Philosophy, theology, and fundamental theory of canon law

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The philosophy, theology, and fundamental theory of 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]

Catholic Church Christian church led by the Bishop of Rome

The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with approximately 1.3 billion baptised Catholics worldwide as of 2017. As the world's "oldest continuously functioning international institution", it has played a prominent role in the history and development of Western civilisation. The church is headed by the Bishop of Rome, known as the pope. Its central administration, the Holy See, is in the Vatican City, an enclave within the city of Rome in Italy.

Philosophy intellectual and/or logical study of general and fundamental problems

Philosophy is the study of general and fundamental questions about existence, knowledge, values, reason, mind, and language. Such questions are often posed as problems to be studied or resolved. The term was probably coined by Pythagoras. Philosophical methods include questioning, critical discussion, rational argument, and systematic presentation. Classic philosophical questions include: Is it possible to know anything and to prove it? What is most real? Philosophers also pose more practical and concrete questions such as: Is there a best way to live? Is it better to be just or unjust? Do humans have free will?

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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:

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

The ius gentium or jus gentium is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ius gentium is not a body of statute law or a legal code, but rather customary law thought to be held in common by all gentes in "reasoned compliance with standards of international conduct".

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,

Aristotelianism tradition in philosophy

Aristotelianism is a tradition of philosophy that takes its defining inspiration from the work of Aristotle. This school of thought, in the modern sense of philosophy, covers existence, ethics, mind and related subjects. In Aristotle's time, philosophy included natural philosophy, which preceded the advent of modern science during the Scientific Revolution. The works of Aristotle were initially defended by the members of the Peripatetic school and later on by the Neoplatonists, who produced many commentaries on Aristotle's writings. In the Islamic Golden Age, Avicenna and Averroes translated the works of Aristotle into Arabic and under them, along with philosophers such as Al-Kindi and Al-Farabi, Aristotelianism became a major part of early Islamic philosophy.

<i>Treatise on Law</i>

Treatise on Law is St. 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 the basis for the legal theory of Catholic canon law.

Philosophy of law branch of philosophy and fundamental discipline of law

Philosophy of law is a branch of philosophy and jurisprudence that seeks to answer basic questions about law and legal systems, such as "What is law?", "What are the criteria for legal validity?", "What is the relationship between law and morality?", and many other similar questions.

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 "...an 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]

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, promulgated by Benedict XV on 27 May 1917.

<i>Catechism of the Catholic Church</i> book by Congregatie voor de Geloofsleer

The Catechism of the Catholic Church is a catechism promulgated for the Catholic Church by Pope John Paul II in 1992. It sums up, in book form, the beliefs of the Catholic faithful.

Thomas Aquinas Dominican scholastic philosopher of the Roman Catholic Church

Saint Thomas Aquinas was an Italian Dominican friar, Catholic priest, and Doctor of the Church. He is an immensely influential philosopher, theologian, and jurist in the tradition of scholasticism, within which he is also known as the Doctor Angelicus and the Doctor Communis. The name Aquinas identifies his ancestral origins in the county of Aquino in present-day Lazio, Italy.

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".

Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in the court that they perceive will be most favorable to them.

Sovereign state Political organization with a centralized independent government

In international law, a sovereign state, sovereign country, or simply state, is a nonphysical juridical entity that is represented by one centralized government that has sovereignty over a geographic area. International law defines sovereign states as having a permanent population, defined territory, one government, and the capacity to enter into relations with other sovereign states. It is also normally understood that a sovereign state is neither dependent on nor subjected to any other power or state.

Public law is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to society. Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all procedural law. In public law, mandatory rules prevail. Laws concerning relationships between individuals belong to private 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]

Della Rocca asserts 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, attributes 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 three 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.

Charity (virtue) theological virtue

In Christian theology, Charity is considered as one of the seven virtues and is understood by Thomas Aquinas as "the friendship of man for God", which "unites us to God". He holds it as "the most excellent of the virtues". Further, Aquinas holds that "the habit of charity extends not only to the love of God, but also to the love of our neighbor".

In Christian theology, ecclesiology is the study of the Christian Church, the origins of Christianity, its relationship to Jesus, its role in salvation, its polity, its discipline, its destiny, and its leadership.

Catholic religious order religious institute of the Roman Catholic Church

A Catholic religious order is a religious order of the Catholic Church. According to the 1983 Code of Canon Law, they form part of a category of Catholic religious institutes.

Bernard Tissier de Mallerais French bishop

Bernard Tissier de Mallerais, SSPX is a French Traditionalist Roman Catholic bishop of the Society of Saint Pius X.

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.

The canon law of the Catholic Church is the system of laws and 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 Oriental canon law govern the 23 Eastern Catholic particular churches sui iuris.

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.

The 1917 Code of Canon Law, also referred to as the Pio-Benedictine Code, was the first official comprehensive codification of Latin canon law. It was promulgated on 27 May 1917 and took legal effect on 19 May 1918. It was in force until the 1983 Code of Canon Law took legal effect and abrogated it on 27 November 1983. It has been described as "the greatest revolution in canon law since the time of Gratian".

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 canon law.

Glossary of the Catholic Church

This is a glossary of terms used within the Catholic Church.

Catholic particular churches and liturgical rites

A particular church is an ecclesiastical community of faithful headed by a bishop, as defined by Catholic canon law and ecclesiology. A liturgical rite depends on the bishop.

Latin Church automonous particular church making up of most of the Western world Catholics

The Latin Church is the largest particular church of the Catholic Church, employing the Latin liturgical rites. It is one of 24 sui iuris churches, the 23 other forming the Eastern Catholic Churches. It is headed by the Bishop of Rome - the pope, traditionally called the Patriarch of the West - with headquarters in the Vatican City, enclaved within Rome, Italy. The Latin Church traces its history to the earliest days of Christianity, according to Catholic tradition, through its direct leadership under the Holy See.

Canon 844 is a Catholic Church canon law contained within the 1983 Code of Canon Law, which defines the licit administration and reception of certain sacraments of the Catholic Church in normative and in particular exceptional circumstances, known in canonical theory as communicatio in sacris.

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.

Catholic ecclesiology

The ecclesiology of the Catholic Church is the area of Catholic theology covering the ecclesiology -- the nature, structure, and constitution -- of the Catholic Church itself on a metaphysical and revealed level.

<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.

Oriental canon law is the law of the 23 Catholic sui juris particular churches of the Eastern Catholic tradition. Oriental 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 to 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 Oriental canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.

References

  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. CanonLaw.info, 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. JGray.org, 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..
  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

Notes

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

Bibliography