THE LAW SCHOOL

CANON LAW

Reverend John J. Coughlin, O.F.M.

Professor of Law

Notre Dame Law School

Legal Studies Research Paper No. 07-27

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 CANON LAW

by John J. Coughlin, O.F.M.

I. General Description

Canon law may be described as that body of laws, rules, regulations, customs,

interpretations, principles, protocols, and the like given, or at least tacitly approved, by

the competent ecclesiastical authority for the right ordering of the ecclesiastical society.

Canon law must be distinguished from secular systems of law in that the supreme law of

the Church remains the salvation of souls. At the same time, canon law is analogous to

civil law. It aims to set a societal order that harmonizes the interests of individuals and

communities, secures peace, guarantees freedom, and establishes justice. As a human

institution claiming its fundamental elements were established by Christ, the Church

depends on canon law for the regulation of its structure and organization and as well as

for the continuity of its prophetic mission in the world.

II. Foundation of Canon Law

During the nineteenth century certain German theologians and legal scholars,

such as R. Sohm, argued that the ancient Church was a spiritual and theological, rather

than legal and juridical community. The argument painted a picture of the Jesus as a foe

of institutions such as the Church, who repudiated cultic worship, transformed religion

into morality, and championed the individual. The argument could be summarized by the

famous dictum of Loisy: “Jesus proclaimed the Kingdom, what came was the Church.”

In contrast to such liberal nineteenth century thought, Stephan Kuttner observed that the

argument failed to appreciate “the sacramental and juridic nature of the primitive and
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ancient Church.” As Klaus Mörsdorf suggested, the necessity of canon law derives from

the fact of the Incarnation. The Son of God, the Eternal Word, took on human flesh and

entered into salvation history. (Jn 1,1). Through the Incarnation, the Son necessarily

associated with institutional and legal forms. Church law entailed from the beginning an

inner meaning or intellectus and an outward form. The unity of these inner and outward

elements can be detected in community, sacrament, and mission.

First, the tradition of revelation does not float in time of itself, but its continuity in

time is inexrorably liked to the human community of the Church. The kingdom preached

by Jesus breaks into human history not only in the Incarnation as the primary revelation

of God, but also in the community he gathers around himself. The original communio is

the ecclesia of the New Testatment. (Mt 18, 17; I Cor 1, 2; Gal. 3, 16, 26-29). The

Church is perfected in the cenacle of the upper room where “Mary, the holy women and

the brethren” are gathered to receive the Holy Spirit. (Acts 1, 12-14). This Pentecostal

gathering serves as a prototype for all the subsequent churches. While the charism of

Pentecost is linked to the apostolic function or office, it is not apostolic authority alone

but the entire ecclesial reality that constitutes the form for the dynamic spread of the

charism. Nonetheless, the outward form of the Church is manifested by certain juridical

structures that are intended to foster the charism. The inner meaning of Christ’s passion,

death, and resurrection as experienced at Pentecost is not separable from the outward

ecclesial form. Even before there was written word, there was an oral tradition. The

revelation of Son in human history was tied to eye-witnesses, the apostles, who continued

preaching the gospel. (Jn 21, 24; Acts 1, 1-3). The oral tradition was recorded as sacred

scripture, and the Apostles chose successors who have functioned as the official
 3

witnesses passing on the tradition from age to age. (Acts 1, 15-26; I Cor 11, 23; 15, 3; 2

Tim 1, 2).

Second, certain structural and legal forms are associated with the sacramental life

of the pristine Church. The neophyte must not only acknowledge that Jesus is Lord, but

must be baptized by the minister in the name of the Lord Jesus. (Acts 8, 16; Acts 19, 5; I

Cor 1, 13). Jesus also commanded the apostles to celebrate the Eucharist in his memory.

(Lk 22, 17-19; I Cor 11, 26). During the earliest phases of its development, the Church

understood more clearly the nature of Christ’s mandate and set-down formula in response

to it. From the beginning, the sacramental life of the Church has centered on the

Eucharist, and the Eucharist has required an established order so that it might constitute

the true sacrament of unity.

Third, the mission of the Church is expressed in an outward legal form. The inner

experience of believing in Christ is not sufficient for preaching. It was also necessary to

be commissioned by the risen Christ and filled with the Holy Spirit for the purpose of

preaching to the nations to the end of the world. (Acts 10, 42; 1, 8). The Apostles chose

successors and also deacons for service in the church. The nature of this mission requires

election and the laying on of hands. (Acts 6, 1-6). Peter as head of the original college

enjoys a primacy, and the Petrine ministry is to confirm the unity of the communio. (Mt

16, 17-19).

The continuity of community, sacrament, and mission requires both an inner

meaning and outward form. The outward form and juridical character guarantee the

continuity of the revelation of Jesus. For Eugenio Correco, the unity between the

outward form and inner meaning constitutes the unity of law and theology. The attempt
 4

to express sacred law, which emanates from Word and sacrament, in human laws remains

always less than perfect. For this reason, the Church must exercise vigilance that an

excess of canon law does not diminish the inner spirit.

