TheologyCL

February 13, 2008

February 13, 2008 February 20, 2008 February 27, 2008 March 12, 2008 March 19, 2008 April 9, 2008 April 30, 2008 May 21, 1008

Theology of Canon Law - is a reflection on the roll of law in a religious society. Jesus would be surprised by the codex. Theology of law is a recent development - although we have had law in the Christian community for some time. We start with a bit of history:

• The New Testament was born as a reflection on the life and stories of Jesus and the early Christians. As small groups developed, house rules, community norms, bishops norms and conciliar laws all gradually came to be. First local, then provincial councils then ecumenical councils. Conciliar documents first came out with doctrinal texts, then norms which gave solutions to practical problems. Bishop of Rome see as a special center of unity - he could arbitrate between local communities. Gradually the power of the pope grew. Decretal letters (of the pope) came to have wide recognition. Then came collections made by private individuals, e.g. Isidore of Seville, the also were changed according to local needs. There were some falsifications.
  

• In 850 Reims made a copy of the text of Isidore of Seville, and the made many changes related to the local life. Isidorian Decretals were letters of popes were included that promoted the authority of the local bishop.
  

• In 1140 Gratian brought together all law and made a concordance of discordant canons, this was later called Gratian's Decree. Start of canon law as a separate discipline, the following period was called the Golden Age of Canon Law. He included the Isidorian Decretals. In 1450 the falsifications were discovered. From then on they were called the Pseudo-Isidorian Decretals. From the 700s, the pope was head of papal states and needed secular law. But there was also never a question about the need for law for the Christian community.
  

• Yet for all this time, there was no Code. The Codex was started in 1904 and promulgated 1917. Everybody accepted the form because it was the age of codification beginning with Napoleonic Code in 1804. This was also the time of the loss of the papal states - codex propped up spiritual power. This introduced a period of more strict inner organization - the public life of the church became more juridic. The codex was based on Roman Law. A law book, technically well made, no translations allow. Strict exegetical training of canon lawyers. Bishop of Rome got some more power on Feb 2, 1929 when he got power over Vatican City. Pius XII on his 60th birthday governed the church strictly and law became more important - people thought it was overdone - in the 50s, there was an anti-juridic reaction which was expressed in Second Vatican Council. Bp. De Smedt said the church suffered from triumphalism, clericalism and juridism. Some even wanted to do away with Canon Law. John 23rd wanted a Roman Synod, a Council and a new Code. Then in 1983, came the new codex. First codex was simply codification of existing law, the 1983 code was a translation / interpolation of Vatican 2.
  

• General Norms
  

• Persons: Clerics (with all the offices), Religious, Laypeople (as if)
  

• Things: Temporal Goods, Sacraments, Magisterium
  

• Processes: How to resolve conflicts about or clarify the application of the law
  

• Penalties
  

• The New codex has theology and canon law mixed, e.g.
  

• Canon 285 Clerics are to shun completely everything that is unbecoming to their state, in accordance with the provisions of particular law. - not good law it's not clear what it means.
  

• Canon 849 Baptism, the gateway to the sacraments, is necessary for salvation, either by actual reception or at least by desire. By it people are freed from sins, are born again as children of God and, made like to Christ by an indelible character, are incorporated into the Church. It is validly conferred only by a washing in real water with the proper form of words. — Only the last part is legal.
  

• Other christian traditions have less law. The orthodox churches have national law to organize their churches as well. Do we have too much law? Or rather do we have too much universal law, where as more could be at the local level. In liturgy and sacraments, it is hard to respect the norms, and the culture because they are symbolic and ritual. Symbols are dependent on cultural. Can the bishops conferences be used better for this.
  

• Eastern Right Catholics have a second codex. Twenty second ecclesia sui juris was just added. They may be quite small groups, 20,000, 50,000 or even a few million. There are also diplomatic relations with 176 states.
  

• We live under several legal systems, they overlap and sometimes contradict. International, State, Infrastate. Canon law is said to be infra state. E.g. sex change operations allow civilly, not canonically, new marriage possibilities, and divorce as well. In a conflict between church law and state law, exceptionally states recognize the internal order of the church. Sometimes completely, sometimes, only with certain conditions. E.g. in belgium a church decision over priest placement will be recognized if done by the right person with a modicum of process.
  

• Canon law has an essential position, but it is secondary to theology.
  

• A few days ago the Archbishop of Canterbury gave a conference at which he asked if church law can be taken seriously in the context of a civil law system.
  

February 20, 2008

• The discussion of a theology of canon law is a rather recent development. It responds to the questions: do we need a law system in the church? How do we enshrine the values of the community in juridical norms?

• Distinction between clergy and non clergy wasn't so strong before Constantine. But once it became a state religion, these were officers of the state as well. Emperor invoked councils and imposed the decisions. Things changed fundamentally at this point in the history of the church. The catholic church is seen to be the most detailed religion juridically.
  

