HAHN Judith - Church Law in Modernity. Toward A Theory of Canon Law Between Nature and Culture (2019)

church law in modernity
Natural law has long been considered the traditional source of Roman Catholic
canon law. However, new scholarship is critical of this approach as it portrays the
Catholic Church as static, ahistorical, and insensitive to cultural change. In its
attempt to stem the massive loss of effectiveness being experienced by canon law,
the church has to reconsider its theory of legal foundation, especially its natural
law theory. Church Law in Modernity analyses the criticism levelled at the church
and puts forward solutions for reconciling church law with modernity by revealing
the historical and cultural authenticity of all law, and revising the processes of law
making. In a modern church, there is no way of thinking of the law without the
participation of the faithful in legislation. Judith Hahn therefore proposes a
reformed legislative process for the church in the hope of reconciling the natural
law origins of church law with a new, modern theology.
Judith Hahn is a Catholic theologian and Professor of Canon Law at the Faculty of
Catholic Theology of Ruhr University Bochum. In 2015 and 2016, she was a Fellow
at the Käte Hamburger Center “Law as Culture”, University of Bonn, and she has
published extensively on legal theory, law and religion, and Church and State.
LAW AND CHRISTIANITY
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John Witte, Jr., Emory University
Editorial Board:
Nigel Biggar, University of Oxford
Marta Cartabia, Italian Constitutional Court/University
of Milano-Bicocca
Sarah Coakley, University of Cambridge
Norman Doe, Cardiff University
Rafael Domingo, Emory University / University of Navarra
Brian Ferme, Marcianum, Venice
Richard W. Garnett, University of Notre Dame
Robert P. George, Princeton University
Mary Ann Glendon, Harvard University
Kent Greenawalt, Columbia University
Robin Griffith-Jones, Temple Church, London / King’s College London
Gary S. Hauk, Emory University
R. H. Helmholz, University of Chicago
Mark Hill QC, Inner Temple, London / Cardiff University
Wolfgang Huber, Bishop Emeritus, United Protestant Church of Germany /
Universities of Heidelberg, Berlin, and Stellenbosch
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John McGuckin, Union Theological Seminary
Mark A. Noll, University of Notre Dame
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The Law and Christianity series publishes cutting-edge work on Catholic, Protestant,
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Books in the series

Great Christian Jurists in French History
Olivier Descamps and Rafael Domingo
Church Law in Modernity: Toward a Theory of
Canon Law Between Nature and Culture
Judith Hahn
Common Law and Natural Law in America:
From the Puritans to the Legal Realists
Andrew Forsyth
Care for the World: Laudato Si’ and Catholic
Social Thought in an Era of Climate Crisis
Frank Pasquale
Church, State, and Family: Reconciling Traditional
Teachings and Modern Liberties
John Witte, Jr
Great Christian Jurists in Spanish History
Rafael Domingo and Javier Martinez-Torron
Under Caesar’s Sword: How Christians Respond to Persecution
edited by Daniel Philpott and Timothy Samuel Shah
God and the Illegal Alien
Robert W. Heimburger
Christianity and Family Law
John Witte, Jr. and Gary S. Hauk
Christianity and Natural Law
Norman Doe
Great Christian Jurists in English History
Mark Hill, QC and R. H. Helmholz
Agape, Justice, and Law
Robert F. Cochran, Jr and Zachary R. Calo
Calvin’s Political Theology and the Public Engagement of the Church
Matthew J. Tuininga
God and the Secular Legal System
Rafael Domingo
How Marriage Became One of the Sacraments
Philip Reynolds
Christianity and Freedom (Volume I: Historical Perspectives,
Volume II: Contemporary Perspectives)
edited by Timothy Samuel Shah and Allen D. Hertzke
The Western Case for Monogamy Over Polygamy
John Witte, Jr.
The Distinctiveness of Religion in American Law
Kathleen A. Brady
Pope Benedict XVI’s Legal Thought
Marta Cartabia and Andrea Simoncini
Church Law in Modernity
toward a theory of canon law
between nature and culture
JUDITH HAHN
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Information on this title: www.cambridge.org/9781108483254
DOI: 10.1017/9781108673525
© Judith Hahn 2019
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First published 2019
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Contents
Preface and Acknowledgements page ix
Introduction 1
1 Nature As a Source of Validity for Religious Law 15
1.1 Divine Law in the Abrahamic Religions 15
1.2 Landmarks of Catholic Natural Law 34
1.3 The Recent Foundation of Canon Law 53
2 Questions from a Canonist’s Point of View 59
2.1 The Church in a Plural Society 60
2.2 Canon Law Positivism 68
2.3 The Participation of the People of God 79
2.4 Limits of Obedience and Compliance 91
2.5 Consequences 105
3 Canon Law between Nature and Culture 116
3.1 Leaving Natural Law Behind? 116
3.2 Universality, Historicity, Culturality 132
3.3 The Culturality of Global Canon Law 144
3.4 Canon Law between Unity and Plurality 156
4 Consequences for Developing the Law 174
4.1 The Legislation of the Global Church 174
4.2 The Local Reception of the Law 209
5 Conclusion 236
5.1 A Final Remark 236
5.2 Summing Up: Fifty Theses 238
Bibliography 245
Index 267
vii
Preface and Acknowledgements
Recent European debates on the validity of law have seen natural law play a
minor and often difficult role. Some legal schools, particularly of the civil law
tradition, are even proclaiming the end of natural law. Nevertheless, the idea
of a natural normativity, which is no longer fully convincing in the secular
debates in any case, remains present in the discourses on religious law; yet it
also faces problems here. While natural law continues to play a central
function in many religious legal orders, it also represents a frequent source
of dissonance. In the legal order of the Catholic Church, for instance, many
faithful no longer concur with the legislator’s understanding of nature. This
disagreement challenges the acceptance of law based on a natural normativity,
and this loss of acceptance results in the loss of effectiveness of the law. At the
same time, the loss of effectiveness gives rise to questions of validity.
This study takes up the discourse on the critical status of natural law within
the Catholic Church and asks how the legal theory of canon law might
develop in reaction to the dissonances respecting the effectiveness and validity
of ecclesiastical law. The question of natural law serves as a starting point for
examining the preconditions underlying the foundation of canon law in the
context of modernity and modern theology. However, any reader expecting a
study that links itself closely to the recent philosophical debates on natural law
(and especially to writings celebrating a revival of natural law) might be
disappointed. As I am endeavouring to make a particular contribution to the
foundation of canon law, this study does not espouse ‘New Natural Law’, even
though it considers current approaches to philosophical natural law. I was
reminded to pay due consideration to this vast field, particularly in Anglo-
American legal philosophy, by Robert Ombres OP of Blackfriars Hall, Oxford,
whose proficiency as a canon lawyer and legal scholar includes not only the
ix
x Preface and Acknowledgements
church’s tradition of natural law but also the discourses of secular law and
legal philosophy.
Instead of incorporating this study into these discourses, however, I prefer to
focus on the way in which canon law must develop in order for it to have a
future, since ecclesiastical law is at present rapidly losing its relevance, pre-
dominantly in the churches of the West. While this phenomenon is related to
questions of legal validity, a study on the validity of canon law under the
conditions of modernity cannot be undertaken without taking legal sociology
into account. And indeed, the present study was significantly moulded by the
sociological context in which I began writing it, as the first draft was written in
the winter of 2015–2016, which I spent as a fellow at the Käte Hamburger
Center ‘Law as Culture’ in Bonn. The centre, which focusses on law from the
perspective of the humanities, is a lively learning community uniting scholars
from different backgrounds including law, cultural studies, and sociology. Not
all scholars to whom I owe important influences can be named here. Yet I
would like to explicitly mention the directors, the legal scholar Nina Dethloff
and the legal sociologist Werner Gephart, who provided a dynamic atmo-
sphere for discussing the phenomena of law and religion in their tension
between normativity and facticity. From the team of scientific coordinators,
I would like to mention the legal scholar Raja Sakrani, whose research on
Jewish, Christian, and Muslim convivencia in medieval Spain inspired me to
take on a comparatist perspective with regard to the laws of the Religions of the
Book, and the sociologist Daniel Witte, whose expertise on the sociological
classics motivated me to read more in this field. I am also very grateful to the
centre’s research professor Marta Bucholc, a sociologist, legal scholar, and
philosopher, whose valuable comments were indispensable for my work, as
was the support of my co-fellows, especially Daniela Bifulco, a legal scholar of
Seconda Università degli Studi di Napoli, and Sabine N. Meyer, assistant
professor for American studies at the University of Osnabrück.
With regard to the future, any reflections on the foundation of canon law
must provide validity arguments that convince the members of an increasingly
pluralist church. Connected with this is the question regarding the extent to
which the difference between religious validity theories and secular argu-
ments can be allowed to grow before the religious approach becomes implau-
sible for the community members, and how big the differences must be to give
credit to the specific religious dignity of religious law. Since society’s plurality
presents legal theorists of secular and religious law with a common problem,
they share a good number of questions, even though their answers might differ
to some degree. Christian natural law is being challenged by plurality, as is
Jewish and Islamic legal theory, although each religion is pursuing its own
Preface and Acknowledgements xi
solutions. So it is helpful and necessary to consider how Jewish and Islamic

legal thinkers refer to the tension of plurality and universality in the field of the
law. I came across David Novak’s important groundwork on Jewish natural law
thanks to Iveta Leitane who, as a scholar of Jewish philosophy, is also an expert
on the philosophical debates on Jewish law. Although the Christian, Jewish,
and Islamic natural law traditions differ significantly, similar questions exist in
all three Abrahamic religions. This is clearly shown by Anver M. Emon,
Matthew Levering, and David Novak, who published Natural Law: A
Jewish, Christian, and Islamic Trialogue in 2014. Their book emphasises that
natural law is a normative idea that might play a major role in a dialogue
between the Religions of the Book. As normativity and law in the Abrahamic
religions will be not only a key question of interreligious dialogue in the
coming years but also a focal point in the debates between religion and the
state, natural law as a universalistic normativity of religious and secular legal
thought might be a good beginning for discussing the common grounds of
legal understanding.
Nevertheless, the potential of natural law to further interreligious dialogue
cannot conceal that nature – as a reason or basis for the validity of law – faces
huge challenges, as does the neo-Scholastic natural law of Catholic legal
thought in particular. In modernity, the idea of universality has to be carefully
detached from its premodern link, which understands natural law as ahisto-
rical. Instead, universalistic arguments have to embrace the finding that each
law is cultural and particular. The observation by systematic theologian Judith
Gruber – “A theology after the Cultural Turn is challenged to think of a model
of universality on the basis of epistemological particularity”1 – also under-
stands canon law foundation as having to connect the idea of legal universality
with the particularity of law. This is not only a desideratum of cultural studies,
but a theological mission, as culturality and particularity are theologically
1
Gruber, Theologie nach dem Cultural Turn, Stuttgart, Kohlhammer, 2013, 12; original: “Eine
Theologie nach dem Cultural Turn ist dazu herausgefordert, ein Modell von Denkbarkeit von
Universalität auf der Basis epistemologischer Partikularität zu entwerfen.”
A general remark on the use of non-English direct citations in my study: whenever I quote
directly from non-English texts, I translate the quotes and insert my English translations into
the main text, placing the original texts in the footnotes. I am not fully convinced that this is a
respectful way of dealing with other authors’ writings, but in doing so I have tried my best to give
their thoughts the impact that they deserve by letting the authors ‘speak’ for themselves from
time to time (even though in an English translation done by me). I am aware of the problem
that translating always changes the meaning of texts. The translator is always a traitor: this motto
was just recently discussed convincingly by Terrence W. Tilley in his book Inventing Catholic
Tradition, Eugene, OR, Wipf & Stock, 2011, 9–10. I sincerely hope that none of the non-English
authors feels betrayed, misunderstood, or misquoted by my translations.
xii Preface and Acknowledgements
relevant. The theological dignity of the Christian faithful who form the
church – the people of God – as embodied in the local churches and their
cultures, requires a focus on nature as well as on culture as a validity reason of
law. But accepting culture as a validity reason of law is not unproblematic, as
the phenomenon of cultural difference is ecclesiologically hard to digest in
Catholic legal thought. To protect the unity of faith, the foundation of canon
law depends on a legal unity. Questions regarding the validity of canon law
must therefore reflect the tension between the church’s plurality and its unity,
between local differences and a universal normativity.
Writing a book takes a considerable amount of time. This rare privilege was
granted to me by the German Federal Ministry of Education and Research,
which financed a substitute professor during my time at the Käte Hamburger
Center ‘Law as Culture’ in the winter of 2015–2016, and by the German
Research Foundation (Deutsche Forschungsgemeinschaft), which financed
my research leave the following winter to enable me to finish this study. I am
grateful to my colleague Bernd Dennemarck, who stood in for me in Bochum
during both periods.
Time is one precondition for writing a monograph, but so is inspiration. I
have already mentioned the team at the Käte Hamburger Center, which
provided a creative multidisciplinary atmosphere and a productive environ-
ment for my initial thoughts about the culturality of canon law. In addition,
another context has to be named which served as creative space when working
on the study. As a member of the Faculty of Catholic Theology at Ruhr
University, Bochum, I am blessed with being part of a unique college of theolo-
gical scholars. I am grateful to my colleagues with whom I may always discuss my
ideas and who encourage and welcome even bold steps in theological research.
My gratitude likewise includes the team of my chair. First of all I want to thank
Andrea Hartwig, who is a great help in all matters of organisation and adminis-
tration. I also want to thank Catherina Uhlmann, who supported my work.
Regarding support, I am most grateful to Robert John Murphy, who under-
took the arduous task of carefully proofreading my manuscript, and to Gary S.
Hauk, who meticulously copyedited it. Their patient and kind way of dealing
with my text was most helpful and instructive for me and considerably
improved my writing. I also want to thank John Berger, Senior Editor at
Cambridge University Press, and the staff at Cambridge University Press for
their excellent support, in particular Danielle Menz, Becky Jackaman, Sri
Hari Kumar Sugumaran and Ami Naramor. I owe particular thanks to John
Witte, Jr. for considering my book for the Law and Christianity series.
I undertook part of the reading and writing in an environment which
became very dear to me, although it will always remain special and
Preface and Acknowledgements xiii
intimidating. As an Academic Visitor at the Faculty of Theology and Religion,

Oxford, in summer 2016, I spent many hours in the Bodleian Libraries (for me
one of the most beautiful places to do research and, especially during the
summertime, frequented by scholars from all over the world). Part of the text
was written in the house of the Foster family, where I was living during my
time in Oxford. Every reader who is appalled by my study’s constant references
to nature in a normative way might be helped by acquiring a copy of Charles
Foster’s book Being a Beast (London, Profile Books, 2016). The author is a
legal scholar, ethicist, and veterinary surgeon. I can recommend his thoughts
on nature and culture as a healthy antidote to all approaches and attempts to
limit nature in an anthropocentric way.
That nature and culture are two sources of normativity that permeate the
small social entities in which we live is certainly part of our experience
residing in social entities we call families. I am very grateful to my mum and
my dad (whom I subjected to basically any fight about normative matters when
growing up), and to Claudia, Mirjam, and Thomas. In being my family, they,
probably without being aware of it, might be one reason why I started to think
about nature and culture and their normative implications.
Introduction
Natural law – is it really a dead approach to founding law, as many legal scholars
and philosophers repeatedly intimate? For many legal theorists today, the under-
standing that there is a link between a legal norm and the nature of the matter it
regulates is rather a historical idea. Thinking that some norms exist because the
nature of a matter requires them to be reveals a deep trust in the normative power
of nature which hardly seems convincing in modernity. Modern thought mostly
conceives of nature in accordance with the natural sciences and, in consequence,
finds it difficult to relate to the perception of nature in natural law arguments.
The way nature is referred to in normative contexts considers nature as norma-
tively binding and is therefore not the same term as the one used in the empirical
sciences.1 When speaking about nature, as the legal scholar Ernst Forsthoff stated
in the postwar period, natural law refers to
the essence of humankind, their relationship with God, other human beings
and the world, basically everything that is a matter of their ethically relevant
behaviour. One may speak of nature because this essence and these facts may
be understood as something given, which determines humankind and cannot
be shaped according to their will.2
1
Stephen Pope takes Darwin’s theory of evolution as a paradigmatic change towards a modern
understanding of nature in the sense of the natural sciences, as it helped to ‘de-moralise’ the
idea of nature: see Pope, ‘Natural Law’, in Meilaender/Werpehowski (eds), Oxford Handbook
of Theological Ethics, Oxford, Oxford University Press, 2007, 153.
That the gap between a cosmic and a moral understanding of nature is indeed a modern
phenomenon is argued by Francis Oakley in his book on the history of ideas of the law of
nature, natural law, and natural rights: see Oakley, Natural Law, New York, NY, A&C Black,
2005, especially chapters 2 and 3, 35–86. Here, the author shows that throughout medieval times
until modernity, there was a close relationship between the laws of nature and natural law.
2
Forsthoff, ‘Rechtserneuerung’, in Maihofer (ed.), Naturrecht, Bad Homburg, Hermann
Gentner, 1966, 78; original: “die Wesenheit des Menschen, die Beschaffenheit seines
1
2 Church Law in Modernity
natural law as a matter of faith

In natural law arguments, nature is understood as something given and at the
same time something given specifically to humankind, whom it normatively
binds. Yet the exact shape of a natural normativity is undefined. The question
of what constitutes humankind’s nature has been intensively discussed
throughout the history of thought, yet it can never be answered finally.
Whether human nature is determined by humankind’s relationship with
a higher being, for example, is a question answered differently from
a religious or a nonreligious point of view. Natural law, as the Protestant
theologian Ernst Wolf notes, is therefore always a “question of faith – in
a Christian as well as in every religious sense, from a humanistic and secular
point of view – and a question of reason; contributing to the problem of natural
law therefore always requires a decision of faith or weltanschauung”.3 Natural
law, as Alfred Verdross adds, may be founded on the idea that “God, when
creating the world . . ., put certain regulative principles into men’s conscious-
ness, according to which men have to act.”4 The normative significance of the
individual, which may be seen as a consequence of God’s creation of human-
kind, can also be connected with human reason and, thus, may be interpreted
in a purely secular way. And instead of focussing on the individual alone,
natural law may also be understood as a communal phenomenon. It can be
related to the normativity of a group or of society, as individuals normatively
relate to each other and to the world around them: “The norm of natural
justice is the inherent standard of the right interaction among members of
society. It is the rule and immanent measure of interpersonal and social
human relations”,5 the International Theological Commission states.
Verhältnisses zu Gott, den Menschen und den Dingen, mithin zu allem, was Gegenstand
seines ethisch qualifizierbaren Verhaltens ist. Von Natur ist hier die Rede, weil diese
Wesenheit und diese Beschaffenheit als ein Gegebenes verstanden werden, das der Mensch
als ihn determinierend vorfindet und nicht nach seinem Gutdünken gestalten kann.”
3
Wolf, ‘Gottesrecht und Menschenrecht’, in Dehn/Wolf, Gottesrecht und Menschenrecht,
Munich, Chr. Kaiser, 1954, 11; original: “Frage des Glaubens – im christlichen wie im
allgemeinen religiösen, im humanistischen und innerweltlichen Verständnis – und der
Vernunft; darum bedeutet die Stellungnahme zum Problem des Naturrechts immer eine
glaubensmäßige oder weltanschauliche Entscheidung.”
4
Verdross, ‘Was ist Recht?’, in Maihofer (ed.), Naturrecht, Bad Homburg, Hermann Gentner,
1966, 317; original: “Gott bei der Erschaffung der Welt . . . in das Bewußtsein des Menschen
bestimmte Ordnungsprinzipien hineingelegt hat, nach denen sich die Menschen verhalten
sollen”; see also Kuttner, ‘Natural Law’, University of Notre Dame Natural Law Institute
Proceedings 3 (1950), 98–99.
5
International Theological Commission, ‘In Search of a Universal Ethic’, 2009, no. 88, www
.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_con_cfaith_do
c_20090520_legge-naturale_en.html (accessed 29 November 2016).
Introduction 3
Being defined by this and other normative pre-decisions, nature – even if

accepted as a binding force for man – can be understood variously.
In consequence, referring to nature normatively presents the problem of
universalising natural norms. Naturally grounded norms may convince indi-
vidually. Yet we know how difficult it is to uphold a universal claim that is
binding for everyone. Moreover, specific ideas about what is naturally right
usually stand in fundamental opposition to one another, even though some
natural goods and values are broadly accepted by most people and in most
cultures. These goods – such as life, property, religious practice, and procrea-
tion and the nurturing of offspring – serve many modern natural law
approaches as a foundation on which to base the theory.6 In any case, the
problem of universality does not exist at the level of these basic human goods,
which most people would agree to, but arises as soon as normative conse-
quences are derived from them. Matthew Levering, a Catholic theologian,
notes that: “certain moral principles are in fact shared across cultures on the
basis of natural law, whether or not natural law doctrine has plausibility in
these cultures. But because serious disagreement will emerge when one begins
to apply these principles in the complex circumstances of life, natural law
doctrine alone cannot be counted upon to do all, or even most, of the work.”7
Similarly, the moral theologian Eberhard Schockenhoff refers to the problem
of finding a natural foundation of morality. Schockenhoff argues that univer-
sal values exist to which all people might consent; yet consenting to the
consequences deriving from these values is a different matter entirely. There is
the practical impossibility of achieving an intersubjectively binding consen-
sus about the significance, the decisive character, and the hierarchy of the
individual values . . . Hence, the attempt to justify law in terms of objective
values does not genuinely free us from the dilemma of legal positivism, since
it too must appeal to the subjective views about value which de facto exist in
society; it does not possess any legally binding criterion with which it might
undertake a normative evaluation of these views.8
6
E.g. George, In Defense of Natural Law, Oxford, Oxford University Press, 2001, 102–103; Wolfe,
Natural Law Liberalism, Cambridge, Cambridge University Press, 2006, 174; Levering,
Biblical Natural Law, Oxford, Oxford University Press, 2008, 15; Finnis, Natural Law and
Natural Rights, 2nd edn, Oxford, Oxford University Press, 2011, 59–99.
7
Levering, ‘Response to Anver Emon’, in Emon/Levering/Novak, Natural Law, Oxford, Oxford
University Press, 2014, 195; see idem, ‘Christians and Natural Law’, in Emon et al., Natural
Law, Oxford, Oxford University Press, 2014, 109–110.
8
Schockenhoff, Natural Law & Human Dignity, Washington, DC, Catholic University of
America Press, 2003, 299.
In consequence, many scholars, including the famous legal scholar and judge
of the US Supreme Court Oliver Wendell Holmes, are rather sceptical of
natural law’s idea of a universal normativity based on fundamental goods.
Holmes noted that:
It is not enough for the knight of romance that you agree that his lady is a very
nice girl – if you do not admit that she is the best that God ever made or will
make, you must fight. There is in all men a demand for the superlative, so
much so that the poor devil who has no other way of reaching it attains it by
getting drunk. It seems to me that this demand is at the bottom of the
philosopher’s effort to prove that truth is absolute and of the jurist’s search
for criteria of universal validity which he collects under the head of natural
law.9
ontology and epistemology

Two arguments can be used to explain the dissensions regarding the content of
a natural normativity. One argument explains the dissent with regard to an
ontological problem in natural law. In his recent book on the concept of
norms, the legal scholar Christoph Möllers speaks of deep “ontological
doubts” in modernity over the possibility of “using nature for moral, aesthetic
or juridical judgements”.10 Whoever shares these doubts is unsure whether
nature is in any sense normatively relevant. The link between nature and
normativity, which is taken for granted in natural law theories, is regarded as
either non-existent or unstable.
In any case, modern debates in legal theory mostly identify a different
reason for generating the dissents about the content of natural law. Whereas
many scholars agree on the normative meaning of nature, the question arises
as to whether human reason is capable of referring to it as a source of norms.
Most cultures share the idea that human acting and behaviour might be
evaluated as being “according to nature”, as the International Theological
Commission put it in 2009. There is a cultural consent that “acts of courage,
patience in the trials and difficulties of life, compassion for the weak, modera-
tion in the use of material goods, a responsible attitude in relationship to the
environment, and dedication to the common good” can be taken as reactions
to the conditions and hardships of human life that are naturally right. And
there is also a general consensus that “murder, theft, lying, wrath, greed, and
9
Holmes, ‘Natural Law’, Harvard Law Review 32 (1918), 40.
10
Möllers, Möglichkeit der Normen, Berlin, Suhrkamp, 2015, 112; original: “ontologische[n]
Zweifeln”; “Indienstnahme der Natur für moralische, ästhetische oder juridische Urteile”.
Introduction 5
avarice” are “universally recognized as calling for condemnation”11 in all

cultures.
These deeds are regarded as opposed to human dignity and human sociality
all over the globe. Yet although a cross-cultural consensus exists about the
moral value of certain human deeds and attitudes, the question regarding the
normative consequences deriving from this consensus cannot be answered
finally. The Jesuit and legal scholar William J. Kenealy takes this difficulty as
proof of the openness of natural law to all kinds of normative arguments: “That
natural law does not mean a closed legal system, is evident from the fact that
the fundamental principles do not tell us automatically in concrete applica-
tions what is good or evil, just or unjust, wise or unwise.”12 In order to discover
a law of nature, a temporally and culturally sensitive concretisation is
necessary that derives normative consequences from fundamental princi-
ples: “The possession of a compass does not make the navigator’s job
unnecessary.”13
This problem is evident in the recent discourses on human rights.14
Whereas many voices agree that human rights are grounded on a natural
normativity,15 the normative consequences derived from that are unclear.
In contrast to the optimism of ecclesiastical documents which suggest that
there is “a universal ethical message inherent in the nature of things, which
everyone is capable of discerning”,16 modernity is more sceptical about
whether and how this perception might successfully work. In addition, there
is the question of how the message so perceived can be used to derive naturally
grounded norms. Natural law, if one does not question its existence in the first
place, is epistemologically challenging at the very least.
11
International Theological Commission, ‘Universal Ethic’, no. 36.
12
Kenealy, ‘Whose Natural Law?’, Catholic Lawyer 1 (1955), 262.
13
Ibid., 263.
14
E.g. Reuter (ed.), Ethik der Menschenrechte, Tübingen, Mohr Siebeck, 1999; Ezzati, Islam
and Natural Law, London, ICAS Press, 2002, 189–209; Lohmann, Zwischen Naturrecht und
Partikularismus, Berlin, De Gruyter, 2002; Girardet/Nortmann (eds), Menschenrechte und
europäische Identität, Stuttgart, Franz Steiner, 2005; Römelt, Menschenwürde und Freiheit,
Freiburg im Breisgau, Herder, 2006; Sachedina, Islam and the Challenge of Human Rights,
Oxford, Oxford University Press, 2009; Tönnies, Menschenrechtsidee, Wiesbaden, Springer,
2011; Leichsenring, Ewiges Recht?, Tübingen, Mohr Siebeck, 2013, 410–429; Goertz,
‘Naturrecht und Menschenrecht’, Herder Korrespondenz 68 (2014), 513–514; Kirchhoff,
‘Begründung des Rechts’, in Heinzmann (ed.), Kirche, Freiburg im Breisgau, Herder, 2015,
103; Wald, ‘Menschenwürde und Menschenrechte’, in Nissing (ed.), Naturrecht und Kirche,
Wiesbaden, Springer, 2016, 53–74.
15
At present most prominently Finnis, Human Rights and Common Good, Oxford, Oxford
University Press, 2011; idem, ‘Grounding Human Rights in Natural Law’, American Journal of
Jurisprudence 60 (2015), 199–225.
16
plurality and homogeneity

Due to the epistemological problem of perceiving natural law, a plurality of
different norms appears to be the consequence of a natural normativity. In his
famous book Pure Theory of Law, the legal scholar Hans Kelsen describes this
dilemma of natural law as a source of (unwanted) pluralism: “As soon as
the natural-law theory undertakes to determine the content of the norms
that are immanent in nature . . . it gets caught in the sharpest contrasts.
The representatives of that theory have not proclaimed one natural law but
several very different natural laws conflicting with each other.”17
The epistemological problem of perceiving the naturally right therefore
results in the identification of multiple conceptions of natural law, all of
which claim universality for themselves: “Any positive law that conforms
with the natural law of one theory and therefore is judged ‘just’ is in conflict
with the natural law of the other theory and therefore is judged ‘unjust’.
Natural-law theory as it was actually developed – and it cannot be developed
differently – is far from providing the criterion expected of it.”18
The tendency in natural law debates to introduce a power argument which
promotes one particular position over another is related to this problem of
pluralism. In this sense the legal theorist Bernd Rüthers takes a critical stance
towards arguments of natural law, as they tend to transform questions on
content into questions of power: “The problem of perception (‘What does
natural law tell us?’) becomes a question of competence (‘Who defines what
natural law is?’).”19 Correspondingly, the philosopher and sociologist Ernst
Topitsch, reflecting the German natural law debates in the postwar period,
described the rough disputes of those times in which the debaters even
resorted to acts of repression to reinforce the plausibility of their positions
towards natural law.20
The twentieth-century discourses on legal theory (of which the legal
debates about the fledgling democratic state of postwar Germany are one
example) also provide another insight, which is that natural law and legal
positivism represent ‘trends’ in the debates on legal validity theory. This can be
17
Kelsen, Pure Theory of Law, Berkeley, CA, University of California Press, 1967, 220.
18
Ibid.
19
Rüthers, Rechtstheorie, Munich, C. H. Beck, 2005, no. 443; original: “Aus dem
Erkenntnisproblem (‘Was sagt das Naturrecht?’) wird eine Kompetenzfrage (‘Wer definiert,
was Naturrecht ist?’).”
20
See Topitsch, ‘Naturrecht im Wandel’, Aufklärung und Kritik 1 (1994), 1–13. This is also argued
by Lena Foljanty who, in her study on the postwar German legal discourses, shows that harshly
arguing against legal positivism was an “identity question” (Recht oder Gesetz, Tübingen,
Mohr Siebeck, 2013, 20; original: “Identitätsfrage”) of postwar legal theory.
Introduction 7
understood best when reconsidering the German legal history of the past 200
years.21 Whereas reference was seldom made to natural law in the nineteenth-
century secular discourses on the foundation of law, natural law arguments
reappeared following periods of totalitarian law in the twentieth century. They
then became rather irrelevant again in the more politically stable times in
the second half of the twentieth century. This shows that natural law as
a tendency can be understood as a symptom of crisis, reacting to ruptures
within societies’ moral fundament and making legal theory search for a stable
normativity in the prepositive realm: “Once a culture’s major values have
become questionable or even more than one value system has developed,
humankind seeks lost security”,22 as Ernst Topitsch explains. In politically
stable times, however, the positivist approach is mostly regarded as an appro-
priate legal foundation. Any defence of natural law might thus be interpreted
as indicating a society’s need for normative security and stability. This makes
one wonder whether the recent debates on the legal development of the
Western states and confederations of states might see a return to natural law
arguments, not only in the United States, where they are still common, but
also in Europe, where natural law arguments are uncommon today. Pope
Benedict XVI’s appeal in the German Parliament to leave “positivist reason”
behind because it “dominates the field to the exclusion of all else” and has
placed Western societies in “a dramatic situation”23 was received positively by
many listeners,24 potentially indicating that a prepositive foundation of law
seems once again needed in the societies of the West due to the instability of
the current political situation.
Nevertheless, the growing plurality of modern Western societies has
resulted in an ambivalent attitude towards natural law. On one hand, plurality
shows values to be fragile and, therefore, reveals the urgent need to identify
a common prepositive foundation of values for society. On the other hand,
natural law arguments, because they provide plural normative answers to what
is naturally right, are ill-suited for grounding norms that can be agreed on.
21
See Foljanty, Recht oder Gesetz, 19–36, 343–349.
22
Topitsch, ‘Problem des Naturrechtes’, in Maihofer (ed.), Naturrecht, Bad Homburg,
Hermann Gentner, 1966, 177; original: “Sind einmal die Oberwerte einer Kultur fraglich
geworden oder sind gar schon mehrere Wertordnungen entwickelt, dann sucht der Mensch
die verlorene Sicherheit.”
23
Benedict XVI, ‘Address’, Reichstag Building, Berlin, 22 September 2011, www.bundestag.de
/parlament/geschichte/gastredner/benedict/speech (accessed 29 November 2016).
24
E.g. Hübenthal, ‘Naturrecht oder moderne Ethik?’, in Essen (ed.), Verfassung ohne Grund?,
Freiburg im Breisgau, Herder, 2012, 107; Stein, ‘Ethische Funktion des Naturrechts’, in Essen
(ed.), Verfassung ohne Grund?, Freiburg im Breisgau, Herder 2012, 205.
While the security which natural law promises with regard to legal foundation
appears promising indeed, it is actually unrealistic in pluralistic modernity.
However, this finding might not apply in the same way to homogeneous
legal communities that share a common understanding of the normative
meaning of nature. Such communities that agree on certain normative ideas
are the religious communities. If their members agree on what they consider
to be naturally right, this conviction might serve as a source of validity for
natural norms.
One such community (and my example in this study) is the Catholic
Church, which understands itself as an order based on the common belief
of the faithful. The core of the Catholic Church’s legal order consists of norms
of divine origin, which refer to revelation as well as to natural moral law.
Further norms can then be derived from this divine core. According to the
Catholic understanding, humankind, with the use of reason, can perceive the
law of nature. This law is understood as a normativity that exists prior to
human reasoning and apart from human lawmaking: “the act of reason (the
judgment) does not make, but find what is right”.25
Nevertheless, considering that natural law convinces only those who share
a common idea of nature and of the normativity connected with it, homo-
geneous communities with mutual values also need to agree on what is
regarded as naturally right, so that the community’s members acknowledge
norms identified as natural law as being naturally just. If this consent is
lacking, natural law arguments remain fragile, and the legitimacy of the law
based on them is thrown into question. And if the validity of the law is
doubted, its effectiveness also is endangered. Today, this phenomenon is
a problem for Christian natural law too, as illustrated by the Roman
Catholic’s approach to natural law, which has been the target of some severe
criticism. “The idea of natural law is today viewed as a specifically Catholic
doctrine, not worth bringing into the discussion in a non-Catholic environ-
ment, so that one feels almost ashamed even to mention the term”,26 Pope
Benedict bemoaned in his address to the German Parliament.
This feeling of shame, however, is not only a result of secular legal thinkers’
widespread disapproval of Catholic natural law, but also a result of the
reservations of many church members. Their objections arise because eccle-
siastical law is, indeed, not detached from modernity and the plurality that
comes with it. The presumption that society is plural, but that the ecclesial
25
Kuttner, ‘Natural Law’, 98.
26
Benedict XVI, ‘Address’, 22 September 2011, English version: www.bundestag.de/parlament/
geschichte/gastredner/benedict/speech (accessed 29 November 2016).
Introduction 9
community is a homogeneous entity, is somewhat misleading. Church mem-

bers – who are always at the same time members of a society – bring society’s
plurality and plural normativities into the church. Thus, the church is increas-
ingly becoming a community which – underneath the unifying bond of
a shared faith – brings together manifold ideas of the naturally just.27 These
plural conceptions of what is naturally right make a homogeneous natural law
increasingly implausible, even within the church.
In theology, this implausibility is apparent in the growing distance between
academic and magisterial theology which, especially within moral theology,
has led to a profound silence among moral theologians with respect to many
statements issued by the ecclesiastical teaching authority.28 A similar problem
occurs, albeit less visibly, in the field of canon law foundation, which has to
deal with the question whether and in what way natural law arguments are
suitable for use as validity sources of canon law. A growing distance of canon
lawyers from natural law at the foundational level of law also extends to
the more theological foundation of church law, as the canon lawyer
Ludger Müller has shown. Whereas a reference to natural law was plausible
in more philosophical arguments of past canon law foundation, as in the
school of Ius Publicum Ecclesiasticum, the current approaches – with their
more theological orientation – tend to refer to the revelational sources of
canon law rather than to its natural sources: “The legitimacy of ecclesiastical
law cannot be derived out of the nature of humankind, but out of the essence
of the church, which is only captured by the means of theology.”29 Insofar as
current foundational theories rely on ecclesiological categories in place of the
former dependence on social philosophy, anthropology, and creation theol-
ogy, canon law is at present thought of mostly in ecclesiological terms as
a function of the church. Consequently, nature has lost its position as a central
source of legal validity in the scholarly debates on canon law.
27
See Utz, ‘Naturrecht im Widerstreit’, in Maihofer (ed.), Naturrecht, Bad Homburg, Hermann
Gentner, 1966, 237; Gabriel, ‘Pluralisierung und Individualisierung’, in Münk/Durst (eds),
Christliche Identität, Freiburg, CH, Pauslusverlag, 2005, 43–45; Eigenmann, Kirche in der
Welt, Zürich, Theologischer Verlag Zürich, 2010, 155–170; Kaufmann, ‘Kirche angesichts der
Ambivalenzen der Moderne’, in Striet (ed.), Theologie und Soziologie, Freiburg im Breisgau,
Herder, 2014, 113.
28
E.g. Sowle Cahill, ‘Moral Theology’, in Lacey/Oakley (eds), Crisis of Authority, Oxford, Oxford
University Press, 2011, 193–218; Goertz, ‘Relikte des Antimodernismus’, in Striet (ed.), Theologie
und Soziologie, Freiburg im Breisgau, Herder, 2014, 126–128; Lintner, ‘Traditionelle
Sexualmoral’, in Heinzmann (ed.), Kirche, Freiburg im Breisgau, Herder, 2015, 170.
29
Müller, ‘Naturrecht und kanonisches Recht’, in Freistetter/Weiler (eds), Mensch und
Naturrecht, Vienna 2008, 305; original: “die Legitimität des kirchlichen Rechts kann nicht
aus der Natur des Menschen abgeleitet werden, sondern nur aus dem Wesen der Kirche, das
nur mit den Mitteln der Theologie zu erfassen ist.”
At any rate, scholarly contributions to canon law have thus far scarcely
mentioned these doubts, as evidenced, for instance, by some recently pub-
lished German canon law reference books and compendia. These works
present two ways of dealing with natural law. Some authors simply cite the
magisterium’s doctrine on the law of nature without critically questioning
it.30 Some tend to put the problem aside and make no reference to nature as
a validity source of canon law at all.31 While these are both pragmatic
strategies, they do not help to close the gap between magisterial and aca-
demic theology. And they run the risk of silencing the voice of canon law
within the broader debates on a normativity of nature. Whereas the first
approach tends to ignore the problems connected with natural law and
especially the problem of its decreasing acceptance even within the church,
the second approach (overly hastily, I would say) tends to marginalise the
theological value of natural law. In contrast, I opt for referring to the category
of natural law within canon law foundation, as I consider it to be theologi-
cally valuable in the debates on the foundation of religious law, while at the
same time I also think it necessary to address the current natural law of the
church rather critically.
normativities: law and morality

When speaking of natural law within the church, one first must clarify
whether she is addressing a legal or an ethical category. This is because the
law of nature as a source of norms is used as a source of normativity in ethical
as well as legal theories. This study focusses on natural law as a source of law,
especially as a source of canon law. Still, one might ask whether it is actually
necessary to distinguish between nature as a source of moral normativity and
nature as a source of legal normativity. Lena Foljanty has shown that the two
categories overlap to a considerable degree. In her study on legal theory in the
postwar period, she indicates that in the secular debates of those times, natural
law was transformed from a source of material law into a more procedural
issue and a moral category of legal application. Here, the idea of “the ‘good
30
E.g. Lüdecke/Bier, Kirchenrecht, Stuttgart, Kohlhammer, 2013, 17–18; Brosi, Kirchenrecht, Zürich,
Theologischer Verlag Zürich, 2013, 22–23; Rhode, Kirchenrecht, Stuttgart, Kohlhammer, 2015, 31.
In a similar unbiased vein, the canon lawyer Helen Costigane just recently introduced ‘Natural
Law in the Roman Catholic Tradition’ in Norman Does’ newest book, Christianity and Natural
Law, Cambridge, Cambridge University Press, 2017, 17–35.
31
E.g. Demel, Handbuch Kirchenrecht, Freiburg im Breisgau, Herder, 2010, 314–348; also
Krämer, Warum kirchliches Recht?, Trier, Paulinus, 1979. That the problem of natural law is
explicitly excluded in parts of the canon law debates on legal foundation is mentioned by
Ludger Müller (‘Naturrecht’, 284, 297).
Introduction 11
lawyer’ as a warrant against the return of injustice”32 achieved prominence.

Those applying the law sought to secure legal justice on the basis of their
morals. As a result, natural law became a matter of conscience and was used to
describe the objective dimension of justice in the judge’s decisions of
conscience.33 Nowadays, this idea of securing justice in the process of legal
application is especially visible in the common law countries in which
a judge-made law is key, as Foljanty concedes, but it may also be observed
in civil law traditions, in which the professional ethics of the judges plays
a major role. Without pursuing this analysis further, one can see that even in
modern legal theory, natural law may touch upon aspects of both law and
ethics, or morality, especially when legal application is concerned.
In any case, it is impossible in the church to draw a line between law and
morality that is as clear as the one between modern legal thought and recent
ethics. This has been pointed out by the canonist John P. Beal, who notes that
the Code of Canon Law (CIC), besides being a collection of legal norms, also
contains moral norms, some obviously recognisable, some fairly hidden:
“Some of these enunciations of moral principles have been translated into
juridical language, but others have not.”34 Beal does not (at least not totally)
judge this overlapping of moral and legal normativity to be a lack of differ-
entiation in the making of the Code of Canon Law. He sees it rather as
a peculiarity of canon law itself, as he says: “morality provides the atmosphere
that surrounds canon law.”35 As an order encouraging the right behaviour of
the faithful, canon law has a religious goal. The salvation of souls, which
requires the believers’ submission to the ecclesiastical moral and legal order, is
regarded as the mission of each ecclesial normativity.
This common goal of the legal and moral order reveals the problem of
differentiating between both spheres as well as the difficulty of setting distinct
boundaries between law and morality: “Since the boundaries between the
realms of morality and law are rather porous, it is rather easy for church
teaching to leach from one domain into the other.”36 This is also true not
least because the ecclesiastical lawgiver is the same person who acts as
magisterium and, thus, as the teaching authority on moral matters within
the church. Beal takes the opinion of the canonistic School of Navarra – that
32
Foljanty, Recht oder Gesetz, 291; original: “[d]er ‘gute Jurist’ als Garant gegen erneutes
Unrecht”.
33
See ibid., 292–298, 298–304, 308–310.
34
Beal, ‘Canon Law and Its Discontents’, in Lacey/Oakley (eds), Crisis of Authority, Oxford,
Oxford University Press, 2011, 151.
35
Ibid.
36
Ibid., 151–152.
a norm perceived as a divine order by the magisterium or by the faithful’s sense

of faith has to be considered as immediately juridically effective even without
an act of promulgation37 – as an indication that a sharp distinction between
law and morality within the church is impossible: “Although this position [of
the School of Navarra] has been hotly disputed by other canonical schools, it
has not prevented moralism from leaking into the legal arena in practice.”38
While the problem connected with this merits greater attention in itself, I do
not intend to delve into it more deeply, as I would like to focus my considera-
tions on the legal side of natural law – as far as this is possible. As the naturally
just – an extra-legal category – serves as a common ground of law and morality,
I have to consider the intersection between law and morality but do not
examine their conjunction.39
aim of the study and method

I intend this study to contribute to the discussion about the status of
natural law in the church from the perspective of canon law, so I begin by
naming the problems connected with the church’s recent approach to
natural law. I believe that an understanding of nature that views it as
culturally nuanced may provide a normative source of theological value
suitable for developing the foundation of canon law; for I agree with an
idea that was already present in the debates on legal theory in the postwar
period. At that historic turning point of legal theory in the twentieth
century, the legal scholar Werner Maihofer noted his “conviction that
for us there is neither a turning back to natural law in a traditional sense
nor a turning back to legal positivism in the previous sense, but only the
way to newly found law through natural law and legal positivism”, mean-
ing approaches “that try to develop a necessary new approach of a no
longer abstract, but concrete, no longer ahistorically valid, but historically
relative, no longer timelessly valid, but genetically growing natural law,
37
See Hervada/Lombardı́a, ‘Prolegómenos I. Introduccion al Derecho Canónico’, in Marzoa/
Miras/Rodrı́guez-Ocaña (eds), Comentario Exegético al Código de Derecho Canónico, vol. 1,
3rd edn, Pamplona, Ediciones Universidad De Navarra, SA, 2002, 52–53.
38
Beal, ‘Canon Law and Its Discontents’, 152.
39
That one can indeed do research in the intersection of canon law and moral theology without
considering the other perspective is shown by Josef Römelt in his book Menschenwürde und
Freiheit. Römelt devotes this book to finding a “legal ethics and theology of law apart from
natural law and legal positivism” (original: “Rechtsethik und Theologie des Rechts jenseits
von Naturrecht und Positivismus”) without even mentioning the relevance of this question for
canon law or citing a single scholar of canon law.
Introduction 13
taking into account the diverse perspectives of philosophy and

theology”.40
Rethinking natural law for the church and integrating these changes
requires this study to take three steps. First, it is necessary to assess the
relevance of natural law arguments for the foundation of canon
law. Second, it is necessary to examine why the reference to natural law in
the modern church causes dissonances that touch not only on the question of
legal effectiveness but also on the validity question. Third, I want to suggest an
approach to natural law that tries to address two issues simultaneously. This
approach tries on one hand to show the theological dignity of a natural
normativity, while on the other hand dealing with the validity problem of
natural law by understanding the people of God as the epistemic agent for
perceiving natural law and, in consequence, as key for the church’s lawmak-
ing. In this context, it is necessary to think about how – in an increasingly
pluralistic church – a law can be developed that reconciles universality and
cultural specificity without risking the unity of the church as a community of
faith within a legal structure. To test my hypothesis that this is indeed possible,
I try to model a legislative process for the shaping of universal canon law that
not only embraces the plurality of the church as a global and, consequently,
multicultural community but also gives credit to the fact that the church is
supposed to be a unity – which has to be expressed by universal canon law
giving the church a homogeneous legal frame.
This all sounds very Catholic. And it certainly is, as my study focusses on
Catholic law as an example of a legal order both attached to and challenged by
natural law. Nevertheless, I also hope my study will be of interest to a non-
Catholic and a non-canon lawyer audience. I do not intend to restrict my
thoughts to a Catholic legal ad intra debate, but would instead like to
contribute to a broader debate about the merits and demerits of referring to
natural law arguments from a religious and also a nonreligious perspective.
In canon law, I identified a field in which all of the problems connected with
natural law are close at hand – paradigmatic, really. Yet by focussing on the
example of canon law, I think that my book has value for non-Catholic
40
Maihofer, ‘Einleitung’, in idem (ed.), Naturrecht, Bad Homburg, Hermann Gentner, 1966, X;
original: “Überzeugung, daß es für uns weder ein Zurück zum Naturrecht im traditionellen
Sinne noch ein Zurück zum Rechtspositivismus im bisherigen Sinne geben kann, sondern
nur den Weg einer Neubegründung des Rechts durch Naturrecht und Rechtspositivismus
hindurch”; “die den damit geforderten neuen Denkansatz eines nicht mehr abstrakten,
sondern konkreten, nicht mehr geschichtslos gültigen, sondern historisch-relativen, nicht
mehr zeitlos gültigen, sondern geschichtlich werdenden Naturrechts von den verschiedenen
Richtungen der Philosophie und Theologie aus zu entfalten suchen”.
theologians and legal scholars, as it is certainly my intention to reach beyond

the specific debates of Roman Catholic theology and canon law.
In developing my argument, I constantly try to show that the arguments that
concern Catholic canon law in a specific way are also relevant in some sense
for law in general and for the broader debates about the foundation of law,
secular or religious, in legal studies, philosophy, and ethics.
1
Nature As a Source of Validity for Religious Law
1.1 divine law in the abrahamic religions

While a comparison of the main traditions of the Abrahamic religions
uncovers some crucial differences in their understanding of the foundation
of law, such an evaluation also reveals a good number of striking similarities.
It is common in Jewish, Islamic, and Christian legal thought to refer to norms
of divine origin as having a fundamental relevance for legal orders. The canon
lawyer Silvio Ferrari explains that: “Jewish and Islamic law share with Canon
law the idea that God revealed to men binding principles and norms which
cannot be changed by any human authority, are superior to any human law,
and constitute a complete and universal system of law.”1
This fundamentally constructive function of divine law for religious legal
systems is reminiscent of Hans Kelsen’s proposal to return legal norms to their
basic norm (“Grundnorm”).2 One approach explaining the development of
Jewish law from a basic norm, based on Kelsen’s idea of a “Grundnorm”, is
presented by the legal scholar Menachem Elon who, in his theory on Mishpat
Ivri, draws a line from a basic norm to Halachic law and to modern Israeli law:
“the fundamental norm that everything set forth in the Torah, i.e., the Written
Law, is binding on the Jewish legal system”.3 Nevertheless, the analogy
1
Ferrari, ‘Canon Law’, in Huxley (ed.), Religion, Law and Tradition, Abingdon, Routledge,
2002, 54; see also Doe, ‘Natural Law in an Interfaith Context’, in idem (ed.), Christianity and
Natural Law, Cambridge, Cambridge University Press, 2017, 184–204.
2
See Kelsen, Pure Theory of Law, 198–221.
3
Elon, Jewish Law 1, Philadelphia, PA, Jewish Publication Society, 1994, 232; see idem,
Principles of Jewish Law, Jerusalem, Keter Publishing House, 1975, 14–16; idem, ‘Mishpat
Ivri’, in Encyclopaedia Judaica 14, 336–339; on Elon’s theory see Jackson, ‘Judaism
As a Religious Legal System’, in Huxley (ed.), Religion, Law and Tradition, Abingdon,
Routledge, 2002, 35–36; idem, ‘Theory of Halakhah’, 3, www.legaltheory.demon.co.uk/jlas/re
sources.htm (accessed 4 November 2015).
15
between Kelsen’s approach and the foundation of religious law is limited,

especially as Kelsen refuses to link norms with a “meta-legal norm”4 such as
God. Without taking this analogy too far, it emphasises that divine norms are
fundamentally constitutive for religious legal orders in a way similar to how
the basic norm in Kelsen’s thought serves as a ground for the legal order.
Religious Law and Grace

Besides referring to norms grounded on divine law, all Abrahamic religions
connect these norms with the idea of grace, insofar as observing God’s will
embodied in divine norms is understood as relevant for humankind’s relation-
ship with God. Silvio Ferrari observes that “the supernatural orientation is not
exclusive to Canon law: Shari’a and Halakha too promise to help men not
only to live a righteous life in this world but also to attain eternal life in the
other one.”5 While this surely applies to canon law and Shari’a, keep in mind
that the concept of eternal life is not shared by many Jewish thinkers and,
therefore, has to be carefully applied to Jewish eschatology;6 Samuel
Rosenblatt remarks thus: “It is futile to attempt to systematize the Jewish
notions of the hereafter.”7 Acknowledging this criticism, one may note never-
theless that Ferrari makes the valid point that Jewish thought includes the
concept that human conformity to God’s will through adherence to divine
norms is linked with the idea of humankind being blessed by God and of
humankind becoming part of the world to come – whatever that future world
is actually conceived to be.8
In the Catholic legal order, the relatedness of the law to grace is particularly
apparent in the law of the sacraments, which contains norms about the valid
and licit reception of the sacraments – thus regulating human access to the
ecclesial signs of salvation. However, legally regulating God’s salvific action
towards humankind can be considered legitimate only if this regulation itself
can be perceived, in its core, as divinely founded. To this effect, the church’s
legal theory understands Christ’s act of instituting the sacraments as also
legally constitutive.9 Law and salvation thus become intertwined. Partaking
in the church’s offer of grace is therefore connected with observing the
4
Kelsen, Pure Theory of Law, 205.
5
Ferrari, ‘Canon Law’, 54.
6
For a distinct differentiation on Jewish eschatology, see Novak, ‘Jewish Eschatology’, in Walls
(ed.), The Oxford Handbook of Eschatology, Oxford, Oxford University Press, 2008, 113–131.
7
Rosenblatt, ‘Olam ha-ba’, in Encyclopaedia Judaica 15, 400.
8
On the different ideas on the “world to come” (“ha‘olam ha-ba”) see ibid., 399–400.
9
See Mörsdorf, ‘Wort und Sakrament’, Archiv für katholisches Kirchenrecht 134 (1965), 77–78.
Nature As a Source of Validity for Religious Law 17
church’s law.10 The canon lawyer Ladislas Orsy interprets the relevance of
canon law for salvation as follows: “The purpose of our laws is to save.” 11
At the same time, he warns his readers to identify grace and law, doctrine and
legal norms, divine law and its human concretisation: “There is a direct
relationship between the two when canon law gives effect to divine law.” 12
But this relationship does not allow the two categories to be equated with one
another. Because both remain different, there will always be a need to
transform doctrinal concepts into law. In a similar vein, Ralf Dreier notes
“that it is primarily the legislators’ obligation to transform into positive canon
law Christ’s regulatory will that theology identifies”.13 Law, thus, refers to
grace. However, this reference remains fragile. The historian Francis
Oakley, therefore, criticises a legal “monophysitism” which overemphasises
the divine will as the basis for divine norms and marginalises the contingency
of their human realisation. Instead, he suggests some self-restraint is needed
against a
persistent strain in traditional Catholic thinking of what has sometimes been
described as a species of ecclesiological monophysitism, the tendency, that is,
in thinking about the church, of focusing too exclusively on its divine
dimension – eternal, stable, and unchanging – and underestimating the
degree of confusion, variability, and sinfulness that goes along with its
human embodiment as it forges its way onward amid the rocks and shoals of
time.14
Divine Law As a Source of Norms

Additionally, it has to be noted that not every norm of religious law is
intimately connected with divine grace and human salvation. In the
Christian tradition, Ivo of Chartres distinguished between norms that were
key for salvation and others that were less central to it (see Decretum,
10
See Luf, ‘Rechtsgehorsam’, in Paarhammer/Rinnerthaler (eds), Scientia Canonum, Munich,
Kovar, 1991, 194–195.
11
Orsy, ‘Theological Task’, Canon Law Society of America Proceedings 58 (1996), 16.
12
Orsy, Theology and Canon Law, Collegeville, MN, Liturgical Press, 1992, 185.
13
Dreier, ‘Methodenprobleme der Kirchenrechtslehre’, Zeitschrift für evangelisches
Kirchenrecht 23 (1978), 351; original: “daß es primär den gesetzgebenden Instanzen obliegt,
den von der Theologie ermittelten Ordnungswillen Christi in positives Kirchenrecht zu
transformieren.” That a transformation into positive law is necessary to receive law based on
a natural normativity is also a valid point for secular law based on natural law, as Coing notes:
see Coing, Grundzüge der Rechtsphilosophie, Berlin, De Gruyter, 1969, 265–266.
14
Oakley, ‘Epilogue’, in Lacey/Oakley (eds), Crisis of Authority, Oxford, Oxford University
Press, 2011, 350.
Prologus).15 The first category includes commands like loving God or honour-
ing one’s parents, together with prohibitions of evil deeds like committing
murder or adultery, which could be derived from God’s order of creation, lex
aeterna, the observance of which was necessary for salvation. These norms
could be seen as the minimal standards (“minima praecepta”) for securing
human salvation. Because these norms are eternal and cannot be altered by
humans, there is no possibility to dispense with them. Changeable laws, on the
other hand, Ivo argues, are regulations not derived from the lex aeterna as
such – therefore observing them is not directly necessary for salvation – but are
posed to protect humankind’s salvation, if only in an indirect way. One
example of a changeable law mentioned by Ivo is to keep away from notorious
heretics so as not to jeopardise one’s own salvation. This norm helps humans
to lead a life worthy to be saved, while observing the norm is not necessary for
salvation itself. An ecclesiastical authority could therefore dispense with it.
Ivo’s considerations make two points clear. First, he highlights the funda-
mental character of divine norms, which act as a basic normativity within the
church’s legal order. Second, he underlines the reference of human norms to
the divine plan of salvation for humankind, insofar as human law in religious
contexts receives its meaning only from the salvifically relevant normativity
behind it. Both kinds of norms – the ones that can be traced back to God’s
order and the ones that simply fulfil a human need for regulation – thus serve
the purpose of salvation. Similarly, Ladislas Orsy speaks of the “composite
nature”16 of canon law, insofar as the divine will and human regulation are
conjoined to form an order that is about salvation. This links the
“Grundnorm” character of divine law with the idea that canon law as
a whole is relevant for salvation, and it further connects human law with the
divine will as its fundament and legitimisation. The canon lawyer Libero
Gerosa describes this relationship of canon law to its divinely grounded core
as a salvifically relevant representation of the divine through a human med-
ium: “Canon law is not only ‘ius divinum’, but also ‘ius humanum’, and ‘ius
humanum’ is salvifically relevant, insofar as it is apt to represent ‘ius
divinum’.”17 In the first volume of his trilogy on divine law and the constitu-
tion of the church, Peter Kistner explains that:
15
In Patrologiae cursus completus: Series Latina, ed. by J. P. Migne, vol. 161, Paris, Excudebat
Sirou, 1853, 50A–B.
16
Orsy, ‘Theological Task’, 6.
17
Gerosa, Exkommunikation und freier Glaubensgehorsam, Paderborn, Bonifatius, 1995, 243;
original: “Das kanonische Recht ist nicht nur ‘ius divinum’, sondern auch ‘ius humanum’,
und das ‘ius humanum’ ist insoweit heilsbedeutsam, als es fähig ist, das ‘ius divinum’ zum
Ausdruck zu bringen.”
As the legally logical expression of a differentiation between the divine and

the simply human-ecclesial, canon law finds the following functions of divine
law with regard to human law: the functions of limitation, normativisation,
and legitimation of the human by the divine. The divine law sets insurmoun-
table boundaries to human law, whose nonobservance renders human law
invalid. The divine law dictates single fundamental contents that directly
bind human law and cannot be abrogated by it. In doing so, the divine law,
finally, defines a free space within which the autonomous organisation by
human law is legitimate and accordingly at the same time authorised and
obligatory.18
This reference of religious law to its divinely grounded core, which is under-
stood as salvifically relevant, may explain why the observance of religious law
as a whole is regarded as significant for leading a life blessed by God, not only
in Catholicism but also in other traditions of the Abrahamic religions. In this
sense, the church demands that its members fully observe canon law (see
canon 212 §1 Code of Canon Law of 1983 [CIC/1983]), although the ecclesias-
tical norms are differently relevant for salvation, depending on their closeness
to divine law. Peter Kistner speaks of “hierarchic gradual steps of normativity
in the ecclesiastical legal order”.19
The “composite nature”20 of canon law of divine origin – as of every law that
is prepositively grounded – has one more dimension, which arises as the result
of transforming norms from the prepositive realm into positive law. The legal
scholar Adolf Süsterhenn elucidates this dimension in a contribution to the
natural law debates in the postwar period, in which he explains that the law of
nature is not simply transformed into positive legal norms but becomes the
basis of a legal idea which could also spark the development of a whole cluster
of norms: “In general the relationship between natural law and positive law is
of the kind that a norm of natural law becomes the essential core of a positive
18
Kistner, Das göttliche Recht I, Berlin, LIT, 2009, 12; original: “Den rechtslogischen Ausdruck
dieser Unterscheidung zwischen dem Göttlichen und dem bloß Menschlich-Kirchlichen
findet das Kirchenrecht unschwer in den Funktionen, die das göttliche Recht gegenüber dem
menschlichen besitzt: Den Funktionen der Limitierung, der Normierung und der Legitimation
des menschlichen durch das göttliche. Das göttliche Recht setzt dem menschlichen nicht
überschreitbare Grenzen, deren Nichtbeachtung menschliches Recht unwirksam macht. Das
göttliche Recht gibt – unmittelbar geltend – dem menschlichen einzelne grundlegende Inhalte
vor, die das menschliche nicht außer Kraft setzen kann. Das göttliche Recht definiert auf diese
Weise schließlich einen Freiraum, innerhalb dessen die autonome Gestaltung durch das
menschliche legitim, also zugleich ermächtigt und aufgegeben ist.”
19
Kistner, Das göttliche Recht I, 14; original: “hierarchische[n] Stufenfolge der Normativität
innerhalb der kirchlichen Rechtsordnung.”
20
rule or a group or even a system of positive legal norms.”21 Süsterhenn explains

this with regard to regulations on property matters:
The prohibition to damage third party property has the character of natural
law. The regulations of penal law on simple and grand theft, theft of elec-
tricity, theft of food, damage of property and other property crimes as well as
the totality of the regulations of civil law on the protection of movable and
real property are norms of positive law which determine the principle of
natural law, concretise it, define it, complement it with derivations and
conclusions and apply it to the manifold realities and changing needs of
practical life.22
Consequently, with respect to positive law, Süsterhenn differentiates on one

hand between norms and clusters of norms that are naturally grounded,
insofar as they relate to a natural normativity, and on the other hand positive
law that is purely regulative law (like the law of the road), which can be traced
back only to the legislation of a specific social authority. In any case, one
should note that regulative law may also at least indirectly refer to natural law
if “the social authority is authorised by natural law to regulate the formal order
of the community”.23 In saying this, Süsterhenn refers to the formal founda-
tion of law by a natural cause, as law may be understood as a ‘natural order’
when perceived as the result of lawmaking by a ‘natural authority’. If an
authority is comprehended as a natural lawgiver for a community, the law
given by the authority might be interpreted as ‘natural law’, irrespective of its
content. This approach is also of some significance in the church, as is shown
in Chapter 1.2.
21
Süsterhenn, ‘Naturrecht’, in Maihofer (ed.), Naturrecht, Bad Homburg, Hermann Gentner,
1966, 20; original: “Im allgemeinen stellt sich das Verhältnis zwischen Naturrecht und
positivem Recht in der Form dar, daß ein Naturrechtssatz den wesentlichen Kern einer
positiven Rechtsvorschrift oder einer Gruppe oder gar eines ganzen Systems von positiv-
rechtlichen Normen bildet.”
22
Ibid.; original: “So ist das Verbot der Verletzung fremden Eigentums naturrechtlichen
Charakters. Die strafrechtlichen Vorschriften über den einfachen und schweren Diebstahl,
den Elektrizitätsdiebstahl, den Mundraub, den Raub, die Sachbeschädigung und sonstige
Eigentumsdelikte sowie die Gesamtheit der zivilrechtlichen Vorschriften über den Schutz des
beweglichen und unbeweglichen Eigentums sind Normen des positiven Rechts, welche den
allgemein gefaßten naturrechtlichen Grundsatz eindeutiger bestimmen, konkretisieren,
festlegen, durch Ableitungen und Schlußfolgerungen ergänzen und auf die mannigfaltigen
Erscheinungen und wechselnden Bedürfnisse des praktischen Lebens zur Anwendung
bringen.”
23
Ibid.; original: “die Sozialautorität die naturrechtliche Befugnis besitzt, Vorschriften zur
formalen Ordnung des Gemeinschaftslebens zu erlassen.”
Revealed Law and Natural Law

