§ 10. General Survey

The source of law is called that organ which gives visible form to law, and from which the provisions of law proceed and derive their force.[1] According to the unity that must exist in every legal community, there can be only one source of law that holds as the primary source, and from which the other sources then proceed, or may proceed. In the Christian Church that primary source of her law is the will of the Founder of the Church. From this first source the other sources derive their existence, and these are: church legislation and church custom. But since church law in the objective sense is composed not only of those laws which the Church herself has issued, but also of those which the state authority has issued and which the Church has received and recognized—insofar as they concern the external security of the Church and the establishment of proper relations between her and the state—these civil laws too are regarded as a source of church law, and the science [of church law] must pause over them and study their significance for church law.

All the sources of church law are divided into a) fundamental, or canonical, b) historical, and c) practical. To the first belong first of all Holy Scripture and Tradition, then the canons that have been received by the whole Church, and finally certain church statutes which concern either the whole Church or particular institutions within the Church; to the historical belong the legal enactments of the Church that have not entered the fundamental canonical collection, the laws of the state authority, and the various nomocanons; and to the practical belong the laws that are today in force in the individual local churches.[2] Dividing the sources in this way, it is difficult to determine precisely their internal significance and relative importance, all the more so since the collections of these sources are, without distinction, assigned to one or another of these rubrics.[3] To separate the sources from the collections seems to us absolutely necessary for the sake of the very meaning of each; and the sources themselves must be ranked according to their degree of importance and their relation to the primary source of church law.

On the exact knowledge of the sources and of their mutual juridical relation depends the knowledge of church law itself; and so that this knowledge may be gained as fully as possible, we shall first consider the significance of these sources in themselves and their application, and only then shall we treat the sources themselves according to their internal importance.

CHAPTER ONE On the Sources of Church Law in General