Philosophy, theology, and fundamental theory of Catholic canon law

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The philosophy, theology, and fundamental theory of Catholic canon law are the fields of philosophical, theological (ecclesiological), and legal scholarship which concern the place of canon law in the nature of the Catholic Church, both as a natural and as a supernatural entity. Philosophy and theology shape the concepts and self-understanding of canon law as the law of both a human organization and as a supernatural entity, since the Catholic Church believes that Jesus Christ instituted the church by direct divine command, while the fundamental theory of canon law is a meta-discipline of the "triple relationship between theology, philosophy, and canon law". [1]

Philosophy of canon law

A triple species of human [positive] law is distinguished: ecclesiastical or canon law, civil law, and the law of nations. Canon law (jus canonicum) and civil law differ among themselves partly by nature of origin, partly by nature of object, and partly by nature of end:

Aristotelian-Thomistic jurisprudence

Summa theologica, Pars secunda, prima pars. (copy by Peter Schoffer, 1471) SummaTheologiae.jpg
Summa theologica, Pars secunda, prima pars. (copy by Peter Schöffer, 1471)

Although canonical jurisprudential theory generally follows the principles of Aristotelian-Thomistic legal philosophy, [3] Thomas Aquinas never explicitly discusses the place of canon law in his Treatise on Law [4] (a small section of his Summa Theologiæ ). However, Aquinas himself was influenced by canon law; the fourth clause of his famous 4-part definition of law—the requirement of promulgation—is taken from the canonists, and the sed contra of his article on promulgation cites Gratian (the "Father of Canon Law") as an authority. [5] According to René A. Wormser,

Gratian's service in assembling and co-ordinating [sic.] the mass of canon law was of inestimable value; but the man to whom the Church and canon law are most indebted is St. Thomas Aquinas...And it is largely upon the thesis of St. Thomas Aquinas that the Church jurists went so far as to pronounce that laws were of absolutely no force whatever if they were not for the common good. [6]

While the term "law" (lex) is never explicitly defined in the 1983 Code, [7] the Catechism of the Catholic Church cites Aquinas in defining law as " ordinance of reason for the common good, promulgated by the one who is in charge of the community" [8] and reformulates it as "...a rule of conduct enacted by competent authority for the sake of the common good." [9] Some authors, however, dispute the applicability of the Thomistic definition of law (lex) to canon law, arguing that its application would impoverish ecclesiology and corrupt the very supernatural end of canon law. [10]

Jus Publicum Ecclesiasticum

With the birth of the omni-competent sovereign nation-state in the seventeenth century, [11] which claimed exclusive jurisdiction over all its citizens, the dual or concurrent jurisdiction of the Catholic Church and the sovereign state was intellectually and legally challenged. In the new legal and politico-religious climate in the period following the Protestant Reformation, the newly formed sovereign states of Europe claimed more jurisdiction over areas of law and legal practice which had traditionally been under the jurisdiction of the church. [12] In this post-Reformation period of political change, canonical jurists sought to defend within the categories of the public law the right of the Catholic Church to make and enforce law. [13] Hence the name, jus publicum ecclesiasticum—"public ecclesiastical law".

The Church is not merely a corporation (collegium) or part .of civil society. Hence, the maxim is false, "Ecclesia est in statu," or, the Church is placed under the power of the state. The Church is rightly named a Sovereign State. This is proved by Soglia 13 in these words : "Ex defmitione Pufiendorfii, Status est conjunctio plurium hominum, quae imperio per homines administrate, sibi proprio, et aliunde non dependente, continetur. Atqui ex institutione Christi, Ecclesia est conjunctio hominum, quae per homines, hoc est, per Petrum et Apostolos, eorumque successores administratur cum imperio sibi proprio, nee aliunde dependente ; ergo Ecclesia est Status." [14]

The justification of the legal powers of the Catholic Church would now be defended along the lines of the sovereign state's justification for its own legal powers, and the Catholic Church would be considered a concurrent and complementary Communitas Perfecta in the realm of the supernatural end of man to that of the civil sovereign state in the realm of the natural end of man. [15]

Communitas Perfecta

Many canonists, in the years preceding the Second Vatican Council, considered the justification and basis for canon law being a true legal system to be that the Catholic Church was established by Jesus Christ as a Communitas Perfecta , and as such was a true human society which had the right to make human law.