Although the legal form is evident from the very origins of the Church, it would

be overstating the issue to suggest that canon law existed in the sense of a set of complete

and coherent principles of law. (See separate article on the History of Canon Law). Not

until the third quarter of the eleventh century did canon law emerge as a distinct juridical

science. This medieval development permitted the use of critical scholarly methods in

the formation of church law. Nonetheless, starting with the Council at Jerusalem,

recorded in Acts 15, and continuing through the first several centuries, Church legislators

adopted specific norms intended to address pastoral situations. The origins of the word

“canon” may be traced to the Council of Nicea in 325, when the decrees of the council

were stated in legal form known by the Greek καήσή. This word means a measure or rule

that binds in conscience and through the use of authoritative censure. Ecclesiastical law

thus became known as canon law. In order to understand the modern form of canon law,

it is necessary to review some historical and methodological features of its more recent

development. The review of the development of the last hundred years demonstrates the

influence of secular systems of law on canon law as well as the Church’s determination

to preserve the unique nature of canon law as the unity of law and theology.

III. Twentieth Century Codifications

Perhaps the most important development in the history of law during the twentieth

century was the increasing reliance of the nation states on codes of statutory law. Law in

the Catholic Church was no exception to the development. On March 4, 1904, Pope Pius
 5

X announced the creation of a commission of cardinals to design one authoritative

collection of canon law for the Latin Church. Until this time, the foundational body of

canon law remained the medieval Corpus Iuris Canonici, a vast collection of canonical

and theological materials that, even in the 1582 edition approved by Pope Gregory XIII,

could hardly have been said to constitute a coherent unitary codification of law for the

universal Church. The monumental task of producing the first modern codification of

canon law took thirteen years to complete. The drafting process included a series of

consultations with bishops and religious superiors throughout the world as well as a

scientific method of examining the responses from the consultation and synthesizing

them with the relevant provisions of the then extant ancient, medieval and modern canon

law. Cardinal Pietro Gasparri accomplished the lion’s share of this prodigious work. The

first modern codification of canon law was promulgated by the successor to Pius X, Pope

Benedict XV, on Pentecost Sunday, May 27, 1917, and went into effect the following

Pentecost, May 19, 1918. (17 CIC). The so-called Pio-Benedictine Code consisted of

2,414 canons that were divided into five books: General Norms, Persons, Things,

Procedures and Penalties. Consistent with the wider developments in approaches to

legal systems at the start of the twentieth century, the 17 CIC represented a central,

coherent, and clear system of law for the Latin Church.

As with any system of statutory law, the 17 CIC required periodic revision. Pope

Benedict established the Pontifical Commission for the Interpretation of the Code of

Canon Law to incorporate revisions, modifications, abrogations, deletions, and additions

to the 17 CIC. Law constantly evolves as it attempts to respond to concrete

circumstances not contemplated or provided for by the legislative authority in the original
 6

statute. In the decades following the promulgation of the 17 CIC, new statutes along with

interpretations and clarifications of the existing statutes grew so numerous that eventually

the printed volume in which they appeared was more lengthy than the original 1917

statute. In 1936, for example, the Congregation for the Sacraments issued the Instruction

Provida mater Ecclesia, which provided new regulations on the annulment of marriage.

By the mid-point of the twentieth century, canon law was once again developing into a

somewhat confusing and unwieldy body of law. Not only changes in the law itself, but

also new theological and pastoral insights called for a revised code.

On January 25, 1959, at the Basilica of Saint Paul outside the Walls, Pope John

XXIII announced his intention to convoke the Ecumenical Council. At the same moment

that he proposed Vatican II, the Pontiff also called for the necessary revision of the Code

of Canon Law. The revision of the canon law was thus linked to the ecclesial reform of

the Ecumenical Council. Although Pope John XXIII inaugurated the process when he

established the Pontifical Commission for the Revision of the Code of Canon Law after

the first session of Vatican II, the task of revision was delayed until the completion of the

Ecumenical Council. A few days prior to the formal close of the Council in November

1965, Pope Paul VI appointed seventy consultors to assist the cardinal members of the

Pontifical Commission. Pope Paul VI insisted that the revised Code of Canon Law

would “accommodate canon law to the new way of thinking of Vatican II.” This new

way of thinking concerned the nature and end of canon law. For Pope Paul VI, the nature

of canon law was “to express more clearly the doctrinal and disciplinary thrust of the

Council.” In addition to being consistent with modern legal science, canon law was to

have a theological and pastoral nature. Canon law was to reflect gospel charity and
 7

canonical equity. It was to serve as assistance to the people of God in knowing God’s

saving mysteries. Not only would the new law afford an ordered ecclesial life, but its

ultimate end remained the salvation of souls.

The process for the revision of the new Code of Canon Law spanned two decades.

