1

The Nature of Canon Law

BY
REV FR DR CLEMENT OBASI

Ubi societas ibi ius “Where there is society there is law.” The Church is truly a
society; there must be laws to direct her activities. However, the Church is not a
society like any other because she is both of divine and human origin. Still, she needs
laws to govern and organise her members to achieve the purpose of her foundation.
To observe the necessity of law in her organisation, there is wisdom to glance at the
panoramic understanding of ius.
Understanding Ius
As a Latin word ius has been variously translated into English. It is intriguing
because it has different meanings for different things in English. Whereas in other
modern languages the translations of ius are more definite, but in English, it might
look deficient, rather it enriches the meaning in English. Ius means right - the right
thing and at the same time ius translates as law - that which studies the right thing.
Right and justice co-relates; justice demands that an individual’s right/due be given
them.

The right/due could be spiritual or material thing and it is thus described as lawful.
Hence, ius (right) is the thing that is just and justice orders that it be given to those it
is due. It follows that there is an objective right that is due to somebody when they
have a right to something. They may then lay claim to it as lawful (subjective right).
Law
It is paramount to find out what are those things that are due to an individual and how
do they lay claim to it. Here comes ius/law, which is that discipline that defines and
delineates in concrete terms what is due to an individual. It states what is lawful so
that justice might be achieved. Clearly, ius translated into English carries both senses
- what is due in justice, and the discipline that states what in practice is just. Beside
contributing to the definition and determination of what is just, ius/law characterises
the collection of norms that disciplines and orders any entity. To run smoothly, every
society deserves a set of laws that guide relationship in it and ensures that an
individual receives their due.
Law in the Church
The Church is an organised human entity and therefore she has need of laws. As
against some opinions that laws should not be spoken of in the Church because of her
origin; they are imperative in the Church because she is made up of human beings.
Laws in the Church ought not be arbitrary, rigid, or despotic utterances; instead, they
are norms studiously put together to enhance and smoothen relationships among her
members. They purpose to bring order and discipline and insist on justice for
everybody. Law is a means and not an end in itself; it thrusts to facilitate the
 2
realisation of justice for all. By her nature, law is a necessity in the Church: “The
justification for the existence of law in the Church is in the very nature of the
redemptive work of God. The bringer of revelation is the God-man Jesus Christ;
redemption is achieved in the historical actions centred on his person. Historicity
cannot be divorced from society, and society cannot exist without law. The
redemptive work of God and the means he chose for its realisation contain the
presuppositions and the basis for a juridical order.”1

The Lord instituted the Church as a community of believers who share together in the
invisible spiritual gifts, he has bestowed on her. So constituted and organised, the
Church has a mission to bring to completion in which every member has a part to
play according to their configuration to Christ. Hence, law has in the Church the task
of allotting to each person their roles and coordinating them to foster the good of the
community. 2

The Church is not just a human entity; she is much more than it; She is the mystical
body of Christ, an image and reflection of the incarnate Word, a co-subsistence of
both divine and human elements. The Fathers of the Vatican II affirm, “the society
structured with hierarchical organs and the mystical body of Christ, the visible
society and the spiritual community, the earthly Church and the Church endowed
with heavenly riches, are not to be thought of as two realities. On the contrary, they
form one complex reality, which comes together from human and divine elements. …
the social structure of the Church serves the Spirit of Christ who vivifies it in the
building up of the body.”3

This mystical nature of the Church reflects itself in the study of canon law. So, canon
law’s determination of justice in the mystical body is principally considered from the
mission assigned to the Church by God. This is because the purpose of a society
defines it. The Church, therefore, is not an exception, her mission shapes her and her
laws. She is an entity that is different from any other civil society in the sense that she
has a special mission from her Founder. Her members are united and share common
faith and purpose; every relationship is related to one another and to the whole and
whatever programme or initiative embarked by any member must be at the service of
the common good: Salus animarum.

Divine Institution
The major attributes of laws in the Church have their foundation in the divine law
because her Founder is Jesus Christ. The will of Christ is the pivot on which every
other law or duty in the Church revolves. It all began with the Lord’s constitution of
the college of Apostles with Peter as the head. He entrusted to them the mission to
1 G. May, “Ecclesiastical Law,” in Encyclopaedia of Theology: A Concise Sacramentum Mundi ed.
Karl Rahner, (Burns & Oates, Great Britain, 1986) pp. 395-408, p. 396.
2 See function and importance of law in the Church, Paul VI, Address 20.01.1970 (AAS (1970) 106-
111.
3 See Ephesians 4:15; LG 8.
 3
sustain his ministry. The college was succeeded by the college of Bishops with the
Roman Pontiff as the head. They are to continue the same mission from the Lord and
so every law emanating from this divine institution is substantially divine. Alongside
the institution of the sacraments of the New Law for God’s worship and salvation of
the peoples, Christ the Lord has bestowed on the Church certain characteristics that
are immutable and these form the basis of canon law.

Furthermore, there are laws that flow from human condition as a social being, which
derives from divine (natural) law are equally foundation to canon law. Some of them
are demands of justice that must be observed in an entity of men and women. For
example, the fundamental right of an individual to privacy, to their good names, to
their freedom to choose the state of life are part of natural law and so must be
observed with the same intensity as in any other society.

Again, Revelation - the Word of God is fundamental to the formation of canon law.
The Magisterium has always the duty of authoritatively interpreting the Word of God
for the faithful for a profound deepening of faith. “Yet even if Revelation is already
complete, it has not been made completely explicit; it remains for Christian faith
gradually to grasp its full significance over the course of the centuries.”4 Through this
task of the Magisterium and the progress of theological and canonical disciplines, the
people come to improve the knowledge of God’s plan for them as they practice
justice in their lives.

As divine law does not graphically and concretely point to what is just, it is
imperative on us to interpret and apply divine law on justice. “Nevertheless, divine
law indicates to us what is just in the Church in its fundamental features, but it does
not explicitly and directly resolve all questions about what is just in every individual
case. For this purpose, it is necessary to formulate, develop, interpret, and apply the
divine law, taking the circumstances into account. Hence, there arose responses
concerning what is just, which are the fruits of human effort, sometimes borrowed
from civil juridical culture. In this way, canon law also contains elements of human
law, which interpret and apply divine law in every historical moment.”5

For example, the Magisterium interprets and applies concretely divine law on Sunday
and holy days observance. It specifies participation at the Eucharistic celebration, and
it is human law derived from divine law. In all this interpretation of divine law,
human law cannot go against reason or divine law; otherwise, it is useless and unjust.

Varied Viewpoints
From the foregoing it might seem that the nature of canon law is quite perceptible. It
is exigent to note that the exact nature as a science has often been a source of debate
among the doyens in the field. Since the Vatican II Council where two visible
4 CCC 66.
5 Joseph T. Martín De Agar, A Handbook on Canon Law, translated by Lawrence Feingold of the
Italian Elementi di Diritto Canonico, second updated edition, Montreal: Wilson & Lafleur Ltée, 2007, 7.
 4
ecclesiologies were observed, one of sacrament and communion and the other the
Church as a juridically organised and perfect society which matches any other secular
society. At last, the understanding of the Church as communion held sway and it is
what the Church now teaches.

This ecclesiological perception, however, throws a curve ball on canon law, which
heretofore viewed and treated the Church from the point of view of a perfect society
and now has implemented the new ecclesiology in the Code. Perhaps from oversight,
some canonists have the feeling that canon law has not substantially incorporated
adequately the new ecclesiology as the Council had envisioned. This stance has
catalysed multifarious perspective on the nature of canon law. It is not just because
Rudolf Sohm (1841-1917), the famous protestant historian of church order argued
against the presence of law in the Church as something foreign to her mission and
foundation. He stated that it is otiose and inadvisable for the Church, which is the
community of love to have laws. He said, “The essence of canon law is in
contradiction to the essence of the Church.”6 Luckily, many scholars of theology and
canon law have responded to this view which did not take cognisance of the acts of
the early Christians and the fact of interpersonal relationship among men and women.
A firm rebuttal has it: “History contradicts the theory: since the first apostolic council
in Jerusalem, Christians have been guided by rules and regulations in their
assemblies. A warning from Sohm, however, could be taken: no law should ever
overshadow charity.”7

Articulation of the Views

Some scholars have put together the views of some canonists on the debate regarding
the nature of canon law. The viewpoints are not very diametrically opposed to one
another but there are subtle and intangible differences which could be ways of
understanding better the identity of this science. As expected, these great authors and
scholars in canon law were naturally influenced by their religious background, place
of teaching or working, university attended, and equally their aspirations in life.

