; the procedures for safeguarding personal rights; the territorial ordering of the Church; the revision of penal law and the systematic order of the Code.

Meantime, in the immediate post-conciliar years, the Law of the Church was changing rapidly and dramatically. The November 1963 Apostolic LetterPastorale Munus,of Paul VI which graned certain faculties and privileges to Bishops, was followed rapidly byApostolico Sollicitudo,in September 1965, establishing the Synod of Bishops;De Episcoporum Muneribus,extending and totally renewing the dispensing powers of Bishops, in June, 1966; andEcclesiae Sanctae,in August 1966, containing the norms for implementing the counciliar decree on bishops and priests, on religious and on the missions.

After the death of Cardinal Ciriaci at the end of 1966, Archbishop Pericles Felici, who had been a very distinguished Rotal Judge prior to his becoming Secretary-General to the Second Vatican Council, was appointed Pro-President of the Commission in February, 1967. He became a Cardinal and President of the Commission in June, 1967 and remained so until his premature and sudden death in March, 1982 when he was aged 70. Cardinal Felici is the great figure of the new Code. He was a truly learned canonist, possessed of an encylopaedic knowledge of the documents of the Council and of the background to them, he consulted widely and sincerely, was determined to balance the need for consultation, especially with Conferences of Bishops, with the actual production of a new Law within a reasonable time. He was a most talented Latinist, was shrewd, had a wicked sense of humour, was tolerant but impatient with those who wished to reverse the work of the Council, refrained from imposing his personal opinion on points in canonical dispute and made short work of those who attempted to delay his massive task. He was an implacable opponent of attempts by Roman Congregations to make Law or Laws.

From 1972 until late 1978, the Drafts (Schemata) of the proposed canons were distributed for comment and consideration by Bishops’Conferences, the International Union of Superiors General, the organs of the Roman Curia and to Pontifical Universities and Faculties. A comparatively small number of responses came back to the Commission. Of course, many Conferences of Bishops simply lacked the organization, resources and personnel for such a mammoth task. In hindsight, the energy, efficiency and learning supplied by the Canon Law Societies of Australia and New Zealand, Canada, Great Britain and Ireland and the United States were of immense service to their Episcopal Conferences, both individually and co-operatively, and to many other Conferences especially in mission lands.

The arrival of the drafts among the Canonists of the various societies saw the outbreak of a sort of juridical fever not only at local levels, but also in terms of international collaboration. Opinions were circulated, learned papers written and gathered and translated and exchanged. Quickly it was realized that an inter-episcopal Conference meeting would be invaluable. From August 15^th-19^th, 1977, representatives, Episcopal and canonical, from Australia, Canada, England and Wales, Ireland, Scotland, South Africa and the U.S.A. gathered at Holy Cross College, Clonliffe, at the invitation of the Irish Episcopal Conference. The particular focus of the meeting was the SchemaDe Processibus. General dissatisfaction with the draft in certain areas was agreed upon and there is no doubt that the fruits of that meeting eventually influenced the final revision of the procedural canons.

Monsignor Ralph Brown of Westminster, Monsignor Gerard Sheehy of Dublin, Father Frank Morrisey, O.M.I. of Ottawa, Father Frank Harman of Melbourne and Father (now Bishop) Geoff Robinson of Sydney emerged at that first Inter-Conference meeting as an outstanding core group of canonical advisers who contributed most positively to the shape of the new Code.

In mid-August, 1978, delegates from France, Germany and Zaire joined the Dublin group for a second inter-episcopal Conference meeting in Ottawa. Paul VI had died a few days before this meeting. Professor Winfried Aymans of Munich and the late Archbishop Kevin McNamara of Dublin, then Bishop of Kerry, gave memorable assistance in helping draw up a critique of the draft“De Populo Dei”which had a most definite influence on the final shape of the Second Book of the present Code.

The“Schemata Codicis Iuris Canonici”was presented to Pope John Paul II on the Feast of the Holy Apostles Peter and Paul, 1980. There were many calls for a second round of consultations along the lines of the first. The Brazilian Bishops even suggested a meeting of the Synod of Bishops be devoted to the Schemata. Cardinals Felici, Palazzini and Schroffer were asked to find a suitable way of providing for further consultation. Their solution was to suggest to the Holy Father that he increased the representative character of the Commission by adding more Cardinals to its membership and“if the Holy Father were to find it opportune,Vescovi, particolarmente versati nel diritto canonica”.I was nominated by the Australian Episcopal Conference and became one of the 26 new members–18 Cardinals and 18 Bishops, added to the Commission early in 1981.

From 1965 until January 1980, theLEF(Fundamental Law of the Church) had been through seven drafts, but in response it would seem, to further interventions, theLEFhas never been published. Specially chosen Canons were included in the 1983 Code.

TheRelatiosynthesizing the observations of the Fathers of the Commission was published on July 16^th, 1981. The Canon Law Society of America and the Canadian Canon Law Society held a joint meeting in Chicago from October 12^th-15^th, 1981. Monsignors Brown and Sheehy, Father Frank Harman and the present writer went to Chicago for last minute conferences prior to the Final Plenary Session of the Commission in Rome from October 20^th-29^th, 1981. I was fortunate in having the generous and truly learned advice of Monsignors Brown, Sheehy and John Alesandro (of the Diocese of Rockville Center, New York) and of Father Frank Morrisey throughout the Plenary Session. Cardinal Felici chaired the meetings most amiably and efficiently and in the most silvestrine Latin.