The belief in the fundamental significance of divine law, connecting the legal
order with the order of grace, shapes the legal understanding of Judaism,
Christianity, and Islam. Yet the religions define divine law differently.
Canon law traditionally refers to two sources of divine law: revelation and
nature. As revealed law, norms are recognised which are derived out of the
revealed word of God. So the law of revelation is mostly concerned with
normative ideas drawn from scripture. Added to revelation, tradition is
a source of normativity, as tradition is likewise regarded as a source of theolo-
gical insight. The same applies to nature, but this is dealt with differently in
the systematic of divine law and taken as its own source of divine law apart
from revelation.24 The term natural law describes those norms which can be
derived out of God’s creation with the use of human reason. According to
Catholic thought, knowing revelation is not a condition for perceiving natural
law. As the moral theologian and natural law theorist Joseph Fuchs notes,
“natural law exists without the Bible”.25
In canonical texts, nature and revelation are identified as two subcategories
of divine law. This systematic is often presented in the formulistic definition of
divine law as “ius divinum, sive naturale sive positivum”, and thus of divine law
being either natural law or divine positive law. However, as both sources are
very different, one has to mull whether it is convincing to join them together as
validity reasons of law. The “ius divinum” formula, Peter Kistner notes, “rather
shows the struggle to connect two heterogenic realities (revelation and natural
law) with each other formulistically than showing a terminological unity,
which has to be presupposed, if the term [ius divinum] is to completely fulfill
without contradictions the functions of legitimisation, normativisation, and
limitation of human law”.26 The ecclesiastical concept of divine law has a dual
structure, the coherence of which is nevertheless not quite clear. Kistner
understands both sources of perceiving law as merely additively joined in
24
If one follows the system of Catholic teaching on the sources of revelation, it would be
plausible to identify a normative complex of ‘traditional law’. I do not want to discuss this
here, but it would be interesting to ask which norms of canon law could actually be understood
best when regarded as norms of the category ‘traditional law’, like for example the norm
excluding women’s ordination (see canon 1024 CIC/1983).
25
Fuchs, ‘Natural Law’, in Curran/McCormick (eds), Natural Law and Theology, New York,
NY, Paulist Press, 1991, 10.
26
Kistner, Das göttliche Recht I, 25; original: “zeugt eher von der Anstrengung, zwei heterogene
Wirklichkeiten (die Offenbarung und das Naturrecht) formelhaft miteinander zu verbinden,
als von der begrifflichen Einheit, die vorausgesetzt werden muss, wenn der Begriff die ihm
zugewiesenen Funktionen der Legitimierung, Normierung und Limitierung des menschli-
chen Rechts tatsächlich und widerspruchsfrei erfüllen soll”.
the formula, as they show no inner link with each other – as demonstrated, he
argues, by the fact that they were treated by different theological disciplines in
the past. Whereas the law of revelation was regarded as a matter of canon law,
natural law was classically a subject of moral theology. And whereas the law of
revelation was assessed as a matter of theology, natural law was also of interest
for philosophy.27
In analysing the tensions resulting from the connection between revelation
and nature in the formula, I agree with Kistner’s criticism that the pure
distinction “ius divinum, sive naturale sive positivum” raises more questions
than it answers because of the difference between the two sources and their
asymmetry. The formula that links revelation and nature rather tends to blur
the inner connection between the sources. That nature, as was hinted, has to
be regarded theologically as a source of revelation reveals an intrinsic link
between the sources, something which Kistner misses, although I think it is
obviously there, even though the addition of the formula “sive naturale sive
positivum” does not express it adequately.
The formula’s equation also blurs the idea present throughout the
history of natural law, namely that revelation is a necessary help in perceiv-
ing natural law. Because of “the weakness of human reason, the perception
of natural divine law is very difficult, so that it is impossible to ultimately
avoid referring to the Word of Revelation to elucidate it”,28 as Alexander
Hollerbach remarks. Linking natural law closely with revelation is also an
idea present in recent canon law. In Klaus Mörsdorf’s concept of the
foundation of canon law, natural law is interpreted by referring to the
church’s supernatural order: “Natural law is a lively power in shaping the
ecclesial community life, but it is totally embedded in the supernatural
existence of the church.”29 So Mörsdorf does not deny the distinct reality of
natural law apart from revelation, but takes it as fully understandable only
in the light of revelation, as it is only then that the law of nature can be
perceived in its communal relevance. In making this claim, Mörsdorf picks
up the idea that natural law is given to all humans who can perceive it with
27
See ibid., 25–26.
28
Hollerbach, ‘Naturrecht und Kirchenrecht’, in idem, Katholizismus und Jurisprudenz, Paderborn,
Ferdinand Schöningh, 2004, 295; original: “sei wegen der Schwäche der menschlichen Vernunft
die Erkenntnis gerade des natürlichen göttlichen Rechts sehr schwierig, man könne einer
Erhellung vom Wort der Offenbarung her letztlich nicht entraten”.
29
Mörsdorf, ‘Grundlegung’, in Aymans/Geringer/Schmitz (eds), Klaus Mörsdorf, Paderborn,
Ferdinand Schöningh, 1989, 30; original: “Das Naturrecht ist eine lebendige Kraft in der
Gestaltung des kirchlichen Gemeinschaftslebens, aber ganz und gar eingebettet in die
übernatürliche Existenz der Kirche.”
the use of reason, yet it presents its full meaning only to a reason impreg-
nated by faith.30
The link between revelation and nature is therefore not as arbitrary as Peter
Kistner indicates, even though the equation of the formula remains open to
criticism. The common cause of both sources is the divine normativity, which
traces both the law of revelation and the law of nature back to the divine will,
as Ludger Müller explains: “In both cases God . . . is seen as the ‘lawgiver’: on
one hand as the one who revealed himself in Jesus Christ . . ., on the other
hand as the creator, who gave men the capacity to perceive the binding order
of the natural moral law by sheer means of reason.”31 The law of revelation and
natural law are thus regarded as the two means by which God communicates
normatively with humankind. This explains the priority of divine law, as
summed up by Norbert Lüdecke and Georg Bier: “It is prior and superior to
any other law; it is indispensable, that is, it cannot be dispensed with, not even
in singular cases; it is timely and locally universal, is valid always and every-
where, and is unchangeable.”32 In order to address how the universality and
unchangeability of divine law can be understood with regard to the historicity
and cultural specificity of concrete norms, I return to this subject in
Chapter 3.2.
Natural Normativity in Islam

In comparison to Catholic legal theory – which, with revelation and
nature, distinguishes between two sources of divine law – Islamic legal
scholars are more reluctant to recognise nature as a source of legal
perception in its own right. According to Islamic legal understanding, all
religious normativity which addresses humankind can be traced back to
30
A similar thought can be found in the Encyclical Veritatis splendour, no. 44, Acta Apostolicae
Sedis 85 (1993), 1168–1169.
31
Müller, ‘Naturrecht’, 285; original: “In beiden Fällen wird Gott . . . als der ‘Gesetzgeber’
angesehen: einerseits als derjenige, der sich in seinem Sohn Jesus Christus geoffenbart
hat . . ., andererseits als der Schöpfer, der den Menschen die Fähigkeit gegeben hat, mit
bloßen Vernunftmitteln die verbindliche Ordnung des natürlichen Sittengesetzes zu
erkennen.”
32
Lüdecke/Bier, Kirchenrecht, 18; original: “Es ist allem übrigen Recht vor- und übergeordnet,
es ist indispensabel, d. h. von ihm kann nicht einmal ausnahmsweise befreit werden, es ist
zeitlich und räumlich universal, gilt also immer und überall, und es ist unveränderlich.”
That it is necessary historically to differentiate with regard to the question of dispensation
can be shown by looking into the Decretum Gratiani. In distinction 13 part 1 it is noted that
a dispensation of natural law is impossible, apart from the cases in which a dispensation has to
be seen as the lesser of two evils. See Corpus Iuris Canonici, vol. 1, ed. by E. L. Richter and
E. Friedberg, Graz, Akademische Druck- und Verlagsanstalt, 1959, 31–32.
God.33 The textual sources of revelation serve as primary sources of legal

perception which offer an insight into God’s will, as the Islamic scholar
Abū al-Fazl Ezzati explains: “In Islam, Allah is the only legislator, and the
¨
means to the will of Allah in matters of law are textual sources such as the
Qur’an and Islamic tradition.”34 These are complemented by “basic
secondary sources, such as consensus (ijma’), and sound human intellect
(al-‘aql al-salim), or supplementary secondary sources, such as public
interest, analogy, established legal precedent (ittifaq)”.35 Nature is not
a source of law in itself, but is comprehended as supporting the develop-
ment of legal principles, especially if textual sources of revelation are
missing: “Human nature as such is not officially recommended as
a source of law unless it is founded on natural sound human reasoning,
which corresponds with ‘aql.”36 Ignoring nature as a source of law might
contrast with the Catholic perception of natural law, but both approaches
are still comparable insofar as they link nature and reason as corresponding
entities in finding what is naturally right. As in canon law, the term for
nature in Islamic legal thought, fitra, does not describe biological nature
˙
but refers to the nature of the human being as reasonable and to human-
kind as having been created like this by God. Insofar as nature describes
the capacity of humans to notice the creator and to observe the creator’s
will, it is connected with the idea of competence. Nature, thus, describes
human rationality as the discretion to distinguish between good and evil,
given to humankind by God. In Surah 91 of the Qur’an, God is presented
as the creator of the human soul, to which he gave a tendency to the good
as well as to the bad (see verses 7–8). Verses 9–10, then, reveal that God
gave humankind the capacity to differentiate between good and evil and
instructed humanity to strive for good.
Because of this reading of the Qur’an, some authors argue that it is possible
to speak of an Islamic natural law, even though nature is not a direct source of
law in Islam (and, in consequence, the term natural law is not used in Islamic
traditions).37 In any case, an Islamic natural law cannot be reformulated using
the categories of a secular law of reason, insofar as Islam refers to nature from
33
See Ezzati, Islam and Natural Law, 64; Sachedina, Islam, 111.
34
Ezzati, Islam and Natural Law, 89.
35
Ibid.
36
Ibid.
37
See Ezzati, Islam and Natural Law; Sachedina, Islam; Emon, Islamic Natural Law Theories,
Oxford, Oxford University Press, 2010; idem, ‘Islamic Natural Law Theories’, in idem/
Levering/Novak, Natural Law, Oxford, Oxford University Press, 2014, 145–187; idem,
‘Response to David Novak’, in idem et al., Natural Law, Oxford, Oxford University Press,
2014, 46.
the perspective of a theology of creation. This theological background has to

be taken into account in all contexts in which the Qur’an refers to a normative
universalism, as the Islamic scholar Abdulaziz Sachedina remarks in his book
Islam and the Challenge of Human Rights: “Qur’an’s universalism is thor-
oughly spiritual in the sense that it essentially responds to the claim of God the
Creator.”38
Due to the permanent link between Islamic ethics and law and revelation,
the question arises whether Islam can consider those individuals who do not
know of or accept revelation as being capable of perceiving a natural norma-
tivity, as they miss the dimension of God the creator behind the natural norms.
Are human beings outside the community of faith capable of perceiving
natural law? Christian thought answers this affirmatively, although, as has
been shown with regard to Mörsdorf’s approach,39 the full meaning of natural
normativity only reveals itself to a reason impregnated by faith. Islam offers no
consensus in answering this question, as can be shown with reference to two
prominent schools, the Mu’tazilites and the Ash’arites.
The school of Mu’tazila was very influential in Islamic theology especially
in the ninth to eleventh centuries. It taught that humankind is capable of
perceiving what is right on the basis of human reason. Hence, human beings
were seen as capable of perceiving a normativity of nature on the basis of their
being created by God, even without knowing about revelation. Believing in
the ability to differentiate between good and evil as given to humankind by the
creator made it possible in Mu’tazilite thinking to support the idea of a natural
morality and natural law, as Abdulaziz Sachedina explains: “In this sense, law
and ethical necessity are linked to morality, which is the source of values
discernible to human reason. This law is characterized as natural law, whose
essential tenet is the equality of all human beings as recipients of a divinely
endowed nature.”40 In Mu’tazilite thought, understanding the normativity
God inserted in creation was therefore open to all human beings and not
restricted to members of the Muslim ulama or other Abrahamic religions.
In contrast, the school of the Ash’arites, which strongly influenced Sunnite
Islam, did not share the idea that a perception of good and evil was possible by
the use of reason alone: “For the Sunni ulema, nature and reason were
insufficient for ethics. An action is not good because it is construed so by the
essential nature of a human being, but because God so wills.”41 The Ash’arites
38
Sachedina, Islam, 82.
39
See Mörsdorf, ‘Grundlegung’, 30.
40
41
Ibid., 86.
therefore opted for a “theological voluntarism that vindicated the primacy of

God’s will over the intellect”.42 They considered a natural law based on reason
alone to be alien to Islam. Nevertheless, as Abū al-Fazl Ezzati remarks, this
¨
does not mean that Ash’arite thought could not relate to natural law altogether,
but that it does not view it as understandable without knowledge of
revelation.43 This does mean, however, that natural law loses its distinct
meaning in Ash’arite legal understanding, as Abdulaziz Sachedina notes:
“The Mu’tazilite and Shi’ite theology, with its emphasis on a substantial role
for human reason to discern moral truth, and with its potential to expound
a thesis about the teleological understanding of nature within the parameters
of revelation, was abandoned in favour of a divine command ethics.”44
Islamic understanding today, in consequence, is divided. Whereas Shi’ite
theology evinces an openness to natural law arguments in line with the
Mu’tazilites (especially in the school of the neo-Mu’tazilites), the Sunni
schools tend towards the Ash’arite tradition and, thus, towards a voluntarist
positivism of law (even though the association of Sunna and Shia with the
respective schools may not always work well).45 It is therefore impossible to
make a general statement on the status of natural law in Islam. But it becomes
clear that the idea of the naturally just is alive in both of these Islamic
traditions, even if they tend to offer different answers to the question whether
a perception of natural law is possible outside the community of faith. So one
should not break off communication between Islamic and Christian theology
on the matter of natural law, something which Abdulaziz Sachedina particu-
larly warns against: “After all, the idea of natural law as an indication of what is
intrinsically good or intrinsically bad is the cornerstone of Islamic theological
ethics.”46
Sachedina himself is mainly interested in connecting Islam to the univer-
salistic debate about human rights. To achieve this aim, he tries to encourage
Islamic theology and philosophy to engage in the natural law debates, as this
might grant Islam access to universalistic concepts of ethics and law.
Sachedina observes, however, that it cannot be the task of Islamic legal
scholarship to locate universalism within Islamic legal theory; this must be
42
Ibid.
43
See Ezzati, Islam and Natural Law, 80.
44
45
See Ezzati, Islam and Natural Law, 90, 124. Furthermore, note that it is also not quite accurate
to generalise the positions of the Mu’tazilites and the Ash’arites: see Emon, Islamic Natural
Law Theories, 190; idem, ‘Response to David Novak’, 48.
46
the task of theology and ethics. In this sense, theological and ethical reasoning
on natural law is the key to strengthening universalistic thinking within Islam:
The Qur’anic notions of humanity as one community under God, the
equality of all human beings through God’s endowment of a constitutional
nature capable of intuitively discerning the moral worth of an action corre-
lative with revelation can serve as a minimalist foundation for human rights
in Islam. This foundation can then bridge, rather than bypass, the intellectual
and moral gap between the secular and religious noncomprehensive univer-
sal morality in order to make a common cause for moral education and
training about inherent human dignity and moral worth of each person as
such.47
Whereas in Catholic legal theory today one wonders whether natural law
should be abandoned as a source of law (I discuss the reasons for this in
Chapter 2), Sachedina wants Islam to intensify its natural law debates, as this
might enable Islamic legal theory to open up to the global discourses on
human rights. In questioning whether natural law arguments should have
a future in the Catholic Church, Sachedina’s perspective should also be
considered, as it represents a significant opportunity for intensifying interreli-
gious dialogue on the law.
The Noachide Laws As Natural Law

Like Islam, Judaism as a plural religion cannot definitively say whether
revelation and nature serve as two distinct sources of divine law. However,
the differentiation between Halachic and Noachide law is reminiscent of
a similar distinction. Whereas Halachic law binds the people of Israel,
Noachide law has a broader scope. Seven Noachide laws are listed in
Tractate Sanhedrin of the Babylonian Talmud: “seven precepts were the
sons of Noah commanded: social laws; to refrain from blasphemy, idolatry;
adultery; bloodshed; robbery; and eating flesh cut from a living animal” (folio
56a).48 It is possible to understand these seven rules – containing the com-
mand to create a legal system and to establish courts, as well as the six
prohibitions of blasphemy, idolatry, adultery, murder, theft, and cruelty to
47
Ibid., 93.
48
English translation: www.come-and-hear.com/sanhedrin/sanhedrin_56.html#PARTa
(accessed 19 April 2017); see Novak, Non-Jew in Judaism, Lewiston, NY, Edwin Mellen
Press, 1983; Schwarzschild, ‘Noachide Laws’, in Encyclopaedia Judaica 15, 284. For variations
of the Noachide laws from other sources, see Berman, ‘Noachide Laws. Jewish Law’, in
Encyclopaedia Judaica 15, 285.
animals – as the Jewish concretisation of natural law:49 “These principles

represent the standard of a civilized society and are incumbent upon all
non-Jews, Jews being further obliged to observe the 613 commandments of
the written and oral law”,50 writes the Jewish scholar and rabbi Joseph
P. Schulz. “Natural law is Noahide law”,51 adds the Jewish theologian
David Novak in his book Natural Law in Judaism, in which he asks
whether Judaism recognises natural law. While the Halacha obliges only
the Jewish people, Noachide law is understood as binding for all human
beings, who can perceive it with the use of reason. Here, Jewish and
Christian legal theory converge with regard to a gradual obligation of
divine law: whereas the law of revelation in Judaism and Christianity is
seen as recognisable from the point of faith only, and therefore binds only
the members of the faith community, natural law is considered as under-
standable and binding for humankind as such and transcends the commu-
nity of the faithful.
In any case, it is unclear whether it is possible to identify Noachide law with
natural law. David Novak admits that this idea is not shared by all Jewish legal
theorists.52 Their objection primarily relates to the presumption that the
naturally just might be perceived with the use of reason alone. In Judaism as
in Islam, it is a matter of controversy whether there can be a perception of
natural law without a connection to revelation. How can somebody who does
not recognise God the creator understand the normative order given by the
creation? Novak argues differently. He refers to the experience of a natural
obligation that every human being could sense prior to the experience of being
bound by a religious legal order: “it is most unlikely that somebody without the
experience of being the subject of universal moral law that comes from God
through several mediums could accept the law that comes straight from
49
See Mendelssohn, ‘Schreiben an Lavater’, in Gesammelte Schriften 3, Leipzig, Brockhaus,
1843, 43; Cohen, Religion der Vernunft, Frankfurt am Main, J. Kauffmann, 1929, 142.
That the question of whether one may understand the Noachide laws as natural law is
dependent on how one interprets them, is shown by David Novak: see Novak, Non-Jew,
248–249, 300. Novak relates to Maimonides’ interpretation of the prohibition of eating flesh
cut from a living animal, which Maimonides interprets as the prohibition of cruelty (see
Maimonides, The Guide for the Perplexed, London, Routledge, 1910, 371) and, thus, as
grounded on natural law. Yet one can also understand the prohibition differently, in
a non-universal sense.
50
Schultz, ‘Noahite Commandments’, in idem, Judaism, Rutherford, NJ, Fairleigh Dickinson
University Press, 1981, 359–360.
51
Novak, Natural Law in Judaism, Cambridge, Cambridge University Press, 1998, 191; idem,
‘Natural Law and Judaism’, in Emon/Levering/Novak, Natural Law, Oxford, Oxford
University Press, 2014, 30; see idem, ‘Response to Matthew Levering’, 138.
52
See Novak, Natural Law in Judaism, back cover; idem, ‘Natural Law and Judaism’, 5, 33–34.
God.”53 Instead of doubting whether someone can perceive natural law with-
out knowing revelation, the question should be how the law of revelation can
be perceived by someone who has not yet experienced a universally normative
obligation by nature.
Thus, as dialogue partners on natural law, one might address those Jewish
legal theorists who, like David Novak, understand natural law as a universal
normativity. That this might be an opportunity to deepen the legal dialogue
between the Religions of the Book is a belief Novak shares with Anver
M. Emon and Matthew Levering, as they argue convincingly in their book
Natural Law: A Jewish, Christian, and Islamic Trialogue, in which the authors
agree on the importance of discussing natural law across the religions. At the
same time, dealing with natural law might not only serve to identify common-
alities and differences between the religions but also help to elucidate the
relationship between the religious and the secular sphere, as Anver Emon
notes. He speaks of
increased efforts among religious communities, particularly the Abrahamic
faith communities, to search for common ground and shared values at a time
of increased tensions, even hostilities, between religious groups in an increas-
ingly contested public sphere. Correlatively, to dialogue about natural law
with, for instance, Jews, Christians, and Muslims also allows us to inquire
about the relationship between religion and what is often posited as a secular
public sphere.54
As the religions discuss questions of the naturally right, the way in which they
relate to the concepts of law and justice presented in the secular sphere also
becomes clearer. In this sense, the discourses on natural law also serve to
intensify the religions’ communication with secular law.
God’s Commands in Human Norms

As with every divine law, the norms understood in the Christian tradition and
in parts of the Jewish and the Islamic traditions as being naturally valid are
confronted with the unchangeability of divine law. As God’s commands are
not at the free disposal of human beings, humans cannot abrogate or change
divine law or dispense with it. Thomas Aquinas noted that in the case of
precepts by divine law, only God could dispense with it.55 Yet because of the
53
Novak, ‘Natural Law and Judaism’, 25.
54
Emon, ‘Islamic Natural Law Theories’, 145.
55
Summa Theologiae I–II, question 97 article 4, in Sancti Thomae Aquinatis opera omnia iussu
impensaque Leonis XIII P. M. edita, vol. 7, Rome, Typographia Polyglotta, 1892, 192.
historicity and contextuality of promulgating and applying norms, dealing

with divine law also requires some flexibility. The question of the canonist
Silvio Ferrari “How can a divine law change after the conclusion of the
revelation?”56 becomes a key methodological question for developing and
applying religious law.
Ferrari proposes two strategies for dealing with this problem. A first option is
to take the necessary embodiment of divine law in human norms as a reason
why divinely grounded law may change: “most Canon law scholars affirm that
divine law cannot be directly operative unless it is not embedded in a human
rule: a law in itself is something connected to history, divine law can be known
and become binding only through a historical, human medium.”57 Similarly,
the moral theologian Karl-Wilhelm Merks notes that: “The divine . . . does not
appear in parallel to the human but, indeed, within the human. Divine law is
human, through and through.”58 Ferrari makes reference to a theological
relation to describe the integration of divine commands into human norms
which is necessary to make divine law applicable in the here and now. He
refers to the Christological paradigm of the Council of Chalcedon, which
understood the two natures of Christ – being fully human and fully divine – as
preserved in the Incarnation “unconfused, unchangeably, indivisibly,
inseparably”,59 and evaluated the relationship of the two natures as
a Christological precondition of Christ’s redemptive act. In Christ, the divine
and the human coincide to grant salvation to humankind; in divine law, God’s
commands and human norms are linked to produce norms which are salvifi-
cally relevant in the earthly church. However, the human norms in which the
divine law becomes effective are not of the same quality as God’s commands to
which they relate. Whereas God’s will is absolute and unchangeable, human
norms are changeable and may be adapted according to the needs of culture
and time: “Therefore while the rules and the principles of divine law are
immutable, the legal provisions which give concrete expression to those rules
and principles can change.”60 This idea was already upheld by Thomas
Aquinas concerning the question whether one could dispense with lex naturalis.
Nobody could be excused from observing the fundamental principles,
56
57
Ibid.
58
Merks, ‘Menschlichkeit des ius divinum’, in Goertz/Striet (eds), Nach dem Gesetz Gottes,
Freiburg im Breisgau, Herder, 2014, 12; original: “Das Göttliche . . . erscheint nicht neben dem
Menschlichen, sondern gerade im Menschlichen. Das ius divinum ist damit durch und durch
menschlich.”
59
Council of Chalcedon, ‘Christological Confession’, in Patrologiae cursus completus: Series
Latina, ed. by J. P. Migne, vol. 62, Paris, Excudebat Sirou, 1863, 514D.
60
“praecepta communia” (Summa Theologiae I–II, question 97 article 4),61 of the

law of nature. However, regulations derived from these principles could be
a matter of dispensation.
Ferrari names a further option for dealing with the problem of unchanging
divine law, starting with the epistemological problem of what divine law
actually is. As the human capacity to perceive the divine will is imperfect,
human legal understanding can recognise only parts of divine law: “Human
capacity to understand the divine law is limited: therefore it is always possible
to improve understanding of what God really meant.”62 A revision of past
understandings and a development of divinely founded law according to new
insights is, therefore, possible. The frequently expressed statement to be found
in some contributions on canon law, namely that divine law was unchange-
able, should be viewed selectively: “divine law is immutable in itself but it is
apprehended by men through instruments which are subject to change.”63
A sensitive method of legal development therefore needs to be established for
dealing with norms that are related to God’s revelation or the natural order as
perceived by reason, one which deals carefully with the tension between the
unchangeable principles and the changeable law. In legal practice, this is
a challenge for legal reforms whenever divine law is affected: “What can be
said is that some parts of Canon law are grounded on immutable norms and
principles, so that any change in the provisions which apply to these norms
and principles is slow and difficult, probably slower and more difficult than in
any secular law.”64
Akhnai: Divine Law in Changing Times

In this context, it is helpful to study parallel discourses in the legal theories of
the other Religions of the Book. Rabbinic methodology dealing with the
written Torah contains examples of how to interpret and to apply a divine
command under the conditions of history and time in such a way that it reacts
to the normative needs of a specific time and culture. One of the most
prominent narratives of the Talmud – the story of the controversy over the
oven of Akhnai (see Jerusalem Talmud, Tractate Moed Katan, folio 8b–9a;
Babylonian Talmud, Tractate Baba Mezi‘a, folio 59b) – presents a rabbinic
argument on the purity of an oven. The answer to whether the oven is pure or
61
In Sancti Thomae Aquinatis opera omnia 7, 192.
62
63
Ibid., 52.
64
Ibid.
impure actually plays only a minor role. The major focus is on the rabbinic
theories of interpretation and decision which are presented in the story and
which seek an appropriate way of addressing the Torah’s commands under the
conditions of the rabbis’ time. So the story addresses the human problem of
how to interpret divine commands. The central passage of the narrative reads
as follows:
On that day R. Eliezer brought forward every imaginable argument, but they
[the other rabbis] did not accept them. Said he to them: “If the halachah
agrees with me, let this carob-tree prove it!” Thereupon the carob-tree was
torn a hundred cubits out of its place – others affirm, four hundred cubits.
“No proof can be brought from a carob-tree,” they retorted. Again he said to
them: “If the halachah agrees with me, let the stream of water prove it!”
Whereupon the stream of water flowed backwards – “No proof can be
brought from a stream of water,” they rejoined. Again he urged: “If the
halachah agrees with me, let the walls of the schoolhouse prove it,” where-
upon the walls inclined to fall. But R. Joshua rebuked them, saying: “When
scholars are engaged in a halachic dispute, what have ye to interfere?” Hence
they did not fall, in honour of R. Joshua, nor did they resume the upright, in
honour of R. Eliezer; and they are still standing thus inclined. Again he said
to them: “If the halachah agrees with me, let it be proved from Heaven!”
Whereupon a Heavenly Voice cried out: “Why do ye dispute with R. Eliezer,
seeing that in all matters the halachah agrees with him!” But R. Joshua arose
and exclaimed: “It is not in heaven.” What did he mean by this? – Said
R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay
no attention to a Heavenly Voice, because Thou hast long since written in the
Torah at Mount Sinai, After the majority must one incline (Tractate Baba
Mezi‘a, folio 59b).65
The topics of legal theory touched upon in the story are too diverse to discuss
in their entirety. Some aspects (such as the decision theory model of majority,
which is recommended by the Akhnai tale) are taken up in Chapter 4.1 of this
study. Nevertheless, in this particular context, I would like to focus on the
story’s message for the purposes of understanding the link between revelation
and authority. Revelation and authority are discussed in the Akhnai tale in
relation to a question of interpretation, as the rabbis discuss the right inter-
pretation of the Torah. Two approaches are presented in the text. One is
connected with a single figure, Rabbi Eliezer. He tries to convince the other
rabbis of his position by making use of supernatural proof, after failing to
65
Internet source: Isidore Epstein (ed.), The Soncino Babylonian Talmud, www.halakhah.com
/babamezia/babamezia_59.html (accessed 31 January 2016).
persuade them discursively. Even God becomes involved to show that

Eliezer’s answer is the right one. Thus, Eliezer refers to the highest authority
possible to prove that his opinion accords with the Halacha. The other rabbis
take a different path. They try to find an answer which corresponds to the legal
necessity of their own times. By interpreting the Torah in a culturally con-
textualised way that focusses on the present, they find an up-to-date answer to
the legal question but risk missing God’s initial will.
The conflict between these two approaches is similarly present in modern
debates on interpretation. This becomes apparent in the controversies on the
right understanding of what it means to be compliant to a norm, as the legal
scholar Christoph Möllers recently pointed out:
To act according to a norm may stand for doing what is best at present, but it
can also stand for following the idiosyncrasies of its origin that are no longer
convincing. Therefore, obedience to the law can be understood in
a historically voluntarist sense or in a presentistically rationalist sense,
whereas none of the approaches is to be received out of the notion of the
norm itself.66
It is still not clear how closely being committed to a norm binds the interpreter
to the original text, and this requires further discussion. There are, however,
a variety of answers, ranging from a literal approach which sticks to the
wording of the normative text, to an approach that is open to a development
of the normative content with regard to the needs of today. A dynamic theory
of interpretation is put forward in the story on the controversy about the oven
of Akhnai. Here, the idea is nourished that religious law needs to change to
remain faithful to its religious foundations. In that sense, the legal scholar
Daniel Greenwood interprets the rabbis’ reaction to God’s interference on
behalf of Eliezer (“we pay no attention to a Heavenly Voice”) not as a rejection
of God’s authority as such, but as a rejection of an ahistoric and static under-
standing of interpretation: “Akhnai’s rejection of the word of God is a rejection
of the idea that eternal law could also be unchanging law: the law is not in
(unchanging) Heaven, but here on earth, where it must respond to the . . .
realities of [the] world.”67
66
Möllers, Möglichkeit, 338; original: “Der Norm getreu zu handeln kann bedeuten, aus
ihr das Beste für die Gegenwart zu machen, es kann aber auch bedeuten, den heute
nicht mehr überzeugenden Idiosynkrasien ihres Ursprungs zu folgen. Normtreue kann
historisch-voluntaristisch oder präsentisch-rationalistisch verstanden werden, wobei
keines der beiden Verständnisse der Norm selbst zu entnehmen ist.”
67
Greenwood, ‘Akhnai: Legal Responsibility in the World of the Silent God’, Utah Law Review
1997, issue 2, 333.
Niklas Luhmann takes a similar view when he describes the interpretation

of divinely founded law as a task performed in a tension between being faithful
to the law’s origin and its present realisation: “One has to stick to the text, but
one may also interpret it. The oral interpretation is an instrument for adjusting
it to an unknown future.”68 Likewise, Greenwood recognises the Akhnai tale
as symbolically presenting the tension inherent in integrating an unchanging
supertemporal normativity into historically and culturally impregnated
norms: “Akhnai . . . represents a struggle over the problem of unchanging
law in changing times. This, of course, is a central problem in modern legal
theory.”69 The narrative acknowledges the absoluteness of divine truth. But it
doubts that the human perception of it is absolute as well. A consequence of
this epistemic weakness is that there are plural interpretations of divine law –
and conflicts over which of them is right.
Relying on the majority – the solution suggested by Akhnai which became
very influential in rabbinic legal theory – is not the solution which has been
arrived at in Catholic decision theory, a matter I return to in Chapter 4.1. Yet
the problem is similar: how can God’s will serve as the fundament of human
legal norms if it can never be fully grasped by humankind? This study discusses
this problem with regard to natural law. If there are prepositive norms con-
veying the naturally right, how can they be discovered using human reason
that is epistemologically limited? And how can a natural normativity that is
only partially comprehended be transformed into human normativity?
The rabbinic message “not in Heaven” correspondingly points at a funda-
mental problem of the church’s natural law theory, that is, the attempt by
humanity to put into practice a normativity made in heaven. That this attempt
is doomed to fail is stated in the Akhnai tale. At the same time, the narrative
emphasises that the attempt should still be made. The story therefore renders
a similar service to canon law theory by showing that perceiving and realising
natural law always has to be seen in the light of a hermeneutic of
tentativeness.70
1.2 landmarks of catholic natural law

To apprehend the status of natural law in the validity theory of canon law, it is
helpful to look into the history of canon law at least briefly in order to show
68
Luhmann, Die Religion der Gesellschaft, Frankfurt am Main, Suhrkamp, 2002, 262; original:
“Man muß sich an den Text halten, kann ihn aber interpretieren. Die mündliche
Interpretation ist das Instrument der Anpassung an eine noch unbekannte Zukunft.”
69
Greenwood, ‘Akhnai’, 328.
70
See Hahn, ‘Not in Heaven’, Oxford Journal of Law and Religion 6 (2017), 372–398.
how the foundation of canon law and the idea of natural law came to be
connected. Whereas most contributions on natural law begin with a broad
historical overview of natural law in the history of theology and philosophy
(writers usually refer to Augustine’s reception of the Stoa, touch upon Aquinas’
rereading of Aristotle, and highlight how Suárez transported Christian natural
law into modernity),71 this study dispenses with a historical chapter telling the
story of natural law. I refer to the history of natural law only in the interest of
better understanding recent natural law arguments in the church in relation to
their historical development. These references cannot claim to be complete,
nor can they claim to be historical research in their own right. As the diachro-
nic perspective is dominated by a synchronic interest, the historical questions
asked of natural law are reduced to two. The first question tries to understand
the historical reasons why natural law remains strong within the church, even
today. The second question tries to grasp why natural law as a philosophical
concept has been able to blend well with theology, especially with ecclesiol-
ogy. The answers to these questions help in evaluating the theological rele-
vance of natural law, which is one major interest of this study.
The Christian Adoption of Natural Law

The first encounters between the church’s developing doctrine on law and the
pagan legal theories of antiquity are concealed in the mists of history. Yet they
71
E.g. Mitteis, Naturrecht, Berlin, Akademie-Verlag, 1948, 8–30; Süsterhenn, ‘Naturrecht’, 11–18;
Topitsch, ‘Problem des Naturrechtes’, 160–170; Hollerbach, ‘Das christliche Naturrecht’, in
Böckle/Böckenförde (eds), Naturrecht, Mainz, Matthias-Grünewald-Verlag, 1973, 11–36;
Crowe, Changing Profile of Natural Law, The Hague, Martinus Nijhoff, 1977; Girardet,
‘Naturrecht und Naturgesetz’, Rheinisches Museum für Philologie (Neue Folge) 138 (1995),
266–298; Ezzati, Islam and Natural Law, 15–41; Wolfe, Natural Law Liberalism, 152–163;
Pope, ‘Natural Law’, 149–152; Luf, ‘Rechtsphilosophische Grundlagen’, in Haering/Rees/
Schmitz (eds), Handbuch des katholischen Kirchenrechts, 3rd edn, Regensburg, Friedrich
Pustet, 2015, 44; monographical: Tierney, Idea of Natural Rights, Atlanta, GA, William
B. Eerdmans Publishing, 1997.
Most interestingly, Lena Foljanty identifies a normative meaning of the historic references
as they link the authors’ approaches with the tradition of natural law: “Despite the fact that
only a few texts of natural law revival understand themselves as contributions to legal history,
notes on the European history of thought have always been a part of the literature on natural
law. They stabilised the values which were declared as being natural law and, thus, flanked the
future concepts of natural law literature” (Foljanty, Recht oder Gesetz, 258; original: “Obwohl
sich nur wenige Texte der Naturrechtsbesinnung als Beiträge zur Rechtsgeschichte
verstanden, waren Ausführungen zur europäischen Geistesgeschichte seit der Antike
fester Bestandteil der Naturrechtsliteratur. Diese stützten die Werte ab, die für
Naturrecht erklärt wurden, und flankierten auf diese Weise die Zukunftkonzeptionen
der Naturrechtsschriften”).
seem to have produced a new approach to legal theory in a very short time.
Max Weber sociologically reinterprets the moment in antiquity when
a nascent Christianity adopted pagan natural law “for the purpose of con-
structing a bridge between its own ethics and the norms of the world”.72
The early church formed a link with the Roman Empire by taking on natural
law from Stoic legal philosophy: “When the Church saw itself compelled to
seek relations with the secular authorities, it arranged them . . . with the aid of
the Stoic conception of ‘natural law’, that is, a rational body of ideas.”73 This
historic decision subsequently helped to give canon law a rational structure
and prevented irrational developments which, as Weber states, befell some
other traditions of religious law.74 The Christian act of turning to a natural law
impregnated by a pagan philosophy and theory of the state is therefore taken by
Weber as a happy coincidence for Western legal history. Being a wise initial
decision by the church which helped to shape a rational ecclesiastical legal
order, ecclesiastical natural law subsequently served as an example for the
secular orders of the modern nation states.
Early enthusiasm for the idea of natural law can already be found in the
writings of the church fathers, as the ancient concept of a natural normativity
proved to be highly suitable for theological adaptation. Aristotle’s remark that
“there really is, as every one to some extent divines, a natural justice and
injustice that is binding on all men, even on those who have no association or
covenant with each other” (Rhetoric, book 1, chapter 13),75 is picked up by
Christian thinkers and integrated into theological doctrine. From a Christian
perspective, nature is understood as creation and interpreted in the perspective
of a theology of creation. Biblical texts like Paul’s statements on the law and its
meaning for Christianity, Judaism, and paganism in his Letter to the Romans
encourage theological interpretations of nature in its God-given normativity.76
God the creator appears as the norm giver who, in the course of creating the
72
Weber, Economy and Society, Berkeley, CA, University of California Press, 1978, 866.
73
Ibid., 828; see also Troeltsch, Die Soziallehren der christlichen Kirchen, 2nd edn, Tübingen, J.
C. B. Mohr (Paul Siebeck), 1919, 146–147; idem, ‘Naturrecht’, in Deutsche Gesellschaft für
Soziologie (ed.), Verhandlungen des 1. Deutschen Soziologentages, Frankfurt am Main, Sauer
& Auvermann, 1969, 175.
74
See Weber, Economy and Society, 828.
75
In Works of Aristotle 11, translated by W. R. Roberts, Oxford, Oxford University Press, 1946, 1373b.
76
See Troeltsch, Soziallehren, 52–53, 146–147, 158–159, 174; Oakley, Natural Law, 46–47; Laing/
Wilcox (eds), Natural Law Reader, Chichester, Wiley Blackwell, 2014, 81.
On the reception of the Pauline thought by theologians of the East (Origen, John
Chrysostom) and of the West (Ambrosiaster, Pelagius, Augustine) in the early church see
Levering, ‘Christians and Natural Law’, in Emon/Levering/Novak, Natural Law, Oxford,
Oxford University Press, 2014, 74–104. For further references to the church fathers, see
International Theological Commission, ‘Universal Ethic’, no. 26, fn. 27–31. On the meaning
natural world, imbues each natural creation with a purpose and gives it
a normative direction. The natural capacity to perceive what is right, Paul
writes, is something God gave to all humans, including the heathens, who are
also children of God:
When Gentiles, who do not possess the law, do instinctively what the law
requires, these, though not having the law, are a law to themselves. They
show that what the law requires is written on their hearts, to which their own
conscience also bears witness; and their conflicting thoughts will accuse or
perhaps excuse them on the day when, according to my gospel, God, through
Jesus Christ, will judge the secret thoughts of all (Romans 2:14–16).
Here, in verse 15, Paul echoes Deuteronomy 30:14 by taking up the concept of
a normativity which is written into all human beings’ hearts; he thus links the
Pauline theory of law with the Mosaic legal teaching of the Pentateuch.
The human capacity to understand God’s will plays a similar role in Moses’
last speech to the Israelites:
Surely, this commandment that I am commanding you today is not too hard
for you, nor is it too far away. It is not in heaven, that you should say, ‘Who will
go up to heaven for us, and get it for us so that we may hear it and observe it?’
Neither is it beyond the sea, that you should say, ‘Who will cross to the other
side of the sea for us, and get it for us so that we may hear it and observe it?’
No, the word is very near to you; it is in your mouth and in your heart for you
to observe (Deuteronomy 30:11–14).
Because God has imbued creation with a sense of what is right, God has also
endowed humankind with the capacity to understand this and to shape social
practice accordingly. This capacity to perceive is interpreted by Augustine as
an act of human participation in God’s reason. The lex naturalis as something
comprehensible to human reason could be understood as humankind’s parti-
cipation in the lex aeterna as God’s intended plan for creation.77 In this
theological reinterpretation of the Stoic idea of lex aeterna and lex naturalis,
of nature in Jewish and Christian theology see Glacken, ‘God, Man, and Nature’, in idem,
Traces on the Rhodian Shore, Berkeley, CA, University of California Press, 1967, 150–168.
77
See Augustine, De libero arbitrio, book 1, chapter 6, in Patrologiae cursus completus: Series
Latina, ed. by J. P. Migne, vol. 32, Paris, Excudebat Sirou, 1841, 32, 1228–1229; idem, Contra
Faustum Manichaeum, book 22, chapter 27, in Patrologiae cursus completus: Series Latina, ed.
by J. P. Migne, vol. 42, Paris, Excudebat Sirou, 1863, 418; cf. Hollerbach, ‘Das christliche
Naturrecht’, 14; Girardet, ‘Naturrecht und Naturgesetz’, 281, 283–284; Levering, Biblical
Natural Law, 77–81; idem, ‘Christians and Natural Law’, 99–104; Laing/Wilcox (eds),
Natural Law Reader, 81–82.
Augustine combines pagan legal philosophy and genuine Christian thought.

Centuries later, Aquinas built his doctrine of natural law on this concept of
human participation in an eternal law (on lex aeterna see Summa Theologiae
I–II, question 93; on lex naturalis see question 94).78 As one of the most
influential approaches in medieval legal theory connecting the theoretical
approaches of antiquity and modernity, Aquinas’ contribution to natural law
can be acknowledged as a link which bridges both periods of natural law in the
church. Even today, Aquinas’ ideas serve as a basis for recent approaches to
natural law, as can be shown in the many contributions on New Natural
Law.79
Besides interpreting the norms of nature in the light of a theology of
creation, the Christian doctrine on natural law also refers to Christology and
soteriology because nature and history are understood as being called to
redemption: “Through Christ Jesus and his act of redemption, nature is
perfected or restored – after its damage by the fall of humanity. That means
that the full, even theological determination of humanity (the calling to
eternal salvation) is integrated into the concept of nature as applied to human
nature”,80 Ernst-Wolfgang Böckenförde explains. Whereas the scholastic
theology of the medieval era later solved the eschatological problem of the
kingdom of God being “not yet” but “already here” by differentiating between
nature and supernature, the theology of the church fathers identified the idea
of a soteriological potential as already indicated in the act of creation and then
realised in Christ’s redemptive act with nature itself. For this reason, the
fathers considered it directly relevant for salvation to do the right thing
according to nature, recognising that God had based creation on a striving
towards the Kingdom of God. As a consequence, not missing God’s will – as
conveyed in natural things – became a core consideration in the church
fathers’ deliberations on natural law. Many reflections on what might be
78
In Sancti Thomae Aquinatis opera omnia 7, 162–167, 168–173.
79
E.g. Grisez/Shaw, Beyond the New Morality, Notre Dame, IN, University of Notre Dame
Press, 1988; George (ed.), Natural Law Theory, Oxford, Oxford University Press, 1992; idem
(ed.), Natural Law and Moral Inquiry, Washington, DC, Georgetown University Press, 1998;
idem/Wolfe (ed.), Natural Law and Public Reason, Washington, DC, Georgetown University
Press, 2000; George, In Defense; Finnis, ‘Incoherence of Legal Positivism’, Notre Dame Law
Review 75 (2000), 1597–1611; idem, Natural Law and Natural Rights, Oxford, Oxford
University Press, 2011.
80
Böckenförde, Geschichte der Rechts- und Staatsphilosophie, 2nd edn, Tübingen, Mohr
Siebeck, 2006, 202; original: “Durch Jesus Christus und seine Erlösungstat ist die Natur . . .
vollendet oder – gegenüber ihrer Beschädigung durch den Sündenfall – wiederhergestellt
worden. Das heißt, in den Naturbegriff wurde, bezogen auf die menschliche Natur, die volle,
auch theologische Bestimmung des Menschen (seine Berufung zum ewigen Heil)
hineingenommen.”
materially understood as natural show a connection between a theology of

creation and a theology of grace, as illustrated in Tertullian’s famous and
infamous passage from his writing On the Apparel of Women. Based on the
assumption that “it is not pleasing to God, what he himself did not produce”,
Tertullian confronts the efforts of women to attain feminine beauty with the
argument that if God had been interested in women looking nice and pretty in
colourful garments, God not only would have created plain woolly sheep but
also would have ordered “that sheep were born with purple and sky-blue
fleeces” (book 1, chapter 1).81 As nature and the creator who made it did not
provide these features, one would have to assume that a modification of
natural-coloured wool has to be regarded as contravening nature and, there-
fore, as counterproductive to salvation.
From Factual Issues to Issues of Competence

In the theological discourses on natural law, Tertullian’s argument frequently
serves as an example of how complicated it is to draw a line between a natural
and an unnatural use of creation.82 Thus, his argument serves as an example of
the lack of clarity in the relationship between nature and culture. When does
the human response to God’s command to culturally shape nature – “fill the
earth and subdue it” (Genesis 1:28) – become an unnatural dealing with
creation, one that contradicts the will of God the creator? In a normative
system based on divine law – such as the Christian theory of natural law that
understands nature as a medium communicating God’s purpose for creation –
this problem is less ontological and more epistemological. It is not based on
doubts about the existence of a normative meaning of natural things but
acknowledges the difficulty of deriving a moral or legal normativity from
nature. As perceiving nature’s normative notion directly is impossible and
always remains vague, normative reasoning necessarily produces diverse and
manifold ideas of what is naturally right. This variation results in a plurality of
definitions of natural laws, as mentioned at the beginning of this study with
regard to Hans Kelsen’s critique of natural law.83
The problem of natural law – namely that a plurality of ideas of what is
naturally good and just make a homogeneous answer to what is naturally right
81
In Patrologiae cursus completus: Series Latina, ed. by J. P. Migne, vol. 1, Paris, Excudebat
Sirou, 1844, 1312B.
82
E.g. Crowe, Changing Profile, 260; Osborn, Tertullian, Cambridge, Cambridge University
Press, 1997, 240; Rhonheimer, Ethics of Procreation, Washington, DC, Catholic University of
America Press, 2010, 13.
83
See Kelsen, Pure Theory of Law, 219–221.
impossible – not only presents a challenge today, but did so in the early church
as well. Nonetheless, the church of antiquity did manage to find a solution for
dealing with this problem. Today’s criticism of natural law – as presented by
the legal theorist Bernd Rüthers when he says, “Whoever states that natural
law exists must also name a defining authority, a ‘magisterium’ of natural law,
for the cases in which no consensus about its content can be found”84 – was
creatively answered in the early church by the naming of a magisterium, that
is, a teaching authority which could be identified as possessing superior insight
into the divine will and, thus, could be considered competent to teach the
faithful authoritatively on what was naturally right. The church hierarchy,
which was developed in the first centuries, was therefore equipped with
a double function with regard to the generation of divinely founded law: in
their function as magisterium, the bishops as the apostles’ successors became
a unifying means for the church to perceive the divine will. In addition, they
served as norm givers by transforming the perceived into moral norms and
positive law, which then had to be observed by the faithful.
This role of the bishops in matters of perception and church leadership was
biblically founded. The hierarchical structuring of the church, which took
place in the first three centuries of church history, was based on Jesus’ practice
of recruiting the apostles and was developed further in church history by
reference to the idea of apostolic succession. The model of the church so
established was linked with leadership ideas found in pagan politics. But
points of reference in shaping the Ecclesia hierarchica were not only provided
by the factual power relations of the ancient world; approaches of ancient
philosophy also were used to reflect the nascent ecclesiology. Natural law
approaches to hierarchical governance – as presented by ancient political
theories – were consulted which argued in favour of hierarchy as being
a natural structure of the church.
The approach most often referred to in antiquity but also in the Middle
Ages is presented by Aristotle in Politics, his main work on political theory.
In this work, Aristotle constructs a theory of government with numerous
implications for a legal theory on natural law. For Aristotle, to rule or to be
ruled is a natural and necessarily dualistic constellation which marks the
relationship between a master and the subject of his rule: “For that which
can foresee with the mind is the naturally ruling and naturally mastering
element, while that which can do these things with the body is the naturally
84
Rüthers, Rechtstheorie, no. 443; original: “Wer die Existenz von verbindlichem Naturrecht
behauptet, muß, für den Fall des fehlenden Konsenses über dessen Inhalt, zugleich eine
Definitionsautorität, ein verbindliches ‘Lehramt’ für Naturrecht, angeben können.”
ruled and slave; hence the same thing is advantageous for the master and
slave” (Politics, 1252a).85 This polar dynamic of ruling and being ruled is
identified as a condition of all social structures: it is the basis of the household,
which is governed by the landlord; it underlies the union of households which
form a village, in which village elders provide a normative structure for the
community; and it is the foundation of the city, πo´λις, as a town’s community
which consists of various villages put together and ruled by politicians who
serve as lawgivers to the community (see Politics, 1288b).86 Aristotle qualifies
the πo´λις as the outstanding example of human society, insofar as it aims at the
most perfect autarky as the natural goal and highest good of all political
communities. To form a πo´λις, then, has to be regarded as a natural impulse
of humankind. Being the best medium to obtain security and autonomy, it is
the most natural form of human socialisation. Therefore “the city belongs
among the things that exist by nature” (Politics, 1253a).87 And as a natural
community, it has to be considered as preceding any other kind of sociality:
“The city is thus prior by nature to the household and to each of us. For the
whole must by necessity be prior to the part” (Politics, 1253a).88 Consequently,
the law – being the rules of the πo´λις which regulate the political community –
must be seen as a natural order.
Aristotle’s idea of the πo´λις – as a political community in which the natural
order is realised for the benefit of all members of the community – provides
the early church’s ecclesiology and legal theory with a concept for solving the
problem of perceiving natural law. The Aristotelian concept of natural rule,
which can be fused with the theological conception of authorisation by
apostolic succession, is taken up in the church with regard to the hierarchical
structure of ecclesiastical leadership in being the natural order of governing
the ecclesial community. The natural law argument in this context is used in
its formal potential for justifying a hierarchical authority competent to engage
in centralised decision-making and able to make a binding decision on what is
naturally just and on the norms for realising it. As a result, hierarchical
authority reduces both the conflicts which exist in finding natural law and
the complexity of decision-making.
In the transformation of Aristotle’s approach to a theory of government into
a legal theory, the link between a formal ‘natural’ structuring of a society and
its material production of ‘naturally’ grounded norms becomes visible,
85
In Aristotle, Politics, ed. by C. Lord, Chicago, IL, University of Chicago Press, 1984, 36.
86
Ibid., 97.
87
Ibid., 37.
88
Ibid.
because norms that result from a natural authority’s lawmaking may claim to
be naturally just. “[The virtue of] justice”, writes Aristotle, “is a thing belong-
ing to the city. For adjudication is an arrangement of the political partnership,
and adjudication is judgement as to what is just” (Politics, 1253a).89 This
thought was taken up in the church’s theory of authority and in its legal theory.
The formal natural order became the precondition for the material natural
order, insofar as it provided the necessary prerequisite of power to shape
a homogeneous legal order. The ecclesial hierarchs’ findings on what is
naturally just (perceived in their function as a teaching authority) and the
transformation of these perceptions into norms (performed by the same
hierarchs in their function as norm givers) were handed down to the commu-
nity of the faithful as norms resulting in the natural order. Ever since, material
natural law in the church has been derived from the formal argument of the
hierarchy’s natural governance of the church.
That elements of Aristotle’s theory of the state are still part of current
reflections is due largely to medieval philosophy and theology, as Silvio
Ferrari notes:
During the Middle Ages, St. Thomas and other theologians incorporated
a large part of the Greek philosophical legacy into Christian theology and
a similar task was performed by Gratianus, who transferred a large number of
Roman legal categories to the field of Canon law. Through these channels,
the notion of natural law elaborated by Cicero and the Stoics found its way
into Christian theology and law.90
It was particularly Aquinas’ reception of Aristotle’s thought which was of major

importance. Aquinas joined elements of the political theory of antiquity with
the Augustinian idea of a normative order set by God in the course of creation.
He took up Aristotle’s conception of ruling the household, the village, and the
πo´λις and applied it to the medieval social entities of domus and civitas. Each
human being is a member of a household, each house a part of a society.
The society has to be regarded as the perfect community of which Aristotle
spoke in Politics (see Summa Theologiae I–II, question 90 article 3).91
The civitas for Aquinas was the “communitas perfecta” and, thus, the ideal or
“naturally right” social entity in Aristotelian terms.
In addition, Aquinas, in Augustine’s tradition, applied Aristotle’s approach
to theology: as God’s plan for creation was to become manifest in human
social entities, the civitas is interpreted in the light of a theology of creation as
89
Ibid., 38.
90
91
In Sancti Thomae Aquinatis opera omnia 7, 151.
well as in the light of soteriology. This thought became powerful in a twofold

way: not only did it become part of ecclesiology but it also was taken up by
modern theories of the state.
Church and State: Competing Orders

In the Enlightenment’s theories of the state, the idea of a communitas perfecta,
which Aquinas connects with the medieval civitas, is applied to the modern
state. The sovereign nation state is interpreted as the perfect community.92
In its legal structure it embodies the autarky of social communities in perfec-
tion, something which Aristotle had marked as being the goal for which
human communities naturally strive.
At the same time, the Enlightenment’s legal theories transformed the idea
of natural law into a law of reason by referencing the individual’s capacity to
use reason to perceive what is naturally right. Since the French Revolution,
the law of reason has taken the place of the law of nature as a “secularisation or
profanation of the idea of natural law”,93 as Alexander Hollerbach describes it.
In modernity, then, one strand of natural law thought is transformed into
a secular line of founding law in the prepositive realm without identifying the
prepositive norms as God-given. In his definition of natural law, Max Weber
points at this secular foundation of natural law, which attains its persuasive
power materially out of itself and not out of a formal authority:
Natural law has thus been the collective term for those norms which owe
their legitimacy not to their origin from a legitimate lawgiver, but to their
immanent and teleological qualities. It is the specific and only consistent type
of legitimacy of a legal order which can remain once religious revelation and
the authoritarian sacredness of a tradition and its bearers have lost their force.
Natural law has thus been the specific form of legitimacy of a revolutionarily
created order. The invocation of natural law has repeatedly been the method
by which classes in revolt against the existing order have legitimated their
aspirations, in so far as they did not, or could not, base their claims upon
positive religious norms or revelation.94
I do not pursue the history and development of the law of reason any further
here, as this study focusses on divinely grounded natural law and the question
92
For pioneers of this idea, see Francisco de Vitoria, Relectio de potestate civili, Madrid, Consejo
Superior de Investigaciones Cientı́ficas, 2008, 93–94; Pufendorf, De iure naturae et gentium,
book 7, chapter 1 §1, Amsterdam, Pierre de Coup, 1715, 464.
93
Hollerbach, ‘Das christliche Naturrecht’, 24; original: “Säkularisierung oder Profanisierung
des Naturrechtsgedankens”.
94
Weber, Economy and Society, 867.
of its value in a religious community such as the Catholic Church today.

However, I do not wish to imply that the significance of reason is diminished,
as the use of reason – being the core idea of the law-of-reason approach – is key
for natural law approaches as well. A normative understanding of “nature is
represented as a structure committed to human reason . . . Natural law always
is a law of reason”,95 as Ernst Forsthoff notes. As natural law in the canonical
tradition describes those legal norms which can be perceived by evaluating
God’s creation with the use of human reason, it is obvious that natural law in
the church must also be understood as a law of reason. That this study does not
probe more deeply into the development of the law-of-reason tradition in the
post-Enlightenment time should be taken therefore not as a marginalisation of
reason’s relevance in the course of perceiving prepositive law, but rather as
a greater devotion on my part to matters other than those historical.
From a historical point of view, however, one has to consider that the idea of
a law of reason in nineteenth- and twentieth-century legal theories of the state
largely eclipsed the relevance of Catholic natural law. Particularly European
legal theory, once heavily impregnated by the church, increasingly tended to
favour secular approaches. Alexander Hollerbach explains that “not least in
the declarations of human and civil rights, the baton was passed to the law of
reason, to which the essential achievements of the modern legal culture are
owed”.96 Not only did the secular law of reason provide an alternative
approach to prepositive normativity, but the church’s approach to natural
law itself also added to this development, insofar as in the post-Tridentine
era Catholic natural law began to develop formalistic and positivist character-
istics and was choked by casuistic regulations. A lot of the church’s power to
shape society was lost as a result of this, as Alexander Hollerbach states:
The Christian natural law in its Catholic rereading was, in its predominant
shape of Suarezianism, a matter . . . without any intellectual impact on that
time and without a share in the inner self-development of the natural law
concept; in any case, it was forced fully onto the defensive from which it
reemerged now and then with sharp polemic.97
95
Forsthoff, ‘Rechtserneuerung’, 78; original: “Natur stellt sich als ein Gefüge dar, das der
menschlichen Vernunft anheimgegeben ist . . . Naturrecht ist immer Vernunftrecht.”
96
Hollerbach, ‘Das christliche Naturrecht’, 24; original: “nicht zuletzt in den Erklärungen der
Menschen- und Bürgerrechte, die Fackel ganz auf das Vernunftrecht übergegangen ist, dem
entscheidende Errungenschaften der modernen Rechtskultur verdankt werden.”
97
Ibid.; original: “Das christliche Naturrecht katholischer Prägung war in der vorherrschenden
Gestalt des Suarezianismus eine Angelegenheit . . . ohne geistige Strahlkraft in die Zeit hinein
und ohne Anteil an der inneren Selbstentfaltung des Naturrechtsgedankens, jedenfalls war es
vollständig in die Defensive gedrängt, von wo es sich gelegentlich in scharfer Polemik zu Wort
meldete.”
Besides polemically criticising modern legal orders, the church invested

considerable energy in building up a counterforce. As the legal orders of
nation states began to dominate Western societies, they provoked a Roman
Catholic counter movement. In a direct challenge to the Reformational
conception of the relationship between church and state, which divested the
church of its jurisdiction over the secular realm, and against the modern state
theory that claimed jurisdictional competences for the state which had for-
merly belonged to the church, Catholic legal politics of the nineteenth
century tried to establish political autarky for the church as a community of
faith with a legal and political structure, as Gerhard Luf explains: “Subsequent
to the Aristotelian political tradition, although in a characteristic formalist
rational shaping, this concept served the purpose of securing for the church
powers analogous to those of the state, but also ensuring a sovereignty inde-
pendent of it.”98 The dualistic Aristotelian concept of ruling and being ruled,
which became powerful in the ancient and medieval reception of Aristotle’s
theory of politics, found its match in modernity in the absolutist understand-
ing of government, which was taken up by the church. This proposes a theory
of the church in which the church, as described by the historian Paolo Prodi,
“in some respects takes on the characteristics of a sovereign society imitating
the state with all typical expressions of power of the modern state, with the
exception of territoriality (the territory of the Papal States in some respects
becomes a tool to grant the universal institution)”.99 Absolutist types of
government served as models for shaping ecclesiastical governance. As they
shared the idea of power given by divine right and of governance as a natural
rule founded by God, the organisation of the church in the modern age started
to imitate absolutist examples of governance.100
In modernity, consequently, the relationship between the church and the
state came to be marked by rivalry between the two entities, while at the same
time a clear line was drawn between the powers of church and state. Hence,
98
Luf, ‘Rechtsphilosophische Grundlagen’, 45; original: “Im Anschluss an die aristotelische
Politiktradition, allerdings in charakteristischer formalistisch-rationalistischer Umformung,
dient dieses Konzept der Zielsetzung, der Kirche eine der Staatsgewalt analoge, aber von ihr
unabhängige hoheitliche Gewalt zuzusichern.”
99
Prodi, Geschichte der Gerechtigkeit, Munich, C. H. Beck, 2003, 196; original: “in gewisser
Weise die Merkmale einer souveränen Gesellschaft an[nimmt], die die staatliche imitiert,
mit allen typischen Ausdrucksformen der Macht des modernen Staates mit Ausnahme der
Territorialität (das Gebiet des Kirchenstaats wird in gewisser Weise zum Werkzeug, um die
universale Institution zu garantieren)”.
100
See Tierney, ‘Medieval Canon Law’, Catholic Historical Review 52 (1966), 15; Luf,
‘Rechtsgehorsam’, 198; idem, ‘Rechtsphilosophische Grundlagen’, 45; Beal, ‘Canon Law
and Its Discontents’, 139, 142; Lüdecke/Bier, Kirchenrecht, 26.
the relationship between church and state in the nineteenth century was
marked by competition as well as by collaboration with regard to society.
A key text showing this tension is the Encyclical Immortale Dei, on the
Christian Constitution of States, of 1885. In this document, Leo XIII envisaged
the social order as structured by two perfect societies, “societates perfectae”.
In doing so, he pointed out not only the modern ecclesial theory of the state
but also the ecclesiology of his time. Leo described the state – which he
depicted as a natural organisation – and the church – which he qualified as
a supernatural entity – as being two parallel structures. Church and state were
similar yet different. The church as a “society is made up of men, just as civil
society is, and yet is supernatural and spiritual, on account of the end for which
it was founded, and of the means by which it aims at attaining that end”.101
The dualism of nature and supernature, which goes back to scholastic theol-
ogy, is used to differentiate between the state and the church. In a typical
Catholic rereading of Luther’s theory of the two kingdoms, the pope divided
the state as an autonomous power and the church as a likewise self-sufficient
authority and held them both up as coherent and collaborating structures of
society: “The Almighty . . . has given the charge of the human race to two
powers, the ecclesiastical and the civil, the one being set over divine things,
and the other over human things.”102 Both powers can be traced back to the
same source, namely the divine will to shape society in a spiritual as well as in
an earthly way. As a result, church and state have different powers which are
mutually complementary in the organisation of society. Whereas ecclesiasti-
cal legislation, adjudication, and administration are in control of spiritual
matters, secular power is responsible for regulating, judging, and administer-
ing secular matters.
At the core of this theory of powers lie both societies’ autonomy as well as the
church’s independence from the state. At the same time, Leo accentuates both
the intrinsic logic of each sphere and the line that divides them, and he forbids
the state’s interference in the ecclesiastical realm: “Each [power] in its kind is
supreme, each has fixed limits within which it is contained, limits which are
defined by the nature and special object of the province of each, so that there
is, we may say, an orbit traced out within which the action of each is brought
into play by its own native right.”103 Within their respective fields of govern-
ance, the church and the state possess unrivalled power and are endowed with
101
Acta Sanctae Sedis 18 (1885), 165; English version: w2.vatican.va/content/leo-xiii/en/encycli
cals/documents/hf_l-xiii_enc_01111885_immortale-dei.html (accessed 11 January 2016).
102
Ibid., 166.
103
Ibid.
everything necessary to perfectly establish and exercise their government. This

qualification, which exists in the encyclical in the form of a quasi-definition,
also applies to the church: “it is a society chartered as of right divine, perfect in
its nature and in its title, to possess in itself and by itself, through the will and
loving kindness of its Founder, all needful provision for its maintenance and
action.”104
Neo-Scholastic Natural Law