The public Ecclesiastical Law School8

The canonists here perceive the Church as a juridically organised and perfect society
and so should be guided by a legal system equal to any other secular society. The
underlying principle is the dictum or axiom, ubi societas ibi ius, where there is a
human society there is law. That wherever there is human interpersonal relationship,
there must be definitions of rights and obligations. There is no exception to it; every
association of persons requires laws. Their view is that canon law is also legal system
of a perfect society as the Church should be on the same level as the others. The
school has been criticised for the lack of religious aspect of canon law: “This
6 R. Sohm, Kirchenrecht, I: die geschichtlichen Grundlegen (Leipzig, 1892; Berlin, 1970), 2; as cited
by J. A. Coriden, Canon Law As Ministry: Freedom and Good Order for the Church, (Paulist Press, New
York/Mahwah, N.J, 2000), 11
7 L. Örsy, “Theology and Canon Law” in J. P. Beal, J. A. Coriden, T. J. Green eds., New Commentary
on The Code of Canon Law, (New York/Mahwah: Paulist Press, 2000), p. 3.
8 Most of the professors who hold this view are lay persons who teach in Italian state universities.
 5
approach is severely deficient because the theory detaches canon law from the
religious soil that produced it, from the transcendental scope that it serves, and
ignores its specific nature shaped by human needs and divine commands.”9

These canonists accept the spiritual foundation and mission of the Church, but they
stress that the spiritual things are outside the juridical ambient. They step down such
realities as the Holy Spirit, grace, divine law, and the salvation of souls as beyond the
compass of legal system. For them, “Canon law is an autonomous juridical science,
independent of theology; it is a division or subset of legal studies.”10

Opus Dei School11

They conceive canon law as an independent legal science that is under the direction
of ecclesiastical hierarchy. Canon law has meaning to the extent it is dependent on
the authority of the Church. They affirm that canon law is a species of genus law and
its distinction from theology as a science, though there is a relationship between
them. That canon law can be studied based on the ecclesiology of the Vatican II that
perceive the Church as the People of God and thus canon law reflects the juridic
aspect of the People of God. For them there is no cleavage between divine and human
law, rather a single juridic unit that orders and disciplines the Church’s structure
through which justice is delivered to the people. However, it is still dissatisfactory in
its approach: “The theory is inadequate on several counts. It pays little or no attention
to the intrinsic connection between theological realities and canonical commands; it
does not promote insightful interpretation based on religious values; it fails to create a
climate that favours the participation of the faithful in the preparation and the
evaluation of the norms; it reduces the reception of the law into passive
acceptance.”12

The Munich School13

Here these professors treat canon law as practical theology. They affirm that both
disciplines theology and canon law are inextricably connected except that canon law
has a methodology that is juridical. Canon law as science in the Church is subordinate
to the nature and mission of the Church. They view canon law as having a
supernatural foundation because it stands on the mystery of the Church founded by
Jesus Christ; canon law simply orders the community of the New People of God.

9 L. Örsy, “Theology and Canon Law,” p. 4.

10 J. A Coriden, Canon Law as Ministry, 13.
11 These scholars practice their canon law teaching mainly in the canon law faculties of Pamplona,
Spain, and the Pontifical university of the Holy Cross in Rome.
12 L. Örsy, “Theology and Canon Law,” p. 4.
13 Most of those holding this view are associated with the faculty of canon law at the university of
Munich. Some of their names are Winfried Aymans, Eugenio Corecco, Klaus Mörsdorf, Anthonio Rouco
Varela, Remigiusz Sobanski.
 6
Like every other school, they accept that the Church is a society as any other and so
should have her own distinct legal system stressing ubi societas ibi ius and it follows
that canon law is like the civil law. Nonetheless, they repudiate canon law as a
species of genus law because it is based on a theological reality - the mystery of the
Church. The emphasis is the Church’s proclamation of salvation in word and in
sacrament and both are linked together in well-spring of the life of the Church. The
affirmation is that both word and sacrament have something juridic about them as
they were commanded by the Lord, “God into the whole world and proclaim the
gospel … Whoever believes and is baptised will be saved.” 14 As it is her mission, the
Church is under obligation to obey the command, hence, the duty of canon law is to
discipline the juridic aspect of the Church.

From this standpoint they invoke the definition of law by Thomas Aquinas tweaking
it to buttress their view. The classic definition is “an ordination of reason for the
common good promulgated by the who has the care of the community” they replace
ordinatio rationis with ordinatio fidei, signifying that the Church is of the order of
faith and not of reason. Faith drives canon law to the service of the communion
which is the end and mission of the Church. Communion is pivotal to the mission of
the Church because it is all about the relationship with God, the relationship between
members and the local churches and the relationship among local churches. The
approach is also lacking some merit because, “The nature of canon law by
Mörsdorf’s axiom should be the same as that of theology; this misrepresents reality to
the detriment of both disciplines. When canon law is seen as part of theo-logia, it
becomes difficult to explain its human limitations.”15

The Roman Curia School16

The school holds that canon law is the means through which the internal, spiritual,
and salvific character is manifested. This is because the Church’s internal life and
mission are represented visibly by her organised social unity. Canon law is just a
pastoral instrument assisting to realise the end of the Church’s mission, which is the
salvation of souls. They assert that canon law is only analogical to secular law
because its authority is sacramental. All the gifts of the Holy Spirit and all the rights
thereof received at baptism can only be exercised in the communion and canon law
defines these rights.

The Concilium Project17

The authors recognise the link between canon law and theology but repudiate the
undue and overwhelming theological effect on canon law. Their concept is that canon
law should abandon its overly treatment of the Church’s autonomy and authority
14 Mark 16:15-16.
15 L. Örsy, “Theology and Canon Law,” p. 5.
16 These scholars were on the staff of the faculty of canon law at the Gregorian university and assisted
at the Roman Curia: Wilhem Bertrams, Raimondo Bidagor, Piero Bonnet.
17 It has the name Concilium project because canon law’s relativized relationship to theology was
prominently mentioned in the maiden issue of journal Concilium in 1965. Names associated with it are
Teodoro Jiménez-Urrest, Peter Huizing, Kunt Walf.
 7
always in relation with the state and get back to being preoccupied with its primitive
and atavistic role as the coordination of norms about the sacramental life of the
Church.

They demand that canon law look back at history and pick it up from there. This is
because the rules of the community were more sacramental then because rights and
obligations were defined based on the celebration of the sacraments of baptism and
Eucharist. Overtime, offices started to spring as the papacy and episcopacy, rules
shifted to determine the authority of the office holders to match secular powers.

For them, canon law must truncate this approach and refocus and accentuate again
the rules of the Church on her sacramental life. They believe that as the Church is the
sacrament of the relationship with God and the visible sacrament of believers in Jesus
Christ, canon law will have meaning only when it concentrates on the reflection of
the sacramental life of God’s adopted children through baptism and brought into full
communion by participating in the Holy Eucharist.

The School of Values18

This group of canonists accept close link between canon law and theology but
emphasise the commanding role of theology. They assert that the theological
discipline has the duty to interpret God’s revelation to build up the faith of the
Christian community. That theology addresses knowledge and canon law
concentrates on action. Such as when theology teaches about the necessity to resolve
Christian unity; canon law enunciate rules for action and produces enabling
guidelines for its realisation.

The nub of this position is that it is intimately based on the cognitional theory of
Bernard Lonergan with emphasis on the distinct roles of theology and canon law as
faith seeking understanding over faith seeking action. When theology affirmed the
new understanding of the episcopal collegiality, canon law continues it by generating
new structures of its actualisation like the synod of bishops and episcopal
conferences. For them the marked differences between the structures and the
fundamental mysteries should not be glossed over.

The Institutional School

The position of this group of scholars is the distinction between an institutional or
fundamental law and reality and the positive canonical prescriptions arising or
emanating from them. They hold that this institutional reality is the foundation of the
juridical structure which gives birth to the gamut of canonical order and articulations.
They so observe that some “fundamental elements of the hierarchical and organic
structure of the Church as established by its Divine Founder, based upon apostolic or

18 Ladislas Örsy and Myriam Wijlens are famous names connected with this view especially Orsy who
emphasised again and again on it.
 8
other most ancient tradition, as well as the principal norms concerning the exercise of
the threefold office entrusted to the Church.”19

Thus, it follows that these institutional elements and the rules of action constitute the
juridical order of the Church. For example, it is fundamental Christian reality to
celebrate the sacraments of Christian initiation, but the rules regarding specific facts
for the reception of the sacraments are another reality.

