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

This dissertation evaluates the legality and justice of the 2002 rescript authorizing the Congregation for the Doctrine of the Faith “to derogate from the terms of prescription on a case-by-case basis.”

Chapter two investigates the juridic foundations of the institute of extinctive prescription and provides an historical overview of its raison d’être. The results suggest that the positive law right not to be accused of a crime after a certain period of time is ultimately derived from the natural law right of defence. This chapter also argues for the existence of an objective doubt of law regarding this institute.

Chapter three investigates the precise juridic nature of the favour contained in the 2002 rescript. Due to its ambiguous nature, this chapter argues that it must be interpreted strictly. It also argues that a broad interpretation of the rescript violates the principle of legality as expressed in the CIC/1983, as well as in a number of other national and international legal systems.

Chapter four argues that the philosophy of St. Thomas Aquinas in general and his exposition of the natural law in particular remain of fundamental importance for the science of canon law. More specifically, Thomas’s treatise on law is used in order to argue that the retroactive application of the 2002 privilege on a case-by-case basis is irrational, unfair, arbitrary, and endangers the right of defence.

Chapter five considers some alternative remedies which might be adopted by the legislator in order to restore the order of justice.