INTRODUCTION
To reduce it to its simplest assertion, any enduring faith community has in some way to relate its regulatory norms (religious law) to its beliefs (theology). The reasons for this are various.Footnote 1 Canon law, understood from now on primarily as the religious law of a Christian denomination, does indeed relate to theology, although not always or for everyone in the same way. Not always because even the terms ‘canon law’, ‘theology’ and ‘law’ have had different meanings across the centuries, quite apart from how they relate to one another; and not for everyone because there have been and are different schools of thought on these matters.Footnote 2 Stephen of Tournai, in the preface to his Summa on Gratian written in the twelfth century, highlighted wittily but with a serious purpose his predicament when faced with lawyers and theologians by comparing it to someone who invites two guests with clashing tastes to dine with him. What is the host to serve? Turning to his own situation, Stephen says:
If I propose to discuss the laws which appear in the present work, one skilled in law will endure it with difficulty … If I shall have begun to narrate the sacred deeds of the Fathers of the Old and New Testaments, a theologian will consider these remarks as useless … Let the theologian not reject the laws under the pretext of sacred history, nor should one skilled in law dismiss with the haughtiness of the laws what is included in sacred history.Footnote 3
Among the decretists, Stephen is generally considered to lie at the origins of the ‘French school’, which, in contrast to the ‘Bolognese school’, was influenced as much by contemporary theology and rhetorical theory as by Roman law.Footnote 4 This approach to Gratian, seen in Stephen's preface, was less inclined towards the more strictly juridical hermeneutics characteristic of the Bolognese masters. As for the present situation, in a broad sense a number of ‘schools’ have been identified, and it has been remarked that the major difference between them consists in their evaluation of canon law as primarily a juridical or a theological science.Footnote 5
The whole topic has been made more acutely complex by the divisions among Christians resulting in separated denominations. A revealing observation was made by the Anglican–Roman Catholic International Commission on marriage:
We were soon made aware that behind the differences of practice, both pastoral and juridical, lay deeper problems of theology … the central theological difficulty that underlay Anglican–Roman Catholic tensions about the discipline governing mixed marriages was ecclesiological – it stemmed from divergent conceptions of the Church.Footnote 6
Ecclesiology, that part of theology that deals with the nature and mission of the Church, is particularly significant for the relation of canon law to theology.
In the context of today's divided Christians, the relationship of canon law to theology can be fruitfully studied in a comparative way by considering more than one Christian denomination, as has been done with Roman Catholicism, Orthodoxy and Protestantism.Footnote 7 The author of a recent major study of the development of canon law in the first millennium of Christianity in the West and in Constantinople, Syria and Persia saw it as also forming a contribution to the literature on ecumenism. The study involved discussing the self-understanding of the Churches as this is reflected in their law books.Footnote 8 Other authors have compared the legal systems of the Church of England and the Roman Catholic Church in detail and as regards fundamentals.Footnote 9 Canon law and theology can also be approached jointly and ecumenically, as with the continuing series of colloquia involving Anglican and Roman Catholic canonists, which led to a joint statement including consideration of the relationship between canon law and theology.Footnote 10
In terms of contemporary Roman Catholicism, the relationship of canon law to theology can be examined in a fairly novel manner by considering papal allocutions to the ecclesiastical court called the Roman Rota, and their authoritative and even normative value. This is the chosen focus here. It is hoped that these reflections, covering fundamental aspects of canon law and thereby involving law as well as theology, will be of interest to Christians generally, but also to all involved with religion and law. Possibly unexpected connections will emerge:
The problem of the unity of law has become central to the Christian philosophy of law and to the theology of canon law. Is there indeed a connection between the often precarious law that governs the social cohabitation of human beings and some set of divine norms? And can we rely upon such divine law to be confident that human systems are just and based on solid foundations?Footnote 11
Three canons from the Code of Canon Law (1983) can perhaps frame this presentation of papal allocutions to the Roman Rota. Canon 331 states the position of the Roman pontiff succinctly: by virtue of his office he has supreme, full, immediate and universal ordinary power in the Church, and he can always freely exercise this power.Footnote 12 Within this broad canonical statement, based of course on theology, it is further established by Canon 1442 that the Roman pontiff is the supreme judge for the whole Catholic world. He gives judgment either personally or through the ordinary tribunals of the Apostolic See or through judges whom he delegates. The ordinary tribunal constituted by the Roman pontiff to receive appeals is the Roman Rota (Canon 1443).
While this is not the occasion to do so, these Roman Catholic canons could well be compared with two basic canons of the Church of England. Canon A 6 provides that the government of the Church of England under the Queen's Majesty, by archbishops, bishops, deans, provosts, archdeacons and the rest of the clergy and of the laity that bear office in the same, is not repugnant to the Word of God. Canon A 7 on the royal supremacy, states: ‘We acknowledge that the Queen's excellent Majesty, according to the laws of the realm, is the highest power under God in the kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil’. The Church of England has an extensive system of courts and tribunals that deal with the discipline of deacons, priests, bishops and archbishops. The consistory court is concerned with church land, buildings and contents, while pastoral breakdown is dealt with in a provincial tribunal.Footnote 13 Interesting comparisons could be made between the Rota and the appellate Court of Arches, both with mediaeval origins, both dealing chiefly with benefices in the early days and both having a dean.Footnote 14
THE ROMAN ROTA
The origins of the Roman Rota are mediaeval, with significant organisational measures being put in place by John XXII in 1331, and its history and vicissitudes up to the present are fairly well documented.Footnote 15 The decisions of the Rota have been published for centuries in various formats. The English mediaeval canonist Thomas Fastolf appears to be the first identifiable reporter of rotal cases and his reports contain the first known use of the term ‘Rota’. Whether Fastolf was actually the first reporter is still not clear, but the initiation of reporting is associated with William Bateman and his circle of lawyers.Footnote 16 As one would expect, William Lyndwood makes reference to rotal decisions in his celebrated commentary,Footnote 17 and his gloss would itself be alleged as authoritative by a proctor in a case at the Rota.Footnote 18 Accounts of rotal decisions circulated in England during the Middle Ages, including in the possession of individual lawyers and administrators, and rotal decisions continued to be quoted in the ecclesiastical courts of the Church of England after the Reformation. A good number of British lawyers became judges of the mediaeval Rota (traditionally called ‘auditors’),Footnote 19 while the rotal judges coming from this part of the world since the court's major reorganisation in 1908 are John Prior, William Heard, Gerard Rogers and currently Gerard McKay.Footnote 20
Today, the Roman Rota is a court of higher instance at the Apostolic See, usually at the appellate stage, with the purpose of safeguarding rights within the Church; it fosters unity of jurisprudence and, by virtue of its own decisions, provides assistance to lower tribunals. Its judges constitute a college, and are selected by the Supreme Pontiff from various parts of the world.Footnote 21 While the disputes that came before the Rota in the later mediaeval period were dominated by litigation over benefices, today matrimonial causes are predominant.Footnote 22
THE PAPAL ALLOCUTION FOR 2009
Since 1939, the Pope has given an allocution to the judges, officials and others at the Roman Rota each year (with some exceptions) and the published texts have become authoritative statements for canon law and canonists.Footnote 23 Simply by looking at the sources for the 1983 Code of Canon Law and at the 2005 Instruction Dignitas Connubii one is struck by the number of references to these papal allocutions.Footnote 24 It would be worthwhile to collect and analyse the explicit and implicit use made of theology in the allocutions, having such sources as the Holy Scriptures, councils, Roman pontiffs, synods, the dicasteries of the Roman Curia and authors. In this section, a fairly detailed account will be offered of the 2009 allocution to the Roman Rota given by Benedict XVI, followed by some reflections on the normative value of this and other papal allocutions. The focus will be on the relationship of canon law to theology.