It involved numerous consultations with bishops, religious superiors, theologians, and

canonists through the Church. It was informed by exegetical, historical, comparative, and

textual criticism. The science of the legal technique was intended to incorporate the

various theological and pastoral perspectives evident in the official documents of Vatican

II. Although a great deal of this work was completed during the pontificate of Pope Paul

VI, his successor, Pole John Paul II, guided the final years of the revision process.

Shortly after he was elected to the Petrine ministry, John Paul II affirmed the nexus

between Vatican II and the new Code of Canon Law. He desired to “bring the Church’s

legislation into harmony with the broadened understanding of the Church as found in the

Vatican Council.” On January 25, 1983, twenty fours years to the date of John XXIII’s

announcement, John Paul II promulgated the revised Code of Canon Law for the Latin

Church. The Code went into effect with force of law on the first Sunday of Advent,

November 27, 1983. The 83CIC consists of 1752 canons, organized into seven Books:

General Norms, The People of God, The Teaching Function of the Church, The

Sanctifying Function of the Church, The Temporal Goods of the Church, Sanctions in the

Church, and Processes. This second comprehensive codification of the twentieth century

testifies to the Church’s continuing commitment to a legal system characterized by

statutory law. In a testament to the unity of law and theology, John Paul II referred to the

83 CIC as “the final document of Vatican II.”

 8

Even as the revision for the 83 CIC was underway, Pope Paul VI had also called

for a Code of Canon Law for the Eastern Churches. Earlier in the twentieth century, the

benefits of the 17 CIC encouraged discussion about a similar codification of Eastern

canon law. In 1927, Pope Pius XI established a preparatory commission, and in 1935, the

Pontifical Commission for the Redaction of Eastern Canon Law. Based upon a 1948

draft prepared by the Commission, Pope Pius XII promulgated four parts of the new

statutory law for the Eastern Churches, but only 1574 of the proposed 2666 were

ultimately promulgated. Pope John XXIII apparently elected not to promulgate the

remaining canons as the Eastern canon law should also reflect the ecclesiastical renewal

of Vatican II. On June 10, 1972, Pope Paul VI established the Pontifical Commission for

the Revision of the Code of Eastern Canon Law. The preparation of the Eastern Code

involved a process of consultations and critical methodology similar to that employed for

the 83 CIC. On October 18, 1990, Pope John Paul promulgated the Codex Canonum

Ecclesiarum Orientalium. The CCEO acquired force of law on October 1, 1991. It

contains 1546 canons that are divided into thirty titles in accord with the classical

division of ancient Eastern canonical collections. The CCEO witnesses to the diversity

and unity of the Catholic Church, which Church consists of the communion of particular

churches. The promulgation of the CCEO in the last decade of the twentieth century

testifies that within less than one hundred years, the entirety of the Catholic Church has

adopted centralized codifications of statutory law as the primary manifestation of the

Church’s juridical character.

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IV. Other Sources and Types of Canon Law and the Interrelation of Laws

The 83 CIC and CCEO constitute the fundamental universal law of the Catholic

Church. Section one of c. 12, 83 CIC, states that the universal law binds all Catholics for

who it was intended, and as c. 1, 83 CIC, indicates, this Code is universal law for the

Latin Church . The CCEO constitutes universal law for all the individual churches that

comprise the Eastern Church. Although the Western and Eastern Codes constitute the

two major bodies of universal law in the Catholic Church, canon law also exists in a

variety of other universal laws, particular laws, interpretations, instructions, protocols,

liturgical laws, concordats, and customs. For this reason it is important to recognize the

varieties of levels and types of canon law.

A. Universal and Particular Law

First, universal law may be made by an Ecumenical Council, the Roman Pontiff,

the College of Bishops with the Roman Pontiff at its head, the bishops of the Eastern

Church with the approval of the Roman Pontiff, or a Dicastery of the Roman Curia acting

in the name of the Roman Pontiff and with his approval. Universal law is not limited to

the 83 CIC and CCEO. For example, pursuant the c. 29, 83 CIC, a Roman Congregation

might issue a general decree on some specific matter that constitutes universal law.

Second, particular laws are laws directed to a specific portion of the people of

God. Section one of c. 13, 83 CIC, states the presumption that particular laws are

geographic. A particular law is geographic, in that it pertains to all those persons who

live in a particular geographic territory. For example, a particular law might modify the

requirements of universal law with regard to holy days of obligation or for fast and

abstinence in a specific geographic region. Alternatively, a particular law may be

 10

personal. Personal particular law pertains to the members of a special group. For

example, juridic persons are entitled to establish their own statutes (particular law) that

must be approved by the competent ecclesiastical authority. (C. 117, 83 CIC.) The

individual Eastern churches enjoy the right to make their own particular law. Likewise,

diocesan bishops also have the legislative power to promulgate particular law for their

dioceses. (C. 391 § 1, 83 CIC).

Third, Cc. 12 and 13, 83 CIC, offer some specific rules with regard to whom

particular law binds. Section two of c. 12, 83 CIC, acknowledges that all who are present

in a territory that is exempt from a provision of universal law enjoy the exemption.