Summation of the Views

The fact about the views is that it is a matter of approach and response to issues of
canon law. There is nothing about being wrong or right here; it is just different
perspectives of a reality. Some emphasise an aspect more than others, whereas others
complement one another’s views. It is helpful to perceive canon law from the
contemporary ecclesiology. Further, there is another view of those who approach the
nature of canon law as ministry of service. Kevin E. McKenna puts it across, “There
is not only a desire but a necessity to utilise law in the Church today - a situation
which can be highly constructive when law is viewed as a ministry of service.” 20
Expressing the nature of canon law as ministry, J. A. Coriden writes, “… Canon law
is primarily a ministry in the Church. It is a specialisation within ministry and finds
its identity within the communion called church. Canon is a species or subset within
the genus of ecclesial ministry …”21

Most of these scholars in the different schools of thought are famous canonists who
are well steeped in the knowledge of canon law. They have contributed much to the
progress of the discipline in their places of work. The Church highly respect them and
their views through which we perceive canon law.

We shall then look at the new ecclesiology of Vatican II to conclude on the nature of
canon law.

The People of God

The ministry of canon law can never be adequately done without a defining and
breathtaking theology. Paul VI said, “Today it is impossible to carry out studies in
canon without thorough theological training. The close relationship between canon
law and theology is raised, therefore, with urgency.”22

The vision of the Church by Vatican II Council is a groundbreaking concept. It is

often described as communio ecclesiology. The determining vision of the Church
19 John Paul II, Apostolic Constitution, Sacrae disciplinae leges January 25, 1983. This is the
document for the promulgation of the Code of Canon Law.
20 K. E. McKenna, The Ministry of Law in the Church Today (University of Notre Dame Press, Notre
Dame, Indiana, 1998) 30.
21 J. A. Coriden, Canon Law as Ministry, 20.
22 Paul VI, Address, September 17, 1973; Origins 3 (1973-74), 263.
 9
must begin with a reality, namely, the local churches. Vatican II teaches, “This
church of Christ is truly present in all the legitimate local congregations of the
faithful which, united to their shepherds, are themselves called churches in the New
Testament. For in their own locality, these are the new people called by God in the
Holy Spirit and with full conviction. In these the faithful are gathered by the
preaching of the gospel of Christ and mystery of the Lord’s supper is celebrated, so
that the whole fellowship is joined together through the flesh and blood of the Lord’s
body. In any community of the altar, under the sacred ministry of the bishop, there is
made manifest the symbol of that charity and unity of the mystical body without
which there can be no salvation. In these communities, although frequently small and
poor, or living far from one another, Christ is present by whose power the one, holy,
catholic and apostolic church is gathered together.”23

The description of the Church as the people of God is one of the glorious statements
and achievement of the Council. It is a pointer to the fidelity of the Code to the
decisions of the Council. It is lucid that, “The revised law provides a common status
for all in the Church, based on their baptism and directed toward their involvement in
the mission of the Church. The distinctions of clergy and laity remain but are placed
in a new context. Instead of building the whole legal structure on the differences
between clergy and laity as the 1917Code did, this revised law begins with the
common dignity of all the baptised and puts distinctions in terms of service and
ministry. Responsibilities and rights of all Christians are spelled out in what for
canon law is a new experience of a kind of ‘bill of rights.”24

The People of God have much in common and members are related to themselves
sharing the same dignity and mission as children of God. This relationship demands
fundamental juridical status common to all the faithful in which there is a definition
of obligations and rights. The notion of the People of God is beyond the division
between clergy and lay persons; it points to conviviality, communality, and solidarity
of one people. The Council stresses, “The messianic people have Christ for its head.
… This people have been given the dignity and freedom of sons and daughters of
God, in whose hearts the Holy Spirit dwells as in a temple. For its law, it has the new
commandment of love…and for its goal it has the kingdom of God. … It constitutes
for the whole human race a most solid seed of unity, hope, and salvation. It was set
up by Christ as a communion of life, love and truth…and sent to the whole world as
the light of the world and salt of the earth.”25

Communion
The notion of communion is pivotal to rightful understanding of the nature of the
Church as the People of God. Communion comes from the Greek word koinonia
which means sharing, participation, fellowship, and community. It underscores the

23 LG 36.
24 J. H. Provost, “Approaching the Revised Code”, in Code, Community, Ministry, ed. Edward G.
Pfnausch, (Canon Law Society of America, Washington, DC, 1992) 10-15, 10.
25 LG 9.
 10
whole understanding of the Church and Church’s understanding of herself and
mission. The special greeting at the eucharistic celebration explains it further, “The
grace of our Lord Jesus Christ and the love of God and the communion of the Holy
Spirit be with you.”26 The Church is all about communion - communion with God,
communion among the faithful, communion among the local churches, hierarchical
communion, holy communion, communion of the saints. It is observed that, “In sum,
communio is a most flexible and polysemous concept, expresses the very warp and
woof of the Church, its vital activity, its unity and catholicity. The venerable notion
of communio is ‘not some vague disposition, but an organic reality which requires
juridic form and at the same time is animated by charity.’ It is a central and
controlling concept in ecclesiology.”27 It is communion that depicts the unity among
the people of God. The Church is communion, and canon law finds its nature in its
ministry to the communion of the People of God.

The effort of the Church to live the command of the Lord is measured to what extent
the individual grows in the ecclesial communion. Addressing the Plenary Assembly
of the Supreme Tribunal, Pope Benedict XVI exhorted: “The activity of the Supreme
Tribunal aims to reconstitute ecclesial communion, namely, to reestablish an
objective order in conformity with the good of the Church. Only this communion
reestablished and justified through the motivation of the judicial decision can lead to
genuine peace and harmony within the ecclesial structure … This is the meaning of
the well-known principle: Opus iustitia pax. The demanding reestablishment of
justice is destined to reconstruct just and orderly relations among the faithful, and
between them and ecclesiastical authority. Indeed, the inner peace and the willing
collaboration of the faithful in the Church’s mission derive from the reestablished
awareness that they are acting in full accord with their vocation. Justice, which the
Church pursues through the contentious-administrative process, can be considered as
a beginning, a minimal requirement and at the same time an expectation of charity, at
once indispensable and yet insufficient, if it is compared with the charity on which
the Church lives. Nevertheless, the pilgrim People of God on earth will be unable to
realise its identity as a community of love unless it takes into consideration the
demands of justice.”28

Theologians affirm that Vatican II prizes highly the ecclesiology of communion, thus
emphasising the term ecclesial communion. “The exercise of the power of
governance is an aspect of the munus pascendi spoken of in Lumen Gentium, no. 21.
It is ordered toward the establishment, extension, promotion, and protection of
ecclesial communion. When the public administration either undermines communion
by its acts or is alleged to have done so, the institute of canonical administrative
justice be an important instrument for the fuller realisation of the ecclesial
communion. On the one hand, it serves to remind administrative authorities that they

26 1Cor 13:14.
27 J. A. Coriden, Canon Law As Ministry, 43.
28 Benedict XVI, Speech to the participants of the Plenary Assembly of the Apostolic Signatura,
February 4, 2011.
 11
are at the service of the ecclesiastical communion and are to exercise their function
from within the People of God, not over and against it; in this respect it protects
communion from the effects of arbitrariness. On the other hand, it provides juridical
stability and security to the legitimate exercise of administrative power, by protecting
the rupture of communion from the effects of disobedience and illegitimate
litigiousness.”29

The Venerable Pope John Paul II delineated the connection between the new
ecclesiology and the nature of canon thus, “Hence, it follows that what constitutes the
substantial newness of the Second Vatican Council, in line with the legislative
tradition of the Church, especially in regard to ecclesiology, constitutes likewise the
newness of the new Code.”

“Among the elements which characterise the true and genuine image of the Church,
we should emphasise especially the following: the doctrine in which the Church is
presented as the people of God and hierarchical authority as service; the doctrine in
which the Church is seen as a communion and which therefore determines the
relations which are to exist between the particular churches and the universal Church,
and between collegiality and the primacy; likewise the doctrine according to which
all the members of the people of God, in the way suited to each of them, participate in
the threefold priestly, prophetic, and kingly office of Christ, to which doctrine is also
linked that which concerns the duties and rights of the faithful and particularly of the
laity; and finally, the Church’s commitment to ecumenism.”30

Summation
In his Apostolic Constitution, Sacrae disciplinae leges, Pope John Paul II adequately
stated the nature of canonical legislation in the Church. While he was reflecting on
canon law in the Magisterium of John Paul II, Cardinal Burke made it clear that “The
Venerable Pontiff described the nature of canon law indicating its organic
development from God’s first covenant with his people.” He went on to put across
that he recalled “the distant patrimony of law contained in the books of the Old and
New Testament from which is derived the whole juridical - legislative tradition of the
Church, as from its first source.” 31 Thus canon law can never go contrary to the
doctrine of the Church, instead, “it is extremely necessary for the Church.”32 The
teaching of the Church, in fact, is translated into discipline by the canonical tradition.