Benedict XVI begins by acknowledging that his listeners await at the beginning of their working year a word that will provide a light and an orientation in the carrying out of their delicate duties. Several topics might have been chosen, but on the twentieth anniversary of John Paul II's allocutions on psychic incapacity in nullity of marriage cases,Footnote 25 it seemed opportune to ask oneself in what measure these allocutions have been adequately received by ecclesiastical courts. Benedict XVI recalls that the Rota has a ‘ministry of truth and charity’, and continues:
As for the requirements of procedural rigour, in fact the abovementioned allocutions, on the basis of the principles of Christian anthropology, provide the fundamental criteria not only to evaluate expert psychiatric and psychological reports, but also for the actual judicial determination of causes [la stessa definizione giudiziale delle cause].Footnote 26
The Pope then lists a number of pertinent statements made in John Paul II's allocutions, before going on to consider incapacity to contract marriage, as found in Canon 1095, in the light of the relationship between the human person and marriage, calling to mind some fundamental principles that must guide canonists. First of all they must remember that in principle every person has the positive capacity to marry by virtue of the fundamental nature of man or woman. The risk here is of falling into an anthropological pessimism. This requires helping couples to discover the natural reality of marriage and its place at the level of salvation. Capacity, then, has to be related to what marriage is in its essence, namely something founded by the Creator. Reference is made to the biblical notion of ‘one flesh’, and to the action of human freedom sustained by grace, before Benedict XVI concludes by mentioning the ‘high Christian consciousness’ involved in the exercise of office at the Rota.
This papal allocution is manifestly significant for the specific canonical topics it covers, and makes evident the thoroughly theological character of the canon law of marriage and the juridical process relating to it. Even the summary of the 2009 allocution shows how canon law presupposes, embodies and actualises theological truths. Attention can be drawn to such fundamentals as the Creator, the principles of Christian anthropology, grace, salvation and the ministry of truth and charity. The allocutions provide many such instances of how canon law and theology relate.
In specifically canonical terms, it can be said that the 2009 allocution, building on earlier allocutions by John Paul II regarding the validity of marriage, contains a number of affirmations with a normative function. First a distinction must be made between psychic maturity, which comes at the end of human development, and canonical maturity, which is the minimal starting point for a valid marriage. Then there is the difference between incapacity and difficulty, and the notion that the concept of normality includes moderate forms of psychological difficulty. The fourth statement is that the minimum capacity to give valid consent is not the idealised capacity of a full maturity, which should lead to a happy conjugal life.Footnote 27
THE THEOLOGICAL AND NORMATIVE NATURE OF PAPAL ALLOCUTIONS
The papal allocutions to the Roman Rota provide a wealth of connections between canon law and theology, as can be seen even by just considering the 2009 allocution. In fact the allocutions are wide-ranging, unsurprisingly given that the mandate of the rotal judges has theological, moral and social implications.Footnote 28 Some reflections will now be offered on the theological nature of these allocutions themselves, and whether and to what extent they can be considered as stating norms, or as in some sense having a juridical force, while not being promulgated law in the usual sense. This should raise fundamental issues for canon lawyers.
We can take as a working definition that the task of theology is the disciplined exploration of what is contained in revelation.Footnote 29 Given the theological foundations of the power (potestas) of the papacy, stated succinctly in Canon 331, papal allocutions to the Rota may have an obvious authority as formal teaching by the Pope, because of his office both as Roman pontiff and specifically as the supreme judge. The allocutions also have a particular weight for matrimonial law and procedure because such has come to be the focus of rotal jurisprudence, and these topics have received sustained and co-ordinated attention. Special mention can be made of a statement by John Paul II in his 1997 allocution to the Rota. He noted the principle that juridical significance is not juxtaposed as an extraneous body to the interpersonal reality of marriage but is a truly intrinsic dimension of it. After some further remarks on conjugal and parental love, John Paul II said:
The Magisterium when it comes to these subjects goes well beyond the juridical dimension alone, but keeps it constantly present. It follows that a source with priority for understanding and applying rightly canonical matrimonial law is that same Magisterium of the Church, to which belongs the authentic interpretation of the word of God as regards these realities, including their juridical aspects. Canonical norms are but the juridical expression of an anthropological and theological underlying reality and to this reference must be made also as to avoid the risk of interpretations of convenience. The guarantee of certainty, in the communion-structure of the People of God, is offered by the living Magisterium of the pastors.Footnote 30
A novel dimension, however, has been the still unresolved debate concerning the juridico-normative force that papal allocutions to the Rota may have. It should not be forgotten that the allocutions contain a variety of statements and that not all have the same nature or authority; at the same time we must recognise the fundamental unity in the Church of doctrine, pastoral concerns, law and norms. There is an all-embracing ecclesiology.Footnote 31
The doctrinal authority of the allocutions is undoubted, making them a significant opportunity for teaching on faith and morals, and applying that teaching to canon law and procedure. Very many examples could be given of this. We should also note the markedly pastoral character of the allocutions, which demonstrates the pastoral nature of canon law itself, as well as pastoral concern being a guiding principle in its application. As with doctrine, the marked pastoral concern is expressed by warning against various internal and external threats and errors. The 2009 allocution illustrates these points. An earlier allocution, by John Paul II in 1984, mentions how it is known to everyone with what ardour and tenacity the Church upholds, defends and promotes the sanctity, dignity and indissolubility of marriage, often threatened and corroded by cultures and laws that seem to have lost their mooring to those transcendent values, deeply rooted in human nature, that form the fundamental fabric of the institution of marriage. The Church carries out this task through her continuous Magisterium, by means of her laws, and specifically though the ministry of her judicial power, which in matrimonial causes cannot distance itself from these values, because they are an indispensable point of reference and a safe criterion of discernment.Footnote 32
Studying the papal allocutions to the Rota since 1939, many conveniently gathered into a single volume, would reveal an abundance of theological content in a canonical context. The allocutions would also provide a variety of reflections on the relationship of theology to canon law. What can be said, however, of the juridical force of these allocutions? Divine law, whether positive or natural, clearly determines canon law and procedure and, indeed, is a constitutive part of the whole that we call canon law. The great authority and applicability of divine law are undoubted,Footnote 33 so that, for example, Pius XII could simply praise the members of the Rota for their total respect for the truth of the facts and the dispositions of divine law.Footnote 34
The juridical nature of an allocution needs to be placed on a spectrum that includes juridical efficacy in a broad sense, interpretative function and the constituting of a norm. Much in the allocutions, directed as they are to the Rota, has a bearing on canon law and its application in practice, especially concerning marriage. This kind of juridical effect is pervasive in the allocutions, and often derives from theology and pastoral concern. The interpretative force of papal allocutions to the Rota is established. Thus, in his 1980 allocution, John Paul II stated that Pius XII in his 1942 allocution had declared authentically the concept of moral certainty.Footnote 35 At another point along the spectrum we approach what might be termed the normative force of parts of allocutions, stated firmly by Pius XII in his 1949 allocution when he recalled the norms that he himself, in fulfilment of his apostolic magisterium, had enunciated in three earlier allocutions to the Rota.Footnote 36 Consideration of a possibly normative force for parts of allocutions can be introduced by a lengthy quotation and paraphrase from John Paul II's 2005 allocution:
The judge must then hold to canonical laws, rightly interpreted. He therefore must never lose sight of the intrinsic connection between juridical norms and the Church's doctrine. At times, in fact, there is a claim to separating the laws of the Church from magisterial teachings, as if they belonged to two distinct spheres, of which the first would be the only one to have a juridically binding force, while the second would have a merely orientational or exhortative value.Footnote 37
The Pope continues by saying that such a view reveals what is in the end a positivist mentality, which contrasts with the best classical and Christian juridical tradition concerning law. In reality, the authentic interpretation of the word of God, carried out by the magisterium of the Church has juridical value, to the extent that it concerns the sphere of law, without needing any further formal step (passaggio formale) to become juridically and morally binding.Footnote 38 This is a crucial statement, subsequently cited by Benedict XVI, who warned against the separation of laws and jurisprudence from the Church's doctrine.Footnote 39
John Paul II's words undoubtedly refer to the normative force of teaching that expresses divine law (natural or positive), This requires no other formal steps and has juridical value in itself. Can one go further? Near the end of his life, the distinguished canonist Cardinal Urbano Navarrete SJ considered the matter and, while excluding various possible solutions, concluded that, taken as a whole, the papal allocutions to the Rota have exercised and continue to exercise ‘a doctrinal–directive–normative function’ of notable significance not only in the jurisprudence of the Rota but also in that of the whole Church. These directives are not generally formulated explicitly, but they nevertheless have an important normative influence in that they derive logically from the doctrine of the Church in its practical application.Footnote 40
Navarrete's conclusion, while not intended to be definitive, is certainly valuable and is likely to gain wide acceptance, including from canonists who might want to go further. Another important contribution to the debate has been made by Joaquín Llobell, writing after John Paul II's 2005 allocution. Llobell makes the central point that, even if the Rota has a privileged role in the exercise of the judicial dimension of the Pope's petrine office (munus petrinum), it does not coincide with the Pope himself, of whom it is only a vicarious institution. It follows from this that the Roman pontiff's teaching to the Rota has a greater and more clearly normative juridical consistency than that of rotal jurisprudence. In particular, Llobell draws attention to topics that do not automatically belong to divine law but that are necessary to make it juridically effective in practice. Wanting to give a formal juridical value to the allocutions, he locates them within the ambit of normative juridical acts that are not ‘law’ but belong to the closely related sphere of the interpretation and integration of law (compare Canons 16, 17 and 19).Footnote 41 Following a different route, it has been concluded that, judging by the content of papal allocutions to the Rota and the use made of them by the jurisprudence and the dicasteries of the Roman Curia, we can deduce the normative nature of these allocutions, by which the legislator intends to interpret the law.Footnote 42 This is a complex, many-sided debate, and more could be said. Benedict XVI's 2009 allocution has already become an important point of reference.Footnote 43
Whatever the theological or normative level of authority of papal allocutions to the Rota (which will vary from allocution to allocution and within each allocution in any case), the allocutions have considered the relationship of canon law to theology on various occasions. This relationship can be explored further by looking in some detail at the set of allocutions to the Rota given by Pius XII in the years 1945, 1946 and 1947. These allocutions were explicitly intended as a co-ordinated consideration of the specificity of the Church and her autonomy, and therefore of the specificity of canon law. In so doing, Pius XII related canon law to theology, particularly ecclesiology. The allocution for 1949 (there was none in 1948) rounds off the set.Footnote 44
First, then, the set of allocutions will be presented, followed by a discussion in the light of subsequent developments. As the Church of England Archbishops' Commission remarked in a related context: ‘we did not see how we could properly answer questions about the legal framework without asking questions beyond the legal framework’.Footnote 45
THE PAPAL ALLOCUTIONS FROM 1945 TO 1949
On 2 October 1945 Pius XII pronounced his allocution to the Rota, hoping that after the fighting had stopped the hour of justice would come to restore by its judgments the shattered order. The opening words had full theological weight: the Pope described himself as the Representative and Vicar of the Lord, sovereign judge of all human justices. It might seem, he continued, if we look superficially at the laws and judicial practice, that ecclesiastical and civil procedural systems have only secondary differences. There are indeed similarities, but they should not make us forget the profound differences concerning their origin and nature, their object and their end.
In this allocution Pius XII proposed to examine the first of these differences, returning in future years to the other two. Given the profound and unusually extensive account of law to be found in his allocutions to the Rota, a little background may help.Footnote 46 Eugenio Pacelli (1876–1958) was one of the few canonists to become Pope in modern times; and he came from a family of rotal advocates, his paternal grandfather, father and brother all having held this position. Before becoming Pope Pius XII in 1939, Pacelli had obtained degrees in theology and in law (in utroque iure: that is, in both civil and canon law), he had taught and written on canon law, he had worked in different capacities in the Roman Curia and he had been involved at the highest level in the drafting of the 1917 Code of Canon Law.Footnote 47 In terms of what we might call papal diplomacy in international relations, Pacelli spent many years abroad on behalf of the Holy See, he dealt with a number of governments and he was involved in the making of various concordats. He became Secretary of State in 1930.
This formation and experience help to explain Pius XII's appreciation of law in its different forms and his concern with Church–state relations, very evident in his rotal allocutions. His first encyclical as Pope specifically mentioned natural law and the dangers for civil society when it is unrestrained by a higher law derived from God.Footnote 48 A passage from his first allocution is indicative of his cast of mind in approaching canon law and theology. He said that, in the Rota:
… the world recognizes the responses of the jurisconsults and the constitutions of the Caesars united to the canons of the successors of Peter; and Rome, mother of law … continues to be its teacher, teaching and promoting a human–divine law, a ray of that divine Word made man, the light of whose countenance is marked on our reason …Footnote 49
It has been well said that Pius XII was the purest product of the Roman Curia, armed with a strong grasp of the law, a very high view of papal authority, and an intellectual liking for grand ideas.Footnote 50 In terms of the canonical culture of the time, it is significant to notice that the threefold analysis in terms of origin, object and end adopted by Pius XII was used in a similar way by Amleto Cicognani (1883–1973) to explain that canon law is a theological science. This is by reason of its sources, on which ecclesiastical authority is based, but also because of the object (namely divine and ecclesiastical laws relating to the constitution, government and discipline of the Church, as well as the rights and duties of the faithful) and because of its end (which is the government of the Church and the guidance of the faithful to sanctification and ultimately to life eternal). Cicognani also taught that the science of canon law has a special connection with dogmatic theology because it accepts as principles and essential laws of the Church the truths of faith established by dogmatic theology.Footnote 51 Cicognani became Secretary of State in 1961.