• After the fall of the western Roman empire fell, the link between church and state in the Eastern Roman Empire was very close - as it remains today. The also occurs in many European countries, e.g. Anglican law is in British law. Yesterday the synod of the church of england decided to take more autonomy in the appointment of new bishops: only one name will be proposed by the church for appointment of the bishop by the crown.
  

• In the west (ex-western roman empire) the papal states were organized and states and church were under the authority of the Pope. So the juridic norms for church and state were developed at the same time. 1588, the first detailed organization of the roman curia was developed with 15 stable congregations (assembly, congregatio) which were for both church and state: Religions, Bishops, Clergy, Roads and Bridges, Defense and War, etc. Each was a group of cardinals, but one cardinal could be a member of several congregations. Before 1588, the pope called cardinals ad hoc. Now there are 9 congregations just reorganized by Pastor Bonus 1988. When we discuss law in the church, remember that there is a long Roman law tradition and a long experience of working with law. Law also has its limits, you can juridically organize everything. E.g. the external elements of the sacraments can be formulated in norms, but the reality of the sacraments is beyond the norms.
  

• There are also diplomatic relations with 176 nations. There are good contacts in every country in the local churches there. For this reason states want to make the diplomatic relations so that they have access to this information. This is the result of historic development; from the era of the papal state ambassadors in 1450, exchange of residential ambassadors is an Italian invention. When Italy was unified and papal states disappeared in 1870, the pope went to Vatican Hill but he continued to exchange ambassadors. (active and passive right of ligation) 1929 Vatican City state became independent. But it is the pope, not the VCS that sends and receives ambassadors.
  

• Because of being a state religion, because of papal states, because the long roman law tradition, we have a very detailed code. But we can't forget we are a community of believers. Our law system should service our purposes. It is a limited system, not having many branches of law: commercial, environmental, etc. On the other hand, we have sacramental law, etc which they don't have. Sometimes we lack theologians reflecting with the lawyers on canon law. Theologians distrust law and find it antithetical to gospel living. Law should serve the community without stiffling it: balance. Law is a system to organize the external aspects of life, but the internal can't be regulated juridically. Liturgical norms regulate the externals, but they can't supply the intent, dispositions, grace.
  

• It is important to distinguish juridic language and theological language. Juridic regulates who has the right or duty to do what, when and how. Many canons with theology and law together are juridically unclear.
  

• Our theological reflections are historically and culturally conditioned. Each of people comes from a different experience of church and of law and this affects our reflections. Orsy calls this the horizon of reflection. The code allows a certain flexibility, e.g. Canon 1083 sets minimum ages for marriage (14, 16), but the bishop's conference can set a higher age in accord with local civil law. 1967 Paul VI introduced permanent married diaconate, but allowed bishops conferences to implement this or not. It would be nice to have more of that, more flexibility, in the future.
  

• We have to understand the context of the code. In the recent evolution of church history, there are specific periods.
  

1. October 1958, Death of Pius 12, Eugenio Pacelli, an educated and authoritarian leader, respected within and without the church, very much a leader of his time. A stable, clerical church. No ecumenism, 1917 code gave a rigid organization to the church. When he died, that church came to an end. The conclave was a course correction, Roncalli was elected quickly a 77 year old, historian who saw the movement of the modern world and the static church. He announced a Synod, Council, Code and initiated a period of collective hopes and dreams: aggiornamento
   

2. October 1962, council opened a period of discussion, contacts, tension. Fascination, creativity, storms, bishops discovered a worldwide church. Paul VI sometimes intervened to remove hot issues from the discussions. 4 basic documents: LG, GS, DV, SC, 9 more limited decrees, PC, 3 declarations: e.g. DH.
   

3. January 1966 - stormy period after the council when bishops went home. The conciliar documents had to be realized, implemented, lived into. Discovered that some changed more quickly than others. Dioceses, parishes, individuals, communities all changing at different rates resulting in conflicts, tensions, chaos, endless discussion, change imposed and resisted; raising 1917 code against council; many left church, orders, priesthood. Paul 6 tried to keep everything in balance. From this we learn that changes weren't managed; we didn't know how to cope with psychological resistance to change. Declining numbers and exhaustion. (also outside the church - decolonization, student strikes)
   

4. October 1971 - 3rd Synod of Bishops on priesthood yielded no major change - this had a settling effect. There was great hope, but the curia resisted. Numbers continue to decline. Calm after the storm. Base communities were new.
   

5. October 1978 - election of John Paul 2 new life and dynamism. Relations ad extra improved, but ad intra things stagnated - restoration.
   

6. April 2005 - Another pope, another course correction.
   

• Codex was developed in this period - Commission started 1963, first draft in stormy period. Reworked in the period of calm and promulgated in John Paul's pontificate. The law is the product of history. Some situations weren't seen or weren't taken seriously by the preconciliar trained bishops and canonists, e.g. shortage of priests in some areas. The church situation even now in 2008 is quite different from those times. People are more and more engaged, educated, vocal and articulate, better educated, mature and informed. This is a distinctive community of faith. So what is the role of law in this church.
  