Section three of the same canon stipulates that law established for a particular territory

binds anyone who has a domicile or quasi-domicile in the territory and is actually

residing in the territory. (See separate entry on Domicile and Quasi-Domicile).

Fourth, Section two of c. 13, 83 CIC, establishes specific rules for the application

of particular law to travelers and transients. When the traveler is absent from the territory

where the traveler has domicile or quasi-domicile, the traveler is not bound by the

particular law of the place where the traveler has domicile or quasi-domicile. However,

the traveler would continue to be bound if transgression of the particular law of the

territory of domicile or quasi-domicile would cause an injury even though the traveler is

not present in the territory. On the other hand, personal particular law binds the person

without regard to geographic location. A traveler is not bound by the geographic

particular law of the place in which the traveler happens to be present. However, the

traveler is bound if the geographic particular law preserves public order, regulates legal

formalities connected with contracts, bequests, procedural law, or pertains to land,

 11

buildings, and any other property that is not movable. Pursuant to section three of c. 13,

a transient, who is a person without a domicile or quasi-domicile, is bound by both

universal and particular law which are in force in the territory in which the transient is

present.

Fifth, particular law may be referred to as special law. C. 20, 83 CIC, mentions

both particular and special law. In comparison, c. 1493 § 2, CCEO, uses only the term

particular law and clarifies that the term means all particular norms. At the same time, the

meaning of special law is not unequivocal. Apostolic Constitutions, Instructions,

Interpretations, Protocols, and other documents from the Holy See are sometimes referred

to as special law. For example, the 1996 Universi Dominici gregis is a proper law

promulgated by Pope John Paul II to govern the special situation of the election of the

Roman Pontiff. Such documents issued by the Holy See may also enjoy the force of law

in regard to some particular matter and may be either universal or particular in scope.

(Cc. 29-34, 83 CIC).

B. Doctrinal and Disciplinary Law

A distinction may be drawn between doctrinal and disciplinary law. Doctrinal

law contains some specific doctrinal point. It was a methodological option in the design

of the 83 CIC and CCEO to start major sections and titles of the Code with almost

verbatim quotations of some doctrinal or pastoral provision from one the sixteen

documents of Vatican II. Not all the doctrine or moral theology of the Catholic Church is

expressed in canon law. When a canon does articulate a doctrinal point, it is doctrinal

law. In contrast, disciplinary law sets forth some practical norm of action that explains

and urges the spiritual good of the faithful. Book IV of the 83 CIC contains many
 12

disciplinary laws that regulate the reception of the Sacraments, such as the juridic form

and impediments to the celebration of Holy Matrimony. Such disciplinary laws are

necessary to the order of the ecclesial community and may be distinguished from

doctrinal law that expresses what the community believes.

C. Liturgical Law

The 83 CIC and CCEO do not generally establish rules to govern the celebration

of the Church’s Liturgy and Sacraments. (C. 2, 83 CIC). Instead, the universal law

defers to the rules and rubrics found chiefly in the official Roman liturgical books.

However, Book IV of the 83 CIC and title XVI of the CCEO contain rules that pertain to

the celebration of the Sacraments, sacramentals, and other ecclesial prayer. There are

also non-Roman rites in both the Eastern and Latin churches with their own proper

liturgical laws. The liturgical books themselves are considered to form part of canon law

and to constitute norms with full canonical force. However, it must be kept in mind that

some of the liturgical norms are facultative in that they offer a variety of options or non-

preceptive in that they are only directive guidelines. This variety is one of the reasons

why the liturgical norms are not encoded in the universal law. Such norms do not easily

fit into the meaning of proper law as it described in Cc. 29-34, 83 CIC.

D. International Law

The Holy See is an international juridic person whose territory of the Vatican City

State enjoys sovereignty under international law. C. 3, 83 CIC, recognizes the right of

the Holy See to enter into treaties and pacts that enjoy force of law. An agreement

between the Holy See and a sovereign state is known as a concordat. There are also

partial agreements between the Holy See and some other international body known as
 13

accords, modi vivendi, and protocols that enjoy force of law. Such agreements may

secure the rights of the Church in a particular country to worship, education, property,

and the regulation of marriage. Pursuant to a concordat with the Holy See, a national

government may enjoy the right to be notified of the appointment of a bishop prior to its

official announcement. While they may be properly described to constitute valid law,

such agreements, nonetheless, do not depend for their validity on the Code of Canon

Law.

