Some of those posting in both the questions and the general discussion sections are obviously frustrated by problems arising from Canon Law! I cannot but share some of that frustration.....but, as a canon lawyer, I also feel a need to offer some explanation (albeit not an apology).
Canon lawyers and ecclesiastical judges (like Priests and Bishops) can only interpret and apply the law as it exists. They cannot change the law. As I have said in a previous posting, in Orthodoxy there are two approaches to the interpretation of Canon Law which might be thought of as the strict (akrivea) and the generous (economia); the former is more legalistic, the latter more pastoral. But even in the more generous interpretation, the law itself cannot be changed.
There are parallels in civil law. In some cases a judge may be able to be more compassionate and take individual circumstances into account, or even to not apply the law if he or she is allowed to take âspecial circumstancesâ into account. But, if the law is strictly written (for example, âIf a person does X the consequence is Yâ) the judge may consider the consequence in the particular case to be unfair, unjust or even wrong, but he or she has no power to not apply the law as it is written.
I teach in a University School of Law, and when I ask my students to define the purpose of the courts they usually say âjusticeâ. I have to disillusion them: the purpose of courts is the interpretation and application of the law, regardless of justice!
I also sit as a member of a federal appellate tribunal which hears appeals in social security law matters. I am often presented with cases that reveal terrible human suffering, hardship and distress â people whose pensions have been cancelled, or who have been denied support when they suffer from severe disabilities, or who are being required to pay back significant debts because they made mistake when filling in a form (I recently heard an appeal from an old age pensioner being pursued for a debt of more than $90,000.00). But I have to apply the law as it is written.
So â let me offer a case (from civil not canon law) and seek your comments on how it should be decided! An elderly and sick man wanted to apply for a social security benefit and the law required that his claim had to be lodged by a specific date. Ten days before that date he set out, with his completed claim form, to go to the local social security office. On the way there he suffered a stroke, was rushed to hospital and remained in a coma and on life-support for two weeks. Thereafter, he was extremely sick and in hospital for a month. When he (more or less) recovered, he asked his wife to take the claim form to the social security office, with medical certificates and letters from the hospital and his doctors explaining his circumstances. His claim was refused - he was more than a month out of time. No-one questioned his story, it was just that the law said his claim must have been lodged on a specific day, and it wasnât.
He appealed, and I heard his case. He and his wife were now in serious financial difficulties because they were not receiving the social security benefit.
Tell me, what would you (sitting in my place) have decided? If you really want to know, Iâll tell you what I decided......and what was the legally correct decision!