Canon Law: A Significant Milestone in Legal Systems
Foreword
In an age where the delineation between secular and religious jurisdictions often appears distinct, the enduring legacy and influence of Canon Law within the broader landscape of legal philosophy and practice remain significant. Canon Law, a comprehensive body of ecclesiastical rules and principles, has historically governed not only the internal affairs of the Christian church but has also permeated civil governance in regions where Christianity was the dominant faith. Understanding Canon Law is crucial for appreciating its impact on Western legal traditions and its ongoing relevance in contemporary legal discourse.
Originating from the Greek term ekklesia - ἐκκλησία - which denotes a society or assembly, Canon Law encompasses regulations sanctioned or adopted by ecclesiastical authority. Its roots are intertwined with the early Christian communities as described in the New Testament, and its scope has expanded alongside the political and social ascendancy of the Church, particularly during the Roman Empire and the era of the Papal States. Canon Law has evolved by incorporating elements from civil law and the contributions of lay scholars, reflecting a dynamic interplay between religious and secular legal traditions.
This article embarks on an exploration of Canon Law, tracing its origins, evolution and enduring impact through various historical epochs. By delving into the complexities and nuances of Canon Law, we aim to uncover the ways in which it has shaped and continues to shape legal thought and practice. The investigation will provide a comprehensive understanding of how ecclesiastical law has interacted with and influenced secular legal systems, highlighting the ongoing dialogue between religious and civil authorities.
Figure 1: Opening Session of the Council of Trent in 1545
Exploring the Meaning and Significance of Canon
The term "canon" has etymological roots in the Greek word " kanōn" – κανών - which translates to "straight" and similarly derives from the Hebrew word "kaneh" and the Arabic "Qanun." This term fundamentally denotes a grounding principle, rule, norm or measure. Its usage can be traced back to the Council of Nicea in 325 CE, where "canon" was understood to mean a measure or rule that binds the conscience to authority. In the early history of Christianity, particularly in the second and third centuries, "canon" referred to the foundation of faith and the order of Christian life. From the fourth century onwards, it came to denote church law or the decisions made by synods, which are special councils of church leaders.
Figure 2: The First Ecumenical Council of Nicea, Mégalo Metéoron Monastery, Greece
The Catholic Canon Law, which includes elements from as early as the first century, evolved into a complex and sophisticated system over time. The need for such a system with general authority arose early in the history of Christianity due to uncertainties and disagreements that accompanied the geographical expansion of the faith. These regulations were rooted in apostolic tradition and the conviction that disputes concerning fundamental questions of church discipline were clarified by Christ or the apostles, either in the Scriptures or in unwritten canons. In times of uncertainty, the Church relied on these traditions as normative sources or adapted them to new conditions.
From the third century onwards, the role of adjudicating correct decisions in ambiguous cases was taken over by synods, whose laws collectively formed the body of Canon Law. The decisions made by these synods reflected a wide consensus among the bishops present, who were responsible for making, applying, and enforcing these decisions. Initially, synods did not create a systematic scheme of Church discipline; however, systematic documents began to emerge from the sixth century onwards. In 1918 Reverend P. Charles Augustine, in his “Commentary on the Code of Canon Law”, stated that the term Canon Law is properly reserved for church laws since the twelfth century, and those who interpret these ecclesiastical laws are referred to as canonists.
Augustine defines Canon Law as “the complex of rules which direct the exterior order of the Church to its proper end,” highlighting the authoritativeness of these holy rules. Scholars, including R.H. Helmholz in his review of Professor Norman Doe's book, The Legal Framework of the Church of England, have accentuated that Canon Law enables the Church to fulfill its mission in the world, giving it special characteristics compared to secular law. However, scholars also acknowledge that besides its divine and natural law aspects, Canon Law contains elements of positive law, which are subject to invalidity or change. This acknowledgment reflects the dynamic nature of Canon Law, adapting to new circumstances while maintaining its foundational principles.
The Codification of Canon Law
Despite the evolution of Canon Law throughout the centuries, the real process of thorough, systematic codification did not begin until the 20th century. Up to the late 1910s, the Corpus Iuris Canonici was in use together with the disciplinary decrees of the Council of Trent (i.e. a 16th century council that was called to deal with the problems raised by the Protestant Reformation), as well as by other legal documents produced as follow-up to the Council. In 1917, the first Code of Canon Law was promulgated. It was called Codex Iuris Canonici and was implemented in 1918. It had an important influence in strengthening the church externally and internally. For example, by dealing with the concordats (i.e. agreements, like treaties), it defined the proper relationship between state and church.