The idea of societas perfecta as a self-sufficient authority goes hand in hand
with an ideological immunisation of the church. This notion is fostered by
neo-Scholastic theology and legal theory, which also exert a significant influ-
ence on natural law theory. With its intention to rationally found the law of the
church, neo-Scholastic natural law tries to establish itself as a rational theory
drawing on the idea of natural law proposed by Christian Wolff, who sought to
acquire knowledge of the naturally just with the help of a mathematical
method and the use of syllogisms.105 Subsumption and deduction become
methodically key for obtaining a norm. Rationality is achieved by ahistorical
thinking, “at the cost of totally separating it from the reality of life and
existential experience of concrete human beings”,106 as Carsten Barwasser
observes. This is also reflected in ecclesiology, as Judith Gruber notes: “in
dealing with modernism, the ecclesial identity is constructed by fading out its
historicity and earthliness.”107 In the model of the two perfect societies, the
state is identified as the societas tasked with the administration of the world,
and the church as the heavenly society responsible for matters spiritual.
Likewise in the validity theory of law, nature and universal normativity are
detached from the particularising factors of culture and history. The legal
theory of the church, in distancing itself from the contingency that comes with
culturality and historicity, tends to polarise the world, as Gruber explains:
“The construction of a Christian identity and a relating theology of revelation
follows . . . a politics of binarisation, which draws in a mutually exclusive
difference between dogma and history, church and world, faith and reason,
104
Ibid., 165.
105
See Wolff, ‘De Jurisprudentia civili’, in idem, Horae subsecivae Marburgenses, Verona,
Moroni, 1770, 207–224.
106
Barwasser, Theologie der Kultur, Berlin, LIT, 2010, 51; original: “um den Preis einer völligen
Trennung von der Lebenswirklichkeit und der Existenzerfahrung der konkreten Menschen”.
107
Gruber, Theologie, 149; original: “wird kirchliche Identität in den Auseinandersetzungen um
den Modernismus unter Ausblendung ihrer Geschichtlichkeit und Weltlichkeit konstruiert.”
nature and supernature, transcendence and immanence, universality and

particularity.”108
This binarisation has two consequences. First, the church finds it difficult to
integrate modernity’s positive approach to culture and history. This is most
obvious with regard to the problems the church experiences in dealing with
the modern idea of freedom.109 The neo-Scholastic approach therefore tends
to miss the “project of modernity”, whose culturally impregnating core is
freedom, as the sociologist Hartmut Rosa explains:
European modernity is substantially driven by specific normative and cul-
tural impulses, which consolidated in the eighteenth century and became
a cultural reality which may be described as the ‘promise of Enlightenment’.
In its core, as a political, ethical, and cultural ‘project of modernity’, stands
the idea of an (individual and collective) autonomy of man, which was
especially derived among other things from the demand for self-
determination in questions of religious conviction and conduct of life.110
Christian natural law, which regards autonomy first and foremost as standing
in opposition to theonomy, resists accepting the idea of self-determination as
connected to freedom. This tendency to reject autonomy is often presumed to
be a general temptation of natural law thinking, yet in going through the
medieval and modern history of natural law, Brian Tierney has recently
pointed out that there has always also been a tradition of “permissive natural
law”,111 which joined together natural law and freedom to generate the rights of
liberty. This tradition can be found in the writings of Christian theologians
and philosophers such as Thomas Aquinas, William of Ockham, and
108
Ibid., 150; original: “Die Konstruktion christlicher Identität und die ihr entsprechende
Offenbarungstheologie verfolgen . . . eine Politik der Binarisierung, die zwischen Dogma
und Geschichte, zwischen Kirche und Welt, zwischen Glaube und Vernunft, zwischen
Natur und Übernatur, zwischen Transzendenz und Immanenz, zwischen Universalität
und Partikularität eine wechselseitig ausschließende Differenz einzieht.”
109
See Böckenförde, ‘German Catholicism in 1933’, Cross Currents 11 (1961), 300; Hollerbach, ‘Das
christliche Naturrecht’, 29; Leichsenring, Ewiges Recht?, 330; Luf, ‘Rechtsphilosophische
Grundlagen’, 45.
110
Rosa, ‘Historischer Fortschritt’, in Willems/Pollack/Basu/Gutmann/Spohn (eds), Moderne
und Religion, Bielefeld, Transcript, 2013, 119; original: “Die europäische Moderne wird nicht
unwesentlich angetrieben von spezifischen normativen und kulturellen Impulsen, die sich
im 18. Jahrhundert verdichten und eine Kulturwirklichkeit erlangen, die sich als
‘Versprechen der Aufklärung’ beschreiben lässt. In ihrem Zentrum steht, gleichsam als
politisches, ethisches und kulturelles ‘Projekt der Moderne’ die Idee der (individuellen und
kollektiven) Autonomie des Menschen, die sich auch und gerade aus dem Anspruch auf
Selbstbestimmung in Fragen der religiösen Überzeugung und Lebensführung entwickelt.”
111
Tierney, Liberty and Law, Washington, DC, Catholic University of America Press, 2014, main
matter, subtitle.
Marsilius of Padua.112 Similarly, the political scholar Christopher Wolfe – in

his book Natural Law Liberalism – emphasises that natural law is not neces-
sarily anti-freedom: “Natural law . . . is not hostile to liberty. Even in its
classical form, there has always been a certain recognition of the importance
of free will in choosing the human good, the wide latitude for human choice
in pursuing the good in many ways, and the limits of law in directing the
pursuit of the good.”113 Consequently, the proposition that Christian natural
law is fundamentally opposed to freedom is not valid for premodern times, nor
is it true for all natural law approaches today.
Nevertheless, with regard to freedom in the modern church, autonomy and
theonomy are often considered as antagonists, as are freedom and truth. This
can be seen in the applicable law of the church in norms like canon 218 CIC/
1983, which speaks of the “just freedom” of theological researchers “while
observing the submission due to the magisterium of the church”. In a similar
way, autonomy is restricted when the lay Christian faithful are bound to use
their civil freedom rights by showing due deference to “the doctrine set forth
by the magisterium of the Church” (canon 227 CIC/1983). Because individual
freedom is suspected of encouraging relativism, neo-Scholastic thought con-
nects freedom with obedience to the church’s teaching authority to make sure
that the truth is not missed. This move reveals a strong link between truth and
authority.
It is here that we see the second consequence of the neo-Scholastic ten-
dency to dichotomise the universal and the contingent, as approaches which
construct identity by binarisation depend on the authorities that secure the
dichotomisation: “Binarisations in the process of forming identity go along
with hierarchisation”,114 writes Judith Gruber. This is observable in neo-
Scholastic natural law doctrine, which makes constant reference to authority.
To form a homogeneous system of natural law within the church, it is
necessary for the church hierarchy to act with authority. Gerhard Luf explains
this with regard to the neo-Scholastic “transpersonalist objective term of
truth”,115 the objective meaning of which is secured by exclusively entrusting
the church’s authorities with the perception of truth and by depriving the
nonhierarchical part of the people of God from partaking in the perceptive
processes. The finding of natural law happens in a top-down process, in which
112
See ibid., 69–91, 95–121, 122–141.
113
Wolfe, Natural Law Liberalism, 184.
114
Gruber, Theologie, 150; original: “Binarisierungen im Prozess der Identitätsformierung gehen
einher mit Hierarchisierungen.”
115
Luf, ‘Rechtsphilosophische Grundlagen’, 45; original: “transpersonalistisch-objektivistischen
Wahrheitsbegriff”.
the norms perceived as truthful are “transformed into the concrete shape of
laws by the appointed legal authorities in a deductive way”.116
Because approaches of natural law first require the normative content of
nature to be determined, the ecclesiastical authorities enjoy broad (and some
would say discretionary) leeway in the making of natural law. Consequently,
natural lawmaking in the church has developed a voluntarist flavour, espe-
cially in neo-Scholastic legal theory. Aquinas’ definition of law – speaking of
the lawgiver’s ordinances as ordinatio rationis – after the Council of Trent was
mainly replaced by Suárez’s definition relating to the legislator’s will alone by
defining laws as ordinationes voluntatis.117 This problem also afflicted natural
law: it received a voluntarist structure by “emphasising [it] as a source of
obligation and force created by divine authority and preserved by the eccle-
siastical authority”,118 as Alexander Hollerbach explains. The neo-Scholastic
approach to law in general – and to natural law specifically – obtained
a legalistic positivistic drift. Accordingly, the ecclesiastical norm giver mostly
abstained from giving reasons for normative decisions: “The why? of the laws
was no longer investigated, and critical inquiry into the values behind the laws
virtually ceased”,119 as Ladislas Orsy notes.
Neo-Scholastic natural law, in this sense, does not contrast with the
approach of positivism, but is interwoven with it. Gerhard Luf explains:
“In this methodical perspective, a natural law frame and legal positivism are
not oppositions, but add to each other in a complementary way.”120
If a positivistic theory recognising the authority of the rulers as a natural reason
of law might be understood as an approach of “natural law” (and was under-
stood as such in legal history, before the term legal positivism was
established),121 this means for canon law that the whole body of ecclesiastical
law takes on a ‘natural’ quality. As a derivation of the natural (or, in the terms of
the Encyclical Immortale Dei, supernatural) governance of the church by its
116
Ibid.; original: “durch die berufenen rechtlichen Autoritäten auf deduktivem Wege in
konkrete Gesetzesform umgesetzt”.
117
See Suárez, Tractatus de legibus ac Deo legislatore in decem libros distributus, book 1, chapter
12, no. 1, in vol. 1, Naples, Ex Typis Fibrenianis, 1872, 50; cf. Orsy, Theology and Canon Law,
24–25, 97–98, fn. 15; Böckenförde, Geschichte, 381–395.
118
Hollerbach, ‘Das christliche Naturrecht’, 28–29; original: “Betonung . . . als einer durch
göttliche Autorität geschaffenen und durch kirchliche Autorität gehüteten Quelle von
Pflicht und Zwang.”
119
Orsy, Theology and Canon Law, 24–25.
120
Luf, ‘Rechtsphilosophische Grundlagen’, 46; original: “Naturrechtliches Rahmendenken
und Gesetzespositivismus bilden in dieser methodischen Perspektive keinen Gegensatz,
sondern ergänzen einander auf komplementäre Weise.”
121
See Fechner, ‘Bedeutung der Gesellschaftswissenschaft’, in Maihofer (ed.), Naturrecht, Bad
Homburg, Hermann Gentner, 1966, 258.
authorities, who exercise the power which Christ has given to the church as
a perfect society, canon law as such might be adequately captured in the
categories of natural law. As a law resulting from the (super)natural govern-
ment of the church, “canon law appears as the natural law of the church”.122
At the same time, as a law emanating from the lawgiver’s will, it has an
obviously positivistic character. So with regard to the neo-Scholastic under-
standing of natural law, it is possible to speak of a ‘natural law positivism’.
Criticism of the Law and Anti-Legalism

The nineteenth century saw criticism levelled at the legalistic positivism of
the post-Tridentine era and the casuistic density of law that it produced.
In the twentieth century, that criticism became even louder, due to the
critical reception of neo-Scholastic natural law positivism. Criticism was
also levelled at the use of neo-Scholastic legal theory as part of the
Kulturkampf with the purpose of restoring the church’s influence in society.
Using the idea that the church was a perfect society for shaping civil society
in spiritual matters, the church sought to subdue society to canon law and to
neo-Scholastic natural law. Yet it was not possible to follow up on this
ambition with any great success, as it (and the societas perfecta conception
as such) was identified as a politically motivated plan to place society’s legal
understanding and the developing secular legal cultures of the states once
again under the power of the church.123 At this point in history, this plan was
not received favourably because the members of society no longer agreed
with this legal understanding of the church. Ernst-Wolfgang Böckenförde
notes that: “The farther historical development proceeded along the route
marked out by the ideas of 1789, the more anachronistic and unreal this
theory became.”124 By linking neo-Scholastic natural law with ecclesiastical
power politics, the church missed the opportunity to reinstate natural law as
122
Dombois, Das Recht der Gnade 1, Witten, Luther-Verlag, 1969, 31; original: “erscheint das
Kirchenrecht als das Naturrecht der Kirche”; see also Rouco Varela, ‘Katholische Reaktion
auf Rudolf Sohm’, in Scheuermann/May (eds), Ius Sacrum, Munich, Ferdinand Schöningh,
1969, 41.
This might also be valid today, albeit with some alterations. In the preface to the applicable
Code of Canon Law, one can read “that canon law flows from the nature of the Church” (Acta
Apostolicae Sedis 75 II [1983], XX; English version: www.vatican.va/archive/ENG1104/__P1
.HTM [accessed 10 December 2016]). An ecclesiological argument is used in lieu of an
argument of a theory of governance, but with a similar consequence: the law of the church
can be considered as the natural order of the church.
123
See Hollerbach, ‘Das christliche Naturrecht’, 29.
124
Böckenförde, ‘German Catholicism’, 300.
a key approach of legal philosophy. The theory of natural law was narrowed
down to a magisterial doctrine of natural law and reduced natural law to
a function of legal politics within the official church.
The politically motivated objections to the church’s misconception of
its new role in society were joined by a theological objection, which
viewed neo-Scholastic legal thinking as problematic for ecclesiological
reasons. Criticism reacted to a theological deficit in neo-Scholastic legal
theory because, as Gerhard Luf explains, the ecclesiological theory of
societas perfecta “for a long time did not attach any or only minor
importance to a specific theological legitimation of ecclesiastical law”.125
The most prominent objection arose from the Protestant legal scholar
Rudolph Sohm. His criticism of ecclesiastical law culminated in his
positing a fundamental antagonism between the church as a spiritual
entity and the law as a worldly mechanism for regulating society, two
institutions that were totally and mutually incompatible: “The essence of
the church is spiritual. The essence of law is worldly. The essence of
ecclesiastical law stands in contradiction to the essence of the church.”126
The criticism underlying Sohm’s approach, namely that ecclesiastical law
is deficient if it is not interpreted in the light of the church’s spiritual
meaning, developed in the twentieth century into an anti-legalism within
the Catholic Church and was opposed to the casuistic density of eccle-
siastical regulations in their tendency to legally regulate the whole eccle-
sial life.127 Prior to the Second Vatican Council, criticism of the church’s
law became increasingly audible, as Ladislas Orsy describes emblemati-
cally: “A new phenomenon arose: canon law was acquiring an increasingly
bad reputation among God’s people.”128
125
Luf, ‘Rechtsphilosophische Grundlagen’, 44; original: “einer speziellen theologischen
Legitimation des kirchlichen Rechts lange Zeit keine oder zumindest nur geringe
Bedeutung zugemessen”; see also Rouco Varela, ‘Katholische Reaktion’, 21; Orsy, Theology
and Canon Law, 24–25.
126
Sohm, Kirchenrecht 1, Berlin, Duncker & Humblot, 1970, 700; original: “Das Wesen der
Kirche ist geistlich. Das Wesen des Rechtes ist weltlich. Das Wesen des Kirchenrechtes steht
mit dem Wesen der Kirche im Widerspruch.”
127
See Müller, Gesetz in der Kirche, Munich, Minerva-Publikation, 1978, 3–4; Sebott,
Fundamentalkanonistik, Frankfurt am Main, Josef Knecht, 1993, 11; Erdö, Theologie des
kanonischen Rechts, Münster, LIT, 1999, 52; Coughlin, Canon Law, Oxford, Oxford
University Press, 2011, 3–4, 65–67; Neudecker, Ius sequitur vitam, Münster, LIT, 2013, 450.
128
Orsy, Theology and Canon Law, 97.
1.3 the recent foundation of canon law

Official texts of the church today rarely speak of the church as a perfect society,129
and if they do, this is mostly considered an ecclesiological mishap.130 The turn
away from the model of the church as a perfect society has been the result of the
ecclesiological reforms initiated by the Second Vatican Council. The church is
now scarcely spoken of in terms of a theory of society, but rather in terms of
a social theory with a theocentric approach: the church is presented as the people
of God. Recent theology refers to the church mainly in metaphors which describe
the community of faith as a communio of believing individuals. Ideas of society
which use institutional theory to create an analogy between the church and the
state have been set aside – at least terminologically.
The Church As a Complex Reality

One of the most influential texts linking the Second Vatican Council’s
ecclesiology with a legal theory can be found in the Dogmatic Constitution
on the Church, Lumen gentium. The section most frequently referred to in
approaches on the foundation of canon law is found in no. 8 of the
Constitution:
Christ, the one Mediator, established and continually sustains here on earth
His holy Church, the community of faith, hope and charity, as an entity with
visible delineation through which He communicated truth and grace to all.
But, the society structured with hierarchical organs and the Mystical Body of
Christ, are not to be considered as two realities, nor are the visible assembly
and the spiritual community, nor the earthly Church and the Church
enriched with heavenly things; rather they form one complex reality which
coalesces from a divine and a human element. For this reason, by no weak
analogy, it is compared to the mystery of the incarnate Word. As the assumed
nature inseparably united to Him serves the divine Word as a living organ of
salvation, so, in a similar way, does the visible social structure of the Church
serve the Spirit of Christ, who vivifies it, in the building up of the body.131
129
One exception can be found in the ninth principle of the ‘Principles Guiding the Revision of
the Code of Canon Law’, in which the right of the Church to punish its members is reasoned
as being a “societatis perfectae proprium”: Communicationes 1 (1969), 85.
130
Critically e.g. Corecco, ‘Aspekte der Rezeption’, in idem, Ordinatio fidei, Paderborn,
Ferdinand Schöningh, 1994, 115; Orsy, ‘Theological Task’, 16.
131
Acta Apostolicae Sedis 57 (1965), 11; English version: www.vatican.va/archive/hist_councils/
ii_vatican_council/documents/vat-ii_const_19641121_lumen-gentium_en.html (accessed
11 December 2016).
The text describes the theological relationship between the heavenly and the
earthly church. It depicts the church in its earthly concretisation as a reality
which corresponds to the heavenly Church of the Spirit. The visible organisa-
tion and the heavenly community form a single reality. This relationship has
to be understood as theologically essential: the earthly church is theologically
relevant only because an ontological link exists between it and the heavenly
church.
Christoph Möllers understands this connection as one valid approach to
solving the problem of reconciling the church’s facticity with its normativity:
A central problem of juridical, theological or aesthetic models of
normativity . . . consists in differentiating between the normative and the
factual and at the same time connecting them, keeping both autonomous and
related to each other. ‘My kingdom is not of this world’ is an inconsistent
statement, as long as the Kingdom of God is supposed to have a practical
meaning in this world. If it were right, literally speaking, the Christian
doctrine would lack any relevance.132
The earthly church is directly linked with the heavenly reality and becomes
one single reality with it. And it is only because of this connection between the
church’s earthly facticity and its heavenly normativity that the acts of the
visible church are normatively relevant.
In any case, in emphasising the intrinsic link between the two realities of
the church, the text of the Dogmatic Constitution avoids claiming an
identity between heaven and earth. Christoph Möllers uses the term hybrid-
ity to highlight this paradoxical tension between identity and difference that
helps to express the problem of joining absolute and contingent matters:
“Only one side – the ‘community’ – may refer directly to God and may be
understood as normative. The other side – the ‘organisation’ – acts under the
conditions of the sinful world to which it belongs, and is bound to the
realities of a church which is to some degree morally degenerate.”133
By claiming unity and difference of the heavenly and earthly church at the
132
Möllers, Möglichkeit, 107; original: “Ein zentrales Problem juridischer, theologischer oder
ästhetischer Normativitätsmodelle besteht . . . darin, Normatives und Faktisches zu
unterscheiden und zugleich zu verbinden, beide selbständig und aufeinander bezogen zu
halten. ‘Mein Reich ist nicht von dieser Welt’ ist so lange eine in sich widersprüchliche
Aussage, wie das Reich Gottes zugleich eine praktische Bedeutung in dieser Welt haben soll.
Wäre sie wörtlich genommen richtig, wäre die christliche Lehre ohne Belang.”
133
Ibid.; original: “Nur die eine Seite – die ‘Gemeinschaft’ – kann sich nahtlos auf Gott berufen
und normativ verstanden werden. Die andere – das ‘Gefüge’ – handelt unter den
Bedingungen der sündigen Welt, der sie zugehört, und bleibt auf das Faktum einer teilweise
moralisch verkommenen Kirche verwiesen.”
same time, an unresolvable tension arises in speaking of ‘the church’:

“The formulation of conciliar theology is determined from the outset to
remove the difference in such a way that its removal does not make it
disappear.”134 Consequently, the church as both a heavenly community
and an earthly organisation is correctly described as differentiated, but not
as separated.
The terminological overlaps created by the hybrid construction of the
church are problematic, though, especially with regard to the theological
and the empirical term church, as the dogmatic theologian Medard Kehl
notes:
Both uses of the term ‘church’ refer to the same ‘material object’ church, but
under a different ‘formal object’ (of faith or fact, respectively). As indeed the
theological term ‘church’ in a sacramental understanding of the church
always includes empirical aspects of the church (see LG 8!), a sharp distinc-
tion between the respective terminological levels is naturally difficult.135
Referring theologically to the heavenly church as a theological entity is for the

most part unambiguously possible. But it is a challenge to speak of the visible
assembly, as the earthly church is not limited to empirical facts but is also
theologically relevant and should therefore be described in theological terms.
Additionally, the empirical side of the earthly church (its historicity and
culturality) affects how it is spoken about theologically. It is difficult to
differentiate between levels of theology and levels of fact without tearing
them apart.
Lumen gentium uses a Christological and pneumatological analogy to
illustrate this problem. The analogy compares the relationship of the earthly
church and the Church of the Spirit with the relationship of the two natures of
Christ. In the same way that Christ is fully human and fully God, the church is
also both an earthly organisation and a heavenly community. As in the
Council of Chalcedon’s Christological confession, both natures of the church
are unconfused and undivided. With the help of the Christological paradigm,
Lumen gentium achieves a double notion of the church in which its
134
Ibid.; original: “Die Formulierung der Konzilstheologie ist von vorneherein darauf angelegt,
die Unterscheidung so aufzuheben, dass sie durch die Aufhebung nicht verschwindet.”
135
Kehl, ‘Verhältnis von Universalkirche und Ortskirchen’, in Walter/Krämer/Augustin (eds),
Kirche in ökumenischer Perspektive, Freiburg im Breisgau, Herder, 2003, 85–86; original:
“Beide Kirchenbegriffe beziehen sich auf dasselbe ‘Materialobjekt’ Kirche, aber jeweils unter
einem anderen ‘Formalobjekt’ (des Glaubens bzw. der Empirie). Da nun aber in einem
sakramentalen Kirchenverständnis der theologische Kirchenbegriff immer auch empirische
Aspekte von Kirche miteinschließt (siehe LG 8!), ist eine saubere Unterscheidung der
jeweiligen Sprachebenen naturgemäß schwierig.”
sociological and theological logics are linked, as the systematic theologian

Hans-Joachim Höhn explains: “Both dimensions, the sociological and the
theological, are united in the church, ‘unconfused’ and ‘undivided’ (see LG
8). Therefore, this ‘chalcedonensical signature’ is the real reason why the
social reality of the church may be interpreted sociologically as well as
theologically.”136
A Theological Foundation of Law

By describing the relationship between the heavenly and the earthly church as
unconfused and undivided, and by showing that the visible assembly is also
a theological matter, the section in no. 8 of the Dogmatic Constitution proves
to be a starting point for a theological foundation of canon law. Yet a closer
look at the text raises certain doubts as the section fails to pay any obvious
attention to the legal structure of the church. The earthly church is qualified
as a visible structure (compago visibilis), as a social fabric (socialis compago),
and as a society structured with hierarchical organs (societas organis hierarchicis
instructa). Thus, while the church’s structure is referred to, it is not clearly
indicated as being a legal structure. Nevertheless, in the legal theory after the
council, the earthly church, presented in Lumen gentium as the hierarchically
organised community of faith, was identified as a church structured by law.137
Only by law could the church become a real earthly entity. Ladislas Orsy notes
(and one may interpret his words as pointing to the analogy of incarnation in
no. 8 of Lumen gentium): “Canon law is a manifestation of the humanity of the
church.”138 In this sense the visible social fabric depicts the church as
a community of faith in a legal structure. Understanding the structure of the
earthly church as a legal one renders the legal structure of the church
a theologically necessary manifestation of the earthly church. As a result of
136
Höhn, ‘Gnade vor Recht?’, Freiburger Zeitschrift für Philosophie und Theologie 33 (1986), 353;
original: “Beide Dimensionen, die soziologische und die theologische, vereint die Kirche in
sich gleichwohl ‘ungetrennt’ und ‘unvermischt’ (vgl. LG 8). Diese ‘chalzedonensische
Signatur’ ist daher der eigentliche Grund, daß die gesellschaftliche Wirklichkeit der Kirche
sowohl einer soziologischen wie einer theologischen Interpretation unterzogen werden
kann.”
137
E.g. Aymans/Mörsdorf, Kanonisches Recht 1, Paderborn, Ferdinand Schöningh, 1991, 9–11;
Erdö, Theologie, 53, 123–125; Rouco Varela, ‘Theologische Grundlegung’, Archiv für katho-
lisches Kirchenrecht 172 (2003), 30; Kistner, Das göttliche Recht I, 15–16; Lüdecke/Bier,
Kirchenrecht, 15; Demel, ‘Kirchliches Gesetzbuch’, in Heinzmann (ed.), Kirche, Freiburg
im Breisgau, Herder, 2015, 188.
On the council’s neglect to reflect the link of the church’s facticity and its legal structure
see Corecco, Theologie des Kirchenrechts, Trier, Paulinus, 1980, 91.
138
this understanding of the council’s text, it is impossible to think of ecclesiology by

excluding the law. Canon law, as Ralf Dreier notes, is the “law which is appro-
priate with regard to the theological term church and which is demanded by it”.139
Because of this, the law of the church is not adequately understood by
applying a sociological logic to explain its foundation. The church is founded
theologically and has to be comprehended as such.140 With regard to its validity
theory, canon law therefore cannot refer only to a functional approach of legal
foundation (which was seen as appropriate in premodern times), but has to
legitimise itself theologically. This requirement has several implications. First,
the law’s material norms have to be related to theological questions. This is
shown in approaches to a foundation of canon law which are based on
a theology of communion and understand the law of the church as being
appropriate only if it is relevant and useful for the community and its
salvation.141
Second, a theological rationality of canon law reveals the necessity of
theologically legitimising power relations. As the ecclesiastical authorities
serve as legislators in the church, they generate and regenerate the law. This
service has to be founded theologically, as theological approaches dealing with
the matters of hierarchy and ecclesiastical office confirm. Hierarchical gov-
ernance in the church may therefore still be interpreted by referring to social
theory, but must also be interpreted theologically. The specific power of
pastors to serve the people of God as hierarchical rulers in leading the
community is mostly legitimised Christologically and interpreted as the capa-
city to represent Christ and to act in the person of Christ the Head (see Second
Vatican Council, Dogmatic Constitution Lumen gentium, no. 28;142 Decree
Presbyterorum ordinis; no. 2143). In canon 1009 §3, this power to act in the
person of Christ the Head is explicitly related to bishops and priests (whereas
deacons are treated differently).144 Here it becomes clear why canon lawyers
139
Dreier, ‘Methodenprobleme’, 362; original: “Recht, welches dem theologischen
Kirchenbegriff angemessen und durch ihn gefordert ist”.
140
E.g. Müller, Gesetz; Krämer, Warum kirchliches Recht?; Orsy, Theology and Canon Law;
Erdö, Theologie, 39–81; Coughlin, Canon Law, 48–49; Neudecker, Ius sequitur vitam,
450–451; Demel, ‘Gesetzbuch’, 189–190.
141
E.g. Orsy, Theology and Canon Law; Corecco, ‘Ekklesiologische Voraussetzungen’, in idem,
Ordinatio fidei, Paderborn, Ferdinand Schöningh, 1994, 85–108; idem, ‘Aspekte’, 109–157;
Gerosa, Canon Law, Münster, LIT, 2002, 5–48.
142
Acta Apostolicae Sedis 57 (1965), 34.
143
144
On this differentiation see Benedict XVI, ‘Motu proprio Omnium in mentem’,
26 October 2009, Acta Apostolicae Sedis 102 (2010), 10. The differentiation opens up discus-
sions, as deacons are part of the church hierarchy and are understood as being capable of
mostly refer to the head metaphor in their theological approaches to the

matter of hierarchy.145 A different approach has been presented recently by
Michael Böhnke, who uses a pneumatological approach to theologically
understand the service of the hierarchy.146
Adding to these implications are theologies of the office which try to find
genuine theological explanations of institutionalised ecclesiastical leadership
(see Second Vatican Council, Decree Christus dominus).147 In consequence,
the complex of power and competence is to be understood not in the political
rationality of a perfect society alone, but has to be justified with regard to its
theological rationale. Selecting members of the faithful to serve as leaders of
the community is interpreted in the context of Jesus’ practice of choosing the
apostles, and considered to be an imitation of Jesus’ acts in a line of apostolic
succession (see Second Vatican Council, Dogmatic Constitution Lumen
gentium, no. 18–28).148 To this are added Christological theories of power
which interpret the figure of Christ the King (Christus rex) as the foundation of
the church’s office of governing (munus regendi), which serves as the theolo-
gical basis of the authoritative powers of the church’s offices (see Lumen
gentium, no. 20)149. One prominent figure in canon law who sought to find
a Christological basis for ecclesiastical power theory is Klaus Mörsdorf.150
Again, an alternative pneumatological approach was recently formulated by
Michael Böhnke.151
holding offices endowed with the power of governance, even though it is not clear how this
relates to their incapacity to act in the person of Christ the Head.
145
E.g. Mörsdorf, ‘Grundlegung’, 40; Pulte, ‘Repraesentatio in persona Christi’, in Haering/
Hirnsperger/Katzinger (eds), In mandatis meditari, Berlin, Duncker & Humblot, 2012,
579–601; Lüdecke/Bier, Kirchenrecht, 21.
146
See Böhnke, Kirche in der Glaubenskrise, Freiburg im Breisgau, Herder, 2013, especially
211–219.
147
Acta Apostolicae Sedis 58 (1966), 673–696.
148
149
150
See Mörsdorf, ‘Zweigliedrigkeit’, 188; idem, ‘Heilige Gewalt’, 203–215; idem, ‘Munus
regendi’, 216–228, all articles in Aymans (ed.), Klaus Mörsdorf, Paderborn, Ferdinand
Schöningh, 1989.
151
See Böhnke, Kirche, especially 238–243.
2
Questions from a Canonist’s Point of View
Even though the ecclesiology of the Second Vatican Council served as the
basis for a decidedly theological foundation of canon law, the “bad
reputation”1 of canon law among the people of God has remained largely
unchanged since the first half of the twentieth century. This is a consequence
of the old and familiar problems of neo-Scholastic legal thought from before
the council, problems still present at least in part in the church today.
In addition, new challenges posed by modernity are exacerbating the poor
reputation of canon law.
The theological shortfall in the foundation of canon law was met in the
twentieth century by adding theological arguments to the more sociologically
orientated theory of the perfect society, yet many problems connected with the
neo-Scholastic ecclesiological model and legal understanding remained unre-
solved. Legal theory still holds to a problematic ahistorical understanding of
law, particularly of natural law, “in which there is especially no room for
implementing the modern dimensions of freedom and history”,2 as Gerhard
Luf states. That this problem remains relevant was recently indicated by the
moral theologian Stephan Goertz, who argues that the magisterium’s ahisto-
rical approach to marriage and sexual ethics was one main reason for the
stagnation of the church’s discourses on these matters, something which could
be observed during the recent Synods on the Family.3 Thus, an ahistorical
universalism still impedes the church from embracing modernity.
Nor has the criticism of discretionism and positivism in law died out.
Indeed, this criticism might be even more relevant today than it was in the
1
2
Luf, ‘Rechtsphilosophische Grundlagen’, 45; original: “in dem speziell für die
Berücksichtigung der neuzeitlichen Dimension von Freiheit und Geschichte kein Platz ist”.
3
See Goertz, ‘Naturrecht und Menschenrecht’, 509.
59
early twentieth century, as positivistic approaches to the law today are con-
fronted with the historical experience that legal positivism failed to oppose the
totalitarian regimes of the past century. The revival of legal positivism in
Western societies after 1945 was, as Lena Foljanty puts it, a “revival without
rehabilitation”.4 In the legal theories of the postwar period, values and prin-
ciples therefore played a major role as the basis for norms. The validity reason
of power, on the contrary, was not well received. This experience has a parallel
in the discourses on the legitimacy of canon law and specifically of natural
law. Many members of the church find it difficult to digest the fact that canon
law, despite the historical events of the twentieth century and their signifi-
cance for legal theory, entrusts only the hierarchy and its discretion with
legislation (see canons 331, 337, 391 CIC/1983). As modernity develops, their
irritation continues to grow rather than diminish.
Besides, the growth of secularisation is confronting canon law with the
problem of compliance to the law, something which afflicts the effectiveness
of canon law and affects its validity too. The modern phenomenon of an
evolving legal pluralism of global law introduces the concept of ‘forum shop-
ping’ to the legal subjects. As a result, the experience of being bound by the law
may be weakened, especially in religious legal orders. This chapter examines
these phenomena, which are challenging the law of the church. I also seek to
identify reasons why many church members question the effectiveness and
validity of canon law.
2.1 the church in a plural society

A fundamental problem confronting canon law in modernity, and one which
lies at the heart of most miscommunications between the leaders of the
church and its members, is the discrepancy between the official ecclesiologi-
cal teaching on the church and its social reality in the societies of the West.
The church can hardly be called a perfect society anymore. But official –
especially legal – documents exist containing relics of an ecclesiological
understanding that refers to the church as a sovereign society with the char-
acteristics of a ‘quasi-state’ which claims its autonomy and sovereignty in
opposition to the civic state.
4
Foljanty, Recht oder Gesetz, 359; original: “Rückkehr ohne Rehabilitation”; see also 19–36;
Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’, Oxford Journal of Legal
Studies 26 (2006), 6; Hollerbach, ‘Das christliche Naturrecht’, 28–29; Dreier, ‘Naturrecht und
Rechtspositivismus’, in Härle/Vogel (eds), Aktuelle Probleme, Freiburg im Breisgau, Herder,
2007, 137–139; Luf, ‘Rechtsphilosophische Grundlagen’, 45–46.
Questions from a Canonist’s Point of View 61
The Relevance of the Church’s Reality

This ‘quasi-state’ approach, which does not seek to conceal its roots in the
theory of the perfect society, can be discovered in the applicable law in
different contexts. It can be found, for example, in the ecclesiastical penal
law. In the ninth principle of the ‘Principles Guiding the Revision of the Code
of Canon Law’, on the foundation of the ecclesiastical penal law, the argu-
ment used to justify the church having a criminal law is that the church could
in no way do without it, as having a penal law is a “societatis perfectae
proprium”,5 an essential feature of a perfect society. In consequence, canon
1311 CIC/1983 notes that: “The Church has the innate and proper right to
coerce offending members of the Christian faithful with penal sanctions.”
The reference to an “innate and proper right” contains two ideas: perfect
society as well as natural law. It emphasises the analogy between church and
state in the typical distinction of societas perfecta, and it accentuates the
natural origin of the ecclesiastical penal law which claims to rely on an innate
right.
Another example of the old ecclesiology can be found in the property law of
the church. Canon 1254 §1 accentuates the church’s “innate right . . . to
acquire, retain, administer and alienate temporal goods independently from
civil power”. The autonomous right of the church to deal with its property is
demarcated against conflicting claims of states. In canon 1260 CIC/1983, this
claim is transformed into a right of the church with regard to the church’s
members: “The Church has an innate right to require from the Christian
faithful those things which are necessary for the purposes proper to it.”
Examining not just this canon, but the whole section on temporal goods in
the Code of Canon Law, the canonist Eugenio Corecco critically remarks that
the entire ecclesiastical property law was not impregnated by the idea of
temporal goods serving the community of faith (and by this, relating itself to
a theology of communion), but rather by the concept of a perfect society
defending its right to own these goods.6 The parallel with the Encyclical
Immortale Dei is obvious, in which, in order to attain perfection, the church
is endowed with the right to possess and maintain “all needful provision for its
maintenance and action” to pursue its purposes “in itself and by itself”.7 In the
property law of the church, this ecclesiology is transformed into an
5
Communicationes 1 (1969), 85.
6
See Corecco, ‘Aspekte’, 115.
7
Acta Sanctae Sedis 18 (1885), 165; English version: w2.vatican.va/content/leoxiii/en/encyclicals/
documents/hf_l-xiii_enc_01111885_immortale-dei.html (accessed 11 January 2016).
entitlement with regard to the material goods necessary for the church to
perform its service.
By presenting itself as a perfect society, the church argues anachronistically,
since it is hard to comprehend the churches of the West today as perfect
societies endowed with all the necessary means of power to govern their
members. This idea of the church is outdated – and was already outdated at
the time it was established, insofar as the description of the church as a perfect
society was in many ways already inoperative in the nineteenth century. It was
introduced when the church was already struggling to deal with its diminish-
ing impact on society and the loss of power inflicted on it by the nation state.
Even when it was coined, societas perfecta was a partly fictitious idea and an
ideological compensation for the church’s decreasing political importance in
comparison to premodern times.
Bearing this in mind, one can see why upholding the church’s claim to be
a perfect society is even harder in the modern age. In Western countries this is
shown by the relationship between church and state, in which the status of the
churches in society is regulated not by the churches themselves, as autonomous
entities in their own right, but by constitutional law and by institutional guaran-
tees of the state’s law. In the German legal order, for example, broad institutional
guarantees ensure that the church and other religions enjoy considerable auton-
omy within society to conduct their operations. The guarantee of religious
education for different denominations and faculties of Catholic theology within
the state universities, and the right to administer corporate chaplaincy within the
state’s institutions are just some examples of institutional guarantees granted by
the state. So the Catholic Church in Germany remains highly influential in
society – not, however, because it is a perfect society in itself.
For ecclesiology and an ecclesiologically orientated legal theory, picturing
the church in a model which fails to depict the factual status of the church in
modern society is a problem – at least if one takes for granted that the reality of
the church is important for ecclesiology. That this failure to acknowledge facts
is indeed problematic may be understood with reference to the model of the
church presented in no. 8 of the Dogmatic Constitution Lumen gentium.8
Here, it becomes clear that the reality of the church not only is of interest for
sociology but also must be reflected upon theologically. In this context, it is
helpful to recall Christoph Möllers’ remark that the earthly church in its
factual significance, and the heavenly church in its normative meaning, are
necessarily related to each other.9 The hybrid understanding of the church
8
9
See Möllers, Möglichkeit, 212.
with regard to its normative significance – as portrayed in Lumen gentium – is

dominated by its heavenly dimension but needs the reality of the earthly
institution to become real and relevant for the life of the church and its
faith. That the church has a meaning and may spread the good news and
divine grace in the world is a result of its earthly concretisation. Its reality is
therefore ecclesiologically important.
Similarly, the systematic theologian Jürgen Werbick, in his recent book on
the methods of theology, argued against ecclesiological approaches which
omit the church’s reality. Resisting these approaches, he emphasised “empiri-
cism’s right to object”.10 Considering the ecclesiological significance of the
church’s reality, this right to object should be recognised as being of genuine
theological value. To see the church as it is therefore devolves not only on the
sociology of religion but also on ecclesiology itself.
Accordingly, depicting the church’s real status in modern societies requires
that we abandon the idea of the perfect society. Today, the most helpful
approaches for understanding the church portray it as part of a religiously
plural landscape and thereby infuse society with religious thought. “What are
the churches today?” the canon lawyer Rik Torfs wonders; “totally separate
societies which understand themselves . . . as an autonomous, cultural and
societal counterforce”, or “part of civil society, even if they exist under the
special protection granted to them by the right to religious freedom?”11
As Torfs sees it, a self-description of the church that holds for the future can
only be based on a conception of the church as one religious community
among many in a pluralist civil society.
Partaking in the Discourses of Society

Torfs’ approach locates the church as an active contributor in civil society. He
refers to the church without conceiving of it analogously with the state, but
nevertheless understands the political significance of the church in its influ-
ence on the discourses of society. Yet it is this very influence that is at stake
whenever the church struggles to maintain its reputation, for instance regard-
ing normative questions suspected of natural law positivism. Just how
10
Werbick, Theologische Methodenlehre, Freiburg im Breisgau, Herder, 2015, 503; original:
“Einspruchsrecht der Empirie”.
11
Torfs, ‘EU-Recht für Kirchenjuristen’, Österreichisches Archiv für Recht und Religion 50
(2003), 42; original: “Was sind die Kirchen heute?”; “völlig gesonderte Gesellschaften, die
sich selbst . . . als eine autonome, kulturelle und gesellschaftliche Gegenkraft betrachten”;
“Teil der civil society, wenn auch unter dem besonderen Schutz, den ihnen die
Religionsfreiheit bietet?”.
problematic it is for the church to participate in public debates by referring to

natural law is illustrated by the declining influence of the official church in
debates in which its teaching authority traditionally relies on natural law
arguments, as in discussions about the legal equality of marriage and homo-
sexual partnerships. The naturalistically reasoned claims have no consensus in
the discussions of pluralistic modernity. This lack of consensus has conse-
quences for the status of the church in the public mind – and for church
authorities as voices in the public debates.
At present, the church hierarchy sometimes maintains its influence as
a voice in society’s deliberations in a paradoxical way, arguing differently
when addressing society as a whole or when addressing only the church’s
members. As a consequence, double discourses develop.12 Niklas Luhmann
mentions this phenomenon in relation to the way the official church behaved
in discourses about equality. People’s equality, their equal value and dignity,
were topics the church would commonly accentuate. However, concerning
the question of equal rights, Luhmann states, the church hierarchy draws
different conclusions from these topics for the legal order of the state and of the
church.13 On one hand, it fights for the equality of everybody in society,
thereby advocating equal rights as the legal consequence of equality – for
instance regarding the legal equality of women and men in the order of the
state. On the other hand, the hierarchy does not apply the same principles to
the church. Inside the church, the magisterium presents an anthropology
based on the assumption that women and men are utterly different by nature.
Consequently, the church concludes, these natural differences between
women and men mean the sexes should be accorded different rights.14
The dissimilar roles of women and men regarding offices and ministries in
the church can be interpreted as a product of this argument.
A similar phenomenon occurs with regard to other aspects of the human
rights discourse in the church – for instance, with regard to religious
freedom.15 Whereas the church is celebrated as an advocate of human rights
in society and fights for the religious freedom of all faith communities, it has
not yet fully embraced the idea of religious freedom within the church itself
(see canons 212 §1, 748 §1, 750, 752, 753 CIC/1983). Academic freedom may
serve as another example (see canon 218 CIC/1983). Whereas the freedom of
science is viewed positively by the official church, academic theologians are
12
See Kaufmann, ‘Ambivalenzen der Moderne’, 109–112.
13
See Luhmann, Funktion der Religion, Frankfurt am Main, Suhrkamp, 1977, 299.
14
See Lüdecke/Bier, Kirchenrecht, 57–72, especially 65–66.
15
See Hahn, ‘Menschenrechte’, in Baumeister/Böhnke/Heimbach-Steins/Wendel (eds),
Menschenrechte, Paderborn, Ferdinand Schöningh, 2018, 79–86.
not fully free to research and publish the results of their work. As already
mentioned, they are obliged to observe the magisterium’s teaching.
These inconsistencies between the official church’s exterior communica-
tions in society and its message to the interior realm of the church nevertheless
cause damage inside the church as well, as the faithful are increasingly
unwilling to accept this dissonance. Many Catholics are reluctant to deal
with the contradictions between the official church’s contributions to the
public discourses and its internal teaching. The dissonance also affects the
church’s reputation in society, where it faces problems of credibility. This
issue has to be accorded due consideration if the church wishes to remain an
influential voice of institutionalised religion in the discourses of civil society.
The previous argument considers the problem from the church’s point of
view: it focusses on the church’s interest in remaining influential in the
dialogues taking place in society. The motivation for this interest is not only
of a political but also of a theological nature, and is a key ecclesiological point.
For the church understands itself as having a mission and is therefore depen-
dent on maintaining its position to teach and preach the gospel. This was
articulated by the fathers of the Second Vatican Council in the Decree on the
Missionary Activity of the Church, Ad gentes: “The pilgrim Church is mis-
sionary by her very nature, since it is from the mission of the Son and the
mission of the Holy Spirit that she draws her origin, in accordance with the
decree of God the Father” (no. 2).16 Sharing this belief is a necessary char-
acteristic of the church, embodying the missionary impulse given to it by its
Christological as well as its pneumatological foundation, which is grounded in
the will of the Father. In spreading the Good News, the church is partaking in
God’s plan for the salvation of humankind: “Missionary activity is nothing else
and nothing less than an epiphany, or a manifesting of God’s decree, and its
fulfilment in the world and in world history, in the course of which God, by
means of mission, manifestly works out the history of salvation” (no. 9).17
Understanding itself as the sacrament of salvation and acting as a symbol
of God’s will for humankind, the church is mission and defines itself
as essentially missionary. Consequently, it is a matter of ecclesiological
self-preservation for the church to sustain its capacity to communicate.
The shrinking impact of the church in political debates is therefore not only
a painful acknowledgement that the church is operating in secular times but
also a question that touches the very core of its essence.
16
Acta Apostolicae Sedis 58 (1966), 948; English version: www.vatican.va/archive/hist_councils/ii_v
atican_council/documents/vat-ii_decree_19651207_ad-gentes_en.html (accessed 16 January 2016).
17
Ibid., 958.
The Church’s Relevance for Society

When I presented this idea in a speech given at the Käte Hamburger Center
‘Law As Culture’, my co-fellow Daniela Bifulco, a legal scholar, asked why
preserving the church’s impact on society’s discourses was of interest not only
for the church but for society as well. That the church has an interest in
remaining involved in public debates is clear. But what exactly would the
public debates lack if the church no longer played a significant part in them?
This is a valid question in the current discourses on the status of religions in
society, and it is often combined with another question, namely what benefit
accrues to the secular state in supporting institutionalised religion.
Not least with regard to recent terrorist events in Europe, the idea has
become prominent again that states’ interests in forming a constructive bond
with religious communities could, first of all, be connected with the idea of
“domestication”.18 This argument understands the need of states to invest
energy in developing a cooperative relationship with religions as one way to
protect citizens by reducing religious violence; parts of the debate rely on
Jan Assmann’s thesis on violent tendencies in monotheistic religiosity.19
The theory of domestication suggests that the interaction between the state
and the religious communities reduces the potential of monotheistic religios-
ity for fundamentalism and increases pluralistic tolerance. In the 1990s, the
political scholar Bassam Tibi introduced the term Euro-Islam to the European
debate on religion in modern societies, thus expressing a vision of a secular
version of Islam embedded in European societies.20
However, the idea that the state needs to embrace institutionalised religion
and collaborate with it in order to protect society still fails to answer the
question whether there is a genuine interest on the part of the state in fostering
strong religious voices in the dialogues of civil society. The approach that has
been extensively discussed and referred to in scholarly as well as in political
texts in Germany is the ‘Böckenförde Dictum’, a theorem developed by the
former constitutional court judge Ernst-Wolfgang Böckenförde. Böckenförde
acknowledges the use of the secular state in protecting and promoting reli-
gious (and nonreligious) activities that serve society’s moral substance through
18
See Hilgendorf, ‘Zähmung der Religionen durch Recht’, in idem (ed.), Wissenschaft, Religion
und Recht, Berlin, Logos, 2006, 359–383; Schieder, ‘Zivilisierung der Religionen’, Aus Politik
und Zeitgeschichte 2007, issue 6, 17–24; Walter, ‘Zähmung der Religion’, FAZ.net,
1 December 2010, www.faz.net/aktuell/politik/staat-und-recht/gastbeitrag-die-zaehmung-der-
religion-11078655.html (accessed 21 September 2016); Nida-Rümelin, Humanistische
Reflexionen, Berlin, Suhrkamp, 2016, 469.
19
See Assmann, Exodus, Munich, C. H. Beck, 2015.
20
See Tibi, Euro-Islam, Darmstadt, Wissenschaftliche Buchgesellschaft, 2009.
active agents of civil society. In Böckenförde’s concept, a shared moral foun-

dation is a precondition for the liberal state, because it substantiates the idea of
freedom fundamental to the state: “The liberal, secularized state draws its life
from preconditions it cannot itself guarantee . . . As a liberal state it can only
survive if the freedom it grants to its citizens is regulated from within, out of the
moral substance of the individual and the homogeneity of society.”21
The conditions of freedom on which the liberal state relies cannot be gener-
ated by the state itself. Any state that tried to use authority or force to produce
a sense of morality as a prerequisite for its freedom would be contradicting
freedom itself and would become a totalitarian state. Concerning questions of
religion and weltanschauung, a liberal state therefore has to remain neutral.
Consequently, in Böckenförde’s perception, the state is permanently depen-
dent on the value production of religious as well as nonreligious moral agents,
who contribute to the state’s value foundation.
For this reason, Böckenfördians would answer affirmatively the question
whether the secular state has an interest in integrating religious perspec-
tives into public discourse. They are opposed, though, by thinkers who
doubt that the moral foundation of society needs religious impulses.
The political scholar Klaus von Beyme notes in his recent book on the
relationship between politics and religion in Germany: “The civic con-
sensus is based more on common interests, opportunities for cooperation
and communal historical learning than on the fading religious consensus
of the past.”22
This raises an important issue, indeed, as the religious consensus of the
past can hardly be understood as contributing to the moral substance of
modern society. This integrative function is achieved only by recent reli-
giosity contributing to society’s debates. Civil society therefore profits from
religions only if they are vivid agents of the current discourses. According
to this view, a church that becomes silent in the public sphere not only
causes an ecclesiological problem, as it weakens its missionary dynamic,
but also generates a problem for society, as it reduces its impact on public
debates and becomes less capable of contributing to society’s moral
foundation.
21
Böckenförde, ‘The Rise of the State As a Process of Secularization’, in idem, Religion, Law,
and Democracy, Oxford, Oxford University Press (forthcoming), chapter 1.
22
Beyme, Religionsgemeinschaften, Wiesbaden, Springer, 2015, 95; original: “Der bürgerliche
Grundkonsens beruht auf gemeinsamen Interessen, Kooperationschancen und gemeinsamen
historischen Lernprozessen mehr als auf dem zerfallenen religiösen Konsens der
Vergangenheit.”
2.2 canon law positivism

One matter of canon law foundation which has contributed to the “bad
reputation”23 of canon law for more than a century exists in the legalistic
natural law positivism and discretionism established by neo-Scholastic
thought.24 That this legalism still exists despite sustained criticism in the
nineteenth and twentieth centuries is explained by the impossibility of solving
the problem to which neo-Scholastic legalism was and is reacting: as already
noted in the introduction, the challenges connected with natural law in the
church are not so much doubts about the ontological dimension of a natural
normativity, but rather epistemological questions about how to perceive the
norms of nature and methodological uncertainties about how to transform
a natural normativity into applicable norms. Whereas it is widely accepted in
the church that a normativity of nature exists, no final answer has been
provided to date regarding how it might be recognised and how it might be
given a legal structure.
The Authority of the Magisterium

If the plural members of the church were entrusted with perceiving the norms
of nature, there would then be what Hans Kelsen referred to as the funda-
mental dilemma of natural law, namely the development of “several very
different natural laws conflicting with each other”.25 They could not provide
the church with a homogeneous ecclesiastical law. Thus, if nature is to serve as
a validity reason for a homogeneous law, the epistemological problem of
perceiving the normative meaning of nature has to be answered differently,
in order to ensure a degree of legal homogeneity.
Before trying to identify how to achieve this, one must first answer the
question whether the church requires a homogeneous normativity at all. This
is answered in the affirmative by ecclesiology, as can be derived from the
model of the church presented in no. 8 of the Dogmatic Constitution Lumen
gentium. The theory of unity set out there is elucidated by Christoph Möllers:
If the church consists of a spiritual and a worldly side and if the spiritual side
carries the normative burden, this could have consequences for the organisa-
tion of the church. This is the case because the spiritual side of the church
23
24
See Schockenhoff, Natural Law, 28–30; Coughlin, Canon Law, 5.
25
Kelsen, Pure Theory of Law, 220.
can only be understood as a unity. Does this not imply that the church is
constructed as a unity and should be organised centralistically?26
The idea that the church is a unity within which one must differentiate
between an earthly and a heavenly reality – while regarding neither as
a separate entity – illustrates why the church as a community of faith and
a legal community not only considers the unity of faith to be a necessary
feature of the communion, but also sees the unity of the law, in which the
unity of faith finds its legal complement, as ecclesiologically essential. As the
church in its heavenly reality forms a unity, it makes sense to understand the
earthly church as a unity as well, and to regard its legal structure, in which the
church becomes real, as necessarily having a uniform character also. “If one
assumes that a uniform concept of the church requires a homogeneous
organisational form”, Möllers explains, it would be fair to say that “normative
consequences for its [the church’s] real organisation can be derived”27 from
this proposition. It follows, therefore, that the only organisational models
appropriate for the church are those that can secure its unity.
The church answers this need with its hierarchical structure. It organises
itself as a hierarchically structured society which endows its pastors with
the necessary power of governance. According to the Catholic faith, the
hierarchical order of the church is one of its essential and supertemporal
characteristics (see Lumen gentium, nos 18–29),28 as it serves the unity of the
church and its teaching.
One service by which the hierarchy contributes to the unity of the church’s
teaching is the provision of a homogeneous doctrine in central matters of faith
and morals. To ensure this homogeneity, the church’s authorities act as
teaching authorities (see canons 749–754 CIC/1983). The doctrine that the
magisterium defines with regard to faith or morals then has to be accepted by
the faithful as the valid interpretation of revelation and as the right perception
of the natural moral order. Commanding the faithful to accept the magister-
ium’s teaching is justified by the naturality of the church’s hierarchical
government and, hence, by a formal argument of natural law which has
26
Möllers, Möglichkeit, 213; original: “Wenn die Kirche aus einer spirituellen und einer
weltlichen Seite besteht und wenn die spirituelle Seite zugleich die normative Last trägt,
dann könnte dies Konsequenzen für die Organisation der Kirche haben. Denn die spirituelle
Seite der Kirche lässt sich nur als Einheit verstehen. Legt dies nicht nahe, dass die Kirche als
Einheit aufgebaut und zentralistisch organisiert werden sollte?”
27
Ibid.; original: “[W]enn unterstellt wird, dass der einheitliche Begriff der Kirche einer
einheitlichen organisatorischen Verwirklichung bedarf”; “normative Folgen für die reale
Organisation hergeleitet werden können”.
28
already been addressed in Chapter 1.2. Accepting the hierarchy’s rule as the
natural government of the church, the faithful are expected to react to the
magisterium’s teaching with faith (see canon 750 §1 CIC/1983), by firmly
embracing and retaining the teaching (see canon 750 §2 CIC/1983), or by
a “religious submission of the intellect and will” (canons 752, 753 CIC/1983) to
the teaching, depending on the quality of the matter taught by the
magisterium.
A Premodern View of Perception

It is especially this link between authority and obedience that has attracted
increased criticism in modernity. The idea of solving the epistemological
problem of divine law by referring to the hierarchy alone seems less convin-
cing today than it did in the past. It is particularly problematic that the
magisterium and its insights must be accorded epistemic primacy for this
approach to be epistemologically plausible. The sociologist Hartmut Rosa
provides an explanation for this problem by comparing modern and premo-
dern theories of knowledge:
The knowledge order of modernity is not based . . . on static, but on dynamic
foundations: All dogmata may be revised in principle; the aim to disprove
becomes the engine of scientific development. In comparison to the premo-
dern sage or priest, the modern scientist does not administer or safeguard or
‘own’ certain knowledge or incontestable sources.29
In premodern times, knowledge was understood as a static body of acknowl-

edged facts which were embodied by the sage or the priest, who safeguarded
the truth and protected it from corruption. In contrast, modernity came to
understand knowledge as more of a fluid resource which can be questioned,
revised, and changed, and which has to be altered and improved for it to
remain truthful. Rosa pictures the scientist as someone embodying a modern
approach to knowledge, who in her or his search for truth is willing to forgo old
opinions and beliefs. This type of epistemology is less about what is perceived –
and what must be protected against false perceptions – and more about the
processes of perception which allow for the revision and redevelopment of
knowledge.
29
Rosa, ‘Historischer Fortschritt’, 127; original: “Die Wissensordnung der Moderne beruht . . .
nicht auf statischen, sondern auf dynamischen Fundamenten: Alle Lehrsätze sind prinzipiell
revidierbar, das Falsifikationsstreben wird zum Motor wissenschaftlicher Entwicklung. Der
moderne Wissenschaftler verwaltet und sichert oder ‘besitzt’ im Gegenteil zum vormodernen
Weisen oder Priester kein sicheres Wissen und keine unantastbare Quelle.”
Rosa’s observations are helpful for understanding the epistemological pro-

blem with divine law in the church and comprehending why the solution that
the official church presents conflicts with modern epistemological
approaches. Based on the idea of an epistemic primacy of the hierarchy, the
ecclesiastical model of perceiving norms reveals a conception of knowledge
that seeks to derive secure knowledge from divine sources. By doing so, it relies
on a premodern order of knowledge which seeks to immunise itself against the
enduring questions of modern science. Modern thought and the theory of
knowledge, on the contrary – in considering the necessity of a permanent
revision and reorganisation of knowledge – cannot relate to this idea of
hoarding knowledge, not even in matters of moral or legal normativity.
The idea of the prevailing truth of certain regulations is fundamentally
doubted, as Rosa explains:
The legal order of modernity, just as the order of knowledge and the political
order, is not based on the idea of fixed substantial foundations, but on the
institution of legitimate dynamic legislation: It is not about finding, enforcing
or safeguarding the ‘eternal’ or traditional law; the highest sovereignty is
rather attributed to the legislation as the organ of a permanent (re-)develop-
ment of the law.30
Normative Perception or Decision?

Due to this shift in understanding knowledge, many faithful distrust as merely
discretionary the ecclesiastical approach to truth that relies on a prioritised
knowledge of the hierarchy. Many members of the church believe the autho-
rities’ perceptions to be – for the most part – judgements, not based on any
deeper insight into the matter of things. This assumption also applies to the
hierarchy’s teaching on natural law, the content of which many believers view
critically. Because the ecclesiastical hierarchy – endowed with norm-giving
powers in matters of natural law – is likewise faced with the epistemological
problems of perceiving the divine norms, many modern Christians reject the
presumption that the hierarchy is more informed in natural law questions than
other members of the church. The subjectivity of the hierarchs’ perception,
like all human judgement, cannot transcend the individual perspective of the
30
Ibid., 128; original: “Die Rechtsordnung der Moderne basiert ebenso wenig wie die
Wissensordnung und die politische Ordnung auf der Idee fester substanzieller
Fundamente, sondern vielmehr auf der Institution legitimierter dynamischer
Gesetzgebung: Es geht in ihr nicht darum ‘ewiges’ oder tradiertes Recht festzustellen,
durchzusetzen oder zu bewahren; die höchste Souveränität liegt vielmehr in der Legislative
als dem Organ permanenter (Neu-)Schaffung von Recht.”
person doing the perceiving. For this reason, the hierarchy’s perception is
assumed to be a deciding, and its findings regarded as judgements. This view
even supports the idea that the term perception is used only to emphasise the
doctrine preferred by the official church, while it is impossible to prove that
this preference is more truthful than other choices. Some believers might even
presume that the term perception is used intentionally to mask voluntary
discretion: “‘Natural law positivism’ is perhaps the politest criticism of such
procedures, which seek to render as many of these dubious distinctions – such
as the ‘essential differences’ between man and woman – sacrosanct because
they are essentially grounded in the lex naturalis”,31 observes Jürgen Werbick.
But is it right to suspect the official church of voluntary discretion in its
perception of natural law? The natural law theorist David Novak addresses
a similar question, noting that only a fine line divides the validity sources of
nature and power. Only by taking for granted that perceiving natural norms is
directed at and from a universal and supertemporal reality itself, can the idea be
justified that the perception of natural norms is indeed an act of perception and
not of discretion: “Only that belief, functioning as a regulative principle, saves
this type of natural law thinking from becoming, in effect, an elaborate and
unconvincing rationalization for a body of positive law (human or revealed) that
is better presented authoritatively rather than by argument.”32 Only if it is
assumed that the act of perception is directed by a prepositive reality is it
plausible to think that the grasping of natural law is an act of perceiving and
not of positivistic discretion, embodying the will of the norm giver only.
This assumption – that the process of recognising the naturally just is directed
by the naturally just itself – is also part of Christian thought. Present in the natural
law doctrine of the church is the idea “that persons and human communities are
capable, in the light of reason, of discerning the fundamental orientations of
moral action in conformity with the very nature of the human subject and of
expressing these orientations in a normative fashion in the form of precepts or
commandments”.33 In the same way that Novak understands natural law as
a universal horizon to which human perception is directed from a certain
historical and cultural context, the International Theological Commission
emphasises the character of natural law as a horizon of human legal perception:
“The norm of natural justice anchors human law in the natural law. It is the
31
Werbick, Methodenlehre, 482; original: “‘Naturrechtspositivismus’ ist noch die vornehmste
Kritik an solchen Verfahren, die möglichst viele angegriffene Wertungen – so etwa auch
‘Wesensunterschiede’ zwischen Mann und Frau – als in der lex naturalis unabdingbar
vorgegeben sakrosankt stellen wollen.”
32
Novak, Natural Law in Judaism, 190.
33
horizon from which the human legislator must take his bearings when he
issues rules in his mission to serve the common good.” 34 The alignment of
reason by the object of its perception legitimises the idea that perceiving
natural law is not fundamentally discretionary (even though it cannot be
ruled out that discretionary elements might play a role). Against this back-
ground one might argue that the church’s belief in humankind’s capacity to
perceive the law of nature is not implausible (although this does not imply
that humans use this capacity successfully, or that they are immune to
misinterpretations and misunderstandings).
Yet as the capacity to perceive the norms of nature is attributed to all human
beings by virtue of their reason, which is directed by the object of its percep-
tion itself, it seems reasonable to ask, again, why it is plausible to attribute to
the church’s magisterium a superiority in perceiving natural norms. That the
judgements made by the teaching authority are superior to the findings of
other church members and, therefore, must be followed, is hard to compre-
hend when viewed through a theory of reason.
Absolutism and Centralism

Today’s church members, especially in the Western churches, struggle to
accept the hierarchy as a superior instance of perception in matters of the
naturally just. Indeed, this problem is exacerbated by the specific structure of
recent church governance. The understanding of governance and leadership
presented by large parts of the hierarchy mostly corresponds with the eccle-
siology of the perfect society from before the Second Vatican Council.
It reflects, as Norbert Lüdecke and Georg Bier describe it, the absolutist
conception of hierarchical leadership constructed around governance models
from early modernity: “The law of the church is phenomenologically and
structurally understood in analogy to the law of the state, although not of the
contemporary democratic constitutional state, but of the modern absolutist
authoritarian state.”35 This model culminates in a monarch at the top of the
church who is bound by morals only and acts autonomously without being
bound or restricted by the law or the will of a third party.
So the Catholic Church secures its unity by relying on centralistic governance.
It exercises authority through official leaders, who act as symbols of the church’s
34
Ibid., no. 89.
35
Lüdecke/Bier, Kirchenrecht, 26; original: “Das kirchliche Recht wird phänomenologisch und
strukturell analog zum Recht im Staat verstanden, gleichwohl nicht dem des modernen
demokratischen Rechtsstaates, sondern dem des neuzeitlichen absolutistischen
Obrigkeitsstaates.”
unity and as warrants of a homogeneous ecclesiastical organisation and a uniform

law. In the local churches this service to unity is rendered by the diocesan
bishops. The office of the pope provides the Catholic Church with a prior
instance in teaching and leadership, which serves the doctrinal as well as
organisational need for unity in the global church. In consequence, the legal
frame of papal authority parallels that of an absolutist monarch. Canon
331 CIC/1983 describes the pope as possessing “supreme, full, immediate, and
universal ordinary power in the Church, which he is always able to exercise
freely”. This concept of power is mostly free of any restrictions, a freedom that
appears also in ecclesiastical procedural law in canon 1404 CIC/1983, which
declares that papal action is free from oversight by the courts. In particular, the
freedom to exercise papal power correlates with an absolutist theory of govern-
ance, although some scholarly debates persist about the extent to which this is
true. Is the pope totally unrestricted in exercising power? He is restrained,
undoubtedly, by the norms of divine law. In any event, concerning human
law, Norbert Lüdecke and Georg Bier argue that the pope is not bound by the
ties of human law, not even by the law that he himself legislates: “The pope is
dominus canonum, master of the laws. In every case in which he regards it as
legitimate, he can override the laws. Every legal tie or restriction regarding the if
and how of papal acting is excluded.”36
Hubert Socha, however, disagrees.37 Papal authority does not include acts
of an arbitrary nature. Papal authority in the field of jurisdiction, for example,
is restricted by the papal commitment to observe ecclesiastical procedural law.
The pope, admittedly, could abrogate the law which he or one of his pre-
decessors had promulgated and then reformulate it. But he is not free to act
against the law posed by himself or a predecessor while the law is in effect.
Again, Lüdecke and Bier object to this approach. They agree that the pope
is not in fact free to act voluntarily in pure self-interest, as papal acts are
carried out by the office of the pope and not by a self-interested individual
within the office. The pope, thus, is “bound by the inner duty of his office,
revelation and the church. He may only exercise his power in a way that is
required by his office.”38 At the same time, it should be noted that: “What is
36
Ibid., 118; original: “Der Papst ist dominus canonum, Herr des Gesetzes. Er kann sich in jedem
Fall, in dem er dies für gerechtfertigt hält, über Gesetze hinwegsetzen. Jede rechtliche
Bindung oder Einschränkung im Ob und im Wie päpstlichen Handelns ist ausgeschlossen.”
37
See Socha, ‘canon 135’, in Lüdicke (ed.), Münsterischer Kommentar (suppl. sheets 15, July
1991), 5 no. 13.
38
Lüdecke/Bier, Kirchenrecht, 118; original: “dem inneren Anspruch seines Amtes, der
Offenbarung und der Kirche verpflichtet. Er darf seine Gewalt nur so ausüben, wie es von
seinem Amt her gefordert ist.”
required by the papal office is decided by the pope himself in his responsi-
bility before God.”39 This argument also refers to the aforementioned ques-
tion of how the divine law limits papal authority. As God’s will is hidden, and
it is unclear how it is to be transformed into applicable norms, the pope – as
the highest authority of the church and the leading interpreter of God’s will –
necessarily enjoys considerable leeway in deciding if and how divine law
restricts him in a certain matter.
I consider it unnecessary to explain in greater detail at this point that
this leeway is a matter of debate about discretionary decision-making.
Nonetheless, I do have to mention one datum that exacerbates the problem
of absolutist governance in the church, namely that the model of monarchic
leadership is enjoying ever less support among the church’s members.
The answer provided by recent ecclesiastical theory of governance to the
church’s need for unity – which is to entrust a quasi-monarchically constituted
and centralistically organised hierarchy with all relevant decisions – is one
approach to safeguarding the unity of the church, but not necessarily the only
one. While hybrid terms like church, as Christoph Möllers notes, offer the
potential “to realise the commingled relationship between facts and norms in
normative practices”,40 this still does not definitely clarify which organisational
concretisations have to be derived from a normative understanding of the church:
Descriptive and normative matters are intermingled throughout, because it
cannot be discounted that certain spiritual content can only be expressed by
a certain practice . . . There is a consent that the normative and the empirical
side have to be distinguished from one another, but it remains . . . a bone of
contention whether . . . the spiritual term is of any consequence for the
concrete constitution of the church. It is clear that the spiritual church is
realised in the social organisation of the Catholic Church, yet it is unclear
when and how.41
Möllers’ considerations on a theory of organisation are intersected by an

ecclesiological question. It was already clear with regard to Medard Kehl’s
39
Ibid.; original: “Was vom Amt des Papstes her gefordert ist, entscheidet der Papst in
Verantwortung vor Gott.”
40
Möllers, Möglichkeit, 214; original: “das verschlungene Verhältnis zwischen Fakten und
Normen in normativen Praktiken ausdrücklich [zu] machen”.
41
Ibid.; original: “Deskriptives und Normatives sind hier durchweg verschlungen, weil nicht
ausgeschlossen werden kann, dass bestimmte spirituelle Gehalte nur mittels einer bestimmten
Praxis zum Ausdruck gebracht werden können . . . Während man sich einig ist, dass die
normative und die empirische Seite zu unterscheiden sind, bleibt . . . umstritten, ob . . . aus
einem spirituellen Begriff etwas für die konkrete Kirchenverfassung folgt. Dass sich die
spirituelle Kirche in der sozialen Organisation der katholischen Kirche verwirklicht, ist klar,
unklar aber, wann und wie.”
clarifications of a necessary yet difficult differentiation between the theologi-

cal and the empirical term church that the ecclesiology presented in no. 8 of
the Dogmatic Constitution Lumen gentium makes it difficult with regard to
the earthly church to distinguish between theology and empirical facts, as the
factual church itself has a theological meaning. This problem parallels the
relationship between the universal church and local churches, as Kehl points
out: “Both are ecclesial realities which in themselves and in their relationship
with each other can be looked at and evaluated theologically as well as
empirically.”42 The terms universal church and particular church are primarily
theological expressions. In a theological perspective, Lumen gentium
describes the particular churches as genuine embodiments of the Church of
Christ (see no. 26),43 shaped in the likeness of the universal heavenly church.
They are entities in which and out of which the Church of Christ is formed
(see no. 23).44 The interpretation of this section in the light of a theology of
communion is summed up by Kehl as follows:
The one Catholic Church only realises itself within the particular churches;
in them it finds its concrete form of existence . . . On the other hand the
universal church does not dissolve into the particular churches as such; it
consists of the totality of the particular churches joined as a community of
faith and a community of the Eucharist. But because of its ‘existing-in-them’,
it cannot be understood theologically as the purely retroactive organisational
association of the plurality of the particular churches (as a sheer ‘sum’ or
a sheer ‘result’), but is really identical with its universal communion of faith
and love . . .: ‘One Church in and out of many churches’. Only in this mutual
relatedness (‘equiprimordiality’) are both entities (the universal church and
the particular churches) to be understood as ‘church’ in a theological sense
(see LG 26).45
42
Kehl, ‘Verhältnis’, 86; original: “Denn beides sind ekklesiale Realitäten, die in sich und in
ihrem Verhältnis zueinander sowohl theologisch als auch empirisch betrachtet und gewichtet
werden können.”
43
44
Ibid., 27.
45
Kehl, ‘Verhältnis’, 84; original: “Die eine katholische Kirche realisiert sich nur in den
einzelnen Kirchen; in ihnen hat sie ihre konkrete Existenzform . . . Anderseits geht die
Universalkirche aber auch nicht in den jeweiligen Einzelkirchen als solchen auf; sie besteht
zwar aus der Gesamtheit der in Glaubens- und Eucharistiegemeinschaft miteinander verbun-
denen Einzelkirchen. Aber wegen des ‘in-ihnen-Existierens’ kann sie der Vielzahl der
Einzelkirchen theologisch auch nicht bloß als deren nachträglicher, organisatorisch sinnvol-
ler Zusammenschluss (also als bloße ‘Summe’ oder bloßes ‘Ergebnis’) nachgeordnet werden,
sondern ist mit ihrer universalen Communio im Glauben und in der Liebe . . . real identisch:
‘Eine Kirche in und aus vielen Kirchen’. Beide Größen (Universal- und Einzelkirchen) sind
darum auch nur in dieser wechselseitigen Verbundenheit (‘Gleichursprünglichkeit’) im
theologischen Sinn als ‘Kirche’ zu verstehen (vgl. LG 26).”
On the empirical level, the relationship is even more complicated.