“…the Church is a Sovereign State, that is, a perfect and supreme society, established by our Lord for the purpose of leading men to heaven. We say, a society; now what is a society? Speaking in general, it is a number of persons associated together, in order to attain, by united efforts, some common end. We say, perfect; because she is complete of herself, and therefore has within her own bosom all the means sufficient to enable her to attain her end. We say, supreme, because she is subject to no other society on earth. Like every society, the Church is an external organization. For she is composed of human beings, who have a body as well as a soul. She is, in fact, by the will of her divine Founder, a community, an association of men, governed by men. Like every external organization, the Church must be governed by laws and regulations that will enable her to fulfill her mission and attain her end. The aim and end of the Church is the worship of God and the salvation of souls. Any action or omission, therefore, on the part of her members, which hinders her from carrying out her mission or reaching her end, and, consequently, whatever contravenes the regulations made by her concerning the worship of God and the sanctification of her children, is punishable by her. For God, having given her a mission, also gave her the means or the power to fulfill it. Hence she can establish, in fact has established, laws, and regulations, obligatory on her members. If the members violate those laws, they not only sin against God, but they offend also against the order, discipline, laws, or regulations established by the Church.” [16]

Fernando della Rocca asserted that it is a "fundamental principle of canon law which insists on the right of the Church as a perfect society, [Note 1] to determine, particularly in the field of legislation, the limits of its own power." [17] Even Pope Benedict XV, in his apostolic constitution promulgating the 1917 Code of Canon Law, attributed the legislative authority of the church to it being founded by Jesus Christ with all the requirements for a Communitas Perfecta . [18]

Theology of canon law

In the decades following the Second Vatican Council, many canonists called for a more theological, rather than philosophical, conception of canon law, [19] acknowledging the "triple relationship between theology, philosophy, and canon law". [1]

Pope Benedict XVI, in his address of 21 January 2012 before the Roman Rota, taught that canonical laws can only be interpreted and fully understood within the Catholic Church in the light of her mission and ecclesiological structure. [20]

Were one to tend to identify Canon Law with the system of the laws of the canons, the understanding of that which is juridical in the Church would essentially consist in the comprehending of that which the legal texts establish. At first glance, this approach would appear to hold Human Law entirely in value. However the impoverishment which this conception would bring about becomes manifest: with the practical oblivion of the Natural Law and of the Divine Positive Law, as well as the vital relationship of every Law with the communion and the mission of the Church, the work of the interpreter becomes deprived of vital contact with ecclesial reality. [20]

Some authors conceive of canon law as essentially theological and the discipline of canon law as a theological subdiscipline, [19] but Msgr. Carlos José Errázuriz contends that "in a certain sense, all postconciliar canonical scholarship has shown a theological concern in the widest sense, that is, a tendency to determine more clearly the place of the juridical in the mystery of the Church." [19]

Ecclesiological inspiration of the 1983 Code

In view of the decision to reform the existing Code, the Second Vatican Council, in the decree Optatam totius (§16), ordered that "the teaching of canon law...should take into account the mystery of the Church, according to the dogmatic constitution De Ecclesia ...". [21]

The 1917 Code was structured according to the Roman law division of "norms, persons, things, procedures, penalties", while the 1983 Code, in total contrast, was deliberately given a much more doctrinal-theological structure. John Paul II described the ecclesiological inspiration of the new code of canon law in this way: [22]