Figure 3: Benedict XV promulgated the First Code of Canon Law, 1917.
However, the Codex (just like the Corpus before it) became outdated, probably as its main audience were scholars of Canon Law rather than the millions of laymen under the authority of the Church. In 1959, during the process of the Vatican II reforms, Pope John XXIII expressed his wish to revise the Codex of Canon Law. This process began in 1963 and took two decades. In 1983 the second Codex Iuris Canonici was implemented, and it stands as authoritative for the Catholic Church today.
The second and current Codex is much simpler than the 1917-1918 Codex, containing merely 1,752 canons. It also contained several rules and regulations that were of interest to laymen and not just jurists and theologians. For example, sexual abuse policy was given importance in the revised code. Canon 1395 set out the punishment for a clergyman should he be found sexually abusing a minor. Canons 1717-1719 set out the nuances of investigations in cases of sexual abuse by Church officials.
In 1990, Pope John Paul II publicized a distinct document for the Eastern churches (Codex Canonum Ecclesiarum Orientalium), meant to harmonize the Canon Law for the Roman Catholic and the Eastern churches, including India. This united Canon Law has been updated and developed, with major revisions in 2010. The idea is that today, the global Catholic church stands united under one all-encompassing Canon Law. This comprehensive approach not only addresses contemporary issues but also ensures that the legal framework of the Church remains relevant and applicable to its diverse and widespread congregation. The process of codification has thus been a significant milestone in the history of the Church, reflecting its adaptability and commitment to maintaining order, discipline, and justice within its global community.
Significant Historical Documents of Canonical Legislation
The development of Canon Law is illustrated by various historical documents, showcasing its evolution over the past millennium. One of the earliest significant texts is Justinian’s compilation, which integrated much of early Canon Law with ancient Roman Law and was incorporated into the Byzantine legal system in the sixth century CE. This integration reflects centuries of legal development, influencing legal traditions in Italy, France, the Netherlands and Germany over subsequent centuries. During the early Middle Ages, it became necessary for all clerics to acquire formal education in law, and Justinian's texts played a crucial role in this legal education.
Figure 4: Dictatus Papae of Gregory VII, 11th Century.
Another central text is the Dictatus Papae from the Gregorian reform movement in the 11th century. This document, whether written by Pope Gregory VII or inserted later, asserts the Pope's supremacy and the infallibility of Canon Law. This period marked the beginning of distinguishing between Civil Law and Canon Law, laying the foundation for the jurisprudential work of Gratianus. The Gregorian reform movement was a significant milestone that paved the way for the emerging science of Canon Law in the 12th century, setting the stage for subsequent legal developments.
Decretum Gratiani in the 12th century was a comprehensive collection of Canon Law, partially compiled from earlier sources and partly newly written. The Decretum sought to harmonize aspects of both Civil and Canon Law, asserting that civil law should be followed in matters not specifically defined by Canon Law. This text was the first of six volumes that constituted the body of Catholic Canon Law until it was revised in 1918. The Decretum was written to address the argument that civil law was a superior tool for understanding legal technicalities, while Canon Law was applied in ecclesiastical jurisdiction. The harmony effected by Gratianus included stating that civil law was to be followed for all matters not specifically defined within Canon Law.
In 1234, Pope Gregory IX commissioned the Liber Extra, edited by Raymond of Penaforte. This text compiled five Papal Decrees issued between 1188 and 1226, covering rules related to judges, legal proceedings, marriage, clerical issues and crime. By 1298, the Liber Sextus was added, including the principle of natural law that "what touches all should be approved by all," highlighting the relationship between Canon Law and natural law. The Liber Extra and Liber Sextus represent significant contributions to the body of Canon Law, integrating various rules and principles that were essential for the administration of ecclesiastical matters.
Figure 5: Thomas Aquinas, Carlo Crivelli. Church of San Domenico in Ascoli Piceno, Italy.