E. Custom as a Source of Law

In addition to statutory law, custom has long been recognized in the Church as a

valid source of canon law. The principle difference between law and custom is that law

flows from a proper ecclesiastical authority who enjoys legislative power while custom

derives from the community. Custom is often unwritten, but the fact that it is written

down, does not change its nature as custom. C. 26, 83 CIC, stipulates that a custom

which is contrary to canon law obtains the force of law only after it has been observed for

thirty continuous and complete years. The canon also permits a centenary (one hundred

continuous and complete years) or immemorial custom (as long as anyone in the

community can remember) to prevail against a provision of canon law even when the

provision contains a clause that prohibits future customs. Any community that is capable

of receiving law in the Church is also capable of forming a custom. Although the clear

development of canon law during the twentieth century has been the legislation of

statutory law, the fact that canon law continues to recognize custom as a legitimate

source of law attests to the dignity that the canonical tradition attributes to the role of

local communities.
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F. The Canonization of Civil Law

C. 22, 83 CIC, recognizes that canon law yields to civil law in certain instances.

This is known as the “canonization” of the civil law. To mention but one example,

section one of c. 1282, 83 CIC, requires that state statutes of labor law and policy be

meticulously observed together with the Church’s own social teaching in the Church’s

employment policies. The Church employer is thus bond by canon law to follow the civil

legislation that might for example establish a minimum wage or social security. Of

course, it may well be the case that the social teaching of the Church requires even

greater benefits that the civil law requires. Canon does not yield to civil law in general,

but only in certain matters defined by the canon law itself. When the civil law conflicts

with either divine or canon law, the canon law prevails over the civil law. C. 22 requires

that the effects of civil law be observed in canon law with the same effects, and in this

sense, the effects of the civil law are canonized. In other words, the effects of the specific

civil law become part of the canon law. However, the canon law sometimes defers to the

effects of civil law without incorporating the civil law into canon law. For example, c.

1762, 83 CIC, requires canon law to respect the merely civil effects of marriage

including matters such as custody of children, child support, and distribution of marital

assets following divorce or separation. Although recognizing that a divorce in civil law

may be necessary to protect certain legal rights of one of the spouses or children, the

canon law is not incorporating the civil law on divorce into the law of the Church.
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G. Interrelation of Laws

Finally, one must consider the interrelation of the various forms of canon law.

First, as discussed below, the principle of the hierarchy of laws requires that no provision

of canon law may be contrary to divine or natural law. C. 11, 83 CIC, reflects the

principle when the canon states that merely ecclesiastical positive law binds only those

who are members of the Church. Second, there is the issue raised by the promulgation of

a later law on a prior one. C. 20, 83 CIC, and c. 1502, CCEO, express the rule for the

complete revocation (abrogation) of one law by another and the partial revocation

(derogation) of one law by another. A subsequent law abrogates or derogates from an

earlier law if it expressly states the revocation or it completely re-orders the matter of the

earlier law. The revocation of one law by another then may be expressed or tacit.

Express revocation is obvious from the plain meaning of the provision. (C. 17, 83 CIC).

Implicit or tacit revocation occurs when the newer law completely re-orders the matter of

the older law. In this instance, the two laws are so contradictory that they cannot both

serve as a guide for the ecclesial community. When two laws are so contradictory that

they may not co-exist, the new law revokes the older law. The rule for revocation also

provides that a universal law never revokes, either by abrogation or derogation, a

particular law unless the new universal law expressly provides otherwise. In the

interrelation of laws, the universal law of the Church is guided by the principle of respect

for the relative autonomy of local communities.

V. Canonical Equity, Dispensation, Exception, and Privilege

A. Canonical Equity
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During the post-Vatican II process for the revision of canon law, Pope Paul VI

urged that the re-designed law be imbued with a sense of canonical equity. The final

phrase of the 83 CIC urges that the law “be applied with due regard for canonical equity

and the salvation of souls, which is always the supreme law of the Church.” (C. 1752, 83

CIC). Canonical equity enjoys a rich historical development tracing its roots to Greek

and Roman antiquity. Gratian identified equity with the supreme ideal of justice. (D. 1,

c. 7). Saint Thomas Aquinas used the terms equity and epieikeia interchangeably. In

Thomistic thought, the terms refer to a natural equity that corrects the law in some

situation where the strict application of law would result in an injustice. Saint Thomas

permitted an application of equity when it advanced the common good. (Summa

Theologica II-II, 120, 1; I-II, 96, 6). Later, F. Suarez would argue that the individual

good was an inherent aspect of the common good. (De legibus et legislatore Deo, 6, 8, 1

& 2; 1, 7, 3). The natural equity of Saint Thomas may be distinguished from canonical

equity. In a phrase that he attributed to Saint Cyprian, the medieval canonist John of

Ostia, “Hostiensis,” (ca. 1200-1271) described canonical equity as “justice tempered by

sweet mercy.” (Commentaria in V Decretaium Libros, I, c. 11, 10, De transactionibus, I,

36). The notion of canonical equity includes both the ideals of natural justice and

evangelical mercy. Canonical equity points to the limits of the law. Attempting to

convey the law’s inner meaning, the outer juridical formulation of the law may fall short

in a given instance. Canonical equity is the juridical principle that functions to bridge the

gap between the letter and the spirit of the law.

Canonical equity may be written or unwritten. Written equity is expressed in the

statute itself, and the 83 CIC contains seven instances of expressed written equity. (Cc.
 17

19, 221 § 2, 271 § 3, 686 § 3, 702 § 2, 1148 § 3, and 1752). For example, c. 19 of the 83

CIC identifies canonical equity as a source of suppletory law when a lacuna of law exists.

