Thoughts and Excerpts: Receiving the Council by Ladislas Orsy, Post 6, Canon Law

Here’s what he has to say about Vatican II and canon law. It is not “petty regulations for the vexation of the faithful.” Its purpose is to create freedom, like the way in which the rule of law creates freedom in modern societies. But Canon Law has not evolved to reflect the theology of Vatican II.

The relationship between theology and canon law is as follows: “Theology operates on the abstract level. It has priority at the planning stage; it determines a value to be appropriated; it gives meaning to the law. Canon law operates on the concrete level. … In the church, canon law has an importance that no theory can match. It deals with the real existing social body. But a law not grounded in a value is like a house built on sand; it is bound to collapse.” (p. 79)

“… the true foundation of any theological enterprise is in wisdom that speaks of ineffable mysteries apprehended by faith. Such wisdom should play a principal role in discovering Christian values that the community should appropriate. This is to say that an intuitive sensus fidei, or a ‘supernatural instinct,’ should be numbered among the sources of canon law.” (p. 78)

Canon law has lost its vital link with theology: “In 1564, after the Council of Trent, to safeguard the integrity of the Council’s decisions, Pope Pius IV forbade the publication of any ‘commentaries, glossaries, annotations, scholia, or interpretations of any kind concerning the Council’s decrees. This was the beginning of ‘canonical nominalism.’ … With one stroke … the great tradition of ‘raising questions’ that animated research in the Middle Ages was terminated.”

It has become static and unchanging: “Every legal system must include provision for the ongoing renewal of the law. Civic communities … have legislatures sensitive to the needs of the community. In the church we have the Code, but, in practice, no organism endowed with the specific task of detecting emerging needs and proposing changes. Serious problems remain unresolved, tensions develop; these tensions lead to crises, and finally the situation explodes.” (p. 82)

“This is exactly what happened when the crisis of sexual abuse descended on the church. It was coming for some time, and there was no adequate preventive legislation. A sensible system of the ‘visitation of diocese’ by outside observers able to interview the people, the clergy, and the bishop separately could have discovered the problems much earlier.” (p. 82)

It has cut itself off from secular (human) wisdom: “Ever since the Renaissance, humanistic secular jurisprudence has made immense strides in such matters as freedom of conscience, respect for human rights, impartial courts, speedy administration of justice, responsibility for the common welfare, and so on. Canon law remained mostly untouched by such developments; … they are innocent of modernity. On the basis of knowledge gained from them, no one could carry on an intelligent conversation about the law with a well-intentioned contemporary secular thinker.” ouch. (p. 83)

But just like the Council failed to create any serious ongoing structures for collegiality, it seems the progressives pretty much blew off the whole domain of canon law. “Opus Dei, on the other hand, fostered the cultivation of this discipline; the University of Navarre became the seedbed for a school of canonists, and from the very moment of the creation of the Committee on the Revision of Canon Law, Opus Dei took an active role in it.” (p. 86)

The norms in the 1983 Revised Code of Canon Law have been “shaping the church and directing its operations.” (p. 87)  But canon law reflects a pre-Vatican II view of the church. “Today, after the Constitution on Divine Revelation (Dei verbum), when virtually the whole church peacefully accepts that there is a development in doctrine, not to accept that there can be a development in the interpretation and application of the laws is an indefensible position.” (p. 58)

Basically, he’s saying things are as they were.

Centralization – the Synod of Bishops is merely consultative; episcopal conferences have no collegial power; the non-ordained cannot by law share in the governance of the church.

Legal positivism, canonical nominalism – the link is weakening between the law and the theological values it is supposed to engender.

Acceptance of a historical existence – “… we have no means built into the system for the renewal of our laws. We do not have an organ specifically entrusted with the particular task of watching great cultural movements, assessing the emerging needs, and proposing changes in the law accordingly.” Ditto inability to respond to the pedophilia crisis.

Learning from secular sages – “In the Middle Ages, the study of canon law went hand in hand with the cult of civil law: they shared whatever wisdom they could find. The Reformation and Enlightenment put an end to this partnership, and canon law remained alone and did not benefit from the significant progress in legal wisdom achieved in civic communities. To a large extent, this continues to be the case today.” (p. 89)

Tags: canon law, Orsy, structures of governance