That Which Is Just in the Church: An Introduction to Canon Law: Volume 1

By Carlos José Errázuriz

Consonant with its commitment to publish seminal works in the field of canon law, St. Augustine's Press is pleased to make available the first volume in a series that will undoubtedly endure as a masterpiece of scholarship. Carlos José Errázuriz, Professor of Canon Law at the Pontifical University of the Holy Cross (Rome) has provided a comprehensive and insightful treatment of rights, justice, and law in the Catholic Church, beginning with the most basic questions regarding the essence of these realities. His responses exhibit the perspective of that which is just in the Church, which consists of ecclesial juridical goods: the Word of God, the sacraments, the freedom of the children of God, and sacred potestas. This work vindicates the institution of law, but also addresses the "spontaneity" of just freedom proper to what has been instituted by Christ.
 
Errázuriz presents more than the current Code of Canon Law. He instills a realistic perspective of right and law in the Church, and in so doing fills a massive gap in English scholarship. No introduction to canon law available in English rivals Errázuriz's description of justice in the Church and its relationship with communion and sacramentality.
 
Volume I is comprised of the first three chapters of the original, Corso fondamentale sul diritto nella Chiesa (in two volumes, Giuffrè: Milan, 2009 and 2017): "Rights, Justice and Law in the Church," "Canon Law in History," and "The Configuration of Rights and Law in the Church."

• Language: English
• Publisher: St. Augustines Press
• Release date: Nov 17, 2023
• ISBN: 9781587318955

Book preview

Chapter I

RIGHTS, JUSTICE, AND LAW IN THE CHURCH

1. The existence of an authentic law in the Church of Christ

1.1. The objections to the existence of ecclesial law throughout history

1. No one doubts the empirical-factual existence of the historical phenomenon called canon law. Present since the dawn of the Church, the juridical order proper to the Catholic Church assumed extraordinary importance in the Middle Ages and has remained alive, without interruption, to the present day. Nevertheless, a phenomenon that could be termed anti-juridicism has continually presented objections to the very notion of such a law, denying the nature of ecclesial law as such, and questioning both the authenticity and the legitimacy of a law existing in the Church. Such an attitude can be derived from either of two presuppositions: According to the first, the true essence of the Church founded by Christ does not admit the presence of a law within it; in fact, the law represents an element that is in contradiction to the life and mission of the Church. A second presupposition comes from the idea that law is a reality that by its nature can only exist in non-ecclesial spheres; that is, in civil society alone.

The first type of objection, a spiritualistic anti-juridicism, had its origin in those Christians who for various reasons rejected the institutional and juridical Church, considering it to be in contrast with the true Church of Christ, one that would be of an exclusively spiritual nature. This tendency, already operating in movements of the first centuries (e.g., the Gnostics, Montanists, Donatists, etc.) and Medieval (e.g., the Cathars, Waldensians, Albigensians, Beghards, Fraticelli, Hussites, etc.), found its greatest historical expression in the Protestant Reformation. The famous gesture by Martin Luther remains emblematic of this spiritualistic anti-juridicism, beyond whatever other interpretations that may be given to the act. In 1520, Luther publicly burned, along with other documents, the Corpus Iuris Canonici—i.e., the set of books containing the universal law of the Church united to the Roman Pontiff. The leading theoretical exponent of this line of thought, though often not followed in its radicalism by Protestants themselves, was the Lutheran jurist Rudolf Sohm (1841–1917). Sohm maintained the existence of a clear contradiction between, on the one hand, the law of the Church, considered as a worldly reality of a formal nature and linked to force and to merely human social power and, on the other hand, the essence of the Church, seen as a spiritual and invisible reality.¹