February 27, 2008

1. In addition to collective history and perspective, there is our individual and generational and national histories. Seasons of life: 0-15 childhood with infancy, childhood and adolescence; 15-30 young adulthood with beginning, middle, end; 30-45 dynamic, generative adulthood; 45-60 mature adulthood - leadership; 60-75 senior adulthood - wisdom; 75- aging; Each season has its unique task and characteristics.

2. In secular history from 1965-70 there was worldwide a contestatio - protesting, etc. Boomers were the protesters - 15-45 years of age. By the 70s things calmed down and the WWII generation retook control. Then the Boomers re-took control in 80s and made some important changes. Now they are on the wane and X & Y are taking control.
   

3. In the church, in contrast with civil society, people hold top offices about 10 years longer - so there is a different generation in control than the generation at the helm in civil society. So it is no surprise that changes are slower. Changes will take place but later, maybe even too late. Secular society is advanced by those from 30-60; church society is advanced by 60-75 This may be cause of hope, but there is also a risk that non-typical people come into leadership - selection is skewed. Pre-conciliar clerics and canon lawyers who were trained when the 'old code' was new. Even now, the WWII generation is governing. For change in a large group - unfreezing, movement, refreezing. It takes time for a maturation of the belief that a change is need. Also, there is the need for someone inside with power to initiate the change.
   

• Myths for shortage of seminarians - shortage is temporary; then yes but the quality is better; then yes, but there are the religious; then, yes, but there are lay people; then, yes, but it's good to be a strong minority. The situation is too complex for myths - remain in fundamental permanent dialog with the culture and its developments; but remember we have something to bring to culture as well, namely the Gospel. We need well educated and committed members and clergy to keep the dialog going. For example our codex isn't in keeping with modern juridic culture - a secular jurist would not find it sufficient. Take men and women seriously without distinction.
  

• Gaudium et Spes 1 The joys and the hopes, the griefs and the anxieties of the men of this age, especially those who are poor or in any way afflicted, these are the joys and hopes, the griefs and anxieties of the followers of Christ. We also have to call people to leadership in the church - we are too passive.
  

March 12, 2008

Codex prepared in a particular time in recent church history.

Orsy - Theology and Canon Law - Theology in Leuven in late 40s. Oxford for civil law. Gregorian for canon law. Taught at Fordham and Georgetown and Ottawa. Wrote the book in a number of articles later collected to the book.

Chapter 1.

New attitudes of mind - Important chapter - look carefully at the 7 footnotes. (Subjective Component).


New attitude of mind - he develops the subjective element in the interpretation of Canon law and norms in the church. Novus habitus mentis was an expression of Paul VI. There are many texts in which he proposed this, saying "The law of the church has a spiritual character, the council demanded that the law of the church be an instrument of its spiritual life. (CLD 8:105). Paul VI pointed out the new attitude, but didn't define it, he left that for others to flesh out. It is not a few theological propositions, or method of interpreting. Renew not ideas in the mind, but the mind itself.


Paul VI first dissolved the commission for the renewal of canon law to wait for conclusion of the council so the work was suspended: March 1963 - November 1965. It consisted of Cardinals, consultitores (canon lawyers) and officials. In re-convoking the commission, the developed the notion of a new attitude of mind. A mentality, a permanent, contemplative / active approach. It is the capacity to see truth and the capacity to reach out for values and transform the world through.... to operate and think in new ways. This was it was in response to Vatican 2 - how does the legislator act in the post-conciliar times. Two ways to look at the council 1) a past assembly that gave a corpus of doctrine, a concluded historical event; or 2) the start of a new movement; a new evolution in the life of the church which canon lawyers and theologians should appropriate and live into a new reality. There is a new method of operation which lead to discoveries at the council:


1. Imperium to Communio There is a process of understanding faith. From imperium with a concentration of power, power over, in the top to communio where every member is endowed with the power of the spirit (a structured communio, a hierarchical communio?). The movement of the council from imperium to communio was possible by historical research rediscovering the ancient idea of communio.
   

2. From confessional conflict to an ecumenical vision. Even before Vatican 2 there was a move away from hostility to other christian communities. Bea started ecumenical work under John 23. The movement arose from a fresh look at the diversity of Chistian communities seeing gifts of God where before there was abomination at the heretics.
   

3. From defensive isolation to expansive presence. The council let the church meet the world. There was a new relationship between the Church and the Modern World. Even in the Lex Fundamentalis there was a chapter on relations between the church and the world. This came from realizing the dignity of the person as a philosophical argument for religious freedom. This same freedom can be deduced from the Gospel, from the way Jesus met the Christians (Dignitatis Humanae). This was rediscovered by Vatican 2.
   

4. From a static worldview to a dynamic one. The council recognized the mental process changing our understanding of church in a changing universe. DV. This helped the bishops to develop a new view on the Church and its role in society. This viewpoint came from an openness to modern sciences and cosmology. There is an unchanging part of the Gospel proclamation, but also a dynamic part that adapts to times and cultures.
   