Written equity may also be implied from the meaning of a statute. Implicit written equity

is refered to as the equitable character of the statute. Unwritten canonical equity is an

appeal to the intent of the legislator when an application of law would violate that intent.

Canon law presumes that certain qualities remain characteristic of the mind of the

lawgiver. Among these characteristics are the intention to be intelligent and humane, to

act in conformity with the common good, to follow divine law on the basis of faith, to

conform with the requirements of natural law through the use of practical reason, and to

imitate the charity, mercy, and love of Christ. Confronted with an unjust or uncharitable

result from the application of law, canonical equity permits one vested with governing

power to correct the problem on the ground that such a correction reflects the legislative

intent of the statute. Unwritten equity also informs those who are vested with discretion

in the exercise of the governing power. Additionally, it serves as a general interpretative

principle of canon law as an aspect of the legislator’s intent mentioned in c. 17, 83 CIC.

The strong role played by canonical equity distinguishes canon law from secular systems

of law. It requires that statutes be interpreted in accord with the Christian understanding

of what it means to be a human being.

B. Dispensation, Exception, and Privilege

This difference between canon law and secular systems of law is further evident

in the canonical system of dispensation, exception, and privilege. First, C. 85, 83 CIC,

defines a dispensation as a relaxation of an ecclesiastical law in a particular case. One

may never be dispensed from the requirements of divine and natural law. However, one
 18

who has executive power such as the diocesan bishop, the vicar general, or a major

superior of a religious community, or one to whom the power has been delegated, such as

a priest or deacon, may dispense form the requirement of merely ecclesiastical law under

certain conditions. The dispensation is a formal acknowledgment of the function of

unwritten equity in the system of canon law. The dispensation is granted because it is

thought to conform to the benign mind of the lawgiver.

Second, c. 18, 83 CIC, calls for laws that grant an exception to be interpreted

strictly. It is also a characteristic of the lawgiver’s mind not to undermine the law by

granting exceptions so liberally that the exception overcomes the law. Section one of c.

1536, CCEO, refers to exceptions in terms of the common good.

Third, section one of c. 76, 83 CIC, describes a privilege as a favor to a real or

juridic person granted by one who has legislative power. Traditionally, a privilege has

been viewed as a private law granted with a benevolent intention. However, pursuant to

c. 76, the legislator may also delegate one who has executive power to grant a privilege.

A privilege is presumed to be perpetual, in the sense that it continues as long as the

beneficiary exists on earth. (C. 78 § 1). Canon 79, 83 CIC, permits the authority who

granted a privilege to revoke it. Generally, a privilege does not cease when the office of

the grantor ceases, unless in granting the privilege the grantor has expressly stated such a

limitation. (C. 81, 83 CIC).

Although they represent distinct canonical forms, the dispensation, exception and

privilege have been said to function either apart from the law (praeter legem) or against

the law (contra legem). At the same time, each is a feature of the system of canon law.
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As with the principle of canonical equity, these canonical forms attest to the legislator’s

intent to imbue canon law with justice, mercy, and love of Christ.

V. Divine, Natural, and Positive Law: The Objectivity and Historicity of Canon Law

The methodology of contemporary canon law may be traced to the eleventh and

twelfth centuries when canon law emerged as a distinct science. The re-discovery of the

sixth century legal documents compiled under the Emperor Justinian afforded the

medieval canonists a direct font into classical Roman law. Much of the scholarly ferment

was associated with the law centers at the new universities in Bologna, Paris and Oxford.

Perhaps the most significant example of the new methodology, Gratian’s Decretum

culled canons of ecumenical and local councils, decrees of the Roam Pontiffs, the

rediscovered Roman law, writings of the Fathers, rules contained in various penitentials,

and virtually any other source with a relation to ecclesiastical law. Containing some

thirty-eight hundred legal texts, the methodology of the Decretum attempted to reconcile

contradictions among the texts, pointed to contradictions thought to be irreconcilable,

offered generalization and exceptions, and often harmonized the generalizations.

A feature of the methodology distinguished between divine, natural and positive

law. According to the Decretum, divine law represents the will of God manifested in

revelation such as the Decalogue drawn from Sacred Scripture. Natural law also

corresponds to the divine will, but in distinction to revelation, it is discernable through

the correct use of human reason. (D. 9 c. 1). The positive law is human law. In accord

with the principle of the hierarchy of laws, positive may never conflict with divine or

natural law. Sometimes the positive law is an application of a provision of divine or

natural law, and at other times, positive law means simply man-made law. The Decretum
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also recognizes custom as a source of canon law, and concludes that it must yield to

divine, natural and positive law. (D. 11 p. 1 cc 1-4). Given these types of law, the

Decretum identifies immutable principles of law, as well as law shaped in response to the

particular circumstances of time, place, and persons.