The theological entity of the particular church finds a real equivalent in the
local churches, especially in the territorial and personal dioceses (see canons
368, 372 CIC/1983) with a bishop at their head exercising authority over part of
the people of God. Identifying a diocese as a concrete empirical entity and as
a particular church in which the Church of Christ “is present and operative”
(canon 369 CIC/1983) makes it an entity where the empirical and the theolo-
gical meanings of the term church coincide. The factual local churches are
particular churches in a theological sense, participating in the universal idea
of the Church of Christ. In this sense, the term local church has a double
perspective: it refers both to theology and to empirical facts.
But how is the universal church realised? Two misunderstandings can be
found in recent debates. First, the theological term universal church is identi-
fied with the empirical global church, as Peter Knauer criticises: “in history
and also in the recent theological discussions, the universal church and the
global church are usually confused with each other. This confusion is pro-
voked by the equally global status of the universal church.”46 Accordingly, as
Kurt Koch points out, the “legitimate autonomy of the local churches is
overemphasised in such a way that a kind of local church federalism comes
into effect. The universal church, then, is only – if at all – perceived as
a retroactive sum or confederation of particular churches” or is understood
“as a retroactive association of local churches subsisting in themselves in the
sense of an umbrella organisation”.47
Second, the universal church is often misunderstood as a synonym for the
Roman papal church, as Koch explains:
This concerns the phenomenon that we tend to refer to as the centralism of
the global church . . . It means that the great rediscovery of the Second
Vatican Council is in danger of being forgotten again, namely that the
universal church is not a ‘super church’ whose particular churches are
46
Knauer, ‘Universalkirche, Einzelkirchen und Gesamtkirche’, http://peter-knauer.de/15.html
(accessed 10 March 2016); original: “in der Geschichte und auch in der gegenwärtigen
theologischen Diskussion werden gewöhnlich Universalkirche und Gesamtkirche miteinan-
der verwechselt. Die Verwechslung liegt nahe, weil auch die Gesamtkirche weltweit ist.”
47
Koch, ‘Gibt es die Universalkirche?’, www.kath.ch/skz/index.php?&na=0,0,0,0,d,,,,&kz=105
(accessed 10 March 2016); original: “legitime Eigenständigkeit der Ortskirchen derart über-
pointiert wird, dass ein teilkirchlicher Föderalismus . . . wirksam wird. Die Universalkirche
wird dann, wenn überhaupt, nur noch als nachträgliche Summe beziehungsweise
Konföderation von Teilkirchen wahrgenommen”; “als der nachträgliche Zusammenschluss
von in sich völlig subsistierenden Ortskirchen im Sinne eines organisatorischen
Dachverbandes”.
mere provinces. The local churches are not lower administrative districts, but
living cells in which the whole organism of the church lives.48
In confronting the opinion that seems to appear in Communionis notio,

published by the Congregation for the Doctrine of the Faith – namely that
local churches are substructures of the global church (which is identified with
the universal church)49 – Walter Kasper and Medard Kehl argue against the
implication that the empirical side of the universal church is the Roman papal
church and its curia. It would be a grave misunderstanding “to identify the
theological entity of the ‘universal church’ with the (empirical) Roman
Church”.50 Identifying them would have to be regarded “as an attempted
theological restauration of Roman centralism”,51 drawing its legitimacy from
a problematic amalgamation of the empirical fact of centralism and
a theological approach to universalism.
Similarly, other voices challenge the notion in which an ecclesiological
amalgamation of hierarchy and monarchy brings together a theologically
necessary quality and a historically contingent aspect of the church.
Analysing the outcome of the First Vatican Council’s teaching, Peter
Kistner remarks that “the Petrinitas, the Perpetuitas and the Plena potestas
of the primacy have been dogmatised because of their origin in divine law . . .,
yet the Romanitas and the monarchical organisation”52 of the church do
not profit from this divine origin. With regard to a modern theory of the
church, the dogmatic theologian Georg Essen therefore proposes separating
universalism and centralism in order to “free the hierarchical constitution of
the church from being tied by a monarchic and absolutist understanding of
48
Ibid.; original: “Dabei handelt es sich um jenes Phänomen, das wir als weltkirchlichen
Zentralismus . . . zu bezeichnen pflegen. Damit droht die großartige Wiederentdeckung des
Zweiten Vatikanischen Konzils in Vergessenheit zu geraten, dass die Universalkirche keine
Superkirche ist, deren Teilkirchen lediglich Provinzen wären. Die Ortskirchen sind nicht
unterste Verwaltungsbezirke, sondern lebendige Zellen, in denen der ganze Organismus der
Kirche lebt.”
49
See Congregation for the Doctrine of the Faith, Communionis notio, 28 May 1992, especially
no. 9, www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_
doc_28051992_communionis-notio_en.html (accessed 21 December 2016).
50
Kehl, ‘Verhältnis’, 90, referring to Kasper, ‘Theologie und Praxis des bischöflichen Amtes’, in
Schreer/Steins (eds), Auf neue Art Kirche sein, Munich, Bernward Verlag, 1999, 44; original:
“die theologische Größe ‘Universalkirche’ mit der (empirischen) römischen Kirche zu
identifizieren”.
51
Kasper, ‘Theologie des bischöflichen Amtes’, 44; original: “als Versuch einer theologischen
Restauration des römischen Zentralismus”.
52
Kistner, Das göttliche Recht I, 17; original: “zwar die Petrinitas, die Perpetuitas und die Plena
potestas der primatialen Funktion wegen ihres Ursprungs im göttlichen Recht dogmatisiert . . .
[worden seien], aber ihre Romanitas und ihre monarchiale Organisation”.
sovereignty”.53 Essen believes it is necessary to “disengage the doctrine of the

church as a hierarchically constituted corporation – which is dogmatically
constitutive and constitutional – from a socio-philosophical understanding,
the implementation of which can be traced back to historical and contingent
developments”,54 in order to give the church a social structure that relates to
a modern theory of freedom.
Similarly, the canonist John Huels notes that modernity does not concur
with the idea that monarchic centralism is the only way the church can
safeguard its unity and the unity of its faith: “no general consensus exists in
the Catholic Church that a centralized, universal authority can be the best
determiner of how the Church is to function in various circumstances and
cultural settings.”55 Ladislas Orsy points out that the kind of centralism taught
by the theory of perfect society is actually only an attempt to lend a state-like
appearance to the church’s constitution and does not relate to the theology of
communion of the Second Vatican Council.56 For this reason, Orsy proposes
that centralism be surrendered in favour of a model of ecclesiastical govern-
ance that focusses on the church as a whole – as a community of all the people
of God – and not only on the hierarchy at its head.
2.3 the participation of the people of god

The recent model of organising the church in this monarchic and centralistic
shape may be understood as a contingent relic of premodern governance. This
understanding influences any reflections about the validity reasons of canon
law. As prepositive and positivistic approaches to the law do not essentially
contradict each other (‘natural law positivism’), as one might assume at first
sight, it is difficult to ignore suspicions that the magisterium refers to the
validity reasons of revelation and nature to secure the premodern structures of
church governance.57 Hence, revelation and nature might occasionally be
introduced into the debates on the development of the church and its law as
power arguments which serve to conceal the validity reason of power
53
Essen, ‘Nachholende Selbstmodernisierung?’, 9; original: “die hierarchische Kirchenverfassung
aus der Umklammerung durch ein monarchisch-absolutistisches Souveränitätsdenken zu
befreien”.
54
Ibid.; original: “Entflechtung der Lehre von der Kirche als einer hierarchisch verfassten
Körperschaft, die dogmatisch konstitutiv und kirchenkonstitutionell ist, von einer sozialphiloso-
phischen Denkform, deren Implementierung auf historisch-kontingente Entwicklungsprozesse
zurückzuführen ist”.
55
Huels, ‘Interpreting Canon Law’, The Jurist 47 (1987), 250.
56
See Orsy, Theology and Canon Law, 25–26.
57
See Stein, ‘Complexio oppositorum’, Zeitschrift für Politik 60 (2013), 288.
underlying the structure and the law of the church. As modernity is highly
sceptical of the validity reason of power in an absolutist sense, this might
encourage the people of God to doubt the legitimacy of the church’s structures
and its laws.58
In leading the church members to suspect that the main validity source of
ecclesiastical law – including norms based on revelation and nature – is power
and not truth, the church’s legal order risks being seen as an absolutist and
positivistic legal culture, which adheres to Thomas Hobbes’ motto: “It is not
Wisdom, but Authority that makes a Law.”59 It therefore comes as no surprise
that this suspicion generates a negative reaction, especially from believers in
democratic, secular, and pluralistic societies. This reaction is due to their
perception of freedom and autonomy as categories which cannot be omitted
from any modern theory of the foundation of law.
Legitimation by Participation
Immanuel Kant’s approach to the term law is perhaps the most famous state-
ment connecting the idea of freedom with the idea of law: “Right is therefore the
sum of the conditions under which the choice of one can be united with the
choice of another in accordance with a universal law of freedom.”60 Law serves
to unite autonomous subjects with each other, preserving their freedom to the
greatest possible extent. From this starting point, modern legal theory develops
the concept that the law itself – as a condition under which free individuals may
be joined while preserving their autonomy – must provide instruments that both
allow the autonomous subjects to protect their freedom to the greatest degree
possible and allow them to live together peacefully.
To protect their autonomy under the conditions of the law, individuals
must contribute to shaping these conditions, an imperative that highlights the
importance of participation in lawmaking.61 Participation in political pro-
cesses gathers the drive of many individuals to autonomy into a collective.
An individual’s own will in a collective form thus becomes a determining
factor against the heteronomy of authorities’ arbitrariness. In this sense, Peter
Kistner remarks that participation is essential for restricting the power of
authorities, even in the church.62 Insofar as, quoting Hartmut Rosa again,
58
See Beal, ‘Canon Law and Its Discontents’, 145.
59
Hobbes, A Dialogue, ed. by J. Cropsey, Chicago, IL, University of Chicago Press, 1971, 55.
60
Kant, Metaphysics of Morals, ed. by M. Gregor, Cambridge, Cambridge University Press,
1996, 24.
61
See Böckenförde, Gesetz und gesetzgebende Gewalt, Berlin, Duncker & Humblot, 1981, 331.
62
See Kistner, Das göttliche Recht I, 199, 201; idem, Das göttliche Recht II, Berlin 2010, 240–253.
the “project of modernity is unavoidably also a political project for collectively

shaping social structures”,63 a social order which suppresses participation is
likely to be confronted with problems of acceptance. This observation also
applies to religious communities. The rhetorical question posed by the theo-
logian Gerard Mannion, “How would we ever recognize genuine authority
without the principle of participation . . . ?”,64 therefore also applies to the
church, which, in modernity, must invest in structures of participation if the
faithful are to accept its authorities and the normativity they pose. To be
regarded as a condition under which the members of the church are joined
and which preserves their autonomy in the most optimal way, the law of the
church has to provide instruments of participation which allow the believers to
contribute to the making of canon law. The collective shaping of the structures
is also becoming an attribute of modernity which the church can no longer
overlook. This development addresses the church on two levels, as Peter
Kistner points out, namely with regard to participation of particular churches
in the decisions of the global church, and with regard to participation of the
faithful in the decisions of the particular churches.65
Participation in shaping the church’s structures and in making its law may
be organised in a more or less direct way. It may take on a form in which
autonomous subjects directly contribute to the collective decision-making of
their community, or one in which their participation is ensured by their
representatives in the decision-making process. Modern democracies tend to
refer not to forms of direct government but to representative democratic
processes in which decisions are based not directly on the vote of the people,
but on the vote of the people’s representatives. Whether such a form of
representation is a legitimate way of addressing the interests of the represented
depends on whether their representatives represent them adequately. Hanna
Fenichel Pitkin undertook major sociological groundwork on this question in
the late 1960s. Her book The Concept of Representation has become a standard
work on political representation. In her search for historical moments in
which representation and legitimation commingled, Pitkin names a point in
conciliar history at which the belief became prominent in the Western history
of ideas that a community would be represented best by a collective body:
“As the thirteenth-century popes enlarged the council to include not only
bishops but also delegates from various chapters, religious orders, and even
63
Rosa, ‘Historischer Fortschritt’, 122; original: “Projekt der Moderne unvermeidlich auch zu
einem politischen Projekt der kollektiven Gestaltung der sozialen Strukturen”.
64
Mannion, ‘“Authentic” Teaching’, in Lacey/Oakley (eds), Crisis of Authority, Oxford, Oxford
University Press, 2011, 180.
65
See Kistner, Das göttliche Recht II, 244–249, 249–253.
secular princes, people came increasingly to regard it as une image fidèle of all
Christendom.”66 Therefore, it would be understandable why conciliarist
theologians then considered the council, and not the pope, as the central
representative of Christianity.
Today, the modern understanding of representation is mostly connected
with democratic representation, which is vital for modern political theory.
In the church, however, a democratic legitimation of political representatives
is not considered an option, because the ecclesiastical government is traced
back to a Christological source comprehended as realised in the church
hierarchy. As Christ – the source of all of the church’s power – is pre-
eminently regarded as represented by the church hierarchy, ideas of organis-
ing leadership within the church according to the principle of the sovereignty
of the people are put aside. The ecclesiastical power of governance is handed
over to the bishops and the pope. Accordingly, the prevailing concept of
representation in the church differs fundamentally from the understanding
of representation in democratic political communities.
Participating in the Code’s Reform

Decision-making within the church is non-democratic. But to legitimise it,
reference is made to the idea of participation because it is regarded
as necessary for the people of God to be represented in the church’s
decision-making processes. A closer look at the reform of the Code of
Canon Law for the Latin Church before 1983 reveals this kind of legitimi-
sation. The operative tasks of the reform were realised by the coetus, work-
ing groups of eight to fourteen (mostly canonistically educated) experts,
which prepared drafts (schemata) regarding the different normative matters
of the codified law, and by a commission, the Pontifical Commission for
the Revision of the Code of Canon Law, which discussed and decided on
the drafts. During the consultation process, the dicasteries of the Roman
Curia, the bishops’ conferences, the Union of Superiors General of the
religious orders, and the ecclesiastical universities and faculties all over the
world were invited to comment on the drafts. The pope, counselled by
seven advisors he had chosen himself, performed the final redaction and
promulgation of the Code.
Those involved in the bodies of the reform, as the Preface to the Code of
Canon Law reveals, were 105 cardinals, 77 archbishops and bishops, 73 secular
priests, 47 religious priests, 3 religious women, and 12 laypersons from 5
66
Pitkin, The Concept of Representation, Berkeley, CA, University of California Press, 1967, 251.
continents and 31 countries.67 The very few representatives of the laity (15,
compared to 302 clerics) as well as of the nonepiscopal clerics were part of the
coetus only, and not of the commission itself. Nevertheless, the impact of their
work on the decisions made in the commission should not be underestimated,
as the working groups organised the normative matters and designed the drafts
of norms. In the decision-making processes of the commission, however, the
people of God were represented only by higher clergy: in the early stage of the
reform by about 40, in the later stage by about 70 bishops and cardinals as
members of the commission.68 Thus, only bishops and cardinals decided on
the schemata. The final decision on the Code, in a final act of redaction before
promulgation, was reserved for the pope.
Hierarchical Representation
What can one conclude from these facts and figures about the question of
representation and legitimation in the church’s lawmaking? In the light of
modernity’s paradigm of participation, the non-participation of the people of
God in the development of canon law could present a problem of legitimacy.
With regard to the reform process before 1983, it is therefore necessary to
discuss whether the small number of laity in the working groups, as well as the
nonintegration of the laity and of the nonepiscopal clergy in the commission’s
decision-making, raises doubts about the legitimacy of the law shaped in this
way. What are the consequences of there having been only a small number of
laypeople involved in the working groups, while only bishops and cardinals
served on the commission? Is the model used to reform the law before 1983
a valid way of organising participation by representation? The answer to this is
yes, at least according to the Apostolic Constitution Sacrae disciplinae leges on
the Promulgation of the Code. Here one can read that the theology of the
people of God, as presented by the Second Vatican Council, which requests
the participation of the whole church in deciding matters that concern it, was
fully realised within the process of the Code’s formation insofar as the pope,
67
See ‘Preface to the Code of Canon Law’, Acta Apostolicae Sedis 75 II (1983), XXIII–XXIV; on
the composition of the commission during the reform process see Commission for the
Revision of the Code, Relatio ad novissimum Schema Codicis Iuris Canonici, Vatican City,
Libreria Editrice Vaticana, 1981, 5–8; see also Communicationes 1 (1969), 7–13;
Communicationes 5 (1973), 175–179; Communicationes 10 (1978), 33–36; the names of the
consultors can be found in Communicationes 1 (1969), 15–28; Communicationes 5 (1973),
179–188; Communicationes 10 (1978), 37–45; for the composition of the coetus studiorum, see
Communicationes 1 (1969), 29–34; Communicationes 5 (1973), 189–194.
68
See Commission for the Revision of the Code, Relatio ad novissimum Schema, 5–8; ‘Preface to
the Code’, Acta Apostolicae Sedis 75 II (1983), XXIX.
the cardinals, and the bishops had adequately represented the people of
God.69 The Preface to the Code of Canon Law also takes up this argument,
noting that at a late stage in the reform, the commission was enlarged and
more episcopal members added so as to better represent the whole church as
the agent of the legal reform.70
This understanding of representation is not a democratic one. It rather
corresponds to the tradition of non-democratic representation, as found, for
example, in John Locke’s political philosophy in the Two Treatises of
Government. As a thinker on modern representation, Locke is convinced of
the need for a form of political representation of the people. This, he claims, is
in the interest of each nation: “for it being the interest as well as intention of
the people to have a fair and equal representative”.71 At the same time, it
is in the government’s interest to include representatives of the people in
decision-making, as this grants it the acceptance of the political community:
“whoever brings it nearest to that is an undoubted friend to and establisher
of the government, and cannot miss the consent and approbation of the
community.”72 The government is then legitimised by the consent of the
governed, who lend it their support when they feel adequately represented
in the government.
The political system that Locke has in mind is the constitutional monarchy
of his time. In this system, representation is a “status-related political partici-
pation that [functions] as a reflection of the hierarchical order of status in
society”73 and, thus, a representation of the statuses, as the legal scholar
Beatrice Brunhöber explains in her dissertation on the historical development
of the theory of democratic representation. Representation by status derives
either by a specific vote according to the criterion of status or by the selection
of the representatives by the monarch. In the latter case, representation is not
based on the democratic legitimation of a vote but on the will of the monarch
alone, who, in any case, is required to choose the appropriate representatives
for the society that the representatives are then to represent.
There is an obvious similarity here to the models of representation in the
church, like the model of representation realised in the reform of the Code of
69
Acta Apostolicae Sedis 75 II (1983), VIII–IX.
70
Ibid., XXVIII–XXIX.
71
Locke, ‘Second Treatise of Government’, chapter 13 §158, in idem, Two Treatises, ed. by Th.
Hollis, London, A. Millar et al., 1764, 338.
72
Ibid.
73
Brunhöber, Die Erfindung “demokratischer Repräsentation”, Tübingen, Mohr Siebeck, 2010,
41; original: “statusbezogene politische Teilhabe, die als Abbild der hierarchischen,
herrschaftsständischen Gesellschaftsgliederung”.
Canon Law. In this reform the participation of the faithful was organised
according to status. The pope selected the statuses to represent the people of
God, as well as the specific representatives of each status. Only a few members
of the laity participated in the working groups. Clerics undertook the major
work of reform. Only bishops and cardinals decided on the drafts. The final
decision lay with the pope, who with his absolute power of monarchic shape
decided not only whether to accept the drafts but also whether to omit, insert,
or change norms according to his will. In this sense, the reform process that
resulted in the Code of 1983 revealed the status structure of the church as an
unequal and hierarchical society (societas hierarchica inaequalis).74
Descriptive Representation
As this understanding of representation is premodern, the question arises
whether it can still serve as a source of legitimacy for canon law today.
Is a hierarchical representation of the statuses within the church likely to
convince church members of the legitimacy of canon law? Hanna Pitkin’s
sociological deliberations on the potential of diverse models of representation
are helpful for a theoretical reflection on this question. Pitkin identifies four
different types of representation: formalistic representation, symbolic repre-
sentation, representation as description, and representation as “acting for”.
A formalistic type of representation, like that in Hobbes’ writings, involves
representatives plainly authorised to represent the represented.75 Symbolic
representation involves a symbol standing for or representing something (as
a fish symbolised or represented Christ in the early church, or a flag nowadays
represents a head of state or the state as such).76 The modern concept of
political representation, however, aims rather at two different elements of
representation – description and action on behalf of the represented.
Descriptive representation functions with a single representative or
a representative body that is a smaller version of the represented.77
In political systems, it is necessary to identify which characteristics of the
represented need to be replicated by the representatives for them to success-
fully perform descriptive representation. In addition, modernity understands
74
See Lüdecke/Bier, Kirchenrecht, 20–23.
75
See Pitkin, Representation, 14–37; see also 38–59; Pitkin especially refers to the Leviathan,
book 1, chapter 16, ‘Of Persons, Authors, and Things Personated’ (in Hobbes, Leviathan, ed. by
J. Gaskin, Oxford, Oxford University Press, 1998, 106–110).
76
See Pitkin, Representation, 92–111.
77
See ibid., 60–91.
representation as the substantial acting of the representative for and on behalf

of the represented.78
Pitkin’s theory broaches the question of how to interpret the model of
representation realised in the reform of the Code of Canon Law before 1983.
The commission of bishops and cardinals is of particular interest here,
because the Apostolic Constitution Sacrae disciplinae leges and the Preface
to the Code of Canon Law state that the commission represented the whole
church as the agent of the legal reform.79 How may one understand this idea of
representation? With regard to its history, it is tempting to interpret it as a form
of symbolic representation, in accordance with a remark made by the political
scholar David Budde. Budde explains that the idea of representation in the
medieval Christian tradition conceived of Christ as the representative and
subsequently referred to ordained ministers as capable of representing Christ
in the Eucharist. Budde calls this the “cultic realisation of Christ in the
celebration of the Eucharist”.80 A similar understanding of representation
appeared in medieval representation theory relating the pope and Christ, as
the legal scholar Stephan Meder describes: the “mortal figure of the pope
represents the immortal figure of the Vicar of Christ and the everlasting
institution of the church – and thus Christ himself”.81 This idea expanded
with medieval and early modern theories on corporations:
Thinking of analogous pictures, let the medieval theory of representation
assume a similarity between the representing and the represented person.
The representing person is the visible physical person, the natural body of the
holder of the insignia of secular or ecclesiastical power. The person repre-
sented is a political body, namely the ruler as an everlasting institution, the
church leader as the eternal Vicar of Christ on earth or an association (state,
church, corporation), which embodies the political unity of the factual
plurality of humans.82
78
See ibid., 112–143.
79
Acta Apostolicae Sedis 75 II (1983), VIII–IX, XXVIII–XXIX.
80
Budde, Repräsentation und Legitimation, Berlin, no publisher, 2013, 47; original: “kultische
Vergegenwärtigung von Christus in der Eucharistiefeier”.
81
Meder, Doppelte Körper, Tübingen, Mohr Siebeck, 2015, 74; original: “repräsentiert die
sterbliche Person des Papstes die unvergängliche Person des Statthalters Christi und die
ebenfalls unvergängliche Institution der Kirche – und damit Christus.”
82
Ibid.; original: “Das bildanaloge Denken führt die mittelalterliche Repräsentationstheorie zur
Annahme einer Ähnlichkeit zwischen repräsentierender und repräsentierter Person. Die
repräsentierende Person ist die sichtbare physische Person, der natürliche Körper des jeweili-
gen Inhabers der Insignien säkularer und kirchlicher Macht. Die repräsentierte Person ist ein
politischer Körper, nämlich der Herrscher als unvergängliche Institution, der Kirchenführer
als ewiger Statthalter Christi auf Erden oder ein Verband (Staat, Kirche, Korporation),
welcher die politische Einheit einer tatsächlichen Vielheit von Menschen verkörpert.”
In the hierarchical corporation organised by statuses, the hierarchy was

entrusted with the power to represent the corporation as a whole.
In modernity, this function of representation became the political authorisa-
tion of rulers to act on behalf of the represented: “In modernity this doctrine is
developed insofar as representation is no longer understood only as
a relationship of similarity by outer signs, but as the ‘authorisation’ of someone
to act on behalf [of somebody].”83 In absolutist theories of government, the
ruler therefore not only stands for the citizens of the state or the members of
the church but is likewise authorised to decide for them.84 The head of the
state, as a symbolic representative of the state,85 therefore acquires power to
decide politically for his subjects.
In this tradition, the bishops, cardinals, and the pope can be understood as
symbolic representatives, who in the legal reform before 1983 decided on the
new shape of the Code of Canon Law. Whereas the bishops, as leaders of the
particular churches and successors of the apostles, represented the particular
churches, the pope acted as a symbol of the whole church. Yet this identifica-
tion raises two problems, which one can see when looking more closely at
Hanna Pitkin’s consideration of symbolic representation. With regard to
the papal function of representation, Pitkin first observes that the pope, as
the Vicar of Christ, might stand for the church, but not automatically for the
church members as such: “The Pope is a member of the community of
Catholics, but it is not that community that he here represents. He is said to
represent Christ, and the community is a sort of audience or third party, which
either believes or does not believe in the representation.”86 From the perspec-
tive of a conciliar ecclesiology, Pitkin’s critique clarifies that the pope as the
Vicar of Christ symbolically represents the universal church as a theological
entity, but this does not automatically make him a representative of the factual
global church on earth. Whether the ecclesiologically symbolic function of
the pope may also be understood as authorised to represent the church
members rather depends on whether the global community of the faithful
accepts this authority.
To this problem a second is added. One peculiarity of symbolic representa-
tion is, as Pitkin explains, that it works especially well if it is not connected with
83
Ibid.; original: “In der Neuzeit erfährt diese Lehre insoweit eine Fortbildung, als die
Repräsentation nicht mehr nur als eine durch äußere Zeichen beglaubigte
Ähnlichkeitsbeziehung, sondern als ‘Ermächtigung’ zu stellvertretendem Handeln aufgefasst
wird.”
84
See Budde, Repräsentation, 47–48.
85
86
Ibid., 105.
the function of political representation. The president of a nation is under-

stood best as a symbol of that nation, she states, if he or she acts only
symbolically as the representative of her or his country. The same applies to
ambassadors and diplomatic personnel who manage to represent their country
well precisely because they have limited powers of political decision-making:
“an ambassador can serve particularly well as a symbol of his state abroad, be
honoured at ceremonial functions, just because everyone knows it is not he
who makes policy decisions. He is not the real active force behind policy but
a mere agent; so he can easily serve as a symbol.”87 Even if some active
political decision makers also serve as symbols, such as the president of the
United States, they are symbols especially in the contexts in which they do not
decide actively but rather act ceremonially.88 It is therefore not easy to connect
real political decision-making with the idea of symbolic representation.
For this reason it is difficult to understand the representation of the whole
church by the bishops, cardinals, and the pope in the reform of the Code
before 1983 as the successful realisation of symbolic representation. Rather,
the model chosen reveals – sociologically speaking – a closeness to formalistic
representation: “a representative is someone who has been authorized to
act.”89 Insofar as the bishops have the powers to legally represent their dioceses
(see canon 393 CIC/1983) and the pope is competent to decide in all matters
that affect the global church (see canon 331 CIC/1983), they formally have the
power to act on behalf of the church they represent. Such an understanding of
representation is typical for the Catholic Church, as the Protestant theologian
Reiner Preul suggests. Preul speaks of an authoritative hierarchical representa-
tion that takes for granted that everything “proclaimed by the head of the
organisation binds the organisation’s members, just because it was the head
who announced it”.90
This formalism is in any case coming under increased criticism nowadays.
Modes of participation which are not realised by personally integrating the
members of a group into decision-making, but instead by representing them,
are now expected to materially prove their suitability to represent the repre-
sented. If the direct participation of the members in making decisions for the
community is impossible, then an adequate compensation must be found to
legitimise the process, as Hanna Pitkin notes. In Pitkin’s mind, adequate
compensation goes hand in hand with the substantial representation of the
87
Ibid., 102.
88
See ibid., 103.
89
Ibid., 38.
90
Preul, Kirchentheorie, Berlin, De Gruyter, 1997, 238; original: “gilt das, was die Organisationsspitze
sagt, zwangsläufig für alle Mitglieder der Organisation, einfach deshalb, weil es die Spitze sagt.”
represented by the representatives, in which the representatives act in the

interests of the represented (“acting for”).91 But a descriptive representation in
the sense of “standing for” is also acceptable: “If representative government is
a substitute for direct democracy, if the legislature is a substitute for the
assemblage of the whole people, it should approximate the original as closely
as possible. If we cannot have the ideal, at least we want something as near to it
as can be achieved.”92 Representation in the sense of “standing for” can be
understood as representation only if the representatives mirror the community
they represent in its central features and characteristics. Successful representa-
tion “depends on the representative’s characteristics, on what he is or is like, on
being something rather than doing something. The representative does not act
for others; he ‘stands for’ them, by virtue of a correspondence or connection
between them, a resemblance or reflection”.93 In creating political bodies, the
decisions of which should be regarded as legitimate, care must therefore be
taken to ensure that the composition of the body portrays the represented:
“In political terms, what seems important is less what the legislature does than
how it is composed.”94 Nevertheless, it is not necessary for all members of the
community to be represented characteristically, but rather that their depiction
not be excluded: “What is necessary to make a representation is not accuracy
of depiction of something visible, but simply depiction of something visible,
the intention to depict.”95 Selecting the representatives by lot, for example,
would not ensure that the representatives resemble the community in all its
characteristics, but might be accepted as legitimate because it is open to
a depiction of all members of the community in principle.96 Conversely,
selecting representatives in such a way as to specifically exclude certain parts
of the community because of some of their characteristics presents a problem
of legitimacy.
If one now tries to use these insights to evaluate the Code’s reform,
a number of questions arise. The people of God are a community of different
statuses and forms of life. Yet mainly clerics were involved in the reform
commission as well as in the coetus. The lack of lay representation begs the
question whether the bodies of the legal reform achieved a descriptive repre-
sentation of the church. The different charisms of living in the world or living
a religious life were represented by the participation of secular and religious
91
92
Ibid., 86.
93
Ibid., 61.
94
Ibid.
95
Ibid., 67.
96
See ibid., 73.
clerics. Once again, though, questions arise with regard to gender, as scarcely
any women participated in the reform process. The commission consisted of
bishops and cardinals only, all of them clerics and all of them men. This can
hardly be interpreted as a descriptive representation of the people of God.
According to Pitkin’s analysis, this form of representation can only be under-
stood as formalistic representation. And because formalistic representation in
modernity is insufficient to legitimise decisions, the reform process of the
Code and the legitimacy of its outcome are called into question.
In any case, this argument is based on the premise that the composition of the
bodies of the reform is actually non-representative. According to Pitkin, this
would be the case only if – in the selection of the representatives – relevant
characteristics of the represented group are neglected. Here some disagreement
might arise over which attributes of the community’s members are relevant and
hence have to be taken into account for a descriptive representation: “represen-
tation as ‘standing for’ by resemblance, as being a copy of an original, is always
a question of which characteristics are politically relevant for reproduction.”97
Regarding the reform of canon law, objections can be raised that the distinctive
attribute of most of the representatives was that they were clerics, and in the
reform commission only the higher clergy. Clerics representing the church as
a whole would be unproblematic if being a cleric were not one of the most
important attributes for distinction within the people of God. Insofar as being
a member of the clergy or the laity actually represents a fundamental difference
within the ecclesiastical legal order – which, for example, serves to make
distinctions in matters of office and competence (see canons 129, 274 §1
CIC/1983) – it cannot be argued that this difference is not relevant for the
representation of the people of God in decision-making, especially in contexts
in which the shaping of canon law reproduces these differences and their legal
consequences (!). Therefore it is problematic that the laity had virtually no
representation in the coetus and none in the commission. A similar result
applies to the matter of gender. Insofar as the gender difference is a major
criterion with consequences for an individual’s status in the church (see canon
1024 CIC/1983), it deserves consideration in the context of representation.
Consequently, the depiction of the church by only one of the ecclesiastical
statuses breaks with the rationale of a descriptive representation, namely that
important characteristics of the represented must be mirrored by their repre-
sentatives. In this sense, the mode of representation chosen for the reform of
the Code of Canon Law before 1983 did not – in a sociological sense –
represent the church in its entirety. In failing to present itself convincingly
97
Ibid., 87.
as a descriptive representation of the church, the law produced in the reform is

unsurprisingly faced with questions of legitimacy.
2.4 limits of obedience and compliance

In the light of the modern paradigm of freedom, not only does a piece of
legislation that marginalises participation and representation have to justify
itself, so does a form of lawgiving that restrains the legal subjects’ freedom
materially without giving an adequate explanation for doing so. As individuals
after the Enlightenment experience themselves as free, they do not tolerate
well any lack of justification for authority placing limits on individual freedom
(such as by a pure argument of power). Restraining individual freedom can be
legitimate, yet the limits have to be well reasoned.
Legislation and Its Lack of Justification

The reform process before 1983 also reveals some related problems. Besides
the inadequate participation of the people of God in shaping the law, the
development of the ecclesiastical law without much explanation or justifica-
tion is also problematic. Some facts have become known about the steps taken
in the working groups and the reform commission, as the meetings’ proceed-
ings are published successively in the periodical Communicationes. Yet even
today, thirty years after the promulgation of the Code, not all proceedings have
been published. Furthermore, as they are not issued in chronological order, it
is difficult to follow the development of single norms in detail.
Moreover, little is known about the critical comments provided by the
dicasteries of the Roman Curia, the bishops’ conferences, the Union of
Superiors General of the religious orders, and the ecclesiastical universities
and faculties during the process of consultation. It remains largely unclear
how the commentary from the various consulting bodies was introduced into
the draft of the Code and how the commission decided which criticism to
address and which not. Just recently, Heribert Schmitz noted: “Whether and
to what degree the remarks of the consulting bodies were inserted in detail will
only be known when the acts of the Code’s Reform Commission are fully
opened for research.”98 A note in the Preface to the Code of Canon Law is
98
Schmitz, ‘Codex Iuris Canonici’, in Haering/Rees/Schmitz (eds), Handbuch des katholischen
Kirchenrechts, 3rd edn, Regensburg, Friedrich Pustet, 2015, 81; original: “Ob und in welchem
Maß die Modi der Beratungsorgane im Einzelnen eingearbeitet wurden, wird man erst
feststellen können, wenn die Akten der CIC-Reformkommission der Forschung voll
zugänglich sind.”
symptomatic, describing as it does in minute detail the efforts necessary to

include the commentary into the draft of the Code, while keeping silent about
important aspects of the matter:
The study, examination and collegial discussion of all the animadversions,
general and particular, which were forwarded to the Commission constituted
a weighty and veritably immense burden which lasted seven years.
The Secretariat of the Commission took pains carefully to organize and
synthesize all the animadversions, proposals and suggestions which, after
they had been forwarded to the consultors and carefully examined by them,
were subsequently collegially discussed in working sessions conducted by the
ten study groups . . . In fact, as often as it was a case of a doubtful matter or
when questions of special importance were debated, the opinion of the
cardinal members of the Commission was sought during one of their plenary
sessions. In other cases in view of the specific matter under discussion, the
Congregation for the Doctrine of the Faith and other dicasteries of the
Roman Curia were consulted. Finally, many corrections and changes were
incorporated in the canons of the early schemata at the request or suggestion
of the bishops and other consultative organs, so that some schemata were
entirely renewed or changed.99
This description of the process in which the input from the global consultation
was handled contains a plethora of information. It names the agents involved,
the single steps taken, and even a few of the criteria for evaluating the
suggestions:
Every animadversion was considered with the utmost care and diligence.
This was true even in the case of animadversions contradicting one another
(which frequently happened). Due consideration was given not only to their
sociological importance (namely, the number of consultative organs and
persons who proposed them), but especially to their doctrinal and pastoral
value, their coherence with the doctrine and implementing norms of
the Second Vatican Council, the pontifical magisterium, and their necessary
coherence with the juridic canonical system when examined from
a specifically technical and scientific standpoint.100
While the information given is dense, one can nevertheless observe that the
text does not contain certain pieces of information, for example, with regard to
the contradictory animadversions (that were a regular occurrence, as the text
reveals): what determined which suggestion to follow and which to dismiss –
99
‘Preface to the Code’, Acta Apostolicae Sedis 75 II (1983), XXVII; English version: www.vatican
.va/archive/ENG1104/__P1.HTM (accessed 21 December 2016).
100
Ibid.
and who decided? The commission’s secretariat collected the various opinions
of diverse agents, the working groups, the Congregation for the Doctrine of the
Faith and other dicasteries, and the cardinal members of the commission in
matters of major importance (though who would decide what was a matter of
special importance?). But how were decisions made at the end of the con-
sultation process about how to proceed with the further (and likewise con-
troversial) suggestions of these agents? Who took these decisions (the
secretariat alone?), and by what criteria? The Preface to the Code of Canon
Law names a few criteria but does not explain how these were ranked in
importance. How, for example, was a suggestion of “sociological importance”
related to a suggestion of “doctrinal and pastoral value”? What ensured that an
animadversion was in accordance with conciliar teaching (and who interprets
the council and defines what conciliar teaching is)?101 Who decided (and on
what basis) whether a suggestion accorded with the “juridic canonical system”
which, after all, had to be newly developed beforehand or at least had to be
revised after the council? The measurable criterion of quantity was confronted
by a host of qualitative criteria which, because of their vagueness and inde-
terminability, provided some opportunity for voluntarist discretion. Because of
this, it remains unclear whose interventions and which criteria led to includ-
ing some and excluding other suggestions for improving the draft of the Code.
Laments about the intransparency of the Code’s reform were already
common during the reform process and were repeatedly rejected; reacting to
criticism, the president of the commission, for example, referred to the
Communicationes as the periodical which provided detailed information on
the genesis of the norms.102 Furthermore, the confidentiality to which the
commission’s members were sworn was not particularly watertight, so that any
interested parties were able to garner a good deal of information. “Indeed . . .
the commission did not work behind hermetically sealed walls”, noted
Winfried Aymans in an introduction to the new Code published by the
German Bishops’ Conference in 1983; he spoke of an “at least schematically
visible development of the reform project”.103 His comments, however, char-
acterise the information policy of the commission as being ambivalent rather
101
On the controversy on alternative interpretations of the council in a legal perspective see
Hahn, ‘Kirchenrecht und II. Vatikanum’, Theologische Revue 111 (2015), 265–280.
102
Communicationes 6 (1974), 161.
103
Aymans, ‘Einführung’, in Arbeitshilfen 31, ed. by Sekretariat der Deutschen
Bischofskonferenz, Bonn, Sekretariat der Deutschen Bischofskonferenz, 1983, 10; original:
“Tatsächlich hat . . . die Kommission keineswegs hinter hermetisch abgeriegelten Mauern
gearbeitet”; “wenigstens in seinen Umrissen erkennbar gewordene[n] Entwicklungsgang der
Reformarbeiten”.
than open. The process was supposed to be confidential, but the commission
did not always succeed in keeping confidentiality.
On the other hand, confidentiality was held high now and then in
a problematic way. Aymans is especially critical of the fact that even bishops
were denied access to the draft of the Code after the consultation had ended:
“Even though the 1980 Schema was rightly no longer subjected to global
consultation, one should have made the drafts officially accessible to those
bishops who showed an interest. That interested bishops had to approach third
parties to access the draft, which was distributed globally as a photocopy, was
more than just a tactical flaw.”104 So while it was possible to get some
information on the reform process, most of these insights were not rooted in
official information but taken from unofficial sources.
The dearth of information accessible about the rationale for the commis-
sion’s decisions also becomes obvious with regard to the Lex Ecclesiae
Fundamentalis, the project of establishing a fundamental law of the church,
which was abandoned during the course of the reform without any public
reason. The Lex Ecclesiae Fundamentalis was planned as a constitutional law
for the global Catholic Church, superordinated to the Code of the Latin
Church and the Code of the Oriental Churches. Several drafts were produced
during the reform process. Yet in the last stage of the process, most norms were
inserted into the final draft of the Latin Code, the 1982 Schema, and later into
the Oriental Code, without pursuing the plan to establish a superordinate law
with constitutional features. Even today, little is known about the reasons for
this change in plan.
Similarly, little is known about the final papal redaction of the Code:
“As one hears time and again in Roman circles”, noted Aymans in the
German bishops’ introduction to the new Code in 1983, “the pope himself
together with a small study group intensively studied and discussed the whole
Schema; with matters that were not yet ready for a decision, a small circle of
leading cardinals was supposedly entrusted with their re-examination.”105
No reasons were given for adjustments to the norms, even though these
adjustments have to be evaluated as papal interventions against the
104
Ibid.; original: “Wenn das Schema/1980 wohl mit Recht nicht mehr einer weltweiten
Konsultation ausgesetzt worden ist, so hätte man den Entwurf doch jenen Bischöfen, die
daran Interesse zeigten, amtlich zugänglich machen sollen. Daß interessierte Bischöfe sich
den weltweit in Fotokopie gehandelten Entwurf auf Umwegen besorgen mußten, war mehr
als ein taktischer Schönheitsfehler.”
105
Ibid., 9–10; original: “Wie man aus römische Kreisen immer wieder hören kann, hat der Papst
selbst zusammen mit einer kleinen Arbeitsgruppe dieses Gesamtschema gründlich studiert
und diskutiert; noch nicht entscheidungsreife Frage sollen einem kleinen Kreis führender
Kardinäle zur nochmaligen Überprüfung anvertraut worden sein.”
comprehensive groundwork of the commission. One example of a papal

intervention during the final stage of the reform, which was intensively
discussed by canon lawyers, is the disappearance of the norms on an eccle-
siastical administrative jurisdiction. The canonist Thomas Schüller remarks:
CIC/1983 – a perfect surprise: As the fresh Code lay on the tables of the
canonists, all rubbed their eyes in astonishment, because in the final redac-
tion of the Code, executed by a small working group around the pope in
the year 1982, the norms on the ecclesiastical administrative tribunals were
obviously no longer included. To date there has been no official explanation
why the pope as the lawgiver decided in this way.106
The tendency of the norm giver not to specify his motives for altering the law
has not changed much since. A current example is the alterations of the Code
that Benedict XVI made in 2009 by the Motu proprio Omnium in mentem, by
which the pope altered some norms on ordination.107 One change applies to
canon 1009 CIC/1983, to which one paragraph, §3, was added. This paragraph
restricts to bishops and priests the authority to act as the person of Christ the
Head, whereas deacons’ responsibilities were newly shaped and separated
from the authority of the bishops and priests. The reasons for making the
pope believe a reform was necessary at this point were not explained and gave
rise to some speculations. One was that the differentiation between the
authority of bishops and priests, on one hand, and the responsibilities of the
deacons, on the other, might prepare for the introduction of the women’s
diaconate in the church. But without an explanation from the norm giver, that
is only a hypothesis.
That the ecclesiastical norm givers do not feel overly bound by the princi-
ples of transparency and justification is also obvious with regard to the operat-
ing procedure used by the Pontifical Council for Legislative Texts.
The council is authorised by the pope to authentically interpret the universal
laws of the church.108 Its binding interpretations are regularly published
106
Schüller, ‘Vergessenes Recht’, Pastoraltheologische Informationen 31 (2011), 184; original:
“CIC/1983 – Die Überraschung ist perfekt: Als der Codex druckfrisch auf den Tischen der
Kirchenrechtler lag, rieben sich jedoch alle verwundert die Augen, denn augenscheinlich
waren bei der Schlussredaktion des Codex, durchgeführt von einer kleinen Arbeitsgruppe
um den Papst im Jahre 1982, die entsprechenden Normen zu den kirchlichen
Verwaltungsgerichten nicht mehr aufgenommen worden. Bis heute gibt es keine offizielle
Begründung, warum der Papst als Gesetzgeber so entschieden hat”; see also Aymans,
‘Einführung’, 12; Martens, ‘The Law That Never Was’, The Jurist 68 (2008), 178–222.
107
108
See John Paul II, ‘Apostolic Constitution Pastor bonus’, 28 June 1988, articles 154, 155, Acta
Apostolicae Sedis 80 (1988), 901.
without any explanations. The canonist Hubert Socha observes critically:

“With regard to the relevance of the PCLT for legal development, it would
be appropriate for the council to give up its practice of not justifying the
decisions it makes.”109
Mirroring the earlier criticisms of the lack of justification for ecclesiastical
legislation, this critique also refers to the question of legitimacy. Socha’s
suggestion that an agent involved in the development of law should explain
its decisions reveals – at least implicitly – the belief that legal development
cannot be legitimate without the norm giver explaining himself to the legal
subjects. The ecclesiastical understanding of law therefore collides with the
modern understanding of legitimation. Whoever seeks to normatively regulate
a community of free individuals can no longer do so in modernity without
providing reasons for his or her actions.
Command and Obedience?

As with non-participation, non-justification is also connected with considera-
tions of power, as non-justification is part of the practice of wielding absolutist
power. Because of this, a law presented without a reason to justify it might be
suspected of being grounded on the validity reason of power alone (even
though this might not be its real validity reason). The political scholar Tine
Stein explains:
it is an insight fully saturated by empirical experience that in organisations
that are non-transparent, which function without mechanisms of control or
regulated procedures of consultation in collegial organs, and which further-
more function without procedural criteria of fairness and show a high con-
centration of power, those in charge may tend to abuse their authority.110
The Code contributes to this impression that canon law is grounded on power, as
its norm on legislation refers only to the lawgiver and does not mention the legal
subjects as somehow relevant: “A law is established when it is promulgated”
109
Socha, ‘canon 16’, in Lüdicke (ed.), Münsterischer Kommentar (suppl. sheets 47,
February 2012), 11 no. 18d; original: “Die Bedeutung des PCI für die Rechtsfortbildung lässt
es auch angemessen erscheinen, dass der Rat seine Praxis, getroffene Entscheidungen nicht
zu begründen, aufgibt.”
110
Stein, ‘Complexio oppositorum’, 287; original: “es ist eine durch überwältigende empirische
Erfahrung gesättigte Erkenntnis, dass Organisationen, die nicht transparent sind, die ohne
Kontrollmechanismen und geregelte Beratungsverfahren in Kollegialorganen auskommen,
zudem keine prozeduralen Kriterien der Fairness kennen und dann noch eine starke
Kompetenzkonzentration aufweisen, dass in solchen Organisationen also diejenigen, die in
ihnen Verantwortung tragen, dazu neigen können, ihre Vollmacht zu missbrauchen.”
(canon 7 CIC/1983). Laws are interpreted as the results of the hierarchy’s

legislative acting. The consent of the legal subjects is not taken up in the
Code. Nevertheless, their consent is demanded by law, as the faithful are called
to react to the authorities’ regulations with “Christian obedience” (canon 212
CIC/1983; see also canon 754 CIC/1983).
For members of the church raised in modern societies, however, respect for
the law is intimately connected with norms being based on arguments and
reasons. In this regard, the findings of the sociological study “American
Catholics Today” are especially interesting, as the researchers concluded:
“The followers obey the teachings if they believe that the teachings are
legitimate, justified, and true to the will of God as they understand that will.
If the followers doubt the claims for whatever reason, including their own
consciences, they feel free to follow their consciences as having supremacy
over obedience.”111 As individual conscience is the gateway through which
a norm has to pass in order to be observed, convincing the faithful that
following a norm is the right course of action would be a more fruitful
approach than demanding obedient submission to the norm. The Code, on
the contrary, uncritically demands that the faithful be obedient to the autho-
rities of the church, with this obligation being marked as a Christian duty.
Ladislas Orsy identifies this expectation as an association of command and
obedience, established in the premodern ecclesiastical theory of governance.
Orsy notes that linking command and obedience was functional and reason-
able in premodern times, as the educational gap between the norm giver and
the legal subjects could be bridged in a constructive way by reference to
a simple scheme of command and obedience:
Our legal traditions developed in an age when the standard of general
education was much lower than today and, as a rule, there was no cultural
equality between the legislator and his subjects. In more blunt terms, the
educated and learned legislated for the masses who were uneducated and
ignorant. In such circumstances it may have been right to stress obedience to
the law.112
These conditions no longer apply. Nowadays, the majority of the people of

God are well educated and possess the knowledge and self-confidence to
reflect on legal matters, if they are adequately explained. For that reason,
Orsy recommends giving up the reference to command and obedience. He
111
D’Antonio/Davidson/Hoge/Gautier, ‘American Catholics’, in Lacey/Oakley (eds), Crisis of
Authority, Oxford, Oxford University Press, 2011, 274.
112
Orsy, ‘The Interpreter and His Art’, The Jurist 40 (1980), 42.
instead supports a new approach to fostering believers’ compliance to the law

by explaining the law to church members in order to obtain their consent.
Orsy’s more sociological critique is accompanied by other doubts. The canonist
Hubert Müller even points out that expecting obedience to the law is actually
a category error, as obedience has to be understood as a personal category:
Obedience always implies a personal relationship, a listening to somebody.
Humanity is obliged to obey the Word of God, because the Word cannot be
separated from the person of God, who reveals himself to humanity. Human
law is different – even in the church. A law of the universal church is not the
revelation of the person of the pope, but a norm posed [to regulate] the
behaviours of the whole ecclesiastical community which is given for the
reason that it is most useful for building up the body of Christ, if all members
of the church act in a prescribed way. To attain that goal, the people of God
have to act according to the law, but they do not have to obey the pope.
A human law may never be identified with the person of the lawgiver.
The idea, which is sometimes still present today and reached fever pitch in
the nineteenth century, that a Christian is obliged to obey a law of the
church, has its roots in the Enlightenment and in idealistic philosophy. It is
not theologically justifiable . . . For that reason, the phenomenon of the
ecclesiastical community’s rejection of a law cannot be explained using the
category of ‘disobedience’.113
Compliance to the Law and Freedom

Ladislas Orsy raises another critical theological issue related to the church’s
expectation that the faithful obey canon law. He refers to the modern relevance
of freedom, which should not be neglected in the legal theory of the church.
113
Müller, Gesetz, 9; original: “Gehorsam meint immer eine personale Beziehung, ein Horchen
auf jemanden. Dem Worte Gottes schuldet der Mensch Gehorsam, weil das Wort nicht
loszulösen ist von der Person des sich in ihm offenbarenden Gottes. Anders verhält es sich mit
einem menschlichen Gesetz – auch in der Kirche. Ein universalkirchliches Gesetz ist nicht
eine Offenbarung der Person des Papstes, sondern eine für das Verhalten der gesamten
kirchlichen Gemeinschaft erlassene Norm, die deshalb gegeben ist, weil es der
Auferbauung des Leibes Christi am dienlichsten ist, wenn alle Glieder der Kirche sich in
der vorgeschriebenen Weise verhalten. Um dieses Ziel zu erreichen, hat das Volk Gottes dem
Gesetz zu entsprechen, nicht jedoch der Person des Papstes zu gehorchen. Ein menschliches
Gesetz darf niemals mit der Person des Gesetzgebers identifiziert werden. Die auch heute
noch gelegentlich anzutreffende Vorstellung, der Christ schulde einem Gesetz der Kirche
Gehorsam, die im 19. Jahrhundert ihren Höhepunkt erreichte, hat ihre Wurzeln in der
Aufklärung und in der idealistischen Philosophie. Theologisch ist sie nicht zu
verantworten . . . Aus diesem Grund ist das Phänomen der Ablehnung eines Gesetzes von
seiten der kirchlichen Gemeinschaft auch nicht mit der Kategorie des ‘Ungehorsam’ zu
fassen.”
The human person is a free and autonomous subject; the church, in conse-
quence, is a “community of mature persons”.114 But does the church act in
accordance with this observation, Orsy asks, when it demands blind obedience
of its members with regard to its law? Since the legal order of the church, as
described in Chapter 1.3, is legitimised only by its function in supporting the
faith of the church, it cannot exclude the rationale of freedom which is
intimately connected with the act of faith. The church, which understands its
legal structure as giving an earthly shape to the community of salvation, sees its
legal order as relating to the order of salvation, with which every Christian is
associated in faith. Thus, the law of the church serves the faith of the church,
something which is always interrelated with freedom. The Second Vatican
Council’s Declaration Dignitatis humanae stated: “The act of faith is of its
very nature a free act” (no. 10).115 It is therefore essentially connected with
human freedom. It is an act taken by free persons who freely and willingly
decide to follow Christ.
The law of the church serves the communion as a community of free
individuals who have, of their own free will, decided to follow the ecclesias-
tical laws. This dependence on freedom is a paradox of canon law. The law of
other legal orders may rely on force. Force is often connected with the idea of
law itself, particularly in the tradition of Max Weber.116 But as an order that
essentially relies on the free affirmation of its members, the church is ill at
ease with force, and the link between the law and force loses its meaning in
the light of the freedom of faith, as Peter Huizing notes: “In the church, it
makes no sense to ‘impose’ or ‘enforce’ the external observation or nontrans-
gression of an instruction without considering a person’s inner standpoint.
Canon law has to be experienced by all members as law, yet not as enforce-
able law. Its validity relies on the affirmative answer of the community in
faith.”117
Ladislas Orsy draws a similar conclusion. If compliance to the law in the
church is connected with the act of faith, then similar conditions apply to it,
114
115
ii_vatican_council/documents/vat-ii_decl_19651207_dignitatis-humanae_en.html (accessed
22 December 2016).
116
See Weber, Economy and Society, 311–319.
117
Huizing, ‘Kirchenordnung’, in Feiner/Löhrer (eds), Mysterium Salutis IV.2, Einsiedeln,
Benziger, 1973, 170; original: “Das ‘Auferlegen’ und ‘Erzwingen’ des äußerlichen Haltens
oder Nichtübertretens einer Vorschrift, ohne Berücksichtigung der inneren Haltung ihr
gegenüber, ist in der Kirche sinnlos. Kirchenrecht muß von allen Gliedern als Recht erfahren
werden, aber nicht als erzwingbares Recht. Seine Geltung beruht auf seiner freien Bejahung
durch die Gemeinschaft im Glauben.”
namely that an individual’s conscience is key: “It would be immoral to ask an

intelligent and free person to perform an act, even in obedience to a law, if he
had not reached a personal judgment that the act was in pursuance of a true
value and if he had not decided freely to do it.”118 In another context, Orsy
adds: “To promulgate a norm of action and then to expect ‘blind obedience’
from those who have been called ‘the children of light’ does not make good
sense.”119 Based on these considerations on freedom, Orsy rejects legalistic
claims of compliance to the law which expect the blind obedience of the
faithful. He refers to the church’s expectation that its members blindly trust
the legislator, instead of reviewing the legislator’s decisions with regard to their
legitimacy, as “a subtle taint of positivism”120 which cannot be tolerated in the
church: “In the church that stands for the truth (God’s own truth), there is no
room for legalism.”121 In consequence, ecclesiastical norm givers should justify
and explain their decisions to the legal subjects, as a lack of transparency does
not do justice to the free subjects united in the church by a common faith:
“To say that ‘this is the law’ is a poor argument for its observance: the faithful,
intelligent and free persons, are entitled to know the ‘why’ of a norm.”122
Other authors highlight that this obligation to explain and justify decisions
is not only a problem of the law but also a problem of ecclesiastical leadership
as such. Michael J. Lacey (who recently co-edited the book The Crisis of
Authority in Catholic Modernity) notes that the crisis of the church is a crisis of
authority, indeed, insofar as the church hierarchy has failed to go beyond the
rationale of formal authority, “[t]he gap between the ordained and the merely
baptized says something about the size and shape of a failure to think harder
about the limits of merely formal authority.”123 Yet whoever expects the
faithful to obey, trust, and consent cannot reduce authority to formal aspects
alone, but must fill it out materially, inter alia by explaining why decisions
were made and how they serve to answer the needs of the community and
contribute to the common good. A material authority therefore inevitably
stands for a transparent and substantial information policy. In a similar vein,
the canon lawyer Ludger Müller comments:
Perceiving the fundamentally communicative character of each legal order
can and must lead to a new style of governance in the church. Ecclesiastical
118
Orsy, ‘Interpreter’, 42–43.
119
120
Ibid., 104, fn. 6.
121
122
Ibid.
123
See Lacey, ‘Prologue’, in idem/Oakley (eds), Crisis of Authority, Oxford, Oxford University
Press, 2011, 16.
laws, administrative decisions, and judicial sentences, the sense and necessity
of which are widely accepted, should usually also be respected and observed.
Law – in the secular as well as in the ecclesiastical realm – must be commu-
nicable, otherwise it has to be expected that it will be rejected.124
The Limits of Legal Force

For laws to be accepted in the church, the lawgiver must explain and justify
them, as “the ecclesial culture can no longer be realised as a culture of
coercion”125 in modernity – neither theologically nor sociologically. As canon
law today has scarcely any options left for sanctioning any lack of compliance
with the law, the church hierarchy cannot react with force to replace the law’s loss
of effectiveness, as Urs Brosi explains with regard to the ecclesiastical penal law:
For people who believe that receiving the sacraments on a regular basis and
being in community with the church is necessary to reach eternal salvation,
the ecclesiastical sanctions are effective. But as this belief is decreasing in the
modern contexts of the West, the canonical penalties are losing their rele-
vance and hence their power to enforce canon law. Whoever has distanced
themselves from the church without fearing for her or his salvation no longer
even notices these sanctions anymore. Besides, in the big urban parishes and
with respect to migration, it is becoming increasingly difficult to effect and
enforce an exclusion from the sacraments.126
124
Müller, ‘Das kanonische Recht’, Archiv für katholisches Kirchenrecht 170 (2001), 378; original:
“Die Erkenntnis des fundamental kommunikativen Charakters jeder Rechtsordnung kann
und muß auch in der Kirche zu einem neuen Leitungsstil führen. Kirchliche Gesetze,
Verwaltungsentscheidungen und Gerichtsurteile, deren Sinnhaftigkeit und Notwendigkeit
allgemein anerkannt werden, dürften im Regelfall auch respektiert und befolgt werden.
Recht ist – im staatlichen ebenso wie im kirchlichen Bereich – darauf angewiesen, kommu-
nikabel zu sein, andernfalls damit gerechnet werden muß, daß es abgelehnt wird.”
125
Essen, ‘Nachholende Selbstmodernisierung?’, 7; original: “die kirchliche Kultur nicht mehr
als Zwangskultur realisierbar ist”; see also Müller, ‘Das kanonische Recht’, 375; Kistner, Das
göttliche Recht II, 192–198; Lacey, ‘Prologue’, 3; D’Antonio/Davidson/Hoge/Gautier,
‘American Catholics’, 274; Coughlin, Law, Person, and Community, Oxford, Oxford
126
Brosi, Kirchenrecht, 19; original: “Für Menschen, die daran glauben, dass der regelmäßige
Empfang der Sakramente und die Gemeinschaft mit der Kirche notwendig sind, um das
ewige Heil zu erlangen, verfügen die kirchlichen Sanktionen über Wirksamkeit. Da diese
Überzeugung aber im modernen westlichen Lebenskontext am Schwinden ist, verlieren die
kanonischen Strafen zunehmend an Bedeutung und damit an Kraft, um das kirchliche Recht
durchzusetzen. Wer sich ohne Angst um sein Seelenheil von der Kirche entfernt hat, spürt
die gegen ihn ausgesprochenen Sanktionen gar nicht mehr. Zudem wird es in urbanen
Grosspfarreien und angesichts der Migration immer schwieriger, einen Ausschluss von den
Sakramenten wirklich zu realisieren bzw. durchzusetzen.”
Increasingly, the law is becoming effective only with regard to those faithful
who are bound to the institution of the church by orders or religious vows or
who are under contract in the church’s employment, as Brosi adds:
“The governing body of the church can now only really impose effective
sanctions on church employees who may be removed or discharged.”127
In any case, understanding the decline of compliance with canon law
mainly as the result of a failure to sanction non-compliance would, as the
legal scholar Jacques Vanderlinden explains, address only one side of the
problem. Vanderlinden draws a line between modern subjects’ experience
of freedom and plurality, on one hand, and their way of dealing with the claim
of legal subjectiveness, on the other: “The essential pluralist point is that
the individual is not just the anonymous object of State law, but also
the autonomous subject who chooses between the various laws of the social
networks to which he belongs.”128 Taking modernity’s paradigms of subjectiv-
ity and plurality seriously therefore implies that legal subjectivity is not
unavoidably fixed by external normativity, but is open to being shaped.
In a world of plural legal orders, legal subjectivity is therefore connected
with selectivity. The practice of ‘forum shopping’, known from international
private law as selecting among various legal jurisdictions, is an example of
a new approach to law gaining a foothold in modernity.129 This presents
a major problem for legal orders whose legitimacy, like that of canon law, is
being questioned, as it compromises the effectiveness of the law. Apart from
the virtual impossibility of sanctioning non-compliance with canon law, it
becomes manifest that modern subjects, experiencing legal pluralism, tie their
legal subjectivity to the precondition of consent to the law. In pluralistic
communities where the legal subjects are addressed by diverse legal orders,
they start comparing them. Accepting a claim to follow the law is increasingly
dependent on how subjects evaluate the legitimacy of that claim.
Additionally, canon law faces another reason why the faithful are less ready
to follow the law of the church, namely that they attribute a higher plausibility
to secular law than to canon law. In modern and legally pluralistic commu-
nities, where believers are confronted with the legal claims of the state and the
church, their readiness to follow ecclesiastical law is reduced if it differs
127
Ibid.: “Wirkungsvolle Sanktionen kann die Kirchenleitung fast nur noch gegenüber den
kirchlichen Mitarbeiterinnen und Mitarbeitern aussprechen, die versetzt oder entlassen
werden können.”
128
Vanderlinden, ‘Religious Laws’, in Huxley (ed.), Religion, Law and Tradition, Abingdon,
Routledge, 2002, 180.
129
See Tamanaha, ‘Legal Pluralism’, Sydney Law Review 30 (2008), 389; Seinecke, Recht des
Rechtspluralismus, Tübingen, Mohr Siebeck, 2015, 37–40.
significantly from secular law in its foundation. This is especially true in

matters which are understood as naturally founded, as mentioned earlier.
When the church refers to natural law to qualify a certain regulation as
naturally founded, it might open up positions conflicting with those present
in society, not only with regard to material normative ideas but especially with
regard to the process of lawmaking itself. Whereas in pluralistic democratic
societies, the legal development depends on the vote of the people, in the
church, the will of the hierarchic authority and its belief in the naturally right
is key. This difference in lawmaking weakens the plausibility of the church’s
law, a dilemma described historically by Brian Tierney. He sets out the
separation of the legal orders of the state and the church as happening at
a point in history, “when vast Catholic populations became irrevocably com-
mitted to political democracy at a time when the Roman see had committed
itself to the improbable task of governing a world-wide Church through the
institutional apparatus of a petty baroque despotism”.130
The reason that differences in lawmaking resulting from this history afflict
the persuasiveness of canon law (and not so much of secular law) is due to the
fact that Catholics also tend to recognise secular law as more plausible than
canon law. The canonist John P. Beal even speaks of an “experience of
the remoteness of canon law from the everyday life of the faithful”.131
The tendency for the faithful to find the secular foundation more plausible
than the ecclesiastical is a result of the canonical legal subjects’ feeling more at
home in their secular legal culture than in the ecclesiastical culture of law.
The law that primarily impregnates their legal experience is not the law of the
church but the law of the state. As the law of the state – the legal culture of
a society, democratic legislation, and the jurisdiction of the constitutional
state – forms our legal knowledge, we mostly turn to the logic of state law in
thinking or arguing legally.
That this is in any case not a problem but normal, even from an ecclesio-
logical point of view, can be elucidated by referring to the opening of the
Pastoral Constitution Gaudium et spes: “The joys and the hopes, the griefs and
the anxieties of the men of this age, . . . these are the joys and hopes, the griefs
and anxieties of the followers of Christ” (no. 1).132 This section not only
describes the solidarity between the faithful and the non-Christian members
of society but also underscores that Christians themselves are members of
130
Tierney, ‘Medieval Canon Law’, 15.
131
Beal, ‘Canon Law and Its Discontents’, 136.
132
Acta Apostolicae Sedis 58 (1966), 1025; English version: www.vatican.va/archive/hist_coun
cils/ii_vatican_council/documents/vat-ii_const_19651207_gaudium-et-spes_en.html
(accessed 22 December 2016).
society and rooted in society’s culture, including its associated legal culture.
Georg Essen interprets this fundamental orientation of Christians to the
secular legal culture as an essential referential meaning of secular society for
the church. This idea may also be related to the idea of ‘worldliness’, as found
in the Dogmatic Constitution Lumen gentium (see no. 31),133 as Essen notes:
The fact that the world of modernity is the primary horizon of Catholic
Christians lies at the core of the finding of legal sociology, namely that the
culture of transparency – which is called for by the plural public as well as the
liberal legal culture which is typical for liberal democratic legal orders – impreg-
nates the people’s idea of freedom to such a degree that they cannot simply brush
it off or discard it as soon as they enter the inner realm of the church.134
Consequently, it is also evident why Catholics apply the rationalities learnt in

dealing with the law of the state to the legal order of the church and expect
a similar grant of rights from it. The members of the church “expect the
church to grant them the same rights of freedom that they make use of
elsewhere: freedom of conscience, freedom of opinion, tolerance, rights of
participation, the right of self-determination and autonomy”.135
Summing up these findings, the canonist John Huels remarks: “The atti-
tudes of people toward law and their experiences of it in society affect the way
they view and approach canon law.”136 Catholics brought up in a democratic
environment are therefore unlikely to consider a law as legitimate if it was
shaped without considering legitimisation strategies used within the legal
order of the state. So in founding canon law, canon lawyers are well advised
to reflect on plausibilities that have proven valuable for secular law. Huels
recounts that: “canon law cannot be interpreted well without reference to
a society’s secular legal system or systems, whether formal or informal.”137
As a law that cannot plausibly explain itself to church members in isolation
from the approaches used to justify state law, modern canon law relies on
133
134
Essen, ‘Nachholende Selbstmodernisierung?’, 7; original: “Die Tatsache, dass die Welt der
Moderne der primäre Referenzhorizont katholischer Christenmenschen ist, begründet den
rechtssoziologischen Befund, dass die Kultur der Transparenz, die die plurale Öffentlichkeit
einfordert, sowie die liberale Rechtskultur, wie sie freiheitlich demokratischen
Rechtsordnungen eigentümlich ist, das Freiheitsbewusstsein von Menschen in einem
Maße prägt, dass sie es nicht sozusagen abstreifen und hinter sich lassen können, wenn sie
den Binnenraum der Kirche betreten.”
135
Ibid.; original: “erwarten, dass ihnen in der Kirche dieselben Freiheitsrechte gewährt werden,
die sie auch sonst in Anspruch nehmen: Gewissensfreiheit, Meinungsfreiheit, Toleranz,
Partizipationsrechte, das selbstbestimmte Recht autonomer Lebensführung.”
136
Huels, ‘Interpreting Canon Law’, 276.
137
Ibid.
theories of the foundation of law that may at least be related to the secular
discourses. Without this, the ability of church authorities and most Western
Catholics to communicate on matters of law is seriously jeopardised.
2.5 consequences
In a rough outline, the fundamental difficulty addressing canon law today is as
follows: as ecclesiastical governance is predemocratic, quasi-state-like, and abso-
lutistic, ecclesiastical legislation lacks modern elements of participation and
justification. In consequence, many Catholics are less willing to follow the law.
The Law’s Loss of Effectiveness

