RELIGIOUS LEGAL SYSTEMS IN COMPARATIVE LAW (PART 4)

A Guide to Introductory Research

By Marylin Johnson Raisch

Christian Canon Law (Roman Catholic Church)

Essential facts

The canon law of the Roman Catholic Church began to develop alongside Roman law and indigenous law in Europe after the end of the Roman Empire and the retreat of ancient Roman law. Gradually canon law and its Roman law elements would develop into a body of law that could challenge emerging monarchies to develop a coherent national law or the civil law code tradition of secular law in most of Europe today.

From the Catholic Encyclopedia online via New Advent we have the following definitions and description:

Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members.. but the expression “canon law” (jus canonicum) becomes current only about the beginning of the twelfth century, being used in contrast with the “civil law” (jus civile), and later we have the “Corpus juris canonici”, as we have the “Corpus juris Civilis”. Canon law is also called “ecclesiastical law” (jus ecclesiasticum); however, strictly speaking, there is a slight difference of meaning between the two expressions: canon law denotes in particular the law of the “Corpus Juris”, including the regulations borrowed from Roman law; whereas ecclesiastical law refers to all laws made by the ecclesiastical authorities as such, including those made after the compiling of the “Corpus Juris”.

By the twelfth century the mass of laws or canons were systematized and rationalized by canonist Gratian in the “decretals” or Concordance of Discordant Canons near the same time as the revived study of ancient Roman law began at the university at Bologna, but further work was done to create the decretals of Pope Gregory IX in 1234 and so by the end of the 13th century, the Corpus Iurus Canonici consisted of the following texts:

(1) the “Decretals” of Gregory IX;

(2) those of Boniface VIII (Sixth Book of the Decretals);

(3) those of Clement V (Clementinæ) i. e. the collections which at that time, with the “Decree” of Gratian, were taught and explained at the universities. (Catholic Encyclopedia online)

Ecumenical councils of the church, the Pope and Apostolic Letters such as bulls or briefs, decrees of the Roman Curia or Acts of the Holy See also form part of canon law.

The Roman Curia or departments of the Holy See consist of Roman Congregations, the tribunals, and the offices of Curia.

The Tribunals consist of the Sacred Penitentiaria, the Sacred Roman Rota, and the Apostolic Signatura. The Sacred Roman Rota consists of auditors who hear contentious cases and are doctors of canon law and theology. They take appeals from the episcopal tribunals of first instance or may be of the first instance for some matters. Cases may be criminal or regarding ordination or matrimony, involving a defender of the bond (of marriage). Advisory opinions may be requested as well.  Conclusions of the court must be accompanied by reasons.

A common type of case in canon law relates to requests to grant an annulment of marriage after a civil divorce, since the doctrine of the Roman Catholic Church does not recognize divorce. It is a matter of controversy as to whether there have been in fact ecclesiastical “divorces” for influential persons or under experimental canons used in the United States before the latest Code of Canon Law, promulgated in 1983 (and as amended by Pope John Paul II in Ad tuendam fidem, apostolic letter motu proprio) but no Catholic theologian or canon lawyer would ever admit to such. The annulment concept came into secular law to void forced marriages and in several other instances, and in both religious and secular arenas, the court declares that no marriage ever existed and so it cannot be dissolved.

Basic sources and their descriptions: internet, books, articles

Internet

  • Code of Canon Law, Intratext through 2003, and at the Vatican site
  • Papal Documents, Encyclicals listed by pope, in full text.
  • Pope John Paul II, Ad tuendam fidem (“In order to safeguard the faith”) (introduced into the Church a new category of teaching, called “definitive”, which cannot be contradicted by teaching theologians without penalty.)
  • Canon Law Society of America, with a section on “Researching Canonical Topics.”
  • Catholic Church, Ius canonicum et iurisprudentia rotalis [electronic resource-CD ROM] / opera coordinata da Giuseppe Seanu  Ivs canonicvm et ivrisprvdentia rotalis. Città del Vaticano: Libreria editrice vaticana, 2004.
  • Catholic Encyclopedia, from New Advent web site
  • Catholic Pages directory information on canon law (links to documents and articles on canon law)
  • Marriage canons from the Decretals of Gratian, trans. John T. Noonan,at Catholic University of America site
  • Medieval Sourcebook of Fordham University, older canon law sources
  • Roman Curia (Rota and tribunals)

Books

  • Code of Canon Law (1999) (reprinting the Latin text of the original 1983 Codex Iuris Canonici with some later official corrections and additions).
  • Biel, John P. et al., New Commentary on the Code of Canon Law (2000).
  • Brundage, James A. Medieval Canon Law. London/New York: Longman, 1995.
  • Gaudemet, Jean. Église et cité: Histoire du droit canonique. Paris: Cerf, 1994.
  • Helmholz, R.H. The Spirit of the Classical Canon Law. Athens, Georgia: University of Georgia Press, 1996.
  • Hill, Mark. Ecclesiastical law. 3d ed. Oxford; New York: Oxford University Press, 2007.
  • Noonan, John T. et al.  Canons and Canonists in Context. Goldbach: Keip, 1997.
  • Smith, Patricia. Theoretical and practical understanding of the integral reordering of canon law. Lewiston, N.Y.: Edwin Mellen Press, 2002.
  • offsite Information at Google Books.
  • Witte, John Jr. From Sacrament to Contract: Marriage, Religion and Law in the Western Tradition, Louisville: Westminster John Knox Press, 1997.

Articles

  • Alesandro, Msgr. John A. A Study Of Canon Law: Dismissal From The Clerical State in Cases of Sexual Misconduct, 36 Catholic Law. 257 (1996).
  • Araujo, Robert John S.J. International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the “Priest-Penitent” Privilege Under International Law, 15 Am. U. Int’l L. Rev. 639 (2000).
  • Landau, Peter. “Aequitas’ in the “Corpus Iuris Canonici’, 20 Syracuse J. Int’l L. & Com. 95(1994).
  • Nuzzo, James L.J. The Rule of Saint Benedict: the Debates Over The Interpretation of an Ancient Legal and Spiritual Document, 20 Harv. J.L. & Pub. Pol’y 867 (1997).
  • Orsy, Ladislas S.J.  Propter Honoris Respectum: Stability and Development in Canon Law And The Case Of “Definitive” Teaching, 76 Notre Dame L. Rev. 865 (2001).
  • Review Essay: In the Steps of Gratian: Writing the History of Canon Law in the 1990’s, 48 Emory L.J. 647 (1999).
  • Sanders, Shaakirrah R. The Cyclical Nature of Divorce in the Western Legal Tradition,  50 Loy. L. Rev. 407 (2004).
  • Walsh, Walter J. The priest-penitent privilege: an Hibernocentric essay in post colonial jurisprudence. 80 Ind. L.J. 1037-1089 (2005).
  • Witte, John Jr. A Conference on the Work of Harold J. Berman: Essay: A New Concordance of Discordant Canons: Harold J. Berman on Law and Religion, 42 Emory L.J. 523 (1993).
  • Young, Stephen and Alson Shea, Separating State from Church: A Research Guide to the Law of the Vatican City State 99 Law Libr. J. ,  589,-610 ( 2007 ).

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