Origin and nature
Judicial power (potestà) is an essential part and a necessary function of the power of the two ‘perfect societies’ (società perfette), the ecclesiastical and the civil, and the question of the origin of judicial power is therefore identified with that of the origin of power in general. A number of modern conceptions of civil power have drawn analogies with ecclesiastical power. This is true of so-called ‘totalitarianism’ and ‘authoritarianism’, as well as of their polar opposite, modern democracy. In fact, the deep similarities put forward do not exist in any of the three cases, and Pius XII briefly examines them. With regard to modern democracy, he notes that the favoured thesis is that the originating subject of civil power deriving from God is the people. This shows clearly the difference between the Church and the state, even a democratic state.
Having addressed these misconceptions, the Pope turns to ecclesiastical power, which is essentially different from civil power – as therefore is the Church's judicial power. The origin of the Church, as opposed to that of the state, does not pertain to natural law. A proper understanding of the human person cannot lead to the conclusion that the Church had, like civil society, to be born and develop itself naturally. Rather, the Church derives from a positive act of God, transcending the social nature of humanity, although in perfect harmony with it. Ecclesiastical power, and its corresponding judicial power, was born from the act and will with which Christ founded his Church. Once so constituted, however, there are more than a few resemblances to the structure of civil society. Furthermore:
The foundation of the Church as a society has been effected, contrary to the origin of the State, not from below to above but from above to below. That is, Christ, who in his Church has brought about on earth the Kingdom of God … has not entrusted to the community of the faithful the mission of Teacher, Priest and Pastor received from the Father …Footnote 52
This triple mission has been transmitted and communicated by Christ to a college of Apostles or messengers (messi). Various biblical texts are then quoted, the conclusion being that in ecclesiastical power the essence, according to the express will of Christ (and therefore by divine law), is the mission given by him to the ministers of the work of salvation for the community of the faithful and the whole of mankind.Footnote 53
It follows that the power of the Church embraces the whole human person, internally and externally, ordered to the attainment of the supernatural end, in the sense that a person is completely subject to the law of Christ, of which the Church has been constituted by her divine founder the guardian and executrix in both internal and external fora. It is therefore a full and perfect power. Ecclesiastical jurisdiction has a sacred character deriving from its divine origin and its belonging to hierarchical power, and this should inspire members of the Rota when considering their office of judicial power.
Object
Pius XII started his 1946 allocution to the Rota by recalling what he had said the previous year concerning the origin and nature of ecclesiastical and civil power, including judicial power, and how they differ essentially while having many similarities.Footnote 54 Turning to consider the object, we again find shared elements and features. In both societies the safeguard of the common good (bonum commune) requires that the rights and goods of members of those societies can be realised, guaranteed and restored by judicial means. These rights and goods are partly the same in Church and state because the Church, too, is a visible society whose life is necessarily tied to physical existence, to time and space. On the other hand, there are rights and goods so particular and proper to ecclesiastical jurisdiction that by their nature they are not and cannot be the object of the state's judicial power.
Among the goods in defence of which ecclesiastical courts have intervened we must note faith itself, the foundation of all supernatural life. The delicts of heresy and apostasy cannot leave the Church indifferent or inert, and Pius XII rejects various misunderstandings in this area while emphasising the principle stated in Canon 1351 of the 1917 Code – no one is to be coerced against his or her will to embrace the Catholic faith. Changes in society have led civil courts to follow the principles of tolerance and freedom of conscience. There is indeed, the Pope comments, a political, civil and social tolerance towards the followers of other confessions, which in certain circumstances is a moral duty for Catholics also. The Catholic Church has as its foundation the truth of the faith infallibly revealed by God. The same rights cannot objectively be recognised for error as for the truth, and the Church may in certain instances punish one of its members who denies or repudiates Catholic truth.Footnote 55 Pius XII refers either explicitly or obliquely to the functions of the tribunal of the Supreme Sacred Congregation of the Holy Office in safeguarding the faith and punishing grave delicts. To appreciate fully this tribunal's functions, one must not exclude the notions of the supernatural and revelation, attributing to human reason the strength to comprehend the world totally, the prerogative of dominating all of life, claiming in this the complete independence of humanity from any bond of authority.Footnote 56
Another object clearly bringing out the difference between ecclesiastical and judicial systems is marriage. According to the will of the Creator, marriage is a sacred matter (res sacra), and the Pope draws out various consequences from this concerning sacramentality, indissolubility and civil divorce.
End
Pius XII began his 1947 allocution by remarking on how the same arguments that tyrannical governments of yesterday adduced against the Church in her struggle for the defence of the rights of God and the rightful human dignity and freedom are today used by the new dominators to fight the persevering action of the Church in safeguarding truth and justice. But the Church progresses on her way, always tending towards the end for which she has been instituted by her divine founder, namely to lead human beings, through the supernatural paths of virtue and the good, to heavenly and eternal happiness.Footnote 57 These remarks lead the Pope to consider the third point of difference between the ecclesiastical and the civil judicial system – their end. This point is applied equally to the two societies (ecclesiastical and civil).
There have been and are various types of union between Church and state, these two societies both going back to the same source, God, and both having the care of the same humanity, with its natural or supernatural human dignity. There is here a kind of analogy with the body and the soul. However, there is a difference concerning the end, a difference that operates a different and deep influence on the Church and the state, principally with regard to the supreme authority in both societies, and therefore also on judicial authority (potestà), which is but a part and function of it. All judicial activity of ecclesiastical judges is and remains included in the fullness of the Church's life with her exalted end: to secure the heavenly and eternal goods. This finis operis of ecclesiastical judicial authority gives to it an objective stamp and makes it into an institution of the Church as a supernatural society. The judge's decision must not be a mere command, for it would not be what the word ‘positive law’ wishes to express: that is, in the single and concrete case to bring order in the world, which as a whole has been created by the wisdom of God in order and for order. The ecclesiastical and civil judicial authorities can learn from each other in terms of theory and practice, but it would be erroneous to want to transfer elements and norms mechanically from one system to the other, and the more so if they were to be considered equal.
Ecclesiastical authority and judges need to keep before their eyes the fact that the Church is a supernatural organism within which is a divine principle of life, a principle that must also direct ecclesiastical authority and ecclesiastical judges. By virtue of their office and by divine will, bishops are judges in the Church, says Pius XII, before adding that the law of Christ is fundamentally that according to which decisions are arrived at in the Church. The divine vital principle of the Church moves everyone and everything that is in her (and therefore also judicial authority and judges) towards the end: the attainment of heavenly and eternal goods.Footnote 58
Having completed the intended trilogy of allocutions to the Rota, Pius XII used the 1949 allocution to round off his presentation by considering what he took to be a widespread crisis in the administration of justice. He identified the immediate causes of this crisis as being chiefly juridical positivism and state absolutism:
Taken away from Law [diritto] its base in divine law, natural and positive, which is immutable, nothing else remains but to found this Law on the law [legge] of the State as its supreme norm, and here is set the principle of the absolute State. Conversely, this absolute State will necessarily seek to submit everything to its decision, and especially to make Law itself serve its own ends.Footnote 59
Juridical positivism and state absolutism have disfigured the noble figure of justice, whose essential foundations are law and conscience. Pius XII wishes therefore to reflect first on the objective norms of law, and then on their subjective conception. The Pope intended to deal with the first point in the 1949 allocution, leaving the second to another occasion, if the Lord so wished. The 1949 allocution in fact turned out to be his last, although he lived until 1958.