The Pontiff plainly delivered the business of canon law in the life of the Church in
four clear ways: “Since the Church is organised a social and visible structure, it must

29 R. Fiorenzo, “Fondamenti teologico-giuridici nella giustizia amministrativa nella Chiesa dopo il

Vaticano” in ME, 98 (1973), 336-341.
30 Sacrae disciplinae leges, xxvi.
31 Sacrae disciplinae leges, xxv.
32 Ibid.
 12
also have norms: in order that its hierarchical and organic structure be visible; in
order that the exercise of the functions divinely entrusted to it, especially, that of
sacred power and of the administration of sacraments, may be adequately organised;
in order that the mutual relations of the faithful may be regulated according to justice
based upon charity, with the rights of individuals guaranteed and well-defined; in
order, finally, that common initiatives undertaken to live a Christian life ever more
perfectly may be sustained, strengthened and fostered by canonical norms.”33

Following the indispensability of canon law to the life of the Church, he reminded all
that “… by their very nature canonical laws are to be observed and to that end, the
wording of the norms should be accurate and based on solid juridical, canonical and
theological foundations.”34 It is a clear view among canonists that the nature of canon
law is about the nature of the Church. “The nature of canon reflects the nature of the
Church: It is truly human because the Church is a human community; it has an
affinity with the divine because it is an integral part of the Church as sacrament. In
the law itself, human prudence blends with divine wisdom in a close union but
without fusion or confusion. This complex nature gives to canon law its incarnational
character.”35

In his papacy, Paul VI spoke extensively on the nature and significance of law in the
life of the Church. Prominently, he stated that, “canon law is a norm that tends for the
most part to interpret two laws - a higher divine law and internal, moral one of
conscience; “It is the law of a society that is indeed visible but also supernatural”; It
is a sacred science entirely distinct from the civil law, proceeding from the very will
of Christ.”36

It is very crucial to focus on the mystical nature of the Church in the study of canon
law because it must bear the marks of that nature. That explains why the system of
justice in the Church is guided and considered from the nature, structure, origin, and
means given by God to her. Charles E. Curran states it thus, “The positive law of the
Church, like all other externals in the Church, has a sacramental character. The law
must be a sign of the inner reality of the Church, which is above all a community of
love. The whole purpose of the law of the Church must be to build up the Body of
Christ in truth and love. Canon law should strive to create the climate in which the
Church and its individual members can better respond to the call of the Spirit.”37

Hence, the nature of the Church follows the famous dictum, societas sunt ut fines -
societies are defined by the objectives proposed. It is patent to observe that the
Church is not a necessary entity for the natural being of an individual because they
are not part of it by birth as it is the case in secular society; rather, they are born into

33 Sacrae disciplinae leges, xxvi.

34 Ibid. xxxi.
35 L. Örsy, “Theology and Canon Law,” p. 2.
36 Paul VI, The Spoke Speaks 17 (1972-1973), pp. 376-377.
37 C. E. Curran, A New Look at Christian Morality, p. 127.
 13
it or incorporated into it by means of baptism and sustained in it by God’s grace.
Instead, the Church is a voluntary society with peculiar purposes in which the
existence and activity of the members are grounded in the spiritual mission, which
the Lord has provided to them. Accordingly, the Church is also homogenous in the
sense of the communio fidelium, sharing the same mission and goods.

This is the raison d’être the Church is widely different from political society: “This
makes it very different from any civil political community, and this is also reflected
in its organisation and in its laws. One important manifestation is the different scope
that the categories Public and private have in the Church, because in fact any
initiative that arises in ecclesial life, even when it is private, must be directed towards
and contribute to the mission of the Church: the salvation of souls; were it not so, it
would make no sense, it would be out of place.”38

Understandably, the spiritual nature of the Church is the most important in the life of
the Church because the mission of the Church is the salvation of souls. For this
reason, every activity and role in the Church has to gravitate toward this end, “for the
visible social structure of the Church serves the Spirit of Christ, who vivifies it, in the
building up of the body.”39

The Church is diametrically different from any secular state. All of them Church and
states may be perfect and independent realities, but the Church’s difference from the
rest is remarkable and clear. Canon law may be analogous to civil law only from the
point of view of the notion of keeping order in society; it is dissimilar in that it is an
entity established by God. It is noteworthy to observe that Church law has a special
and spiritual nature because her fundamental elements were all determined by the
Founder. Clearly, the ecclesiastical lawgivers act from the background of revelation
and their laws correlate to the life of grace in the mystical body of Christ.

The history, the nature, the tradition, and foundation of the Church put her in a class
of her own. Indeed, ubi societas ibi ius, each may claim to be a perfect state and
should have their own laws, but the Church is like no other - nonpareil and matchless.
By the nature of the Church, canon law has a supernatural foundation because it has
its meaning in the mystery of the Church that Jesus Christ founded. As the Church is
so organised as a social and visible structure and thus, to fulfil her divinely entrusted
functions, she has need for canonical legislations.

Functions of Canon Law

Vatican II Council has described the Church as “mystery” which has been birthed by
the Spirit and mandated to proclaim the values of the kingdom of God and to make
people disciples of the kingdom. The gospel frees and the legal system of the Church

38 J. T. Martín de Agar, A Handbook on Canon Law, (Wilson & Lafleur Ltée: Montreal, 2007), p. 5.
39 LG 8.
 14
must be liberating. Canon law has to be purposive and to perform functions that have
significant impact on the lives of the people of God.

There is a fundamental difference between the Church and the secular states. The
Church is sui generis, in a class of her own. Her nature, history, and fundamental
means of operation are essentially different from any other society. Hence, the rules
guiding actions among the people should be different and should have different
functions. As a mystery, she is infused with the constant presence of God, she is the
mystical body of Christ, the effective means of his salvation in the world, the temple
of the Holy Spirit, imbued with his special gifts. In addition, the Church is a
communion - an exceptional type of relationship with God, among the members in
faith and love, among local churches expressing their solicitude for one another.

When he promulgated the Code of Canon Law in 1983, John Paul II, said among
other things the purpose of function of the Code, which equally applies to canon law
in general: “The purpose of the Code is not substitute for faith, grace, charisms,
especially charity in the life of the Church or of the Christian faithful. On the
contrary, its very purpose is to create an order in the ecclesial society so that, while
giving priority to love, grace, and charism, their ordered development is facilitated in
the life of the ecclesial society as well as in the lives of the individuals who belong to
it.”40

Ministry of Service
Canon law must be a ministry of service to be highly constructive to improve the
quality of life in the faith community. Canon law must never be an end in itself; it
must provide actions suitable to make members more committed Christians. As it is
suggested, “Canon law is meant to preserve, protect, and encourage all those common
undertakings designed to make us more faithful and more persevering in the practice
of Christian living. It does this by devoting the first place to the Spirit, which is the
supreme law.”41

Grant Authority to Leaders

Canon law will be redundant if it fails to grant mature and responsible persons in the
community the right to make wise decisions of their own as they attempt to reflect in
their lives the demands of the gospel. For this reason, administrators may have to be
more open and to develop a new way of the perception of the law to see legislations
and authority as service. The Church and her leaders must perceive themselves as
evangelical and not juridical: “The gospel is the good news of God’s freeing, loving,
unifying, dignifying act for all people. Any just statement of the place of law must set
the law within a great in-breaking of divine compassion.”42

40 Sacrae disciplinae leges.

41 D. Heintschel, “… A New Way of Thinking,” The Jurist 44 (1984) pp. 41-47
42 D. Stevick, “A Theological view of the Place of Law in the Church: An Episcopalian Perspective,”
The Jurist 42 (1982), p. 4.
 15
Inspiration to the Community
Canon law must inspire the Church to fulfil her mission in the world. It is central that
in its juridical ordering, it should assist the Christian community to be the sacrament
of Christ in word and in deed. As an effective sign of the salvation of Christ, canon
law helps the Church to be fervent in her effort to work for the ultimate salvation of
her members. That explains the juridical statement in canon 1752: “the salvation of
souls is the supreme law” (salus animarum suprema lex). This is indeed an essential
aspect of canon law: “The purpose of canon law is to assist the Church in fulfilling its
task which is to reveal and to communicate God’s saving power to the world.”43

Promotion of Stability
Canon law must foster stability in the Church. It must produce excellent order that
guarantees breathtaking policies and procedures for effective administration of the
people. This eschews arbitrary actions, hasty decisions, and forestalls despotism and
nepotism. It is right and just that communities receive consistent way of actions.

