On the theology of canon law

The theology of church law has been an important topic in twentieth century theological discourse. The discourse dates back to the late nineteenth century and the Protestant legal historian Rudolph Sohm (1841-1917) who in his seminal Kirchenrecht (2 volumes, 1892-1923) claimed that the essence of law contradicts the essence of church.

Sohm was a great historian and his historical study on the early church is also part of the historical background of modern Eucharistic ecclesiology which developed in reaction to Sohm’s theological theses by largely accepting his historical data but reinterpret it. Sohm argued that the ordained ministry, church law, and church councils developed from the institutionalization of the organized celebration of the Eucharist, which he considered to be a secondary and unimportant rite in earliest Christianity. The Eucharistic ecclesiology movement largely accepted Sohm’s historical findings, but argued theologically that the Eucharist was not a secondary rite, but a constitutive and essential rite of the church.

Sohm’s critique of church law was based on a Pietistic Lutheran concept of church (i.e., ecclesia invisibilis – the church is an invisible community of all those who in their hearts believe in Jesus Christ) and a nineteenth century statist and positivist concept of law (i.e., law is seen as coercive commands by the state). His concept of church is denominational and hardly acceptable if you are not a Protestant and his concept of law is outdated today (cf. H. L. A. Hart’s Concept of Law). But Sohm’s provocative statement put the focus on the issue of theological foundation and understanding of law in the church.

The theological issue of church law involves several parts. One issue is the relationship between the theological idea of (universal) church confessed in the Niceno-Constantinopolitan Creed and the empirical churches (i.e., organized Christian religious communities).  What is the relationship between the theological idea of (universal) church and the normative order and organization of empirical churches? Related to this issue is also the issue of how we should theologically understand the fact that the empirical churches are divided into several different denominations. What is the relationship between denominations and the theological idea of (universal) church? These issues concern the ecclesiological foundation of church law.

The phenomenon of law may be described as an institutionalized normative order which regulates interpersonal relationships. The concept of church (i.e., ecclesiology) is important in the foundation of church law since it defines the community of interpersonal relationships which are regulated by church law. The constitutive interpersonal relationships of the church are founded in the proclamation of the Gospel, baptism, Eucharist, the ordained ministry, the normative sources of theology, the confession of a common faith, etc.

The juridical relationships regulated by church law may be divided into two main categories: internal church law and external church law. The internal church law regulates the internal order of the church. The external church law regulates the church’s relationship with the international community, the state and other denominations. How should we understand the relationship between the legal competence of the state and church law?

A second issue in the theology of church law is the theological interpretation of history. What is the relationship between the kingdom of God proclaimed by Jesus of Nazareth and the Christian church? How should we theologically understand institutionalization in the development of earliest Christianity? What is the relationship between charismata and ecclesial institutions in earliest Christianity? How should we theologically understand the historical development of Christianity when it became the religion of the late Roman Empire after the Constantinian turning point?

A final important issue in the theology of church law is the understanding of ideal law in the church. What is the relationship between New Testament parenesis, the earliest pseudo-apostolic church orders, and canon law? What is the relationship between biblical law and church law? What is the relationship between biblical norms and church law? What is the purpose of church law? How should juridical norms be used in the church? How should the church regulate new situations in the development of church law? How do we determine what the law in force is? Which criteria should we use when evaluating positive church law? How should we use and understand the historical sources of church law (fontes iuris cognoscendi)? What are the constitutive sources of church law (fontes iuris essendi)? The issue of ideal law is also related to theological anthropology and Christian ethics since the understanding of what the human person is and ought to be also affects the understanding of interpersonal relationship and the purpose and use of law from a Christian perspective.

There is a great deal of literature on the topic of the theology of church law, but the following works give a good introduction to the subject:

P. Gherri. Lezioni di teologia del diritto canonico. 2004.

P. Erdö. Theologie des kanonischen Rechts. 1999.

M. Honecker. Evangelische Kirchenrecht. 2009.

W. Steinmüller. Evangelische Rechtstheologie. 2 volumes. 1968.

R. Sebott. Fundamentalkanonistik. 1993.

R. Sebott. Gnadenrecht. 2009.

L. J. Patsavos. Spiritual Dimensions of the Holy Canons. 2003.

J. A. Coriden. Canon Law as Ministry. 2000.

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Comments

  • solcanon1988  On March 1, 2015 at 2:36 pm

    “How did Rudolf Sohm arrive to charismati-pneumatic concept of Church?”… we were asked about this…thanks for this article. it gives answers

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