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We live in an age and a nation that exalts freedom sometimes to the point of rejecting law. This attitude is brought over to the relationship many people have with the Church, that is, they reject the Church’s law. Sometimes they accuse the Church of simply having “rules,” looking upon the Church’s law as if it were a manipulative game by which the authorities of the Church could coerce innocent people to actions they would not otherwise do, by inflicting the fear of salvation. Yet the Church’s laws aren’t arbitrary or childish rules, for they have their origin in revelation, in Christ, in right reason and in the authority God gave the Pope and the Bishops.

In today’s unit we will work on the question of what Canon Law is, discussing it in such a way so as to penetrate its nature, its origin and its content. The goal is threefold, to put Canon Law in its proper place among the theological disciplines of the Deposit of Faith Series, to help those who study this unit to live with the obedience of faith and the freedom of the sons of God[2] by informing their minds with the basic notions of Gods will as expressed in Canon Law, and to help the student have a prudent fear and respect for canon law mindful of the popular adage, “a small bit of learning is a dangerous thing.”

The Deposit of Faith Series continues the first cycle through the various sectors of theology with yet another introductory topic. This is, however, the last introductory topic. While this and the previous units exposed topics with generalities and principles, all the upcoming units will discuss specific aspects of the world of theology. For example, the next few units will study the first five hundred years of the history of the Church, then the early Church Fathers, then the question of Catholic Apologetics, and then the Pentateuch and so forth.

Canon Law is slightly different from theological questions, and yet it is itself filled with theology and is frequently confused with it. This unit will help us all distinguish which questions are theological and which are canonical, point out the difference of methods between theology and canonical jurisprudence, review in general strokes the content of Canon Law to help us all realize how much there is there, and then tackle some concrete questions about which Canon Law speaks. This unit is therefore somewhat briefer than the rest, and serves only as an introduction to the vast field of Canon Law.

Canon. Canons. From the Greek κάνον which is a reed. It is both a symbol of power and an instrument with which to measure. In current usage, it may refer to a specific law in the Code of Canon Law indicating the number to aid the reader in locating it. All the laws in the current Code are numbered and in order.

Liceity and Validity. Validity refers to the substance of an act, whereas liceity refers only to the lawfulness of the act. Some acts are done validly, but not licitly, such as when Bishop Marcel Lefebvre consecrated bishops without an apostolic mandate. The act was illegal by Canon Law standards, but his act of consecration truly made these men bishops. Most of Canon Law refers to liceity, unless the law specifies otherwise, or states that one is incapable of doing the act.

In the unit on moral theology we discussed the different general types of law: eternal law, divine law, natural law and positive law. Canon Law is the positive law of the Church, yet sometimes it expresses the content of eternal, natural or divine law, as when it prohibits incest in its norms on marriage, when it condemns abortion, or when it defines the criterion of papal infallibility.

We define a thing four ways, saying what its concrete determinations are, what its essence is, what its finality is, and what its origin is. Let us define the Code of Canon Law in these four ways.

By its concrete determination: “Besides containing the fundamental elements of the hierarchical and organic structure of the Church as willed by her divine Founder, or as based upon apostolic, or in any case most ancient, tradition, and besides the fundamental principles which govern the exercise of the threefold office entrusted to the Church itself, the Code must also lay down certain rules and norms of behavior.”[3]

By its essence : “The Church’s principal legislative document founded on the juridical-legislative heritage of revelation and tradition.”[4] Since it strives to put into canonical terms the theology of the second Vatican council, the documents of Vatican II offer us a key of interpretation to understand exactly what the Code is trying to say.

By finality: “[Canon Law’s] purpose is… to create such an order in the ecclesial society that, while assigning the primacy to love, grace and charisms, it at the same time renders their organic development easier in the life of both the ecclesial society and the individual persons who belong to it.”[5] It is “to ensure order both in individual and social life, and also in the Church’s own activity.”

By its origin: Simply enough, by the promulgation of the supreme authority of the Catholic Church on earth, namely the Pope and the bishops in communion with him.

Pope Celestine warned, in a letter to the bishops of Apulia and Calabria, “no priest is permitted to be ignorant of the sacred canons.”[6] Even though priests must know the ecclesial laws, some knowledge of them is convenient for the good of all the faithful.

To begin we must “recall the distant patrimony of law contained in the books of the Old and New Testament from which is derived the whole juridical-legislative tradition of the Church, as from its first source.”[7]

Jesus Christ completed this law and fulfilled it perfectly in himself (cf. Mt 5:17). This old law was not sufficient to attain justification (cf. Rom 3:28, Gal 2:16). Nonetheless, the Lord continued to command us to observe the Decalogue (Rom 13:28; Gal 5:13-25; 6:2). St. Paul upholds the fact that we need to observe the discipline of the Church (1 Cor 5 and 6).