Thomas Aquinas, a prominent philosopher and theologian, significantly influenced the integration of natural law with Canon Law. His works, particularly the Summa Theologica, define law as an ordinance of reason for the common good, distinguishing between eternal law, natural law, human law and divine law. Aquinas posited that natural law is a reflection of God's eternal law and is applicable to human beings governed by reason and free will. He maintained that human laws must align with natural law and eternal law to be just. Aquinas argued that natural reason, though deficient in divine matters, could prove some parts of the faith, aligning with the Christian faith.
The Summa Contra Gentiles by Aquinas aimed to establish the truth of the Christian faith through reason, addressing arguments to non-Christian readers to introduce them to Christianity. Aquinas believed that God is the legislator of eternal law, and natural law forms a part of this eternal law. He argued that natural law is applicable to human beings who are guided by free will and governed by reason. Aquinas maintained that human laws must align with natural law and eternal law to be just. He also pointed up that even unjust laws, in so far as they retain some appearance of law, are derived from the eternal law, since all power is from the Lord God.
The historical texts of Canon Law, from Justinian’s compilation to Aquina’s integration of natural law, reflect a complex and evolving system that has significantly influenced Western legal traditions. These documents underscore the relationship between civil and Canon Law, the role of natural law, and the enduring impact of philosophical and theological principles on the legal framework of the Christian church. The vast history of Canon Law was finally systematized in the 20th century, but its roots and developments over the past thousand years continue to shape its application and relevance in contemporary times.
The Significance of Theology in Law and Politics
We now turn from the history and development of Canon Law to a particularly significant debate relating to Canon Law, theology, and the civil law of the modern nation state. This debate questions whether Canon Law is purely theological or if it can be taken as a full-blown form of Christian jurisprudence. Scholars like R. Sohm argue that Canon Law is not “law” as we understand it, but is purely theological in nature. On the other hand, Stephens Kuttner and John J. Coughlin consider Canon Law to be a mature form of jurisprudence. Coughlin argues that in Canon Law, the tradition of revelation was linked with the human community of the church.
Canon Law had two forms – inward and outward. While the inward could be said to be spiritual, or the faith in revelation, the outward form is one which is manifest in a judicial structure as Canon Law. One way to compromise in this debate is to regard Canon Law, which brings religion and law together, as belonging to the discipline of practical theology, which understands the practice of theology in the (secular) world. Practical theology includes the theology of law, the history of law, and theory of canon law. The need to emphasize the importance of synthesizing law with theology is expressed by Coughlin in Canon Law and the Human Person in the following manner: ”Theology without law leaves the ecclesiastical community bereft of an ordered life. Law without theological meaning surrenders its moral persuasiveness and deteriorates into rigid legalism.”
Figure 6: Life and Death of Gregory VII, 12th Century Manuscript.
One unique position running alongside this debate is presented by the important legal and political theorist Carl Schmitt. In his famous and very important book Political Theology, Schmitt presents an extreme view which makes Canon Law significant in the political theory of contemporary nation states. He asserts that the Canon Law of Roman Catholicism forms the basis of the concept of the nation state, as parallels may be drawn between the structure in which Canon Law was implemented and the structure of the modern nation state. The Pope is akin to the authority figure of a nation state such as a president or Prime Minister, and the Canon Laws are secularized into civil legislation.
Just as God has the power of performing miracles, the sovereign enjoys exceptional powers such as the authority to declare a state of emergency. Schmitt contends: "All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development — in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God becomes the omnipotent lawgiver — but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the nation state developed in the last centuries." This perspective provides a profound understanding of how theological concepts underpin modern legal and political structures, emphasizing the enduring influence of Canon Law beyond its ecclesiastical origins.
Conclusion
The formal codification of Canon Law in the 12th century marked a pivotal moment in the historical and legal evolution of the Western world. Although various texts have contained provisions of Canon Law for centuries, it was only in the 12th century that a systematic and comprehensive codification was accomplished. This codification process has had profound implications, not only for the authority of the Church but also for the broader landscape of legal and political theory.
Canon Law is multifaceted, encompassing aspects of natural law, eternal law, divine law and positive law. This complexity reflects its dual purpose: while it primarily serves theological functions and asserts the Church's jurisdictional authority, it also integrates principles that are essential to the broader legal and political frameworks. The presence of natural law in Canon Law underscores the belief in universal moral principles that transcend human legislation, while eternal and divine laws highlight the theological foundations that guide the ecclesiastical government. Meanwhile, the provisions for positive law demonstrate the Church's recognition of the necessity for concrete, human-enacted regulations to govern specific situations.