With regard to the effectiveness of canon law, there has been a decrease in
people’s compliance with it. Catholics of the West, especially, ignore the
ecclesiastical norms that fail to convince them. John J. Coughlin speaks of
an “antinomian absence of the proper appreciation of canon law”138 within the
church, which in his view is mutually (!) related to authoritarian legalism.
The canonist Rinaldo Bertolino detects an “affective distance”139 of the faith-
ful from the law of the church, and his colleague Werner Böckenförde
describes the legal reality of the church in the Western countries as follows:
There is a huge gap between the demands of Rome and the practice in the
pastoral field of the Church. This gap exists between the priests and the laity,
between the bishop and his priests, partially also between the pope and the
bishops. People say, ‘Fulda is far away, Cologne is far away, Rome is even
farther away.’ Many clerics and lay people feel conscience-bound to refuse
the demands of Rome; and many bishops tolerate this, as long as it does not
appear in the newspaper and no one files a complaint about it.140
138
Coughlin, Canon Law, 65.
139
Bertolino, ‘Sensus fidei’, Archiv für katholisches Kirchenrecht 163 (1994), 68; original:
“affektive[n] Distanz”.
140
Böckenförde, ‘Zur gegenwärtigen Lage in der römisch-katholischen Kirche’, in Lüdecke/Bier
(eds), Freiheit und Gerechtigkeit in der Kirche, Würzburg, Echter, 2006, 147; original: “Es tut
sich eine Kluft auf zwischen dem von Rom Geforderten und dem, was in der Seelsorge
praktisch geschieht. Diese Kluft ist erfahrbar bei Priestern und Laien, auch zwischen dem
Diözesanbischof und seinen Priestern, zum Teil auch zwischen dem Papst und den
Bischöfen. Es heißt: ‘Fulda ist weit, Köln ist weit, Rom ist noch weiter’. Viele Kleriker und
viele Laien fühlen sich im Gewissen verpflichtet, die Ausführung römischer Befehle zu
verweigern, und viele Diözesanbischöfe tolerieren das, solange es nicht in der Zeitung steht
oder zu Beschwerden kommt.” See also Luf, ‘Rechtsgehorsam’, 197; Goertz, ‘Naturrecht und
Menschenrecht’, 509; Lacey, ‘Prologue’, 3.
This phenomenon can be observed particularly with regard to the natural law
doctrine of the church. In the local churches of the West, believers seem to
have lost confidence that the magisterium’s teaching on the natural moral
order really relates to the naturally just. Considering the recent history of the
church, single points of conflict stand out for lowering the expectations of the
faithful about the teaching authority. The Encyclical Humanae vitae141 of
1968, on the morality of birth control, with its narrow neo-Scholastic percep-
tion of nature, served as one of the twentieth century’s milestones of estrange-
ment between the church hierarchy and the faithful, and raised fundamental
doubts among the faithful about the magisterium’s understanding of nature, at
least in the West.142 Humanae vitae was a turning point in the reception of the
official teaching on natural law, a key moment that kindled a new quality of
natural law scepticism among believers.
Although this happened a long time ago, the criticism remains. And the
debates on birth control and sexual ethics ever since have not helped to restore
the trust of the faithful, as seen in the aftermath of Humanae vitae even
nowadays. On his 2009 travel to Africa, Benedict XVI startled many faithful
with the remark that condoms were no true help against HIV and AIDS and
could even exacerbate the problem.143 He then partially revised his opinion in
2010, when, in his book Light of the World, he stated that condom use could at
least be justified for “male prostitutes” to stop the spread of HIV and AIDS.144
The lively debates following this statement motivated the Congregation for
141
142
See Hollerbach, ‘Das christliche Naturrecht’, 36; Kaufmann, ‘Wissenssoziologische
Überlegungen’, in Böckle/Böckenförde (eds), Naturrecht, Mainz, Matthias-Grünewald-Verlag,
1973, 133; Beinert, ‘Die Rezeption’, in idem (ed.), Glaube als Zustimmung, Freiburg im Breisgau,
Herder, 1991, 20–21; Luf, ‘Rechtsgehorsam’, 198–199; Scharr, Consensus fidelium, Würzburg,
Echter, 1992, 224; Puza, Katholisches Kirchenrecht, Heidelberg, UTB, 1993, 12; Kistner, Das
göttliche Recht I, 32; Ebertz, ‘Gesellschaftlicher Wandel’, Theologie und Glaube 100 (2010), 327;
Goertz, ‘Relikte’, 130–139; Großbölting, Losing Heaven, New York, Berghahn Books, 2016,
119–129.
On the situation in the United States, see D’Antonio/Davidson/Hoge/Gautier, ‘American
Catholics’, 276–279; Woodcock Tentler, ‘Souls and Bodies’, in Lacey/Oakley (eds), Crisis of
Authority, Oxford, Oxford University Press, 2011, 293–312; Kaveny, ‘Catholic Casuistry’, in
Lacey/Oakley (eds), Crisis of Authority, Oxford, Oxford University Press, 2011, 242–243, 248;
Sowle Cahill, ‘Moral Theology’, 203.
Yet there is also a counterpart in the American debates as some voices of New Natural Law
Theory fervently support the teaching of Humanae vitae: e.g. Ford/Grisez/Boyle/Finnis/May,
Humanae Vitae, San Francisco/CA, Ignatius Press, 1988.
143
Benedict XVI, Interview during the Flight to Africa, Apostolic Journey to Cameroon and
Angola, 17 March 2009, w2.vatican.va/content/benedict-xvi/en/speeches/2009/march/docu
ments/hf_ben-xvi_spe_20090317_africa-interview.html (accessed 20 May 2018).
144
See Light of the World, Ignatius Press, San Francisco, CA, 2010, 119.
the Doctrine of the Faith to react with a ‘Note on the banalization of sexuality
regarding certain interpretations of Light of the World’145 condemning
a “number of erroneous interpretations” which had emerged in the discus-
sions. The Congregation once again reiterated that the pope’s considerations
did not change the teaching of Humanae vitae and the duty of the faithful to
observe it. In 2012, the Congregation, after examining the book Just Love146 by
renowned ethicist Margaret A. Farley, published a notification stating that her
book “contained erroneous propositions” with regard to masturbation, homo-
sexuality, marriage, divorce, and remarriage, “the dissemination of which risks
grave harm to the faithful”.147 Interestingly, the Congregation complains not
only about the content of the book (accusing the author of a “defective under-
standing of the objective nature of the natural moral law”) but also about the
way in which the author treats the question of authority. The notification states
that “[t]he author does not present a correct understanding of the role of the
Church’s Magisterium as the teaching authority . . . In addressing various
moral issues, Sr. Farley either ignores the constant teaching of the
Magisterium or, where it is occasionally mentioned, treats it as one opinion
among others.”148 The natural law problem, it seems, as I have stated earlier in
this chapter, always has a material and a formal side to it. The Congregation
asserts that Farley misunderstands the church’s material natural law, yet it is
her understatement of the hierarchy’s natural governance of the church which
seems especially to be the problem here. This failure to adhere to the church’s
doctrine on natural law in a material as well as a formal sense has legal
consequences. Besides warning the faithful against the book, the Congregation
determines that the book should not be used in the context of theological
formation or counselling or ecumenical and interreligious dialogues.
Without going into the debate in detail, I think it is easy to see that a history
of miscommunication and mistrust has damaged many believers’ confidence
in the natural law doctrine of the church, particularly when matters of sexual
ethics are concerned, and likewise whenever matters of family life and gender
roles are affected. As a result of this and other ruptures, most believers today no
longer unquestioningly rely on the magisterial teaching about the natural
145
22 December 2010, www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_c
faith_doc_20101221_luce-del-mondo_en.html (accessed 20 May 2018).
146
Continuum International Publishing Group, New York, NY, 2006.
147
‘Notification on the Book “Just Love” by Sr. Margaret A. Farley R.S.M.’, 30 March 2012, www
.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20120330_
nota-farley_en.html (accessed 20 May 2018).
148
Ibid.
reasons of morals or law. And even though much of this criticism has its roots
in the 1950s and 1960s, it is as acute today as it was then.
In practice, this situation has two consequences. First, the faithful mostly
refuse to comply with the instructions based on the official doctrine of nature,
as shown in Chapter 2.4 with regard to the problem of compliance with the
law. Second, the official teaching no longer has the power to end discourses in
the sense of final clarification, although this might have been intended with
some of the teaching: “Humanae Vitae . . . was intended as such
a conversation stopper. So was Ordinatio Sacerdotalis”,149 writes Michael
J. Lacey in the preface to the book The Crisis of Authority in Catholic
Modernity. Nevertheless, the magisterium’s conversation stoppers could not
prevent discussions on sexual ethics, contraception, or women’s ordination
from continuing in academic theology as well as in the church.
Nowadays, the readiness of the faithful to accept the magisterium’s teaching
or legal claims as true is fragile to say the least. A survey on religiosity in
Germany conducted in 2010 offered revealing data about German Catholics.
The study documented that 85 per cent of German Catholics rejected the
magisterium’s teaching on birth control (only 9 per cent accepted it),
79 per cent criticised the official church’s teaching on sexual ethics
(13 per cent thought it was acceptable), and 68 per cent discarded the church’s
opinion on homosexual partnerships (17 per cent agreed with it).150
William D’Antonio, James Davidson, Dean Hoge, and Mary Gautier pro-
vide survey results from 2005 for the United States:151 42 per cent of the
Catholics questioned believed that everyone should decide for herself or
himself whether to remarry after a divorce, 22 per cent thought that the
magisterium’s teaching was key, 35 per cent thought that both perspectives –
individual belief and official teaching – were relevant. Only 13 per cent
regarded the official teaching on artificial contraception as significant, yet
61 per cent prioritised their own different opinion on the matter; again,
27 per cent wanted to take both perspectives into account. Two per cent of
the Catholics questioned thought that the magisterium’s teaching on abortion
should be adhered to, 44 per cent preferred their individual opinion, while
149
Lacey, ‘Prologue’, 15.
Is it coincidence that Lacey seems to cite Richard Rorty when speaking of a “conversation
stopper”? Rorty accused religion as such to be a conversation stopper; see Rorty, ‘Religion
As Conversation-stopper’, in idem (ed.), Philosophy and Social Hope, London, Penguin
Books, 1999, 168–175. Lacey seems to object: it is not religion itself that breaks off the discourse
but religion’s official authorities whenever they inhibit the debate about certain topics.
150
See MDG-Trendmonitor, Religiöse Kommunikation 2010, vol. 1, Munich, MDG
Medien-Dienstleistung GmbH, 2010, 65; see Ebertz, ‘Gesellschaftlicher Wandel’, 326.
151
See D’Antonio/Davidson/Hoge/Gautier, ‘American Catholics’, 282–283.
30 per cent wanted to consider both positions. Homosexual partnerships were

regarded by 46 per cent as a personal decision, 24 per cent emphasised the
official teaching, 28 per cent argued that both perspectives should be seen as
relevant. Nonmarital sexual intercourse was regarded as a private matter by
47 per cent while 22 per cent saw the official teaching as meaningful, and
30 per cent, again, wanted to consider both sides.
The authors of the study highlighted this third number as especially inter-
esting – Catholics who argued that both positions, their individual belief and
the official doctrine, should be considered relevant and brought into play to
generate answers to moral questions. The numbers, as the authors interpret
them, show that Catholics do not want to marginalise the magisterium’s
position but want a dialogue between the faithful and the church’s teaching
authority to find appropriate and up-to-date moral answers for today.
Moreover, the authors found that the rejection of the magisterium’s position
by the Catholics who prioritised their personal opinion is usually not under-
stood as a rejection of the church or of Catholicism as such, but only as
a refusal to follow the ecclesiastical authorities in matters in which the
church’s teaching is seen as problematic.
The numbers, thus, do not reveal much about Catholics’ relationship with
God, remarks Michael Lacey: “those who practice a selective Catholicism,
which includes nearly everyone, justify their choices, their refusal to follow to
the letter all the instructions handed down from Rome, by appealing privately
from a church that does not understand to a God who does.”152 With regard to
these and other topics of open discrepancy between some of the faithful and
the church’s magisterium, the philosopher and theologian Eugen Biser once
used the term “vertical schism”,153 an expression often referred to in contem-
porary theology and religious studies. This schism, as the examples show, is
especially obvious with regard to moral norms in the church, but it also affects
legal norms; the gap between the magisterium and the faithful correlates with
a gap between the legislator and the faithful.
The Law’s Loss of Existential Validity

The problem of the effectiveness of ecclesiastical norms penetrates deep into
validity theory. In the legal tradition of the church, this link between effec-
tiveness and validity is reflected in the theory of receptio legis, which
describes the necessity of a “positive response of the interested ecclesial
152
Lacey, ‘Prologue’, 16.
153
Biser, Glaubensprognose, Graz, Styria, 1991, 196; original: “vertikale[n] Schisma”.
community”154 to an act of legislation for it to be valid. Although the

technical act of legislation is performed by the ecclesiastical legislator
alone, without the participation of the community of the faithful (which
has to be addressed as a problem in itself, as it has been in Chapter 2.2, and is
in Chapter 3.4), it is essentially combined with the act of reception by the
legal community as one condition of the law’s validity. A law not acknowl-
edged by the people of God does not enter into being.
The literature about canon law mostly mentions the Apostolic Constitution
Veterum sapientia as an example of nonreception. John XXIII promulgated
the constitution in 1962 to increase the use of Latin in theological teaching.155
Yet the law was ignored by (nearly) all theological scholars and had basically
no effect on theological training. In addition to this constitution, Wolfgang
Beinert cites a nonlegal text as another example of nonreception, the
Encyclical Humanae vitae, which, “despite the tireless inculcations . . .
remained widely unaccepted by the Catholic spouses addressed”156 and was
even received sceptically by some Catholic bishops and bishops’ conferences.
These reservations towards Humanae vitae have a special significance for
Beinert, as they not only exposed the phenomenon of nonreception as such
but also sparked discussions on the relevance of nonreception, as the encycli-
cal’s problem of acceptance led to debates on the theory of reception.
It “initiated a lively discussion between theologians and between theologians
and the magisterium, the focal point of which is exactly the question regarding
the extent to which the non-infallible statements of the magisterium have to be
received and to what extent a nonreception can be legitimate”.157
This debate is also present in canon law circles. At its heart lie, first and
foremost, the legitimacy of nonreception and, second, the question of how
a factual nonreception affects the validity of law. Positivistic scholars deny that
nonreception is relevant for the validity of the law,158 as canon 7 CIC/1983
refers to the act of promulgation alone and does not mention the legal
community as being significant for the law’s validity: “A law is established
when it is promulgated.” But neither is the community as such irrelevant for
154
Gerosa, Canon Law, 76.
155
156
Beinert, ‘Rezeption’, 20; original: “trotz unermüdlicher Einschärfungen . . . weithin von den
betroffenen katholischen Eheleuten nicht akzeptiert”.
157
Ibid.; original: “eine lebhafte Diskussion unter den Theologen wie zwischen Theologen und
Lehramt ausgelöst, deren Kernpunkt genau die Frage ist, inwieweit nicht-unfehlbare
lehramtliche Äußerungen rezipiert werden müssen und inwiefern eine Nicht-Rezeption legitim
sein kann”.
158
E.g. Bier, ‘Wir sind Kirche’, in Meier/Platen/Reinhardt/Sanders (eds), Rezeption des Zweiten
Vatikanischen Konzils, Essen, Wingen, 2008, 73–97; Lüdecke/Bier, Kirchenrecht, 25, 30, 79.
positivistic thinkers, as the law of the church describes the community’s appro-
priate reaction to the act of promulgation, which is compliance with the law (see
canon 212 CIC/1983). So positivistic scholars argue that the duty to follow the law
does not open up any leeway for individual decisions on the reception or non-
reception of the law. That this understanding is also widely present within the
church hierarchy is indicated by Wolfgang Beinert in his analysis of the way the
magisterium dealt with the problem of reception with regard to Humanae vitae:
“In the course of the debate, the authority emphatically insisted on the principle
of obedience.”159 Non-compliance was sanctioned wherever possible, especially
when theological scholars were involved: “Nearly all procedures against theolo-
gians in the last decades are related to the problems mentioned.”160 The recent
proceedings against Margaret Farley’s book confirm this observation as still valid,
even though Beinert made his remark in the early 1990s.
Contrasting with the positivists’ opinion, other canonical voices emphasise
the relevance of a law’s reception by the legal community for the validity of the
law161 – even if it is open to discussion how this reception or nonreception is to
be interpreted. Does widespread non-compliance with a law immediately
render it invalid? This would marginalise the meaning of canon 7 CIC/1983,
which refers to the act of promulgation alone as a condition for the existence of
the law. Ladislas Orsy therefore differentiates between the legal validity estab-
lished by a correct act of legislation, and an “existential validity”162 of the law,
which relies on the reception of the law by the ecclesiastical communion.
Existential validity is essential for the law to become relevant for the church:
“No matter how valid the law can be legally, if it is rejected existentially it will
not shape the life of the community.”163 Orsy, consequently, emphasises the
quality of vitality as significant for the law. Reception is therefore essentially
relevant, without marginalising the meaning of canon 7 CIC/1983. A similar
idea is taken up by Hubert Müller: “For a law to enter into being, its reception
by the ecclesiastical communities is not necessary, but it is for its continuity.”164
159
Beinert, ‘Rezeption’, 20; original: “Im Verlauf dieser Debatte hat die Kirchenleitung nach-
drücklich auf dem Gehorsamsprinzip insistiert.”
160
Ibid., 20–21; original: “Fast alle Verfahren gegen Theologen im letzten Jahrzehnt hängen mit
den angeschnittenen Problemen zusammen.”
161
See Müller, Gesetz, 10–11; Orsy, ‘Interpreter’, 42; Scharr, Consensus fidelium, 222; Puza,
Kirchenrecht, 13; Demel, Handbuch, 260.
162
Orsy, ‘Interpreter’, 44.
163
Ibid.; see idem, ‘Reception and Non-Reception’, Canon Law Society of America Proceedings
46 (1984), 68.
164
Müller, Gesetz, 8; original: “Für das Zustandekommen eines Gesetzes ist die Annahme von
seiten der kirchlichen Gemeinschaften zwar nicht erforderlich, wohl aber für dessen
Weiterbestehen.”
If a law is not received by the legal community, it is ultimately confronted with

its desuetude: it ceases to be a valid law of the church.
Consent, Dissent, and the Sense of Faith

For this study, it is not necessary to decide whether a law which has not
been accepted by the people of God does not enter into being in the first
place, or whether it does not become vital and is therefore irrelevant for
the church. It has become clear, I believe, that the importance of the
reception of the law by the ecclesiastical community should not be under-
estimated in its significance apropos the validity question. A theological
approach to this subject can be found in the theory of the believers’ sense
of faith, sensus fidei fidelium.165 The term describes a sense of faith shared
by all the faithful. It is usually understood to be the believers’ capacity to
perceive the truth, as effected by the Holy Spirit, which manifests itself
when the community of the faithful univocally declares a shared belief as
true. This expresses the belief that the church in its totality stands for the
truth.
In ecclesiastical practice, the relevance of the people of God with regard to
the theory of truth expresses itself especially through reception as the “process
in which the whole community of faith (universal church) – or parts of it (local
churches) – perceive a legitimate ecclesiastical authority’s decision as true,
binding, and beneficial for the faith, and embrace it”,166 as Wolfgang Beinert
explains. Reception is the practice “of realising the consensus fidelium”,167
writes Peter Scharr in his study Consensus fidelium. Scharr suggests that
reception is so relevant for the theory of the effectiveness and validity of
canon law because the active participation of the whole church in legislation
is virtually impossible (because of the role of the hierarchy in governing the
church as well as for practical reasons). Reception is therefore the best “way of
establishing the conciliarity of the whole church, and a form of active
165
On the conciliar teaching on the sense of faith see Second Vatican Council, ‘Dogmatic
Constitution Lumen gentium’, no. 12 and no. 35, Acta Apostolicae Sedis 57 (1965), 16, 40;
‘Pastoral Constitution Gaudium et spes’, no. 52, Acta Apostolicae Sedis 58 (1966), 1074;
‘Decree Presbyterorum ordinis’, no. 9, Acta Apostolicae Sedis 58 (1966), 1006; see also
International Theological Commission, ‘Sensus fidei in the Life of the Church’, 2014, www
.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_cti_20140610_sensus-fidei_
en.html (accessed 10 December 2016).
166
Beinert, ‘Rezeption’, 17; original: “Vorgang, in dem die Glaubensgemeinschaft als ganze
(Universalkirche) oder in Teilen (Ortskirchen) eine Entscheidung der legitimen kirchlichen
Autorität als wahr, verbindlich und glaubensfördernd erkennt und sich zu eigen macht”.
167
Scharr, Consensus fidelium, 211; original: “der Verwirklichung des consensus fidelium”.
consensus fidelium”.168 As a subsequent step by which the whole church

contributes to legislation, the community of faith acknowledge the legitimacy
of the norm giver’s work. The decision to embrace a statement or a norm posed
by the official church – as an act of reception rooted in the believers’ sense of
faith – is not sufficiently interpreted as a pure act of compliance with the law,
but is intimately related to the free act of faith itself.
Besides affirming a perception or a decision of the ecclesiastical authorities,
the believers’ sense of faith is also understood as their capacity to react
negatively to an idea or norm which is presented authoritatively. The believers’
sense of faith, then, might become active with regard to a teaching which
they qualify as untrue by not fully receiving it. Thus they prevent the
teaching from becoming fruitful within the church. A doctrine that is
ignored is to be seen as rejected by the faithful. Just recently, the
International Theological Commission noted that the rejection of an eccle-
siastical doctrine or decision, at least in some cases, might indicate a conflict
between the church’s official position and the believers’ sense of faith:
“Problems arise when the majority of the faithful remain indifferent
to doctrinal or moral decisions taken by the magisterium or when they
positively reject them.”169
Yet the International Theological Commission does not always understand
the rejection by the faithful of a certain position as an act worked by their sense
of faith, as church members also can err: “This lack of reception may indicate
a weakness or a lack of faith on the part of the people of God, caused by an
insufficiently critical embrace of contemporary culture.”170 In a similar vein,
Wolfgang Beinert notes that nonreception does not necessarily indicate that
an official position is wrong: “Nonreception does not show that the content of
a decision is necessarily false, yet it does show, at least here and now (and
possibly not elsewhere and in another situation), that it has no ecclesial
value.”171 In some cases nonreception might even be due to the fact that
a certain teaching is wrong. In a similar way, the International Theological
Commission acknowledges the possibility that not only the faithful but also
the magisterium might err, even if the commission is very careful in the way it
168
Ibid., 225; original: “Verwirklichungsform der gesamtkirchlichen Konziliarität und eine
Form eines aktiven consensus fidelium”.
169
International Theological Commission, ‘Sensus fidei’, no. 123.
170
Ibid.
171
Beinert, ‘Rezeption’, 44; original: “Die Nicht-Rezeption macht nicht deutlich, daß der Inhalt
einer Entscheidung notwendig falsch ist, wohl aber macht sie deutlich, daß er, zumindest
hier und jetzt (also möglicherweise nicht andernorts und in anderer Situation), keinen
ekklesialen Lebenswert besitzt.”
phrases this: “But in some cases it may indicate that certain decisions have
been taken by those in authority without due consideration of the experience
and the sensus fidei of the faithful, or without sufficient consultation of the
faithful by the magisterium.”172 Ecclesiastical authorities must take account of
the opinion of believers as an agent of truth. The commission mentions
consultation as a way of taking this account, thus emphasising the idea of
participation.
Dissent, the Law, and the Church

What applies to finding the truth in matters of faith also applies to finding
norms which are directly or indirectly related to matters of faith.
The International Theological Commission interpreted the nonreception of
ecclesiastical doctrines by some of the faithful with regard to a theory of truth;
the same theory can be applied to the legal field when considering the
nonreception of legal acts. This nonreception also might be connected with
the theological category of the sense of faith among the faithful. It is therefore
possible to refer to the sense of faith in ecclesiastical legal theory,173 and to
relate the theory thus achieved to the approach of receptio legis. Hubert Müller
notes that
the rejection of a law [might be] an expression of the spiritual competence of
the ecclesial community’s testimony stimulated by its charisma as an expres-
sion that the disciplinary instruction that was issued does not correspond to
the life and conviction of the Christian people, and that it does not help to
fulfil the aims of the church. Rejecting a law is a public declaration that a law
does not have the qualities that it should have according to the legal theory
which is valid in the church. It is necessary for a law to be morally good, just,
necessary, helpful, clearly formulated; that it suits human nature and local
custom; that it suits context and time and is not issued for private advantage,
but for the common good of all. If a law is simply ignored by the ecclesiastical
community, this shows the common conviction that the indispensable
requirements enumerated above have not been fulfilled.174
172
173
See Hahn, ‘Lehramt und Glaubenssinn’, in Knapp/Söding (eds), Glaube in Gemeinschaft,
Freiburg im Breisgau, Herder, 2014, 182–212.
174
Müller, Gesetz, 10; original: “die Ablehnung eines Gesetzes als Ausdruck der geistlichen
Kompetenz des vom Charisma belebten Zeugnisses der kirchlichen Gemeinschaft zu wer-
ten, als Ausdruck dafür, daß die disziplinäre Weisung, die ergangen ist, nicht mit den
Lebensgewohnheiten und Vorstellungen des christlichen Volkes übereinstimmt, daß sie
nicht eine Hilfe zur Verwirklichung der kirchlichen Zielsetzung darstellt. In der
The question of the law’s effectiveness, which is posed by growing

non-compliance with the law, is accompanied by a profound theological ques-
tion. It addresses the relationship between non-compliance with the law and the
believers’ sense of faith and how this relationship renders non-compliance not
only a disciplinary problem of the church but also a theological problem of
canon law. This theological problem is primarily an ecclesiological one, as
decreasing compliance among the faithful probes the appropriateness of the
church’s legal structure. Dead laws confront the earthly church as a community
of faith in a legal structure, with doubts arising over whether its legal structure
adequately represents the heavenly church. It is possible to understand the
non-compliance of the faithful with the law as indicating that a correction to
the church’s legal structure is necessary to sustain the idea of Lumen gentium
no. 8 – of an inner connection between the heavenly and the earthly church.
Law that is ignored by the people of God is therefore a problem not only of legal
theory but of ecclesiology as well, inasmuch as it indicates the rejection by the
faithful of the church’s earthly representation.
Zurückweisung eines Gesetzes liegt die öffentliche Erklärung, daß das Gesetz nicht jene
Qualitäten besitzt, die es nach der in der Kirche geltenden Rechtstheorie auszeichnen soll.
Für ein Gesetz ist gefordert, daß es sittlich gut, gerecht, möglich, notwendig, nützlich, klar
formuliert ist; daß es der menschlichen Natur und der lokalen Gewohnheit entspricht; daß es
Ort und Zeit zuträglich ist sowie nicht zum privaten Vorteil, sondern zum gemeinsamen
Wohle aller erlassen ist. Wenn ein Gesetz von der kirchlichen Gemeinschaft einfach
ignoriert wird, liegt darin die gemeinsame Überzeugung, daß die genannten indispensablen
Erfordernisse nicht erfüllt sind.”
3
Canon Law between Nature and Culture
The problematic status of the law in the church affects matters of theology –
especially ecclesiology – and of the sociology of organisation. Dealing with
these problems, which influence the effectiveness and validity of canon law, is
essentially relevant for the church. Its future depends on shaping its structure
and its law so that the faithful can accept the earthly church as a worthy
representation of the heavenly church. If canon law disqualifies the idea
present in Lumen gentium no. 8 that the heavenly and the earthly church
form a unity, then this is grounds for its revision, for reasons of theology as well
as of sociology of organisation.
Any necessary revision of the ecclesiastical order cannot be restricted to
a critical rereading of the material law to render it more modern; it must
penetrate further than this – to the level of the foundation of law itself.
As shown in the previous chapter, problems do not arise within the commu-
nity of faith exclusively out of conflicts about material law, but also out of
fundamental dissonances about how to found law and how to shape the
procedures by which legal norms are developed.
3.1 leaving natural law behind?

The problematic status of natural law in the recent moral doctrine and legal
order of the church has given rise to questions regarding ecclesiastical natural
law theory. These questions discuss the future of natural law in the church and
its status in the validity theory of canon law. One option under discussion is the
abandonment of natural law altogether, as this would give the church the
liberty to renew the validity theory of its law. This step would offer a chance for
the church to absorb validity theories common in the secular debates and thus
to profit from the secular discourses on the foundation of law in the twentieth
century. This step would also be a way to avoid irritations such as those caused
116
Canon Law between Nature and Culture 117
by Benedict XVI’s appearance in the German Parliament, when he suggested

to the parliamentarians that they search for the naturally right to develop the
law of the state.1
Not all publications in reaction to the papal statements on legal theory have
been as affirmative as the recently published book by legal scholars Marta
Cartabia and Andrea Simoncini, who appraise Benedict’s contribution to the
debates on the foundation of law by examining his five much-discussed
speeches on legal theory.2 Yet even though most theologians are more scep-
tical about the papal ideas on natural law,3 neither canonists nor the majority
of moral theologians favour completely abandoning natural law. Even some
recent voices of liberal moral theology support natural law, albeit mostly with
some caveats.4 These voices frequently point out that many modern
approaches to moral questions indeed do rely on natural law arguments.
Eberhard Schockenhoff notes in his book Natural Law & Human Dignity:
The two most important new approaches in contemporary Catholic moral
theology, autonomous morality and teleological ethics, cannot disguise their
provenance in natural law. They share the goal of taking up anew, in the
context of the modern consciousness of freedom and scientific-technological
rationality, intellectual motifs which once belonged to natural-law thinking.5
If natural law is not referred to in narrow neo-Scholastic terms, but according

to the Weberian understanding of laws that “owe their legitimacy . . . to their
immanent and teleological qualities”,6 there are no conflicts between natural
law and modern moral theology, as Schockenhoff observes: “Indeed, if one
agrees with Max Weber’s apposite definition of the natural law as the
1
See Benedict XVI, ‘Address’, 22 September 2011, English version: www.bundestag.de/parla
ment/geschichte/gastredner/benedict/speech (accessed 29 November 2016).
2
See Cartabia/Simoncini (eds), Pope Benedict XVI’s Legal Thought, New York, NY, Cambridge
University Press, 2015. The authors refer to Benedict’s Regensburg Speech 2006, the speech to
the United Nations 2008, the Westminster Hall Address 2010, the speech at the Collège des
Bernardins in Paris 2011, and the address to the German Parliament of the same year. See also
Adolphe/Fastiggi/Vacca (eds), St. Paul, the Natural Law, and Contemporary Legal Theory,
Lanham, MD, Lexington Books, 2012.
3
E.g. Essen, ‘Harmonische Erbschaftsverhältnisse?’, in idem (ed.), Verfassung ohne Grund?,
Freiburg im Breisgau, Herder, 2012, 179–203; Hahn, ‘Gesetz der Wahrheit’, Archiv für katho-
lisches Kirchenrecht 181 (2012), 106–128, eadem, ‘Die Ansprache des Papstes im Deutschen
Bundestag’, in Essen (ed.), Verfassung ohne Grund?, Freiburg im Breisgau, Herder, 2012,
91–105; Hübenthal, ‘Naturrecht oder moderne Ethik?’
4
E.g. Traina, Feminist Ethics and Natural Law, Washington, DC, Georgetown University
Press, 1999; eadem, ‘Feministisches Naturrecht’, Concilium 2010, 309–318; Schockenhoff,
Natural Law.
5
Schockenhoff, Natural Law, 287.
6
Weber, Economy and Society, 867.
embodiment of those moral laws that have supra-positive validity (in the sense
that they are not sanctioned by religious authorities) and can be justified
rationally, then one will see how appropriate it is, given the basic tendencies
which are dominant in contemporary moral theology, to make this link to the
substance of the ‘natural law’.”7
In a similar vein, the canon lawyer John Coughlin remarks with regard to
canon law that natural law gives a rational structure to ecclesiastical law,
which is beneficial with regard to the legal community’s acceptance of law
compared to positivistic approaches:
Canon law is grounded in natural law and theology. Both of these fonts may
be described as possessing a communicative power to the subject of the law
about the rational motives that underpin the law. The practical reason of
natural law in conjunction with the faith of the believer may communicate
not only rational motive but lead to the insight necessary to convince the
believer of the validity of the canon law.8
Following these considerations, I also consider natural law arguments worthy

of adoption. They have much to offer to the foundation of canon law, even in
the twenty-first century, although changes are inevitable if natural law argu-
ments are to have a future in the church, as shown in the previous chapter.
Therefore, I would like to name two reasons for remaining loyal to natural law,
one weaker and one stronger. The first reason answers the question whether –
as a modern canonist – one can rely on natural law without being isolated in
the debates on legal philosophy and political theory. The second one asks what
genuine theological interest there might be in embracing natural law thinking.
Recent Approaches to Natural Law

In the twentieth-century Western European contributions on legal theory, one
commonly finds the thesis positing an end of natural law. This thesis
encourages canonists to think twice about whether it is wise to remain loyal
to natural law with regard to canon law foundation, as doing so might weaken
the connection between ecclesiastical and secular law. The foundation of
canon law is not dependent on being in harmony with the secular approaches
to founding law; yet achieving some harmony is not irrelevant with respect to
the legal community’s acceptance of canon law. As the acceptance of the law
by the legal subjects, which they express by receiving the law, is key for the
7
Schockenhoff, Natural Law, 2.
8
Coughlin, Canon Law, 13.
effectiveness and even the validity of canon law, the church is well advised to
ensure that the gap between the foundational theories remains as small as
possible in order to avoid any potential irritations. Founding canon law there-
fore depends on retaining a connection with the recent secular validity
theories of law for sociological reasons, even though it is not theologically
dependent on them.
It is therefore helpful that natural law arguments – in spite of the postulate
claiming the end of natural law – have not fully disappeared from public
debates, even though they are ambivalent for the reasons mentioned. Natural
law arguments can be found in ethics, legal theory (especially in the human
rights theory), and metaphysics, but also in theories of applied ethics and law
on procreation, medicine, and biotechnology.9 The return of natural law to
ethical and legal discourses is described by the moral theologians Nigel Biggar
and Rufus Black as a “Revival of Natural Law”.10 One theory which is
currently influential, especially in the United States, is the New Natural
Law Theory, the followers of which celebrate a revived Thomism to ground
their political theory and moral and legal philosophy.11 New Natural Law is
also very influential in the field of public international law and is held up by
legal scholars as one approach to develop the traditional natural law references
of public international law.12
In contributions to political theory, especially by scholars from the United
States, one can also discover attempts to bridge the gap between liberalism and
natural law.13 This relationship has a long tradition going back to John Locke,
who united liberal concepts with ideas of natural law theory. Locke’s con-
tribution to the development of the natural rights debate relies heavily on
9
For an overview of recent approaches to natural law in these fields, see González (ed.),
Contemporary Perspectives on Natural Law, Aldershot, Ashgate, 2008; Laing/Wilcox (eds),
Natural Law Reader, 251–439.
10
See Biggar/Black (eds), The Revival of Natural Law, Aldershot, Ashgate, 2000.
11
E.g. Grisez/Shaw, Beyond the New Morality; George (ed.), Natural Law Theory; idem (ed.),
Natural Law and Moral Inquiry; idem/Wolfe (ed.), Natural Law and Public Reason; George,
In Defense; Finnis, ‘Incoherence’, 1597–1611; idem, Natural Law and Natural Rights; on New
Natural Law see Hittinger, A Critique of the New Natural Law Theory, Notre Dame, IN,
University of Notre Dame Press, 1989; idem, ‘Liberalism and the American Natural Law
Tradition’, Wake Forest Law Review 25 (1990), 429–499; Biggar/Black (eds), The Revival of
Natural Law; Pope, ‘Natural Law’, 155–156; Coughlin, Law, Person, 83–85; Levering,
‘Christians and Natural Law’, 72–74.
12
E.g. Hall, ‘The Persistent Spectre’, European Journal of International Law 12 (2001), 269–307;
D’Amato, ‘Is International Law Part of Natural Law?’, in Northwestern University School of
Law, Faculty Working Papers, no. 68, 2010, http://scholarlycommons.law.northwestern.edu/f
acultyworkingpapers/68 (accessed 13 August 2016); Searl, A Normative Theory of International
Law, London 2014, http://etheses.lse.ac.uk/999 (accessed 13 August 2016).
13
E.g. Hittinger, ‘Liberalism’, 429–499; Wolfe, Natural Law Liberalism.
natural law terminology.14 This link between liberalism and natural law today
might seem unexpected at first, given that natural law theory took a turn after
the Enlightenment that does not make it a natural ally of liberal approaches.
Nevertheless, in many matters there is an obvious closeness between the two
approaches, for example, between the liberalistic natural rights linked to
natural law not only terminologically15 but also through the idea of
a universal natural normativity. Accordingly, natural law may serve as
a partner of ethical and political theories that argue universalistically.16
In a similar way, for the postwar period of German legal theory, Lena
Foljanty remarks that while the terminology of validity theory changed after
the postwar enthusiasm for natural law had passed, the idea of a universal
normativity remained: natural law, in some approaches to legal theory,
became “cultural law” to emphasise the historicity and culturality in which
each prepositive normativity is embedded. Other authors, instead of using the
term natural law, referred to “the nature of things” or spoke of an “ontological
core of law” as normatively guiding.17 Obviously, both variations include the
idea of a prepositive basis for positive law.
For the development of natural law theory, this meant a constriction of
natural law, as Foljanty notes. In the early years of the Federal Republic of
Germany, she identifies a shift from a rather broad casuistic natural law with
detailed catalogues of norms to a more principle-based law, pointing at
a natural core of law.18 In this shift, the perception of natural law also changed.
In the period shortly after the war, the main task of natural law approaches was
to avoid extreme injustice by limiting the legislator. But over time,
a constructive approach became more important, referring “to the optimisa-
tion of positive law by a [legal] scholarship which identified the ‘factually
logical structures’ and developed the basis for interpreting the law in their light
and for applying them”.19 Instead of understanding natural law as increasingly
14
This is already obvious in the preface of the Two Treatises in which Locke relates his work to
the English citizens “whose love of their just and natural rights, with their resolution to
preserve them, saved the nation when it was on the very brink of slavery and ruin” (Locke,
‘Preface’, in idem, Two Treatises, 1). Locke, then, repeatedly refers to “natural rights” in the
Two Treatises.
15
See Wolfe, Natural Law Liberalism, 162–163. That there is continuity and rupture between
natural law and natural rights is monographically shown by Francis Oakley; see Oakley,
Natural Law.
16
See Wolfe, Natural Law Liberalism, 204; Pope, ‘Natural Law’, 148–149.
17
See Foljanty, Recht oder Gesetz, 185–187, 194–202, 336.
18
See ibid., 203.
19
Ibid.; original: “die Optimierung des positiven Rechts durch eine Wissenschaft, welche die
‘sachlogischen Strukturen’ herausarbeitete und die Grundlage dafür schuf, dass die Gesetze in
deren Licht ausgelegt und angewendet werden konnten”.
irrelevant in the legal theory of the Federal Republic, one can more accurately
speak of the idea of natural law becoming more flexible, as Foljanty suggests.
Whereas the fixed casuistic natural law of neo-Scholastics died out in the
secular sphere, legal theory continued to point to the prepositive core of
the law.
Interestingly, this emphasis was especially reflected in the application
theory of the law, as Foljanty notes: “That justice is a higher good than the
legislator’s will, and that law is a matter of truth and not of the will was
something that nobody had to explain in the methodical discourses of the
1950s. This had already been achieved by the return to natural law.”20 Even if
most scholars and legal practitioners at that time and since have used the term
natural law with some caution, the idea of natural law remained present in the
legal theory of the early Federal Republic of Germany.
Nevertheless, these terminological changes in the secular debates marked
a departure from the problematic history of natural law and the echoes of
neo-Scholastic thought. With regard to the church, this shift begs the question
whether omitting natural law terminology – and not natural law itself – could
also be helpful for canon law and moral theology. This question was recently
posed by the moral theologians Lisa Sowle Cahill and Hille Haker, who asked
“whether ‘natural law’ is the best frame and the best terminology for a dialogue
on the fundamental experiences, needs, goods, values and aims which are
common to all human beings”.21 Their question implies that a terminological
break could be helpful for dealing with natural law without prejudice.
I believe there are some good reasons for this, although I do not pursue
them here. Instead, I focus on the arguments for abiding with the matter itself,
namely those for using natural law arguments with regard to the foundation
of law.
With Lena Foljanty’s words in mind, it is worth noting that after the decline
in enthusiasm for natural law in the postwar period, the altered terminology
did not erase the common belief in a prepositive foundation of law. Similarly,
legal scholars aligned with New Natural Law claim that the gap between
natural law and other recent legal theories is not as deep as it seems at first.
20
Ibid., 223; original: “Dass Gerechtigkeit höher zu veranschlagen sei als der Wille des
Gesetzgebers, und dass Recht eine Frage der Wahrheit und nicht des Willens sei, musste in
der Methodendiskussion der 1950er Jahre nicht mehr eigens begründet werden. Dies hatte die
Naturrechtsbesinnung geleistet.”
21
Sowle Cahill/Haker, ‘Menschennatur und Naturrecht’, Concilium 2010, 252; original: “ob das
‘Naturrecht’ der beste Rahmen und die beste Terminologie für einen Dialog über die
grundlegenden Erfahrungen, Bedürfnisse, Güter, Werte und Ziele sein wird, die allen
Menschen gemeinsam sind.”
The legal scholar Russell Hittinger suggested that many thinkers who do not
locate themselves in natural law traditions do, nonetheless, refer to objective
values in their theories and, thus, may be identified as ‘closet’ natural law
theorists. Hittinger understands natural law in this context as “an emblematic
circumlocution for any account of morality – whether personal, moral, or
political – that grounds at least some reasons for action in objective values, or
at the very least, anthropological values”.22 Without discussing at this point
whether it is possible to attach the natural law label to all approaches that are
not unambiguously positivistic, Hittinger elucidates that elements of natural
law can be identified as components of nonpositivistic legal theories if
a broader understanding of natural law is embraced. This might also be very
pragmatic. In this sense, Anver Emon refers to a broad understanding of
natural law from an Islamic perspective, as he sees it as a useful concept for
transcending the borders of legal cultures: “the ‘natural law’ frame is used to
reflect upon the authority of law in a manner that permits a conversation
among scholars of different legal systems.”23
So it is possible to cite modern theories that rely on natural law, yet they
cannot all be extensively addressed here. One approach that I do wish to
mention, however, is the natural law liberalism of political scholar
Christopher Wolfe. I have chosen Wolfe not because his study has similar
aims to mine, but because he shows how adaptable natural law thinking is to
the conditions of modernity, proving it apt to be joined with other theoretical
approaches as well. In his book Natural Law Liberalism, Wolfe connects his
political liberalism with natural law to arrive at a political theory which profits
from both theoretical conceptions. On one hand, natural law liberalism profits
from the achievements of liberal thinking: the idea of human equality
grounded in the dignity of the individual, the fundamental necessity of the
governed to consent to political governance, the duty of the government to
grant rights of freedom, the restriction of political government by votes,
separation of powers and judicial independence, and the rule of law according
to which political governance is legitimate only if it acts according to
applicable law.24
On the other hand, natural law liberalism secures the basic ideas of natural
law. Wolfe identifies the essential elements of natural law as the idea that all
human beings naturally consider it right to pursue good and avoid evil, that
seeking to do good and to avoid evil is dependent on the use of reason, and
22
Hittinger, ‘Liberalism’, 466–467.
23
Emon, Islamic Natural Law Theories, 10.
24
See Wolfe, Natural Law Liberalism, 144–145.
furthermore that reasonable acts can be understood as acts that aim at the
fulfilment of fundamental human goods – like life, procreation, the raising of
offspring, and the pursuit of knowledge and sociality. Wolfe also considers
human beings capable of identifying these goods as goods: “we naturally know
certain basic human goods. This is true despite the pluralism of modern
societies, which is often given as a ground – wrongly – for assuming the
impossibility of establishing social agreement on certain basic human goods.
(Even a pluralistic society, for example, can agree on recognizing life and
knowledge as intrinsic human goods.)”25 He goes on to say that it is also
possible to identify more goods by using moral tenets like the Golden Rule.
I do not examine Wolfe’s theory in detail, but I would like to pick out two of
his findings which are of major relevance for my study. First, Wolfe sets out
methodological strategies for developing a modern natural law approach by
identifying the basic lines of natural law thought and connecting them with
his own theory. This is of particular importance for my study as well, insofar as
it reveals options for rethinking natural law in the fields in which neo-Scholastic
thought has proven problematic, without giving up on natural law itself.
The approach of my study – that is, reinterpreting natural law as cultural
law – is one contribution to naturally founding law which considers the
historicity and culturality of each positive law.
Second, reading Wolfe’s book provides encouragement. Wolfe admits from
the outset that finding universal norms is a limited business. But he encourages
his readers not to avoid natural law just because the idea of an extensive universal
normativity might be somewhat unconvincing after the cultural turn. Instead of
lamenting this, one should consider the very moments in which the universal
and the historically contingent meet, and in which a culturally interpreted
nature actually has some relevance for the foundation of law.
Natural Law and Grace

The insight that canonistic considerations of natural law do not develop in
a vacuum but are related to parallel discourses of secular legal theory is an
encouragement to pursue natural law theories in canon law, but it cannot
serve as a reason for doing so. In an ecclesiastical legal order, one must argue
theologically why it seems expedient to turn to natural law as a validity theory
of religious law. One reason I would like to stress as being of key importance is
the connection between natural law and the question of grace. Natural law
joins Christian legal understanding with a theology of grace, enabling
25
Ibid., 174.
theology not only to think of the salvation of fellow Christians but also to
include non-Christian and even nonreligious individuals in the divine offer of
grace. Connected with this is the potential of natural law to encourage
interreligious dialogue and discourses between Christians and nonbelievers.
In the Abrahamic religions, the way in which religious legal orders refer to
natural law, and the status they attribute to the naturally just within the order of
grace, is not only significant for legal theory but also relevant for establishing who
may expect to find grace before God. The idea of receiving grace based on
natural justice is not alien to the three Religions of the Book. Yet there are
fundamental doubts in Judaism and Islam whether following natural law without
acknowledging revelation is enough for the individual to receive God’s grace.
A Share in the World to Come?

With respect to Judaism, Chapter 1.1 has already mentioned the lack of
agreement on whether the category of natural law exists in Jewish legal theory
as a distinct source of law in addition to revelation. It is possible to understand
the Noachide laws as a Jewish version of natural law,26 but controversy exists
over whether an individual perception of the naturally just can be achieved
without a personal relationship to revelation. Connected with this question is
the question whether a just life without any reference to revelation is relevant
for attaining God’s grace. The majority of Jewish legal scholars would affirm
this possibility after consulting the Tosefta: “there must be righteous men
among the heathen who have a share in the world to come” (Tractate
Sanhedrin 13,2;27 see also Babylonian Talmud, Tractate Sanhedrin 105a28).
In contrast to Christianity, ancient and medieval Judaism – on the basis of
a universal ethics – adopted an integrated perspective on grace and left an
exclusivist view behind. The philosopher and theologian Steven
Schwarzschild remarks: “On this doctrine the justified Jewish claim has
been based that Judaism emphasizes morality more than belief and that it
does not condemn men just because they do not adhere to its law and faith.
This position has traditionally been contrasted with the classic doctrine of the
Christian church that ‘outside of the Church there is no salvation’.”29
26
E.g. Mendelssohn, ‘Schreiben an Lavater’, 43; Cohen, Religion der Vernunft, 142; Schultz,
‘Noahite Commandments’, 354–370; Novak, Natural Law in Judaism, 191.
27
Translated by H. Danby, London, Society for Promoting Christian Knowledge, 1919, 122.
28
Internet source: www.come-and-hear.com/sanhedrin/sanhedrin_105.html (accessed 8
May 2017).
29
Schwarzschild, ‘Do Noahites Have to Believe in Revelation?’, part 1, Jewish Quarterly Review
52 (1962), 297.
Maimonides, however, identified a flaw in this understanding. One of the

most influential voices in medieval Jewish philosophy and legal theory,
Maimonides was also influential when he rendered the Noachide laws as an
insufficient precondition for non-Jews to participate in God’s grace. In his
view, observing the Noachide laws was relevant for attaining grace only if
connected with an insight into their divine foundation:
Whoever accepts the seven Noahide commandments as authoritative and is
personally obligated to do what they command [ve-nizhar la’asotan], this
person is considered to be one of the pious gentiles [me-hasidei ummot
ha’olam] and has a share in the world-beyond [l’olam ha-ba]. That is, when
one accepts them and does them because of what was commanded concern-
ing them [mipnei she-tsivah bahen] by God in the Torah. It is what was made
known to us in the Torah through Moses our master, that the Noahides were
so commanded earlier [mi-qodem]. However, if somebody did them because
reason compels them to do so, that person is not . . . one of the pious gentiles
(Mischne Torah, Hilkhot Melakhim, chapter 8, 11).30
In the view of Maimonides, the obligation of the Noachide laws must be

interpreted from the perspective of revelation to open up their potential to
justify humankind’s action before God. Following a natural normativity
perceived by reason is insufficient. The philosopher Eugene Korn remarks
that this change in the Jewish theory of grace in the light of Maimonides’ work
was a surprising turn to a rather “Catholic” idea: “Maimonides’ qualification
evolves into Judaism’s analogue of the traditional Catholic principle, Extra
ecclesiam nulla salus . . . Thus the world to come has been transformed into an
Orthodox neighborhood, rather than a spiritual destination for all created in
the image of God.”31
This exclusivist approach is surprising, first and foremost because it does not
match Maimonides’ approach in general, and second because it is doubtful
whether it relates to the authority of the Talmud or another major source, or
stands for itself. Wondering about how Maimonides came to his understand-
ing, nonetheless, did not prevent his opinion from becoming highly influen-
tial in Jewish thought, as it was the belief of one of the most important
medieval Jewish legal philosophers. At the same time, it provoked other
scholars to protest; they emphasised the optimism of the Tosefta with regard
to the just non-Jews receiving grace, and for that reason they declared
Maimonides’ approach invalid. Moses Mendelssohn – one of the most influ-
ential Jewish voices of the Enlightenment – protests against Maimonides’
30
Cited in Novak, ‘Response to Matthew Levering’, 134–135.
31
Korn, ‘Gentiles, the World to Come, and Judaism’, Modern Judaism 14 (1994), 270–271.
theory. The Talmud, Mendelssohn states, did not support the view of
Maimonides.32 In 1769, in a letter to the reformed philosopher Johann
Casper Lavater, who had publicly demanded that Mendelssohn convert to
the Christian faith, Mendelssohn explained that Judaism did not possess
a missionary dynamic because it could conceive of non-Jews receiving God’s
grace even without their conversion to Judaism. Converting just people to take
on the Jewish faith, in Mendelssohn’s opinion, was not only unnecessary for
their state of grace but also a strange way of approaching them:
If a Confucius or a Solon lived among my contemporaries, I could love and
admire the great man, according to the principles of my religion, without
developing the ridiculous idea of wishing to convert a Confucius or a Solon.
Converting? For what? . . . Do I believe that he could be saved? – Oh! I think
that whoever leads men to virtue in this life cannot be damned in the other.33
Mendelssohn grappled with Maimonides’ narrow understanding of the meaning

of the Noachide laws. Schwarzschild writes that Maimonides’ point posed “a real
and most disturbing problem”34 to Mendelssohn, as it did not accord with the
prominent position of human reason in Mendelssohn’s thinking, neither did it
correspond to his understanding of God: “he cannot believe that God would be
so cruel as to deprive some men, regardless of the time in which they live, of the
people to which they belong, or of the religion in which they believe, of that
which is the highest human good and by which the good life can be attained.”35
Most modern Jewish theologians and philosophers share these reservations
about Maimonides’ opinion. Most agree that the Tosefta implies that non-Jews
have a share in the world to come. At the same time, other voices affirm that
this does not relativise the importance of belonging to the Jewish community
and of following Jewish law, as David Novak notes: “Natural law, which is
formulated philosophically, is the precondition but not the cause of
a flourishing human life; that life is only fulfilled by revealed law, which is
constituted theologically.”36 The way in which a human person can show
32
See Mendelssohn, ‘Schreiben an Lavater’, 43.
33
Ibid., 44–45; original: “Wenn unter meinen Zeitgenossen ein Confucius oder Solon lebte, so
könnte ich, nach den Grundsätzen meiner Religion, den großen Mann lieben und bewun-
dern, ohne auf den lächerlichen Gedanken zu kommen, einen Confucius oder Solon
bekehren zu wollen. Bekehren? Wozu? . . . Ob ich glaubte, daß er selig werden könnte? –
O! mich dünkt, wer in diesem Leben die Menschen zur Tugend anführet, kann in jenem
nicht verdammt warden.”
34
Schwarzschild, ‘Do Noahites’, part 1, 306.
35
Ibid., 306–307.
36
Novak, ‘Response to Anver Emon’, in Emon/Levering/Novak, Natural Law, Oxford, Oxford
herself or himself worthy of being made in the image of God is to fully follow
the divine laws. This is, in any case, possible only for those who acknowledge
the law of revelation. In this sense, Novak sees himself as a representative of
“Soft Natural Law”, a term coined by Anver Emon,37 insofar as he does not
regard it as irrelevant whether someone observes the Halacha. A life as God
wills it for humankind must seek to relate itself to God and therefore also to
divine law as revealed in the texts of revelation.
Natural Law and Salvation in Islam

Islam also discusses whether a just life may be sufficient for human beings to
receive God’s grace. The Islamic scholar Abdulaziz Sachedina notes that
answering the question whether a non-Muslim can be saved depends highly
on how one interprets the Qur’an. There is an “apparent contradiction
between some passages of the Qur’an that recognized the other monotheistic
communities as worthy of salvation through adherence to their own traditions,
and other verses declaring Islam as the only source of salvation”.38 Opinions
on whether all human beings, or at least the members of the Religions of the
Book, or nobody outside the Islamic ulama will be saved, have differed greatly
during the history of Islam, Sachedina observes.39 Also in this context, the
positions of the two influential schools of the Mu’tazilites and of the Ash’arites
are interesting, as they are contradictory to say the least. In the tradition of the
School of Mu’tazila, which affirms that the naturally right is perceivable by
reason even outside the ulama, it is possible to conceive of non-Muslims being
saved on the basis of an ethical life lived in accordance with natural norms
perceived by the use of reason. From an Ash’arite perspective – locating
natural law within the context of revelation itself – this is impossible. In this
sense, modern-day Shi’ite approaches in the tradition of the Mu’tazilites tend
to affirm that salvation of the members of the Religions of the Book is likely,
whereas Sunni schools are more sceptical about this. As Sunnite Islam in the
Islamic world is the bigger group by numbers, Islam at present tends to be
rather sceptical regarding the salvation of non-Muslims.
Nevertheless, some Islamic scholars have raised their voices in protest.
Sachedina, who in his book Islam and the Challenge of Human Rights uses
natural law arguments to address the question of human rights within Islam
37
See Emon, Islamic Natural Law Theories, 31–37, 123–188; idem, ‘Islamic Natural Law
Theories’, 151–158.
38
39
See ibid., 202–205.
(and by doing so argues in favour of a normative universalism embracing

humankind), is not primarily interested in the matter of salvation. But he does
touch upon it indirectly by encouraging an inclusive understanding of Islam:
“The natural law idea, if proven as intrinsic to Islam as it is, for instance, to
Catholicism, will determine the course of action to revisit and revise the
traditional disqualifications for inclusive membership of all human beings
on the basis of divinely endowed human dignity.”40 Whereas Sachedina is
concerned less with theological questions like salvation, he does take up the
idea of universal human rights for Islamic legal philosophy. Yet these two
questions are not as far apart as they might seem at first. The present reluc-
tance to include individuals who are not members of the ulama into the legal
community (here the relevance for Sachedina’s considerations on human
rights becomes obvious) and at the same time into the salvific community
(this is connected with the matter of salvation) are two sides of the same
problem. On both levels, theological, ethical, and legal thought might be
opened up by attributing an integrative significance to natural law through its
capacity to attach non-Muslims to the legal community as well as to the
community of faith. Natural law in this context could serve as
a universalising factor and is therefore why Sachedina wants to use it. For
this reason, he proposes natural law to Muslim legal scholars as an approach
which Islamic legal theory might use to improve its ability to argue universa-
listically and, thus, to accept the genuine dignity of non-Muslims.
Salvation outside the Church

In answering Johann Casper Lavater in 1769, Moses Mendelssohn suggested
that the Jewish belief – that the conversion of just people was unnecessary for
their grace before God – was the most valid approach to a theory of grace from
the perspective of a modern enlightened view, as it protects everyone’s neces-
sary freedom in religious matters.41 The problem that Christianity – and
especially Catholicism – has in dealing with the teaching that there is no
salvation outside the church (“Extra ecclesiam nulla salus”),42 does not arise
40
Ibid., 101.
41
See Mendelssohn, ‘Schreiben an Lavater’, 42–45.
42
See Boniface VIII, Bull Unam sanctam, 18 November 1302, in Denzinger, Enchiridion
symbolorum, 43rd edn, Freiburg im Breisgau, Herder, 2010, especially 872, 875; Council of
Florence, Eugen IV, Bull Cantate Domino, 4 February 1442, in Epistolae Pontificiae ad
Concilium Florentinum Spectantes, part 3, ed. by G. Hofmann, Rome, Edizioni Orientalia
Christiana, 1946, 51.
for Judaism – as long as it is possible to dispense with Maimonides’ under-

standing of an essential reference of natural law to revelation.
The equivalent reorientation in Catholic theology is connected with
the Second Vatican Council, which left behind the exclusivist reading of
the extra ecclesiam teaching. Modern Catholic teaching affirms that salvation
without integration into the Christian community is possible. Recent history,
in which the church learnt to see itself as a global institution, might have been
historically relevant in this development.43 At the same time, natural law as
a theoretical basis played no small part in the church relinquishing an
exclusivism of salvation, as Silvio Ferrari remarks: “According to the Roman
Catholic doctrine, human beings can reach eternal salvation even if they do
not know the Christian revelation or reject it ‘bona fide’. It is enough that they
sincerely seek God and try to live according to God’s will as understood by
their own conscience, that is according to natural divine law.”44 Whoever
listens to her or his inner voice or conscience as a critical instance in finding
the naturally just can be saved, because she or he is following the norms that
God integrated into creation. The Dogmatic Constitution Lumen gentium
mentions the orientation towards God’s grace in the Religions of the Books
and other religions, as well as the salvific perspective of all individuals on the
basis of natural law:
Nor does Divine Providence deny the helps necessary for salvation to those
who, without blame on their part, have not yet arrived at an explicit knowl-
edge of God and with His grace strive to live a good life. Whatever good or
truth is found amongst them is looked upon by the Church as a preparation
for the Gospel. She knows that it is given by Him who enlightens all men so
that they may finally have life (no. 16).45
The model of concentric circles used by the ecclesiology of the council to

describe individuals’ relationships with the church – which aligns all of the
baptised to the Church of Christ subsisting in the Catholic Church46 – may
43
See Hill Fletcher, ‘Responding to Religious Difference’, in Bulman/Parrella (eds), From Trent
to Vatican II, Oxford, Oxford University Press, 2006, 271–273.
44
45
ii_vatican_council/documents/vat-ii_const_19641121_lumen-gentium_en.html (accessed
25 December 2016); see also Second Vatican Council, ‘Decree Ad gentes’, no. 7, Acta
Apostolicae Sedis 58 (1966), 955–956; Congregation for the Doctrine of the Faith,
‘Declaration Dominus Iesus’, 6 August 2000, nos 21–22, www.vatican.va/roman_curia/congre
gations/cfaith/documents/rc_con_cfaith_doc_20000806_dominus-iesus_en.html (accessed
25 December 2016).
46
See Lumen gentium, no. 8, Acta Apostolicae Sedis 57 (1965), 12.
also be understood in a broader light to include nonreligious individuals of

good will who, despite not knowing revelation, live a good life according to
natural law. This salvific perspective of all people upholds the idea of aligning
all of creation with the Catholic teaching on salvation. It is connected with
a theology of creation which channels the whole of humanity towards the
Catholic Church. Klaus Mörsdorf draws an analogy between this approach
and a theology of incarnation: “God’s kenosis in the Son of God’s incarnation
into human nature continues to have an effect, insofar as God in the holy
people chosen by him relinquishes himself in the form of a human
community.”47
That humanity’s orientation to the church has to be thought of in a nuanced
way is mirrored in the differing degrees of obligation of the church’s law:
purely human canon law obliges only the members of the Catholic Church
(see canon 11 CIC/1983), whereas norms derived from revelation bind all the
baptised and hence non-Catholic Christians as well. Natural law, however,
applies to all human beings. It binds all who are capable of perceiving the
naturally just by the use of reason.
That ecclesiastical status and legal obligation have to be understood in
parallel is the result of ecclesiology: it reflects the understanding of Lumen
gentium no. 8, that the earthly church becomes real in a human community
which gains its shape by law. The closer an individual is to the Catholic
Church as a subsistence of Christ’s Church on earth, the more she or he is tied
by the binding force of the church’s legal structure. The individual’s integra-
tion into the Catholic Church is connected with the full binding force of
ecclesiastical law. Being part of the Church of Christ but not a member of the
Catholic Church correlates to being obliged to obey divine law, which is given
by revelation and nature. Any member of the human family who is not part of
the Church of Christ but is endowed with the capacity to perceive the
naturally just through reason is bound to natural law. In these obligations,
the link between the order of creation and the order of salvation becomes
obvious. Humankind’s use of reason makes it plausible to think of humanity as
obliged by nature without knowing revelation. This obligation directs the
morally acting individual to the order of salvation and points all of creation
towards salvation. This concentric model posits the idea that all of creation
can partake in salvation. In this sense, natural law acts as an instrument of
obligation that makes it possible to think of the salvation of humankind,
47
Mörsdorf, ‘Wort und Sakrament’, 79; original: “Die in der Menschwerdung des Gottessohnes
vollzogene Entäußerung Gottes in die menschliche Natur wirkt fort, indem Gott sich in dem
von ihm erwählten heiligen Volk in die Form menschlicher Gemeinschaft entäußert.”
despite the claim of absoluteness connected with the Christian revelation. With
regard to this finding, the International Theological Commission notes:
“Christianity does not have the monopoly on the natural law. In fact, founded
on reason, common to all human beings, the natural law is the basis of colla-
boration among all persons of good will, whatever their religious convictions.”48
The commission links its considerations with the Pauline tradition of
natural law as a law of reason, which Paul initiates in his Letter to the
Romans. Paul relates to a “law of my mind” (Romans 7:23) as an individual’s
perceptive capacity which is effective in all human beings. Heathens who act
unjustly are not excused because they do not partake in revelation, as they
might gain an insight into the normativity of nature on the basis of reason: “For
what can be known about God is plain to them, because God has shown it to
them. Ever since the creation of the world his eternal power and divine nature,
invisible though they are, have been understood and seen through the things
he has made. So they are without excuse” (Romans 1:19–20).
Reason serves as the individual human ability to establish a link between the
order of creation and the order of salvation. In the logos tradition of Christian
theology reason is understood as partaking in the creational power and knowl-
edge of the divine, as the commission states: “Every creature, in its own
manner, participates in the Logos. Man, since he is defined by reason or
logos, participates in it in an eminent manner.”49 Connected with this is an
epistemological consequence for the normativity of the creation: “by his
reason, he [man] is capable of freely interiorizing the divine intentions
manifested in the nature of things. He formulates them for himself under
the form of a moral law that inspires and orients his action.”50 Perceiving
natural law is therefore rooted in human reason, which as part of the divine
reason is capable of gaining an insight into the law of nature: “In this perspec-
tive, man is not ‘the other’ in relation to nature. On the contrary, he maintains
with the cosmos a bond of familiarity founded on a common participation in
the divine Logos.”51
The alignment of normative human judgement by reason with the reason of
the creator gives natural law arguments an integrative power. As human norma-
tivity may be interpreted against the background of its divine foundation,
Christians may understand human justice (whether motivated by a revelational
belief or not) as relevant for salvation. Regardless of whether others choose the
48
49
Ibid., no. 70.
50
Ibid.; see also John Paul II, Encyclical Veritatis splendor, no. 40, Acta Apostolicae Sedis 85
(1993), 1165.
51
right course of action through religious or nonreligious motives, the Christian

perspective may interpret just action as a consequence of humankind’s
God-given rationality and, hence, as a result of the logos which directs
individuals to the order of salvation.
3.2 universality, historicity, culturality

