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The philosophy, theology, and fundamental theory of Catholic canon law are the fields of philosophical,
theological Theology is the systematic study of the nature of the divine and, more broadly, of religious belief. It is taught as an academic discipline, typically in universities and seminaries. It occupies itself with the unique content of analyzing the s ...
( ecclesiological), and
legal scholarship Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
which concern the place of
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is t ...
in the nature of the
Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.3 billion baptized Catholics Catholic Church by country, worldwide . It is am ...
, both as a
natural Nature, in the broadest sense, is the physical world or universe. "Nature" can refer to the phenomena of the physical world, and also to life in general. The study of nature is a large, if not the only, part of science. Although humans ar ...
and as a
supernatural Supernatural refers to phenomena or entities that are beyond the laws of nature. The term is derived from Medieval Latin , from Latin (above, beyond, or outside of) + (nature) Though the corollary term "nature", has had multiple meanings si ...
entity. Philosophy and theology shape the concepts and self-understanding of
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is t ...
as the law of both a human organization and as a supernatural entity, since the Catholic Church believes that
Jesus Christ Jesus, likely from he, יֵשׁוּעַ, translit=Yēšūaʿ, label= Hebrew/ Aramaic ( AD 30 or 33), also referred to as Jesus Christ or Jesus of Nazareth (among other names and titles), was a first-century Jewish preacher and relig ...
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".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


Philosophy of canon law

A triple species of human ositivelaw is distinguished: ecclesiastical or canon law, civil law, and the
law of nations International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
. Canon law () and civil law differ among themselves partly by nature of origin, partly by nature of object, and partly by nature of end: *They differ in origin: for the origin of the civil power is from God the author of nature; while the origin of the ecclesiastical power is from God the contributor of supernatural grace. *They differ in object: because canon law regulates spiritual and sacred matters, while civil law regulates matters temporal and political. *They differ in end: for canon law especially aims at the eternal happiness () of people; civil law, however, aims at their temporal happiness ().


Aristotelian-Thomistic jurisprudence

Although canonical jurisprudential theory generally follows the principles of Aristotelian- Thomistic legal philosophy,
Thomas Aquinas Thomas Aquinas, Dominican Order, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino, Italy, Aquino; 1225 – 7 March 1274) was an Italian Dominican Order, Dominican friar and Catholic priest, priest who was an influential List of Catholic philo ...
never explicitly discusses the place of canon law in his ''
Treatise on Law ''Treatise on Law'' is Thomas Aquinas' major work of legal philosophy. It forms questions 90–108 of the ''Prima Secundæ'' ("First artof the Second art) of the ''Summa Theologiæ'', Aquinas' masterwork of Scholastic philosophical theology. A ...
'' (a small section of his ''
Summa Theologiæ The ''Summa Theologiae'' or ''Summa Theologica'' (), often referred to simply as the ''Summa'', is the best-known work of Thomas Aquinas (1225–1274), a scholastic theologian and Doctor of the Church. It is a compendium of all of the main ...
''). However, Aquinas himself was influenced by canon law; the fourth clause of his famous 4-part definition of law—the requirement of
promulgation Promulgation is the formal proclamation or the declaration that a new statutory or administrative law is enacted after its final approval. In some jurisdictions, this additional step is necessary before the law can take effect. After a new law ...
—is taken from the canonists, and the ''sed contra'' of his article on promulgation cites
Gratian Gratian (; la, Gratianus; 18 April 359 – 25 August 383) was emperor of the Western Roman Empire from 367 to 383. The eldest son of Valentinian I, Gratian accompanied his father on several campaigns along the Rhine and Danube frontiers and w ...
(the "Father of Canon Law") as an authority. According to René A. Wormser, While the term "law" () is never explicitly defined in the 1983 Code, the
Catechism of the Catholic Church The ''Catechism of the Catholic Church'' ( la, Catechismus Catholicae Ecclesiae; commonly called the ''Catechism'' or the ''CCC'') is a catechism promulgated for the Catholic Church by Pope John Paul II in 1992. It aims to summarize, in book ...
cites
Aquinas Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known ...
in defining law as "...an ordinance of reason for the common good, promulgated by the one who is in charge of the community" and reformulates it as "...a rule of conduct enacted by competent authority for the sake of the common good." Some authors, however, dispute the applicability of the Thomistic definition of law () to canon law, arguing that its application would impoverish
ecclesiology In Christian theology, ecclesiology is the study of the Church, the origins of Christianity, its relationship to Jesus, its role in salvation, its polity, its discipline, its eschatology, and its leadership. In its early history, one of t ...
and corrupt the very supernatural end of canon law.


