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Canon Law and Theology

  • Robert Ombres (a1) (a2)
Abstract

The relation of religious law to theology is basic to any faith community. In this article, chiefly in terms of Roman Catholicism, but it is hoped of wider application especially within Christianity, the relation of canon law to theology is examined through papal allocutions to the judges and other members of the Church court known as the Roman Rota. There are significant British links to the Rota before and after the Reformation. The 2009 allocution by Benedict XVI is the focus for considering the theological and normative authority of such allocutions. Pius XII has been one of the few canonists to become Pope in modern times, and the co-ordinated set of allocutions from 1945 to 1949 given by him to the Rota is therefore taken as the focus for reflecting on the nature and functions of canon law today. This involves the consideration of both theology and law, including secular law. The ecclesiological character of canon law will emerge as central.

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1 Sandberg speaks of religious law as ‘an umbrella category’, while not denying significant differences between religious groups. It is said that the study of religious law requires both law and theology, religious law being law but not just law: Sandberg, R, Law and Religion (Cambridge, 2011), p 189.

2 Evans, G, Law and Theology in the Middle Ages (London, 2002); Gerosa, L, Canon Law (London, 1996), pp 1227.

3 Somerville, R and Brasington, B, Prefaces to Canon Law Books in Latin Christianity (New Haven, CT, 1998), p 194. Stephen's Summa was of importance for jurisprudence, political theory and ecclesiology.

4 For a brief but nuanced characterisation of the French and Bolognese schools, see ibid, pp 174–180.

5 Wijlens, M, Theology and Canon Law (London, 1992), p 15. Wijlens identifies these ‘schools’ as that connected with the periodical Concilium, the lay Italian canonists, and the schools of Navarre and Munich.

6 The Report of the Anglican–Roman Catholic International Commission on the Theology of Marriage and its Application to Mixed Marriages, Anglican–Roman Catholic Marriage (London, 1976), pp 6 and 9.

7 Corecco, E, The Theology of Canon Law (Pittsburgh, 1992).

8 Gallagher, C, Church Law and Church Order in Rome and Byzantium: a comparative study (Aldershot, 2002).

9 Doe, N, The Legal Framework of the Church of England: a critical study in a comparative context (Oxford, 1996). Jones, R, The Canon Law of the Roman Catholic Church and the Church of England: a handbook (second edition, London, 2011) is a presentation that facilitates comparison.

10 Hill, M et al. ‘A decade of ecumenical dialogue on canon law’, (2009) 11 Ecc LJ 284328.

11 Corecco, The Theology of Canon Law, p 4.

12 All references to canons are to the 1983 Code of Canon Law, unless stated otherwise. For the sake of brevity, the Roman Rota will generally be called the Rota. Certain other higher courts have been called ‘Rota’, and for the present see M de la Puente Brune, ‘La naturaleza jurídica de la Rota Española’, (2002) 20 Cuadernos Doctorales 233–311.

13 The Canons of the Church of England (sixth edition, London, 2000) with supplements; Hill, M, Ecclesiastical Law (third edition, Oxford, 2007).

14 Logan, E (ed), The Medieval Court of Arches (Gateshead, 2005). The Court of Arches is for the province of Canterbury, the Chancery Court of York for that of York. The latter is presided over by the Auditor. The offices of Dean and Auditor must be held by the same person: M Hill, Ecclesiastical Law, p 60.

15 Re, N del, La Curia Romana (fourth edition, Vatican City, 1998).

16 Baker, J, Monuments of Endlesse Labours: English canonists and their work 1300–1900 (London, 1998), pp 2224; Helmholz, R, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004), pp 203 and 208ff.

17 Lyndwood, W, Provinciale (Oxford, 1679), p 82d, sv sufficientes inducias: ‘Et hoc tenent Domini de Rota sua Conclusione …’, is an example.

18 Ferme, B, Canon Law in Late Medieval England: a study of William Lyndwood's Provinciale with particular reference to testamentary law (Rome, 1996), p 54, n 59.

19 Baker, Monuments of Endlesse Labours, pp 18–24; Harvey, M, The English in Rome 1362–1420 (Cambridge, 1999), pp 132143.

20 Killermann, S, Die Rota Romana: Wesen und Wirken des päpstlichen Gerichtshofes im Wandel der Zeit (Frankfurt-am-Main, 2009) for the basic data. For Cardinal William Heard, see Schofield, N and Skinner, G, The English Cardinals (Oxford, 2007), pp 208–210; for John Prior see Noonan, J, Power to Dissolve: lawyers and marriages in the courts of the Roman curia (Cambridge, MA, 1972).