Historically, Canon Law has been instrumental in the development of Western legal systems. The influence of Canon Law extends beyond the confines of ecclesiastical courts and theological debates, impacting secular legal traditions and institutions. The works of early canonists and their integration of Roman law principles contributed to the shaping of a coherent legal system that could address both spiritual and temporal matters. This integration fostered a legal tradition that valued systematic reasoning, the articulation of rights and duties, and the adjudication of disputes based on established norms.
Carl Schmitt's argument that Canon Law has played a role in shaping the legal structures of modern nation-states adds another layer of significance to its historical impact. Schmitt posits that the hierarchical and authoritative structure of Canon Law served as a model for the development of modern state policy. The analogy between the Pope's authority and the sovereign power of modern states underscores the transference of legal and organizational concepts from ecclesiastical to secular realms. This transference is evident in the ways that modern legal systems have adopted procedural mechanisms, hierarchical adjudication processes, and the codification of laws—all practices that were refined within the context of Canon Law.
Furthermore, the historical evolution of Canon Law has left an indelible mark on modern legal theory. The jurisprudential methods developed by canonists, such as the systematic organization of legal texts, the application of scholastic reasoning, and the emphasis on the coherence and consistency of legal principles, have influenced contemporary legal thought. The legacy of Canon Law is apparent in the doctrinal structures and analytical frameworks that underpin modern legal education and practice.
The codification of Canon Law in the 20th century represents a culmination of centuries of legal development within the Church, with far-reaching implications for both ecclesiastical and secular legal systems. Canon Law's integration of natural, eternal, divine and positive law principles has provided a comprehensive legal framework that addresses both spiritual and temporal matters. The historical significance of Canon Law lies not only in its governance of ecclesiastical affairs but also in its profound influence on Western legal traditions and the formation of modern nation-states. As Carl Schmitt and other scholars have highlighted, the principles and structures of Canon Law continue to resonate within contemporary legal theory, underscoring its enduring relevance and impact. This rich legacy makes the study of Canon Law essential for understanding the historical and theoretical foundations of modern legal systems.
Bibliographical References
Augustine, P. C. (Reverend). (1918). A Commentary on the New Code of Canon Law (Vol. 1). B. Herder Book Co.
Helmholz, R. H. (2003). The History of the Canon Law and Ecclesiastical Jurisdiction, 597-1649. Oxford University Press.
Doe, N. (1996). The Legal Framework of the Church of England: A Critical Study in a Comparative Context.
Coughlin, J. J. (2003). Canon Law and the Human Person. Jurist: Studies in Church Law and Ministry, 63(1), 18-29.
Schmitt, C. (1985). Political Theology: Four Chapters on the Concept of Sovereignty (G. Schwab, Trans.). MIT Press. (Original work published 1922).
Sohm, R. (1912). Outlines of Church History (M. Sinclair, Trans.). Macmillan.
Kuttner, S. (1960). Harmony from Dissonance: An Interpretation of Medieval Canon Law. Latomus.
Dimock, S. (2000). The Natural Law Theory of St. Aquinas. In J. Feinberg (Ed.), Philosophy of Law (6th ed., pp. 123-140). Wadsworth.
Visual References
Figure 1: Opening session of the Council of Trent in 1545, N. Dorigati, 1711. Museo Diocesano Tridentino, Trento, Italy.
https://www.museodiocesanotridentino.it/articoli/nicolo-dorigati#prettyPhoto[pp_gal]/0/
Figure 2: The First Ecumenical Council of Nicea, Mégalo Metéoron Monastery, Greece.
Figure 3: Benedict XV promulgated the First Code of Canon Law, 1917.
https://www.vaticannews.va/it/papa/news/2022-01/anniversario-100-anni-morte-benedetto-xv.html
Figure 4: Dictatus Papae of Gregory VII, 11th Century.
Figure 5: Thomas Aquinas, Carlo Crivelli. Church of San Domenico in Ascoli Piceno, Italy. National Gallery, G.B.
https://www.nationalgallery.org.uk/paintings/carlo-crivelli-saint-thomas-aquinas
Figure 6: Henry IV sits next to the anti-pope while Gregory VII is deposed. At the bottom, the excommunication of Henry IV and the death of Gregory VII. 12th-century manuscript.
https://www.storicang.it/a/papa-gregorio-vii-e-lotta-per-le-investiture_16181
