In his allocution to the Roman Rota in 2022, Pope Francis made the following comment:
Although synodal work is not strictly procedural in nature, it should be placed in dialogue with judicial activity, in order to foster a more general rethinking of the importance that the experience of the canonical process has for the lives of the faithful who have experienced a marriage failure and, at the same time, for the harmony of relationships within the ecclesial community. Let us then ask ourselves, in what sense does the administration of justice need a synodal spirit?
If one were minded to take this invitation seriously, one obvious step would be to turn to the sociological study of canon law. An immediate reason for welcoming this book is that such a step would be very difficult to take in the anglophone world because of a dearth of studies which go beyond polls and anecdotal evidence. Professor Hahn is therefore to be thanked for this study, which offers a valuable initial resource for anyone who is interested in responding to the Pope’s words.
Hahn offers us a theoretical study, looking at the principles of sociology rather than at empirical studies of particular situations (to be fair, at one point she offers the disappointed comment: ‘Empirical studies tend to yield the best results. So far, there have been no such studies on canon law’). None the less, her view is that examination of principles can take us a long way. Her work starts with an introduction to the sociology of law, and this is a survey of modern (mostly German) work in this field which is concise and illuminating. It is also indicative of a presumption of a more philosophical and even theological nature which underpins the whole book. The sociology of reference could equally have been the sociology of religion – more specifically that of Christian ministry, which is the self-description that many who work as canonists would prefer over that of lawyer. While her starting point has much to offer the canonist (I was particularly struck with the way in which Brian Tamanaha’s ideas about law being the product of anyone to whom others attribute ‘deontic power’ could be fruitful in the Church), her comments on the relationship between canon law and pastoral theology are particularly sketchy. This is a debate which could have been more central to her argument as a whole.
Readers of New Blackfriars will be delighted to see that the idea of applied ecclesiology is not only mentioned, but is attributed direct to the ‘canonist Robert Ombres’. Again, more use could have been made of this insight. As one reads the book it is clear that Hahn comes to canon law from a particular perspective within the Church, and has much to imply (and sometimes even to say) that is critical of the current state of canon law. However, the opportunity to ask whether legal norms are rejected because they are legal norms (the objection being to their juridical nature, which a hypothetical person might say had no place in a community founded on grace), because they are poorly constructed legal norms (which is a criticism which might be made by many within the canonical community), because they are legal norms which though unobjectionable in themselves are rendered ridiculous by the fact that no one observes them and no consequences flow from this non-observance (I am grateful for the introduction to the term ‘zombie law’), or finally because the law gives shape and form to a theological ecclesiology to which exception is taken.
This also raises the question about why the law is obeyed. Hahn has interesting and perceptive insights to offer on the notions of compliance – for her the key indicator of effectiveness, despite its technical complexity which is helpfully discussed especially in her treatment of the notion of ratios of effectiveness. However, she consistently draws away from offering a theological account of the motivation for compliance: it might be correct to argue (as she does) that the force attributed to this motivation today is but a shadow of that described by Barratt in 1960 but is disappointing not to see a fuller theoretical account of that motivation and some indication of what it would look like to examine whether it still existed. To offer one would, though, run against her primary theoretical framework. For Hahn law has to be modern law, and that means law on the model of State law in a legal positivist setting. This leads her to a pretty blunt dismissal of natural law (readers of New Blackfriars may find themselves less comfortable at this point, and they would be right to be). Instead, she relies on Habermas’s theory of consensus as offering a basis for the acceptability of law, and though she is aware of the practical and theoretical difficulties of that position (it seems hard to see that appeal to a fictitious consensus amounts to anything more than telling the governed that they have to accept what the top people tell them – which is precisely what she says in wrong in the Church), her theory rests on an uneasy support here.
There is much here that will be uncomfortable reading for canon lawyers. But this book (excellently translated into English) offers a valuable starting point for engaging with its subject matter. The provision of abstracts for each chapter and a list of theses at the end makes it easy to use and navigate. Finally, although the standard position of the sociologist as the observer is maintained in form throughout the book, it is not difficult to deduce from its pages what canon law would look like if the theoretical architects of the German synodal way were given the task of rewriting it. And this too is not the least of its services.