''Jus Publicum Ecclesiasticum''

With the birth of the omni-competent sovereign nation-state in the seventeenth century, which claimed exclusive jurisdiction over all its citizens, the dual or
concurrent jurisdiction 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 th ...
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 Reformation (alternatively named the Protestant Reformation or the European Reformation) was a major movement within Western Christianity in 16th-century Europe that posed a religious and political challenge to the Catholic Church and i ...
, the newly formed
sovereign state A sovereign state or sovereign country, is a political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defined ter ...
s of Europe claimed more jurisdiction over areas of law and legal practice which had traditionally been under the jurisdiction of the church. In this post-Reformation period of political change, canonical jurists sought to defend within the categories of the
public law Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
the right of the
Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.3 billion baptized Catholics Catholic Church by country, worldwide . It is am ...
to make and enforce law. Hence the name, ''jus publicum ecclesiasticum''—"public ecclesiastical law". The justification of the legal powers of the Catholic Church would now be defended along the lines of the
sovereign state A sovereign state or sovereign country, is a political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defined ter ...
'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 A sovereign state or sovereign country, is a political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defined ter ...
in the realm of the natural end of man.


''Communitas Perfecta''

Many canonists, in the years preceding the
Second Vatican Council The Second Ecumenical Council of the Vatican, commonly known as the , or , was the 21st ecumenical council of the Roman Catholic Church. The council met in St. Peter's Basilica in Rome for four periods (or sessions), each lasting between 8 and ...
, considered the justification and basis for canon law being a true legal system to be that the
Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.3 billion baptized Catholics Catholic Church by country, worldwide . It is am ...
was established by
Jesus Christ Jesus, likely from he, יֵשׁוּעַ, translit=Yēšūaʿ, label= Hebrew/ Aramaic ( AD 30 or 33), also referred to as Jesus Christ or Jesus of Nazareth (among other names and titles), was a first-century Jewish preacher and relig ...
as a '' Communitas Perfecta'', and as such was a true human society which had the right to make human law. 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,In the context of ecclesiological discourse, "perfect society ()" and "perfect community ('' communitas perfecta'')" have the same meaning and are used interchangeably. to determine, particularly in the field of legislation, the limits of its own power." Even
Pope Benedict XV Pope Benedict XV (Ecclesiastical Latin, Latin: ''Benedictus XV''; it, Benedetto XV), born Giacomo Paolo Giovanni Battista della Chiesa, name=, group= (; 21 November 185422 January 1922), was head of the Catholic Church from 1914 until his deat ...
, 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''.


Theology of canon law

In the decades following the
Second Vatican Council The Second Ecumenical Council of the Vatican, commonly known as the , or , was the 21st ecumenical council of the Roman Catholic Church. The council met in St. Peter's Basilica in Rome for four periods (or sessions), each lasting between 8 and ...
, many canonists called for a more theological, rather than philosophical, conception of canon law,Errázuriz, ''Fundamental Theory'', pg. 71 acknowledging the "triple relationship between theology, philosophy, and canon law".
Pope Benedict XVI Pope Benedict XVI ( la, Benedictus XVI; it, Benedetto XVI; german: link=no, Benedikt XVI.; born Joseph Aloisius Ratzinger, , on 16 April 1927) is a retired prelate of the Catholic church who served as the head of the Church and the sovereig ...
, in his address of 21 January 2012 before the
Roman Rota The Roman Rota, formally the Apostolic Tribunal of the Roman Rota ( la, Tribunal Apostolicum Rotae Romanae), and anciently the Apostolic Court of Audience, is the highest appellate tribunal of the Catholic Church, with respect to both Latin-r ...
, taught that canonical laws can only be interpreted and fully understood within the
Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.3 billion baptized Catholics Catholic Church by country, worldwide . It is am ...
in the light of her mission and ecclesiological structure.Benedict XVI, ''2012 Roman Rota Address'': Some authors conceive of canon law as ''essentially'' theological and the discipline of canon law as a theological subdiscipline, 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."