21 John Paul II, Apostolic Constitution Pastor Bonus (1988) 80 Acta Apostolicae Sedis (AAS) 841–930, articles 126–127. This was the first time the ‘auditors’ were called ‘judges’ in a legislative text. See also Bonnet, P and Gullo, C (eds), Le ‘Normae’ del Tribunale della Rota Romana (Vatican City, 1997).

22 Helmholz, The Canon Law and Ecclesiastical Jurisdiction, pp 210–211; Mendonça, A, Rotal Anthology: an annotated index of rotal decisions from 1971 to 1988 (Washington, DC, 1992); Palestro, V, Rassegna di Giurisprudenza Rotale nelle Cause Iurium e Penali (1909–1993) (Milan, 1996).

23 Conveniently available in translation: Woestman, W (ed), Papal Allocutions to the Roman Rota 1939–2002 (second edition, Ottawa, 2002). The allocutions in their original form are collected in Erlebach, G (ed), Le Allocuzioni dei Sommi Pontefici alla Rota Romana (1939–2003) (Vatican City, 2004). Subsequent allocutions in their original language are in the appropriate volume of AAS. Allocutions given between 1909 and 1939 do not survive in their entirety.

24 Pontifical Council for Legislative Texts, Dignitas Connubii: instruction to be observed by diocesan and interdiocesan tribunals in handling causes of the nullity of marriage (Vatican City, 2005). This edition has the official Latin text with an English translation.

25 The allocutions can be found in (1987) 79 AAS 1453–1459 and (1988) 80 AAS 1178–1185 respectively.

26 Benedict XVI, Allocution (2009) 101 AAS 125.

27 Fattori, G, Scienze della Psiche e Matrimonio Canonico (Siena, 2009), pp 394398, draws out these norms and adds others as necessarily implicit.

28 Paul VI, Allocution (1966) 58 AAS 152.

29 Nichols, A, The Shape of Catholic Theology (Collegeville, PA, 1991) offers this definition and unpacks its meaning.

30 John Paul II, Allocution, (1997) 89 AAS 487. The Pope refers to Dei Verbum (10), as he was to do again in 2005.

31 Fattori, Scienze della Psiche, presents a number of positions, and is a good starting point for reflection on the normativity of allocutions.

32 John Paul II, Allocution, (1984) 76 AAS 648.

33 Arrieta, J (ed), Ius Divinum (Venice, 2010) is the volume resulting from an international congress of canonists, and provides a vast amount of material on the subject.

34 Pius XII, Allocution, (1949) 41 AAS 604.

35 John Paul II, Allocution, (1980) 72 AAS 176; Pius XII, Allocution, (1942) 34 AAS 338–343; Fattori, Scienze della Psiche, pp 44–46.

36 Pius XII, Allocution, (1949) 41 AAS 604.

37 John Paul II, Allocution, (2005) 97 AAS 165–166.

38 Ibid. The Pope refers to Dei Verbum (10§2), Vatican II's dogmatic constitution on divine revelation.

39 Benedict XVI, Allocution, (2008) 100 AAS 87–88. Benedict XVI considers that allocutions to the Rota, with other interventions of the ecclesiastical magisterium on matrimonial juridical questions, are ‘an immediate guide’ for the workings of all Church courts because they provide authoritative teaching on the essentials of marriage.

40 U Navarrete, ‘Introduzione’ in Erlebach, Le Allocuzioni, pp 7–15.

41 J Llobell, ‘Sulla Valenza Giuridica dei Discorsi del Romano Pontefice al Tribunale Apostolico della Rota Romana’, (2005) 17 Ius Ecclesiae 547–564. Llobell sees a similarity between the normative force of allocutions and the category of ‘instructions’ covered by Canon 34.

42 M Ortiz, ‘Capacità Consensuale ed Essenza del Matrimonio’, (2009) 21 Ius Ecclesiae 484, n 9; for other contributions, see V De Paolis, ‘La Giurisprudenza del Tribunale della Rota Romana e i Tribunali Locali’, (2008) 18 Quaderni dello Studio Rotale 131–165; O Carulli, ‘Le Allocuzioni di Benedetto XVI alla Rota Romana’ in Kowal, J and Llobell, J (eds), Iustitia et Iudicium: studi di diritto matrimoniale e processuale canonico in onore di Antoni Stankiewicz (4 vols, Vatican City, 2010), vol III, pp 13611385.

43 Fattori, Scienze della Psiche, pp 389–398, discusses a number of authors, offers a variety of arguments in favour of the normativity of the allocutions, and is particularly attentive to the 2009 allocution. He takes Benedict XVI's words quoted in full in the text above as one of the most convincing arguments in favour of the juridico-normative efficacy of allocutions.