Provision of Juridic Order

Canon law provides juridic order in the community. There has to be a provision and
determination of rights and obligations, means of the defence of these rights and
appropriate ways of making a recourse or resolving conflicts. The juridic order
ensures justice and fairness in handling of affairs in the community. When there is
order in the community, it exudes peace and tranquility; a disposition that assists the
community to be really a light to the nations. Canon law has to provide for social
protection of rights and to maintain a strategic programme for action in the
community. Thus stated, “… we could state that the primary function of canon law
regarding the community is to help structure Christian institutions by seeing to order
and promoting Concorde. Law has, then the practical role of guiding the faithful to
maturity in Christ.”44 Canon law seeks to foster peace, justice, freedom, and good
order by reconciling the interests of the individual and those of the community.
Georg May observes, “By preserving order, it does its part in making the Church a
suitable instrument of the mysterious divine activity within it. Thus, the ultimate
purpose of this order is to lead the individual to his eternal goal … Canon law has
since a function in the mediation of that grace.”45

Education of Values
Education in the values of the community is a necessity. Canon law has to remind
members constantly and unremittingly of the values of the community. For there
could be negligence at times, but such on-going education alerts the members to
avoid ineptitude and feckless approach to discipline: “The Church’s discipline is
43 L. Örsy, “Theology and Canon Law,” p. 2.
44 F. G. Morrisey, “The Spirit of Canon Law and the Teachings of Pope Paul VI,” in Readings, Cases,
Materials in Canon Law: A Textbook For Ministerial Students eds. J. Hite & D. J. Ward, (The Liturgical
Press, Collegeville, MN, 1990), p. 23.
45 G. May, “Ecclesiastical Law,” in Encyclopaedia of Theology: A Concise Sacramentum Mundi ed.
Karl Rahner, (Burns & Oates: Great Britain, 1986) pp. 395-408, p. 400.
 16
concerned to lead people to a virtuous life, not simply an external compliance with
rules. Not satisfied with justice, canon law, at its best, challenges the Church to strive
toward love as its goal.”46 Thus, law in the Church contributes in no small measure to
acquisition of redemption: “It remains true that salvation is a free grace of God, even
though, the observance of law is indispensable in the attainment of salvation.”47

The work of the Holy Spirit in the Church does not discourage the necessity for law
in the sustenance of order and discipline; it is rather the force for its urgency. This is
because those who are in the leadership have been appointed through the influence of
the Holy Spirit and are being sustained by the same Spirit in the service of making
and enforcing of laws for the maintenance of order.

Likewise, the Spirit is at work in the faithful for whom the laws are enacted and who
bear in them the Spirit through the reception of baptism and confirmation. The same
Spirit inspires them to see the value of the norms and prohibitions of the law as the
work of the Spirit and thus, heed to the requirements of the law. Canon law
emboldens the faithful to act out of convictions as Christians.

Fidelity to Tradition
Canon law has in essence the duty of protecting and insisting on the purity of doctrine
by maintaining fidelity to tradition. The top expression of this is that those committed
to the office of teaching must teach according to the stipulated norms.

Ecclesiastical law should not be abandoned to the caprices of everyone. There should
be penalties and sanctions for those who default on the law. Legitimate sanctions
connote justice: “A community which leaves unpunished those who offend against its
own ideals gives the appearance of having but a low estimation of the good things it
offers; it invites violation of its laws and imperils its own existence.”48

It is part of legal system that those who break the law ought to receive their
comeuppance. Those who disrespect the discipline in the community should
somewhat know that they are wrong that what they have done merits either the denial
of some rights or constriction of their liberty. As law abiding members are praised
and rewarded, likewise; the law-breakers should feel the pains of discrediting the
community. That explains the presence of a book in the code specifically addressing
the issues of sanctions in the Church.

Harmony with Theology

Canon has to develop a harmonious relationship with theology. In his address to the
Roman Rota, Paul VI kept emphasising the link between theology and canon law and
the necessity of harmony between them: “Thus, the new Code will avoid the danger
46 J. A. Coriden, An Introduction to Canon Law, (Paulist Press: New York/Mahwah, NJ, 1990), p. 6.
47 G. May, “Ecclesiastical Law,” p. 401.
48 G. May, “Ecclesiastical Law,” p. 402.
 17
of a disastrous separation between spirit and tradition, and between theology and
canon law, for law and pastoral authority will be understood theologically as a means
of spreading the peace of Christ, which is the work of divine - not human - justice.” 49
They should be complementary as each has its sphere of operation but dependent
each other. Canon law may not be able to define accurately the mystery and mission
of the Church as presented by Vatican II, but it can produce specific legislations to
guide actions among the faithful: “Thus, the two worlds meet. If they join and work
together in harmony, there is wholeness, a true integrity of life in the community
from which peace flows. If they do not work in harmony, the community is divided in
its spirit; there is a split between what it sees and what it does.”50

Fundamental Principles
There are principles that are foundational and innate to the nature of canon law; they
are so basic that they are scattered across and permeate every part of the code. They
are pivotal to the point of determining the style of the Church’s law. As there are no
documents that house all the fundamental principles of the code, one can always
assemble them from across the code itself and other documents of the Church. These
principles and elements are constitutional realities of the Church that make the code
what it is. These norms stand out and are in cognisance with the plan of the Founder,
Jesus Christ. With Vatican II Council, ecclesiology has taken a new dimension and a
new spirit, and accordingly, it bears much on the nature and principles of canon law.
Canon law now radiates new spirit and speaks a language completely different from
any secular system.

Here are some of the fundamental principles of canon law.

Hierarchical Principle
This is prominent and significant in the life of the ecclesial community and the
makeup of the code. Though all the faithful are equal in dignity as members of the
mystical body of Christ by baptism, there are still distinctions not by race or
nationality or academic qualification; rather, just by the condition and function one
performs according to one’s configuration to Christ.

All the faithful participate equally in the mission of the Church equally by reason of
baptism and enjoy every right and good that leads to salvation. Nonetheless, there
exists in the ecclesial community a constitutional hierarchy established by the Lord
Jesus Christ. This is not the making of human beings but of divine origin or
institution. The Lord constituted the College of Apostles with Peter as the head,
commanding them to proclaim his good news to the whole world, making them
believers through baptism.

49 Paul VI, “Justice in Service of the Gospel,” in William Woestman, ed., Papal Allocutions to the
Roman Rota, 1939-1944 (Ottawa: St Paul University, 1994), p. 148.
50 L. Örsy, “Integrated Interpretation; Or The Role of Theology in the Interpretation of Canon Law,”
Studia Canonica 22 (1988), p. 252.
 18
The Apostles founded churches and appointed bishops as successors to further the
mission of the Lord. These continued the process or tradition by appointing
presbyters and deacons to assist and share in their functions and thus, it has existed
through the centuries in the office of the bishops. The teaching of the Church, which
the code has clearly enshrined is that the College of bishops are successors of the
College of Apostles with the Pope as the head, just as Peter was the head of the
College of Apostles. Canon 330: “Just as, by the Lord’s decision Saint Peter and the
other Apostles constitute one college, so in a similar way the Roman Pontiff,
successor of Peter, and the bishops, successors of the Apostles, are joined together.”51

The hierarchy thus constituted by the Lord is closely connected to the sacrament of
the holy orders through which recipients participate and share in the priesthood of
Jesus Christ. This participation is consequentially and significantly different from the
sharing in the priesthood of Christ by baptism. Canon 1008: “By divine institution
some among the Christian faithful are constituted sacred ministers through the
sacrament of orders by means of the indelible character with which they are marked;
accordingly, they consecrated and deputed to shepherd the people of God, each in
accord with his own grade of orders, bu fulfilling in the person of Christ the Head,
the functions of teaching, sanctifying, and governing.”

Hence, they are empowered and imbued with sacred power that enables them to be
representative of Christ and to exercise in his name the public functions of teaching,
sanctifying, and governing the people of God.

The Principle of Diversity

There exists in the Church plurality of functions despite the common condition of all
the faithful acquired through baptism. The Spirit is at work in the Church and
bestows on the faithful various gifts as he pleases, which are meant for the different
ministries in the Church. Vatican II declares, “By divine institution, holy Church is
ordered and governed with a wonderful diversity. For just as one body, we have
many members, yet all the members have not the same function, so we the many, are
one body in Christ, but severally members one of another.” 52 It is thus, codified in
canon 207, §1: “Among the Christian faithful by divine institution, there exist in the
Church sacred ministers, who are also called clerics in law, and other Christian
faithful, who are also called laity.”