The instrument, which the Code is, fully corresponds to the nature of the Church, especially as it is proposed by the teaching of the Second Vatican Council in general, and in a particular way by its ecclesiological teaching. Indeed, in a certain sense, this new Code could be understood as a great effort to translate this same doctrine, that is, the conciliar ecclesiology, into canonical language. If, however, it is impossible to translate perfectly into canonical language the conciliar image of the Church, nevertheless, in this image there should always be found as far as possible its essential point of reference. [22]

Thus the 1983 Code is configured, as far as possible, according to the "mystery of the Church", the most significant divisions—Books II, III, and IV—corresponding to the munus regendi, the munus sanctificandi, and the munus docendi (the "missions" of governance, of worship/sanctification, and of teaching) which in turn derive from the kingly, the priestly and the prophetic roles or functions of Christ. [23]

Fundamental theory of canon law

The fundamental theory of canon law is a discipline covering the basis of canon law in the very nature of the church. [24] Fundamental theory is a newer discipline that takes as is object "the existence and nature of what is juridical in the Church of Jesus Christ." [25] The discipline seeks to provide a theoretical basis for the coexistence and complementarity of canon law and the Catholic Church, and it seeks to refute the "canonical antijuridicism" (the belief that law of the church constitutes a contradiction in terms; that law and church are radically incompatible) [26] of the various heretical movements and of the Protestant Reformation [27] on the one hand, and on the other, the antijuridicism deriving from a belief that all law is identifiable with the law of the state; that in order to be true law, the state must be its maker. [28] The discipline seeks to better explain the nature of law in the church and engages in theological discussions in post-conciliar Catholicism [29] and seeks to combat "postconciliar antijuridicism". [30]

Related Research Articles

Canon law is a set of ordinances and regulations made by ecclesiastical authority, for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these four bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.

Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas others are nomistic or "legalistic" in nature. In particular, religions such as Judaism, Islam and the Baháʼí Faith teach the need for revealed positive law for both state and society, whereas other religions such as Christianity generally reject the idea that this is necessary or desirable and instead emphasise the eternal moral precepts of divine law over the civil, ceremonial or judicial aspects, which may have been annulled as in theologies of grace over law.

Ecclesiology Theological study of the Christian Church

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Ecclesia Dei is the document Pope John Paul II issued on 2 July 1988 in reaction to the Ecône Consecrations, in which four priests of the Society of Saint Pius X were ordained as bishops despite an express prohibition by the Holy See. It said that the consecrating bishop and the four priests they consecrated were excommunicated. John Paul called for unity and established the Pontifical Commission Ecclesia Dei to foster a dialogue with those associated with the consecrations who hoped to maintain both loyalty to the papacy and their attachment to traditional liturgical forms.

Bernard Tissier de Mallerais French bishop

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Alfonso de Galarreta Spanish-Argentine bishop

Alfonso de Galarreta Genua, SSPX, is a Spanish-born Argentine bishop of the Society of Saint Pius X. Bishop de Galarreta has served as the First Assistant of the Society of Saint Pius X, working under the direction of the Superior General Fr. Davide Pagliarani, since 2018. In addition to this, Bishop de Galaretta has been the President of the SSPX—Vatican Commission since 2009, which directs the Society's correspondence with the Holy See.

Doctor of Canon Law is the doctoral-level terminal degree in the studies of canon law of the Roman Catholic Church. It can also be an honorary degree awarded by Anglican colleges. It may also be abbreviated ICD or dr.iur.can., ICDr, DCL, DCnl, DDC, or DCanL. A doctor of both laws is a JUD or UJD.

The canon law of the Catholic Church is "how the Church organizes and governs herself". It is the system of laws and ecclesiastical legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, while the unique traditions of Eastern Catholic canon law govern the 23 Eastern Catholic particular churches sui iuris.

Formal act of defection from the Catholic Church

A formal act of defection from the Catholic Church was an externally provable juridic act of departure from the Catholic Church, which was recognized from 1983 to 2010 in the Code of Canon Law as having certain juridical effects enumerated in canons 1086, 1117, and 1124. The concept of "formal" act of defection was narrower than that of "notorious" defection recognized in the 1917 Code of Canon Law and still narrower than the concept of "de facto" defection. In 2006, the Pontifical Council for Legislative Texts specified in what a formal act of defection from the Catholic Church consisted. Despite popular perception this act did not constitute leaving the Catholic Church and did not make an individual a former Catholic.

