Canon Law: A Comparative Study with Anglo-American Legal Theory

Canon Law: A Comparative Study with Anglo-American Legal Theory

John J. Coughlin O.F.M.

Language: English

Pages: 248

ISBN: 0195372972

Format: PDF / Kindle (mobi) / ePub


Canon Law: A Comparative Study with Anglo-American Legal Theory, by the Reverend John J. Coughlin, explores the canon law of the Roman Catholic Church from a comparative perspective. The Introduction to the book presents historical examples of antinomian and legalistic approaches to canon law (antinomianism diminishes or denies the importance of canon law, while legalism overestimates the function of canon law in the life of the Catholic Church). The Introduction discusses these approaches as threats to the rule of law in the Church, and describes the concept of the rule of law in the thought of various Anglo-American legal theorists. Chapter One offers an overview of canon law as the "home system" in this comparative study. The remaining chapters consider antinomian and legalistic approaches to the rule of law in light of three specific issues: the sexual abuse crisis, ownership of church property, and the denial of Holy Communion to Catholic public officials. Chapters Two and Three discuss the failure of the rule of law as a result of antinomian and legalistic approaches to the sexual abuse crisis. Chapters Four and Five compare the concept of property in canon law with that of liberal political theory; they discuss the ownership of parish property in light of diocesan bankruptcies, the relationship between church property and the law of the secular state, and the secularization of Catholic institutions and their property. Chapters Six and Seven raise the indeterminacy claim with regards to canon law and the arguments for and against the denial of Holy Communion to Catholic public officials. Although the three issues arise in the context of the United States, they raise broader theoretical issues about antinomianism, legalism, and the rule of law. Throughout the comparative study, American legal theory functions to clarify these broader issues in canon law. The concluding chapter offers a synthesis of this comparative study.

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healthy ecclesial order. The culture of canon law was reduced, with the effect that law was seen as an obstacle to the manifestation of the spirit in the church. Three factors in particular seem to have contributed to the failure of canon law in addressing clergy sexual abuse. First and most important, the years following Vatican II witnessed a decreased emphasis on the traditional spiritual discipline of Christian life. In seminary formation, religious life, and diocesan priesthood,

antinomian age. Following his election as the Successor to Saint Peter in 1978, Pope John Paul II was determined to check the antinomianism that had surfaced during the postconciliar years. When he promulgated the new Code on the first Sunday of Advent in 1983, John Paul II expressly acknowledged that the legislation was a response to the “insistent and vehement demands of the bishops throughout the world.”82 Joined with the Successor to Peter, the college of bishops had discerned the pressing

kenotic love at the head of the one Body of Christ. See id. at No. 18, 370 (Article 18 of Lumen Gentium states that the church was hierarchically ordered by Christ in the selection of the Twelve Apostles because: “He willed that their successors, namely the bishops, should be the shepherds of the Church until the end of world.”). For a discussion of the historical evidence for this theological truth, see generally Francis J. Sullivan, S.J., From Apostles to Bishops, The Development of the

2006). 36. See Canon 1254, §§ 1 & 2, CIC-1983. 37. Balthasar, The Christian State of Life, 115. church property continued 125 constituted the single largest Christian denomination in the United States. The arrival of new immigrants who did not share in the ethos of the dominant religious culture posed a threat not only to the de facto establishment but to the self-identity of the United States as a Protestant nation. Due to their numbers, Catholics could not be ignored, and opposition to their

understanding the controversy about Canon 915. Second, Hart’s theory represents a legal positivist’s rendition of what counts as law. Typical of the legal positivists, Hart thought that a proper law contained its own authority and carried the power to bind. If Canon 915 satisfies Hart’s requirements for proper law, a positivist approach to the law would call for its intelligent enforcement as part of the rule of law. Canon law shares the concern about the rule of law but claims to transcend legal

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