This principle permeates every facet of the ecclesial community in which there are
different forms of rites and spirituality. There are, by divine institution sacred
ministers who have been promoted to either episcopacy, or presbyterate or diaconate
and who belong to the hierarchy discharging their duties in according to their states.53

51 LG 22.
52 LG 32; Romans 12:4-5.
53 Canons 1008-1009.
 19
The rest of the faithful are lay faithful with their peculiar functions for the sustenance
of the ecclesial life. In addition to the two groups of clerics-laity, there are exist
clerics and lay faithful who have specially consecrated themselves to follow Christ
more closely by the profession of evangelical counsels in the Church.

Salvation of Souls
It is not surprising that the last canon of the code has the most important and
overarching norm in the whole body of the code. This is for emphasis, just as in Latin
language, the most essential word in a sentence is always located at the end for
emphasis. The last canon of the code affirms, “the salvation of souls is the supreme
law of the Church.”

Scholars believe that this maxim or principle, “Supreme law” originated from the
Roman law, even though the sources of the canon anchor it on St Ivo of Chartres, St
Raymond of Peñoforte and St Thomas Aquinas. Further investigation traces it to the
Twelve Tables of Roman law, which Cicero alluded, “the salvation (safety/welfare of
the people shall be the supreme law” (Salus populi suprema esto).54

On the paramountcy of this maxim or principle, Pope Francis in his Mitis Iudex on
the reform of the matrimonial justice, stresses the urgency of this principle: “All these
things were done following the supreme law of the salvation of souls, in so far as the
Church, as the Blessed Paul VI taught, is the divine plan of the Trinity and therefore,
all her institutions, constantly subject to improvement, work each according to their
respective duty and mission toward the goal of transmitting divine grace and
constantly promoting the good of the Christian faithful as the Church’s essential end
… Therefore, the zeal for the salvation of souls that, today, always remains the
supreme end of the Church’s institutions, rules, and law.”

John Paul II had earlier stated in his famous motu proprio Pastor Bonus, on the
restructuring of the Roman Curia, the pride of place of this maxim or principle in the
Church. He wrote, “The questions must be processed according to the procedure to be
universal, whether specific of the Roman Curia and according to the standards of
each dicastery, using norms and criteria pastoral. The attention turned toward both
justice and the good of the Church, and especially, toward the salvation of souls.”55

Following from the context of the canons 1748 - 1752 regarding the transfer of a
parish priest, the principle could be used by either side: the bishop or the priest in
their favour. For the application and to serve its purpose to avoid ambiguity, the
whole of the canons of the code have been crafted to serve this end: salvation of
souls. As Paul VI stated: “There is recalled that the canonical law emanates from the
nature of the Church, that its root is located in the power of jurisdiction given by

54 Cicero, De Legibus 3.3.8 (Loeb Classical Library, 1977), 466-467.

55 Pastor Bonus (PB), 15.
 20
Christ to the Church and its purpose is in the care of souls in order to obtain the
eternal salvation.”56

Fundamental Equality
Canon law is infused and bathed in the principle of the fundamental dignity of all
sons and daughters of God. The principle guarantees that rights of individuals are
respected and protected. It stems from the context of the Church as communio, in
which all the faithful enjoy a fundamental equality in dignity and in action. Canon
208 states: “From their rebirth in Christ, there exists among all the Christian faithful a
true equality regarding dignity and action by which they all cooperate in the building
up of the Body of Christ according to one’s condition and function.”

The canonical principle is taken from LG 32, which gives birth to a new
understanding of the nature of the Church as against the earlier code. This
understanding celebrates the communio ecclesiology which originates from the
reception of baptism: “… there is a common dignity of members deriving from their
rebirth in Christ, a common grace as sons, a common vocation to perfection, one
salvation, one hope and undivided charity. In Christ and in the Church, there is, then,
no inequality arising from race or nationality, social condition or sex, for ‘there is
neither Jew nor Greek; there is neither slave nor freeman; there is neither male nor
female. For you are all one in Christ Jesus.’” 57 Vatican II further declares, “All men
are endowed with a rational soul and are created in the image of God; they have the
same nature and origin and, being redeemed by Christ, they enjoy the same divine
calling and destiny; there is here a basic equality between all men, and it must be
given ever greater recognition.”58

Hence, the fundamental equality is based on the sacramental life of the Church. The
baptised share the same personal relationship with the author of the sacrament - Jesus
Christ, and all share in the threefold functions (munera) of Christ: priestly, prophetic,
and kingly. Nonetheless, participation in the ecclesial life is not univocal, rather each
according to their condition and function.

This principle reflects the number six of the principles that guided the revision of the
code. It states that rights of persons are to be defended and protected because all the
faithful are fundamentally equal in dignity but divers in their offices and functions.
From here, arises the Bill of rights enshrined in the code, canons 208-223, and the
corresponding obligations thereof being mindful of the rights of others and duties
towards the common good. It is clearly stated, “From this perspective, the listing of
obligations and rights, such as is found in this title (of the code), provide one means
for the Church on pilgrimage in this world to strive consistently to fulfil its mission.

56 Address at the solemn session of November 20, 1965 inaugurating the work on the revision of the
Code.
57 LG 32.
58 GS 29.
 21
Thus, canon 221, affirming the right of the Christian faithful to vindicate their rights,
is of foremost importance.”59

Canonical Equity
Canonical equity (Aequitas canonica) is a distinguishing aspect in the legal system of
the Church, and it is the fruit of benignity and charity. The code sets in canon 19 a
general principle to apply when there is a lacuna in the practice of law: “Unless it is a
penal matter, if an express prescription of universal or particular law or a custom is
lacking in some particular matter, the case is to be decided in light of laws passed in
similar circumstances, the general principles of law observed with canonical equity,
the jurisprudence and practices of the Roman Curia, and the common and constant
opinion of learned persons.”

It is justice tempered with mercy. “In a special way, it is an attitude of mind and
spirit that tempers the rigour of the law. It is a human corrective element and a force
for proper balance.”60

The principle of aequitas has not always had a free-flowing understanding and an
easy application. For at a point its development, the Bologna civil law school had
excised the heretofore understood meaning and application of equity and postulated
one stating that only aequitas scripta could be a guide in the practice of law. This
novel stance influenced some notable canonists who held that aequitas non scripta
could only be applied in gaps in positive law.61

Later there was another definition of aequitas in canon law different from the Roman
law. It highlighted the close relation between aequitas and misericordia, which was
highly acknowledged by many of the canonists of the time. Johannes Teutonicus,
author of the Glossa Ordinaria to Gratian’s Decretum stated, “Potius debet iudex
sequi misericordiam quam rigorem.” ‘The judge should follow the principles of
commiseration more than those of strict interpretation.’

Clearly it was the foremost canonist Cardinalis Hostiensis who gave the finest
definition of aequitas in canon law as it is today in his opus magnum: the Summa
Aurea. Here he presented three perspectives of it. He perceived it as a synthesis of
justice and commiseration. Aequitas est iustitia dulcore misericordiae temperata -
equity is a principle for exceptional situations, but an everywhere pervading element
of justice in canon law.

Again, he wrote, “Aequitas vero eat media inter rigorem et dispositionem sive
misericordiam - Equity is not simply identified with misericordia but in the middle

59 R. J. Kaslyn, “The Christian Faithful,” p. 257.

60 Paul VI, February 8, 1973 in The Pope Speaks 18 (1973-1974), 79.
61 Cf P. Landau, “Aequitas in the Corpus Iuris Canonici” in Syracuse Journal of International Law and
commerce, 20 Syracuse J. Int’I L. & Com. 95 (htt://legalhistorysources.com/Canon
%20Law/LandauAequitas.htm accessed on 11/08/20
 22
between rigorous application of canonical rules and a benign deviance from strict
application.