As the preceding section has demonstrated, one reason for continuing to think
of nature as the source of ecclesiastical validity theory is, therefore, that the
concept of natural law makes it possible to think of salvation outside the
Christian community. But before the potential of natural law can be played
out – for example within interreligious dialogues on the law – the idea of
natural law must be revitalised so that it becomes more convincing as a validity
reason of law in modernity. With regard to the church’s traditional doctrine on
natural law, this faces some difficulties, as hinted at in Chapter 2. To revitalise
natural law as an approach to the foundation of canon law will require
clarification about how to deal with the ahistoricity of natural law thinking,
how to meet the positivistic and voluntarist tendencies in lawmaking and
application, and how to respond to the lack of participation and justification
within ecclesiastical legislation and the consequent problem of the legitimacy
of canon law.
Historicity and Culturality

One central problem of neo-Scholastic natural law is that it tends to under-
stand law ahistorically. This means it is largely incapable of dealing with the
modern idea of freedom and of positively receiving the historicity and cultur-
ality of legal norms.52 But this criticism does not apply only to Christian or
even Catholic natural law. Natural law thinking as such – because of the
universal claim connected with it – is generally tempted by ahistoricity, as the
natural law theorist David Novak remarks in his book Natural Law in Judaism.
Novak elucidates his observation by referring to the natural law reproach of the
paradigm of culture. He indicates that the rejection of cultural factors is
a common temptation in natural law reasoning: “Perhaps the greatest vulner-
ability of natural law theory, both in the ancient and modern times, is its
seeming oblivion to and disrespect of cultural diversity, especially in norma-
tive matters.”53
52
See Böckenförde, ‘German Catholicism’, 299.
53
A law shaped by culture is suspected of losing the universal claim of natural

normativity. Yet abstaining from culture to safeguard universalism provokes
a contradiction, as Novak notes: “Natural law is taken as what is to be
universal. But from where does one begin to constitute this universe?”54
Insofar as universal normativity can be thought of only from a concrete
point of view, the cultural context is the necessary background of experience
out of which human perception is focussed on the natural matter that is to be
perceived.
The normative meaning of nature can therefore be perceived only from
a cultural point of view. Yet culture in this sense is not used as a normative
concept primarily. Instead, it refers to the socially formed context in which
normative considerations occur. The anthropologist Clifford Geertz, in the
1970s, prominently defined a descriptive understanding of culture. He under-
stands culture as a system of meanings that form the basis of social interactions
and to which human feelings, judgements, and acts may be related. Culture,
Geertz suggests, is a “framework of beliefs, expressive symbols, and values in
terms of which individuals define their world, express their feelings, and make
their judgments”.55 As a symbolic system, culture is “the fabric of meaning in
terms of which human beings interpret their experience and guide their
action”.56 This definition was and is often cited by scholars of the humanities
and the social sciences; it heavily impregnated these disciplines’ understand-
ing of culture. It is also not unknown in theology and finds widespread use in
intercultural theology in particular. One understanding of culture which was
inspired by Geertz can be found in Robert Schreiter’s book Constructing Local
Theologies. Schreiter describes culture as a delicate correlation of values, rules
and symbols which constitute meaning and identity: “It provides basic mes-
sages (values) and codes (rules), which relate (signs) those messages to data in
the environment. Together they create meaning. The proper interaction and
working of these three dimensions makes for that fragile creation, identity;
when circumstances prevent their interaction, the culture breaks down.”57
So culture is a descriptive term, yet it is intimately associated with normativity,
as meaning and identity are the results of normative interpretations of the
natural, of human existence, and of the social. In this sense, Jürgen Habermas
clarifies that culture, because of its connection with validity claims, always
refers to normativity:
54
Ibid.
55
Geertz, ‘Ritual and Social Chance’, in idem, Interpretation of Cultures, New York, NY, Basic
Books, 1973, 144–145.
56
Ibid., 145.
57
Schreiter, Constructing Local Theologies, London, Orbis Books, 1985, 107.
Culture consists of statements (or sediments of statements), which are pro-

duced by subjects capable of speaking and acting according to rules (or were
produced by past generations). Insofar as all statements imply validity claims,
the section of reality that is called culture is based on the facticity of validity
claims.58
Legal Culture – Cultures of the Law

Phenomena of the law – the legal terms and symbols, values and norms that
produce legal meaning and, thus, legal normativity – constitute a part of the
validity claims raised in human cultures. They are part of culture and in their
sum constitute legal culture. The term legal culture is much used in the
discourses of legal sociology, although it is somewhat ambiguous. The
sociologist of law Erhard Blankenburg once called it a “weasel word”:
“Every time the discourse becomes vague and general, the weasel ‘legal
culture’ appears.”59 Different writers use the term to describe diverse aspects
of a society’s experience with the law:
One time it describes the people’s attitudes with regard to the law and its
institutions . . . In this frame it also may take on the narrower meaning of the
‘expectations’ which the people . . . have with regard to legal institutions.
Another time it describes the way jurists deal with the rules of interpreting the
law (for example according to the opposites of strict positivism or more
natural law arguments . . .), a third time [it describes] the relative autonomy
of ‘jurisdiction’ as an institution which stands in opposition to politics and
special interests.60
58
Habermas, ‘Wahrheitstheorien’, in Fahrenbach (ed.), Wirklichkeit und Reflexion, Pfullingen,
Neske, 1973, 227; original: “Kultur besteht aus Äußerungen (oder Sedimenten von
Äußerungen), die durch sprach- und handlungsfähige Subjekte nach Regeln hervorgebracht
werden (oder von vergangenen Generationen hervorgebracht worden sind). Da alle diese
Äußerungen Geltungsansprüche implizieren, beruht der Kultur genannte Wirklichkeitsbereich
auf der Faktizität von Geltungsansprüchen.”
59
Blankenburg, ‘Rechtskultur’, in Hoffmann-Nowotny (ed.), Kultur und Gesellschaft, Zürich,
Seismo, 1989, 292; original: “Immer wenn der Diskurs vage und allgemein wird, taucht das
Wiesel ‘Rechtskultur’ auf.”
60
Ibid.; original: “Einmal bezeichnet es Attitüden der Bevölkerung gegenüber dem Recht und
seinen Institutionen . . . Es kann in diesem Rahmen auch präzisiert sein als die ‘Erwartungen’,
die in der Bevölkerung . . . an rechtliche Institutionen gestellt werden. Ein andermal bezeich-
net es den Umgang von Juristen mit den Interpretationsregeln des Rechts (etwa entlang dem
Gegensatz zwischen striktem Positivismus gegenüber mehr naturrechtlichen
Argumenten . . .), ein drittes Mal die relative Autonomie der ‘Rechtsprechung’ als
Institution gegenüber Politik und Interesseneinflüssen.”
In seeking to comprehend the phenomenon of legal culture, all of the mean-

ings mentioned are of interest, Blankenburg remarks, although they have to be
systematised to understand them better. Blankenburg himself offers a fourfold
systematic, which understands a culture of law on the basis of its norms,
institutions, legal practices, and expectations:
‘Legal culture’, as the ‘interplay of a legal order’s attributes on four levels’
refers to: the positive and prepositive norms which are acknowledged and
accepted by the profession; the institutions which acknowledge, accept and
administer these norms; the legal practice of those under the law who turn to
these institutions, and the attitudes of those under the law towards the legal
norms and institutions.61
As these approaches to a culturality of the law always relate to something

historically grown – historically developed norms, institutions, and legal
experiences – the legal scholar and historian Margrit Seckelmann describes
legal culture as “clotted history”.62
As is true of all cultures, legal cultures exist only in the plural, even though
most contributions by canon lawyers appear to suggest otherwise. The preface
of Ilona Riedel-Spangenberger’s book Rechtskultur in der Diözese (Legal
Culture – singular! – in the Diocese), for example, states that the reason for
using the singular is the particular perspective of the book, which is not about
a descriptive collection of plural cultural realities in the church’s legal life,
but about the normative dimension of the church’s legal culturality.
Riedel-Spangenberger describes legal culture as a value which unites various
normative expectations connected with the ecclesiastical legal order:
The ecclesiastical legal culture, if it is to be accepted as a value, carries legal
certainty, that is unambiguous legal norms which may not contradict theo-
logical propositions; also the knowledge of currently valid ecclesiastical laws,
and especially legal protection in the sense of an acknowledgement of the
61
Ibid., 292–293; original: “‘Rechtskultur’ als die ‘Wechselwirkung von Eigenschaften einer
Rechtsordnung auf vier Ebenen’ bezeichnet: derjenigen der positiven und überpositiven
Rechtsnormen, die von der Profession erkannt und anerkannt werden; derjenigen der
Institutionen, die diese Normen erkennen, anerkennen und verwalten; derjenigen
des Rechtsverhaltens eines Rechtspublikums, das diese Institutionen einschaltet, und
derjenigen der Einstellungen dieses Rechtspublikums gegenüber rechtlichen Normen
und Institutionen.”
62
Seckelmann, ‘Rechtstransfer’, Rechtstheorie 43 (2012), 423, 427. With this term, Seckelmann
also relates to the thick description approach, which Clifford Geertz developed, understand-
ing cultural phenomena by describing them in a narratively ‘thickened’ way: see Seckelmann,
‘Rechtstransfer’, 436, referring to Geertz, ‘Description’, in idem, Interpretation of Cultures,
New York, NY, Basic Books, 1973, 14.
faithful’s own rights as well as the ecclesiastical authorities’ obligation to act

according to the law as well as to shape legal instruments and legal proce-
dures to solve conflicts.63
In 2011, about 300 theologians from across the German-speaking countries

signed a memorandum of reform in the church, called Kirche 2011: Ein
notwendiger Aufbruch (Church 2011: A Necessary New Awakening), in which,
similarly to Riedel-Spangenberger, they ally the idea of legal culture with
normative expectations. The petition names six fields of action on which the
church should focus to regain its credibility and to become a church of
freedom in accordance with the biblical message of freedom. Framed by the
topics of participation and parish on one side, and freedom of conscience,
reconciliation, and liturgy on the other, the central topic highlights the need
for change in the ecclesiastical legal culture.
Acknowledging the dignity and freedom of each person becomes especially
visible when conflicts are carried out fairly and with mutual respect.
Ecclesiastical law deserves its name only if the faithful can actually assert
their rights. Legal protection and legal culture in the church require urgent
improvement; a first step is the development of an ecclesiastical adminis-
trative jurisdiction.64
The idea of legal culture includes having fair procedures for solving conflicts
within the church, possessing structures of legal protection, and setting up an
elaborate administrative judicature. These three elements reveal that speaking
63
Riedel-Spangenberger, ‘Vorwort’, in eadem (ed.), Rechtskultur, Freiburg im Breisgau,
Herder, 2006, 10; original: “Zur kirchlichen Rechtskultur, soll sie als Wert anerkannt sein,
gehören Rechtssicherheit, d. h. eindeutige Rechtsnormen, die theologischen Prämissen nicht
widersprechen dürfen; ebenso auch die Kenntnis der tatsächlich geltenden kirchlichen
Gesetze, vor allem aber Rechtsschutz im Sinne der Anerkennung der jeweils eigenen
Rechte der Gläubigen und ebenso die Verpflichtung zu rechtskonformem Handeln der
kirchlichen Autoritäten sowie die Ausgestaltung der Rechtsmittel und Rechtsverfahren zur
Lösung von Konflikten.”
Similarly, the legal scholar Christian Starck speaks of “achievements” of the modern legal
culture like the modern contract, procedural rules like the right to be heard or the principle of
proportionality binding the state when using force, or the social welfare state (see Starck,
Errungenschaften der Rechtskultur, Göttingen, Wallstein, 2011, 9–14).
64
Memorandum Kirche 2011, 4 February 2011, www.memorandum-freiheit.de (accessed 6 May
2016); original: “Die Anerkennung von Würde und Freiheit jedes Menschen zeigt sich gerade
dann, wenn Konflikte fair und mit gegenseitigem Respekt ausgetragen werden. Kirchliches
Recht verdient diesen Namen nur, wenn die Gläubigen ihre Rechte tatsächlich geltend
machen können. Rechtsschutz und Rechtskultur in der Kirche müssen dringend verbessert
werden; ein erster Schritt dazu ist der Aufbau einer kirchlichen Verwaltungsgerichtsbarkeit.”
of legal culture in the context of theology and canon law is largely synonymous
with legal protection.
In contrast to this normative understanding of legal culturality in canon law,
this study takes a descriptive approach to the phenomenon of culture. I do not
speak of legal culture with the intention of identifying what ecclesiastical
culturality ought to be (even though this is a valid question), but refer to the
diverse ecclesiastical legal realities.65 Indeed, that the existence of plural legal
cultures in the church is a consequence of the ecclesiological value of the
local churches shows that the idea of culture is always connected with
normative ideas – with “the facticity of validity claims”66 in Habermasian
terms. Yet I do not primarily address these normativities here. I prefer to
understand legal culture as the sociological “weasel word” that Erhard
Blankenburg called it: it describes a specific legal system of meanings in
which norms, institutions, legal acts, and expectations jointly create a legal
sense and a local legal identity. In this sense, an ecclesiastical legal culture is
based on specific particular norms and on a specific reception and application
of global norms in the local church, on the legal agents and institutions
present in the particular church, on the dealing of the faithful with the law,
and on the expectations which exist with regard to the law. Considering the
diversity of these local legal agents, legal understandings, interpretations, and
applications, all of which contribute to forming plural systems of legal mean-
ings, it is indeed possible and necessary to speak of ecclesiastical legal cul-
tures – in the plural.
Natural Law as Cultural Law

As this study has emphasised from the outset, the cultural plurality that comes
with plural legal cultures is challenging universal concepts of the law and
confronting theories of normative universalism through contextual relativisa-
tion. Udo di Fabio also notes this trend in an article dealing with the uni-
versalism of human rights. Referring to the legal claim of universality, di Fabio
65
On a Catholic contribution that understands the term legal culture mostly as a descriptive
term see Sobański, ‘Ort des Kirchenrechts in der Rechtskultur’, Archiv für katholisches
Kirchenrecht 155 (1986), 3–15. Yet Sobański mainly uses the term legal culture to refer to the
secular legal order, to which canon law builds a relationship and from which it discerns itself.
He scarcely touches upon the fact that there are ecclesiastical legal cultures in the church
itself. The only time in canon law literature that I actually came across a reference to the legal
cultures of the church in a descriptive sense was in a contribution by Georg Bier: see Bier,
‘Kirchliche Rechtskultur’, in Böhm (ed.), Glaube und Kultur, Freiburg im Breisgau, Herder,
2009, 205.
66
Habermas, ‘Wahrheitstheorien’, 227; original: “der Faktizität von Geltungsansprüchen”.
calls universality a paradox, as there is a “simultaneity of universalising and

regional fragmentising”.67 Whereas human rights relate to prepositive uni-
versal values, cultural fragmentation cannot be avoided when shaping the
norms which grant human rights. Universality and culturality are therefore
counterparts in human rights as well as in natural law arguments. Thus, to
dichotomise universality and culturality is problematic, as doing so misses an
essential point: the act of reconciling the universal thought with the cultural
context in which the universal becomes real.
Yet instead of integrating universality and culturality, scholars often nurture
the idea that developing a universal normativity requires distancing oneself from
one’s cultural standpoint, as David Novak explains: “Universal thinking by very
particularly formed persons seems to be an imaginative attempt to constitute
a world that would be the case if I were not part of the singular culture in which
I now have been living concretely.”68 However, this understanding – that norms
can be formed in a universal setting protected from cultural contamination – is
impossible, to cite Novak again: “Our imagination can tentatively abstract us
from our own cultures from time to time, but we cannot transcend them by
some nonculturally conceived Archimedean fulcrum in order to either escape
them, destroy them, or re-create them.”69 Even the Platonic and Aristotelian
theories of natural law, despite their universalistic claim, cannot be compre-
hended properly without considering the context of their evolution in the
culture of ancient Greece, says Novak. He likens any attempt to achieve
normative thinking without cultural inferences to the paradox of proof known
to a judge but not admissible as evidence. In the same way that it is virtually
impossible for a judge to fully ignore a piece of evidence known to her or him, it
is impossible to form universal thoughts in isolation from culture. A thought is
essentially a cultural product, as is a legal idea. With respect to natural law, one
should bear in mind that “[n]atural law is a cultural construct”.70
This consequently means that beliefs about what are nature and the naturally
just make sense only within a cultural system of meanings and symbols. For this
reason, Robert Schreiter refers to natural law when describing phenomena that
are self-explanatory to the members of a certain culture as follows: “They are
simply ‘common-sense’, ‘natural law’, ‘the way things are’.”71 In saying this,
67
Di Fabio, ‘Menschenrechte’, in Nooke/Lohmann/Wahlers (eds), Gelten Menschenrechte
universal?, Freiburg im Breisgau, Herder, 2008, 82; original: “Gleichzeitigkeit von
Universalisierung und regionaler Fragmentierung”.
68
69
Ibid.
70
Ibid., 188.
71
Schreiter, Constructing Local Theologies, 56.
Schreiter probably intends primarily not to address natural law as a normative

concept, but instead to allude to the laws of nature as physical laws. But his hint
also makes it easier to understand the cultural side of natural law, as people’s
convictions regarding what is naturally just are likewise matters of culturally
transported knowledge and so become “the way things are” in a normative sense.
“There is no such thing as a law – or philosophy, theology, or language – that
does not reflect the culture which gives rise to it”,72 as John Huels states.
Nevertheless, simply because natural law is to be comprehended as a cultural
construct, this does not make its apprehension arbitrary, as Novak notes:
“The ‘construction’ here is of the approach to the reality; it is not the reality
itself that is constructed.”73 Those who agree on a prepositive basis of the law
do not question the ontological status of natural law. Nevertheless, only
a constructivist approach to this reality is possible on an epistemic level because
of the limited human capacity to perceive prepositive norms. This constructivist
approach essentially links the perception of natural law with the determining
factor of culture. Accordingly, it is not possible to approach the phenomenon of
the law without relating to culture, as Thomas Würtenberger notes:
Man finds himself in a historically unique situation, when he acts, judges,
evaluates, and decides in the realm of law . . . The acting individual, who
experiences the law as a spiritual power in the fullness of its value ideas, thus
always acts within the realm of a historically grown cultural community, the
member and co-bearer of which he is and the spiritual judgements of which
he is subject to.74
Hence, natural law, which refers to a universal normativity, is also cultural law.
In the middle of the twentieth century, this was noted by the legal scholar and
legal historian Heinrich Mitteis, who, in his slim but widely received book on
natural law, emphasised the close connection between nature and culture:
“Natural law has little to do with nature in the common understanding; it
rather relates to culture as a human realisation of values – it is cultural law.”75
72
73
74
Würtenberger, ‘Naturrecht’, in Maihofer (ed.), Naturrecht, Bad Homburg, Hermann
Gentner, 1966, 432; original: “Der Mensch befindet sich stets in einer historisch einmaligen
Situation, wenn er im Raume des Rechts handelt, urteilt, wägt und entscheidet . . . Der
handelnde Mensch, der das Recht als geistige Macht in der Fülle seiner Wertideen erlebt,
bewegt sich somit stets im Raume einer geschichtlich gewordenen Kulturgemeinschaft, deren
Glied und Mitträger er ist und deren geistigen Wertungen er unterliegt.”
75
Mitteis, Naturrecht, 7; original: “hat das Naturrecht nur wenig Beziehungen zur Natur im
landläufigen Sinne, vielmehr zur Kultur als menschlicher Wertverwirklichung, es ist
Kulturrecht.”
This thought was very influential in the German discourses in the postwar
period, as Lena Foljanty uncovers in her study of the debates about legal
theory in the early years of the Federal Republic of Germany. She finds the
idea of natural law as cultural law inter alia in the writings of German legal
scholar Helmut Coing, who notes:
The term [natural law] is extremely open to misunderstandings, if one does
not know the history of the term, as the term ‘nature’ provokes associations
which the term originally had nothing to do with. In fact, norms of this kind
are assuredly ethical statements; thus, they are not natural law, but cultural
law.76
Foljanty discovers parallels in the writings of legal scholar Werner Maihofer,

who always placed the term nature in quotation marks, as he apprehends the
terms nature and culture to be virtually interchangeable.77 The same applies to
Erich Fechner, who speaks of natural law as a law in the making disclosing
itself through history and time and thus through culture.78
Natural Law As Historical Law

Fechner’s approach shows that besides introducing the paradigm of culturality
to explain the necessary fragmentation of universalistic thinking, one can also
explain this phenomenon with reference to the historicity of human percep-
tion. In this way, Ernst-Wolfgang Böckenförde describes the contingency of
natural law as an essential consequence of its historicity: “History shows . . .
that the doctrines of natural law with regard to its content are not permanent
and supertemporal, but bound to the moral understanding of their time and
determined by it.”79 But particularly the idea that it is possible to comprehend
universal values through historical natural law shows how close the
76
Coing, Grundzüge, 199; original: “Die Bezeichnung ist aber, wenn man die
Begriffsgeschichte nicht kennt, außerordentlich missverständlich, weil der Ausdruck ‘Natur’
Assoziationen erweckt, mit denen der Begriff ursprünglich gar nichts zu tun hat.
In Wirklichkeit würde es sich bei Ordnungssätzen dieser Art selbstverständlich um Sätze
der Ethik, also nicht um Naturrecht, sondern um Kulturrecht handeln”; see Foljanty, Recht
oder Gesetz, 185–186.
77
See Foljanty, Recht oder Gesetz, 194, with reference to Maihofer, Recht und Sein, Frankfurt
am Main, Klostermann, 1954.
78
See ibid., 194–195, with reference to Fechner, ‘Naturrecht und Existenzphilosophie’, in
Maihofer (ed.), Naturrecht, Bad Homburg, Hermann Gentner, 1966, 384–404.
79
Böckenförde, ‘Historische Rechtsschule’, in idem, Staat, Gesellschaft, Freiheit, Frankfurt am
Main, Suhrkamp, 1976, 28; original: “Geschichte zeigt . . ., daß die Naturrechtslehren in
ihrem Inhalt keineswegs bleibend und überzeitlich, sondern selbst an das sittliche
Bewußtsein ihrer Zeit gebunden und davon bestimmt sind.”
relationship between the contingent and the universal really is. Böckenförde
underscores this thought: “the doctrines on natural law also show, especially if
we understand them as expressions of the moral understanding of their time,
that such a moral understanding, its historical change and development is
permanently present.”80 In dealing with this idea of the universal within the
historical, the Protestant theologian Martin Honecker alludes to the relation-
ship between the temporality and the timelessness of natural law: “If one looks
into the history of natural law and into the changes in its contents – because
concrete legal ideas always depend on the understanding of a certain time –
then it becomes obvious . . . that the contents are not timeless, but an aware-
ness of the need to focus on what is humane is.”81 This finding justifies working
with the idea of universality in natural law debates, even though it cannot
preclude the existence of plural historical natural laws. Böckenförde also
emphasises this conclusion: “That [insight] necessarily transcends an ahisto-
rical relativism and the dissolution of history into randomness. The question
about the lasting, enduring aspects of the law therefore has its own right. But it
cannot . . . be asked as the question of natural law and history; it has to be asked
as the question of natural law in history.”82
Inculturation as Incarnation
This finding is also true for religious legal orders which trace natural law back
to a divine source. The timeless reason of natural law (as a consequence of
God’s acting as a creator before time) does not make natural law itself
a timeless matter, as David Novak explains. If natural law is a result of God’s
acting as a creator, it is something made and, accordingly, something deter-
mined by time: “Like all creation natural law is made in time.”83 Peter Scharr
uses the theological terminology of eschatological proviso to explain the
80
Ibid., 29; original: “zeigen diese Naturrechtslehren aber auch, gerade wenn wir sie als
Ausdruck des sittlichen Bewußtseins ihrer Zeit begreifen, das stete Vorhandensein eines
solchen sittlichen Bewußtseins, seine geschichtliche Bewegung und Entwicklung.”
81
Honecker, ‘Recht, Ethos, Glaube’, Zeitschrift für evangelisches Kirchenrecht 29 (1984), 397;
original: “Sieht man freilich auf die Geschichte des Naturrechts und auf den Wandel seiner
Inhalte, weil konkrete Rechtsvorstellungen immer vom jeweiligen Zeitbewußtsein abhängen,
dann zeigt sich . . ., daß nicht die Inhalte zeitlos sind, wohl aber das Bewußtsein der
Notwendigkeit einer Orientierung am Humanum überzeitlich ist.”
82
Böckenförde, ‘Historische Rechtsschule’, 29; original: “Das führt notwendigerweise über
einen geschichtslosen Relativismus und die Auflösung der Geschichte in das
Betätigungsfeld des Zufalls hinaus. Die Frage nach dem Bleibenden, Sich-Durchhaltenden
im Recht hat so ihr Recht. Aber sie kann . . . nicht als die Frage nach Naturrecht und
Geschichte, sondern muß als die Frage nach Naturrecht in der Geschichte gestellt werden.”
83
Novak, ‘Natural Law and Judaism’, 6.
impossibility of perceiving the timeless source of natural law by looking at

a historically contextualised natural normativity: “Because of its historicity and
the eschatologically pending fullness of the whole truth, humanity can per-
ceive the Christian truth only as fragments.”84 Consequently, problems arise
with respect to the fragility of natural law statements and their openness to
change, despite their claim to grasp timeless normative ideas.
It is challenging, yet possible, to integrate this thought into Catholic natural
law thinking. To explain better how there can be certainty that historical and
cultural differences do not pose a danger to the unity of the legal community
of the church, but are indeed the mode in which the law of the church is
contextualised, one can refer to the sense of faith, a category of the Catholic
theory of truth to which I have already referred in Chapter 2.5. The sense of
faith, as mentioned, expresses the idea that all members of the church are
capable of perceiving the truth if they arrive at a common belief in matters of
doctrine or discipline. According to the understanding of the church, any such
statement agreed on by Christians of the past, the present, and the future is
infallibly true, as it is taken from a specific perceptive quality of the people of
God as inspired by the Holy Spirit. In any case, speaking of the whole people of
God implies the church in its totality – that is, the church that was, the church
that is, and the church that will be. Only the consensus of the past, present,
and future members of the church is infallible. But if it is necessary for
a conviction to exist in the ecclesiastical cultures of the past, present, and
future for it to be taken as infallible, then this requirement exposes the fact that
truth in the church always takes on a culturally and historically concrete
shape. Consequently, cultural and historical thinking is not alien to theology
but lies at the core of a theological epistemology.
To clarify this thought, the dogmatic theologian Robert Schreiter refers to
a theology of incarnation to explain that its contextualisation and historicity
are not problematic for the truth in the church, but rather an essential quality
of Christian truth – from a Christological point of view. Schreiter notes that
the tendency in theology to marginalise the factor of history and time is
a theological problem: “The church tradition’s form and its formulation are
considered as being somehow supracultural. But forms and formulations are
always born in some cultural context . . . To forget this does the tradition
a disfavour by disincarnating it.”85 And Judith Gruber adds: “revelation of
84
Scharr, Consensus fidelium, 118; original: “Aufgrund seiner Geschichtlichkeit und der escha-
tologisch noch ausstehenden Fülle der ganzen Wahrheit kann der Mensch die christliche
Wahrheit nur fragmentarisch erkennen.”
85
God’s universality happens in the mode of particularity.”86 Whoever misses

the dignity of particularity risks missing the fundamental structure of the
Incarnation, in which God’s salvific communication with the world is neces-
sarily embodied. For this reason, it is common in modern theology to under-
stand “inculturation as an analogue to incarnation”.87 The historically and
culturally concrete should not be taken as a counterpart to the universal, but as
the mode in which the universal can be experienced in the world.
Standpoint and Horizon

Considering the cultural and historical background in which multiple per-
spectives aim at a universal norm, David Novak concludes that to adequately
describe the perception of natural law, one must invert the epistemic perspec-
tive: “Instead of an attempt to find some universal phenomenon to ground
natural law, it seems more authentic and more useful to see it as the constitu-
tion of a universal horizon by a thinker in a particular culture for his or her
own culture.”88 Natural law, then, serves as a reliable and universal point of
orientation for natural law theorists and their legal perception: “It is like
making a telescope, assuming there is something ‘out there’ to be discovered,
but something unlike any object that could be seen by the naked eye.
The object to be discovered must be believed to exist, even if there is no
other way to see it except through the telescope.”89 In this model, culture
serves as the context from which the telescope is directed towards the matter to
be perceived, thereby initiating the process of perception.
This view defies relativism by remaining focussed on the universal horizon.
The plural perspectives of the local cultures all target the same universal point.
The International Theological Commission notes: “Culture, which is always
a concrete and particular culture, is open to the higher values common to
all . . . Cultural pluralism cannot therefore be interpreted as the juxtaposition
of a closed universe, but as participation in a unison of realities all directed
toward the universal values of humanity.”90 Due to its cultural anchor, any
perception of natural law is necessarily culturally impregnated. Human nat-
ural law thinking is never absolute and timeless, but keeps pointing towards
a universal and timeless reality. For this reason, a culturally contextualised
86
Gruber, Theologie, 13; original: “die Offenbarung der Universalität Gottes ereignet sich im
Modus der Partikularität.”
87
Ibid., 49; original: “Inkulturation als Analogon zur Inkarnation.”
88
Novak, Natural Law in Judaism, 189–190.
89
Ibid., 190.
90
International Theological Commission, ‘Faith and Inculturation’, section 1 no. 7.
process of perception which tries to grasp the truth by pointing towards an

absolute reality may at least claim to have perceived parts of this reality.
This is explained by an extension of Novak’s telescope metaphor:
“Quantum theory argues that such ‘telescopes’ themselves are inseparable
from the objects they have in view. That is the most useful analogue for
natural law theory.”91 If the assumption is that perception is directed towards
universal and timeless realities because of these realities themselves, then it
would also be fair to assume that the act of perception does not totally fail, and
that the perceived is indeed part of a universal reality. This explains why
Novak believes it to be possible for human beings to perceive the naturally
just, at least to some extent.
At the same time, it is only this assumption that distinguishes the perception
of the naturally just from an act of discretionary and positivistic norm giving.
One can avoid confusing the validity reason of nature and the validity reason
of power mentioned in Chapter 2.2 only by assuming that the perception of
natural law is navigated by the universal and timeless reality of the natural
moral order itself. Only this belief makes it possible to speak of finding natural
law in the prepositive realm instead of setting up positive laws that only claim
to be naturally grounded.
3.3 the culturality of global canon law

What consequences can one derive from these considerations for natural law
in the church? The lack of respect for cultural diversity, which David Novak
exposes as a fundamental temptation of all natural law approaches because of
their universal perspective, is also a major flaw in the church’s approach to
natural law. Adding to this flaw is neo-Scholastic legal thought, which arranges
the ecclesiastical legal order around the law of revelation and the law of nature
as the two universal sources of legal perception, and in doing so shows
a tendency to argue universalistically by pushing cultural aspects aside.
The church’s lack of openness to culture is, nevertheless, linked not only
with divinely founded law but also with merely human norms. As these norms
are directed at the divine normativity which lies at the core of the ecclesiastical
legal order, they contribute to the general tendency of canon law to leave only
limited space to local cultures in shaping the law. This tendency is exacer-
bated because the law of the Code functions mainly as a legal frame for the
global church, as each law with a frame-like function for a global institution
tends to generalise the local situations even more. In a declaration on the new
91
Code of Canon Law in 1983, the Permanent Council of the German Bishops’
Conference “reminded [the faithful] that a global law has to be general and
cannot take into account all the peoples’ particularities”.92 This sensitivity, as
the bishops noted, has to be achieved by the local churches passing their own
elaborated particular law.
Particular Laws – Global Laws

The German bishops therefore interpreted the global law of the church as
a legal frame only, which has to be filled by particular law to develop local
legal orders to suit the legal needs of the local churches. Nevertheless, one
should note that the global law of the church not only functions as an open
frame but also tends to interfere with local legal cultures. The potential for
conflict with local law is considered in the applicable Code, which attributes
a minor status to particular law and local legislation. When the new Code of
Canon Law came into force in 1983, particular laws which conflicted with the
norms of the new Code were abrogated (see canon 6 §1 no. 2 CIC/1983).
The Code also stipulated that lawgivers below the highest authority of the
church, such as the diocesan bishops, could not validly issue a law contrary to
higher law (see canon 135 §2 CIC/1983). This stipulation is reflected in the
ecclesiastical law on the office, which divests diocesan bishops and those who
preside over other communities of the faithful of their power in matters
reserved to the supreme authority of the church (see canon 381 CIC/1983).
Contrasting with this is the norm of canon 20 CIC/1983, in which an earlier
particular law invoked in a case of conflict is protected in its validity from
a later global law if the new legislation does not expressly state that the
particular law has been abrogated. Then again, however, when the Code
came into force in 1983, large parts of the particular customary law contrary
to canon law were abrogated (see canon 5 §1 CIC/1983). Local customary law
contrary to or beyond canon law remained in force only if it was based on
a centenary or immemorial custom (see canon 5 §§1 and 2 CIC/1983). The bar
was set high to prevent new customary law which was contrary to or beyond
canon law from redeveloping in the future (see canon 26 CIC/1983).
These regulations, which attempt to prevent the church’s legal fragmenta-
tion by local law, are (inter)connected with a specific culture of the official
92
‘Declaration on the New Code of Canon Law’, 24 January 1983, in Arbeitshilfen 31, ed. by
Sekretariat der Deutschen Bischofskonferenz, Bonn, Sekretariat der Deutschen
Bischofskonferenz, 1983, 5; original: “zu bedenken, daß ein weltweit geltendes Recht allgemein
sein muß und nicht die jeweiligen Eigenarten der Völker berücksichtigen kann”.
church which might be termed a “culture of cultural scepticism”. It is char-

acterised by a distance from and a critical attitude towards culturality. This
perspective becomes especially obvious in the discourses on ‘zeitgeist’, in
which representatives of the official church articulate their concerns that the
church might lose its sensitivity for the truth if it connects itself too intimately
with the culture of the societies in which Christianity is present.93 Suspicions
that the church’s ecclesial profile might be diluted and that the church might
become a worldly entity are verbalised not only in relation to the church’s
teaching on doctrinal and moral issues but also in relation to canon law, which
tries to legally express and safeguard the church’s teaching. As the law is
suspected of giving in to the zeitgeist if it is too open to historicity and
culturality, the church’s official legal thinking tends to support ideas of the
timelessness and universality of the law.
One result of this universalistic ambition is the phenomenon of global
canon law itself, which claims validity for all members of the Catholic
Church worldwide: “Universal laws bind everywhere all those for whom
they were issued” (canon 12 §1 CIC/1983). The idea of universality connected
with the global validity of the ecclesiastical norms is alluded to in speaking of
universal laws (leges universales), a term used to describe the global law of the
church. This terminological choice suggests that global canon law is a law
with a supercultural relevance and is adequate as a regulation for all eccle-
siastical legal cultures. This is also noted by Ladislas Orsy: “the very nature of
a universal law postulates that it should make good sense all over the earth.”94
In contrast to the fragmentary nature of particular laws and customary laws,
global canon law as “universal law” claims to be acceptable in all ecclesiastical
legal cultures. This at least implicitly suggests that global canon law is not (at
least not only) to be acknowledged as a product of one local ecclesiastical
culture alone but also as a result of universalistic thought and, for this reason,
as applicable in all ecclesiastical cultures alike.
But is it credible to comprehend the leges universales as ‘universal norms’ in
the sense of a theory of validity? Indeed, this quality would apply to global
canon law if it could be understood as a legal expression of the universal
church – in theological terms. To establish whether this is the case, one must
consider the conditions and procedures of the global church’s lawmaking, and
93
E.g. Matthäus, ‘Schuld ist der Zeitgeist’, Süddeutsche Zeitung, 14 March 2010, www
.sueddeutsche.de/kultur/papst-und-missbrauchsdebatte-schuld-ist-der-zeitgeist-1.16385
(accessed 3 March 2016); Taylor, ‘Magisterial Authority’, in Lacey/Oakley (eds), Crisis of
Authority, Oxford, Oxford University Press, 2011, 267; Seewald, ‘Relativismus’, Communio 45
(2016), 493–508.
94
the Vatican as the context in which global legislation takes place. Is the global
law of the church as generated by papal procedures in curial institutions
actually something of a supercultural universal law? How may one assess the
‘Romanity’ of canon law, being a cultural product of the Vatican, and its
remaining orientation towards Rome, in this light? To consider this, one must
identify the culturality of the current church’s global law and ask whether the
obvious Roman impregnation of the church’s legal order can be reconciled
with its claim to possess a universal meaning.
Global Laws – Roman Laws

There are several reasons for the “Romanity” of canon law, which bears
witness to the dominance of the Vatican’s legal culture over other ecclesias-
tical legal cultures. One reason is the Vatican as the environment in which
global canon law is developed: it is commonly fashioned by the pope, fre-
quently in cooperation with one of the Roman dicasteries or by the dicasteries
themselves, and then exported into the Catholic world.
Scrutinising the reform procedures which led to the applicable Code of
Canon Law of 1983 exposes the key influence of Vatican agents in developing
the law. The reform was conducted mainly by the Secretariat of the
Commission for the Revision of the Code and by cardinals of the Roman
Curia as members of the commission. The commission included inter alia the
prefect of the Congregation for the Doctrine of the Faith, the prefect of the
Congregation for the Bishops, the heads of the Congregations for the Clergy,
for Divine Worship and the Discipline of the Sacraments, for the Oriental
Churches, for the Evangelization of Peoples, and for Catholic Education
and the Causes of Saints, along with the Cardinal Secretary of State, the
Cardinal-Camerlengo, the Cardinal Librarian, and the prefect of the
Prefecture for the Economic Affairs of the Holy See.95
Nevertheless, one should not forget that the local churches also had some
influence on the reform process. The Commission for the Revision of the
Code included not only cardinals of the Curia but also bishops and cardinals
drawn from the local churches. The Relatio ad novissimum Schema of 1981,
which lists the names of the commission members during that period,
includes the names of cardinals and bishops from all over the world:96 from
Africa, the cardinals and bishops from Darussalam, Algiers, Addis Ababa,
Nairobi, Dakar, Jos, Kenge, Ouagadougou, and Antananarivo as well as the
95
See Commission for the Revision of the Code, Relatio ad novissimum Schema, 5–7.
96
See ibid., 5–8.
Catholic Coptic Patriarch; from the American continents, cardinals and

bishops from Quebec, Toronto, Montréal, Philadelphia, Chicago,
Cincinnati, Rio de Janeiro, Teresina, Mexico City, Bogota, Lima, Santiago
de Chile, Santiago de Cuba, Parnaı́ba, San José de Costa Rica, Quito, and
Valencia en Venezuela; from Asia, cardinals and bishops from Cebu, Seoul,
Chuncheon, Butuan City, Colombo, Bombay, Ernakulam-Angamaly, Kiayi,
and Nagasaki; from Europe, the cardinals and bishops from Genoa, Florence,
Milan, Turin, Vienna, Paris, Albi, Lisbon, Madrid, Cordoba, Barcelona,
Westminster, Armagh, Utrecht, Brussels, Helsinki, Cologne, Munich-
Freising, Warsaw, and Vác; and from Oceania, the cardinal of Sydney and
an auxiliary bishop of Melbourne.
That these multinational members of the commission could not prevent the
Roman perspective on the law from dominating the reform can be explained
by two factors: first, as already mentioned, the Romanity of the dominant
curial agents of the reform and, second, the Roman formation of many of the
local agents who were members of the commission (as well as those who took
part in the consultation process). Many local bishops and cardinals who
engaged in the reform were at least partly educated in Rome. Of the cardinals
from the German-speaking countries who were members of the commission
in 1981, only the Archbishop of Munich and Freising, Cardinal Ratzinger, was
not educated in Rome, whereas Cardinals König and Höffner as well as the
German Curial Cardinal Schröffer had spent at least part of their studies in
Rome and were ordained there.
This is not unimportant for the question posed here, because the practice of
sending priest candidates to Rome to study at a Roman university – especially
those who might appear apt to become higher clergy in the future – fosters the
tendency of ecclesiastical leaders to reproduce the Roman perspective on
matters of doctrine, discipline – and law. John Huels raises this issue as
a general problem of church governance. Granting a Roman education to
the candidates for higher office decreases their sensitivity for their home
churches’ culture: “Can . . . the locally born clergy, religious, lay leaders,
theologians, and canonists communicate effectively with their people if,
during their formative years, they are taken out of their culture and are
resocialized in religious houses, seminaries, and universities in the First
World?”97 Huels devotes particular attention to priest candidates from the
countries of the South, but his analysis is equally true for the aspirants to
higher office in the churches of the West.
97
Huels, ‘Interpreting Canon Law’, 257; see also Schreiter, Constructing Local Theologies, 39.
Consisting mostly of Romanised bishops and cardinals, the reform commis-

sion first and foremost may be regarded as a body representing the Roman
ecclesiastical culture. Yet during the reform, not only the dicasteries of the
Roman Curia were asked to give their critical opinion on the draft of the Code,
but so were all the bishops’ conferences, the Union of Superiors General of the
religious orders, and the ecclesiastical universities and faculties from all over
the world. So the consultation process enabled local agents to comment on the
draft of the Code from the perspective of the local churches. Nevertheless,
how these comments were taken up and whether and how they exerted any
influence on the Code remains unclear to this day, as noted in Chapter 2.4.
Even now, it is unclear what significance the global input had on the shape of
the Code of Canon Law.
The final redaction of the Code was undertaken by the pope, who was
advised by a small group of consultants. In this context too, the influence of
Vatican legal politics is obvious. This is even more the case in singular acts of
papal legislation. A Motu proprio or an Apostolic Constitution is not con-
nected with a global process of consultation. Especially in the form of a Motu
proprio, papal legislation is understood as the pope’s direct reaction to a need
for regulation, which he addresses on his own initiative without being bound
by any formal process of participation. Neither is it standard procedure to
allow other agents to participate in acts of papal legislation in which the pope
adopts a curial regulation as a papal legislative act by approving the text.
Bearing this in mind, it comes as no great surprise that the bodies respon-
sible for the revision of the Code, which were made up mostly of representa-
tives taken from a Rome-inculcated ecclesiastical elite, could hardly endow
the Code of Canon Law with a great sensitivity for particular requirements of
the local churches. Just recently the canon lawyer Heribert Schmitz remarked:
“The accusation that the Code of Canon Law is too heavily impregnated by
occidental and European thought has to be taken seriously.”98
Legal Terminology and Elite Culture

The Roman impregnation of ecclesiastical legislation is reflected in the field
of language: the authentic text of the Code of Canon Law is the Latin text
alone.99 Most papal laws are likewise promulgated in Latin (although Italian,
98
Schmitz, ‘Codex Iuris Canonici’, 86; original: “Der Vorwurf, der CIC sei zu stark abendlän-
disch und europäisch geprägt, muss ernst genommen werden.”
99
See Secretariat of State, ‘Norms Necessitas ipsa’, 28 January 1983, no. 1, Communicationes 15
(1983), 41.
as the everyday language of the Roman Curia, is gaining in importance for

legislation also).
By relying largely on one language for legal texts, ecclesiastical practice
implicitly acknowledges the finding that the language of law is not irrelevant
for its meaning. In this respect, Christoph Möllers emphasises the significance
of the language chosen by the legislator against the background of a theory of
authority:100 a norm is always authorised in a certain language, as it is only the
text in this language which profits from the norm giver’s authority. In this
sense, the choice of a legal language serves to connect a norm with a specific
legislator’s will.
This voluntarist moment also has its place in ecclesiastical legal theory, in
which the legislator functions as the central instance not only of making the
law but also of producing its meaning. This is especially obvious with regard to
interpretation theory, insofar as the interpretation of canon law is closely
linked with the legislator and his regulatory intention. On one hand, this
link appears in the mens legislatoris as an interpretation rule which obliges the
interpreter to explain a norm by searching for the legislator’s intention (see
canon 17 CIC/1983). On the other hand, the link appears in the work of the
Pontifical Council for Legislative Texts, which is responsible for the official
interpretations of ecclesiastical laws, which then bind the legal subjects in the
same way as the laws to which they relate (see canon 16 §2 CIC/1983). This
official interference in the interpretation of norms reveals that the ecclesias-
tical norm giver does not wish the meaning of the norms to vary to any great
degree. The legislator tends to officialise both the normative texts themselves
and their interpretation.
This reinforcement of the law’s meaning is exacerbated by the use of Latin
as the language of the church – or, to be more precise, the language of the
official church. Latin detaches the ecclesiastical norms from the everyday
language of the faithful and establishes a terminological distance. It indicates
legal questions as requiring expert knowledge, thereby disengaging most
members of the church from understanding or interpreting the law.
The reception of canon law by the legal subjects becomes more difficult.
At the same time, the church’s legislator has more control over the content of
the law and its meaning. Any potential dissonances and ambiguities in the law
which might be caused by translations are kept to a minimum. This avoids the
problem that translating legal expressions tends to change their meaning.
Choosing a uniform legal language for norms, as the church has done with
100
See Möllers, Möglichkeit, 279–280.
Latin for global canon law, helps to reduce the problem of legal miscommu-
nication in that sense.
Nevertheless, this pragmatic argument in support of Latin as the one
language of global canon law is confronted with other arguments which
are less affirmative of the church’s language practice. Using Latin as the legal
language of the church obviously brings with it a number of cultural impli-
cations. The global law of the church presents itself as a ‘Latin’ law in the
tradition of ancient Roman law, and in doing so reveals itself to be from
a ‘Roman’ legal culture. This monocultural perspective has to be seen
critically in a global church which joins particular churches from different
legal traditions, as it places one legal culture above the others. This is not
necessarily illegitimate, but does warrant further discussion, especially as it is
a dead language – Latin – that serves the legal communications of the
church.
Interestingly, the canon lawyer Stephan Haering takes the ‘deadness’ of
Latin as the main advantage of making it the church’s legal language. As Latin
is not spoken in any of the local churches, no part of the people of God has an
advantage over any other in understanding the law of the church.101 This
argument – which considers the equal disadvantages of the church members
as a sign of their equality – is intriguing, but only partially true. Whereas it is
true that most members of the church are not overly comfortable with Latin,
there is, nevertheless, a Romanised, mostly clerical elite in the church which is
more familiar with Latin than most others, particularly as Latin plays a specific
role in the education of clerics. So the idea of an egalitarian disadvantage for
all gives way to supporting a Latinised elite culture in the church. This is
problematic as it also suggests that the faithful can understand the law of the
church only by referring to the clergy, and above all to the Roman-educated
higher clergy, and that the ability of the laity to comprehend the law is of less
importance. This imbalance has to be critically reviewed, as it affects eccle-
siology. If the people of God consist of both clergy and laity, is it acceptable to
create this imbalance with regard to understanding the law of the church?
This problem has to be acknowledged and discussed when considering what
constitutes an appropriate legal language for the church.
Legal Interpretation and Application

The cultural Romanity which permeates the development and terminological
shape of canon law is also to be found on the level of legal interpretation, as
101
See Haering, ‘Lateinische Sprache’, Seminarium 43 (2003), 244.
already mentioned. Not only global canon law is generated in Rome; so is part
of its interpretation. The specific form of its authentic interpretation is, as
mentioned, performed by the Pontifical Council for Legislative Texts, a papal
institution. This inclination to Rome even in matters of interpretation is
supported by a Roman methodology of interpretation which is binding for
those applying the law locally. To avoid a culturally over-differentiated prac-
tice of legal interpretation in the local applications of law, interpretation is
methodically restricted by global canon law itself: the law of the Code contains
several norms of interpretation which ensure minimal leeway in interpretation
(see canons 17–19 CIC/1983).
This is remarkable; only a few legal orders provide norms on the methods of
interpretation. However, it is not the fact itself – that the appliers’ interpreta-
tion is somehow restricted – that is noteworthy. The interpretation of norms by
secular judges, for example, is also never totally free, as the judges’ obligation
to decide according to the law does not allow them to deal arbitrarily with the
text of the law. Yet in most legal orders, no legal norms explicitly restrict
a judge’s interpretation. This is different in the church. Canon 17 CIC/1983
provides the central norms on the interpretation of ecclesiastical laws.
The fundamental rule is one of grammatical-logical interpretation. The text
of a norm and its contexts must be analysed to extract the proper meaning of
the terms used in the norm. To this fundamental rule, subsidiary rules are
added: the rule of analogical exegesis by looking into parallel norms; the rule
of teleological interpretation pointing at the value achieved by the law; the
rule of historical interpretation that reminds the interpreter of the contexts and
history of a norm’s development; and the rule of considering the mind of the
legislator (mens legislatoris), considering the “fundamental values which
influenced the legislator in general and with regard to the norm to be
interpreted”.102 The mind of the legislator, thus, refers not to the concrete
ideas a certain legislator had in mind but to “the fundamental understanding
and purpose that he generally connects with the legal order, his general
understanding and idea of the law and of the values enshrined in it”.103
Two observations reveal that these methodical norms are ‘Roman’ and
direct the interpretation of canonical norms towards a Roman perspective.
102
February 2012), 10 no. 16; original: “tragenden Wertvorstellungen, die den Gesetzgeber im
Allgemeinen und im Hinblick auf die zu interpretierende Norm bestimmten”.
103
May/Egler, Kirchenrechtliche Methode, Regensburg, Friedrich Pustet, 1986, 207; original:
“seine Grundansicht und seine Grundabsicht bezüglich der Rechtsordnung überhaupt und
allgemein, sein Gesamtbild und seine Gesamtidee vom Recht und von den dadurch zu
schützenden Werten”.
First, it is noteworthy that the legislator endeavours to influence the process of

interpretation at all, and in doing so aims at restricting the establishment of
local interpretations. Second, the rule of referring to the mind of the legislator
and the legislator’s understanding of the law shows an attempt to Romanise the
interpretations.
Exporting Law and Legal Colonialism

Given its development and application, global canon law is obviously
a ‘Roman’ order. In that sense, it has to be understood as the result of
cultural hegemony which gives the Vatican’s legal culture priority over
other ecclesiastical cultures. Even though the law of the Code does not
immunise itself against the decisions of local churches and their legal
culture (as can be shown with regard to the norm of canon 20 CIC/1983,
which protects particular legislation from being overridden by acts of global
legislation), the Romanocentrism of canon law nourishes a centralistic form
of legal thinking which encourages a certain cultural, specifically Vatican,
view of the law. Yet this finding still fails to clarify why a law that stands for
the Vatican legal culture cannot serve as an adequate law for the worldwide
church as well. If the question is limited to the aspect of legality alone, there
is no reason to deny the laws’ worldwide validity, as canon 12 CIC/1983
affirms the validity of global canon law for all legal subjects for whom it
was issued. If, however, the question also is connected with the issue of
legitimacy, then it becomes necessary to identify the conditions under which
norms produced by one culture can be legitimate in and for other cultures as
well.
To answer this question, one must analyse the phenomena of hegemony to
establish whether one culture’s dominance over other cultures must be seen as
problematic. The terminology used to describe these phenomena does not
necessarily suggest this. To describe the mutual influences between legal
cultures, legal discourses use the term export of the law to describe law
which transcends one legal culture and claims legal validity in another, and
the term import of the law to describe the reception of this law by the legal
community which is confronted with it. This interaction of legal orders is also
described using the term legal transfer. This mutual legal penetration of
cultures is an intercultural dynamic which the legal scholar Ingo
von Münch calls “an exchange of cultural goods”;104 his choice of term
104
Münch, ‘Recht als Ware?’, in idem, Rechtspolitik und Rechtskultur, Berlin, Berliner
Wissenschafts-Verlag, 2011, 132; original: “Kulturgutaustausch”.
lends the dynamic a positive connotation. If law is culture105 and may conse-
quently be understood as a cultural good, its transfer across cultural borders
may be interpreted as a mutual exchange of cultural goods for the benefit of
both legal cultures.
Nevertheless, history, and especially colonial history, shows that the reci-
procal structure of mutual legal learning often has an imperialistic drift,
especially if an existing legal culture is hegemonically colonised by an
imported law. The debates on legal politics use the term legal colonialism to
describe this type of one-way imposition of culturally alien law onto
a marginalised legal culture. John Huels suggests that the unilateral export
of Vatican canon law into the Catholic legal cultures across the world shares at
least some of the characteristics of legal colonialism. He calls the transfer of
global canon law into the local churches the “imposition of a universal canon
law”.106 I suggest that this tendency is indeed connected with the claim of
canon law to transport “universal” norms. In particular, the tendency of
universalistic legal concepts to override other legal cultures offers fertile
ground for legal colonialism and marginalises the reciprocal logic underlying
an exchange of cultural goods. This corresponds with David Novak’s finding:
In his critique on natural law, Novak refers to the tendency of natural law to
subjugate other cultures to its universal claim in a colonialist manner, regard-
less of the naturally grounded norms contradicting the beliefs of the colonised
legal community.107
The Need to Justify Hegemony

The finding that the legal exportation of ‘Roman’ laws to the local churches
has a colonialist appearance in any case does not prove that a centrally shaped
Roman law is inappropriate for the worldwide church. In fact, so far I have
proven only that global canon law is impregnated by cultural asymmetries
which can be interpreted as phenomena of dominance. But this reveals little
about the legitimacy or illegitimacy of that dominance. To discuss this in
detail, it is useful to draw on another discourse, on public international law,
which emerged in critical legal studies, a subdiscipline of legal studies parti-
cularly influential in the United States in the 1970s and 1980s. Critical legal
studies focussed on the power structures within public international law going
105
E.g. Laster, Law As Culture, Sydney, Federation Press, 2001; Mezey, ‘Law As Culture’, Yale
Journal of Law & the Humanities 13 (2001), 35–67; Cotterrell, ‘Law in Culture’, Ratio Juris 17
(2004), 1–14; Rosen, Law As Culture, Princeton, NJ, Princeton University Press, 2006.
106
107
See Novak, Natural Law in Judaism, 188.
back to the hegemony of certain legal cultures in shaping the law. Whereas
some representatives of critical legal studies took this hegemony as a reason to
fundamentally question the legitimacy of public international law as such,
others continued to view the law as legitimate, even though they acknowl-
edged the dominance of Western legal thought within it. Instead of abandon-
ing the law altogether, they rather interpreted it as being their duty to reveal
the power asymmetries in the development of the law and to deconstruct
them.108
To make use of this parallel for canon law, one could argue that while global
canon law gives the legal thought of the Vatican legal culture a dominant
position in the church, it does not necessarily prove the illegitimacy of the
church’s law as such, but strongly implies the need for critical analysis.
A crucial question with regard to the legitimacy of the Roman dominance in
canon law arises, however, in the ecclesiological insight that the universal
church and the papal church are not identical – and, in consequence, that
Roman law is not essentially universal in the sense of legal theory – whereas
the culturality of the local churches is ecclesiologically relevant, owing to the
equal primordiality of the universal church and the particular church in the
Church of Christ. If the church intends for its “universal law” to become
universal in the sense of ecclesiology and legal theory, it must consider the
local churches in the course of lawmaking. As the local churches are true
realisations of the Church of Christ and, hence, participate in the universal
church (see Second Vatican Council, Dogmatic Constitution Lumen gen-
tium, nos 23, 26),109 universal canon law cannot be conceived of without
including the local churches’ contribution to it. Saying this, however, does
not clarify exactly what this contribution should look like to adequately
correlate with the theological dignity of the local churches. Nevertheless, it
is obvious that a contribution has to take place.
This insight serves to reverse the perspective: as the cultures of the local
churches have a genuine ecclesiological dignity that the Roman papal church
and its culture do not, this suggests that the dominance of the Roman papal
church over the local churches has to be justified to be legitimate. This kind of
justification is in any case possible only inasmuch as the papal church and its
acting in and for the worldwide church is legitimised by the pope’s service to
the unity of the church. Accordingly, the papal church adequately represents
the worldwide church in matters in which the pope’s service to the church’s
108
On the diverse approaches see Carty, ‘Critical International Law’, European Journal of
International Law 2 (1991), 1–27.
109
Acta Apostolicae Sedis 57 (1965), 27–29, 31–32.
unity is necessary for the universal church, including the particular

churches.110 For legal theory, this means that the priority of Roman papal
law before particular law is legitimate, namely in cases where the unity of the
church’s law is in the best interests of the universal church, including the
particular churches. From this conclusion, it follows that the Roman dom-
inance in global lawmaking and application can be justified if it serves the
paradigm of unity. A justification, then, is successful only if it proves that the
unity of the church in legal questions is secured best by subordinating the local
churches to a homogeneous law, which has a Roman touch to it in the current
church.
In any case, this justification is not a clear result, but rather a scale which
can be used to answer the question whether the Romanness of global canon
law is a legitimate phenomenon of dominance, or should be critically ques-
tioned. Insofar as the Roman papal church is not a realisation of the universal
church itself, but a historically contingent organisation that serves the uni-
versal church, it regularly has to step back from its hegemonic ambitions
behind the claims of the local churches, except in cases where its hegemony
serves the unity of the church. But even when the service of unity is present,
the dominance of one culture over others has to be limited as far as possible.
Therefore, marginalising the local churches’ influence in shaping the global
law without giving a good reason for doing so is as questionable as rejecting the
needs and peculiarities of the local ecclesiastical cultures in interpreting and
applying the law.
These findings, based on an ecclesiological approach as they are, find
a useful supplement in Ladilas Orsy’s thoughts on law in the light of the
theology of creation. Orsy emphasises the theological dignity of the plural
ecclesiastical cultures with regard to God’s creation and applies his idea to the
law: “God is the one who has created such a great variety of people and
delights in their diversity. To respect cultural elements and incorporate
them into the legal system of the church is to respect the mystery of creation –
nothing less.”111
3.4 canon law between unity and plurality

Given the difficulties I have outlined with regard to canon law, the question
arises as to whether a global body of ecclesiastical norms in the church today
has a value that goes beyond these problems. This question may provoke two
110
See Hoffknecht, Theologie der Ortskirche, Münster, LIT, 1983, 283–286.
111
contradictory answers. One is to dispense with a centrally organised legislation

that asserts validity for the worldwide church in favour of particular legislation.
Another option is to retain a legislation for the global church to protect its
unity, even though it is necessary to make two core adjustments. The first
adjustment must address the problem of the law’s lack of sensitivity to regional
ecclesiastical cultures. To achieve this, it is necessary to have a cultural
hermeneutics that sufficiently reflects the factor of culture in the making,
interpretation, and application of global canon law. Second, local legislation
needs to be strengthened, as it generates particular law that often suits best the
needs of local legal cultures. This study favours the second broad option, of
holding on to global canon law, albeit with some adjustments, as I explain in
the following chapter.
Plurality, Centrality, and Change

The question whether the church should dispense with global canon law
invites a comparison with the other monotheistic Religions of the Book,
which comprehend themselves as legal communities but are not as centralis-
tically organised as the Catholic Church. The more plural understanding of
the law in Judaism and Islam is, in any case, not the consequence of a decision
made through legal theory, but more a result of the decentralised organisa-
tional structure of these religions. This decentralism is relevant inter alia for
how these religions evaluate the question of authority with regard to receiving
the divine will and developing law that is divinely founded. Whereas legal
development in the Catholic Church depends strongly on the Church’s
official legislation, interpretation of the law plays a greater role in legal
development in the Jewish and Islamic traditions. An official legislator is less
important than legal experts who function with the authority to shape and
change the law by interpreting it. Comparing this situation with canon law,
Silvio Ferrari explains:
[T]he system depends on the legal expert rather than on the man or the legal
body empowered to promulgate law. Analogy and custom have larger room in
this legal framework. Lacking a central authority to solve a problem through
a binding provision, different and even contradictory solutions coexist as long as
the consensus (of the community or the scholars) is reached on one of them.112
If decentralised experts thus create the law, two points must be taken into
consideration. First, interpretations by legal experts are formally not as legally
112
binding as official acts of a legislator. The law they generate is legally valid
not because it is the formal result of an official act of legislation (as canon 7
CIC/1983 implies for the Catholic legal order), but because the legal com-
munity accepts it materially and adopts the interpretations of a law as new
law. Second, and following on from this, a homogeneous legal order thus
becomes less likely in this system. As the interpretations of the legal experts are
variations of the old law, it is most likely that only parts of the community will
accept them as valid new law. Creating new law by decentralised legal experts
therefore inevitably goes hand in hand with a legal plurality of the religious
community, as variations within Judaism and Islam demonstrate.113
Transferring this model of lawmaking to the Catholic Church would
require major changes. The loss of a central instance of lawgiving would
give rise to a particularised legal landscape in which legal schools and their
traditions would dominate. For the Catholic Church – which, for ecclesiolo-
gical reasons, cannot give up the idea of unity with regard to faith and law –
this fragmentation of the legal order is not an option. Insofar as the church as
a communion of faith and a legal community not only understands the unity
of faith as a necessary feature of the communion but also considers the legal
unity in which the unity of faith finds its legal expression to be an ecclesiolo-
gically essential quality of the church, it depends on the unifying bond of the
global law, which symbolises the unifying bond of the common faith. It is of
ecclesiological importance for the Roman centre to act as a unifying instance
symbolising the unity of faith by giving the church a homogeneous legal frame
(although this does not imply that increasing legal pluralism within the
church is not also necessary with respect to the theological dignity of the
local churches).
For this reason, any kind of modified transfer of Jewish and Islamic
decentralism to the Catholic Church – in which responsibility for creating
the law would shift from experts to the local churches – has to be met with
some scepticism. With respect to the theological relevance of the local
churches, local legislation needs to be strengthened, yet a central legislation
does not become obsolete. Therefore, it makes good sense for the church to
think of a model which amalgamates the central and the local dynamics.
Silvio Ferrari, comparing the church with the other Religions of the Book,
stresses that the centralism of the church is a problem yet may also offer
a unique opportunity for shaping a global community of faith: “The existence
of a centralised legislative authority makes Canon law more rapid in adjusting to
113
E.g. Kemper/Reinkowski (eds), Rechtspluralismus in der Islamischen Welt, Berlin 2005;
Seinecke, Recht des Rechtspluralismus, 272–276.
historical changes but, on the other hand, less flexible and less capable of
tolerating internal differences than systems based on interpretation.”114
Whereas a centralist organisation of the law reduces its flexibility in dealing
with plurality within the community, it is useful in reacting to the community’s
need for legal reform. Centralism may also support the church’s development of
modern law, even though the possible connection between centralism and
modernity might have been underestimated thus far. Yet if one thinks of
Hartmut Rosa’s observation that modernity organises knowledge not in a static
but in a dynamic way, it becomes clear why modern law has to be fluid and open
to change, as Rosa notes: “In contrast to traditional customary law, religious
legal traditions or static natural law, modern law is laid out on a path of
permanent development, change, and adaptation.”115 After all, it has to react
appropriately to ongoing changes in society.
Rosa explicitly excludes religious law from the law that must be open to
change. I do not share his opinion, as I do not believe that religious legal
communities are immune to the paradigms of modernity, such as change.
If the church is understood as an entity within the world (see Second Vatican
Council, Gaudium et spes, no. 1;116 Lumen gentium, no. 31117) and, hence, not
separate from the culture of a society but impregnated by it, the church cannot
afford to lose touch with the modern understanding of the law. This is
especially true as its members are shaped by the modern legal culture and
expect plausibilities within the church similar to those in the secular legal
sphere. Insofar as the legal subjects’ acceptance of the church’s law depends
on this connection, religious law cannot absent itself from modernity’s para-
digm of change. The centralist organisation of the church is therefore
a structural benefit that makes it easy for the church to follow the demands
of modernity on the law, like the demand for change.
A Multicultural Hermeneutic
Ferrari’s observation on the attributes of a centralist legislation contains two
aspects. It emphasises the importance of centralism for Roman Catholic legal
thought and its potential for adapting to modernity, but at the same time
denotes a problem of a premodern nature, as centralism opposes plurality,
114
115
Rosa, ‘Historischer Fortschritt’, 128; original: “Anders als traditionales Gewohnheitsrecht,
religiös überlieferte Rechtsordnungen oder statisches Naturrecht ist das moderne Recht auf
seine stetige Entwicklung, Veränderung und Anpassung hin angelegt.”
116
117
another attribute of modernity. Because ecclesiastical centralism is focussed

on achieving a legal unity, it struggles with difference and does not easily
tolerate plural legal answers.
Any concept which seeks to reconcile centralism with modernity has to
become more tolerant to plurality. This also includes a constructive approach
to dealing with culture as a source of plurality.118 For theology after the cultural
turn, this implies – as Judith Gruber notes – that the church not only has to
learn to live with difference but also has to acknowledge difference as
a necessary feature of the church and of theology. This kind of theology
“does not airbrush out the interculturality of Christian identity exposed in
critical genealogies; instead, the disparate plurality and inhomogeneity which
are integrated into Christianity by its interculturality are incorporated into the
Christian way of talking about God as a constructive critical moment.”119
In a theology which understands cultural disparity as part of its Christian
identity, cultural dissonances gain an epistemological relevance: “Through
the cracks which it exposes, a reflected interculturality becomes an epistemo-
logical location of theology, which neither obscures the theological speech of
bearing witness and its openness to interpretation, nor conceals it behind the
epistemology of the cultural turn with its particularising of knowledge.”120
Interculturality and theology, thus, are necessarily intertwined. Because canon
law understands itself as based on theology, it is likewise addressed by
interculturality.
Establishing a close relationship with culture as a factor of difference, how-
ever, presents a practical challenge for canon law, insofar as the Roman Catholic
Church encompasses local churches in almost all of the world’s cultures. In any
case, sociological or theological reasons make it necessary for the global law of
the church to be transmitted into the cultures of the local churches, as explained
in the previous chapters. In dealing with the tensions between centralism and
locality, and between uniformity and plurality, John Huels reminds canon
lawyers that there is “the critical need for a cross-cultural hermeneutic that has
the adaptability to apply a universal Catholic law in cultures that do not share the
language, legal system, philosophical presuppositions, or perhaps even the way of
118
See Huels, ‘Interpreting Canon Law’, 250.
119
Gruber, Theologie, 204; original: “blendet die in kritischen Genealogien freigelegte
Interkulturalität christlicher Identität nicht aus; vielmehr werden die disparate Pluralität
und Inhomogenität, die durch seine Interkulturalität ins Christentum eingetragen werden,
als konstruktiv-kritisches Moment in christliche Gottesrede eingebaut.”
120
Ibid.; original: “Durch die Brüche, die sie offenlegt, wird reflektierte Interkulturalität der
erkenntnistheoretische Ort einer Theologie, die weder die theologische Sprachform des
Zeugnisses und ihre Interpretativität ausblendet, noch hinter die Epistemologie des
Cultural Turn und seine Partikularisierung der Wissensformen zurückfällt.”
looking at reality that are found in the culture that produced the canonical
system.”121 Huels sees the challenge in looking for hermeneutical approaches
that give due consideration to culture. This challenge is posed to canon lawyers
and church authorities alike. Canonical research has to be accompanied by
deliberations on how local churches might be provided with practical support in
performing their missionary activities as part of the one church, but in their own
way: “The challenge remains for canonical science to develop an effec-
tive cross-cultural hermeneutic, and for the Church at large to develop
a cross-cultural consciousness and sensitivity, which foster cultural pluralism
and change and enable Christians of all cultures to respond in their own
authentic ways to their gospel vocation.”122
Insofar as the law of the church serves the church’s mission, it cannot
tolerate intercultural problems of legal communication which are not the
necessary consequences of protecting the shared faith. Here, it is necessary to
pick up on the thread that the church is a missionary entity by its nature and,
thus, essentially dependent on its power to communicate (see Second Vatican
Council, Decree Ad gentes, no. 2).123 As an institution in which preaching and
teaching is “nothing else and nothing less than an epiphany, or a manifesting
of God’s decree, and its fulfilment in the world and in world history”
(Decree Ad gentes, no. 9),124 the church fulfils a missionary task that transcends
local and historic borders and has to function in all regional cultures.
Accordingly, the church is indebted to Christ’s missionary call to
Christianise the whole world: “Go therefore and make disciples of all nations,
baptising them in the name of the Father and of the Son and of the Holy Spirit,
and teaching them to obey everything that I have commanded you” (Matthew
28:19–20; see also Mark 16:15; Luke 24:47; John 20:21; Acts 1:8).
Inculturating Global Canon Law