What needs to be examined is the philosophy of law, and Pius XII begins by referring to Sophocles. The premise is the innate presence of the Creator's laws, and the existence of the divine will, which will be actualised or not according to the free determination of human beings. God's ordering will is manifested by means of the moral commandment of God inscribed in nature and in revelation, and by means of the precepts and laws of the legitimate human authority in the family, the state and the Church. This is the answer to the question concerning true and false law. A true law is not created by the simple fact that it is declared by the legislative power to be an obligatory norm. The criterion of ‘the simple fact’ is only valid for God, the author and sovereign rule of every law. To apply this criterion to the human legislator indistinctly and definitively, as if his law were the supreme norm of law, is the error of juridical positivism and the basis of state absolutism.Footnote 60 It is necessary that the juridical order again feels itself bound to the moral order, not allowing itself to trespass its boundaries. ‘Ethical obligations’ are to be recognised as objective norms valid also for the juridical order.
The Pope comments that the Catholic Church's juridical organisation has never gone through such a crisis nor risks doing so. Her ‘alpha and omega’ are the words of the psalmist: ‘In eternity, Lord, is your word, stable as the heavens … Constancy is the principle of your word; and every decree of your justice is eternal’.Footnote 61 This applies to the entirety of divine law, and equally for that which the God-man has established as the foundation of his Church. In fact, Christ established his Church as a juridical society in the first great promises.Footnote 62 Pius XII then states that the science and praxis of canon law obviously do not recognise any kind of law that is not also true law. Their function is:
… to direct the ecclesiastical juridical system, within the bounds set by divine law, always and entirely towards the end of the Church herself, which is the salvation and the good of souls. Divine law serves this end in a perfect way; ecclesiastical law too must tend towards this same end, as perfectly as possible.Footnote 63
CANON LAW, LAW AND THEOLOGY
All papal allocutions to the Rota are addressed directly to members of that tribunal, but also more widely to members of other Church tribunals throughout the world and indeed to all who are in some way concerned with canon law and procedure, particularly (though not exclusively) in the sphere of matrimonial law. Using the 2009 allocution by Benedict XVI as a starting point, the authoritative and normative value of allocutions has been considered. Now, keeping as the focus the co-ordinated series of allocutions given by Pius XII between 1945 and 1949, we can consider the relation of canon law first to law in general and to secular law in particular, and then to theology.
Canon law and law
Since Pius XII, canon law has been significantly affected by the Second Vatican Council (1962–1965), and the promulgation of the 1983 Code of Canon Law for the Latin Church and the 1990 Code of Canons of the Eastern Churches. The effects have been far-reaching and have generated a great deal of commentary and other literature; and dispersed throughout the rotal allocutions there are papal reflections on aspects of these changes and developments. Pius XII's insistence on including civil law and law in general in his reflections on canon law may be increasingly important. When he gave his allocutions, the 1917 Code was still in force; with it a whole tradition persisted that was very aware of canon law's links to Romano-civil law, and considered the Church as in significant ways analogous, though superior, to civil society and the state. The ius publicum ecclesiasticum (ecclesiastical public law) and the concept of societas perfecta were part of this framework.Footnote 64 Within theology and Church life generally, law and obligation were marked features. The dominant moral theology until Vatican II tended to liken moral truths to Church laws, and the clarification of moral truth in the light of faith was neglected in favour of procedures more akin to those used in developing a body of law.Footnote 65 Since Vatican II, much renewal has taken place at all ecclesial levels, ecclesiology has been reformulated and canon law has emerged as more explicitly theological. Eugenio Corecco offered a perceptive synthesis of what had changed when he identified the pre-eminent objective reasons for the 1983 Code as being the choice of faith as a new epistemological criterion, the constitutional character of the Code and the singling out of the individual member of the faith community as the protagonist in the juridical system of the Church.Footnote 66
Many causes, including a widespread antinomianism and a distorted contrast between the juridical and the pastoral, increased the distance between canon law and other kinds of law. Such problematic themes are faced in various rotal allocutions. Thus Paul VI replied to criticisms based on incorrect understandings of freedom in relation to law, authority and the exercise of judicial authority,Footnote 67 while John Paul II dwelt on the pastoral character of canon law. He thought it untrue that, to be pastoral, law had to be less juridical.Footnote 68 Having said all this, the 1983 Code continues the tradition of integrating some civil laws into canon law. This is regularly called ‘the canonisation of civil law’ by canonists. Noteworthy is Canon 22, which provides that, when the law of the Church remits some issue to the civil law, the latter is to be observed with the same effects in canon law, in so far as it is not contrary to divine law, and provided it is not otherwise stipulated in canon law. Specific referrals to state laws by the 1983 Code can be found in matters of family law, contracts, inheritance and wills, and aspects of property law.Footnote 69
Although the self-presentation of the Church embodied in the ius publicum ecclesiasticum tradition, and its related notion of societas perfecta, has in many ways been replaced by an ecclesiology with different emphases, elements persist and need to be reconfigured. The Holy See is an international legal person in its own right, and the Vatican City is a state in international law. They are two distinct legal persons, although closely connected.Footnote 70 The practice of entering into concordats with states, and of making treaties and other reciprocal legal agreements continues (see Canon 3).Footnote 71 The whole area of human rights, mentioned in various allocutions, can be of juridical relevance for Church and state, and here we can simply note that Canon 747 §2 states that the Church has the right always and everywhere to proclaim moral principles, even in respect of the social order, and to make judgments about any human matter in so far as this is required by fundamental human rights or the salvation of souls. Strikingly, in his 1947 rotal allocution Pius XII had recalled the Church's struggle in defence of divine rights and rightful human dignity and freedom.Footnote 72
Other canons also embody the Church's theological self-understanding. To take them in their numerical sequence in the Code, Canon 362 says that the Roman pontiff has an inherent and independent right (ius nativum et independens) to appoint legates and to send them either to particular Churches in various countries or at the same time to states and to other public authorities. He also has the right to transfer or recall them, in accordance with international law. Canon 747 §1 states that it is the obligation and inherent right (ius nativum) of the Church, independent of any human authority, to preach the gospel to all peoples. Furthermore, the Catholic Church has the inherent right (ius nativum), independently of any secular power, to acquire, retain, administer and alienate temporal goods in pursuit of its proper objectives (Canon 1254 §1). Related to this, the Church has the inherent right (nativum ius) to require from Christ's faithful whatever is necessary for its proper objectives (Canon 1260). According to Canon 1311, the Church has her own inherent right (nativum et proprium ius) to constrain with penal sanctions Christ's faithful who commit offences. Finally, the Church has her own and exclusive right (ius proprium et exclusivum) to judge both cases that refer to matters that are spiritual or linked with the spiritual and also the violation of ecclesiastical laws and whatever contains an element of sin, to determine guilt and impose ecclesiastical penalties (Canon 1401).