Furthermore, “Aequitas est modus rationabilis, regens sententiam et rigorem, haec

enim est aequitas, quam iudex, qui minister iuris est, semper debet habere pro oculis
- Equity is a rational use of legal rules, and excludes all kinds of arbitrary
jurisprudence in the practice of ecclesiastical courts. Thus “Rigor iuris” without
equity was for Hostiensis nothing but excessus iuris.62

Pope Paul VI had the vision that such a principle as canonical equity should permeate
the fibre of the ecclesiastical law and the activities of the ecclesiastical judge and
administrator. He would expect the judge to possess more humanity and to have
compassionate approach in his ministry. He meant that such an attitude has to suffuse
the juridical ministry. He stated, “You want the justice, which you must exercise with
canonical equity, to be speedier; more gentle; more even-tempered.” 63 He reiterated
that “… in canon law it is equity that governs the application of norms to concrete
cases, with the salvation of souls as the goal, which is always kept in view. Equity
takes the form of mildness, mercy and pastoral charity and seeks not a rigid
application of law but the true welfare of the faithful.”64

Benedict XVI points out the significance of charity over justice in the ecclesial
community, in his Apostolic letter, Caritas veritate. He reasons: “First of all, justice,
ubi societas ibi ius, every society draws up its own system of justice. Charity goes
beyond justice because to love is to give, to offer what is ‘mine’ to the other, but it
never lacks justice, which prompts us to give the other what is ‘his’, what is due to
him by reason of his being or acting. I cannot ‘give’ what is ‘mine’ to other, without
first giving him what pertains to him in justice. If we love others with charity, then
first, we are just toward them. Not only is justice not extraneous to charity, not only is
it not an alternative or parallel path to charity: justice is inseparable from charity, and
intrinsic to it. Justice is the primary way of charity or in Paul VI’s words, ‘the
minimum measure’ of it, an integral part of the love ‘indeed and in truth, to which St
John exhorts us. On the one hand, charity demands justice: recognition and respect
for the legitimate rights of individuals and peoples. It strives to build the earthly city
according to law and justice.”65

The code is infused deeply with emphasis for the application of canonical equity in
the governance of the faithful. Both “salvation of souls” and “canonical equity” are
mentioned together as guiding principles in the transfer of a parish priest. The text as
well as the context is a charge that they should be part and surely apply to every
aspect of canonical jurisprudence. Canon 221§2 states, “If they are summoned to a

62 See P. Landau, “Aequitas”

63 Paul VI, “Necessity of Canon Law, its Pastoral Nature,” in William Woestman, ed., Papal
Allocutions to the Roman Rota 1939-1994 (Ottawa: St Paul University, 1994), 122.
64 Paul VI, February 9, 1977, in The Pope Speaks 22 (1977), p. 171.
65 Caritas Veritate, 6.
 23
trial by a competent authority, the Christian faithful also have the right to be judged
according to the prescripts of the law applied with equity.”

The canon mentions the three principles essential to make certain that rights of
Christian faithful are recognised and vindicated. The second paragraph stresses that
due process in trial of an individual be applied with equity. These principles arise
from the image of the Church as communio, in which all the faithful enjoy equally the
fundamental dignity, which derives from the dignity of the human person as a child
of God and shares in the divine nature. It is stated, “The followers of Christ, called by
God not in virtue of their works but by his design and grace, and justified in the Lord
Jesus, have been made sons of God in the baptism of faith and partakers of the divine
nature.”66

It is a principle that is ethereal and sublime which reflects something of divine:

“Canonical equity consists of a higher justice, which, in its concern for the spiritual
good of the whole or of an individual, may in certain cases mitigate the strictness of
the law (as is most often) or (rarely) intensify it. The subordination of law to equity is
an attempt to allow moral values to predominate over the letter of the law, and thus to
realise the ideal of justice in the juridical sphere.”67

The goal of canonical equity is the protection of rights whether it is juridical or

administrative. Book VII sets in place norms that guarantee the rights of an
individual, which when not observed, invalidates an action. Robert J. Kaslyn
observes, “Canonical equity aims at ensuring that rights are protected, and injustice
corrected in situations where a strict application of the law might harm these rights or
where the incapable of correcting an injustice. Equity ensures that the Church’s
mission of the salvation of souls remains paramountcy, reflecting the Church as
communio in which all the faithful, as sons and daughters of God, strive to promote
the holiness of the Church herself and of individuals.”68

Canonical equity amplifies justice, encourages common good, and improves the
quality of human relationships; it aims to bring a balance between justice and charity
and thereby seeking to strike a harmony between the common good of the Church
and the protection of the rights of the individual. Hence, the principle of canonical
equity enhances that of the principle of the salvation of souls.

Major Contents of the Code

The contents of the Code have been refined and tailored to address more concretely
the pastoral life of the People of God. They reflect considerably the new thinking of

66 LG 40.
67 G. May, “Ecclesiastical Law,” p. 401.
68 R. J. Kaslyn, “The Christian Faithful, canons204-329,” in J. P. Beal, J. A. Coriden, T. J. Green, eds.,
New Commentary on The Code of Canon Law, p. 281.
 24
the Vatican II Council, which thinks more power to the local churches and less
centralisation. It accounts for the reduction of the number of the canons in the
previous Code from 2414 to 1752, with the five books ratcheting up to seven books
for a purpose.

The impressive note about the contents of the Code is that it has a whole new and
exquisite vision of the Church. It is not just about the pairing down of the number of
canons that matters but the structure that expresses the new vision.

The former Code had five books, which was a division based on the principle of the
Roman law, and which was appropriate for its time, but now it is a superannuated
Code. It is unable to address incisively the issues of “The Church in the Modern
World.” For instance, the members of the Church are no longer characterised as
“persons” as in book 2 of that Code, but as “The People of God” portraying a
vivacious in which every baptised is acknowledged as a member.

Here are the summation of the most important contents of each of the seven books in
a panoramic view.

Book I: The General Norms

The first book of the Code stretches from canons 1 - 207. It deals on the General
principles of Law, which have been part of the legal system of the Church for
centuries. It gives the scope of the code, the extent of the relationship between the
Church and the State, and most importantly gives the impetus for the interpretation of
the other books of the Code. The canons here provide the instruments by which the
rest of the canons operate. Therefore, they define terms, describe persons, and the
extent of their rights and obligations and authority.

Ecclesiastical laws:
These canons 7 - 22 are about the fundamental principles of law and legislation that
are necessary for interpretation of the books of the Code. They state the enactment of
laws known as promulgation, who can enact them and who can be the subjects of the
laws, and who can give an authentic interpretation of a law?

Custom:
Custom is very important and has a place in the ecclesiastical legislation. It is on par
with the law and often can be against the law and thus, it can be abrogated. Though
when it exists, it is formidable; it is not law but it is endowed with the force of law.
With custom, the community can enact a law, obviously with the approval of the
legislator.

General Decrees and General Executory Decrees:

Whereas the general decree is a legislative act and so must be promulgated by one
with a legislative power, the general executory decree is executive.
 25
The singular administrative acts are performed by an administrator while discharging
their duties. These are singular decree, singular precepts, rescripts, privileges, and
dispensation and can be addressed to an individual or group of individuals.

Physical and Juridical Persons:

Canons 96 - 123 treat admission of persons and domicile in the ecclesial community.
The juridic effect of baptism is that it incorporates a person into the mystical body of
Christ with duties and rights. This correlates with canons 204 - 205 on the spiritual
effects of baptism.

Moral persons are by divine institution and it is only the Catholic Church and
Apostolic See that possess the personality. Juridical persons are institutions bestowed
with or constituted persons with an apostolic purpose. They are usually perpetual by
nature. Public juridical persons perform their functions in the name of the Church and
private public persons do not.

Juridical Acts:
Canons 124 - 128 handle juridical acts, which are acts of the will expressed in the
external forum by which a certain juridical effect is intended. Such acts require
rationality with the intention to produce juridical effect. So, it needs knowledge,
intention, direction and capacity. It requires, “the three essential elements for a valid
juridical act, the capacity to act, the intrinsic nature of the act itself and the external
formalities required for such acts.”69

Ecclesiastical Office:
Ecclesiastical office is any function established in a stable manner. Canon 145 states,
“An ecclesiastical office is any post which by divine or ecclesiastical disposition is
established in a stable manner to further a spiritual purpose.” The rights and duties to
any office are determined by law whereby the office is conferred.

These offices can be lost either by expiration of a determined time or by resignation

or transfer or by removal or by deprivation.

Book II: The People of God

This is the nub of the Code and its title; People of God reflects a significant
ecclesiological shift. It is here that the inflection point and the consequential impact
of Vatican II shines out. The book handles the Church and her members and that is
why it begins by the treatment of “Christ Faithful.” It answers the question of who
the members of the Church are and what are their rights and obligations.

69 C. Obasi, The Basic Principles of Canon Law: Texts and Commentaries, (Owerri, Living Flame
Resources, 2012), 70.
 26
It is here that the Code for the first time in the history of the Church has listed
fundamental rights and obligations of the faithful. It has been described as “Bill of
Rights” and these rights are delineated with their corresponding obligations.

The book also addresses the inalienable rights of the Church to form her candidates
for the sacred ministry: the admission of the candidates to the seminary, formation in
philosophy and theology, and the sustenance of the seminaries are treated in canons
232 - 293.

It mentions particularly the obligations and rights of those who serve the Church as
ministers, which emphasises obligations ahead of rights. That they may understand
the essential duties arising from the ordination.

The part II of the book presents the hierarchical constitution of the Church noting the
supreme authority of the Pope and the College of Bishops. There is the highlighting
of the Synod of bishops, the college of Cardinals, the Roman Curia and Pontifical
legates as those who assist in the running of the universal Church.