In this sense, the power of the Hierarchy, especially that of the Pope, as the source of ecclesiastical laws, constitutes the primary object against which this anti-juridicism moves. Rather than being a means by which one can unite with Christ, that power would be a purely human dominion, compromised with worldly interests, and contrary to Christian freedom and the development of charisms inspired by the Spirit. But this rejection of the hierarchical aspects then extends to any causal link between the external actions of the Church (a visible reality) and the gift of salvation (an invisible, spiritual reality). Indeed, spiritualism realizes that to admit seriously the existence of an ecclesial law means also recognizing an intrinsic link between the visible aspects of the Church (the sacraments, the word of God, laws, etc.) and its invisible aspects—that is, the very salvation of man in Christ through the Church. The basic problem is not the mere recognition of the need for an external disciplinary order in the community of the faithful, something that almost all concede in practice as a consequence of man’s social nature and the needs and difficulties of any human coexistence. The real question appears when this ecclesial order is related to the salvation of the Christian. Spiritualism denies in principle that there can be such a relationship, which would contradict the exquisitely spiritual and individual nature of the grace that each person receives from God. In a word, the very sacramentality or mediation of the Church is challenged—namely, the causal connection between its visible and invisible aspects.

From this point of view, the sacraments are conceived as external actions of a purely symbolic nature, performed in the Church with the aim of teaching mankind what God accomplishes in people independently of the sacraments themselves. According to this idea, the sacraments cannot in any way be the cause of grace. Consequently, the juridical questions concerning the sacraments lose their substantial importance; that is, being linked to the salvation of persons. In fact, little or no relevance can be afforded to questions such as those surrounding the validity of the administration of the sacraments if such administration is considered to be devoid of truly salvific causal effects. After all, if one thinks that the obtaining of grace, the remission of sins, and the incorporation into the Church are not intrinsically connected with the external act of baptism, questions regarding the validity of the way in which such a sacrament was administered lose their juridical import.

As for the word of God, it too could not be viewed as an object of any truly juridical relation, as it remains totally transcendent, above and beyond any human act of proclamation or interpretation. Viewed through a spiritualistic anti-juridical lens, there cannot be an objective point of reference constituting a firm criterion for the authentic interpretation of the Scriptures for the Church on her pilgrimage through history. To admit otherwise would be to replace the divine word with a human word. From this follows the decisive denial of the possibility of any ecclesiastical magisterium, whose interventions would consist of nothing other than human words. Even were it a charismatically enlightened word, it cannot have a binding value different from any other manifestation of faith by any member of the faithful moved by the Spirit. Without any authority that gives it certainty in the Church, it is understood that the divine word remains a good that is seen as outside of the juridical realm, and not susceptible in itself of any relationship of obligation or right between the faithful. On the contrary, the faithful are seen as having to coexist peacefully in the free and necessarily pluralistic understanding of the Christian faith, of a divine word which, given its transcendence, remains completely inaccessible to that objectification that any juridical order requires.

As far as the canonical norms are concerned, the sacred Pastors could not arrogate to themselves the prerogative of issuing ecclesiastical laws binding the conscience of Christians; not even the customs of the community could have such a value. While certainly recognizing the need for rules for regulating the discipline of the external life of communities, such norms would in no way, however, be seen as giving rise to moral duties connected to the path of Christian salvation (the Sunday obligation would not constitute a duty in conscience, for example). It would be understood then, as was demonstrated especially in the early days of Protestantism, that the help of secular powers could be used to organize and protect Christian confessions externally, including even securing their assistance when resolving juridical issues within such confessions, notwithstanding the serious dangers that arose from such state interference with respect to the authenticity of Christianity. Over time, such risks were ultimately noted, as was the widely perceived need to put these questions back into the ambit of the self-regulation of the various confessions.