Sufficient stability concerning the theological and Christocentric character of canon law has now been achieved to propose sustained and systematic engagements by canonists with the theory and practice of law in general and civil law in particular, building on what Pius XII indicated for the ecclesiastical and civil judicial ambits: ‘Undoubtedly nothing stops that one profit from the results obtained by the other, not less in theoretical knowledge than in practical experience’.Footnote 73 As he had said in an earlier allocution, although the Church – and as a consequence her law – has a specific character different from the state, yet advantage can be taken of true progress in juridical science.Footnote 74 Furthermore, based on the renewed theological understanding of both the Church and canon law, the retrieval of something like the former ius publicum ecclesiasticum tradition must be pursued.Footnote 75 The ecclesiologico-juridical renewal has had a widespread impact, which can be seen in such topics as the concept of the People of God, ‘communion’, hierarchical authority, episcopal collegiality, the place of the laity, notions of religious freedom, ecumenism and the understanding and exercise of authority and power, especially in their pastoral character. The 1983 Code contains many explicit elements for an ecclesial ‘constitutional law’, and it lists a cluster of fundamental duties and rights for the Church as a whole, for the individual believer and for groupings of various kinds. These more juridical norms are of course to be combined with authoritative teaching. Such a task, (to which the wide-ranging approach adopted by Pius XII in his rotal allocutions points), is timely because states, human rights norms and international law call for ecclesial responses. Secular laws may well regulate religious bodies and their members in a variety of ways,Footnote 76 but the Church has her own theological and juridical self-understanding and makes her own evaluation of secular authority and law. There was what we might call an ‘apologetic’ dimension to ius publicum ecclesiasticum treatises, which could include justification and vindication. This too is needed in a renewed form, as well as contributions by the Church to a rational understanding of the common good and the value of the person. Given, for example, that the scope and meaning of human rights are unsettled, efforts should be made to ensure that secular judges understand religious issues from a cognitively internal viewpoint, that the meaning of human dignity is jointly discussed, and that the Church offer ‘public reasons’. The reasoning put forward by the Church needs to be accessible to all citizens, and the rational principles offered could well be drawn from the natural law tradition.Footnote 77
Secular discourse on the meaning of the human person, and on human rights and dignity, necessarily depends (even if tacitly and less than coherently) on a fundamental understanding of such terms – that is, on a basic anthropology. What Benedict XVI simply referred to in his 2009 allocution as ‘the principles of Christian anthropology’Footnote 78 can also be used in dialogue over the definition and application of human rights and like matters in the secular sphere. In an earlier allocution, John Paul II had warned that it was not sufficient to refer to the human person and human dignity without having first made the effort to formulate an adequate anthropological vision. This would take as its starting point definite scientific knowledge, remain anchored to the basic principles of the perennial philosophy, and allow itself to be illumined by Christian revelation.Footnote 79 The absolutely fundamental question asked at Vatican II remains: ‘But what is a human being?’ (‘Quid est autem homo?).Footnote 80
Natural law ideas have long been part of the theology and philosophy adopted by the Church and they are, in fact, be part of the common ground between canon law and law in general, in particular civil law.Footnote 81 Indeed, it has been observed that the principal bearer of an explicit theory about natural law happens, in our civilisation, to have been the Roman Catholic Church.Footnote 82 In canon law, one thinks here of Canon 1259, which, in very comprehensive terms, says that the Church may acquire temporal goods in any way in which it is lawful for others to do so, whether by natural or positive law. The contents of Pius XII's allocutions examined above were often cast with an eye to civil society, the state and law in line with his fundamental belief that ‘Church and State go back to the same source, God, and that both have the care of the same man, of his personal natural or supernatural dignity’.Footnote 83 As expressed more extensively in another of his rotal allocutions:
In this area of conscious human action, of good and evil, of precept, of permission and of prohibition, the ordering will of the Creator manifests itself by means of the moral commandment of God inscribed in nature and in revelation as well as by means of the precept or law made by legitimate human authority in the family, in the State and in the Church. If human activity regulates and directs itself according to these norms, it remains of itself in harmony with the universal order willed by the Creator.Footnote 84
Natural law is referred to in the 1983 Code,Footnote 85 and rotal allocutions have from time to time reaffirmed the importance of natural law for the judgments of the Rota. In a significant but tantalisingly succinct statement, John Paul II said that in the 1983 Code, particularly with regard to matrimonial consent, not a few explications of natural law taken from rotal jurisprudence have been codified.Footnote 86 In a key passage from Pius XII, quoted by John Paul II in one of his allocutions, natural law was presented as also necessary for the making of true and just civil laws:
It is necessary that the juridical order consider itself again as bound to the moral order, not allowing itself to cross its boundaries. Now the moral order is essentially founded in God, in his will, in his holiness, in his being. Even the most profound or subtle science of law could not point to another criterion to distinguish just from unjust laws, the mere juridical law [diritto legale] from true law, than that already perceptible by the sole light of reason from the nature of things and of man himself, that criterion of the law written by the Creator in the human heart and expressly confirmed by revelation.Footnote 87
Historically, canon law has related significantly to Roman law and its civilian developmentsFootnote 88 and, although the influence of Roman law on the 1983 Code may appear to be less visible than was the case in 1917, nevertheless not only does the Code retain a number of ‘Roman’ traits of the former Code, it has also used Roman concepts and terminology in a number of important instances, as in the very description of marriage as totius vitae consortium (Canon 1055). The introduction of dolus as a source of nullity of marriage (Canon 1098) is another case of a Roman category used in a new field. A further principle of civil origin is found in Canon 128, formulating the obligation of repairing damage unjustly caused.Footnote 89 Other examples could be adduced, and much of Book I of the 1983 Code on general norms needs to be read in the light of the juridical inheritance that includes Roman law.Footnote 90
Of course the general theories of law and the kinds of civil laws to be engaged with go beyond the Romano-civil tradition because canon law gives ample juridical space to particular laws and the Church has multiple juridical dealings with states worldwide and interconnects with differing legal cultures. Within Catholicism, parts of the 1990 Code of Canons of the Eastern Churches might well have been formulated to avoid the 1983 Code of Canon Law's excessive imitation of civil law.Footnote 91 In the Anglo-American world, important contributions to jurisprudence have been made recently by such figures as Dworkin, Finnis, Fuller, Hart and Raz, and it could be an indication of a rediscovered general legal awareness among canonists that these writers have been studied in terms of the clergy sexual abuse crisis, the ownership of Church property and the denial of Holy Communion to Catholic public officials. The kind of basic jurisprudential questions that can be fruitfully considered comparatively are the nature of law and of a legal system, and the rule of law itself.Footnote 92
Canon law and theology
Since Vatican II, as well as the thorough and far-reaching revision of canon law embodied principally in the two Codes of 1983 and 1990, the twentieth century having been the century of codification for the Roman Catholic Church, canon law as a discipline has been renewed. The Council did not extensively address canon law as such, although it brought about much change. If canon law can be described as applied ecclesiology, then, once the ecclesiology had been renewed, so the canon law that expresses and sustains as law that ecclesiology also had to be renewed. The Council did, however, give a significant sense of direction for the future: ‘in the exposition of canon law and church history, attention must be paid to the mystery of the church, according to the dogmatic constitution “On the church” promulgated by this holy synod’.Footnote 93 This conciliar directive is cast in a characteristically ecclesiological framework, and relates canon law firmly to dogmatic and therefore theological truths. It connects a discipline as precise and factual as canon law to the elusive and unfathomable mystery of the Church.
