§ 8. The System of Church Law

One of the most difficult questions is in what order to set forth the whole material of church law, so that it satisfy the demands of scholarship in general, and answer to the task of the science of church law. It is enough to look only at the sharpness of the critique that one or another canonist-theoretician levels when passing judgment on the various systems of our science with which they disagree, and at the almost passionate manner in which they defend their own system, to see how difficult this question of system is. And this depends on the fact that there exists no single established system, but each one, according to his own insight and understanding, arranges the material as seems to him best to answer the task of the science itself. Only in more recent times, it seems, has one begun to arrive at some unity in this, at least in the basic division.

The earliest works on church law consisted in setting forth the legal prescriptions in chronological order, or grouped according to the importance of their sources, or according to the subjects of which they treat. Since in such works there was no inner organic unity, it is natural that they could not have scholarly significance either. The first sort of system appeared in the twelfth century in the West, when Bernard of Pavia produced his canonical collection, which he divided into five principal parts, which he designated by five particular terms: judge, court, clergy, marriage, and transgression.[1] In the first is set forth the teaching on the bearers of church authority, in the second on the judiciary, in the third on the rights and duties of the clergy, in the fourth on marriage, and in the fifth on church transgressions and punishments. Strictly speaking, this was no system at all, for no inner connection is to be seen in it, nor can it be explained how these various parts proceed one from another, nor what the leading idea there is. According to this system, nevertheless, church law was taught in the West for several centuries.

Alongside this system there arose in the West another, taken from Justinian’s Institutes, according to which church law began to be divided into three parts: persons, things, and actions.[2] In the first part was set forth the law of persons, particularly concerning the clergy; in the second, the objects of worship and the law of property; and in the third, civil and criminal procedure. Paulus Lancelottus, in the sixteenth century, in his treatise on church law, adopted this division.[3] It is in itself much better than the first, for the chief facts in church law are indeed those three subjects according to which this system is divided—only it is by itself difficult to carry through, and for this reason it is today entirely abandoned.

Our own century has taken a new path. It has condemned both those systems and has begun to put forward its own; the pity is only that it has not established a single system that could truly be authoritative for everyone, so that we should not have today that tiresome variety that the more recent works on church law show us; for we may freely say that today there are as many systems in the exposition of the science of church law as there are people who have expounded that science. This means, then, that the question of system is not yet settled, but is left to future times, and accordingly it depends on the given writer’s understanding of the subject according to which system he expounds that science.

We have studied, and, we may say, rather diligently, a considerable number of the better systematic works on church law of the more recent period,[4] and yet we have not been able to decide to follow exclusively one system, or at least we have not been able to adopt all the divisions that occur in those systems.

We have adopted such a system as seemed to us, according to our own understanding, the most natural and the most exhaustive; namely, we have taken before our eyes the whole organism of the Church, and have examined how that organism is constituted, how it is maintained, and what the life is that animates it. This survey has pointed us to three sides to which the science of church law must give its particular attention, namely: the constitution of the Church, the administration of the Church, and the life of the Church. And since the knowledge of that whole organism rests upon the positive laws that determine the constitution, the administration, and the life of the Church alike, it is necessary in the introductory part to speak of the sources from which those laws proceeded and of the collections in which those same sources are gathered. In the concluding part there must be set forth the relation in which the Church stands, as an autonomous juridical unit, to the state and to those who profess other religions. On this question, which the majority of Western canonists place at once at the beginning, in the introductory part, we find it fitting to speak at the end, because it reaches deeply into the legal life of the Church and can be fully grasped only once the organism of the Church is known in all its aspects. Accordingly we divide our science into five parts, namely: I. The sources of church law, and the collections in which these sources are contained; II. the constitution of the Church; III. the administration of the Church; IV. the life of the Church; and V. the relation of the Church to the state and to those who do not belong to the Church.

Footnotes

[4] By way of example we cite only a few of the Western ones: Schulte, (System des allgemein. kathol. Kirchenrechts. Giessen, 1856), after an introductory part, divides all law into the public law of the Church (the hierarchy and the Church’s relation to legal subjects outside her) and private law, and in this second part sets forth first the private law of the Church (property law), then the private law in the Church (entrance into the Church, the rights and duties of the faithful, matrimonial law, loss of ecclesiastical legal capacity, the law of patronage, and church associations). Richter, (Lehrbuch des kathol. u. evangel. Kirchenrechts, bearbeitet von Dove u. Kahl. Leipzig, 1886. VIII. Aufl.) sets forth the science (after a brief introduction) in six books: 1) history of law, 2) general doctrines (sources, the foundations of the Church’s constitution, and the Church’s relation to the state and to other churches), 3) the organs of the juridical Church, 4) legislation, adjudication and administration, 5) church life and 6) church property. Walter (Lehrbuch des Kirchenrechts aller christlichen Confessionen, besorgt von Gerlach. Bonn, 1871. XIV. Auflage), after the usual introduction, divides the science into eight books: 1) general foundations, 2) sources, 3) the constitution of the Church, 4) church administration, 5) on the officials of the Church, 6) church property, 7) church life, 8) the Church’s influence on secular laws. Permaneder (Handbuch des kathol. Kirchenrechts mit besonderer Rücksicht auf Deutschland, besorgt von Silbernagl. Landshut. 1865. IV. Aufl.) has six parts: 1) the foundation of the Church and its relation to the state and the Protestant confessions, 2) sources of law, 3) the constitution of the Church, 4) legislation and adjudication, 5) the exercise of the teaching office and of the sacred ministry, and property law, 6) on the influence of the Church on society. Pachmann (Lehrbuch des Kirchenrechts mit Berücksichtigung der auf die kirchlichen Verhältnisse Bezug nehmenden österreichischen Gesetze und Verordnungen. 3 Bde, Wien, 1863—66. III. Auflage) sets forth in the introductory part first the general foundations of canon law, then the sources, and divides the whole science into two parts: 1) constitution (ecclesiastical authority, ecclesiastical offices), 2) administration (spiritual affairs, property law, legislation and adjudication, and the Church’s relation to the state and to other faiths) Aichner (Compendium juris ecclesiastici ad usum cleri, ac praesertim per imperium austriacum in cura animarum laborantis. Brixinae, 1870. Ed. III.) sets forth in the introduction the general concepts, and then divides the whole science into two parts: general and special, and in the first: 1) sources of law and 2) general principles of canon law; in the second: 1) the constitution of the Church and 2) church administration (the teaching power, the power of sanctifying and the power of governing). Vering (Lehrbuch des katholischen, orientalischen und protestantischen Kirchenrechts. Freiburg, 1881. II. Aufl.) sets forth, after an introduction, the science in five books: 1) sources, 2) constitution, 3) adjudication, 4) property law and 5) the rights of individuals. Scherer (Handbuch des Kirchenrechtes. Graz, 1886. only vol. I is known to us) sets forth in the introduction the general concepts of law, and then divides the whole science into four books: 1) general foundations, 2) sources, 3) constitution and 4) administration (the first three rubrics are contained in this first volume, the one we have). We omit any further account of such treatments, which are now at hand, for already from this the more-than-sufficient confirmation of what we said in the text is evident. Such is the case in the West; and in the treatises on canon law of Orthodox writers we find exactly the same distinction in the systems.

§ 8. The System of Church Law

§ 8. Система црквенога права