The second kind of anti-juridicism, the statalistic one, begins with the exclusive attribution of all juridical power to the authority of civil society. As a result, canon law in this view is conceived of as a mere internal order endowed with moral value for the members of the Church, but as lacking that juridical efficacy which is necessarily associated with civil norms that are endowed with sanctions enforceable through the use of compulsion. In the medieval context of the struggles between the Empire and the Papacy, the most famous author in this denial of any juridical power of the Church, and specifically of the Pope, was Marsilius of Padua. In his book Defensor Pacis, published in 1324, he argues that it is precisely this interference of the Church in the temporal sphere of law—including, according to him, even those norms concerning the internal life of the Church (e.g., the appointment of ecclesiastical authorities)—constitutes a threat to peace. Marsilius argues for the reduction of the task of ecclesiastical authority to the mere administration of the sacraments and preaching of the word of God on clearly spiritualistic conceptual bases. In favor of his thesis, Marsilius invokes Jesus’ answer to Pilate: My kingdom is not of this world (John 18:36). On this basis, Marsilius attempts to argue that all visible power in the Church was thus denied.

This anti-juridicism calls into question the legitimate autonomy of the Church in the performance of its own mission, insofar as it tends to attribute juridical competence over internal ecclesiastical matters to civil authority. Such a trend has materialized in different ways in various historical moments, sometimes in ways that appeared to be favorable to Catholicism (e.g., in Spanish regalism), and sometimes in ways decidedly contrary to the faith (e.g., in secular liberalism) or, with unprecedented ferocity (e.g., Marxist-inspired totalitarianism).

1.2. The defense of canon law by the Church

2. In the face of anti-juridicism, the Church has invariably reaffirmed its own law as an irrepressible aspect of her being on this earth. Against spiritualism, the existence of the Hierarchy was proclaimed in particular, as being instituted by Christ himself and as being endowed with true power regarding salvation, the administration of the sacraments, the authoritative teaching of the revealed word, and the governance of the Church through the promulgation of laws binding the conscience of the faithful. In a special way, the primacy of jurisdiction belonging to the Pope as successor of Peter was reaffirmed. To confront statalism, the sovereignty of the Church over all human power was heralded, a sovereignty that was inherent to the Church by virtue of its own divine foundation and indispensable to it so that it might fulfill its mission with due independence, and without undue interference of any sort.

On both of these fronts the Church’s magisterial activity has been particularly intense since the Protestant Reformation. In fact, the ecclesiastical magisterium proclaimed several truths that were at the center of the controversy with Protestants in matters juridical. One example of this can be seen in the teaching on the sacraments, so amply set forth by the decrees of the Council of Trent (1545–1563), in themes decisive for the law of the Church such as the following: the ex opere operato effect of the sacraments; the sacramental character deriving from the reception of the sacraments of baptism, confirmation and holy orders; the obligatory nature of the precepts of the Church for the baptized;² and the Hierarchy founded on the sacrament of orders.³ Another teaching which is especially relevant is the definition of the primacy of the Pope at the First Vatican Council. This definition included the full and supreme power of jurisdiction of the pope not only in matters of faith and morals, but also in the discipline and governance of the universal Church, as well as the infallibility of his solemn definitions in matters of faith and morals.⁴ With regard to relations with civil society, there has also been a magisterial emphasis on the independence of the Church as a sovereign society, endowed with a juridical power of divine origin, radically autonomous from the power of political authority.⁵

In the same period, theologians and canonists worked to defend canon law as one of the dimensions of ecclesial life most threatened by the attacks of both Protestantism and secular liberalism. The 18th century saw the development of a discipline dedicated to the apologetics of the Church from a juridical point of view. This was the so-called Public Ecclesiastical Law (Ius Publicum Ecclesiasticum), which had its initial phase in Germany, appearing as an attempt to make use of the legal culture of the time—the school of rationalistic natural law of the 17th century of Hugo Grotius, Samuel Pufendorf, and others—in order to defend the Church within the framework of public law then in place for civil society. The discipline reached its maturity in Rome in the 19th century and lasted until the first half of the 20th century. Among its most well-known scholars were authors closely linked to the Roman Curia, such as Cardinals Tarquini, Cavagnis, and Ottaviani.⁶ In this context, the famous notion of the juridically perfect society was developed; that is, a society that is fully autonomous in both its ends and in its means, a concept that was then applied to the Church in its own order, just as it was applied to the State in its own order. The emphasis on the hierarchical aspect, and especially on the papacy, was strong, given that canon law (understood by these authors as the collective body of ecclesiastical laws) was linked to the power of the Hierarchy that issued it.

