R
E
V
I
E
W
S
ROCZNIKI NAUK PRAWNYCH
Volume XXVIII, number 4 – 2018
E n g l i s h
v e r s i o n
Paolo GHERRI. Introduzione al Diritto amministrativo canonico. Metodo.
Milan: Giuffre Editore, 2018, pp. 304, ISBN 978–8814–225871.
DOI: http://dx.doi.org/10.18290/rnp.2018.28.4-12en
In the post-conciliar discourse on canonist studies, we can observe a return — especially in the
last century— to the issue of the method used in that discipline. Although the number of publications on the subject is not as impressive as in the case of matrimonial or procedural law, there is
no shortage of authors dealing with this remarkable and important issue. For this reason, we
should welcome with due enthusiasm another monograph by Fr Paolo Gherri, a professor of the
Pontifical Lateran University in Rome, who with this work — considerations dedicated to the
canonist method — crowns the previous stage of his research in ecclesiastical administrative
law — Introduzione al Diritto amministrativo canonico. Fondamenti (Milan 2015). A reading of
this work, in conjunction with a critical analysis of the author’s previous explorations in the area,
permits a claim that the organic thought of this alternative approach to the problem presented in
the reviewed book is in fact a continuation and addition to his doctrine expounded in the study
entitled Canonistica. Codificazione e metodo (Rome 2007). In that work, he proposed a criticalinductive approach to the science of canon law. In the opinion of the canonist, such assumptions
regarding the examined problem enable one to emphasise the role of sources of law as well as
implying their new value, which makes it possible to precisely point at those experiences and
facts which actually sanction the existence of a norm. Far from axiomatising the assumptions of
the norm, the author suggested that events, facts and acts of a juridical nature should become
a point of departure for the exploration of the science of canon law. An important quality of the
critical-inductive interpretation of the issue at hand is also the emphasis on the role of the
hermeneutics of the origin and operation of law, a fact neglected by the nineteenth-century
doctrine. The critical-inductive method, manifest in three cumulative elements, namely 1) exegesis, 2) hermeneutics, and 3) interpretation, makes it possible to capture the phenomenon of ecclesiastical law in its specific formulation in a holistic manner.
The author’s proposal based on an alternative treatment of the subject of the method in canonist science is certainly a new and risky venture. However, at this point we should invoke the
work of a medieval creator of a systematic and logical compilation of texts containing the norms
of ecclesiastical law, therefore a method the application of which contributed significantly to the
dissemination of studies on the law of the Church. Recalling the work of Master Gracian, the precursor of studies in ecclesiastical law, and bearing in mind Gherri’s latest scientific position, we
can take full responsibility for our evaluation of the reviewed publication in terms of its original
and innovative treatment of the method used in contemporary legal and canonical discourse.
This research project spans seven chapters. Initially, our interest is aroused by the methodological introduction, whose purpose is to acquaint the reader with the presented issue, in which
the author demonstrates both the usefulness and necessity of a suitable specification of the
192
REVIEWS
method proper to ecclesiastical administrative law. Furthermore, the canonist clarifies that—
given the whole institutional-personal perspective of how the way the community of the People
of God functions — his only interest lies in the constructive method, that is, one which focuses on
the effectiveness of administrative acts performed by church authorities in their exercise of the
tripartite mission of governance, teaching and sanctification. Gherri makes many references to the
“pathology” of acts of the power of governance, which, as he believes, is a manifestation of improper exercise of ecclesiastical offices or competences resulting from a validly conferred delegation. Ultimately, it can be the object of an a posteriori verification by a hierarchically superior
authority (remonstratio, recursus).
When speaking of the method, in the first chapter of the study the author wishes to present
a model of rigorous application of rules, opportunities and means of conduct, which brings progressive and cumulative results. At the same time, he makes a proviso that no method is and can
be mechanical and deterministic because without a human intervention it is impossible to expect
the desired effect of applying even the most sophisticated mode of action. Further, he believes
that the correct method is manifested in the schematisation of the structure of reasoning in such
a way as not to omit the essential elements in the cognitive process, which, from the perspective
of the consolidated practice of power of governance, cannot be omitted. A real and effective discernment is helped by a good understanding of norms of canon law as well as its general principles, which is a prerequisite for proper actualisation/application of a canon law.
In this part of the work, the author also outlines a general formula for the application of the
presented method, expressed in the following triad of operations: 1) qualitative analysis, 2) relational syntactics, and 3) structure of conduct. In the course of his deliberations, the author admits
that the key operation of the method is a proper performance a qualitative analysis of various
events/facts/acts of a juridic nature. No wonder, then, that the author devotes as many as four
chapters to analyse such elements of the legal experience of the Church as: 1) an ecclesiastical
legal event (Chapter Two), 2) an act in law (Chapter Three), 3) the personal and functional status
of the faithful (Chapter Four), and 4) the typology and hierarchy of norms (Chapter Five). Each
such qualitative synthesis assumes an in-depth verification and analysis (screening) of the abovementioned “elements,” without omitting the circumstances relevant for a particular case. The author also helps us realise that the proposed sequence of operations is a consequence without exceptions: first of all, we need to explore the operations to be performed or acts already performed
(species facti); then we need to identify the author/performer of certain operations/acts, and — finally— actual facts should be assigned to the regulations of an act (subsumption).