The methodology of the classical medieval canonists endowed canon law with an

enduring formula for the consideration of transcendent principles and historical

development. Canon law must always be in accord with the immutable truths of divine

and natural law. The immutable truth, encoded in canon law, affords it with an

objectivity that mere historical circumstances cannot alter. At the same time, law

develops in response to historical circumstances. As the process of statutory codification

of canon law during the twentieth century demonstrates, ecclesiastical law, like the

Church itself, remains always in need of reform (semper reformanda). It must be

remembered, with regard to objectivity and historicity, that law depends on language.

The meaning of language is itself shaped by time and place. The text of any specific

statutory provision in canon law represents a human attempt to codify some aspect of the

mystery of the Church. As it depends on mere human language, positive law never fully

expresses or exhausts the truth of divine mystery.

VII. Canon Law and Theology

The ultimate end of canon law, which is the salvation of souls, raises an important

issue about the proper relationship between theology (doctrine of faith) and law (norms

of practical action). In promulgating the 83 CIC, Pope John Paul II stated: “In the

mystery of the Church the law has the function of sacred symbol that signifies and

promotes the spiritual life of Christians.” (SDL). A symbol constitutes a unity of

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outward external language and an inner meaning. Canon law is a sacred symbol because

its external formulation expresses an inner theological meaning. Three clearly erroneous

approaches to the relationship between canon law and theology involve legalism,

antinomianism, and positivism.

Legalism results from an approach that places the law above the person and

community. It sees law as the end in itself, and often is expressed through an

overwhelming body of rules and regulations that detract from the deeper meaning that the

law intends to convey. The symbolic function of the law is lost in the primary and

overriding requirement that the law be obeyed. In the Gospels, Jesus clearly rejects a

legalistic approach to religion. (Lk 6, 6-10; 12, 37-52). Some aspects of the Church’s

life in the decades prior to Vatican reflected a legalistic approach to law. Legalism often

calls for the strictest application of the letter of the law in all circumstances without

regard to the dignity of the human person or the flourishing of communal life.

Antinomianism rejects the validity of law. It views the law as an obstacle to

individual freedom, which it defines as the absence of constraint upon subjective

preference. The law may be understood as an instrument of oppression in the hand of the

powerful against the powerless. As mentioned at the outset of this article, antinomianism

was evident in the approach of certain nineteenth century biblical and legal scholarship,

which painted a portrait of Jesus as in opposition to institutional and legal forms. During

the thirteenth century, the members of the Franciscan movement that adhered to the

spirituality of Joachim of Fiore adopted antinomianism in their rejection of the need for

ecclesial structure, sacraments, and governance. Some interpretations of Vatican II

fostered antinomianism in the life of the Church during several decades that followed the
 22

Ecumenical Council. Antinomianism ignores the necessary and proper role of law in

establishing the ecclesial order so that individuals and communities might grow and

prosper.

Positivism involves an approach to law that calls for the separation of law from

moral value. Legal positivism finds its philosophical origin in a scientific methodology

that purports to recognize only facts that can be empirically verified. Legal positivism

demands law’s autonomy from any understanding of the human person or community

that does not comport with the strict rules of rationality. A true legal positivist eschews

values external to the law such as the values that might be derived revealed religious

truth. The approach is also evident in a particular school of canonical jurisprudence,

originating in twentieth century Italy that viewed canon law as the same as civil law.

According to this school, the theological meaning of the canon law is “meta-legal” in that

it falls outside the parameters of what may rightfully considered by the science of law.

Although such a positivist approach is evident in the law of many secular states, it has no

place in canon law. Legal positivism denies the role of law as sacred symbol and ignores

as irrelevant its inner theological meaning.

A variety of canonists have attempted to address the relationship between

theology and canon law in a way that appreciates its distinct nature and ends. After

World War II, Klaus Mörsdorf, teaching in Munich, contended that canon law was a

theological discipline with a juridical method. Eugenio Corecoo, who was student of

Mörsdorf and taught at Fribourg, theorized that canon law should be seen no so much as

an ordinance of reason but more as an ordinance of faith. Eduardo Labandeira, a canonist

at Navarra, focused on the sacramental character and special mission of the Church and
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stressed the role of ecclesiastical authority in the provision, interpretation, and application

of canon law. William Bertram, S.J., observed that canonists study the external juridical

realities of philosophical and theological truths. More recently, Gianfranco Ghirlanda,

S.J., has stressed that canon law reflects the mystery of communio in the Church. Finally,

Ladislas Örsy, S.J., has proposed a Eucharistic theory of canon law in conjunction with

the idea of faith seeking understanding.

While no one theory of the relationship between theology and canon law has yet

proved authoritative, the following three principles seem significant to the ongoing

discussion. First, theology without law results in antinomianism. It deprives the

ecclesiastical community of the instrument that functions to secure an ordered, just, and

peaceful life. Second, law without inner theological meaning sets the conditions for

legalism. Such a law is bereft of the Gospel meaning and fails to assist individuals and

the Church in knowing the saving mystery of God. Although it is a distinct disciple from

theology, canon law as the juridical science remains always closely related to theology

and at the service of the Church. Third, canon law should retain its status as a distinct

discipline from theology. However, canon law functions as a bridge between theology

and norms for practical action. As a bridge discipline, canon law relies on practical

reason and juridical methodology to design the external language of the law that

expresses its inner theological meaning. The inner theological meaning is meant in a

broad sense. It encompasses not only the transcendence but also the immanence of all the

best qualities of what it means to be human.