Regarding the canon law of the Catholic Church, canonists provide and obey rules for the interpretation and acceptation of words, in order that legislation is correctly understood and the extent of its obligation is determined.

1917 <i>Code of Canon Law</i> First official, comprehensive codification of Catholic canon law, promulgated 1917

The 1917 Code of Canon Law, also referred to as the Pio-Benedictine Code, was the first official comprehensive codification of Latin canon law.

1983 <i>Code of Canon Law</i> 1983 codification of canonical legislation for the Latin Rite of the Catholic Church

The 1983 Code of Canon Law, also called the Johanno-Pauline Code, is the "fundamental body of ecclesiastical laws for the Latin Church". It is the second and current comprehensive codification of canonical legislation for the Latin Church sui iuris of the Catholic Church. It was promulgated on 25 January 1983 by John Paul II and took legal effect on the First Sunday of Advent 1983. It replaced the 1917 Code of Canon Law which had been promulgated by Benedict XV on 27 May 1917.

Communitas perfecta or societas perfecta is the Latin name given to one of several ecclesiological, canonical, and political theories of the Catholic Church. The doctrine teaches that the church is a self-sufficient or independent group which already has all the necessary resources and conditions to achieve its overall goal of the universal salvation of mankind. It has historically been used in order to define church–state relations and to provide a theoretical basis for the legislative powers of the church in the philosophy of Catholic canon law.

The canonical situation of the Society of Saint Pius X (SSPX), a group founded in 1970 by Archbishop Marcel Lefebvre, is unresolved.

Latin Church Autonomous particular church composed of most of the Western-world Catholics

The Latin Church, also known as the Roman Catholic Church or the Western Church, with over 1.2 billion members, is the largest particular church sui iuris of the Catholic Church, and traditionally employs in the majority the Latin liturgical rites, which since the mid-twentieth century are very often in practice translated into the vernacular. The Latin Church is one of 24 such churches, the 23 others being referred to as a group as the Eastern Catholic Churches. The Latin Church is headed by the Bishop of Rome, the Pope—one of whose traditional titles in some eras and contexts has also been the Patriarch of the West, and whose cathedra as a bishop is located in the Archbasilica of Saint John Lateran in Rome, Italy.

<i>Treatise on Law</i> Thomas Aquinas major work of legal philosophy

Treatise on Law is Thomas Aquinas' major work of legal philosophy. It forms questions 90–108 of the Prima Secundæ of the Summa Theologiæ, Aquinas' masterwork of Scholastic philosophical theology. Along with Aristotelianism, it forms Aquinas' notion of law

The term ratum sed non consummatum or ratum et non consummatum refers to a juridical-sacramental category of marriage in Catholic matrimonial canon law. If a matrimonial celebration takes place (ratification) but the spouses have not yet engaged in intercourse (consummation), then the marriage is said to be a marriage ratum sed non consummatum. The Tribunal of the Roman Rota has exclusive competence to dispense from marriages ratum sed non consummatum, which can only be granted for a "just reason". This process should not be confused with the process for declaring the nullity of marriage, which is treated of in a separate title of the 1983 Code of Canon Law.

<i>Determinatio</i> Authoritative determination by the legislator concerning the application of practical principles

A determinatio is an authoritative determination by the legislator concerning the application of practical principles, that is not necessitated by deduction from natural or divine law but is based on the contingencies of practical judgement within the possibilities allowed by reason. The concept derives from the legal philosophy of Thomas Aquinas, and continues to be a part of discussions in natural law theory.

