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A note on eliminating mandatory review (c. 1682)

October 10, 2014

I understand the concern of some that the elimination of mandatory second instance review of all affirmative marriage nullity sentences (c. 1682) would remove a check against bad sentences in first instance. Believe me, I understand: I worked in both first and second instance for many, many years; I know how the system can (and usually does) work; I also know how the system can (and sometimes does) fail. So, if the Church decides to keep mandatory second instance, fine by me; if she decides to eliminate it, fine by me; if she shocks everyone and decides to add mandatory third instance review (you know, as a check against bad decisions being made in second instance), well, okay, fine.

My only point is this: mandatory review of trial court decisions is not a constituent element of justice under natural law; it is instead an optional institution of merely ecclesiastical law. Canon 1682 is, in fact, one of the very few aspects of tribunal work that is not based squarely on natural law, but it requires considerable time and scarce resources to implement, this, even though it usually ends up approving what is already right while sometimes failing to stop what is wrong. Bottom line: if Church leadership is looking to streamline the tribunal process, Canon 1682 can be abrogated with no damage to the Church’s obligation to mirror the tenets of natural justice in her own legal system and with obvious advantage to the goal of streamlining tribunal procedure.

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