§ 5. The Science of Church Law

From the very position of the Church and the significance of her law there follows the necessity of setting forth that law in a manner that shows its organic unity and the fundamental idea that animates it. The most exact exposition of the legal prescriptions that compose this law, arranged by the importance of their sources or in chronological order of their issuance, the fullest interpretation of the same prescriptions in that order, the most diligent clarification of their meaning—all this, and other similar labors, would contribute, as indeed they have greatly contributed, to the understanding of those very prescriptions; but by this alone one would still not penetrate to the spirit of the law itself, would not grasp the whole harmony that reigns within it, and, what is chief, would not grasp the inner meaning and the guiding principle of the law itself. For this reason, and because of the exalted significance of the institution to which this law pertains, it is necessary to subject to scholarly labor the whole body of material that composes this law, and to set it forth in such a way that all that is in it be presented completely, clearly, and in such connection that the cause of everything be seen, and how everything proceeds from one fundamental principle, and how everything is directed toward one determined end. Such a systematic exposition of all that church law contains comprises the science of church law.

The positive character of the Church herself already determines by itself the positive character of the science of church law, which accordingly excludes every subjective speculation, which, besides being unreliable, is also unsuitable when precisely determined and established laws are to be set forth. In the second half of the eighteenth century there was an attempt in the West to apply a rationalist method to church law as well, so as, independently of the positive prescriptions of the Church, to set forth that law according to the laws of reason; human reason was put forward as judge over the church institutions with which church law deals.[1] How groundless this is in itself, and how it would in the end have had to overturn the whole legal edifice of the Church, and the Church herself, it is superfluous to say. This philosophical or natural church law, as its proponents called it, was refuted not only by Roman Catholic but also by Protestant canonists,[2] and today no serious writer any longer attempts such undertakings of composing such a law.

According to the concept of the science of church law, its task is also clear. It must show the origin and development of church law, and what constitutes its foundation, which is unchangeable; it must, by means of juridical logic and historical law, establish a criterion for judging to what extent something that exists in the church order can be changed according to local circumstances; it must provide a firm basis for the criticism of local church law, and in what relation it stands to the fundamental prescriptions of church life; and lastly it must teach how the Church is to be governed, in accordance with the very task of the Church herself.[3] This task, and such a task, the science of church law will be able to accomplish in the true sense only if it sets forth that which actually constitutes its content, as a legal science, and is autonomous both with regard to theological and with regard to other juridical sciences.

We have seen what the general task of the Church is (§1). If we consider that general task of the Church in particular, we must discern in it two sides which, though closely bound together and inseparable, nevertheless outwardly differ from one another. The one determines the position that man must maintain toward God, in order to become a partaker of that good which the Gospel reveals to him; the other determines the position that man, as a member of the Church, must maintain toward the Church as a whole and toward the other members of the Church. In the first relation the Church disposes of the means of grace, which reconcile man with God and lead him to the eternal good, and as such she is called in the Gospel “a kingdom that is not of this world”; in the other relation she presents herself to us as a community of people on earth with her established end, as a social organism that lives and develops according to its own determined laws. This latter constitutes the subject of the science of church law, whereas the former is the concern of the theological sciences. If, then, this science is to actually exhaust its subject and to show in fullness the organism of the Church as it is, if it is to be an autonomous science with its own determined end, to set forth systematically the legal relations within the Church, it must confine itself only to that which concerns those legal relations, excluding from its domain everything that does not directly belong to it. Church law, in its ultimate basis, concerns faith and morals, but it would be mistaken if it undertook to expound that faith and that morality together with the law of the Church, for there would then arise such a confusion that scarcely anyone would be able to find his way in it, and it would cease to be what by its nature it ought to be, would cease to be a legal science.

What the task of the science of church law is, we have said. According to that task, out of all the institutions that exist in the Church, the science of church law must distinguish those that have juridical significance from those that do not, and having done this, it must concern itself only with the former, leaving the others to other sciences. For example, among the seven mysteries counted by dogmatic theology there is also the anointing of the sick (τὸ εὐχέλαιον). It is of divine institution and beneficial for the salvation of men; but with it the science of church law nevertheless need not specially concern itself, since there exists no legal prescription for the reception of that mystery, and since the receiving or not receiving of it entails no legal consequences whatsoever in the Church. Likewise, in the case of those church institutions that have both a religious and a juridical significance, the science of church law must precisely distinguish the one from the other, leaving the religious side of the given institution to other sciences, and concerning itself only with its other, juridical side. For example, baptism, according to Christian teaching, frees man from original sin and reconciles him with God. This religious side of baptism is of secondary significance for the law, for what matters chiefly here for the law is that through baptism man acquires church legal capacity, and accordingly the law attends to whether the legal prescriptions regarding the reception of that mystery have been observed, and hence whether man has thereby actually become a full member of the Church with rights. If the science of church law does not strictly separate the juridical side of the given church institutions from their religious side, and does not turn its exclusive attention to that juridical side, leaving the religious side to the theological sciences, that science will never answer to its task, nor will it be an autonomous legal science.