• It takes time to change. Bishops were also away from the daily cares of the dioceses. New views will require a new legal framework: unfreezing, change, refreezing. A pure translation of the council into juridical norms is not possible.
  

• People are trying to restore pre-conciliar times; this is impossible and will in the long run be unsuccessful. The past can't be recreated. We have to live the faith today, in our complex situation without harking back to 'the good old days,' not knowing the bad old times in the good old days. The effect of this restoration can be to isolate the church from the lived reality of the society. Live now and take seriously the modern world in which we live and bring the Gospel to THIS world. We may need to 'rediscover' some aspects of christian life and practice. But this can't be legislated. LDF: When some people dream of old norms maybe compassion is in order, folks are unhappy with the real world. We have to find also our identity in today's world. It is not possible to minutely regulate all areas of christian life for all places and cultures from one central location. Freedom in local areas would allow for a rich exposition of the christian life. E.g. The restoration of the permanent diaconate was announced, but the working out was left to local churches.
  

• Novus habitus mentis is is a new way of looking at the situation. The canon lawyer also has to take on this new subjective perspective - new methods. The Novus habitus mentis must also have an objective component - new documents and principles. The doctrine of horizon means that our view, conclusions, structuring of life depends on our horizons, and these horizons are changing rapidly. Because of the changing horizons, we change ourselves, and old ideas must be brought into coherence. It is an interaction between inner understanding and the outside view. More is thinkable than what we think. Our inner attitudes are changed also by new experiences, new horizons, etc.

March 19, 2008

Theory of the Horizon (from Lonergan) - Your horizon is the sum of your experience and influences. An understanding of Canon Law and its history must include the horizons of the legislators and interpreters. How is a canon understood in the field of vision of the legislator, and of the reader and interpreter of the canons. Also distance to the roman center affects interpretation. For the Germans the law is the law - if it is difficult, then it must be changed. For an Italian, when the law is difficult, you just give a dispensation. Ma certo! Law is just the ideal you're striving for, but everyone knows you can't reach what is given as the norm. E.g. Marriage is not the same worldwide, even if we use the same words. I can understand more by abstracting (going upward) or by expanding my vision (going outward). Aquinas expanded horizon by bringing Aristotle and theology together - but he didn't write on the process he was using. Consider theories of Cognitive Dissonance and Social Construction of Reality and somewhat System Theory.

• First time in canon law was the wisdom period of simple setting up of norms and customs to govern actual communities - theology in practice in the first millennium of the church.
  

• Scientific abstraction began in 1140 - the concord of discordant canons. He tried to ferret out the organization of the text. From the vantage point of abstraction, a broader field of vision came into view.
  

• Trent and Following, the body of canon law was put into the horizon of Trent and the counter reformation. Critical inquiry ceased, narrowly literal exegesis of texts was all that was done. It was no longer ordinatio rationis, but ordinatio voluntatis - the will of the legislator. This narrowed the horizon.
  

• In the beginning of the 20th century, there was the theory of the perfect society: natural society was self contained in the state and the spiritual society was the church. There were areas of overlap: marriage and education - conflict, competition or concordats regulating materia mixtae: natural and spiritual. (Andorra - French President and Bishop of nearby diocese jointly are the head of state; they just signed a concordat with the Holy See.) The notion of perfect society affects jurisprudence; and the secular model of society was applied uncritically to the Church. An example is the development of a code, after the model of secular codes.
  

• Our age is searching for a theological horizon, unprecedented in history. The Catholic Vision was pushed outward to include the whole church of Christ, even beyond the Catholic Church. For this reason, the categories and judgments of prior ages has to be reassessed. We now have other questions, we need a deeper knowledge in this new context, we require our critical inquiry to see how the codex is expressing the new theological understandings. The codex is a product of the understanding of the legislator, which is not always that of Vatican 2. It is based on Vatican 2, but from the particular horizon of the legislator in the 70s and 80s. E.g. ecumenical sense.
  

• The horizon isn't just Vatican 2 but also the development in civil society: 1) the juridic culture of the end of the 20th century (e.g. the post WWII interest in fundamental rights); 2) advisory bodies; 3) increase in social sciences. E.g. 1095 - says who is incapable of consent - but consent is not described; also, those who suffer a grave lack of discretionary judgment - this is new. But this is a psychological determination - we need experts to determine this. Also we have to have judges who understand what specialists write. Incapacitas assumendi. Light psychological diseases that don't affect every day functionality, but that do effect the capacity for serious commitment required in marriage - at the time, even homosexuality was seen as an incapacity. In the 50s and 60s, there was no grounds to nullify before this - Anne, a Belgian judge then said that when homosexuals contract marriage, they promise what they cannot do - this developed a new jurisprudence of the Rota around this, and now we have the legislative implementation of the developing jurisprudence. Now because of the new ground, more marriages are presented for nullity. The horizon affects thinking and on law.
  