During the first ten centuries, private collections of ecclesiastical laws were gathered in countless places. These contained the norms of the Roman Pontiffs, as well as other norms taken from inferior authorities.

The Emperor Julian (527-565) had, in ancient Rome, mandated the production of a summary of civil law called Corpus iuris civilis.[8] These were Christian times, so there were even stipulations regarding the Church and clergy, but it remained civil and not ecclesial law. But the real development of jurisprudence by jurists and lawyers happened in the twelfth century, around the city of Bologna in north-central Italy. A school of the study of law was founded by Pepo and Irnerius. Emperor Frederick Barbarossa visited Bologna in 1155, and by an act[9] protected the teachers and students in Bologna under imperial protection, making the law be written in Justinian’s law.

All this time and hereafter, the Ecumenical Councils of the Church were occasionally held (to date there have been 21), and after the promulgations regarding theological matters, the Councils often promulgated “canons,” the laws they commanded to come into effect. Local councils, such as in Rome or Carthage or Toledo, also took place forming and imposing local legislation.

A monk named Gratian, by personal and private initiative, made one massive collection of all the ecclesiastical laws. Frequently these norms even contradicted one another in varying aspects. This came to be known as the Decretum Gratiani.[10] He began ecclesial jurisprudence, by commenting in his own words such things as the nature of the law, and conflicting details of the Church’s law.

In his day, still during the 12^th century, there were “glossators” who assisted the Roman Pontiffs, as experts in canon law, who formed eventually a Corpus iuris canonici, in imitation of Roman civil law. It included several things:

To this day, this body of documents is often referred to as the “Corpus,” as opposed to the “Codex” which we have today. The precedent was to cite the previous laws in their full text, making for a highly verbose and complicated collection of laws.

But legislation kept going forward. For example, the long and voluminous Council of Trent promulgated more canons, which were never systematically composed together with the content of the Corpus or any other legal promulgations of the Church, and chaos began to prevail. It took a valiant and brilliant man to undertake the task, during those centuries, of being a canon lawyer.

Before the first Vatican council, there was much talk by the bishops of establishing one unified collection of laws to make them all of more service to the faithful, almost as if to say, “keep it simple.” Pius X, near the beginning of his pontificate, decades later, actually began to put all this talk into action, entrusting the work to Cardinal Pietro Gasparri, starting in 1904.

He decided to not cite long texts in their fullness, but just express the principle in a more pithy way. He also formed all the laws into five books, grouping everything under persons, things and actions, imitating the institutes of Roman law. In fact, among the three dominant legal systems in the world in our day, the “Common Law” of the Anglo-American legal tradition, Islamic Sharia, and Roman Law, the laws of the Catholic Church follow the Roman tradition due to the Roman influence.

It was promulgated by Pope Benedict XV on May 27, 1917, to take effect on May 19 of 1918. Hence it is called the “Pio-Benedictine Code,” or the Code of 1918.

Pope John XXIII declared on January 25, 1959, when he announced his intention to convene an ecumenical council, that he wanted also to reform the existing corpus of canonical legislation.[11] Yet of course, this work could not begin until the Council was held; the Council Fathers would first promulgate what the Holy Spirit would lead them to, then they would reform the Code accordingly. Both the council and the Code had in view “one and the same intention, the renewal of Christian living.”[12] Some of the key words and expressions of the Council were later incorporated into particular canons.

The bishops as individuals and as local episcopates worked with experts in theology, history and canon law to develop the new Code. Our Ordinary, Cardinal Adam Maida, was part of the commission that worked on the new Code. They had a whole list of criteria to apply in reforming the Pio-Benedictine Code, for example:

· Maintain the juridical character, that is, with norms, definition and protection of rights, etc.

The monumental effort to reform the code took nearly twenty years. The Church has and continues to address specific cases or clarifications Bishops ask regarding the Code and its application. These are usually published in the Acta Apostolicae Sedis, the principle official publication of the Holy See.[14]

Much more could be said about the history of the law, but this should suffice to point out the biblical roots, the historical developments, and more detail regarding how we came to the 1983 Code which is now authoritative in the Church.

In Appendix A of this document, one finds a synopsis of the history of Canon Law.[15]

· Book 1: General norms, lays downt he ground rules of the Chruch’s legal system.

· Book 3: The Teaching Function of the Church, tells how we proclaim the gospel of Christ through Church teaching.

· Book 4: The Sanctifying Function of the Church, deals with our sanctification by Christ in the sacraments.

· Book 5: Temporal Goods, gives guidance on how we are to deal with worldly goods.