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VIII. Law and Anthropology

On numerous occasions, Pope John Paul II focused attention on the relation

between canon law and anthropology. As intended by the Pope and twentieth century

Catholic thinkers, the term “anthropology” refers to the attempt to uncover the essential

characteristics of what it means to be human from philosophical and theological

perspectives. The Vatican II document, GS, 14, contains a theological anthropology

based upon the Genesis account. It includes the elements of creation in the likeness of

God, fall, redemption, and eschatological hope. The encyclical, Fides et Ratio, expresses

elements of philosophical anthropology. It describes the human person as characterized

by the intellect’s love for truth and the free will’s desire to trust. The fresh

anthropological perspective that emerged in Catholic twentieth century thought expresses

transcendent and imminent dimensions of human existence. The love of truth and desire

for trust are characteristic anthropological traits drawing the human person towards the

transcendent mystery of God. Complementing the transcendent dimension, the

anthropology also focuses on the dignity of the human person who finds fulfillment in the

here and now through participation and acting in solidarity with others. The

anthropological elements of human reason and freedom remain essential components of

canon law.

The first element of Saint Thomas Aquinas’ famous definition of law is that it is

“ordinance of reason.” (Summa Theologica, I-II, 90, 4). In the Catholic understanding of

the human person, reason is not merely a cognitive abstract mental function of the

intellect. Rather, human reason derives from the harmony of somatic, emotional, and

higher cognitive functions. Practical reason, which is reason for choice, requires the
 25

unity of the human person as body and soul exercising critical awareness based on the

whole of human experience. It is an expression of the love for truth that encourages the

intellect to know the human good. Practical reason is the anthropological foundation for

the discernment of the basic goods and principles of natural law. It is essential to the

inner meaning of canon law. As a complement to practical reason, the inner meaning of

canon law also depends on speculative reason as a form of human knowing. Speculative

reason opens the human person to the gift of faith. In the interior life of the human

person, it raises the questions of infinity, mystery, communion, the sacred source or

creation, the limit of the self, and the holy beyond. Speculative reason also expresses an

aspect of the intellect’s love for truth. The intellect’s love can be satisfied only in the

inexhaustible divine mystery.

Another element of the Thomistic definition law is that it serves the common

good. The Catholic anthropological perspective draws a connection between human

freedom and the desire to trust in something greater than the self. Through the exercise

of free will, the person enjoys the capacity to constitute the self. This anthropological

focus rejects a philosophy of law that reduces the law to the power to enforce the will. It

suggests that human fulfillment is not found in autonomy alone but in the free choice to

participate and act in solidarity with others. Canon law attempts to reflect an inner

meaning attracting individuals to the common good. Theologically, the realization of this

human fulfillment has its only hope through the integration of the individual with others

into the reconciling love of the one Mystical Body of Christ. It is not radical individual

freedom that promises fulfillment but purification of the self through the all-embracing

love of Christ’s one unified body.

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The reception of law by the community depends on the law’s communication of

these fundamental anthropological elements of reason and freedom. The integration of

reason and freedom is evident in the supreme legislator’s decision to incorporate a list of

fundamental rights into the 83 CIC. (Cc. 208-231). The legislator’s decision represents a

response to the historical development in the area of human rights law. It also

corresponds to the natural goods and principles available through practical reason. It

respects the fundamental dignity of each human being as affirmed through speculative

reason and reflection on biblical revelation. It contextualizes the canonical discussion of

human rights not in terms of individual autonomy but in relation to the common good.

The relationship between law and anthropology evokes an understanding of canon law as

a sacred symbol based on the inner meaning of reason, faith, and freedom. Such a

relationship promises to be fruitful to the future of canon law and the Church.

BIBLIOGRAPHY

Correco, Eugenio, THE THEOLOGY OF CANON LAW: A METHODOLOGICAL QUESTION

(Pittsburg: Duquesne University Press, 1992).

Coughlin, John J., O.F.M., Canon Law and the Human Person, JOURNAL OF LAW AND
RELIGION 19 (2003-2004), 1-58.

Ghirlanda, Gianfranco, S.J., IL DIRITTO NELLA CHIESA MISTERO DI COMUNIONE (Milano:

Edizioni Paoline, 1990).

Metz, René, WHAT IS CANON LAW? (London: Burnes & Oates, 1960).

Örsy, Ladislas, S.J., THEOLOGY AND CANON LAW (Collegeville, Minnesota: Liturgical
Press, 1992).

Ratzinger, Joseph, CALLED TO COMMUNION (San Francisco: Ignatius Press, 1996).