44 Navarrete, ‘Introduzione’, p 8, found in these four allocutions highly elevated thought and style.

45 Report of the Archbishops' Commission, Church and State (London, 1970), p 3.

46 Chenaux, P, Pie XII. Diplomate et Pasteur (Paris, 2003); Tornielli, A, Pio XII. Eugenio Pacelli: un uomo sul trono di Pietro (Milan, 2007). Of more specific relevance is Coccopalmerio, F, ‘Gli Interventi Magisteriali di Pio XII sul Diritto in Generale e sul Diritto Canonico’ in Cheneaux, P, L'Eredità del Magistero di Pio XII (Vatican, 2010), pp 319339.

47 For an outline of his canonical and curial career, see Fantappiè, C, Chiesa Romana e Modernità Giuridica (2 vols, Milan, 2008), vol II, p 1240. These volumes are indispensable for understanding how canon law was understood, made and practised from about 1563 to the 1917 Code, especially in Rome. Pacelli had studied and taught canon law at the Apollinare, an influential institution in the Roman canonical world: ibid, vol I, pp 131–132.

48 Pius XII, Summi Pontficatus, (1939) 31 AAS 413–453.

49 Pius XII, Allocution, (1939) n 232; L'Osservatore Romano, 2–3 October 1939, p 1.

50 Noonan, Power to Dissolve, p 382.

51 Cicognani had been teaching this in Rome, at the Apollinare, and his lecture notes were published in Latin as Ius Canonicum (2 vols, Rome, 1925), vol I, pp 50–51 (second, revised edition in English, Canon Law (Westminster, MD, 1934), pp 45–46).

52 Pius XII, Allocution, (1945) 37 AAS 260.

53 There is remarkable agreement between parts of the thought of Pius XII and a basic Church of England report on canon law, dating from 1947. The report's opening chapter is entitled ‘Law in the Church of Christ’, and it states that the right of the Church to make rules and regulations for its own members rests upon the commission given by Our Lord to his Apostles. Reference is made to a number of biblical texts. The report adds that it is also fitting that the Church, being a society that is the Kingdom of Christ and existing for the purpose of bringing humanity to everlasting life – a purpose far transcending that of all earthly societies – should designate as laws the rules and regulations that it makes through the authority bestowed on it by the King of Kings. See the Archbishops' Commission on Canon Law, The Canon Law of the Church of England (London, 1947), pp 3–4.

54 Pius XII, Allocution, (1946) 38 AAS 391. Cicognani, Canon Law (1934 edition), p 46, believed that the science of canon law and the legal sciences in general had a similarity in subject matter, community of principles, methods, terminology and reciprocal influence.

55 Report of the Archbishops' Commission, The Canon Law of the Church of England, p 4, states that the Church has authority to make rules, and that these will, among other things, prescribe what is to be done with those members of the Church, clerical and lay, who deny the Christian faith or transgress the moral law.

56 Pius XII, Allocution, (1946) 38 AAS 392. This Congregation is now called the Congregation for the Doctrine of the Faith, and its functions are stated in the Apostolic Constitution Pastor Bonus (1988), articles 48–55, with subsequent modifications.

57 Pius XII Allocution, (1947) 39 AAS 494. Again there is a remarkable similarity with what was said in the chapter on law in the Church of Christ by the Report of the Archbishops' Commission, The Canon Law of the Church of England, p 4: the Church exists to help all people to follow out the way of faith and the way of life which Our Lord brought to this world, and in the finding of which each will realise the meaning of true happiness.

58 In his 1944 allocution, Pius XII had said that ecclesiastical juridical activity must recognise that it has no other end than that of the Church; (1944) 36 AAS 290.

59 Pius XII, Allocution (1949) 41 AAS 494.

60 The Pope believed that juridical positivism was largely the responsibility of the nineteenth century, and if its consequences were delayed it was because our culture was still permeated by the Christian past, and because Christians almost everywhere could still have their voices heard in legislative assemblies. It took the coming of the totalitarian state with an anti-Christian stamp, not holding back in the face of a supreme divine law, to unveil the true face of juridical positivism.

61 My translation of the psalm (Psalm 119:86, 160) is of the Latin text as given by the Pope: ‘In aeternum, Domine, est verbum tuum, stabile ut caelum … Verbi tui caput constantia est, et aeternum est omne decretum iustitiae tuae’.

62 Matthew 16:16–20. In an earlier allocution, Pius XII had referred to his explanation in the encyclical Mystici Corporis of how the so-called ‘juridical Church’ is indeed of divine origin but is not the whole Church: Pius XII, Allocution, (1943) 35 AAS 193–248.