There were sixex officiospecial questions chosen by the Secretariat. From“our”point of view the two important issues were the exercise of jurisdiction by lay persons and the mandatory appeal. The exercise of jurisdiction by lay persons was retained and so, practically, the use of lay associate judges was confirmed. One thing that emerged in this discussion was that even though doctrinal questions remained unresolved, in practice decisions had to be taken.“Non possumus sine fine manere sine lege”,said Cardinal Felici on this question. The mandatory appeal of every First Instance Decision was retained, though many of the participants felt that this question may have been resolved differently had it been treated later in the meeting when the Fathers had become more accustomed to working with each other.

Thirty-five other questions proposed by the Members were discussed. Eight of these questions concerned the canons on matrimonial consent. They were passed virtually unanimously.

So the Commission concluded its work and forwarded the amended draft to the Pope. 36 Canons from theLex Fundamentaliswere added to the Schemata. The Pope worked through the Schema with seven experts and with three Cardinals and Archbishop fa*giolo. The final version had several notable differences from the Schema.

On May 3^rd, 1982, Cardinal Casaroli, the Secretary of State, wrote to Episcopal Conferences at the direction of Pope John Paul II to say that“His Holiness is ready to take into account any remarks and observations that Bishops may still send him in good time”. Again, the Cardinal wrote on July 26^th, 1982. He noted that the Pope was not suggesting a further consultation but was interested in“proposals intended to make the renewed canonical legislation as adequate as possible for meeting the Church’s present needs which the bishops experience in the daily exercise of their pastoral ministry”.

In December 1982, John Paul II announced that he would promulgate the Code in the following January. This was surprisingly quick and the subsequent discovery of many minor errors suggest that the Commission needed more time for the careful editing which thismagnum opusdeserved. TheCodex Iuris Canoniciwas promulgated on January 25^th, 1983.

- Bishop Joseph O’Connell, Auxiliary Bishop of Melbourne

Bishop Joe was interviewed following hisretirement. An extract ofthis interview is as follows:

"I was on the commission for the revision of Canon Law. I was the youngest bishop at that and I'm one of the few left alive. Of course, one who was involved in it and is still alive is the [current] Pope." [Benedict XVI] January 2007

Originally written on 1^st December, 1994 : Revised 15^thSeptember, 2007. Further revised: 9 July 2016 (Rev James O'Kane)

In the summer of 1977 a meeting was held in Dublin to discuss the draft of that section of the New Code of Canon Law dealing with procedures in Church Tribunals. The meeting comprised representatives from the United States of America, Canada, Great Britain, Ireland, Australia and New Zealand. The Bishops of the countries represented later sent submissions to Rome based on the results of that meeting. The submissions were treated with respect by the Code Commission and may well have had their influence on what finally appeared in the Code.

In the following year comment was sought on the draft of the section of the Code dealing with persons in the Church. Because of the success of the Dublin meeting and because of the importance of the topic, a larger meeting was planned, involving the countries represented in Dublin plus representatives from France, Germany and Africa. This meeting took place in Ottawa in August 1978. Those present represented some eight hundred Bishops.

The draft that had been sent out was entitled“De Personis” and contained only modest changes from the 1917 Code. It still followed the structure of the older Code, starting with the Pope and working down to the laity.

The Ottawa meeting, developing a paper given by Professor Winfried Aymans of Munich and based on the concept of “The People of God”, rearranged the entire structure of the book into a form almost identical to that which eventually became Book Two of the 1983 Code. Perhaps these changes would have taken place anyway, but it is a historical fact that it was this meeting in Ottawa that was the catalyst. As all are aware, it was the conforming of this particular book of the new Code to the teachings of the Second Vatican Council that, more than anything else, gave the New Code its spirit and much of its effecting the life of the Church.

The two meetings in Dublin and Ottawa had taken place because of the existence of Canon Law Societies in several of the countries represented and because these Societies were already in touch with one another and seeking to share their knowledge and experience, especially in the formation of the 1983 Code. Officially the meetings consisted of representatives appointed by the Bishops of the various countries, but in fact and in practice, the representatives were members of the Canon Law Societies of those countries, who already knew one another, had worked together and had suggested the meetings.

The American Society was big enough to work on its own, so it was the Societies of Great Britain and Ireland, Canada and Australia and New Zealand that were the driving force behind the meetings and, in particular, the personal friendship that had already developed between Gerry Sheehy and Ralph Brown (GBI), Frank Morrisey (Canada) and Frank Harman and Geoff Robinson (ANZ).

It was a pleasure and a privilege to be present at both meetings. I have rarely felt so strongly that I was part of a movement that was making a positive and constructive contribution to the welfare of the Church.

I believe that there were important lessons to be learned from these events and that there are still many ways in which the Societies can work with one another for the good of all.

9 October 2007
Bishop Geoffrey Robinson
Auxiliary Bishop Emeritus of Sydney