Ecclesiological inspiration of the 1983 ''Code''

In view of the decision to reform the existing 1983 ''Code'', the
Second Vatican Council The Second Ecumenical Council of the Vatican, commonly known as the , or , was the 21st ecumenical council of the Roman Catholic Church. The council met in St. Peter's Basilica in Rome for four periods (or sessions), each lasting between 8 and ...
, in the
decree A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used ...
'' 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''". The 1917 ''Code'' was structured according to the
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
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 Pope John Paul II ( la, Ioannes Paulus II; it, Giovanni Paolo II; pl, Jan Paweł II; born Karol Józef Wojtyła ; 18 May 19202 April 2005) was the head of the Catholic Church and sovereign of the Vatican City State from 1978 until his ...
described the ecclesiological inspiration of the new code of canon law in this way:Sacrae Disciplinae Leges
accessed Jan-11-2013
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.


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. 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." The
discipline Discipline refers to rule following behavior, to regulate, order, control and authority. It may also refer to punishment. Discipline is used to create habits, routines, and automatic mechanisms such as blind obedience. It may be inflicted on ot ...
seeks to provide a theoretical basis for the coexistence and complementarity of canon law and the
Catholic Church The Catholic Church, also known as the Roman Catholic Church, is the List of Christian denominations by number of members, largest Christian church, with 1.3 billion baptized Catholics Catholic Church by country, worldwide . It is am ...
, 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) of the various heretical movements and of the
Protestant Reformation The Reformation (alternatively named the Protestant Reformation or the European Reformation) was a major movement within Western Christianity in 16th-century Europe that posed a religious and political challenge to the Catholic Church and i ...
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. The discipline seeks to better explain the nature of law in the church and engages in theological discussions in post- conciliar Catholicism and seeks to combat "postconciliar antijuridicism".Errázuriz M., ''Fundamental Theory,'' 62


Notes


References


Bibliography

* Aquinas, Thomas. "St. Thomas Aquinas: ''Summa Theologiæ,'' Volume 28: Law and Political Theory (Ia2æ. 90-97); Latin text. English translation, Introduction, Notes, Appendices & Glossary yThomas Gilby O.P.", Blackfriars (Cambridge: Eyre and Spottiswoode Limited, 1966). *Aymans, Winfried. ''Ecclesiological Implications of the New Legislation'' (essay 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). *Bargilliat, M., “Prælectiones Juris Canonici—Tomus Primus” (Parisiis: Berche et Tralin, Editores, 1909). * Benedict XVI, Pope. ''Address of His Holiness Benedict XVI for the Inauguration of the Judicial Year of the Tribunal of the Roman Rota'', Clementine Hall, 21 January 2012. https://w2.vatican.va/content/benedict-xvi/en/speeches/2012/january/documents/hf_ben-xvi_spe_20120121_rota-romana.html Accessed 29 March 2016. *Caparros, Ernest. ''Exegetical Commentary on the Code of Canon Law, Volume I: Prepared under the Responsibility of the Martín de Azpilcueta Institute, Faculty of Canon Law, University of Navarre'' (Chicago, Illinois: Midwest Theological Forum, 2004) Edited by Ángel Marzoa, Jorge Miras and Rafael Rodríguez-Ocaña (English language edition General editor: Ernest Caparros; Review coordinator: Patrick Lagges). *Della Rocca, Fernando. ''Manual of Canon Law'' (Milwaukee: The Bruce Publishing Company, 1959) translated by Rev. Anselm Thatcher, O.S.B. *Errázuriz M., Carlos José. ''Justice in the Church: A Fundamental Theory of Canon Law'' (Montreal: Wilson & Lefleur Ltée, 2009) trans. Jean Gray in collaboration with Michael Dunnigan. *Ferguson, John H., and McHenry, Dean E. ''The American Federal Government: Third Edition (McGraw-Hil Series in Political Science)'' (New York: McGraw-Hill Book Company, Inc., 1953). *Orsy, Ladislas. ''Towards a Theological Conception of Canon Law'' (essay 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). *Peters, Dr. Edward N., translator, ''The 1917 or Pio-Benedictine Code of Canon Law: in English Translation with Extensive Scholarly Apparatus'' (Ignatius Press, 2001). * Peters, Dr. Edward N., JD, JCD, Ref. Sig. Ap.,
CanonLaw.info
' *Wormser, René A., ''The Story of the LAW and the Men Who Made It—From the Earliest Times to the Present: Revised and Updated Edition of'' The Law (New York: Simon and Schuster, 1962).
''Catechism of the Catholic Church''
at Vatican.va {{jurisprudence Canon law of the Catholic Church * c c Thomistic jurisprudence