63 Pius XII, Allocution (1949) 41 AAS 608. The Report of the Archbishops' Commission, The Canon Law of the Church of England, p 3, moved along similar lines in stating that the jus canonicum possessed by the Church is not an unlimited authority but is circumscribed within definite bounds and determined by the place of the Church in the divine economy.

64 Ottaviani, A, Institutiones Iuris Publici Ecclesiastici (2 vols, Vatican City, 19581960) is perhaps the last major statement of the tradition. The first edition was published in 1925.

65 Grisez, G, The Way of the Lord Jesus: Christian Moral Principles (Chicago, 1983), p 13.

66 Corecco, E, ‘Theological justifications of the codification of the Latin canon law’ in Thériault, M and Thorn, J (eds), The New Code of Canon Law (2 vols, Ottawa, 1986), vol I, pp 6996.

67 Paul VI, Allocution, (1970) 62 AAS 111–118.

68 John Paul II, Allocution, (1990) 82 AAS 872–877.

69 Caparros, E, ‘Criminal law protection of the human rights in civil and religious societies’ in Duggan, P (ed), The Penal Process and the Protection of Rights in Canon Law (Montreal, 2005), pp 203234.

70 Crawford, J, The Creation of States in International Law (second edition, Oxford, 2006), pp 221230.

71 Agar, J Martin de, Raccolta di Concordati 1950–1999 (Vatican City, 2000) and I Concordati dal 2000 al 2009 (Vatican City, 2010).

72 Pius XII, Allocution, (1947) 39 AAS 494.

73 Pius XII, Allocution, (1947) 39 AAS 497.

74 Pius XII, Allocution, (1944) 36 AAS 289.

75 G Siviero, ‘Il diritto pubblico ecclesiastico: una disciplina canonistica tra passato e futuro’, (1993) 6 Quaderni di Diritto Ecclesiale 332–351 and (1996) 9 Quaderni di Diritto Ecclesiale 209–238. This is a historical and thematic overview.

76 Rivers, J, The Law of Organized Religions (Oxford, 2010), describes the position under English law.

77 McCrudden, C, ‘Religion, human rights, equality and the public sphere’, (2011) 13 Ecc LJ 2638.

78 Benedict XVI, Allocution, (2009) 101 AAS 125.

79 John Paul II, Allocution, (1995) 87 AAS 1014; also John Paul II, Allocution, (1996) 88 AAS 776.

80 Vatican II, Gaudium et Spes, n 12, in Tanner, N (ed), Decrees of the Ecumenical Councils (2 vols, London, 1990), vol II, p 1075.

81 There is a vast and sophisticated literature on natural law, an important recent contribution being Finnis, J, Natural Law and Natural Rights (second edition, Oxford, 2011). Finnis makes a point that is vital when discussing such a controversial subject: the fact that natural law can be understood, assented to, applied and reflectively analysed without referring to the question of the existence of God does not of itself entail (i) that no further explanation is required for the fact that there are objective standards of good and bad and principles of reasonableness (right and wrong), or (ii) that no such further explanation is available, or (iii) that the existence and nature of God is not that explanation (p 49).

82 Ibid, p 124.

83 Pius XII, Allocution, (1947) 39 AAS 495.

84 Pius XII, Allocution, (1949) 41 AAS 606.

85 Thus Canon 1163 §2 deals with marriages that are invalid because of an impediment of the natural law or of the divine positive law.

86 John Paul II, Allocution, (1984) 76 AAS 648.

87 Pius XII, Allocution, (1949) 41 AAS 607; John Paul II, Allocution, (2001) 93 AAS 363–364. Pius XII cited Romans 2:14–15 when referring to the law written by the Creator in the human heart, having already cited this biblical text in part in his 1945 allocution.

88 Paul VI, Allocution, (1971) 63 AAS 139, adopts an appreciative yet critical stance towards the Church's Roman and civil law heritage.

89 Gauthier, A, Roman Law and its Contribution to the Development of Canon Law (Ottawa, 1996), p 15.

90 de Paolis, V and D'Auria, A, Le Norme Generali (Rome, 2008), p 55.

91 Thus the 1990 Code did not follow the 1983 Code in its legislation on general decrees, general executive decrees, statutes, regulations and instructions: Nedungatt, G (ed), A Guide to the Eastern Code (Rome, 2002), p 810.

92 Coughlin, J, Canon Law: a comparative study with Anglo-American legal theory (Oxford, 2011). Interestingly, the author explicitly recalls the utrumque ius tradition. A good conspectus of jurisprudential ideas is Freeman, M (ed), Lloyd's Introduction to Jurisprudence (eighth edition, London, 2008).

