§ 2. The Church in the Sphere of Law

The Church is the kingdom of God on earth. So her own Founder, Jesus Christ, named the Church. But He also once used the word church (ἐκκλησία) during His earthly life, and that in a sense quite different from the first. Speaking of a brother who has sinned, Christ says that he should first be admonished alone, and if he will not listen, that he should then be admonished before witnesses, and if he will not listen even to them, He adds: “tell it unto the church; but if he neglect to hear the church also, let him be unto thee as a heathen man and a publican” (Matt. 18:15-17). Here the Church is already presented as a community of the faithful, set in opposition to unbelievers. Both these senses that Christ gives to the Church complement one another and show her general significance. It is upon this second passage from Holy Scripture that church law fixes its attention, and, recognizing the Church, on the basis of that first passage of Scripture (Matt. 16:18), as an institution of God on earth, and adopting besides other features by which she is distinguished, the law regards the Church as a community of people who believe in Jesus Christ, who are united among themselves in one common spiritual bond by the unity of the ecumenical confession, who through the mysteries receive sanctification by the grace of the Holy Spirit, and who, under the invisible headship of Christ, are spiritually governed unto salvation by those who have inherited the authority of the apostles.[1]

As a community of people on earth with its determined end, as a social organism, the Church must have her own precisely determined laws, according to which that organism develops and lives, and which establish the relations among the members of that organism. The basic laws were prescribed by Jesus Christ, and others were issued, on the basis of the same, by the Church herself by that authority which she received from Him. According to the relation of the Church, as a social organism, to the inner life of each individual member of that organism, and having regard to the very task of the Church in the world, her laws differ both from moral laws and from all earthly social laws alike.

Prescriptions that determine the outward activity of the members of any social organism whatsoever, and that establish the relations of those members among themselves and to the whole society, are called juridical laws, and, with reference to the Church, are called church-juridical, and as such are essentially different from moral laws both in subject-matter, and in scope, and in sanction. As to subject-matter, the juridical law, which is to regulate the necessary order in the given society, concerns only the outward acts, that is, those acts of man’s free will that manifest themselves outwardly, for only such acts can have consequences for the existing social order. The moral law, on the contrary, concerns also all the inward movements of the soul of man, his inclinations, his intentions; and since these inward inclinations and intentions of man, however evil in themselves, do not, so long as they do not show themselves in some outward act, yet violate the rights of others, they cannot be subject to the judgment of juridical law. As to scope, the whole activity of man—both his inward intentions and his outward acts—belongs to the domain of the moral law, for these outward acts are, in themselves, nothing other than the expression of what man has conceived within himself, nothing other than the realization of man’s intention, and accordingly the moral law subjects to its own judgment also man’s intention to perform an act. The juridical law cannot penetrate the intention of the given act, but judges only of what the man has done as a member of a given society, and accordingly, insofar as he has by that act injured the rights of others or offended against the general prescriptions of society, the juridical law judges him. As to sanction,[2] if the juridical law is to preserve and maintain the existing outward order in society in accordance with the established end, then it has the right and the duty not only to see that this order is upheld and that all men respect it, but it must also employ coercive force, so that everyone submits to that order and everyone is held responsible for a violation of that order. The moral law, on the contrary, stands before the tribunal of conscience, and its fulfillment is left to the free will of man, who will answer before God if he has violated that moral law.[3] Coercive force is the chief distinction between moral and juridical law, and it is the unconditional condition of every juridical law, and so also of church-juridical law. The difference lies only in the character of that coercive force in the Church and in the state. The Church, by her fundamental constitution, cannot employ physical force as the state can, but she likewise has authority to punish every member of the Church who does not submit to her prescriptions and who violates the order established in her—an order that has strictly juridical significance. Nor does this employment of coercive force in the Church stand in contradiction to the fundamental Christian dogma of free will. The Church compels no one by force to enter her communion; but once someone has entered and belongs to the Church, he must then submit to her laws, which rest upon the divine will, if he wishes to enjoy those benefits that the Church affords him. The coercive force of church-juridical prescriptions exists not for the sake of the Church herself, but for the attainment of the given end on the part of those who have, by their free will, entered the church community, and who may, by that same free will, withdraw from it. In keeping with her own character, the Church exercises coercive force by spiritual means, so that all her acts in this respect can never have a physically-coercive significance, since it is not possible to act upon the heart of man by physical coercion so that he should strive toward higher Christian ends, and since the Church is, above all, the kingdom of freedom.

With regard to the very task of the Church in the world, her laws differ from the laws of all earthly societies, and in particular from the laws of states. This difference rests upon the nature of the Church herself, on the one hand, and of all other earthly societies, and of the state in particular, on the other. According to the task that has been appointed to the Church by God, she has the character of necessity, whereas no state in the world has such a character; and as such, the Church has a wholly independent significance, whereas the state can have that significance only relatively. The Church is limited neither by time nor by place, nor is her existence conditioned by these or those local circumstances, but she can and must exist everywhere and at all times; states are in every respect conditioned by local circumstances, and their existence depends on those circumstances. The Church has a constitution appointed to her by God, and that constitution she must forever unconditionally preserve; states, on the contrary, have such constitutions as the national and local circumstances require, and they change their constitution according to the change of those circumstances. The Church has the task of making man happy on earth and of preparing him for blessed eternity; states, meanwhile, limit themselves only to securing earthly good for their members, without concerning themselves with his posthumous state. And according to such a significance and task of the Church, differing from the task and significance of states and earthly societies, the laws of the Church are also, in their essence, different from state and other social laws: the former are unchangeable, the latter changeable; the former rest upon the divine will, the latter upon the human; the source of the former is the eternal law, the source of the latter the temporal law; the former are appointed to prepare man to be happy both in the present and the future age, while the latter strive only to secure peace and good order in the present alone.

That peculiarity of the laws of the Church, as a social organism, compared with moral laws and with state laws, already determines by itself the position that the Church occupies in the sphere of law. The Church has her own peculiar constitution, disposes of her own peculiar means, and has her own peculiar end. Her constitution has been established by God, and by God has also been appointed to her the end that she is to accomplish on earth, as well as the means that she is to employ to attain that end. Accordingly her order is autonomous and wholly independent of every contingency of human will, but, as established by God, that order must be preserved in full strictness for all times. And that this may be preserved, there must first be precisely determined the relations between the members of the Church and the Church herself in her generality, and then the relations among the members of the Church themselves. For this purpose there has been established in the Church a corresponding authority which, corresponding to the inner essence of the Church herself, takes care that these relations be right, that they be preserved from the arbitrariness of individuals, and that good order be maintained in everything. Further, since the Church has as her task to spread throughout the whole world and to convert to Christianity all nations, and has not yet attained this—for there are millions of people who are outside the Church—therefore, with regard also to those who do not belong to her, but profess other various religions, she must stand in determined relations, conditioned by the character of her own universality. Lastly, spread through the various regions of the world, the Church must come into contact with those states within whose borders she is found, and from this again arise new relations between her authority and state authority, which cannot but be precisely established. All these various relations of the Church, which concern her external life, must be secured by precise juridical laws corresponding to her inner character. From the standpoint of these various relations of the Church, she enters into the sphere of law: first, as a social organism that has within herself her own juridical order, and then, as a social unit that stands in a determined position toward states and toward various religious societies.