This missionary call to the apostles also contains a call to inculturation. Pope
Francis echoed this call in the chrism mass of 2015, in the metaphor of the
shepherds who should take on the smell of their sheep.125 This metaphor
indicates that communicating the message of the Gospel cannot succeed
121
122
Ibid., 290.
123
124
Ibid., 958; English version: www.vatican.va/archive/hist_councils/ii_vatican_council/docu
ments/vat-ii_decree_19651207_ad-gentes_en.html (accessed 25 December 2016).
125
See Francis, ‘Homily’, Chrism Mess, 2 April 2015, w2.vatican.va/content/francesco/en/homilies/
2015/documents/papa-francesco_20150402_omelia-crisma.html (accessed 25 December 2016).
from a distance but requires pastors to be culturally rooted in the culture of

their flock. It also requires the inculturation of the message itself, which has to
become firmly established in the cultures. This inculturation – in which
a general thought becomes real in a culturally particular context – is often
explained Christologically in the church: “It is because he became man that
God has also assumed, in a certain way, a race, a country and a time”,126 writes
the International Theological Commission. Christ’s becoming human in the
Christological act of the Incarnation is the archetype of all inculturation
processes. As Christ necessarily had to become involved with human culture
to fulfil God’s plan of salvation for humankind, communicating the Christian
message depends on inculturation for the Gospel to become real for human-
ity: “Christ would not be one with us in the reality of our concrete humanity if
he did not affect us as well in the diversity and the complementarity of our
cultures.”127
In a church which sees itself as a community of faith in a legal structure, its
claim to keep itself communicable in order to be received across diverse
cultures applies not only to the church’s doctrine but also to its law.128
A canon law that claims to be a legal order of the church as a community of
salvation and, thus, to communicate the Christian message in the medium of
the law, is directly affected by the paradigm of inculturation.129 As the Word of
God has to be embodied in a culture to become effective there, the law of the
church must also become part of a culture to fulfil its theological purpose, as
Ladilas Orsy writes:
Now the good news is proclaimed not with words only but with the whole life
of the church, including its structure and operations. As the words cannot
effectively convey the content of the gospel unless they are taken from, and
inserted into, an existing culture, so the structures and norms of the church
cannot effectively witness the freedom that God’s grace brought to the world
unless they blend with local cultures.130
General law therefore has to become concrete within local legal practice.
Canon law that serves the missionary dynamic of the church has to have the
“smell of the sheep”, meaning that it has to be linked with the local view on the
law. Interculturally imparting global canon law also means refraining from the
colonial style that even now accompanies the export of papal Roman law into
126
127
Ibid., section 2 no. 20.
128
See Orsy, ‘Theological Task’, 21–22.
129
See Kistner, Das göttliche Recht I, 14.
130
local churches all over the world. This restraint is required as a precondition of
inculturation, namely, as the theologian Martin Maier notes, “that no culture
is superior to another in the first place, and that Christianity in its Western
shape is not understood as normative for other cultural areas. No particular
culture may be regarded as perfect, and no shape of the Christian faith may be
taken as absolute – not even the Roman one.”131
Consequently, it is necessary to view the Romanity of global canon law and
its application in a critical light. Ladislas Orsy also notes that the monocultural
hegemony as it currently exists in the church’s global law cannot be justified in
the light of a theology of creation which reveals the equally primordial origins
of cultures. In consequence, the cultural basis on which canon law is
grounded has to be expanded: “This may mean that canon law will have to
broaden its base beyond the inheritance that we have received from the
ancient Roman iurisprudentes!”132
The task of reforming the church’s approach to culture to meet the
demands of modernity is not only relevant to the relationship of traditional
Catholicism to the young and growing missionary churches. It also requires
fundamentally readjusting the church’s perception of culture as such, so that
it acknowledges the culturality of local churches and the corresponding
plurality of the worldwide church, thereby integrating culturality into eccle-
siology and legal theory. In the same way that the centralist acting of the global
church influences local churches, local thinking and acting must also exert an
influence on the global church if the global church is to become more fully an
entity in support of the universal church. The need for this local-to-global
influence is tied in with the idea of inculturation, as inculturation is not a
one-way track by which a general message is implemented in a local eccle-
siastical culture, but a process which also infuses the message itself: “The term
inculturation includes the notion of growth, of the mutual enrichment of
persons and groups, rendered possible by the encounter of the Gospel with
a social milieu”,133 as the International Theological Commission notes. Local
ecclesiastical cultures are not merely recipients of the ecclesial message
through the medium of the doctrine or the law; they simultaneously contri-
bute to a deepened insight into the doctrine or the law. Inculturation is
131
Maier, ‘Inkulturation’, Stimmen der Zeit 225 (2007), 506; original: “daß keine Kultur einer
anderen von vornherein als überlegen angesehen und daß das Christentum in seiner
westlich-abendländischen Gestalt nicht als normativ für andere Kulturräume vertreten
wird. Schließlich darf keine bestimmte Kultur als perfekt angesehen und keine Gestalt
des christlichen Glaubens absolut gesetzt werden – auch nicht die römische.”
132
133
therefore shaped by a reciprocity between the local reception of general

concepts and the general learning about cultural concretisation that, in
turn, deepens the understanding of the general itself.134 Local churches have
to have the same impact on the global church that the global church has on
local churches. The idea of reciprocity, which relates both the global and the
local church to each other as learning systems, makes it necessary not only for
the local churches to culturally integrate ideas of global origin but also for the
global church to adopt ideas from the local cultures and integrate them into its
doctrine and its law.
The Ambivalence of Culturality

Permitting local cultures to become relevant for global canon law is therefore
essential. From this perspective, the normative dimension of culturality is
obvious, a dimension already identified in Chapter 3.2 in other canon lawyers’
contributions. However, this study has yet to identify where the normativity of
culture finds its limits. If culture is a major factor in making and applying law,
the question of limits becomes centrally important. One core challenge here is
in deciding how to react to the church’s ambivalence towards culture and
culturality. I mentioned in Chapter 3.3 a certain scepticism in the church’s
teaching authority towards culture, which is expressed in its warning against
a ‘zeitgeist’. Here, the church’s fear of relativising the truth becomes visible.
How much cultural difference can the one truth absorb before becoming
a relativist concept? Besides some strange arguments used in the debates on
the sexual abuse cases in the church that blamed the ‘zeitgeist’ and, hence, the
worldliness of the church for acts committed by clergy, thus avoiding taking
these acts seriously as ecclesiological issues,135 the question does arise of how
to deal with the dark side of culture. In this sense, John Huels notes that
cultural diversity is necessarily connected with the issue of relativism.136 For
this reason, a certain reservation towards culture is advisable for all Christians:
“not all the beliefs, values, and institutions that make up a culture are good
ones, at least not from a Christian perspective. Many are in need of redemp-
tion; many aspects of cultures, including our own, are contrary to gospel
values”,137 as Huels contends. Likewise, Robert Schreiter, who worked on
intercultural theology, warns of a “cultural romanticism, whereby any cultural
134
See Hoffknecht, Theologie, 286.
135
See Matthäus, ‘Schuld ist der Zeitgeist’; Goertz, ‘Relikte’, 138–139.
136
See Huels, ‘Interpreting Canon Law’, 251–252.
137
Ibid., 265–266.
form is automatically accepted as a vehicle of Christ in culture”.138 It was and

is, Schreiter states, one of the great challenges throughout Christian history to
integrate the Christian faith into concrete historical and cultural contexts and
yet retain a distance from these contexts. Huels also emphasises this: “To be
Christian, in the fullest sense, means always being counter-cultural, living in
society but being sufficiently distant from it to see its faults and seek changes
that promote human and gospel values.”139
The Christian faith is present only through the medium of culture. At the
same time, it is “counter-cultural” as it relates critically to the culture in which
it is embedded. Bearing in mind the Christological motif of the Incarnation,
the church’s counter-culturalism cannot simply make a sharp break with
culture but engages more in a constructive conflict with the local culture,
which itself might even be changed by Christian influences, as Schreiter
contends: “If Christianity is alive at all in a situation, it will certainly change
things about the culture. The Christian message, after all, is about change:
repentance, salvation, and an eschatological reality to be realized.”140 In this
vein, recent theology uses the term critical contemporaneity to refer to the
church’s critical influence on culture.141 The term alludes to the essential link
between the church and its time and history, but not without naming the
critical dynamic of this relation.
This tension between the church and culture also gives rise to a further
question regarding the cultural peculiarities and practices which might influ-
ence the Christian faith: “How do we determine which elements of a culture
ought to be maintained or rejected on the basis of Christian principles?”142
Huels asks. That fundamental values of the Christian faith are not open for
negotiation is clear, even if they are in conflict with some cultural beliefs in
local churches: “We belong to a Church and we profess certain basic beliefs
and uphold fundamental values that are central to our faith and our view of the
cosmos, and they cannot be compromised even if people in some cultures do
not accept them.”143 For this reason, it is necessary to identify those cultural
elements that are incompatible with the Christian faith.
Nevertheless, it is not as easy to make this distinction as it might seem.
Instead, a method of evaluation has to be developed which allows for critical
differentiation. Huels comprehends this task as one of weighing and
138
139
140
141
E.g. Kreutzer, Kritische Zeitgenossenschaft, Innsbruck, Tyrolia, 2006.
142
143
Ibid., 289.
balancing, critically evaluating the indispensable core of Christian faith and

local cultural needs, with the purpose of finding solutions that do not com-
promise the Christian faith but do meet the necessary cultural requirements in
the best possible way. He suggests asking the question: “What practices,
beliefs, values, structures, and institutions are truly necessary and indispensa-
ble for church life, and which ones may be modified or abandoned for the sake
of values in the culture of the local church?”144
Huels understands this differentiation as one principal hermeneutical task
of identifying matters of indispensable universal quality and those that are
culturally changeable, and separating them. This task is hugely relevant for the
foundation of canon law, for it has to recognise both necessary and variable
aspects of canon law by discerning its divine and contingent sources: “A chief
hermeneutical task for canon law is to discover what are the abiding gospel
values enshrined in the laws, and distinguish these values from whatever is
nonessential and changeable.”145 If certain regulations are not essentially
relevant and necessary for the faith, then they should not be allowed to
become a problem for local churches for cultural reasons: “they are not so
important and should not be allowed to become obstacles to the growth of the
Christian faith in some cultures”,146 Huels demands.
Lawmaking and Subsidiarity

As giving up global canon law is not an option because of its service to the
unity of the church’s legal order, future canon law should also provide
a homogeneous legal frame for the global church. This, however, is only
one aspect of how the church might develop its law in response to the
ecclesiological findings of the council and the demands of modernity.
Besides, special attention must be paid to particular law as law in which the
legal culture of the local churches may be expressed in a specific way.
The theological demand for greater consideration of local churches, and the
sociological insight that the effectiveness of law alien to a culture is weak,
shows that the call for a more subsidiary organisation of canon law (a call
which is not new but still unachieved) needs to be taken seriously.147
With regard to applicable canon law, one must take account of canon 20
CIC/1983. It protects an earlier particular law against a later global law in the
144
Ibid., 266.
145
Ibid., 268.
146
Ibid., 289.
147
See Beyer, ‘Subsidiaritätsprinzip’, in Pfammatter/Furger (eds), Kirche, Zürich, Benziger,
1986, 113–137; Erdö, Theologie, 146–155; Kistner, Das göttliche Recht II.
case of conflict if the global legislator does not explicitly direct the abrogation of
the particular law. In addition to the principle of subsidiarity, the canon lawyer
Hubert Socha sees theological and sociological reasons at work behind this norm:
The universal legislator’s consideration of the existing particular law is
grounded especially in the ecclesiological significance of the particular
churches . . ., in taking seriously the principle of subsidiarity that also shaped
the constitution of the church . . . and the global differences in the situations
of the people of God which need to be regulated and which the universal
legislator cannot always fully understand.148
In his deliberations, Socha names three arguments which support the priority
of particular law in specific cases: subsidiarity as a principle of organising
societies, the theological status of the local church as especially emphasised by
the Second Vatican Council, and the pragmatic argument that a plural legal
community like the church can be served best by locally producing legal rules
appropriate to the specific circumstances of each local church. All three
arguments are not only relevant when a conflict arises between an existing
particular law and a newly developed global law (as addressed in canon 20
CIC/1983) but also have to be thought of fundamentally with regard to how
far-reaching local legislative authority should generally be, thereby limiting
the legislative authority of the global legislator. The relationship between the
legislative authorities of the particular and of the global norm giver must be
the focus of in-depth discussion against the background of ecclesiology and the
theory of subsidiarity.
In this study, I have said much about the ecclesiological aspects of the
question already, and less about subsidiarity, one of the core principles of
social organisation. Pius XI identified the principle of subsidiarity in his
Encyclical Quadragesimo anno, in 1931, as an important principle of social
theory, and pointed out that it was a question of justice that all aims which can
be successfully achieved at a lower level of the community should be left at
this level and not handed over to a superior for resolution:
Just as it is gravely wrong to take from individuals what they can accomplish
by their own initiative and industry and give it to the community, so also it is
148
February 2012), 8 no. 14; original: “Die Rücksichtnahme des universalen Gesetzgebers auf
das bestehende Partikularrecht gründet vor allem in der ekklesiologischen Bedeutung der
Teilkirchen . . ., im Ernstnehmen des auch die Kirchenverfassung prägenden
Subsidiaritätsprinzips . . . sowie in der weltweiten Verschiedenartigkeit der zu regelnden
Verhältnisse des Gottesvolkes, die der universale Gesetzgeber nicht immer überblicken kann.”
an injustice and at the same time a grave evil and disturbance of right order to
assign to a greater and higher association what lesser and subordinate orga-
nisations can do (no. 79).149
The pope goes on to say that this should be followed as a fundamental

principle when shaping society: “For every social activity ought of its very
nature to furnish help to the members of the body social, and never destroy
and absorb them” (ibid.).
The church itself is to observe the principle of subsidiarity because the
church is understood as a society. For this reason, subsidiarity functions as
a principle for constituting the church socially and is to be used in organising
the church and canon law. This has consequences for ecclesiastical legisla-
tion, which structures norm giving according to the principle of subsidiarity.
As a result, considerable powers of lawmaking have to be relocated and
established in local churches according to two criteria: first, the paradigm of
unity of ecclesiastical law must serve as a margin for defining the borders of the
local church’s legislative authority; and, second, the local church’s capacity to
adequately fill the demands of legal regulation must be ensured.150
Demands for a more subsidiary shaping of canon law were already being
voiced in the 1960s. Consequently, the principle of subsidiarity was laid
down in the fifth of the ‘Principles Guiding the Revision of the Code of
Canon Law’, which gave directions to the reform process before 1983.151
These principles are also contained in the Preface to the Code of Canon Law
in a condensed form. The preface defends the need to shape the law of the
church according to the principle of subsidiarity by referring to the office of
the bishop and the bishop’s authority.152 Thus, the theology and theory of the
bishop’s office, as emphasised by the Second Vatican Council (see
Dogmatic Constitution Lumen gentium, especially nos 18–29;153 Decree
Christus dominus154), is put forward as one important perspective for legal
reform. The conciliar reinforcement of the bishop’s office was expected to
correlate with an expansion of the bishop’s authority in the field of
legislation.
149
Acta Apostolicae Sedis 23 (1931), 203; English version: w2.vatican.va/content/pius-xi/en/encycli
cals/documents/hf_p-xi_enc_19310515_quadragesimo-anno.html (accessed 1 January 2017).
150
See Böhnke, ‘Theologische Anmerkungen’, in Schüller/Zumbült (eds), Iustitia est constans,
Essen, Wingen, 2014, 112.
151
Communicationes 1 (1969), 80–82.
152
Acta Apostolicae Sedis 75 II (1983), XXII.
153
154
Simultaneously, the Preface to the Code emphasises the need to protect the
unity of ecclesiastical legislation, as well as the need for a homogeneous body of
canonical norms, thereby highlighting the tension between local and global
regulations. Subsidiarity is introduced in this context as a principle to balance
any colliding claims. It serves as “the normative principle of mediation between
freedom and the common good”,155 Peter Kistner notes. The Preface to the
Code states that:
In virtue of this principle one may defend the appropriateness and even the
necessity of providing for the welfare especially of individual institutes through
particular laws and the recognition of a healthy autonomy for particular execu-
tive power while legislative unity and universal and general law are observed.156
On one hand, the church’s need for unity is strengthened by the call for
a common legal framework for the global church. The Preface to the Code
refers to the danger of “disgregation” as a threat to this unity, including the
“danger of division into or the establishment of national churches”.157 On the
other hand, the autonomy of the particular churches in lawmaking is marked as
not only appropriate but also essential. For this reason, the Preface to the Code
states that: “the new Code entrusts either to particular laws or to executive power
whatever is not necessary for the unity of the discipline of the universal Church
so that appropriate provision is made for a healthy ‘decentralization’.”158
It is interesting to note that Pope Francis picked up this wording in an
address during the commemoration of the fiftieth anniversary of the institu-
tion of the Synod of Bishops on 17 October 2014, when he announced “the
need to proceed with a healthy decentralization”159 within the church which
would have to include rethinking the role of papal authority. This statement
shows that an ecclesiastical decentralisation that leaves room for fruitful
subsidiary structures has only just begun.
Which Legislator Is Competent?

This need for decentralisation is equally true with regard to the law of the
church. Whereas subsidiarity plays a major role in the ‘Principles Guiding the
155
Kistner, Das göttliche Recht II, 111; original: “das normative Prinzip der Vermittlung von
Freiheit und Gemeinwohl”.
156
Acta Apostolicae Sedis 75 II (1983), XXII; English version: www.vatican.va/archive/ENG1104/
__P1.HTM (accessed 21 December 2016).
157
Ibid.
158
Ibid.
159
Internet source: http://en.radiovaticana.va/news/2015/12/12/council_of_cardinals_conclude_t
welfth_meeting/1193924 (accessed 21 August 2017).
Revision of the Code of Canon Law’ and in the Preface to the Code, its
practical relevance in the applicable law of the church is a minor one. The call
expressed in the reform of the law, namely to shape the law of the church
according to subsidiarity, was taken up only reluctantly. Moreover, one must
note that “not one word is devoted to the principle of subsidiarity in the Code –
not even to mention subsidiary constitutional structures”,160 as Kistner
remarks.
The tendency of the official church to secure the unity of faith by a legal
unity which relies on a centralistic approach to lawmaking may have hindered
the handing over of legislative powers from the Roman centre to the local
churches.161 Neither will this change in the future, unless more members of
the hierarchy come to believe that the unity of the church and its faith is not
endangered by its dependence on a more subsidiary lawmaking. Yet another
obstacle to a more practical subsidiarity within lawmaking consists in the
necessity to identify which legal matters should be regulated on a higher
and on a lower level. Any sensible differentiation would require balancing
the need for unity and the potential for plurality with regard to each single
legal matter. Whereas the core of the legal order of the church safeguards unity
by keeping a common law that protects fundamental positions of the church’s
faith, the church could relinquish the dominant legal centralism of recent law
below this core level. This would involve distinguishing which legal matters
need a homogeneous regulation because of questions of faith, and which
matters do not endanger the unity of the faith and are therefore open to
subsidiary regulation.
Yet simply dividing the matters into faith-based law on one side and plural
human ordinances on the other fails to do justice to the complexity of the legal
matters and their “composite nature”,162 as Ladislas Orsy calls it. This is the
case because in shaping religious legal norms, religious ideas and norms of
divine quality are connected with and embodied in human norms. The law of
the sacraments best illustrates this complex blend of different validity qualities
in canon law. As a legal matter regulating God’s salvific action towards
humankind, the law of the sacraments in its core is based on the divine will
and is the result of a divine norm-giving impulse. This is visible, for instance,
in some norms regulating validity matters of the sacraments. These norms
contain regulations about an individual’s ability to receive a sacrament and
160
Kistner, Das göttliche Recht II, 50; original: “wird das Subsidiaritätsprinzip im CIC mit
keinem Wort erwähnt – von subsidiären Verfassungsstrukturen ganz zu schweigen.”
161
See Beyer, ‘Subsidiaritätsprinzip’, 123.
162
the will necessary to receive it validly. Both aspects show that receiving
a sacrament fruitfully depends on certain human conditions: on the recipi-
ent’s being alive, as the sacraments are symbols of God’s grace under the
conditions of earthly life; on the recipient’s fundamental openness to the
action of grace in the sacrament, as the sacraments are symbols of salvation
only under the conditions of freedom; or on the recipient’s being already
baptised (except when the sacrament of baptism is concerned), as the sacra-
ments are symbols of grace administered by the church for the church, and,
thus, to its members only. If sacraments with an indelible character are
concerned, their fruitful reception also depends on the recipient’s not already
having received them, as the indissoluble sign that ontologically changes the
recipient can be received only once.
It would be easy to provide more examples emphasising the theological core
of the validity regulations in the law of the sacraments. At the same time,
however, one should note that other requirements that regulate the valid
reception of a sacrament do not have the same theological relevance, although
in determining the valid or invalid reception of a symbol of God’s grace they
regulate a theologically central matter. What comes to mind are the norms on
the form of contracting a marriage (see canon 1108 §1 CIC/1983) or of canon
924 §2 CIC/1983 determining the ingredients of the Eucharistic substances,
both of which must be observed for the sacrament to be administered validly.
However, as regards their content, these are not theologically necessary reg-
ulations but are based on the human need to organise the matter. The same
applies to the norms of sacramental law regulating the licit reception of
sacraments.
With this in mind, it is not easy to decide which legal matters global canon
law should regulate to guarantee that sacramental law serves the unity of the
faith, and which matters are apt to be regulated by particular law. Whereas the
need for homogeneous regulation might seem obvious when it concerns
norms directly linked with questions of grace and salvation, as well as norms
that contain theologically grounded validity regulations of sacramental law, at
a lower level it might be open for discussion how far a particular regulation of
the sacramental law is possible and appropriate.
Because sacramental law is obviously close to questions of faith, some
canonists would probably vote to retain a central regulation of the whole
matter by global canon law, as in current practice. Yet others might want to
emphasise that besides the theological necessity of keeping a common frame
of sacramental law, a flourishing particular law of the sacraments might help
to protect local cultural particularities. This might enable the principle of
subsidiarity to be taken up more skilfully than in the applicable law, and might
also strengthen sacramental practice if the members of the local churches

discovered their own culturality in locally developed sacramental norms.
With this in mind, John Huels expounds the problem raised by canon 924
CIC/1983 on the Eucharistic substances, which restricts the matters used
for celebrating the Eucharist to bread made of wheat flour (see §2) and wine
made of grapes (see §3). In cultures where the use of wheat bread and grape
wine are uncommon, this requirement could provoke misunderstandings:
“In many parts of the world, wheat bread or grape wine are exotic and can
be difficult to obtain, and instead of being perceived as the food ‘which earth
has given’ and the drink as ‘the work of human hands’, they tend to be regarded
by newly Christianized people as magical elements.”163 For this reason, con-
sideration should be given to allowing local ingredients to be used to produce
the Eucharistic substances.164
Huels argues in favour of improving the law of the sacraments relating to
cultural factors, yet he does not specify how to achieve this increased sensitiv-
ity. Technically, his idea could be taken up in two ways: either by making the
global law of the Eucharist more sensitive to culture (hence, reformulating
canon 924 CIC/1983 so that it grants more freedom in choosing culturally
appropriate ingredients), or by allowing particular churches to regulate the
matter for themselves. This, again, shows the difficulty of clearly marking the
border between the central and the local authority of lawmaking. Which
matter has to be generally organised for the worldwide church with regard to
the unity of faith, and which might be handed over to the particular legislator
to be regulated according to the principle of subsidiarity?
This margin cannot be determined here, for example by schematising the
legal matters of the Code. However, my saying that it cannot be determined
in this study is not just a strategy to avoid some major systematising work.
The reason is, in fact, a theological one relating to the theory of truth. Insofar
as these decisions are connected with questions of truth, they have to be made
in procedures which have a high probability of identifying the truth. Because
of this, such a significant differentiation requires the whole church as an agent
of truth to consider which legal matters should be regulated centrally for
reasons of unity, and which matters can and should be regulated locally.
The best context for discussing this lies within the framework of a legal reform
of global canon law itself. Hence, reforming the global law of the church is not
163
Huels, ‘Interpreting Canon Law’, 281; see also Schreiter, Constructing Local Theologies, 8–9.
164
Huels acknowledges (see 282) that this is not primarily a legal but a doctrinal question. But he
reminds his readers that legal considerations might foster doctrinal considerations. To deal
with the question of culture in a legal perspective would therefore not only serve to discover
legal problems, but might also contribute to revealing doctrinal problems.
only about deciding on the content of the global ecclesiastical norms, but also
about deciding which legal matters need to be organised globally and which
do not. The following chapter models a procedure for developing canon law
that fulfils these dual challenges of dividing the legal matters of the church
into central and local responsibilities and of reforming the global law of the
church.
4
Consequences for Developing the Law
For the global law of the church to protect the indispensable beliefs of the
church implies that it must serve as an underlying framework for the eccle-
siastical legal order. Simultaneously – out of the need to inculturate the
church’s message in all cultures – the need arises to integrate a cultural
plurality into the global law of the church. Additionally, the growth of parti-
cular powers should be encouraged according to the principle of subsidiarity,
thereby guaranteeing the extensive autonomy of the local churches in legal
questions. With this in mind, procedures have to be formulated relating to the
universal horizon of faith and to local culturality in such a way as to produce
norms which are suitable for the plural legal demands of the one church.
To this end, several aspects have to be taken into account: first, local
churches have to be integrated into the process of global lawmaking more
extensively in order to break with the monoculturality of the ‘Roman’ legisla-
tion. A procedure answering this need must aim at suitably distributing powers
between the central and the local norm givers as well as at fashioning global
canon law which is more sensitive to culture. A first step must decide which
legal matters are to be regulated locally and which have to be regulated
globally to safeguard the unity of faith. A second step must regulate the matters
that are to be organised centrally in a way which is sensitive to culture. As there
will never be a general law which is sensitive to all cultural particularities,
instruments of flexibility have to be provided for which, under certain condi-
tions, allow cultural demands to be protected within the reception and
application of the law when the global law has failed to consider them.
4.1 the legislation of the global church

On a formal level, revising the legislative procedures of the global church
makes it necessary to balance centrality and locality; on a material level, this
174
Consequences for Developing the Law 175
entails linking universality and culturality. To find a suitable process model for
this, it is most helpful to select the procedure used in the reform before 1983
and to improve it according to the needs that were identified in its critical
reception. I therefore rely on the procedural steps taken in the last revision of
the Code and discuss their advantages and disadvantages with regard to my
findings.
The reform works before 1983 consisted of three main actions: the working
groups and the Commission for the Revision of the Code were in charge of the
operative work of revising the norms and writing the drafts of the single legal
matters and later of the whole Code. A global consultation process then
critically discussed the commission’s draft of the Code; this process led to
further revisions. A third step consisted in the final redaction and promulga-
tion of the Code by the pope.
This three-step model is not an obligatory procedure for reforming
global canon law. That the church is aware of alternative procedures for
developing its law becomes apparent when looking at the several papal
corrections of norms in the Code that took place after 1983, all in the form
of a Motu proprio as an act of legislation which stemmed from the pope’s
own initiative: the Motu proprio Ad tuendam fidem,1 Omnium in mentem,2
Mitis iudex Dominus Iesus,3 and De concordia inter Codices.4 The pope
used these documents to change norms in the Code without involving a
commission or a process of consultation. So it is equally conceivable –
particularly with the Code of 1917 in mind – for the pope to reform the
whole Code alone.
Yet from an ecclesiological perspective, this legislative concept – unlike
before 1917 – no longer serves as a credible prototype for a larger reform of
global canon law. Even before the reform of 1983, endowing a commission
with the reform and referring to a consultation model was highlighted as a
consequence of the theology of communion of the Second Vatican Council:
when shaping the law of the global church, the church as a whole should play
its part.5 Any future reform of global canon law can hardly be different.
Entrusting a commission of representatives of the people of God with the
main reform work could be a response to the need for participation. A global
consultation process gathering the voices of the local churches could ensure
1
2
3
4
5
See ‘Apostolic Constitution Sacrae disciplinae leges’, Acta Apostolicae Sedis 75 II (1983), VIII–
IX; ‘Preface to the Code’, Acta Apostolicae Sedis 75 II (1983), XXVIII–XXIX.
that the multiple cultures of the Catholic world are present in the process of
reform. Finally, the papal promulgation of global canon law should symbolise
the unity of the church.
Despite the general suitability of the established steps, modifications to the
reform process are still necessary, as the procedure before 1983 had some
deficiencies: a lack of participation in the bodies of the reform and the
deficient explanation and justification of the changes in the law, as discussed
in Chapters 2.3 and 2.4. Future reform must therefore ensure greater partici-
pation by the people of God as a community of different ecclesiastical
cultures, different statuses, different ways of life, and different genders, and
must invest more effort in the transparency of the process and in explaining
and justifying the norms, allowing the members of the church to better
understand the legislative decisions.
This chapter develops a procedural model that attempts to answer these
needs. It describes a process of lawmaking which reacts to the problems of the
past process but does not claim to be the only possible model for adequately
organising ecclesiastical legislation. I restrict my considerations to a model of
global lawmaking. As this study focusses on the global law of the church (and
because the approach discussed here may be adopted easily by local churches
with some modifications), I do not undertake a modelling of a particular
process in this study. Nevertheless, the parallels between global and particular
legislation invite the reader to transfer the model presented here to the
particular level.
Lawmaking Bodies in a Global Church

If the procedures of the 1983 reform are to be retained, it is the collective
bodies of the working groups and the reform commission that first come to
mind. They carried the main burden of reorganising the law. Similar bodies
could, again, be used for this task in any future reform of global canon law, and
particularly in a reform of the global Code.
With respect to the relevance of culturality for the law, one must first
consider allowing culture some impact in the selection of the bodies’ mem-
bers. In the introduction to the then-new Code published by the German
Bishops’ Conference in 1983, Winfried Aymans noted an obvious cultural
disproportion with regard to the working groups and the commission of the last
reform: “The main task . . . of the last reform over all these years was carried out
by the consultors, canon lawyers of scholarship and practice, theologians and
[canonistically] educated bishops; with regard to its geographical origin,
Europe and America were represented especially strongly in the group of
the consultors.”6 The reform commission, as discussed in Chapter 3.3, was

heavily influenced by representatives of the Roman legal culture. Members of
the commission were bishops and cardinals from all over the world, but also
the prefects of the diverse congregations and other members of the Roman
Curia. Especially the cardinals of the Curia living and working in Rome can
be seen as representatives of a legal Romanity (which in any case always has a
global character). Adding to this, many representatives of the local churches in
the commission were educated in Rome, as I have shown in relation to the
German-speaking bishops in the commission before 1983. Diversifying the
commission therefore makes it necessary to reduce the Romanity of its mem-
bers by consistently involving representatives of the local churches and by
selecting members who were not educated in Roman universities or institutes.
One possibility might be to specifically limit the number of cardinals from the
Curia in the commission.
It is also necessary to revise the consultation process to integrate the per-
spective of local cultures into the process of lawmaking. Before 1983, besides
the dicasteries of the Roman Curia – which institutionally represented the
Roman legal culture – the bishops’ conferences, the Union of Superiors
General of the religious orders, and the ecclesiastical universities and faculties
were asked for their critical opinion on the draft of the Code. A similar
procedure and the same addressees were invited to respond to the recent
consultations on the reform of the penal law of the Code.7 The cultural
background of those consulted before 1983 was obviously very diverse. Yet,
as mentioned in Chapter 2.4, it is a point of criticism that the relevance of the
global consultation and the ways it influenced the further development of the
draft of the Code remained unclear. To clarify which impact the global agents
have on the development of the global law, it would be helpful in any future
reform to regulate and make known how the commentary is treated in revising
the draft and how much attention is paid to the critical comments of the local
churches overall.
Likewise, the pope’s final redaction of the Code serving the unity of the
church and its law is open to criticism with regard to the paradigm of cultural
plurality. In completing his revision in 1983, the pope received advice from a
small circle of legal experts. In any future reform, the selection of these experts
could at least be guided by the criterion of cultural diversity. The same could
6
Aymans, ‘Einführung’, 9; original: “Die Hauptarbeit lag . . . über all die Jahre hinweg bei den
Konsultoren, Kirchenrechtlern aus Wissenschaft und Praxis, Theologen und fachlich ausge-
wiesenen Bischöfen; der geographischen Herkunft nach waren Europa und Amerika im Kreis
der Konsultoren besonders stark vertreten.”
7
See Renken, ‘Penal Law’, Studia Canonica 50 (2016), 101.
also apply with respect to any Motu proprio or an Apostolic Constitution.

Conceivably, the pope might bind himself to promulgate norms for the global
church only after receiving advice from a circle of culturally diverse legal
experts. This kind of voluntary commitment by the pope could take the form
of a right to be heard.
The Sense of Faith in Legislation

A second question with regard to the bodies of the legal reform before 1983
targets the status of their members, as the consultors in the working groups
were mostly clerics, and the members of the commission were exclusively
bishops and cardinals. Similar questions arise as to the selection of experts
addressed in the consultation process. Through the dicasteries of the Roman
Curia, the bishops’ conferences, the Union of Superiors General of the
religious orders, and the ecclesiastical universities and faculties, the process
addressed an immense number of institutions – yet not all groups of the people
of God. The only laypeople consulted were the lay members of the religious
orders and of the ecclesiastical universities and faculties. The voices of other
associations or groups of the laity were not heard.
Not only for sociological but also for ecclesiological reasons, one must ask
whether the church as the people of God can be represented adequately by
representatives of the hierarchy only or mostly, or whether the decision-making
process must include representatives from all ecclesiastical statuses of the
universal church. The theological aspects behind this question might be
explained best by referring to the theory of the sense of faith. This theory
supports the idea that all members of the church are capable of perceiving the
truth if they come to a common understanding in questions of faith. A belief
shared by all Christians is regarded as irrevocably true, for it is comprehended as
the result of the Spirit’s acting within the people of God. Because of the faithful
individual’s sense of faith, each baptised individual is capable of finding the
truth in matters of faith. Simultaneously, the capacity of an individual to find
the truth can never be thought of apart from its ecclesial context, that is without
the community of the church and, thus, without the communal sense of faith.8
The idea that all members of the people of God unite to discover doctrinal
beliefs that the faithful mutually regard as true is a core idea of the Second
Vatican Council’s teaching on infallibility (see Dogmatic Constitution Lumen
gentium, no. 12).9 This perspective emphasises the significance of the sense of
8
See International Theological Commission, ‘Sensus fidei’, no. 3.
9
faith as a dynamic principle that serves to develop the teaching of the church
through history and time, as the International Theological Commission noted:
As she awaits the return of her Lord, the Church and her members are
constantly confronted with new circumstances, with the progress of knowl-
edge and culture, and with the challenges of human history, and they have to
read the signs of the times, ‘to interpret them in the light of the divine Word’
. . . The sensus fidei gives an intuition as to the right way forward amid the
uncertainties and ambiguities of history, and a capacity to listen discerningly
to what human culture and the progress of the sciences are saying.10
Because of the close link between doctrine and law, which functions as the
organisational framework for matters of faith, it is not too far-fetched to think of
the sense of faith as the sense of the people of God for the right law. This is
especially plausible with respect to legal matters that relate to a divine source,
as those matters are intimately linked with the truth of the church. As those
normativities may kindle the sensitivity of the people of God for right norms,
Ladislas Orsy speaks of a “power (dynamis in biblical speech) in the Christian
community to create good laws”.11
Representing the People of God

When attributing a powerful perceptive competence to the people of God as
indicated by the theory of the sense of faith, one must ask how to relate this
competence to legislative processes. In discussions about participation – like
whether to open ecclesiastical decision-making to the laity – the sense of faith
serves as a key theological motif used by many canon lawyers demanding the
inclusion of all of the faithful in the church’s decision-making.12 The legislator
is called on to integrate the people of God in shaping laws that suit the church.
In this sense, a theology of communion supports the rationale of a theory of
legitimacy by which future legal reforms in the church have to consider not
only the plurality of ecclesiastical cultures but also the different statuses and
10
11
However, the theory of the sense of faith is – surprisingly – less influential in canon law and
for the theory of developing canon law, as Orsy remarks: “Much has been written about the
contribution of the faithful to the development of doctrine . . . No major study exists, as far as I
know, on the contribution of the faithful to the development of our legal system” (ibid., 117,
fn. 23).
12
E.g. Corecco, ‘Aspekte der Rezeption’, 140–142; Orsy, ‘Theological Task’, 8–9; Demel,
Handbuch, 405–408.
multiple ways of life within the church. Calling to mind Hanna Pitkin’s findings
on the relevance of representation in modernity wherever decision-making does
not provide a direct participation of the community’s members, descriptive
representation serves as a suitable substitute for direct participation likely to
convince the community’s members of the legitimacy of decisions.13 Any future
reform of canon law should therefore take the sensible step of choosing repre-
sentatives from all ecclesiastical statuses as members of the working groups and
the commission and as addressees of the consultation process.
A body of reform that assembles representatives from all ecclesiastical
statuses would represent a church that understands itself as a communion of
clergy and laypeople. This, after all, would also foster a more culturally
sensitive law, insofar as a legal reform that also relies on the laity would gain
access to the specific legal experience of the laity. If one shares the council’s
opinion on the worldliness of the laity, it is plausible to argue that integrating
the laity more in ecclesiastical decision-making would increase the cultural
sensitivity of ecclesiastical decisions. The Constitution on the Church spoke
of the special charism of the laity to “seek the kingdom of God by engaging in
temporal affairs and by ordering them according to the plan of God” (Lumen
gentium, no. 31).14 The laity live “in the world”. Because of this, they are
closely linked to modern society in its secularity and plurality: “in the ordinary
circumstances of family and social life . . . [t]hey are called . . . by God that by
exercising their proper function and led by the spirit of the Gospel they may
work for the sanctification of the world from within as a leaven” (ibid.).15
13
See Pitkin, Representation, 86.
14
ii_vatican_council/documents/vat-ii_const_19641121_lumen-gentium_en.html (accessed 25
December 2016).
15
Ibid., 37–38.
One must point out, though, that speaking of the “worldliness” of the laity has to be viewed
very critically. It indicates a dual structure of the church’s missionary activity dichotomising
the service of the laity within the world and the clerics’ service withdrawn from the world (see
Beyer, ‘Subsidiaritätsprinzip’, 133–134; Koch, ‘Weltdienst der Laien’, in idem, Konfrontation,
Freiburg, CH, Paulusverlag, 1996, 223–238; Beal, ‘Canon Law and Its Discontents’, 142). This
dichotomy is connected not only with a thinking that functionally differentiates between
laypeople and clerics in a problematic way but also with a view of society that apprehends the
‘world’ as a context of the church, as if the spiritual acting within the church, which is mostly
ascribed to clerics and religious, is apart from the ‘world’. This understanding misinterprets the
fact that the church itself is necessarily impregnated by the society in which it exists and, thus,
is ‘worldly’ itself (see Koch, ‘Weltdienst’, 229). And it provokes an untheological interpretation
of the laity’s ‘worldly’ service which does not match the theological dignity of Christian
engagement in society. In contrast to this view, one would have to realise that the whole
people of God live in a certain tension, namely being part of the world and at the same time
Being part of the world, laypeople are regarded as closely linked with their
society’s culture – which includes its legal culture. Hence, those church
members experienced in secular legal affairs may contribute to enhancing
the communication between the law of the church and secular law. This is of
particular value for the development of canon law, as the gap between the
fundamental reasoning of the secular law and that of the ecclesiastical law
should not grow too large if canon law is to be accepted in society and by the
members of the church. As many faithful see themselves primarily as addres-
sees of state law (and not of canon law), canon law struggles to find acceptance
if it does not refer to arguments familiar to the faithful through secular
discourses. So canon law – as a law that in modernity cannot be plausible
without consulting secular legal thought – would be well advised to profit from
the laypeople’s legal knowledge by involving the laity in ecclesiastical
legislation.
Majority: How Is It Related to Verity?

Opening the reform processes of the law by including all statuses and cultures
of the church would presumably result in the exchange of a greater diversity of
opinion in the reforming bodies. This increase in plurality may be welcome, as
it symbolises the church in its fullness as the people of the God of all nations,
cultures, and statuses. At the same time, the church must learn to tolerate the
inevitable associated loss of homogeneity, both on a general level and regard-
ing decision theory. This new heterogeneity confronts the church with the
need to find a suitable mode of decision-making which is both useful for
channelling plural convictions into decisions and acceptable to the legal
subjects, so that the decisions might gain their consent and be received in
the legal community.
In democratic cultures, these questions are linked to majority rule, as the
majority generates decisions which may be accepted as legitimate. In the
church, however, the situation is slightly different, as there is some hesitation
about relying on majority rule, particularly where truth is concerned. Whereas
keeping a distance from it. As the church in total distinguishes itself from the secular culture in
parts – insofar as the integration of Christian belief into a concrete culture always demands a
certain distance from it – this also applies to the laity who live as Christians in an increasingly
secular and plural society. The idea of a specific service of the laity in and to the world can
therefore be followed only with reservation. This study refers to this service of the laity not in a
theological way but from a sociological perspective: the specific legal knowledge and experi-
ence of some of the faithful (who are mostly laypeople) in the field of secular law is of a special
value for the development of canon law, and thus should be used for ecclesiastical lawmaking.
the majority is used pragmatically in votes or collegial decisions in the church,

majority rule was never established to decide matters of faith.16 In this sense,
the German Parliament was reminded by Pope Benedict XVI, in his much
debated address, that majority is not, or not necessarily, verity.17
This concern is substantiated by the International Theological Commission
with reference to the perception of natural law. The commission questions the
finding of norms on the basis of a majority, insofar as majority procedures rely on
the lowest common denominator of shared beliefs. This poses a problem, at least
in decisions linked with prepositive norms: “does a purely inductive search,
conducted on the parliamentary model, for an already existing minimal consen-
sus, satisfy the requirements for basing law on what is absolute?”18 Because there is
room for doubt here, majoritarian decision-making is regarded as inappropriate
for perceiving prepositive values and for transforming them into positive law.
Similarly, and with some significance for this study, the Congregation for
the Doctrine of the Faith, in the Instruction Donum veritatis of 1990, described
majority rule as an inadequate mode for effecting the sense of faith.
Supporting a link between the majority and the sense of faith represents a
problematic “sociological argumentation which holds that the opinion of a
large number of Christians would be a direct and adequate expression of the
‘supernatural sense of the faith’” (no. 35).19 Dominik Burghardt explains this
critique by noting “that the sense of faith due to its supernaturality is not at
human hands. From this follows that each attempt to detect it statistically or
experimentally must fail . . . The consensus fidelium is more than the sum of
the faithful’s single opinions, as the universitas fidelium is more than the sum
of the faithful.”20 Interpreting the sense of faith as the majority’s opinion would
16
This distinction is somewhat perplexing as collegial decision-making might come across
matters of truth too. The collegial tribunals’ decisions in the marriage cases, for example,
are decided by a majority of the judges (see can. 1426 §1 CIC/1983), although the tribunal’s
sentence is directly connected with a question of truth, namely the validity of a marriage
(which between baptised parties is also regarded as a sacramental reality).
17
See Benedict XVI, ‘Address’, 22 September 2011, English version: www.bundestag.de/parla
ment/geschichte/gastredner/benedict/speech (accessed 29 November 2016).
18
International Theological Commission, ‘Universal Ethic’, no. 6; see idem, ‘Sensus fidei’, nos
118–119.
19
Acta Apostolicae Sedis 82 (1990), 1565; English version: www.vatican.va/roman_curia/congre
gations/cfaith/documents/rc_con_cfaith_doc_19900524_theologian-vocation_en.html
(accessed 1 January 2017).
20
Burghardt, Institution Glaubenssinn, Paderborn, Bonifatius, 2002, 80; original: “daß der
Glaubenssinn aufgrund seiner Übernatürlichkeit einer menschlichen Verfügbarmachung
entzogen bleibt. Daraus folgt, daß jeder Versuch, ihn statistisch oder experimentell feststellen
zu wollen, fehlschlagen muß . . . Der consensus fidelium ist mehr als die Summe der
Einzelmeinungen der Gläubigen, ebenso wie die universitas fidelium mehr ist als die
Summe der Gläubigen.”
ignore the ecclesial dimension of the sense of faith, which could never
exist without being grounded in the church, as the instruction Donum
veritatis states: “Actually, the opinions of the faithful cannot be purely and
simply identified with the ‘sensus fidei’ . . . This personal faith is also the
faith of the Church . . . The ‘sensus fidei’ implies then by its nature a
profound agreement of spirit and heart with the Church, ‘sentire cum
Ecclesia’” (no. 35).21 The sense of faith is a gift of the Spirit to the entire
people of God who find themselves in communion with God and the
church.
As an expression of the church’s communal dimension, the sense of
faith has to be understood in a dialectic between the hierarchy and the
people of God. The hierarchic element in the church is an essential
counterpart of the people of God in perceiving the truth, being a counter-
part that is taken from the people of God themselves and remaining part of
the people of God.22 It serves to reinforce the ecclesiastical unity. To do
this, it has to make sure that the creative plurality kindled by the Spirit
does not tear the church apart but forms a unity out of plurality.23 This
function of the hierarchy makes it unthinkable for there to be a major-
itarian vote of parts of the people of God against the hierarchy; or, to be
more precise: such a vote might be conceivable, but it could not be seen
as an expression of the sense of faith.
The voices cited rightly remark that the majority is not necessarily congru-
ent with verity. But they also deserve criticism, as they tend to marginalise the
relevance of statistics and empirical facts. For even though the majority does
not necessarily embody the truth, neither is it inconceivable that it does
actually sometimes stand for the truth. For this reason, I agree with Peter
Scharr, who, though cautious, reminds his readers of the continued relevance
of empirical facts: “Despite all admonitions and just reservations one cannot
. . . dismiss the results of empirical research as totally irrelevant.”24 Especially
in matters in which the majority of the faithful do not agree with the magister-
ium’s positions, the vote of the majority cannot be devalued simply by marking
it as a majoritarian position only: “Thus, the question is raised to theologically
interpret the factual dissent between Christians’ understanding of the faith
21
Acta Apostolicae Sedis 82 (1990), 1565; English version: www.vatican.va/roman_curia/congre
gations/cfaith/documents/rc_con_cfaith_doc_19900524_theologian-vocation_en.html
22
See Burghardt, Institution Glaubenssinn, 125, 206.
23
See Ohly, ‘Glaubenssinn’, Archiv für katholisches Kirchenrecht 168 (1999), 57.
24
Scharr, Consensus fidelium, 181; original: “Trotz aller Einwände und berechtigten Vorbehalte
wird man . . . die Ergebnisse der Sozialforschung nicht als völlig belanglos abtun können.”
and the magisterial teaching.”25 Rendering the factual dissent irrelevant would
brand the idea of the sense of faith a fiction without any practical relevance for
the life of the church.
Synodality and Consensuality

That the majority is no guarantee of the truth is obviously correct, yet to thus
categorise empirical facts as theologically irrelevant seems more of a conversa-
tion stopper, designed to end discussions without substantially contributing to
the perception of truth within the church, as the question of how to find the
truth remains unanswered. Anyone interested in answering this question must
in any case truly reflect on which mode of decision-making might be more
appropriate for finding the truth than the majority.
One mode preferred by the church can be discovered by looking into
church history. It reveals a preference for synodic procedures which use
unanimous instead of majority decision-making. Unanimous consent as a
result of synodic decision-making was favoured in antiquity as a certain
proof of the truth. Unanimous decisions by the council fathers could claim
to be true if they were consensual in a twofold way.26 First, there had to be a
horizontal consensus of the synodic fathers on the matter to be decided. The
unanimous vote of all assembled bishops who referred to their apostolic
authority was considered a strong proof of a decision’s legitimacy and, thus,
a horizontal proof of the truth. Second, there had to be a vertical consensus, in
which decisions were in line with scripture, with decisions of prior synods, and
with the opinions of renowned theologians. If both lines of consensus could be
joined (that is, when a unanimous vote of the synodic fathers could be traced
back to scripture and could be shown to accord with the church’s tradition), it
could be taken as given that it correlated with the divine will. For that reason,
collective decision-making became more influential than single decisions: a
single bishop could err, but the synod was capable of infallible decision-
making as long as its decisions were embedded in the twofold consensual
structure. This potential for arriving at infallible judgements explains why
synodic decisions were preferred in complex matters of faith and discipline.
For the third century, the legal historian Egon Flaig speaks of a growing
tendency towards consensual decision-making and an “ideology of
25
Ibid.; original: “Damit stellt sich die Frage nach der theologischen Interpretation des fak-
tischen Dissenses zwischen dem Glaubensbewußtsein der Christen und der kirchlichen
Lehrverkündigung.”
26
E.g. Grossi, ‘Unanimitas’, Annali di Storia del Diritto 2 (1958), 229–331; Sieben, ‘Consensus,
unanimitas und maior pars’, Theologie und Philosophie 67 (1992), 192–229.
unanimity”,27 as consensual decision-making made it possible to collectively

solve the doctrinal and disciplinary conflicts of the early church.
Bearing this in mind, one may note that the pope recently admonished the
German bishops to seek, if possible, a unanimous resolution to their quarrel
about permitting non-Catholic spouses of Catholic faithful to receive the
Eucharist in a Catholic mass.28 In February 2018, the German Bishops’
Conference, in a majority vote, had decided to allow non-Catholic spouses
to receive the Eucharist under certain conditions.29 Against this decision,
seven German bishops then protested in a letter to the pope, stating that the
matter was a question of faith and unity of the church and was therefore not to
be settled by vote. They asked the pope to decide the case. In a meeting with
six representatives of the German episcopate and Vatican officials in May
2018, the pope advised the bishops to address the conflict themselves and to
come to a unanimous decision about the matter. This advice is not just a
sensible tactical step to bring back together the estranged members of the
German Bishops’ Conference but also points at the relevance of the issue
debated. Because a central doctrinal and disciplinary question is concerned, a
mere majority decision by the German Bishops’ Conference is insufficient –
in this sense the pope seems to agree with the protesting bishops. Yet he
denied them their requested top-down solution of a Roman decision.
Instead, he invited them to solve the conflict themselves and to find a
unanimous answer.
The case has developed in a different direction since which cannot be
discussed here. It shows anyway that unanimity as a way to decide key matters
of doctrine and discipline is not simply an idea of the past, even though the
theory of unanimity was established already in the early church. The historical
example, however, is significant in two ways, both of them still crucial for
consensual decision-making today. First, the example shows how the idea of
consensus can be used to isolate collective decision-making from the doubts
about whether a mere majority can perceive the truth. Second, it shows that
consensus as a proof of truth in the church may be grasped by a theory of
consensus, but can never neglect aspects of a theory of coherence either, as the
decision made, however agreeably, has to be ‘vertically’ coherent with the
27
Flaig, Die Mehrheitsentscheidung, Paderborn, Ferdinand Schöningh, 2013, 396; original:
“Ideologie der Einmütigkeit”.
28
Meeting of six German bishops and the general secretary of the bishops’ conference with
Vatican officials, 4 May 2018, www.vaticannews.va/en/church/news/2018–05/german-bishops-
pope-francis-communion-meeting-rome-ladaria.html (accessed 24 May 2018).
29
See www.dbk.de/nc/presse/aktuelles/meldung/abschlusspressekonferenz-der-fruehjahrs-voll
versammlung-2018-der-deutschen-bischofskonferenz-in-ingol/detail (accessed 25 May 2018).
church’s tradition. In that sense, the theory of synodic decision-making links

itself to two approaches of a theory of truth: the theory of consensus and the
theory of coherence. I discuss this linkage in the following chapter in order to
evaluate synodic decision-making as one mode of collective decision-making
which links truth with lawmaking.
Perceiving the Truth Intersubjectively

First, I want to look at horizontal consensus, which is understood as a proof of
truth insofar as a decision to which all consent unanimously is taken as
probably true. This view allows synodic theory to work on the epistemological
problem that human perception cannot grasp objective truth, even though
this truth is considered to exist. Therefore, a mode of perception has to be
identified that might take on the position of an objective perception of truth by
at least approximating truth. In modern theories of truth, this effort is often
connected with the idea of intersubjectivity. A matter might be regarded as
true if it enjoys intersubjective consent, that is, consent by different subjects
and from different points of view. If this is given, then intersubjectivity replaces
the otherwise unavailable objectivity in arguments concerning the truth.
In his book Consensus fidelium, Peter Scharr takes up the question whether
an intersubjective approach to truth might be suitable for the church’s theory
of truth. He picks up on the consensus theory of truth as a model of inter-
subjective communication about truth. This theory became especially influ-
ential through the work of Jürgen Habermas. A core idea behind this approach
is the belief that truth might be revealed if argumentatively reasoned and
unanimously expressed in the consent of a potentially unlimited number of
disputants in an ideal speech situation. Habermas understands intersubjectiv-
ity as a reference to the perspective of other disputants: “To discern true from
false statements I refer to the judgement of others – in fact to the judgement of
all others with whom I could take up a conversation (contrafactually including
all the conversation partners which I could find, if my life would be coex-
tensive with the history of humanity).”30 The idea that the humanity of the
past, the present, and the future has to be taken into consideration as a
potential conversation partner makes the fictive character of the ideal speech
situation obvious. It renders a consensually affirmed statement true, “if also
30
Habermas, ‘Wahrheitstheorien’, 219; original: “Ich nehme, um wahre von falschen Aussagen
zu unterscheiden, auf die Beurteilung anderer Bezug – und zwar auf das Urteil aller anderen,
mit denen ich je ein Gespräch aufnehmen könnte (wobei ich kontrafaktisch alle die
Gesprächspartner einschließe, die ich finden könnte, wenn meine Lebensgeschichte mit
der Geschichte der Menschenwelt koextensiv wäre).”
everybody else who could take up a conversation with me, would attribute the
same predicate to the same matter”.31 This idea also shows a close relationship
with the believers’ sense of faith, insofar as the truth-relatedness and
infallibility of the people of God in the theory of the sense of faith is given
only in a consensus by the past, present, and future members of the church. In
that sense, each claim of truth according to the consensus theory of truth and
the theory of the sense of faith relates to “the potential consent of all others”32 in
a rational – well-reasoned – consensus. The sense of faith among the faithful is
expressed in their consensus.33
Importing the Habermasian approach into theology therefore makes good
sense. Scharr understandably borrows it as a model of intersubjective com-
munication on matters of truth. The approach, furthermore, has a parallel in
Jewish theology and legal theory which broaches the issue of the unanimity of
the people of Israel in consensually accepting the divine legislation, as Daniel
Greenwood notes: “This shift to unanimity is well known. In Jewish tradition,
it underlies the midrashic explanation of the Sinai story that all the people
accepted the law: all the people, born and unborn, male and female, free and
slaves, each individually and all collectively.”34 The people’s consent to the
Torah, which Exodus 24:3 describes – “Moses came and told the people all the
words of the Lord and all the ordinances; and all the people answered with one
voice, and said, ‘All the words that the Lord has spoken we will do’” – is
understood in the Midrash in its universal quality, which is not restricted to the
people of Israel at the time of making the Covenant but also includes the
consent of later generations.35 The Habermasian criterion of intersubjectivity –
that the consensus of all conversation partners with whom we could meet if
our lifetime were extended to parallel the whole history of humanity –
becomes, in the Jewish people’s consenting to the Torah, a picture that not
only strengthens the permanent obligation of the Covenant but also refers to
the enduring truth of the divine commands, as they are depicted as true norms
on which an intersubjective consensus may always be reached.
Insofar as law in a religious context is regarded as connected with the truth,
it may be part of discourses on truth. In any case, Habermas differentiates
between the validity claims which can be discussed in theoretical discourses,
like claims of truth, and those which have to be discussed in practical
31
Ibid.; original: “wenn auch jeder andere, der in ein Gespräch mit mir eintreten könnte,
demselben Gegenstand das gleiche Prädikat zusprechen würde”.
32
Ibid.; original: “die potentielle Zustimmung aller anderen”.
33
See International Theological Commission, ‘Sensus fidei’, no. 3.
34
35
See Walzer, Exodus and Revolution, New York, NY, Basic Books, 1985, 73–98.
discourses.36 In the case of norms, he does not speak of a “consensus theory of

truth”, but of a “consensus theory of rightness”.37 In religious legal orders, this
distinction is not fully convincing in any case, as claims of truth are also raised
in legal discourses on matters of divine law. To acknowledge this, I somewhat
neglect the Habermasian differentiation in the following sections, as I discuss
questions of legal rightness using the terminology of the theory of truth.
Ideal and Real Conditions of Discourse

The proof of truth given by an intersubjective consensus is subject to a number
of conditions. A consensus can be found only under certain formal conditions
of communication. Habermas calls them an ideal speech situation: “A speech
situation is ideal when communication is not hindered by external contingent
interferences, and also not by coercions that are given by the structure of
communication itself. The ideal speech situation excludes a systematic dis-
tortion of communication.”38 The conditions that constitute an ideal speech
situation are inter alia equal chances for the disputants to put forward their
opinion, an atmosphere of mutual respect, and the veracity of all participants
in the discourse. These criteria are preconditions for ensuring that the best
arguments may win the discourse and that noncoercively shared convictions
of truth, rightness, and veracity may develop – Habermas calls this the
“unforced force of the better argument”39 which manifests itself in the dis-
putants’ consensus.
There is a striking parallel between synodic unanimity and the consensus
theory of truth, as Peter Scharr notes. Both theories are about “unanimity
which is produced by argumentation”,40 and this under the condition of
noncoercion as a precondition for all disputants to put forward their real
convictions of truth and not to support the opinions of third parties for reasons
other than finding them truthful. Such horizontal conditions of consensus in
the church are, in a synodic procedure, formal conditions such as involving
the people of God, having a synod’s members present during the synodic
36
See Habermas, ‘Wahrheitstheorien’, 226–227, 230.
37
Ibid., 250; original: “Konsensustheorie der Wahrheit”; “Konsensustheorie der Richtigkeit”.
38
Ibid., 255; original: “Ideal nenne ich eine Sprechsituation, in der Kommunikationen nicht nur
durch äußere kontingente Einwirkungen, sondern auch nicht durch Zwänge behindert
werden, die sich aus der Struktur der Kommunikation selbst ergeben. Die ideale
Sprechsituation schließt systematische Verzerrung der Kommunikation aus.”
39
Habermas, ‘Wahrheitstheorien’, 240; original: “zwangslosen Zwang des besseren Argumentes.”
40
Scharr, Consensus fidelium, 198; original: “Einmütigkeit, die durch Argumentation erzeugt
wird.”
meetings, ensuring their freedom of speech, and their obligation to argumen-

tatively ground every claim of authority made.41
However, comparing this ideal situation with the synods of antiquity shows
the practical limits of this approach. Even in antiquity, the processes expected
to end in consensus did not always end in unanimity. Two strategies were used
to generate concordance: it was necessary either to give up the noncoercion of
the speech situation or to relativise the principle of consensus. The majority
mostly tried to convince the dissenting bishops to join them. Not infrequently,
the majority used pressure to achieve this42 and in doing so lost the rationale of
a noncoercive discourse in Habermasian terms. A more peaceful strategy
referred to the majority rule (see Council of Nicaea, canon 6),43 even though
reservations remained against the truth-relatedness of the majority. Sometimes
a fictive consensus was used to shape a unanimous decision: by reference to
the minority’s obligation to follow the majority, the dissenting bishops were
obliged to join the majority, and a majority vote became a ‘unanimous’
decision.44 Egon Flaig describes this step as the “minority’s ceremonial join-
ing the option of the majority”,45 which was not necessarily accompanied by
an inner consent but was based on the understanding that it was impossible for
theological reasons to refrain from reaching a unanimous decision. In any
case, this is not a Habermasian “unforced force of the better argument”, as it
might occur in an ideal speech situation, particularly as the minority’s readi-
ness to join the majority was often supported by the threat of excommunica-
tion or degradation.
These examples not only show a typical weakness of synodic deciding but
also point at a weakness in the consensus theory of truth that was and is
repeatedly brought forward against it.46 This weakness consists of the impos-
sibility of creating an ideal speech situation in practice. Habermas reacts to
this by taking the ideal speech situation out of the sphere of facticity,
41
See ibid., 212.
42
See Flaig, Die Mehrheitsentscheidung, 129.
43
In Sacrorum conciliorum nova et amplissima collectio, vol. 2: Years 305–346, ed. by J. D. Mansi
et al., Florence, Antonio Zatta, 1759, 671; see Gierke, ‘Über die Geschichte des
Majoritätsprinzips’, in Vinogradoff (ed.), Essays in Legal History, Oxford, Oxford University
Press, 1913, 322; Flaig, Die Mehrheitsentscheidung, 126.
44
See Gierke, ‘Majoritätsprinzips’, 319; Flaig, Die Mehrheitsentscheidung, 129.
45
Flaig, Die Mehrheitsentscheidung, 145; original: “zeremoniellen Beitritt der Minderheit zur
Option der Mehrheit”.
46
E.g. Gadamer, ‘Replik’, in Apel (ed.), Hermeneutik und Ideologiekritik, Frankfurt am Main,
Suhrkamp, 1971, 314; Höffe, ‘Kritische Überlegungen zur Konsensustheorie’, Philosophisches
Jahrbuch 83 (1976), 329; Alexy, ‘Probleme der Diskurstheorie’, Zeitschrift für philosophische
Forschung 43 (1989), 84–85.
nevertheless without apprehending it as fully fictive: “The ideal speech situa-

tion is neither an empirical phenomenon nor a sheer construct, but it is a
reciprocal assumption inevitably made in discourses.”47 He also calls it a
“fiction operatively effective in the act of communication” which fulfils the
function of an anticipation in the sense of “anticipating the ideal speech
situation”.48 Because of this anticipatory function, which gives real discourses
a foretaste of the ideal speech situation, those discourses may claim that their
results should be accepted as a reasonable consensus: “This anticipation alone
is the assurance that a factual consensus may claim to be a reasonable con-
sensus; at the same time, it is a critical benchmark for questioning each factual
consensus and examining whether it is a sufficient indicator of a reasonable
consensus.”49 In that sense, one can also examine the results of a discourse in
retrospect to determine whether they were formed under ideal conditions and
whether, for that reason, they may claim to be true.
The Procedural Quality of Consensus