This is not the occasion to try to give a synthesis of all that has occurred in canon law and its study and application over the last couple of generations.Footnote 94 Essentially, canon law is firmly cast in a theological mould, particularly in terms of ecclesiology. This emerges at the most authoritative of levels in Sacrae disciplinae leges, the Apostolic Constitution by which John Paul II promulgated the 1983 Code. The Pope underlined how the fundamental basis of the ‘newness’ that, while never straying from the Church's law-making tradition, is found in the Second Vatican Council, and especially in its ecclesiological teaching, also generates the mark of ‘newness’ in the Code. In other words:
An instrument such as the Code is fully congruous with the nature of the Church … In fact, in a certain manner, this new Code can be seen as a great effort to translate into canonical terms the ecclesiological conciliar teaching. If it is impossible perfectly to transpose the image of the Church described by conciliar teaching into canonical language, nevertheless the Code must always relate to that image as to its primary pattern, whose outlines, given its nature, the Code must express as far as is possible.Footnote 95
Rotal allocutions made their own contributions to the renewal of canon law, and one by Paul VI merits attention here because it was given during the revision process that led to the new Code. In 1973, the rotal allocution noted that as a visible society the Church has her law, founded on the very nature of the Church as a people constituted into an organic, social body by virtue of a divine plan and action through a ministry of pastoral service that promotes, guides and sanctifies in Christ those who adhere to him in faith and charity. If canon law has its foundation in Christ, the incarnate Word, and is a sign and instrument of salvation, this is brought about by the work of the Spirit. Paul VI added that the Church is the sacrament of Christ as Jesus Christ in his humanity is the sacrament of God. The function of canon law must be viewed in the light of this mystery.Footnote 96 We can see just how theological canon law is, and how far it is from mere social engineering or simply being another expression of a society's impulse towards law-making for itself.
Pius XII's allocutions had trajectories in this direction, and in his thinking we see the importance of ecclesiological and Christological elements in considering the Church's juridical nature and her canon law. To take as an example one allocution to the Rota, Pius XII observed how judicial power is part and function of the supreme power in the Church. The Pope went on to say that the whole of ecclesiastical judicial activity is and remains included in the fullness of life of the Church, with her exalted end of making available heavenly and eternal goods. This finis operis of ecclesiastical judicial power gives it an objective stamp and makes it an institution of the Church as a supernatural society. Furthermore, ‘The law of Christ is fundamentally so, and according to it judgments are pronounced in the Church. The divine living principle of the Church moves everyone and everything that is in her towards its end …’.Footnote 97 As we saw, Pius XII was clear that the origin of the Church, contrary to that of the state, does not lie in natural law. An accurate analysis of what the human person is will not lead us to the conclusion that the Church, like civil society, should have grown and developed naturally. The Church derives from a positive act of God beyond and above social human nature, though in perfect harmony with this. Ecclesiastical power, and its corresponding judicial power, is born from the will and the act by which Christ has founded his Church.Footnote 98 Corecco proceeds along similar lines when he says that philosophers and theologians can in some ways engage in a reciprocally intelligible discourse. Yet canon law, unlike secular law, is not generated by ‘the (biological) spontaneous dynamism of human existence’ but by the specific social dynamism inherent in the very nature of ecclesial communion, whose sociality is genetically produced not by human nature but by grace. Grace, then, establishes other inter-subjective and structural relationships that are appropriate to the constitution of the Church and are knowable only through faith.Footnote 99
Another absolutely fundamental perspective for considering canon law and theology was provided by Pius XII in a rotal allocution when he stated that the Church's power embraces the whole person, his interiority and exteriority, in order to attain a supernatural end in that he is completely subject to the law of Christ, of which the Church has been made guardian and executrix by her divine Founder, both in the external forum and in the internal forum. This then is a full and perfect power, though far from that ‘totalitarianism’ that does not recognise the proper dictates of conscience and does violence to the laws of individual and social life written in human hearts (referring to Romans 2:15).Footnote 100
The current Code (Canon 130) continues to express both the nature of the Church and the function of canon law when it establishes that, of itself, the power of governance is exercised for the external forum; sometimes, however, it is exercised for the internal forum only. The scope of the power of governance and of canon law cannot therefore be reduced to what is external. In the renewed ecclesiological perspective, Canon 204 §1 states that Christ's faithful are those who, since they are incorporated in Christ through baptism, are constituted the People of God. For this reason, they participate in their own way in the priestly, prophetic and kingly office of Christ. By divine institution, says Canon 207 §1, among Christ's faithful there are in the Church sacred ministers, who in law are also called clerics. Another fundamental canon consonant with theological teaching and based on divine institution is Canon 129, which provides that those who are in sacred orders are, in accordance with the provision of law, capable of the power of governance (jurisdiction), which in fact belongs to the Church by divine institution. Lay persons can co-operate in the exercise of this same power in accordance with the law.
Taking up the themes of dogma and canon law, Corecco, in debate with Orthodox theology, has offered an interesting and ultra-theological account of the Latin Church's desire to establish a fully articulated correspondence between awareness of dogma and the juridical order. As he sees it, in the Latin view, dogma tends to be a categoric reality having in itself a formal binding force that, in accordance with the dynamic proper of hylomorphic incarnation, necessarily finds definition in law. In sum, canon law, without any break in metaphysical continuity, is the historical definition of divine positive law.Footnote 101 In his 1949 allocution, Pius XII repeatedly invoked divine law. The 1983 Code, especially for matrimonial law, also has a number of references to divine law, some of which we have already seen. Canon 24 §1 is wide-ranging and noteworthy in that it provides that no custom that is contrary to divine law can acquire the force of law. This provision may seem unnecessary because no human law can be contrary to divine law (be it natural or positive) understood as an unchangeable nucleus of revelation concerning faith or mores. It may have been stated because it is particularly with custom that human weakness and the slackening of discipline can appear.Footnote 102
Pius XII had stated firmly that the science and praxis of canon law do not recognise any simply juridical law that is not also truly law – their task is to direct, within the limits set by divine law, the ecclesiastical juridical system always and entirely towards the Church's own end, which is the salvation and the good of souls.Footnote 103 Pius XII refers repeatedly to the salus animarum, as do rotal allocutions by other Popes. The emblematic closing words of the 1983 Code (Canon 1752) similarly refer to the salvation of souls, which in the Church must always be the supreme law. This should not be seen as a literary flourish: it is a statement that has a pervasive influence on the canonical system.Footnote 104 It is foundational, in the sense of being an efficient cause for a law justifying its ecclesial existence; it is a propelling stimulus, in the sense of being a final cause that leads to legislation to attain the end set by Christ for the Church; it is a criterion for assessing the value of a norm, in the sense of being an exemplary cause; and it sets limits to juridical activity, keeping it to what is required for the salvation of souls.