The Eastern Catholic canon law is the law of the 23 Catholic sui juris (autonomous) particular churches of the Eastern Catholic tradition. Eastern Catholic canon law includes both the common tradition among all Eastern Catholic Churches, now chiefly contained in the Code of Canons of the Eastern Churches, as well as the particular law proper to each individual sui juris particular Eastern Catholic Church. Oriental canon law is distinguished from Latin canon law, which developed along a separate line in the remnants of the Western Roman Empire, and is now chiefly codified in the 1983 Code of Canon Law.

The jurisprudence of Catholic canon law is the complex of legal theory, traditions, and interpretative principles of Catholic canon law. In the Latin Church, the jurisprudence of canon law was founded by Gratian in the 1140s with his Decretum. In the Eastern Catholic canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.


  1. 1 2 Ladislas Orsy, "Towards a Theological Conception of Canon Law" (published in Jordan Hite, T.O.R., & Daniel J. Ward, O.S.B., "Readings, Cases, Materials in Canon Law: A Textbook for Ministerial Students, Revised Edition" (Collegeville, MN: The Liturgical Press, 1990), pg. 11
  2. Bargilliat, M., “Prælectiones Juris Canonici—Tomus Primus” (Parisiis: Berche et Tralin, Editores, 1909), pg. 3.
  3., main page. Accessed 9 April 2016.
  4. J. Budziszewski, The Architecture of Law According to Thomas Aquinas; accessed 14 March 2016
  5. Blackfriars Summa Theologiæ Vol. 28, pg. 16 [notes by Thomas Gilby O.P. on Summa Ia-IIæ, q. 90, a. 4]
  6. René A. Wormser, The Story of the LAW, pp. 187-188
  7., accessed June-8-2013
  8. Catechism of the Catholic Church §1976, citing Summa Theologiae I-II, 90, 4
  9. Catechism of the Catholic Church §1951
  10. Exegetical Commentary on the Code of Canon Law, Vol. I, pg. 261-262 (commentary on 1983 CIC, Book I, Title I)
  11. Ferguson & McHenry, The American Federal Government, pg. 2
  12. Errázuriz M., Fundamental Theory, pg. 27-28.
  13. Errázuriz M., Fundamental Theory, pg. 43.
  14. REV. S. B. SMITH, D.D., ELEMENTS ECCLESIASTICAL LAW, 9th Edition (1895), §185
  15. Errázuriz M., Fundamental Theory, pg. 42.
  16. REV. S. B. SMITH, D.D., ELEMENTS OF ECCLESIASTICAL LAW, VOL. III. ECCLESIASTICAL PUNISHMENTS. SECOND, REVISED EDITION. (New York: Benziger Brothers, 1888), §§1658-1659 (accessed 31 January 2018)
  17. Della Rocca, Manual of Canon Law, pg. 60.
  18. Benedict XV, ap. const. Providentissima Mater Ecclesia, (found in Peters [trans.], 1917 Code of Canon Law, pg. 21.
  19. 1 2 3 Errázuriz, Fundamental Theory, pg. 71
  20. 1 2 Benedict XVI, 2012 Roman Rota Address:
  21. Optatam totius §16, accessed 14 April 2016.
  22. 1 2 Sacrae Disciplinae Leges, accessed Jan-11-2013
  23. Confer "CANON LAW AND COMMUNIO Writings on the Constitutional Law of the Church", 1, 1, at "Archived copy". Archived from the original on 2014-03-26. Retrieved 2014-03-26.{{cite web}}: CS1 maint: archived copy as title (link).
  24. Errázuriz M., Fundamental Theory, 3
  25. Errázuriz M., Fundamental Theory, xvii.
  26. Errázuriz M., Fundamental Theory, 4-5.
  27. Errázuriz M., Fundamental Theory, 7, 20.
  28. Errázuriz M., Fundamental Theory, 26.
  29. Errázuriz M., Fundamental Theory, 59 et seq.
  30. Errázuriz M., Fundamental Theory, 62


  1. In the context of ecclesiological discourse, "perfect society (societas perfecta)" and "perfect community ( communitas perfecta )" have the same meaning and are used interchangeably.