There are different kinds of content in Canon Law. Not ever canon refers to a command that needs to be done. These are, in a sense, the “literary forms” of Canon Law. One finds:

Appendix C is a useful facts sheet regarding the code, what it is, what books it has, how many canons it contains, and the general gist of the canons of the Code.

The Code also contains some precepts which the Catechism repeats,[17] of which there are five, and in the context of the Church’s liturgy establish a certain minimum of what is necessary for the spiritual life:

On raising one’s children Catholic. As a group we can read and comment the canons posted in Appendix B.[18]

The remainder of the session will be related to discussion on selected parts of Canon Law regarding such things as the first few canons, annulments, communion and other such pertinent issues of contemporary interest and usefulness. Specific canons will be quoted and explanation and discussion will ensue.

Next Topic, Suggested Reading. (Church History Snapshot (1 of 4): first five centuries)

First Stage: Apostles to the end of the Roman Empire (1^st to 8^th centuries)

Direction of law: A mixture of Scripture (decisions contained in the bible), customs, decisions of local gatherings of bishops, and general councils—answers and directives from key bishops and especially the bishop of Rome.

Direction of law: Since the church filled the gap left by the fall of the Roman Empire, creating the Holy Roman Empire, strong unity of Church and State in terms of governance; attempts were made to reform social life and religious practices through decisions of councils. There was a strong appeal to past practices and roman directives. The Digest of Justinian was discovered in the 11^th century (Roman Law), that gave new impetus to the organization and presentation of Church law.

Direction of law: Collections of previous laws from councils, popes, etc., began to appear and were used to promote Church reform. There was frequent appeal to Rome to settle disputes. This increased centralization of church law and government. There was a growing independence of the Church from civil authority.

Direction of law: Decrees of the Council of Trent were used in addition to existing collection of Church law (known as the “Corpus Iuris Canonici” or body of canon law) to reform discipline and practices in the Roman Catholic Church. A developed understanding of Church as a perfect society began to grow.

Direction of law: Bishops at Vatican I asked for simplification of 19 centuries of precedents, collections of laws; Pius X and Benedict XV with help of Cardinal Gasparri adopted new style of law for Catholic Church based on civil law codes (Napoleon’s in France; Civil Law Code in Germany, Italy) simplifying the statement of the law and making it standard for the whole Church. John XXIII called for an un-dating (“aggiornamento”) of this Code at the same time he called for the Second Vatican Council, so the revised Code could implement the Council (speech of January 25, 1959).

Canon 226 - §1. Those who are married are bound by the special obligation, in accordance with their own vocation, to strive for the building up of the people of God through their marriage and family.

§2. Because they gave life to their children, parents have the most serious obligation and the right to educate them. It is therefore primarily the responsibility of Christian parents to ensure the Christian education of their children in accordance with the teaching of the Church.

Canon 776 - By virtue of his office, the parish priest is bound to ensure the catechetical formation of adults, young people and children. To this end, he is to avail himself of the help of clerics attached to the parish, as well as of members of institutes of consecrated life and of societies of apostolic life, being mindful of the character of each institute; and the assistance of lay members of Christ's faithful, especially catechists. All of these, unless they are lawfully impeded, are not to refuse to give their labours willingly. The parish priest is also to promote and to foster the role of parents in the family catechesis mentioned in Canon 774 §2.

Canon 774 - §1. The care for catechesis, under the direction of lawful ecclesiastical authority, extends to all members of the Church, to each according to his or her role.

§2. Before all others, parents are bound to form their children, by word and example, in faith and in Christian living. The same obligation binds godparents and those who take the place of parents.

Canon 777 - In a special way, the parish priest is to ensure, in accordance with the norms laid down by the diocesan Bishop, that:

2° children are properly prepared for first confession and first holy communion, and for the sacrament of confirmation, by means of catechetical formation over an appropriate period of time;

3° children, after they have made their first holy communion, are given a richer and deeper catechetical formation;

4° as far as their condition allows, catechetical formation is given to the mentally and physically handicapped;

5° the faith of young people and of adults is strengthened, enlightened and developed by various catechetical methods and initiatives.

Catholic Schools and the Necessary Cooperation of Parents and Teachers

Canon 796 - §1. Among the means of advancing education, Christ's faithful are to consider schools as of great importance, since they are the principal means of helping parents to fulfil their role in education.

§2. There must by the closest cooperation between parents and the teachers to whom they entrust their children to be educated. In fulfilling their task, teachers are to collaborate closely with the parents and willingly listen to them; associations and meetings of parents are to be set up and held in high esteem.