• Horizons continually change - because of this, the ideas change and the law has to move with this. Today, the horizons continue to change. This is part of the new attitude of mind, impacting education, jurisprudence. It seeks a great flexibility in the study of theology and law. It is also difficult for some to implement changing horizons and norms. Expected encyclical of Benedict XVI will also address this issue. We have to be open to the world, not close ourselves in a small warm club.
  

Interpretation of Law Many people are involved in interpretation of law. Those who legislate, those who study and teach, those who observe the law are all interpreting the way the law becomes part of the fabric of the church.

A law is conceived, it comes into life and it dies (it is still law till abrogated). A law is signed, then it is promulgated / published. Then there is the moment when a law has its binding force (after vacatio legis). Reception of law is an important stage of law. Canon 7 says a law comes into being when it is promulgated, but it really becomes law when it is signed - then sometime later is will be promulgated, and even later it will have binding effect. To make a law, the legislator determines the nature and needs of the community, and determines the laws and values that will meet their needs. The community receiving the law should receive it intelligently, understand its goals, so that it can be lived and applied in support of faith.


• Epieikeia - law must be equitable and applied in equity, flexibility and reasonableness. Legalism and legal positivism oppose epieikeia which would seek to do justice in the particular case - not every case can be contemplated in law.
  

• Interpretation is developed first by the legislator. Pontifical Council for Authentic Interpretation interprets for the legislator. Second, tribunals give and interpretation in applying law. Third, executors of the law also interpret, instructions and decrees interpret the law. Laws change, with their interpretation, they are in permanent evolution, because the horizons of the law are changing. Fourth, teachers and commentors interpret law. And fifth, the people interpret through reception of law which does not affect its enactment, but it does effect its vital force in community. Custom is the best interpreter of the law.
  

• Literary forms in law. Taking a point of reference from the world of biblical science and talks about literary forms in the codex. But the bible is a collection over hundreds of years.
  

April 9, 2008

• What is Orsy trying to do with his notion of Literary forms? How can one codex, published in one year, by one legislator have different forms? While he exaggerates, he does have a point. From the juridic point of view there are some strange texts found in the code, namely: Dogmatic statements intended to broaden the law, Theological opinions such as no lay participation in jurisdiction, Statements of morality, Spiritual exhortations, Philosophical theories, Empirical scientific theories, and True Juridic texts.

• Marriage is a sacrament and can't be dissolved (dogma), Marriage between the baptized is a sacrament (opinion), spouses are bound to the common life (morality), couple should receive confirmation, eucharist and penance (exhortation), matrimonial consent is an act of the will (philosophy), grave lack of discression invalidates consent (psychology), there is also much legislation in the marriage canons.
  

• Canon 1008 - de ordine translated in the plural. By divine institution some among Christ’s faithful are, through the sacrament of order, marked with an indelible character and are thus constituted sacred ministers; thereby they are consecrated and deputed so that, each according to his own grade, they fulfill, in the person of Christ the Head, the offices of teaching, sanctifying and ruling, and so they nourish the people of God. - You have here nonjuridical language, indelible character is a theological concept - juridically it means you can only have it once and it lasts forever. One sacrament, three grades, representing Christ in teaching, sanctifying and governing.
  

• Canon 1009 - Can. 1009 §1 The orders are the episcopate, the priesthood and the diaconate. §2 They are conferred by the imposition of hands and the prayer of consecration which the liturgical books prescribe for each grade. (now the ordines are just grades.) Further there is no title for these canons. Introduction, common norms, definition?
  

• Canon 849 - Baptism, the gateway to the sacraments, is necessary for salvation, either by actual reception or at least by desire. By it people are freed from sins, are born again as children of God and, made like to Christ by an indelible character, are incorporated into the Church. It is validly conferred only by a washing in real water with the proper form of words.
  

• Canon 1055.1. - dogmatic statement: The marriage covenant, by which a man and a woman establish between themselves a partnership of their whole life, which of its own very nature is ordered to the well being of the spouses and to the procreation and upbringing of children, has, between the baptised, been raised by Christ the Lord to the dignity of a sacrament.
  

• Canon 1141. A marriage which is ratified and consummated cannot be dissolved by any human power or by any cause other than death. This is a dogmatic statement Then next canon contradicts and says the dissolution can occur.
  

• Canon 1055.2. Baptized marriage contract is a sacrament - that is a theological opinion.
  

• Canon 1136. - Parents to care for kids - a statement of morality; 1151 spouses to live together unless lawful reason excuses them.
  

• Canon 1065ff catholics are to be confirmed before marriage - if without inconvenience - and are urged to the eucharist and penance. Exhortation
  

• Canon 1057 §2 Matrimonial consent is an act of will by which a man and a woman by an irrevocable covenant mutually give and accept one another for the purpose of establishing a marriage. Philosophyical theory.
  