In synthesis, divine law (ius divinum) has God as its author and it divides into natural divine law and positive divine law. The former is to be related to God as Creator of the world and is accessible to human reason and conscience, the latter is to be related to God as Revealer. By this revelation, our access to natural law becomes more certain and reliable, and thus a greater truth is shown to us. The Decalogue (Ten Commandments) underpins divine law as both positive and natural.Footnote 105 Divine law has two fundamental functions in the juridical ordering of the Church, one positive and the other negative. The positive function is to determine the content of norms, which are either the reproduction or the determination of divine law norms. Its negative function is to be a limit to the juridical activity of the Church, as it cannot be violated.Footnote 106 It is essential, therefore, not to interpret with positivist criteria those canons that are more than positive law. Almost all the preliminary canons on marriage (Canons 1055–1062) and the canons on matrimonial consent (Canons 1095–1107) are canons of this type; they are really doctrinal syntheses of the theology of Christian marriage or of natural law.Footnote 107 In his allocution of 1996, John Paul II restated the unique individuality of each person and the significance of the individual's historical and cultural reality, and then reaffirmed the fundamental and unrenounceable principle of the inviolability of divine law, both positive and natural, authentically formulated in the canonical norms on specific matters.Footnote 108
Together with divine law (both positive and natural) and the importance of the salvation of souls, another characteristic feature of canon law that gives it a firmly theological imprint is equity. Equity is well rooted in the canonical tradition, and is adopted at various points in the 1983 Code. Pius XII referred to ‘wise equity’, linking it to the salvation of souls,Footnote 109 but it is in the rotal allocutions of Paul VI that equity is most prominent. He noted the closeness of equity as used by judges, and how it was to be applied without neglecting the fundamental criteria of natural law (the humane, the just) and observing the written law in force.Footnote 110 The most complete treatment, however, was provided in his 1973 allocution. The Pope began by telling the rotal judges and others that, for them, a just judgment is not only one in which ‘natural equity’ is to be found but one that to an even greater degree demonstrates ‘canonical equity’, which is the fruit of their pastoral charity.
Canonical equity is a sublime ideal and a precious rule for the canonical legislator as much as for the ecclesiastical judge. To give a profound account of canonical equity one has to go back to the very nature of the Church's law. That follows an ecclesiological outline based on the dogmatic constitution ‘On the Church’ of Vatican II, so that law and charity emerge as closely linked. After some remarks on the sacramental nature of the Church, Paul VI said:
If canon law is founded in Christ, the incarnate Word, and so is a sign and instrument of salvation, this comes about by the working of the Spirit who gives it strength and vigour … It is this working of the Spirit that we now wish to bring out in the evolution of this aequitas canonica that bestows on the Church's law its physiognomy, its pastoral character.Footnote 111
Referring back to his account of the Church as sacrament of Jesus Christ, as Christ in his humanity is sacrament of God, Paul VI affirmed that it is in this mystery that we should regard the function of canon law. He considered canon law to be a constitutive element of the Church of the incarnate Word. Christian tradition received from Roman jurisprudence the notion of equity, and in the 1917 Code ‘natural equity’ refers to natural law as its ultimate principle, while ‘canonical equity’ refers to canon law. Paul VI wished for a rethinking of canonical equity in the light of Vatican II so as to give it a more Christian value and a more strongly pastoral meaning.Footnote 112
In sum, such is the theological imprint on canon law and the authority of its legislators that one should take care not to view even merely ecclesiastical law in an overly reductive and secularised way. John Paul II presented the 1990 Code by recalling that if every law, according to the well-known saying of Aquinas, is an ordination of reason for the common good, promulgated by the one who has the care of the community, this is especially true and eminently so for the canons that regulate ecclesiastical discipline. In the true sense of the term it is a question of the ‘sacred canons’ (to use the expression always employed in the East), in the sure faith that all is ‘sacred’ that is determined by the sacred Pastors. Even if in the Codes there are many ‘merely ecclesiastical laws’, replaceable with others by the lawful legislator, their raison d'être is entirely sacred.Footnote 113 It is indicative of this perspective that the Apostolic Constitutions promulgating the 1983 and 1990 Codes should be called respectively Sacrae disciplinae leges and Sacri canones.
CONCLUSIONS
In contemporary Roman Catholicism, it is undeniable that the nature and functions of canon law are predominantly theological, and that canon law is to be understood and applied in a significantly theological way. This has emerged from a variety of fundamental and authoritative perspectives, and has involved considering both the theology of canon law (why there is canon law at all) and the theology in canon law, chiefly as found in the 1983 Code.Footnote 114 The presence of doctrinal truths – the matter of theology – in the canons can of course take explicit or implicit form. The centrality of ecclesiology is evident, and received yet another formulation in the 1992 rotal allocution, which considered the canonical ordering to be part (or rather expressing visibly by its own nature the inner soul) of that society, external yet always mystically supernatural, that is the Church.Footnote 115 For Paul VI canon law was a constitutive element of the Church of the incarnate Word, and John Paul II considered the canonical order to be a unifying and in some way irreplaceable element for the unity of the Church.Footnote 116
Obviously different Christian denominations will consider the relation of canon law to theology from a variety of starting points and arrive at different conclusions, possibly following different methodologies. It is hoped that the description of canon law as applied ecclesiology will prove to be a clarifying concept for many engaged in these reflections on their own terms. There is already an excellent systematic exposition inviting Anglican canonists to a more reflective consideration of the principle that canon law has a theological basis and to question rigorously whether theological investigation should accompany canonical analysis, given the essentially theological and ecclesiological nature, purposes and setting of canon law.Footnote 117 Recently, canon law and theology have been related in detailed and markedly ecclesiological ways in studying topics as varied as the nature of Quaker structures and the revision of the Constitution of the Church of Nigeria.Footnote 118 As part of a comparative study, Congar observed how applied ecclesiology differed noticeably in the East and in the West with regard to the external life of the Church, her relationship with political power and her canonical structure.Footnote 119
This article has explored the relation of canon law to theology, taking as its point of departure and focus the papal allocutions given to the judges and other members of the Church court known as the Roman Rota. The 2009 allocution by Benedict XVI has led to reconsideration of the theological and normative level of authority that rotal allocutions may have, itself an aspect of how theology and canon law relate. The co-ordinated set of allocutions from 1945 to 1949 by Pius XII could be the impulse for reconsidering the relation of canon law to law in general and civil law in particular. It is essential to keep in mind that, as Paul VI observed, the term ‘law’ has a polyvalent meaning.Footnote 120 The set of allocutions is firmly theological and ecclesiological in its conception of canon law, and clear about its demarcation from society, the state and civil law, yet now that (at least for Roman Catholics) contemporary canon law and how it is understood are firmly theological, Pius XII's approach could be the stimulus for rethinking a whole cluster of issues around canon law. The kind of exploration involved can never be concluded once and for all, some kind of tension between theology and law being intrinsic to canon law. This tension is but one aspect of the underlying relation between grace and nature, and between faith and reason.