There is recognition of those who govern the particular churches in which the bishop
is the paradigm of them and the diocese as the perfect example of a particular church.
Further it states the position of pastors of souls who perform the same task in the
parishes as the bishop does in the diocese as co-workers.

Members of the institutes of consecrated life and societies of Apostolic life are
equally addressed as a special group in the ecclesial community. Likewise, members
of the secular institute are recognised as those who work for the sanctification of the
world from within. It outlines the admission and formation of their various
candidates.

Book III: The Teaching Office

The Code addresses the mission entrusted to the Church - the People of God - for the
salvation of peoples. The emphasis is on the participation of the whole People of God
in the prophetic role of Christ (munus propheticum Christi), which is according to
one’s configuration to Christ. That is the precise message in the 87 canons of the
Code.

Hence, the magisterium - the teaching authority of the Pope and the bishops - the
Pope and the College of Bishops proclaim the gospel in the universal Church and the
diocesan bishops in their various dioceses.

Preaching is given recognition in which the sacred ministers have the duty to carry
out, and for this reason, catechetical instruction should be given much attention as a
way of sustaining in faith those who have been evangelised. So also, missionary
activity is acknowledged as the responsibility of all the People of God. As each
 27
person participates, the hierarchy gives the guideline by directing and coordinating
the activities as parents are specially exhorted to the education of their offspring.

Book IV: Sanctifying Office

The fourth book concerns a very important aspect of the life of the Church and has
325 canons that address the Church’s sacramental life. It is quite understandable
because the Church desires that the sacraments be rightly celebrated to be indeed
avenues to express and strengthen faith in God and to sanctify mankind.

That explains the definition by the Code “. . . as actions of Christ and the Church,
they are signs and means, which express and strengthen the faith, render worship to
God, and effect the sanctification of humanity and thus contribute in the greatest way
to establish, strengthen, and manifest ecclesiastical communion. Accordingly, in the
celebration of the sacraments, the sacred ministers and the other members of the
Christ Faithful must use the greatest veneration and necessary diligence.”70

There is a dogmatic or quasi dogmatic canon introducing each of the sacraments

which gives the key metric for a proper interpretation of the subsequent canons.
There is no doubt that a studious reading of the canons will lead the reader to a proper
comprehension and significance of initiation: baptism, confirmation, and the Holy
Eucharist.

One compasses lucidly that baptism incorporates into the mystical body, understands
who a sponsor at baptism and confirmation may be, how often a priest celebrates
Mass in a day, the chance of administering Holy Communion to non-Catholic, and to
what extent one should fast before the reception of the Holy Communion, and the
nature of the bread and wine to be used.

There is emphasis on the role of the priest as the minister of the sacrament of penance
and to be able to absolve validly, the priest needs the faculty of exercising it over the
faithful. He receives this faculty either by law or by the grant of a competent
authority. The penitents are exhorted not to be passive; they are obliged to be
disposed to reject sin and turn to God for true forgiveness.

The Church commends the sick members to the suffering and glorified Lord so that
their sufferings might relieve and save them. It is only the priest who administers the
anointing of the sick.

The sacrament of Orders establishes some members of Christ Faithful as sacred

ministers through an indelible character, which it endows on them. Thus consecrated,
they nourish the People of God by performing in the person of Christ the function of
teaching, sanctifying and governing. The ordination of these persons is celebrated in
a large gathering of the People of God and the minister of the ceremony must be a
70 Canon 840.
 28
validly consecrated bishop. Proper investigation has to precede the ordination of any
candidate.

The sacrament of marriage is a preoccupation of the Church because it has both

personal and communal consequences. It is a celebration in which both parties are the
celebrants and the Church’s minister is the official witness to the marriage. The
consent of both parties legitimately and mutually given and accepted make marriage
and thus it becomes an irrevocable union. Marriage is invalid when there is the
presence of any of the diriment impediments.

The Code also attends in this book such other acts of divine worship as reverence for
the dead, places of worship and sacred times.

Book V: Temporal Goods of the Church

This is the shortest book bar none. It is about acquisition of property, stewardship,
and accountability. The book is an affirmation that the Church is also concerned
about the possession of goods and their administration to accomplish her
responsibility towards the needy and her ministers, and divine worship in general.

Hence, the Code asserts the right of the Church to the acquisition of goods, of course,
by just means such as bequests, endowments, purchases, and subsidies. These
acquisitions are administered by the competent administrators - bishops, pastors,
superiors of religious institutes, rectors of seminaries.

The Code puts down guiding rules for any acquisition and alienation in the Church.
These regulations cover such matters as collection and levies from the Faithful, the
management of funds, their rightful distribution and adequate remuneration of the
clergy. That the Church may acquire property through wills and foundations and in
their administration, emphasis has to be laid on the intention of the donors, and that
their wishes be observed to the letter.

Patently, the general theme of the book is that acquisition and administration of
goods are entrusted to the administrators as trustees or stewards. The goal of which is
the spiritual welfare of the People of God.

Book VI: Sanctions

Sanctions connote punishment, which may ostensibly be strange or out of place in a
community known for love and grace. However, the Church comprises of
individuals, ornery, sinners and saints, thus a book on sanctions would be advisable
in such a community. Human beings are given to deviating from keeping rules and
regulations; consequently, to keep order and disciple, penalties are essential for
healthy relationships leading to the welfare of offending members and the integrity of
the community.
 29

It is noteworthy to observe that the number of the canons has been paired down from
220 to just 89 and that some freaky parts of the past legislation have been expunged
such as reserved penalties. Most importantly, the approach to sanctions in the Church
has improved tremendously following from the thinking of the Vatican II Council.
The attitude is now more pastoral as envisaged from the principles that guided the
revision of the Code. Everything is studiously ordered towards the mission of the
Church to save souls.

The Code declares the right of the Church to punish offending individuals, bearing in
mind that not every offence should be visited with a sanction; that punishment should
be according to stipulated norms (canon 1321). That is the reason some members are
not liable to penal sanctions (canon 1322), because an offence is an external and
imputable violation of a law or precept (canon 1321, §1).

This is the reason for strict application of penalty by anticipatory sentence (latae
sententiae) and encouragement of penalty by subsequent sentence (ferendae
sententiae) (canons 1314, 1318). It follows that penal laws apply only after all
measures, warning, advice, and corrections have proved futile.

Accordingly, the Church has four-forms of canonical punishments: penal remedies,

which calls for rebuke of somebody acting scandalously (canons 1312, 1339);
penances that is a substitute for a penal sanction (canons1312, 1314); expiatory
penalties tend to salve the harm done to the community (canon 1336); medicinal
penalties or censures, which have three penalties - excommunication, interdict, and
suspension. These censures are medicinal and therefore, must be lifted as soon as the
offender takes correction (canons 1331 - 1334).

Book VII: Processes

The final book is also a necessity in the legislations among the People of God. Its 352
canons deal with processes: judicial, concerning court cases and administrative, cases
settled by executive authorities in the handling of disputes and litigation between the
Faithful. These procedural norms are important that even the diocesan bishop cannot
dispense from them (canon 87).

Salvation of souls is the ultimate or highest law in the Church and every procedural
regulation must serve this purpose. It is inadvisable that litigations and lawsuits
should be commonplace in the community of believers. Therefore, the Code
admonishes administrators to strive diligently to avoid lawsuits, of course, observing
justice among the Faithful. It is hoped that administrators encourage the Faithful to be
open to equitable solution and if possible, use respected persons for mediation
(canons 1446, 1713 - 1716).
 30
Judicial trials (canons 1400 - 1655) are employed in different procedures -
matrimonial and penal processes. These general rules for trials aim to vindicate the
rights of the Faithful, to declare juridical facts, or to mete out punishment. For this
reason, the Church has jurisdiction over spiritual matters and violation of the
Church’s law (canon 1401), and so anyone can bring a case before an ecclesiastical
court (canon 1476). In addition, it is the right of every member to approach the court
for the motive of the vindication of their rights (canons 221, 1491).

There is the administrative recourse, which is a process of asking an administrator or

their superiors for a rethink or to reconsider a particular administrative decision.
Those with executive authority can take such decisions or give orders or make
policies within their areas of competence. The recourse against them could be seeking
an alternative dispute resolution, or to revoke or to modify or to recourse to
hierarchical superiors (canons 1732 - 1739).

There is the provision of the norms for the removal of a pastor from office. In the
event of a pastor resisting or challenging his removal, he may have to be removed by
a special administrative procedure and not judicial because it is not presumed or
adjudged that he might have committed a canonical offence (canons 1740 - 1747).

Likewise, the Code lays down the special norms for the transfer of pastors from a
parish to another or to any other form of ministry. It may happen that a pastor be
hesitant or indisposed to take a transfer, the following norms may be invoked (canons
1748 - 1752).