• Canon 1095. Title is matrimonial consent - then it first lists those incapable of consent: Can. 1095 The following are incapable of contracting marriage: 1° those who lack sufficient use of reason; 2° those who suffer from a grave lack of discretionary judgement concerning the essential matrimonial rights and obligations to be mutually given and accepted; 3° those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage. - Psychological theory - what is the juridic meaning of this text?
  

• Good interpretation requires a background in each of these disciplines to be able to understand the law when it waxes philosophical or theological or psychological. There is more in the 1983 code than the 1917. Why? There was no council to interpret - they just had to codify what was already there. But after the council they had to start from the documents of Vatican 2. Sections of those documents were transplanted into the codex. Also, some texts were brought whole and entire from the old codex. 1055.1 is from Lumen Gentium; 1055.2 is from 1917 code. Sometimes the result is chaotic. Is this theology of Vatican 2 or just a selection as the legislator understood it? Many of the texts are compromises, so there is a great deal that can be found there. Also when the text was prepared, all the bishops consulted; 70,000 comments were made. Also the work was carried out in 14 commissions who didn't always know what others were doing. All this creates chaos.
  

• Puberty Canon 1096.1 ... least not ignorant of the fact that marriage is a permanent partnership between a man and a woman, ordered to the procreation of children through some form of sexual cooperation. §2 This ignorance is not presumed after puberty (when is that?). In the old code puberty was legally fixed 12 or 14 in general norms. It was in the schema, but then was left from book one.
  

• Administrative tribunals are mentioned, but then later the section describing them was removed.
  

• Baptism Canon 863: The baptism of adults, at least of those who have completed their fourteenth year, is to be referred to the Bishop, so that he himself may confer it if he judges this appropriate. But canon 97 says majority starts at 18 years. An interpretation is that adult is after infans and before the age of majority.
  

• Canonical equity is natural justice at work between rigid legalism and illegality. Epieikeia instead is particular application of law, and oikonomia is bringing insoluble cases to Christ for solution by the bishop. This is also the basis of the natural growth or evolution of a legal system.
  

• Rules:
  

• Legal norms are the child of their history.
  

• Meaning of a norm depends on its literary form.
  

• When law is based in theory, you must understand the theory to understand the law.
  

• Legislator speaks from his own horizon.
  

• Laws are to show forth wisdom to all nations.
  

• Universal laws should be for the universal church.
  

• Law to uphold the dignity of the person.
  

• Canon law to uphold christian values.
  

• Law in christian communities is to uphold its values, mere formalities are unsustainable.
  

• Every rule has its authority.
  

• Norms are understood in the context of the whole system.
  

• Meanings evolve.
  

• Core meaning is more enduring than the rest.
  

• Law is communication with communicator, message, receiver.
  

• Law can be a dialectical response to contemporary issues.
  

• Values - Integrated community knows what it needs and has the strength to attain it. Law can take on a life of its own, aside from the values it facilitates - this is legalism and leads to non-observance, etc. The legislator may respond with more laws, which only exacerbates the problem. Lack of sufficient law is not good either - confusion, etc.
  

• Trent sought to preserve unity, a value, through using law in place of authenticity in using the Vulgate. Also the Corpus Iuris Canonici froze legislation, forbidding commentaries. All problems had to be solved from above - or outside the law. Vatican 2 rejoined the church to its tradition. The code is only a partial implementation of this. A mature community of faith needs a legal system that makes sense in the present context.
  

• Role of Theology. Theology provides the community with an overall vision and definition of Christian values, while canon law provides norms of action for the appropriation of those values which are meant to serve the common good. Integration links values to norms of life.
  

• Moral Theology - DF thinks Orsy considers law too much as an appendix of moral theology and that moral theology is not appealing enough. He starts by saying Morals and Canon law should be an organic unity. Morals starts from the gospel and engages in a dialogue. But there is a distinction between Moral Theologians and Canon Lawyers: Moral theology receives and reflects on the Word. Canon Law organizes the society and embodies the community of the word. He concludes finally that theology has priority. Moral theology sets parameters for law making, DF: says not always. Moral theology guides norms of institutions, but many times not says DF. Conclusion is imporant with an interesting proposal: what are the values, how are they promoted, who is responsible? Legislator should link every norm to the saving mission of the Church, and make this evident to the Christian faithful. It would be helpful for the community where two books were available, with christian exhortation and then law.
  

April 30, 2008

• Subject of the disciplines. Definitions: Theology is knowledge about God, both from revelation and from reflection on revelations - indicative mood - based on faith and reason - faith seeking understanding. Canon Law is a system of law imposed on the community directed to action - imperative mood - based on power of governance - faith seeking action. Subject of both is the Church, but it speaks in different moods for different purposes.

• Object of the disciplines. Both are dynamic disciplines with the church and the spirit as subject. Theology has an unlimited content and horizon, canon law is circumscribed - it concern actual norms in a particular community and their meaning and application. Theology interfaces with secular philosophy as a way of connecting with culture, Canon law interfaces with secular jurisprudence. As the person is at best when knowledge and action are integrated, so with the society.