It would be misleading to attribute this defense of canon law, and therefore of the hierarchical power and autonomy of the Church, to temporal and worldly interests. It is sufficient to recall that, as in other moments in history, the so-called Counter-Reformation (or, rather, the Catholic Reformation), was driven by a real impulse to revitalize the faith and customs of the clergy, religious, and all the faithful, producing lasting fruits in many countries with a venerable Catholic tradition as well as in many new mission territories. This occurred not only because of the charisms aroused by the Holy Spirit (as should be obvious), but also in close connection with the juridical structure of the Church, strengthening canonical discipline and the unity with the Bishops and with the Roman Pontiff, the cornerstone of ecclesial unity. Concern for the laws, for obedience, and for the visible unity of the ecclesial structure has always been perceived by the Church as something inseparable from its own mission of salvation.

Without denying the inevitable shadows, deriving from the human element that accompany her earthly journey, the Church’s constant defense of canon law as part of her self-understanding must be recognized as a good, as an aspect of her fidelity to the foundational plan. In fact, this defense is not simply a matter of defending a more or less contingent cultural product, much less some kind of pretense in artificially keeping alive a dated model such as the one that existed during medieval times. Behind the defense of canon law, when it is understood in its essential aspects, there is in reality a defense of the Church herself: of her authenticity, unity, independence, and indefectibility.

Despite the merits of this apologia of the law advocated by the Ius Publicum Ecclesiasticum, it is worth noting here its limitations. A particularly important limitation in this sense was the identification of the juridical realm in the Church too closely with the corpus of ecclesiastical laws themselves, and therefore with the Church’s hierarchical dimension as well. As a result, the juridical importance of every human person in the Church was not sufficiently acknowledged. (This is closely connected with the very notions of right and law, on which we will speak in numbers 5–8, infra). Furthermore, the theoretical justification of canon law was rather poor, a one-sided approach based heavily on the need for authority and laws for the common good of a society. Such notions were essentially valid for any human social grouping; that is, they were situated rather on the level of natural law, and therefore took little account of the supernatural specificity of the People of God. It was, moreover, also a doctrine that more than anything else appeared to correspond to the maximum public dimension of human sociality (i.e., the binomial State and Church), and thus was not very sensitive to the juridically active position of the faithful and their associations. Even when the link between law and Christ’s saving power was deepened, as was seen in the 1943 encyclical Mystici Corporis by Pius XII on the doctrine of the Church as the Mystical Body of Christ, there remained a perspective of the law that focused more on the power of governance of Pastors. As a result, there was a certain inability to integrate other aspects of ecclesial life (for example, the legitimate freedom and the rights of the faithful, the influence of charisms and of a healthy ecclesial pluralism, etc.). These limits help explain the crisis of meaning that afflicted canon law in the years around the most recent ecumenical council, Vatican II.⁷

1.3. The understanding of canon law after the Second Vatican Council

3. The convocation in 1959 of a Conciliar Assembly by St. John XXIII was explicitly linked from the beginning to a reform of the Code of Canon Law. In fact, after the celebration of the Council (1962–1965), which ended during the pontificate of St. Paul VI, a great deal of time was spent working on a new Code, which was ultimately promulgated in 1983 by St. John Paul II as a document closely tied to the Council. Despite this, it is clear that, especially in the years immediately after the Council but also afterward, canon law has gone through an unprecedented crisis within the Church itself. This crisis does not concern only one or another aspect of the ecclesial juridical order, but affects the very raison d’etre of the law in the Church, first accepted with equanimity, but then viewed with impatience, if not with open hostility. This climate has certainly diminished since 1983, but there remains an atmosphere of indifference regarding canon law, almost as if it were some kind of lesser evil to be endured, or something that in any case is of interest only to specialists; that is, to