93 Optatam totius, n 16 in Tanner, Decrees, vol II, p 956.

94 Ombres, R, ‘Canon law and the mystery of the Church’, (1996/1997) 62 Irish Theological Quarterly 200212; Hite, J and Ward, D, Readings, Cases, Materials in Canon Law (revised edition, Collegeville, PA, 1990).

95 John Paul II, Apostolic Constitution Sacrae disciplinae leges, (1983) 75 AAS Pars II pp vii–xiv.

96 Paul VI, Allocution, (1973) 65 AAS 97–98. In part, Paul VI was quoting from Vatican II's dogmatic constitution ‘On the Church’, n 1; see also his allocution, (1977) 69 AAS 147–153.

97 Pius XII, Allocution, (1947) 39 AAS 495 and 497.

98 Pius XII, Allocution, (1945) 37 AAS 259.

99 Corecco, The Theology of Canon Law, p 137.

100 Pius XII, Allocution, (1945) 37 AAS 261.

101 Corecco, The Theology of Canon Law, p 75.

102 De Paolis and D'Auria, Le Norme Generali, p 173.

103 Pius XII, Allocution, (1949) 41 AAS 608.

104 V Bertolone, La Salus Animarum nell'Ordinamento Giuridico della Chiesa (Rome, 1987), pp 30–31 (Bertolone relies on Pius XII's teaching, including the 1945 allocution, for most of these specifications); M Wijlens, ‘Salus animarum suprema lex: mercy as a legal principle in the application of canon law?’, (1994) 54 The Jurist 560–590.

105 Ombres, R, ‘Canonical equity’ in Arrieta, J (ed), Ius Divinum, p 552.

106 Ciprotti, P, Lezioni di Diritto Canonico: parte generale (Padua, 1943). John Paul II, Allocution, (1993) 85 AAS 142–143, commented on how rotal jurisprudence had anticipated in some matters what was later codified while proceeding within the limits of divine natural law, which cannot be trespassed. He also said that the Rota had to safeguard the immutability of divine law.

107 Navarrete, ‘Introduzione’, p 11. Cardinal Navarrete (1920–2010) made important contributions to the new codification of matrimonial law.

108 John Paul II, Allocution, (1996) 88 AAS 776.

109 Pius XII, Allocution, (1946) 38 AAS 397.

110 Paul VI, Allocution, (1970) 62 AAS 112.

111 Paul VI, Allocution, (1973) 65 AAS 98. This brief summary of the allocution does not do justice to all that is relevant to the theological nature of canon law.

112 F Urrutia, ‘Aequitas canonica’, (1990) 63 Apollinaris 205–239.

113 John Paul II, Speech of presentation to the Synod of Bishops, (1991) 83 AAS 491. For the term ‘merely ecclesiastical laws’ see Canon 1490 of the 1990 Code and Canon 11 of the 1983 Code.

114 This twofold approach was applied in detail by Ombres, R, ‘Faith, doctrine and Roman Catholic canon law’, (1987) 1 Ecc LJ 3341, being the revised version of the lecture given in 1988 to the Ecclesiastical Law Society at its first one-day conference.

115 John Paul II, Allocution, (1993) 85 AAS 141.

116 Paul VI Allocution, (1973) 65 AAS 96: John Paul II, Allocution, (1995) 87 AAS 1018.

117 Doe, N, ‘Toward a critique of the role of theology in English ecclesiastical and canon law’, (1992) 2 Ecc LJ 328346.

118 Cranmer, F, ‘Regulation within the Religious Society of Friends’, (2003) 7 Ecc LJ 176194; Kuehn, E, ‘Instruments of faith and unity in canon law: the Church of Nigeria constitutional revision of 2005’, (2008) 10 Ecc LJ 161173; Cox, N, Church and State in the Post-colonial Era: the Anglican Church and the constitution in New Zealand (Auckland, 2008).

119 Congar, Y, ‘Ecclesiological awareness in the East and in the West from the sixth to the eleventh century’ in Sherwood, P (ed), The Unity of the Churches of God (Baltimore, 1963), p 138. The original French term in Congar's 1959 article, translated as ‘applied ecclesiology’, was ‘l'ecclésiologie vécue’, anticipating the independently reached formulation in R Ombres, ‘Why then the law?’ (1974) 55 New Blackfriars 302.

120 Paul VI, Allocution, (1970) 62 AAS 114. He mentioned this before turning to the Mosaic law, natural law as presupposed by the New Testament and positive law. Positive law is always sustained or suggested by natural law.

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Ecclesiastical Law Journal
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