	Theology	Canon Law
Efficient Cause	Church	Lawmaker
Material Cause	Revelation	Values and Needs
Formal Cause	Judgments	Decisions and Norms
Final Cause	Faith, Understanding	Order, Growth, Service

Theology can judge canon law - the fit between it's material and formal cause, because that's what theology does. However, Canon Law is ill equipped to judge Theology - it is not it's role, it just makes rules.


• Schools of Theology of Canon Law. Is Canon Law law in the same sense as Secular law is law, or is it analogically law? And what is its' relations to theology? Is Canon Law a part of theology, or is it completely separate, or are they in some relationship?
  

• Identify the two disciplines law and theology.
  

• Morsdorf. - Canon law is a theological discipline with a juridic methodology (it also has a theological method). Develop theological positions in juridical norms. He stresses the unity to the denial of the real distinction. The nature of law should specify method, not vice versa. He fails to see the unique object of Canon law, or the difference between judgment and decision.
  

• Eugenio Corecco. - Canon law is the Ordinatio fidei - not ordinatio rationis. The term is ambivalent in substituting theological virtue for faculty of the soul. It seems to mean that the norms are part of faith, and originate from faith. Faith brings order into a community of believers. He used the term church order. He exalts law to the level of revealed doctrine. Reform is thus difficult, there is insufficient account of the humanity of the church and of law.
  

• Sobanski. - The law of the church cannot be separated from the church; it belongs to the church's reality, thus it is part of ecclesiology. He rejects the expression theology of canon law, since it is not distinct from theology. So moral theology and canon law are the same - no difference between, knowing and doing. Rouco Varela. Abp of Madrid is in the same line.
  

• Hans Dombois German lutheran civil lawyer wrote Das recht der Gnade drawing the same connection.
  

• Bertrams SJ of the Greg tried to make a distinction starting from the nature of ecclesiastical institutions, distinguishing internal (theological) and external (juridical) structures that are nonetheless organically united. Office of bishop the internal structure comes from ordination the external element is insertion into the structure of the church. Limited influence.
  

• Huizing SJ - Dutch professor in Rome, Nijmegen and Leuven - Juridical norms express sacramental relationships. He didn't like the name canon law - but preferred church order. Rights and duties developed as a way to organize the sacraments, especially Eucharist. Then popes organized the hierarchy according to secular systems which was a shift. So he proposed to return to the sacramental system. Doctrinal understanding can guide the legal system.
  

• Autonomy of Canon Law
  

• Navarra Basque region, capital is Pamplona - Opus Dei. They think there is no relationship. There is only a relationship between authority and law. It is an instrument in the hands of authority, to be used at its whim, but bears no relationship to theology or the Gospel. It is law like any law system. Traditional / conservative group so it seems schizophrenic - but you can see it in their publication - good law, but nothing of theology.
  

• Italian School In italy there are state universities with civil law faculties with a canon law chair and 8-9 ecclesiastical universities in Rome - strictly for church - with a few faculties. This theory is from the state universities where church state issues are the focus. They are interested in administration and relation to the state; theology is not important.
  

• Rudolph Sohm Lutheran who rejects Canon Law - Law is antithetical to the Gospel and the Church. Cohersion is not proper in a community of the faithful - it is a heterodox development. Some types of law may be inappropriate - but deFleurquin sees some norms as necessary, and it should be different from the secular system.
  

• Summary A stable community with a continuity needs some law - perhaps a minimum law system. Describe the communio. 3000 particular churches relate to one another - how do they relate to the communio - and perhaps one should be responsible. All secular jurisprudence doesn't fit in our community - it is important to understand theology before making norms to order. Theology and Canon law can't be too far apart; but it should be good jurisprudence. Jesus established a church, the working out of it is human. Theology of Canon Law reflects on how well this was done and how well it continues to work in a dynamic community of faith. But norms often precede theological articulation - e.g celibacy.
  

• Canon Law is the meeting or crossroads of Theology and Jurisprudence. The meeting of communio and coersion (though people can walk out).
  

• Canon Law to be better believers.
  

• Values. Good law embodies the values of a society. Specific diaconia in the church service of unity and reconciliation.
  

• Minimum Canon law should be a science of the minimum. Perhaps there is too much in the codex. When a norm is not necessary, it is necessary not to make a norm.
  

• Open Problem is whether the faculty should be in the Faculty of Theology or the Faculty of Law. was l +cl ever together Chapter 10.
  

May 21, 1008

Örsy, Ladislas M. Theology and Canon Law: New Horizons for Legislation and Interpretation. Michael Glazier books. Collegeville (Minn.): Liturgical Press, 1992.

• Intention give an idea of the notion of Theology and the notion of Law, and the differences and connections. Law is an instrument for more dynamism and faith in community. If law doesn't help it is not good. Laws should be a minimum, but then some will ignore, some will lead with a pastoral intent and ignore law. If the norms don't serve, we have to change the norms and not ignore them.
  

