CONFINING AND STRUCTURING THE EXERCISE OF ADMINISTRATIVE DISCRETION IN THE PARTICULAR CHURCH: A STUDY OF THE ADAPTABILITY OF CERTAIN PRINCIPLES OF AMERICAN ADMINISTRATIVE LAW TO THE EXERCISE OF ADMINISTRATIVE DISCRETION BY DIOCESAN BISHOPS.

摘要

Protection of individuals in the Church from arbitrary and unjust exercises of authority by ecclesiastical officials requires not only adequate avenues for recourse against administrative acts once they have been issued but also procedures to guide the exercise of administrative discretion so that real and perceived unjustices can be avoided. The second requirement has received little systematic attention either in canonical literature or in the revised Code of Canon Law.;Administrative rules formulated through an open process are important means by which federal agencies confine their discretionary authority. The essential elements of the rudimentary procedure are prior notice to interested persons of proposed agency action and of the basis for this action, opportunity for interested persons to comment on the proposed rule, and promulgation of the final rule with a statement of its basis and purposes. Neither canonical nor practical obstacles prevent bishops from confining their discretion through a rulemaking procedure like the one used by federal agencies.;Federal agencies attempt to insure accuracy and fairness in their application of law and rules to individuals through various procedures for informal adjudication. The essential features of these procedures are the provision of prior notice of proposed administrative action to affected individuals, an opportunity for affected individuals to contest the agency action or its basis, and a statement of the reasons for the action ultimately taken. Other procedural safeguards are added as the needs of cases suggest. American administrative law offers diocesan bishops a model for procedures for the issuing of singular administrative acts that would improve the quality of administrative decision making and enhance the real and perceived fairness of the administrative process in particular churches.;The law governing administrative agencies of the federal government of the United States aims to prevent arbitrary exercise of discretionary authority by confining, structuring and checking administrative discretion. Diocesan bishops could promote justice and consistency in their exercise of discretionary authority by confining, structuring and checking their own discretion. This is compatible with and, at times, encouraged by canon law.