As for the second component of the constructive method, the author proposes to perform relational syntactic. What we need to do is to examine syntactic functions, in other words, legal relations that occur between subjects and objects of the ecclesiastical legal order (active and
passive relationships, rights and duties, obligations and entitlements, etc.).
The third, and the last, stage of the presented method involves suitable proper development of
the institutional framework of action, which should take into account such elements of decisions
as legitimacy, usefulness, advantageousness, activities, etc.
Gherri frequently emphasizes that the presented method should be a manifestation of the correct application of norms by these holders of ecclesiastical offices, who — in their exercise of
their governing function — want to build a communion of the People of God through their decisions. He realises, however, that there is no shortage of such actions/acts in the Church’s legal
system that have been placed defectively, and therefore do not have the desired results. Their possible material and/or formal transformation (pathology of an act) into an activity triggering positive/stabilizing effects (the constructive method) should be made on the basis of the assumptions
of reconstruction of an incorrect act in the normative legal operations in the Church. Formally, it
REVIEWS
193
should be expressed by the following sequence: 1) relational syntactics, 2) qualitative analysis,
and 3) a structure of conduct.
The structural aspect of the method in ecclesiastical administrative law outlined above should
be complemented by a functional approach whose necessary prerequisites are: 1) in iure analysis,
2) in facto analysis, 3) in decernendo analysis, and 4) in procedendo analysis. While the first two
elements correspond to the necessity of justifying a judicial decision (see c. 1611, 3° CIC/83) and
stress the obligation of legitimacy and rationality of decisions, the second pair of conditions addresses the question of their legitimacy. Coordination and mutual complementation of the abovementioned components of the constructive method makes it possible to achieve a synthetic and
global vision of a specific legal problem requiring a decision to be made, without obligatory and
additional acquisition of specific legal skills which would not result directly from proficiency in
the application of those already present in the ecclesiastical legal system (e.g. procedural law:
syllogism).
It is difficult to show all the positive aspects and practical benefits of the presented work.
This results from the fact that we are dealing with a well thought-out monograph offering a precise method of applying church norms under a non-litigious procedure, which means they are applied administratively. This “part” of the ecclesiastical legal order is an area of cognition and legal
action with a very wide spectrum of impact, therefore the reviewed book may constitute a unique
handbook for those who — relying on theoretical assumptions of canon law— want to implement
them in concreto.
In my opinion, some of the highlights of the work are: 1) flexible approach to the problem, which
results from a skilful combination of the vitality of the canon-law tradition with the positive norm, 2)
accurate theoretical systematisation of the issue. In the discourse, the two above-mentioned advantages complement each other to a certain extent because the author keeps referring to the ecclesiological assumptions of the amended ecclesiastical law, often reminding us of the Principles
of the revision of the code (especially 6 and 7). In addition, the study stresses the role and tasks
of the positive norm and its best interpretation, that is, jurisprudence (especially of apostolic
tribunals) and the prevailing opinion of experts in the field in the process of shaping individual
administrative decisions. Not without significance is also the consolidated practice of the dicastery of the Roman Curia, which often introduces procedural suggestions/recommendations of
a binding nature into legal circulation.
We cannot but mention the greatest asset of the work, which is 3) a concise methodological
profile of the addressed issue. The publication is not only a dogmatic reconstruction of individual
legal and canonical institutions of an administrative character, but also offers concrete guidelines,
both structurally and operationally, in relation to a specific legal mode of action, i.e. the streamlining of the administrative procedure based on the organic vision of theoretical normative assumptions of the ecclesiastical system of administrative law contained in the binding legislation of the
Catholic Church.
It is also worth mentioning that the author illustrates the course of the conducted argumentation with 4) clear tables, which — for many potential beneficiaries of this publication — may be
a very solid help even in visual memorization of the individual steps of the proposed method.
These diagrams are included in the main body of text, but are also reproduced as an appendix in
the final section of the work.
As for the possible shortcomings of the monograph, we might mention the absence of a desirable and synthetic conclusion to such a comprehensive discourse, involving practically the entirety of norms underlying the existing canon law, so strongly embedded in the ecclesiological
doctrine of the Second Vatican Council addressed by the author. Moreover, it should be noted
that the reading of publications written by this Lateran professor of canon administrative law has
never been an easy task because of the rather unique language employed by the eminent canonist.
194
REVIEWS
Wishing to read this monograph, one should first try to explore the specific language “code” of
the argumentation pervading the entire book.
In conclusion to this review, let me emphasize the undoubtedly formidable scientific methodology of the author, a fact which enhances the value of the book, which is not an academic textbook, but a bolder attempt at formalising the complex issue of the method in canon law. The Author’s discourse helps us to fully understand the specificity of the proposed method in canon administrative law, in terms of its origins, profile and, above all, practical application.
Przemysław Michowicz, PhD, Hab, OFMConv
Assistant Professor at Department of Personal Law and Church Constitution
Faculty of Canon Law, Pontifical University of John Paul II in Kraków
e-mail: przemyslaw.michowicz@upjp2.edu.pl
https://orcid.org/0000-0001-5642-8522
Translated by Tomasz Pałkowski
The preparation of the English version of Roczniki Nauk Prawnych (Annals of Iuridical
Sciences) and its publication in electronic databases was financed under contract no. 836/P–
DUN/2018 from the resources of the Minister of Science and Higher Education for the
popularization of science.