  The best way to undermine respect the law is not to renew it when it is time. This too leads to chaos.
  

  For exam, bring codex.
  

• New attitudes of mind - Important chapter - try to understand it well and look carefully at the 7 footnotes. (Subjective Component)
  

  Searching for New Horizons - Objective component - understand the longer footnotes.
  

• Interpretation - a little repetition. See epieikia* p. 43 - 45. and reception p. 45. Interpreters*: legislator, courts, administrators. Qualities not impt.
  

• Literary forms see footnotes. Hierarchy not impt - but see equitas and oeconomia p. 60. p. 63 Evolution (65 repetition of horizons). Hermeneutics p. 68. Oikonomia 73. Rules of interpretation 77 - read, don't study and find 3 most relevant.
  

• Reception p. 83 is repetition
  

• Values - how far can juridic structures be used to protect values. Important: p. 94 on the integrated community. Rest is on history. Try to understand how trent supressed creativity through legalism, resulting in poor development of law.
  

• Integration and Role of Theology in interpreation - footnotes are important. Codex is helpful.
  

• Moral Theology and Canon Law - DF thinks Orsy considers law too much as an appendix of moral theology and that moral theology is not appealing enough. He starts by saying Morals and Canon law should be an organic unity. Morals starts from the gospel and engages in a dialogue. But there is a distinction between Moral Theologians and Canon Lawyers: 122-123. He concludes finally that theology has priority. 128: moral theology sets parameters for law making, DF: not always. 129: moral theology guides norms of institutions, many times not. DF: disagrees. Conclusion is imporant with an interesting proposal. 137: It would be helpful for the community where two books were available, with christian exhortation and then law.
  

• Schools: Try to understand, but appendix isn't that important.
  

• Gives different schools. See how part 1 gives dynamic vision, part 2 gives a static vision. See Theology Judges Canon Law. Part 3 gives different schools. Also develop a position in the thinking between canon law. Prepare a short synthesis we can bring.

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Correcco says canon law is not ordinatio rationis but the ordinatio has to be directed to a community but ordinatio fidei, but rather isn't this the ordinatio rationis for the community of faith. Ordinatio fidei seems to be a comparison of canon law to civil law by pointing to the source of the norms, ratio or fide, but should it rather be a distinction between the community by whom and for whom the ordinatio is made.

Őrsy in the preface defines canon law as fides quaerens actionem, along side the famous definition of theology fides quaerens intellectum. This seems to better parallel the two disciplines. Theology can then reflect on the nature of the christian community and on the way it organizes itself; canon law develops norms for the way this community acts. Ecclesiology underlies the organizational or constitutional law, sacramental theology underlies the section on sacraments. The process law is more directly aligned with secular jurisprudence, but also has pastoral, moral and even anthropological underpinnings. Penalties is based on pastoral and moral theology, but also on the theory of punishment: retribution, restoration, rehabilitation, deterrence, and also on social and psychological theory. Do we need law, and if so, what law? How balance between legalism and lawlessness; between universal and particular.

• A stable community with a continuity needs some law - perhaps a minimum law system. When a norm is not necessary, it is necessary not to make a norm. Describe the communio. Relation ad inter, ad intra, ad extra. Good theology and good jurisprudence.

Canon Law is the meeting or crossroads of Theology and Jurisprudence. The meeting of communio and coercion (though people can walk out).

• Good law embodies the values of a society. Specific diaconia in the church service of unity and reconciliation.

An important question because very often at the root of the application of law and the interpretation of law is a fundamental concept of the place of law in the society, in this case, the relation of law and theology.

One canon lawyer – if your application of law leads you to the wrong pastoral response, you have probably misunderstood or misapplied the law.

Religious institute – gathers not because of law, for the purpose of law, by law. They gather around a particular insight into living the gospel and they seek to live, work and pray together. In order to make that happen, issues come up as people work out the living of the ideal – what if people want to join us, what if people want to leave, what if conflicts arise, what if people ask us who we are and what we are doing? Who leads, and how much authority should they have to enable them to do their job, what are the limits of that authority, and thus the rights of the members. House rules.

Canon law is interdisciplinary, drawing from theology and philosophy, jurisprudence, and all the social sciences: anthropology, sociology, psychology, it is not surprising that it is strongly affected by horizons. E.g. religious life in community in Africa / vow of poverty in Asia. Horizons changed over time: Apostolic, Gratian, Trent, perfect society secularism and Vatican II theology. But also horizons vary across cultures. If these aren't explored, it is difficult to have good jurisprudence.

These other disciplines can tell us what laws we need, and when to use the laws. Using law to address a pastoral or social problem. E.g. political involvement by community. Epieikeia in Aristotle acknowledges that general legal rules can do injustice in particular cases. Oeconomia - to address insoluble problems. Don't try to solve eveything with law. Love sums up the law, last phrase of last canon.