Canon 1366 — Parents, and those taking the place of parents, who hand over their children to be baptised or brought up in a non-catholic religion, are to be punished with a censure or other just penalty.

The 1983 Code of Canon Law was promulgated by Pope John Paul II on January 25, 1983. It took effect on November 27, 1983. The Code of Canon Law was written with the universal church in mind. Its laws bind every Latin diocese, cleric, layperson, Catholic and sometimes Non-Catholic, throughout the world. Catholics of the Eastern Catholic Churches have their own legal code, which is called the Code of Canons of the Eastern Churches (1990).

Church law depends on theology for direction and the 1983 Code of Canon Law was primarily influenced by the theology of the Second Vatican Council (1962-1965).

The 1983 Code of Canon Law is a codified system of law similar to that of the Louisiana State Code or the Quebec Civil Code. It is based on the Napoleonic Code, which is of a different tradition than British Common Law. The first ‘Code of Canon Law’ was promulgated in 1917.

It is comprised of 1752 canons. Canons are short paragraphs of law that present a norm or rule. The law was written in such a way that it can and should be interpreted to meet the needs of a given situation. We have a device in law called dispensation when certain laws can be relaxed in a particular case.

Written into the code is an organizing principle that the church has primary functions:

Law helps the Church work toward the fulfillment of its mission, which is the salvation of souls (see canon 1752, the last canon of the code).

On the matter of teaching (Prophetic Office of the Church), the “college of bishops” or the Pope action on his own, constitute the Magisterium of the Church. The Magisterium is set with the task of transmitting the faith from one generation to the next. The ways in which the Faithful interact and cooperate with the teaching of the church is outlined in Book 3 (e.g., parents, teachers, universities, authors, etc.)

On the matter of sanctifying (Priestly Office of Christ), those ordained clergy (bishops, priests, and deacons) properly hold this task since it focuses on the administration of the sacraments; however, the laity also exercise this office from time to time in varying capacities.

On the matter of governance (Kingly Office of Christ), the Church uses the same distinction as civil society in the three levels of government (legislative, executive, and judicial). The pope and the bishops hold all three powers of governance. Anyone under the pope of bishops cannot legislate (i.e., cannot enact laws). Priests, deacons, and the laity can function in roles of the executive (e.g., lay chancellors). Priests, deacons, and the laity can function in roles of the judiciary (e.g., lay judges).

[1] Ps 118 (119):1-10.

[2] Cf. Romans 8:21.

[3] Pope John Paul II, Sacrae disciplina leges, in Code of Canon Law: Latin-English Edition, ed. Canon Law Society of America, Washington, D.C. (Libreria Editrice Vaticana: 1983), xxx. Hereafter “SDL.”

[4] SDL, p. xxx.

[5] SDL, p. xxix-xxx.

[6] July 21, 429; Mansi IV, col. 469.

[7] SDL, p. xxix.

[8] This document had three parts, the Institutions, the Codex, and the Digest. It can be found in its original language on line at http://www.gmu.edu/departments/fld/CLASSICS/justinian.html, thanks to the efforts of the Classics department at George Mason University of Virginia.

[9] The Authentica habita.

[10] The first name, which he gave it, was the Concordia discordantium canonum. The Latin name is nearly humorous, translating to Concord of the discordant canons, underlining the many problematic contradictions that were found in them.

[11] SDL, p. xxvii.

[12] SDL., p. xxviii.

[13] Cf. Preface to the Latin Edition in Code of Canon Law: Latin-English Edition, ed. Canon Law Society of America, Washington, D.C. (Libreria Editrice Vaticana: 1983), pp. xxxvi-xxxviii.

[14] It is usually abbreviated as AAS, contains original documents in their original languages. Official publications of entities of the Roman Curia are listed at http://www.ewtn.com/library/CURIA/VISPUBS.HTM. Some key ones, as examples:

Acta Apostolica Sedis: Official bulletin of the Holy See

Decisiones seu Sententiae selectae: Tribunal of the Roman Rota

Notitiae: Congregation for Divine Worship and the Discipline of the Sacraments. Etc.

[15] This appendix was prepared by Michael Trueman, a Canon Lawyer of the Archdiocese of Detroit, and author of the book, Surprised by Canon Law, cited amply in the following footnote.

[16] This brief summary of the seven books is copied from Peter Vere and Michael Trueman, Surprised by Canon Law: 150 Questions Catholics Ask about Canon Law, Cincinnati (St. Anthony Messenger Press: 2004), 5,

[17] CCC 2041-2043.

[18] They were provided to this author by Mr. Michael Trueman, a Canon Lawyer of the Archdiocese of Detroit and co-author of the already cited book, Surprised by Canon Law.

[19] Ps 118 (119):41-48.