Peter Scharr’s book Consensus fidelium is so appealing because he tries to
make his epistemological considerations practical for procedures of percep-
tion within the church. Because he does this, he faces the problematic step of
examining “whether consensus in the life of the church may be detected
‘objectively’, and what could be the context for detecting it”.50 That this
concretisation is hardly possible without doing some harm to the consensus
theory of truth is clear to everybody who has ever tried to describe the practical
implications of communicative acting in a Habermasian sense. So, at the
intersection of theory and practice which must clarify how a consensus theory
of truth might become practical in real decision-making, not only must one
ask how a decision could be made in a real discourse (for example, in a synodic
debate) without violating the principle of noncoercion, but one also must ask
47
Habermas, ‘Wahrheitstheorien’, 258; original: “Die ideale Sprechsituation ist weder ein
empirisches Phänomen noch bloßes Konstrukt, sondern eine in Diskursen unvermeidliche
reziprok vorgenommene Unterstellung.”
48
Ibid.; original: “im Kommunikationsvorgang operativ wirksame Fiktion”; “Vorgriff auf eine
ideale Sprechsituation.”
49
Ibid.; original: “Dieser Vorgriff allein ist Gewähr dafür, daß wir mit einem faktisch erzielten
Konsens den Anspruch eines vernünftigen Konsensus verbinden dürfen; zugleich ist er ein
kritischer Maßstab, an dem jeder faktisch erzielte Konsensus auch in Frage gestellt und
daraufhin überprüft werden kann, ob er ein hinreichender Indikator für einen begründeten
Konsensus ist.”
50
Scharr, Consensus fidelium, 178; original: “ob sich Konsens im kirchlichen Leben ‘objektiv’
feststellen läßt, und wo der Ort dieser Feststellung sein könnte.”
how this could happen without reducing the situation to the majority rule.
How, after all, is it possible to gather the disputants’ opinions without using a
majoritarian procedure?
In answer to this, Scharr suggests comprehending majoritarian voting as a
procedural aspect of consensus-oriented processes, without accepting it as a
result: “The medium to find consensus is the vote. Yet the vote’s results do not
serve to confront the groups, but to ensure unanimity.”51 Nevertheless, this
attempt may fail if the disputants after several rounds of voting do not reach
consensus. In this case, it would be necessary to continue trying to find a
unanimous position: “If unanimity is still not reached, it is necessary to
continue to argue until it is reached. No participant in the discourse may be
outvoted against her or his better understanding, as it is not the number of
affirmative voices that counts but the quality of the arguments.”52
Scharr also picks up this procedural aspect of finding the truth in another
context referring to the sense of faith, noting that “not only is the consensus
fidelium important as a result, but . . . especially the process of finding it is of
enormous importance for the unity and unanimity of the church in the
truth”.53 The procedural nature of consensus-oriented communication oppos-
ing a static knowledge of truth nurtures the idea “that consensus in the church
is always a consensus in the making and can only be found intersubjec-
tively”.54 In a similar way, Dominik Burghardt speaks of a graduality of
consensus in consensus-oriented ecclesiastical procedures which allows one
to understand an agreement as initially consensual that has not yet reached 100
per cent consensus.55
Associated with this understanding of the gradual formation of consensus
are some consequences for the relevance of consensus in legislative proce-
dures. One consequence is that caution should be shown towards the idea that
consensus creates a normative fundament on which to base a permanent and
51
Ibid., 199; original: “Das Mittel, den Konsens festzustellen, ist zwar die Abstimmung, aber die
Abstimmungsergebnisse dienen nicht der Konfrontation der Fraktionen, sondern der
Vergewisserung der Einmütigkeit.”
52
Ibid.; original: “Ist die Einmütigkeit noch nicht erreicht, so muß weiter argumentiert werden,
bis sie hergestellt ist. Es darf daher kein Diskursteilnehmer gegen seine bessere Einsicht
überstimmt werden, da nicht die Menge der ‘Ja’-Stimmen, sondern die Qualität der
Argumente zählt.”
53
Ibid., 225; original: “nicht nur der consensus fidelium als Ergebnis wichtig ist, sondern . . .
gerade der Prozeß seines Zustandekommens eine enorme Bedeutung für die Einheit und
Einmütigkeit der Kirche in der Wahrheit hat.”
54
Ibid., 228; original: “daß Konsens in der Kirche immer ein Konsens im Werden ist und daß er
nur intersubjektiv erzielt werden kann.”
55
See Burghardt, Institution Glaubenssinn, 127.
stable legal order. In the natural law theory of the church, this idea appears in
the assumption that the consensus of the faithful about the naturally right once
achieved could serve as a permanent basis for natural law foundation.
Consensus-orientated procedures are limited in that respect, as Christoph
Möllers has pointed out. Yet Möllers is not fundamentally critical of consensus
in its function as an instrument of perceiving norms, although he does criticise
the “fundamentalism” connected with it in theories of consensus. He rejects
the idea of a consensus on fundamental norms upon which the whole norma-
tive order might be built. However, he believes that referring to consent in
single legal questions could indeed be helpful: “We can think of consensus as
a goal that cannot be practically reached but directs the perception, albeit not
as an existing fundament that is laid down in a norm like the guarantee of
human dignity. Consensus, at least in theory, practically expresses itself in
solving small and concrete questions, but not in big formulae.”56
With regard to perceiving the truth in legal contexts, this is a call for
moderation. That a consensus on fundamental legal truths cannot be reached
in the church either – being a more homogeneous community than a state – is
not to be understood as a failure of the consensus theory of truth as such, but
merely shows the limits of practical consensus which manifests itself more
easily in minor legal matters than in fundamental legal questions.
This fragility of consensus is connected not least with the historicity of
concrete constellations of discourse, as Scharr notes. A consensus once
achieved is not necessarily permanent: “The consensus achieved in a certain
historic situation does not relieve the following generations from adopting the
consensus’s matter under different circumstances and with a different accent-
uation.”57 As real discourses are never ahistorical, the results they accomplish
have to be periodically re-examined to establish whether the community still
consents to them. With regard to natural law, Eberhard Schockenhoff remarks
in this sense that “the criterion of that which is naturally right is no longer
available in the form of a comprehensive complex of norms, but must be
discerned afresh under the conditions of rational agreement”.58
56
Möllers, Möglichkeit, 415; original: “Als nicht praktisch zu erreichendes, aber erkenntnislei-
tendes Ziel können wir uns Konsens denken, nicht aber als bestehendes Fundament, das in
einer Norm wie der Menschenwürdegarantie niedergelegt ist. Konsens kommt, so wäre die
These, praktisch stets in der Lösung kleiner und konkreter Fragen zum Ausdruck, nicht aber
in großen Formeln.”
57
Scharr, Consensus fidelium, 228; original: “Der Konsens, der in einer bestimmten geschichtlichen
Situation erarbeitet wurde, erübrigt nicht, daß sich nachfolgende Generationen den im Konsens
ausgesagten Sachverhalt unter anderen Herausforderungen mit anderer Akzentuierung wieder zu
eigen machen müssen.”
58
Schockenhoff, Natural Law, 305–306.
Tolerance and Dealing with Dissent

The finding that consensus-orientated communication has a procedural qual-
ity is important for this study with respect to how and whether the church is
able to reach consensus on what is naturally right. It is also vital for a further
key aspect already discussed in Chapter 2.5, namely how dissent within the
people of God, which sometimes manifests itself as a vertical schism between
church officials and the nonhierarchically constituted part of the people of
God, might be interpreted in the light of consensus as a proof of truth. Peter
Scharr’s finding especially – that consensus in the church is always a con-
sensus in the making – allows the church to understand dissent between its
members on matters of doctrine and discipline as a procedural normality of
consensus-orientated procedures (although I do not want to argue that a
vertical schism in the church could be seen as a kind of normality as well; I
return to this shortly).
Dissent serves as a problem indicator, as Scharr contends. It “can [be] a sign that
the magisterial teaching has become incomprehensible; that the cultural condi-
tions have changed, so that revelation has to be reformulated in new paradigms;
that the major topics of the church’s teaching have to be changed, etc.”.59 The
discrepancy between the magisterium’s understanding of nature and the opinion
of many of the faithful, especially in Western countries, does not have to be
understood as the ultimate end of this debate in the church, but may be inter-
preted as an intermediate result in an unfinished discourse. It indicates that not all
arguments and counter-arguments have been exchanged so far, or that they have
not been accepted as equally valuable, or they have not yet been considered
adequately in their relevance for the matter to be decided. Dissent, then, is a “fire
detector”,60 urging the disputants to examine the discursive constellation with
respect to its noncoercion and the unforced force of the better argument and to
check whether all disputants have been equally heard and all arguments consid-
ered. It marks the process of finding the truth, not the end of the process.
That dissent may be interpreted as a normality in consensus-orientated
procedures of finding the truth provokes Christoph Möllers to ask whether it
is really consensus at the core of procedural considerations or “whether a
normative order is not served better by organising dissent”.61 This proposal
59
Scharr, Consensus fidelium, 184; original: “kann . . . ein Zeichen dafür sein, daß die lehramtliche
Verkündigung unverständlich geworden ist; daß sich die kulturellen Bedingungen so verändert
haben, daß die Offenbarung in neuen Paradigmen ausgesagt werden muss; daß die
Schwerpunkte der Verkündigung neu gesetzt werden müssen usw.”
60
Ibid., 185; original: “Brandmelder”.
61
Möllers, Möglichkeit, 415; original: “ob einer normativen Ordnung nicht besser mit der
Organisation von Dissens gedient ist.”
corresponds with the finding that a consent in the making is often described
better as the constructive handling of an existing dissent. A tolerant way of
dealing with dissent is in any case one main precondition of discourse derived
from the necessity of noncoercion. Without tolerating dissent and accepting
the dissenting party, no real discourse can come into being and, in conse-
quence, no truth can be found by consensus. For that reason, communities of
discourse such as the church – in which the truth is of key relevance – have to
tolerate dissent. This requires all members of the church to learn that,
although they believe in the existence of an objective truth, a collective
perception of that truth by consensus is possible – but not always and at any
time. Yet respecting their fellow Christians and their individual ability to
perceive the truth given by their sense of faith requires them to respect the
voice of each individual in his or her attempt to know the truth, even when a
full consensus of the faithful is unlikely to be found.
Attempts to silence open debates authoritatively, on the contrary, do not
accord with the rationale of discourse. The magisterium’s strategies to offi-
cially end certain debates by using conversation stoppers – as, for instance, the
documents Humanae vitae and Ordinatio sacerdotalis – conflict with a con-
sensus theory of truth not only by violating the principle of noncoercion but
also by trying to exclude certain arguments from the debates. This might
nurture the vertical schism within the church, as dissent is experienced not
as a normal moment of temporary disagreement within the discourse but as
the final and forceful ending of a debate still unfinished in the eyes of many
faithful.
To leave behind this crisis – as well as the crisis of church leadership
connected with it – it is necessary to openly discuss controversial matters
without being afraid of dissent or conflict, as Cathleen Kaveny notes. Fear of
the destructive power of conflict is not a good reason for avoiding dissent:
“especially in a free society, learned, honest, dissenting opinions ought not to
be viewed as dangerous to the common good of the tradition they propose to
advance. Such opinions ought to count, even if they cannot be allowed to win
the argument.”62 As an example of a respectful approach to dissent, Kaveny
mentions dissenting opinions in the collegial tribunals. The decisions of these
tribunals follow the majority, which represents the legal truth. But the
minority vote is not hidden (at least not in the common law tradition), but
is published with the decision. Kaveny links three central aspects with this
practice:
62
Kaveny, ‘Catholic Casuistry’, 249.
This practice not only acknowledges the fact that both majority and dissent-
ing judges are ultimately loyal to the same tradition but also institutionally
expresses a welcome confidence and humility. The confidence of the judges
in the majority is demonstrated by the fact that they do not fear contradictory
analysis appearing alongside their own. Their humility appears in their
recognition that later courts may find the dissent more helpful and persuasive
as a justification for either qualifying the majority opinion or overruling it
altogether.63
Kaveny’s points are helpful for dealing with dissent in majoritarian

decision-making in general. First, accepting a dissenting position as a valid
opinion expresses confidence that one’s own opinion, if it is right, will outlast
other opinions. Second, it expresses a humility insofar as the majority takes
into account that dissenting positions might contain at least some truth. Third,
the overruled position has to be respected if and insofar as it can be understood
as an alternative attempt to protect the common tradition and the shared faith.
Minority positions are to be respected as individual attempts at expressing the
believers’ sense of faith, even though they do not convince the majority. This
might be the main theological reason for not breaking off discourses and
marginalising different opinions within the church.
A Procedural Perspective on Majority

The need for the majority to respect the minority suggests in any case that
majority rule is often the only means to at least temporarily end a debate by
generating a decision, even in ecclesiastical decision-making. Peter Scharr’s
suggestion of recognising the majority vote as an intermediate step in a
consensus-orientated procedure without understanding it as a final result
makes clear that in synodic decision-making, when consensus is not at hand,
the majority may, at least for the moment, be accepted as a result. A consensus
in the making is first of all a majority – and may sometimes remain a majority
only, for a long time. This is noticeable, for example, in the results of the
Roman Catholic Family Synod of 2015, published in a final synod report,
which on many issues does not document consensus but chronicles differing
opinions on marriage, partnership, and sexuality without even indicating how
a consensus on these questions might ever be found.64 This approach also calls
63
Ibid.
64
See XIV Ordinary General Assembly of the Synod of Bishops, Final Report, 24 October 2015,
www.vatican.va/roman_curia/synod/documents/rc_synod_doc_20151026_relazione-finale-xi
v-assemblea_en.html (accessed 7 January 2017).
to mind the critique of the philosopher Ansgar Beckermann, who criticised

the optimism of consensus in the Habermasian consensus theory of truth by
saying “that surprisingly the possibility of a final dissent, namely, that no
consensus is achieved by the participants of a discourse permanently, is not
even taken into consideration”.65 Whether such a final dissent would be
conceivable in processes of finding the truth within the church – and how
one would have to comprehend it with regard to truth theory – is an interesting
question, yet one that has be discussed separately in another context.
Yet besides the problem of a final dissent, it is already problematic that there
is often no consensus in sight, only a majority. That some decisions have little
more to rely on than the majority is also a key problem in the Akhnai tale
recounted in Chapter 1.1. In the rabbinic controversy over how to decide on
the purity of an oven, one question about rabbinic decision theory becomes
visible on the meta-level, namely, how to concretise and update unchangeable
divine norms under the conditions of time and history. In cases when rabbinic
opinions conflict, who is in the right, and on what basis? In the narrative, the
quarrel is ended by Rabbi Jirmeja emphasising majority rule: “After the
majority must one incline” (Tractate Baba Mezi’a, folio 59b).66 By making
this declaration, however, Jirmeja somewhat indirectly establishes an episte-
mological argument. His statement in favour of majority rule even in religious
matters is based on the assumption that the majority is the best medium for
achieving a decision which is likely to be true. The Akhnai tale thus empha-
sises the truth-relatedness of the majority, which is likewise expressed in
the Jewish saying, “When on the right road, one is bound to meet other
travellers.”67
Jirmeja’s objection, which brings the authority of the majority into the
debate, is presented in the narrative as supported by the authority of the
Torah. The rabbi refers to the Sinai legislation, which stipulates that the
majority may decide. The corresponding text can be found in Exodus 23:2.
Surprisingly, though, the full text of the verse does not promote majoritarian
decision-making but instead criticises majority rule, warning against joining
the majority uncritically: “You shall not follow the masses in doing evil, nor
shall you testify in a dispute so as to turn aside after a multitude in order to
65
Beckermann, ‘Realistische Voraussetzungen der Konsenstheorie’, in idem, Aufsätze 2,
Bielefeld, Universitätsbibliothek Bielefeld, 2012, 11, fn. 2; original: “daß erstaunlicherweise
die Möglichkeit eines final dissens, daß es also auf die Dauer unter den Beteiligten eines
Diskurses nicht zu einer Einigung kommt, überhaupt nicht in Betracht gezogen wird.”
66
Internet source: Isidore Epstein (ed.), The Soncino Babylonian Talmud, www.halakhah.com/
babamezia/babamezia_59.html (accessed 31 January 2016).
67
Quoted by Novak, Natural Law in Judaism, 25.
pervert justice.” Insofar as Exodus 23:2 touches on the case when the majority
stands for untruth, it contains a critical attitude towards the majoritarian idea.
The individual is confronted with the demand not to follow the mainstream in
a legal dispute if the crowd is on the wrong track. To join the majority
deliberately when it is wrong is considered a perversion of justice. Whereas
Jirmeja’s plea for majoritarian decision-making works with the implicit epis-
temological presupposition that following the majority is the best way to
obtain a decision which is most likely true, the Exodus 23:2 warning against
uncritical consent to the mainstream position implicitly stresses the insight
that there is no necessary coincidence of majority and verity – a position which
the church also stresses.68 A link between majority and verity is not fundamen-
tally rejected, yet it is not essentially given. With this insight comes a norma-
tive consequence, namely the obligation to refuse to join the majority when it
is in the wrong.
Consequently, Exodus 23:2 does not fundamentally oppose Jirmeja’s
approach. Nonetheless, neither can one view it as a strong recommendation
for majority rule. Therefore, it remains unclear why the Akhnai narrative takes
up the Exodus text in an abbreviated, distorted form and puts it into Jirmeja’s
mouth. One explanation, given by Daniel Greenwood, comprehends the
ambiguity in Akhnai’s use of the Exodus text in a constructive way, under-
standing the conflict between the approval of majority rule and the criticism of
it as a nuanced position. Whereas the narrative fundamentally promotes the
majoritarian principle, the alienated Torah citation serves as a rule setting out
how to deal with conflicts. By doing so, the story expresses the tension often
connected with majoritarian decision-making: “Akhnai teaches . . . that truth
and peace are often incompatible, and that we must respect both; that one
must follow the majority even when it is wrong, but that one may not follow
the majority to do evil.”69 Jirmeja’s unrestricted plea in favour of majority rule
is to follow, even if the majority is not right. In any case, an exception has to be
made when the majority does evil – and that is the result of the Exodus
objection. Hence, the majority option is shown in all its ambivalence. As
Jirmeja describes it, using the shortened Exodus citation – “After the majority
must one incline” – it is a medium for arriving at decisions with a high
probability of truth, a decision-making mode without any alternative.
68
E.g. Congregation for the Doctrine of the Faith, Instruction Donum veritatis, Acta Apostolicae
Sedis 82 (1990), 1565; International Theological Commission, Universal Ethic, 2009, no. 6; see
also idem, ‘Sensus fidei’, nos 118–119; Benedict XVI, ‘Address’, 22 September 2011, English
version: www.bundestag.de/parlament/geschichte/gastredner/benedict/speech (accessed 29
November 2016).
69
Simultaneously, the original context of the quotation emphasises the risks

inherent in majority rule. The narrative, accordingly, has two messages: the
majority decides, and one has to follow it; but this is not an excuse for
ignorance. The Exodus quotation rather obliges anybody to refuse to follow
the mainstream in cases in which its vote is obviously false: “the majority can
get it wrong . . . But still, we must follow the majority. And the majority must
be guided by a firm grasp of what is right and what is wrong. The alternative –
well, there is no alternative.”70 Greenwood identifies a parallel tension which
preoccupies decision makers even today: “Akhnai, curiously, not only affirms
majority rule, but does so with precisely the same unease as is usual in
democratic theory.”71
From this discussion, one may derive two consequences for synodic proce-
dures in the church. The first is that the majority as a mode of decision-making
sometimes has no alternative if a decision is needed and no consensus is at
hand. Decisions by a majority ensure that the church is capable of acting. Yet
in the light of a consensus theory of truth, the majority cannot mark the final
end of a decision-making process. It cannot be taken as a fully satisfactory
result of a consensus-oriented discourse, because it does not prove the truth in
the same way as a consensus-based decision does. A majority is an interim
result while the duty of finding a consensus remains.
Coherence As Proof of the Truth

A second consequence derived from the Akhnai tale is the need to bear in
mind the error rate of the majority, particularly in decision-making processes
concerning truth. A majority vote not in accordance with the faith of the
church would be destructive for the community of faith and would damage it
in a way not dissimilar to adopting a majority position uncritically, the
problem raised in Exodus 23:2. However, the constitution of the church
provides the church with the hierarchy as an agent of control which is alien
to Judaism. This critical function of the hierarchy in processes orientated
towards the truth can best be explained by referring to a coherence theory of
truth.
In the ancient synods, the consensus of the synodic fathers was already
complemented with a diachronic consensus to prove a judgement as true.
This ‘vertical consensus’ ensured consistency between the horizontal consen-
sus and the existing belief and teaching of the church. Yet it is truly rather a
70
Ibid., 350.
71
Ibid., 340.
proof of coherence than an actual consensus. This shows that finding the truth
in the church, besides a closeness to the theory of consensus, likewise tends
towards a theory of coherence.
This idea is also taken up by Peter Scharr, who, in his search for a suitable
truth theory for the church, goes beyond Habermas’ approach. Scharr amal-
gamates parts of the Habermasian theory of consensus with aspects of a theory
of coherence by stating that truth is proven according to the theory of con-
sensus by coherently placing the statement that is supposed to be true into a
system of other statements.72 This, however, is not a conception of the theory of
consensus itself, but rather a modification of it. Yet it is a useful one for the
church. As the church comprehends true sentences as having existed prior to
any human perception of them, the horizontal consensus of church members
cannot by itself be a proof of truth, but has to be supplemented by a vertical
line of coherence “rooting single sentences in the totality of the Christian
faith”.73 This aspect of verticality in Scharr’s approach is integrated into the
idea of consensus and becomes part of the horizontal consensus. The state-
ment made by the International Theological Commission – “the consensus
fidelium constitutes a sure criterion for recognising a particular teaching or
practice as in accord with the apostolic Tradition”74 – is therefore probably a
position which Scharr shares, insofar as he interprets consensus as a proof of a
statement’s coherence with the church’s teaching.
To point at this necessity of coherence in consensus-oriented processes is a
duty of the hierarchy in its service to the unity of the church and its teaching.
This also applies to legal matters that concern the truth of the church. In a
reformed procedure of lawmaking, the hierarchy would therefore have to fulfil
two functions. First, in the discourses oriented towards a consensus, its duty
would be to promote the coherence of the discourse’s results, so that they may
be integrated into the church’s teaching.75 The role of the bishops in a reform
commission in that sense could be understood as a service to the coherence of
the developing law, resulting from their magisterial function. Because the
consensus on matters of faith, consensus fidei, has to be in concordance with
the deposit of faith, depositum fidei, which is protected by the magisterium, the
task of the bishops in the processes of shaping the law might be that of joining
consensus and depositum. Their obligation would be to ensure the consistency
of the global law with the tradition of the church and its belief.
72
See Scharr, Consensus fidelium, 79, 196.
73
Ibid., 196; original: “Rückführung von einzelnen Sätzen in das eine Ganze des christlichen
Glaubens”.
74
75
See Scharr, Consensus fidelium, 197–198.
The second area in which the hierarchy would have to fulfil its role as an agent
of coherence in a reformed process of lawmaking is in the final redaction and
promulgation of the law. Here it is the pope who would act in favour of the unity
of the church. The pope would fulfil this service by ensuring the coherence
between the global law of the church and the ecclesiastical doctrine by bringing
into being only those norms that do not contradict the church’s teaching. In cases
where the pope noted an inconsistency between certain norms on one hand and
doctrine and tradition on the other, a procedure might be conceived by which he
would return the deficient norms to the commission for additional revision.
Moreover, a papal right of intervention should allow the pope to change
norms even in opposition to the majority of the commission if this seems
necessary to safeguard the coherence between the faith of the church and its
law. Such interventions should be openly communicated and well explained
in any case (in contrast to the practice before 1983), as the pope’s authoritative
interference with the legal text, which would not be justified by the necessity
of coherence, would not do justice to the rationale of consensus in which the
hierarchy’s service of coherence is embedded. As the pope’s provision for
coherence has to be recognised as a service to a legislative procedure which
aims to find the right law by consensus, the pope should change the norms
shaped in such a consensus-oriented procedure only if this is necessary to
secure their coherence with the church’s doctrine.
Remodelling the process of final redaction and promulgation in this way
would change not only the legislative procedure but also the perception of
papal governance with regard to how the office of Peter is understood to
represent the universal church and its law. The model of authoritative repre-
sentation binding members of the church authoritatively to the decisions of
the hierarchy would no longer be of use in a model of governance inspired by
consensus. The authoritative model, described by the Protestant theologian
Reiner Preul as a typical Catholic approach of representation,76 would lose
ground to an understanding of governance as a service to the church as a
community of consensus. An alternative model of governance might be of use,
then, which Preul calls the model of communiqué (“Kommuniqué-Modell”).
In this model, the hierarchy represents the church by comprehending itself as
a representative of the opinions present in the church. The hierarchy, then,
acts as the “public articulation of the consensus and of the common opinion,
at least of what is understood as right by the majority”.77 According to this
76
See Preul, Kirchentheorie, 238.
77
Ibid., 239; original: “öffentliche Artikulation dessen, was Konsens und communis opinio ist,
was zumindest von der breiten Majorität für richtig gehalten wird.”
model, the hierarchy represents the existing consensus in the church on

matters of faith, morals, or the right law, or, if a consensus does not exist, the
belief of the majority of the believers: “The top represents the whole in this
model by making some effort to express only what is undoubted or what has
already been decided or what has become a common denominator or at least a
majority position.”78
The model, however, has to be modified for the Catholic Church, as it is
not the duty of the hierarchy to represent the majority without questioning it.
As discussed earlier, the hierarchy’s service to coherence consists of ensuring
that the horizontal majority and the vertical consensus remain united, espe-
cially in cases where they tend to diverge. Therefore, the hierarchy has to
constantly examine the majority to ensure that it relates to the faith of the
church as revealed in scripture and tradition. Only then can the hierarchy
fulfil its function in the communiqué model.
Outlines of Consensual Lawmaking

What consequences can one derive from the foregoing discussion for shaping
a model for reforming global canon law? At this point, I would like to briefly
sum up some criteria for a future reform commission and its mode of opera-
tion. I also want to name some issues that should be considered in the
consultation process and in the final redaction and promulgation of a new
Code.
Representing the church, and therefore the people of God in their plurality,
the bodies that carry the main weight of reforming the law should comprise
members of the church representing the different ecclesiastical statuses and
the diverse cultures of the global church. Besides having representatives
selected by the pope, as was the practice in the reform of 1983, one aspect
that comes to mind is the right of the bishops’ conferences to name or to select
legal experts from the local churches, thus ensuring that the voices of the local
churches are heard and the hegemonic Romanity of the legal reform is
reduced.
The operational work of the reform commission, which would have to act as
a representative of the church in its plural Catholicity, is to be complemented
by a process of consultation, thereby addressing a larger circle of church
78
Ibid.; original: “Die Spitze repräsentiert das Ganze nach diesem Modell dadurch, daß sie
tunlichst bemüht ist, nur das zum Ausdruck zu bringen, was entweder unstrittig ist oder was
bereits beschlossene Sache ist oder was sich schon als gemeinsamer Nenner oder wenigstens
als Mehrheitsposition abzeichnet.”
members. In this consultative setting, care should be taken to give due con-
sideration to diverse individuals and groups, and thus to represent descrip-
tively the church in its totality and plurality. Compared to the last reform of
the Code, particular care is required to hear the voices of the laity and lay
associations, to give adequate play to the diverse cultural perspectives of the
worldwide church, and to allow suggestions from the consultations to have a
genuine impact on the commission’s considerations. To ensure this, the
canon lawyer Richard Puza requests that the global church’s right of consulta-
tion in every act of global legislation be legally fixed.79 Puza envisages the
Pontifical Council for Legislative Texts as the institution of the Roman Curia
that should organise the consultations.
Shaping a legislative process which is open to the church’s plurality also
implies that the consultation scenario in the pope’s final redaction also is
diversified. The criterion of diverse statuses might also be considered when
choosing the consultants. A papal decision not to promulgate any law for the
global church without being advised by a plural group of consultants could be
one method for achieving this.
The structures of decision-making in the reform commission should be
shaped according to the paradigm of synodality. Thus, they should aim not at
generating majorities but at finding consensus, as ecclesiastical lawmaking is
not purely about decisions but also and fundamentally about perceiving the
truth preceding the law. Insofar as divinely founded canon law in the law of
revelation and in natural law embodies aspects of this truth, canon lawmaking
cannot abstain from the question of truth and relies on decision-making
processes appropriate for relating to prepositive normativity. Therefore,
consensus-orientated procedures – the results of which can claim to be
most plausibly true – are of key value in ecclesiastical legislation. In the
church, the synodic approach in particular provides a long history of
consensus-orientated decision-making.
Consensus-based decisions can be taken as true, but they are also most likely
to be accepted as truthful. So there is a high probability that the people of God
will acknowledge law created in synodic procedures. Nevertheless, this is true
only of decisions resulting from noncoercive debates. To secure noncoercion
requires a rule of procedure for organising the work of the reform body and the
consultations. To create conditions of communication that come close to an
ideal speech situation, regulations should ensure the members of the commis-
sion equal opportunities to influence the debates (like the right to speak and a
restriction of speaking time). A code of conduct would help to establish a
79
See Puza, Kirchenrecht, 16.
culture of acceptance which requires tolerance towards other members of the

commission and their contributions, especially those that do not follow the
majority. The obligation to explain any given position ensures more rational
arguments. Votes to gauge the majority opinion can sound out the mood of the
group and its general opinion, but should not obstruct the logic of discourse as
such. In the course of the debates, therefore, it should be clear that synodality
eventually aims at consensus.
Because of the plurality of agents involved in legislative procedures, it is in
any case hard to reach consensus, and consensus is often preceded by dissent.
A collective body’s attempt to find consensus will often result only in a
majority. But even though this majority will never be fully convincing for
the church’s theory of truth, it may actually be the only way of achieving an
interim decision. Daniel Greenwood’s remark on rabbinic majoritarian pro-
cesses – “The alternative – well, there is no alternative”80 – likewise tells
ecclesiastical decision makers that majoritarian decision-making sometimes
cannot be avoided in matters that require a solution. A majority, then, is
acceptable for deciding a dispute in a legal reform. This is unproblematic
concerning norms that are not directly connected with matters of truth. But a
lack of acceptable alternative decision-making modes also requires tolerating a
majoritarian decision in matters connected with truth. Yet in truth-related
discourses ending with a majority, the real goal remains consensus, and the
majority can only be understood as a temporal decision.
Besides, even if consensus is reached, it always remains temporary in itself
because, due to the historicity of human perception, one cannot rule out the
possibility that the church of the future might share different convictions from
those of the church of the present in both doctrinal and legal matters. The
admonition of Gerard Mannion, who dreams of a church that argues more
moderately in matters of truth because it knows of the fragility of human
judgements, also makes good sense in the field of legislation: “the church
desperately requires a more existentially oriented and humble (both in exis-
tential and epistemological terms) account of what the quest for Christian
truth entails.”81
Consensus and the truth that it ‘proves’ are and remain fragile. In this sense,
consensus on divine norms revealed by revelation or by nature can never be
transformed into unchangeable legal norms, and has to be re-examined
periodically to establish whether the members of the church still consent to
understanding the norms derived from prepositive sources as an expression of
80
81
Mannion, ‘Authentic Teaching’, 162.
God’s normative will in human history. Thus, procedural regulations that allow
these revisions to happen are of key relevance for the church, as Eberhard
Schockenhoff emphasises in the light of the church’s approach to natural law:
“for it is precisely when the criterion of that which is naturally right is no longer
available in the form of a comprehensive complex of norms, but must be
discerned afresh under the conditions of rational agreement, that it becomes
decisively important to observe the framework established by positive law,
which gives the possibility of debating about what is naturally right.”82
This fragility of human legal perception, which becomes especially dis-

cernible when norms of prepositive origin are concerned, might also have a
terminological consequence which this study has anticipated. If truth claims
must be treated cautiously, especially in the field of law, then speaking of
‘universal’ canon law is somewhat misleading. The first reason for this is
ecclesiological, as calling a law given by the Roman papal church to the
worldwide church ‘universal’ implies an association between the Roman
papal church and the universal church that is ecclesiologically precarious. A
second reason is that speaking of universal law implies the universal validity of
global canon law, as if it were valid in all times and all contexts. Yet this claim
does not withstand the demand for moderation with regard to the fragile truth
of the law. For this reason, it would be worth considering changing the
terminology in any future reforms of the law and speaking instead of global
canon law rather than of universal law. I have already tried to do this through-
out this study to distinguish between the globalism of canon law and the
universal validity of norms. With respect to the considerations mentioned, I
deem this change to be reasonable for canon law terminology generally.
Transparency and Reasoning

Considering the interim character of discursively elaborated statements of
truth, one must reflect on how to communicate these statements. A church
which relies on the truth and at the same time knows of the fragility of
claiming it, not only has to tolerate a permanent discourse on the truth of
the faith and the rightness of a faith-related normativity, but also has to
cultivate modes that permanently attempt to find the truth. This effort
includes not only involving church members in the discourses for perceiving
the truth but also understanding church members as capable of partaking in
these discourses to begin with. It also includes empowering each baptised
82
Schockenhoff, Natural Law, 305–306.
individual to refer to her or his individual sense of faith to help the community
find the truth.
A precondition for this work with regard to the law is to enable the people of
God to examine the legal norms and to ask whether they are acceptable for the
church. To make this possible, acts of legislation and interpretation must be
explained, as the plausibility of norms or a lack of persuasiveness becomes
particularly obvious when reasons are given for an act of lawmaking or legal
exegesis. The norm of canon 51 CIC/1983 (“A decree is to be issued in writing,
with the reasons at least summarily expressed if it is a decision”) has to be
extended and applied to all acts of lawmaking. Law that binds the people of
God must be comprehensible. As its “validity . . . is based on its free affirma-
tion by the community”,83 in Peter Huizing’s words, explaining the law is one
precondition for enabling the faithful to freely and rationally affirm it – and
simultaneously to rationally disagree with it, thus expressing a lack of consent
and the need to discuss the law anew.
With regard to processes of legal reform, it would be helpful to commu-
nicate the reasons for legal changes before the consultation process so that the
consulted faithful may not only comment on the legal drafts as such but also
understand the reasons for the way they are shaped. Furthermore, the reasons
for establishing or changing norms ought to be published promptly, so that all
the people of God, and not only selected experts, may critically refer to the
law. This is specifically important for the reception of the law, which I discuss
in Chapter 4.2.
The duty to name reasons when changing ecclesiastical norms also influ-
ences the final step of global lawmaking, namely the papal redaction and
promulgation of the law. First, respect for consensus-oriented legislative
procedures (like the synodic acting of the reform commission) would require
the pope’s self-commitment to refrain from voluntarist interventions in the
drafts of the law and to intervene only if the reformed law conflicts with the
church’s teaching on matters of doctrine or discipline. Second, enabling a
discourse on the interventions makes it necessary to lay open the reasons that
motivated them. As the papal service to the unity of the church is also a service
to ensuring the coherence of canon law with the church’s belief, there needs to
be transparency about the motives for legal interventions, thus enabling the
faithful to comprehend why the discrepancies occurred and how to return to a
position coherent with the church’s doctrine and discipline.
83
Huizing, ‘Kirchenordnung’, 170; original: “Geltung . . . auf seiner freien Bejahung durch die
Gemeinschaft”.
Language and Legal Terminology

Another precondition for enabling the people of God to render their service to
the truth relates to the comprehensibility of the ecclesiastical norms them-
selves, insofar as church members can critique the norms only if they can
understand them. This precondition affects the legal language of the church. I
have already critically mentioned in Chapter 3.3 the use of Latin as the
primary legal language of the church. Its use is often explained by the tradition
of Latin as the language of the church. But who is the church? If one primarily
apprehends it as the people of God and, accordingly, as the community of the
faithful, as did the Second Vatican Council, classifying Latin as the language
of the church becomes increasingly implausible, as it is hardly used by the
people of God anymore. Latin, hence, is the language not of the church, but
rather of the official church. Its use excludes the majority of the people of God
from official legal debates and other official discourses.
One must question this practice for two reasons. First, because of ecclesiol-
ogy, and second for reasons of legal theory, as a terminological exclusion
marginalises the ecclesiastical communion which, as the legal community,
is central in post-conciliar legal foundation. Against the background of a legal
theory built on the idea of an ecclesiology of communion, the conditions
under which the legal community may adopt the law are key and affect
matters of language and communication. As the reception of the law in the
church has a relevance that goes deep into the subject of legal validity (I will
speak about this in the following chapter), problems of communication are
important not only for the effectiveness but also for the validity of the law.
One objection to this criticism could be that a comprehension of the law is
possible even without any knowledge of Latin, insofar as the key legal texts of
the church are translated into most common languages. Yet these translations
are no authentic texts of the norms.84 The legal discourses of the church are
therefore divided by Latin into the elite discourses of church officials (and a
small number of church members capable of understanding the official legal
language of the church), on one hand, and the discourses of the ordinary
faithful, on the other. In this sense, the use of Latin evokes the culture of the
perfect society of the nineteenth century, in which being capable of partaking
in legal discourse was regarded as sufficient for the higher clergy, whereas
ordinary members of the church were not expected to discuss the law but only
to obey it.
84
See Secretariat of State, ‘Necessitas ipsa’, no. 1, Communicationes 15 (1983), 41.
This circumstance again recalls Ladislas Orsy’s critique, alluded to in

Chapter 2.4, in which he criticises today’s adaptation of a past understanding
of governance which refers mainly to leading the faithful by command and
obedience.85 Whereas the premodern education gap between the norm giver
and the addressees of the norms rendered this model of governance helpful,
today communication and mutual understanding are necessary to encourage
the people of God to accept the law. The church can no longer expect blind
obedience to poorly understood norms, not only because the law lacks coer-
cion but also for ecclesiological reasons.
Consequently, creating an understandable legal language is an important
step towards enabling the people of God to accept the law of the church.
Besides diverse terminological revisions necessary to ensure this, the core legal
texts of significance for the global church must be officially published in the
languages of the local churches, at least in the most important regional
languages (by the way, this would not present any serious difficulty, as transla-
tions of the Code in the most common languages already exist, mostly
arranged by the local bishops’ conferences). The church could choose a way
already taken by transnational confederations of states. The European Union,
for example, issues its core legal documents of relevance for the whole union
in the official languages of all member states (see article 55 Treaty on
European Union; article 358 Treaty on the Functioning of the European
Union). This is done despite the problems that go along with this practice,
as translations create changes in meaning and ambiguities in the norms. The
European Union meets these challenges for the benefit of assisting the mem-
ber states and the legal subjects in accepting the law as binding for themselves.
The parallels are clear between the European member states and the local
churches, and between European citizens and the Christian faithful (albeit
without transferring this analogy to a constitutional level). So it is possible to
argue that the church – in promulgating the global legal norms in the
languages spoken by the faithful – could encourage reception of the law in
local churches and by individual believers. Additionally, this practice would
signify that the community of faith recognises itself as a legal community
across cultural borders. That this idea is not inconceivable with regard to
ecclesiastical matters can also be shown by parallel ideas which have encour-
aged the use of local languages in liturgical contexts.
Nevertheless, before this change occurs, some elementary questions need
answers. With respect to the translations, for example, should a translation try
to capture the sense of a norm (so that it better fits into a local ecclesiastical
85
See Orsy, ‘Interpreter’, 42; idem, Theology and Canon Law, 100.
culture) or be more of a technical translation of the Latin wording (thus laying

bare the foreign origin of the norm)? The latter practice would ensure that the
norms were more homogeneous in their meaning, but, again, less under-
standable. The merits and demerits of each method would have to be given
due consideration within the church. In any case, the experiences of transna-
tional organisations may serve as examples, as do the findings of scholars
specialising in the field of law and language.86
Dealing with these details is burdensome, but may help to highlight that
matters of legal language cannot be reduced to problems of legal technicality,
and that they have a fundamental depth for the law itself. The way a norm is
put into words essentially affects its meaning. John Huels also emphasises this:
“the structure of language affects a people’s fundamental ideas.”87 These
ideas – influenced by language – are also legal ideas, as Huels shows with an
example. As the language shapes the speaker’s world view and, thus, has a
formative relevance for the way he or she thinks (Huels picks up the Sapir-
Whorf hypothesis that the semantic structure of language impregnates the
individual’s thinking),88 it is one of the central preconditions for understand-
ing legal concepts. To illustrate this, Huels refers to the findings of the linguist
Benjamin Lee Whorf on the peculiarities of the Hopi language and transfers
them onto a canonical question. Huels takes up Whorf’s discovery that the
Hopi language does not provide the typical European differentiation between
nouns with a material substantial meaning and nouns with a formal accidental
meaning.89 Huels asks how the Catholic understanding of the sacraments and
of sacramental law, which relies heavily on the ontological differentiation of
substance and accidents from the European tradition, could be expressed in the
Hopi language: “Much of sacramental law is based on an Aristotelian-Thomistic
philosophy of substance and accidents, including such basic canonical notions
as validity and liceity. What meaning can this philosophy have in a culture
whose language and thinking have no comparable concepts?”90
Insofar as translating universal canon law into the world languages helps to
uncover similar problems, it is a helpful way of critically evaluating the law’s
aptness to communicate legal ideas into other ecclesiastical cultures, and for
86
E.g. Solan, The Language of Judges, Chicago, IL, University of Chicago Press, 1993; Tiersma,
‘The Judge As Linguist’, Loyola of Los Angeles Law Review 27 (1993), 269–283; Freeman/Smith
(eds), Law and Language, Oxford, Oxford University Press, 2013.
87
88
See Whorf’s articles collected in his book Language, Thought, and Reality, Cambridge, MA,
The Technology Press of Massachusetts Institute of Technology, 1956: ‘Relation of Habitual
Thought’, 134–159; ‘Language and Logic’, 233–245; ‘Language, Mind and Reality’, 246–270.
89
See Whorf, ‘Relation of Habitual Thought’, 141.
90
Huels, ‘Interpreting Canon Law’, 262; see also Schreiter, Constructing Local Theologies, 77.
discovering and revising those concepts which can hardly be expressed in

other legal cultures. A church obliged to the mission of promoting the Word of
God, which has embodied itself in human culture, is permanently confronted
with the challenge of examining whether its message might be communicated
understandably in different cultures, and of correcting the terminology of its
message when it becomes less comprehensible.
4.2 the local reception of the law

In addition to the creation of a global canon law that considers the plurality of
the church, the transmission processes by which the church communicates
this law to local churches have key relevance for the law’s vitality. A centralis-
tically generated canon law needs to be received in the local churches. One
can connect this step with the theory of the sense of faith, as Ladislas Orsy
notes: “by this sense of faith, God’s people can penetrate the law by accurate
insights and apply them correctly to life. When this happens, the law is
received in the community.”91 For local churches to receive and apply the
global law in this sense may be understood as their acknowledging the law in
their local legal cultures by accommodating the global to the particular, even
though those global thoughts might have been alien to the local church in the
first place.
Reception: Developing a Local Practice

The reception of law cannot succeed without the assurance of certain pre-
conditions. One precondition is that the global law presents itself to local
churches in a way which allows them to connect to it culturally and to relate to
it constructively by integrating it into local legal practice, by giving it a local
character through local interpretation and application, and by observing it. To
enable reception and inculturation of global canon law, it is imperative to
avoid any sense of legal colonialism that hegemonically suppresses the local
culture. Instead, an act of communication is necessary to present the global
law as a normative offering to the local churches which they can accept by
integrating it into their own legal culture.
John Huels touches on the question of how to apprehend such an act of
communication, as he looks for similar phenomena in other theological
disciplines. Insofar as other normative texts of global validity besides legal
texts exist and have to exist in the church (such as the biblical canon, liturgical
91
Orsy, Theology and Canon Law, 88; see idem, ‘Reception and Non-Reception’, 69–70.
books, and universal moral norms), other disciplines face the same problem of
how to locally implement global normativities in the particular churches. As
the starting point for his considerations, Huels chooses a model of implemen-
tation from the book on intercultural theology Constructing Local Theologies,
by Robert Schreiter. Schreiter analyses several approaches to establishing
genuine local theologies by examining the way they serve to establish the
Christian faith in a culture. In doing so, he shares the understanding that the
initial moment for nurturing a local church can never be the colonialist
transplanting of a (Western) theology into a (non-Western) culture, but the
cultivation of the Christian message into an autonomous theology which is
part of the new ecclesiastical culture.92 The reception of the Christian mes-
sage does not lie in the acceptance of the Western concept of Christian
thinking and living, but in the formation of a local theology.
Similarly, the New Testament describes the growth of Christian commu-
nities as an act of reception (see Acts 2:37–42; 1 Corinthians 11:23 and 15:1).
Wolfgang Beinert explains: “The birth of Christian parishes in these texts is
depicted as a process of reception. It is sparked by apostolic preaching, but
consists ultimately not only of the adoption of some theological opinions, but
by receiving the grace of God.”93 The Gospel’s impulse stimulates the growth
of a recipient’s theology: “Ecclesial reception in the perspective of the New
Testament is therefore to be seen as a vital act which is not about questions of
constitution or authority, but about the mission of the church itself, which
exists to ensure that the seed of the Word of God falls on fertile ground.”94
Reception therefore means that a message is adopted, but simultaneously
that something genuinely innovative comes into being: a new local theology, a
culturally embedded liturgical tradition, a regional legal practice.95
Reception, thus, describes the generation of a local practice, with the phe-
nomenon of nonreception in contrast describing the lack of such a cultural
dynamic. Beinert explains this by emphasising that the core of reception is less
an act of intellectual evaluation than a practical act: “The act of reception or
nonreception is not necessarily a judgement. It rather consists of taking over
92
See Schreiter, Constructing Local Theologies, 11.
93
Beinert, ‘Rezeption’, 23–24; original: “Das Werden von Christengemeinden erscheint in
diesen Texten als Rezeptionsvorgang. Es wird durch die apostolische Predigt in Gang
gebracht, besteht aber letztlich nicht einfach darin, daß irgendwelche theologischen
Ansichten übernommen werden, sondern daß dadurch das Heil Gottes empfangen wird.”
94
Ibid., 24; original: “Ekklesiale Rezeption ist vom Neuen Testament her also stets als ein
Vitalgeschehen zu sehen, bei dem es nicht um Verfassungs- und Kompetenzfragen geht,
sondern um die Sendung der Kirche selbst, die dazu existiert, daß der Samen des Wortes
Gottes auf den richtigen Boden fällt.”
95
See Müller, Gesetz, 10; Hoffknecht, Theologie, 278.
the content of faith into one’s liturgical life, into private spirituality or the
spirituality of the local church, into one’s social conduct, etc., or of the fact
that all this does not happen.”96 This understanding of reception is closely
connected with the idea of the sense of faith, insofar as the receptive act of
establishing a local practice may be interpreted as an act of consent. In this
sense, Dominik Burghardt notes: “In a specific question the faithful of all
statuses express a qualitatively representative consensus fidelium by their wit-
ness, their behaviour, their verbal, written, and artistic expressions, and their
growing into a life of faith.”97
Legal Transfer by Translation

One question that requires attention is how ideas, practices, or norms of the
global church might be communicated so that they are received in local
churches and spark a local practice there. Robert Schreiter identifies three
ways, namely the translation, adaptation, and contextual models, each of
which answers this question differently. Schreiter describes the use of transla-
tion to develop a local theology as a two-step process: “In the first step, one frees
the Christian message as much as possible from its previous cultural accre-
tions. In doing so, the data of revelation are allowed to stand freely and be
prepared for the second step of the procedure, namely, translation into a new
situation.”98 The core of this model is to maximally free the universal thought
from its associated culturality in order to relocate it in a certain culture: “An
underlying image directing this procedure is one of kernel and husk: the basic
Christian revelation is the kernel; the previous cultural settings in which it has
been incarnated constitute the husk. The kernel has to be hulled time and
again, as it were, to allow it to be translated into new cultural contexts.”99 This
model, Schreiter explains, was used in the liturgical reform after the Second
Vatican Council to translate the Roman liturgy into local liturgies.
For John Huels, translation is a helpful approach for describing the imple-
mentation of global canon law in local churches, as translation (unlike the
96
Beinert, ‘Rezeption’, 43; original: “Demgemäß besteht der Akt der Annahme bzw.
Nichtannahme nicht unbedingt aus einem Urteil. Er besteht vielmehr in der Übernahme
des Glaubensinhaltes in das gottesdienstliche Leben, in die private und ortskirchliche
Spiritualität, in die Handlungspraxis usw., bzw. darin, daß das nicht passiert.”
97
Burghardt, Institution Glaubenssinn, 81; original: “Gläubige aller Stände bringen in
einer bestimmten Frage durch ihr Zeugnis, ihr Verhalten, ihre verbalen, schriftlichen
und künstlerischen Äußerungen und durch ihr Wachstum im Glaubensleben einen
qualitativ-repräsentativen consensus fidelium zum Ausdruck.”
98
99
Ibid.
adaptation and contextual models) takes certain norms as given and tries to
implement them as fully as possible locally: “The goal of the translation
approach is to facilitate the accommodation of these texts and traditions in
alien cultures. It assumes that a universal canon law is a reality that must
somehow be dealt with in diverse cultural settings.”100 The adaptation and
contextual models, on the other hand, do not deal easily with global canon
law, as both are less open to taking on a foreign theology or an alien body of
norms, but rather aim at developing their own local equivalent. Schreiter
explains the reasons for this: in adaptation models, representatives of a tradi-
tional European ecclesiastical culture (or members of the local church who
were socialised in a European context) together with representatives of the
local church define a common theological basis that suits the local ecclesias-
tical culture and relates to Western theologies.101 This provides the basis for
building a local theology or a local body of norms. Contextual approaches,
conversely, change the perspective of the adaptation approach: whereas adap-
tation models take the faith as a starting point, contextual models concentrate
on the local culture, focussing on social problems or changes in a society to
which Christianity could apply itself.102 In local answers to the questions
raised by a society, a local approach to being Christian develops which is
directly linked to the cultural context out of which it has grown. The strengths
of both approaches are that they take seriously both the local culturality and
the integrity of the ecclesiastical tradition: “In ideal circumstances it should
allow for the development of a theology that is not only local, but deeply
contextual.”103 Yet Schreiter notes that the circumstances are seldom ideal.
Besides, both models have a tendency to idealise the local culture, so that
social problems caused by culture tend to be trivialised or overlooked.
Furthermore, the theologies developed in this way often remain embryonic
and are seldom institutionalised.
Similarly, neither of these two models – adaptation or contextual – meets
John Huels’ interest in finding an implementation model for integrating
global canon law in the local churches, as they are closed to the idea of taking
in a body of norms that originated outside the local church. But is the
translation approach more helpful for explaining this kind of reception pro-
cess? It is possible to share Huels’ affirmative view, but not without taking into
account that the translation model also contains some weaknesses that should
100
101
See Schreiter, Constructing Local Theologies, 9–10.
102
See ibid., 12–14.
103
Ibid., 11.
not be downplayed. Schreiter regards them as so grave that he judges the

translation model to be largely useless for establishing local theologies. He
names two main deficiencies. The first is the model’s “positivist understanding
of culture”.104 Identifying similar cultural phenomena in two cultures is
deceptively interpreted as the possibility of easily transferring a concept from
one culture to another without examining in depth whether the meaning of
the phenomenon in the cultures is indeed the same or similar. A second
weakness is the kernel-and-husk-theory. It describes the assumption that a
statement of universal quality would develop aculturally “in some privileged,
supracultural sphere”.105 But this assumption overlooks the fact that a uni-
versal idea is always and necessarily embodied in a culture: “Rather than the
kernel-and-husk image of an incarnate Christianity, which allows for a ready
hulling to reveal the kernel of divine revelation, perhaps the image of an onion
would be more appropriate: each successive layer is intimately bound to the
next.”106 To think that it is possible to culturally neutralise a theology in such a
way that it could easily be transferred and integrated into another ecclesiastical
culture is problematic. As a result, the prospect of transferring universal canon
law into local churches with the help of the translation model without causing
any cultural conflicts is illusory.
Secular legal scholars and sociologists have been discussing this issue since
the 1970s in debates on legal plurality and legal transfer. On the question of
how to understand the act of transferring law from one legal culture to
another, the legal scholar Alan Watson has undertaken ground-breaking
work. Coining the term legal transplants, Watson describes the transplanta-
tion of a norm or a complex of norms from one legal order into another.107 He
also notes that a normative transplant in its new context receives a new
meaning: “a rule once transplanted is different in its new home.”108 This is
the case because only a norm but not its cultural background is being
transplanted: “it is rules . . ., institutions, legal concepts, and structures that
are borrowed, not the ‘spirit’ of a legal system.”109
But what does this finding reveal about the act of transplantation itself? Is it
really a transfer of law? Legal sociologists who take on the perspective of system
104
Ibid., 8.
105
Ibid.; see also Gruber, Theologie, 11, 128.
106
107
See Watson, Legal Transplants, Athens, GA, University of Georgia Press, 1974, 21; idem,
‘Legal Transplants’, Electronic Journal of Comparative Law 4.4 (2000), www.ejcl.org/ejcl/44/
44–2.html (accessed 7 October 2016).
108
Watson, ‘Legal Transplants’.
109
Ibid.
theory doubt this. Marie Theres Fögen and Gunther Teubner, for example,
have noted that a transfer of law that transcends the borders of a legal system is
not a convincing idea:
In an extreme case the transfer runs between different social systems. One
cannot speak of a transfer across the borders of a system, but only of a
reconstruction in another systemic context. In another extreme case, the
transfer happens within the communication chain of a social system. But
also within these communication chains the idea of a transfer is misleading.
Also in this context, meaning is not ‘transported’, but what happens is con-
densation and confirmation, that is, structural transformation, which can
only subsequently be identified as a stability of structures.110
Therefore, Fögen and Teubner made the “suggestion: there is no legal transfer,
but there are different overlaps in the resignification of legal norms”.111
Applying these considerations to the question whether the translation
approach, which John Huels adopts from Robert Schreiter, is suitable for
communicating global canon law into the local churches, raises the question
how to interpret the transfer of global law into local legal contexts. Is a norm of
global canon law, after being received in the local churches, still the same
norm? It might be more accurate to understand it as a reconstruction of the
original norm which becomes another norm in its new context. This does not
render the translation approach unsuitable as a model for sketching the
transfer of norms between global and local church, but it reveals its limits,
insofar as it does not answer the question about the identity of the transplanted
norms.
Likewise, one must note a further problem, namely that the culturality of
the transplants might cause conflicts in local churches when a norm is locally
reconstructed. In cases where a reconstruction of global canon law is unsuc-
cessful in the local churches because the transplanted norms receive either
110
Fögen/Teubner, ‘Rechtstransfer’, Rechtsgeschichte 7 (2005), 44; original: “Denn im einen
Extremfall verläuft der Transfer zwischen unterschiedlichen Sozialsystemen. Von Transfer
über Systemgrenzen kann keine Rede sein, nur von Rekonstruktion in anderen
Systemkontexten. Im anderen Extremfall geschieht der Transfer innerhalb der
Kommunikationsverkettungen eines Sozialsystems. Doch auch innerhalb solcher
Verkettungen ist die Vorstellung eines Transfers irreführend. Sinngehalte werden auch
hier nicht ‘transportiert’, sondern, was stattfindet, ist: Kondensierung und Konfirmation,
also Strukturtransformation, die nur im Nachhinein als Stabilität von Strukturen rekon-
struiert wird.”
111
Ibid., 45; original: “Vorschlag: Es gibt keinen Rechtstransfer, es gibt nur unterschiedliche
Grenzüberschreitungen bei der Resignifikation von Rechtsnormen.”
inadequate or no legal meaning in their new context for cultural reasons, it

becomes necessary to search for solutions beyond the translation approach.
Instruments of Legal Flexibility

In the first millennium of church history, the conflict arising from locally
incompatible papal laws (even those claiming universal validity) was solved
mostly by local churches simply not receiving the law, as Wolfgang Beinert
emphasises: “The criterion was always whether a directive was or was not helpful
for the good of the local church.”112 It is possible to observe this phenomenon in
the practice of Ambrose, who followed the Roman laws on fasting when in
Rome, but did not follow them in Milan.113 An end to this flexible way of dealing
with Roman instructions came in the second millennium of church history,
specifically with the centralism of the First Vatican Council.
Having in mind the good of local churches, the question now arises again
whether and under what conditions global canon law can claim validity in
local churches and how its local reception might be supported. This question
presents a challenge, considering that modern canon law is part of a specific
tradition of law – namely civil law – which relies on a dense body of written
codified laws as the basis of its legal order. This tradition causes communica-
tion problems with common law cultures of the Anglo-American legal system,
to which the statutory character of law as found in civil law is somewhat alien:
“Catholics living in a society with a common law tradition and a literalistic
attitude towards interpretation and observance of law often have difficulty
comprehending the canonical system and sometimes experience canon law
more as a source of conflict rather than as a source of unity in the commu-
nity”,114 as John Huels notes.
These questions are becoming even more complicated nowadays in a
church that is truly global. The cultural clashes of the premodern era were
mostly European conflicts. Today the tensions have a global character and
reveal fundamental cultural incompatibilities. Consequently, canon law as a
typical European law encounters difficulties in non-European churches.
Legal subjects in non-European churches are usually unfamiliar with
Central Europe’s legal thought, even though many of their countries have a
history of colonisation by European countries, which brought Western law
112
Beinert, ‘Rezeption’, 26; original: “Maßstab war stets, ob eine Weisung dem Wohl der
Ortskirche diente oder nicht.”
113
Augustine refers to this in his letter to Casulanus: see Letter 36, in Patrologiae cursus
completus: Series Latina, ed. by J. P. Migne, vol. 33, Paris, Excudebat Sirou, 1865, 151.
114
and legal approaches. Yet particularly in non-Western countries with no civil

law tradition, acceptance of a Romanly impregnated global law is hard to
achieve. John Huels uses the example of China to explain how cultural
differences can even lead to a negative response to the law as such.
Confucianism had little esteem for law as a regulating factor in society: “In
Confucianism, a ruler must govern by means of virtue rather than law; the
moral uprightness of the ruler serves as the example for the proper behavior of
the subjects.”115 It is difficult to communicate to such a society, which sub-
ordinates law as a medium of regulation, canon law’s claim to serve as an order
of salvation in which God’s graceful acting towards humankind takes on a
binding shape. For the church, this is a problem not only of legal theory but
also of ecclesiology, insofar as it is unclear how, in these cultures, the Second
Vatican Council’s link between the heavenly and the earthly church in its
necessary legal structure may be maintained without fundamentally affecting
the people’s perception of the church.
For this reason, Huels suggests increasing the freedom of local churches to
implement global law. He does not want to deny the general validity claim of
the global law, but recommends giving local churches more power in deciding
how to adopt the law, to avoid cultural dissonances: “If Christianity is truly open
to all cultures, it seems that the local church is [sic] such a society needs to
‘interpret’ the canonical requirements in a way that disruption to the people’s
language and way of thinking is minimized.”116 In saying this, Huels stresses that
he does not restrict the term interpretation to the act of interpreting a norm in
the strict sense, but that he comprehends it in a broader sense as the freedom to
decide about the if and how of the local application of global canon law:
“‘Interpretation’ of canon law, as used here . . ., is not limited merely to under-
standing the meaning of the words of a law in its text and legal context.
Interpretation, rather, involves broader skills that include making judgments
about the way that a law should be observed or whether it should be
observed.”117 This broadened authority of interpretation to decide whether
and how the global law of the church is applied in a local church can, in certain
cases, include the applier’s decision not to refer to a certain global norm at all:
“In some cases the best interpretation of a law might be that it should not be
observed due to the particular circumstances of a culture or situation.”118
115
Ibid.
116
Ibid., 260.
117
Ibid., 260, fn. 33.
118
Ibid.; Huels even goes one step further and doubts that the legal system of canon law could be
established and inculturated in all cultures: “We must also acknowledge that no legal system,
including the canonical, is entirely and uniformly suitable for every culture” (290).
Huels shows that this thought is not new in the church by referring to the
Acts of the Apostles, which reveals the Gentile Christians’ difficulties in
observing Jewish law. The question whether the Gentiles needed to be
circumcised according to Jewish law before becoming Christians was a parti-
cular source of trouble in the early communities of Gentile Christians. The
apostles discussed this matter and others during the so-called Council of
Jerusalem (see Acts 15:1–35; Galatians 2:1–10). After a heavy controversy, the
apostles decided to relieve the obligation for the Gentile Christians. It would
be good to “not trouble those Gentiles who are turning to God” (Acts 15:19)
and not make their decision to take on the Christian faith an even harder one
by obliging them to follow Jewish law. This attempt to consider the claims of
all cultures, Jewish and Gentile, from which the early Christians originated, is
a key idea for Huels in dealing with cultural conflicts: “Some of the values
esteemed by the Jewish followers of Christ resulted in conflict or hardship in a
Gentile culture, and so a compromise solution was arranged which was
sensitive to both cultures.”119 In this way, the apostles reacted to the finding
that norms may be destructive and may even damage a legal community. In
the Apostles’ Council, the community gave up a regulation which was espe-
cially burdensome to a group of believers to avoid endangering the salvation of
this group and the solidarity of the community as such, as Josef Zmijewski
explains: “Luke presents a model for solving conflicts and tensions between
representatives of different groups and opinions – that exist in the church at all
times – without jeopardising unity and peace.”120
In the biblical narrative, the model’s success depends on certain conditions:
on the openness to dialogue on both sides; on the willingness to limit the
discourse to factual issues; and on the readiness to find a compromise.121 In any
case, a compromise may be reached only in matters not directly connected
with questions of salvation. Concessions that react to cultural needs therefore
need to be made responsibly. In that sense, the Apostles’ Council may serve as
a biblical example of how to restrict the application of global canon law in
local churches for cultural reasons.
The impulse for dealing flexibly with global canon law for cultural reasons
needs to come mostly from the local churches themselves, as Huels emphasises:
119
Huels, ‘Interpreting Canon Law’, 250, fn. 4.
120
Zmijewski, ‘Apg 15,1–33’, in idem, Apg, Regensburg, Friedrich Pustet, 1994, 575; original:
“Lukas bietet hier ein Modell dafür, wie Konflikte und Spannungen zwischen Vertretern
unterschiedlicher Gruppen und Anschauungen – und solche gibt es in der Kirche zu allen
Zeiten – gelöst werden können, ohne daß dabei die Einheit und der Frieden aufs Spiel
gesetzt werden.”
121
See ibid., 575–576.
“Since change can only fully come about when the people themselves accept
and integrate the change, the persons in the various local churches will often
know best . . . how canon law is best to be interpreted and adapted to be
applicable in their culture.”122 Huels addresses this statement to the local
bishops, the ecclesiastical tribunals, and other appliers of the law as well as to
all members of a local church. Their duty is to protect the cultural peculiarity of
a local church through a modified application or even non-application of global
canon law under certain conditions. If the bishop and the local legal commu-
nity regard a norm as deeply inappropriate for a local culture, it might even be
possible to think of a nonreception of the law. A general refusal to receive the
law would question the validity of a norm in the particular church and oppose
the norm’s global validity claim. For such cases, diverse instruments of legal
flexibility already exist that challenge the local validity of a conflictive norm:
diocesan bishops have the right to remonstration; members of the church may
limit the effectiveness and validity of a regulation by refusing to receive global
law or by confronting it with local customary law.
It is also possible to refuse to apply certain norms in single cases or to
singularly modify their effect while applying them. This practice does not
question a norm’s fundamental validity but does question its effectiveness in a
certain case. In this case, the norm is not considered as principally incompa-
tible with a local culture but as having a negative effect on the community or
one of its members under singular circumstances. To mitigate this negative
effect while applying the law requires instruments of legal flexibility: the local
ordinaries may dispense individual members of the faithful from observing the
law; members of the church may exclude themselves from observing a norm
by referring to the principle of reasonableness; the principle of equity allows
local appliers of the law to apply a global norm in a modified way.
Justice demands these instruments of flexibility, which have their roots in
natural law, as Stephan Kuttner states. As human law is never fully successful
in grasping the naturally just, so the best way to react to its contingency is by
applying it in a flexible way, helping natural justice to triumph: “The more the
law provides for the contingency of the unforeseen by a flexible rule, the closer
will it be to Natural Law.”123
Making sure that global ecclesiastical law is applied in local churches with a
sensitivity for local cultures is also a task best secured in the future by instru-
ments of legal flexibility, as Huels suggests.124 Yet one has to ask if the
122
123
Kuttner, ‘Natural Law’, 105.
124
instruments as they exist today are adequate to the task of responding to the
cultural needs of local churches, or if they must be broadened, thus allowing a
more flexible way of dealing with global canon law. This I discuss in the
following sections.
The Bishops’ Right of Remonstration

One instrument of legal flexibility in the hands of local bishops is their right to
remonstrate against a Roman law, protesting against a norm which is unsui-
table in their local churches. This right was not integrated into the Code of
Canon Law but is regarded as a valid legal instrument of the church’s tradi-
tion.125 The right of remonstration aims at preventing a law or a single norm
from coming into being. It allows local bishops to object to a global norm and
to ask the legislator to abrogate it if it is inadequate under certain local
circumstances.
That a law needs to address local needs or otherwise allows the bishops’
protest can be traced back to Isidore of Seville, who, in his Etymologiae,
defined a law as a regulation in accordance with the local customs and the
local and temporal circumstances.126 The Decretum Gratiani takes up this
definition (see distinction 4 canon 2)127 and interprets it as the bishops’ right to
remonstrate against a law that opposes local customs. In the Liber Extra, a
decretal by Alexander III advises the archbishop of Ravenna to bring his
concerns before the pope in cases where the bishop finds himself incapable
of following a papal rescript (see X 1.3.5).128 This decretal was later applied to
papal laws as well. It is understood as the origin of the bishops’ right of
remonstration.
Remonstrating has a suspensive effect, so that the norm concerned has no
effect in the local church until the legislator has decided the case. The
decision whether a conflictive global norm has to be followed in a local
church is made by the highest ecclesiastical legislator. That it is he who
decides a remonstration in any case reveals the limits of the bishop’s authority
to protect his local ecclesiastical culture from being damaged by a global law.
It is necessary to discuss this issue, namely that a remonstration’s success
125
See Puza, Kirchenrecht, 21; Guth, Ius remonstrandi, Freiburg, CH, Universitätsverlag, 1999,
3–12.
126
Book 5, chapter 21, no. 1, in Patrologiae cursus completus: Series Latina, ed. by J. P. Migne, vol.
82, Paris, Excudebat Sirou, 1859, 203A.
127
In Corpus Iuris Canonici, vol. 1, 5.
128
In Corpus Iuris Canonici, vol. 2, ed. by E. L. Richter and E. Friedberg, Graz, Akademische
Druck- und Verlagsanstalt, 1959, 18.
depends on the highest authority of the church, especially as the bishop

usually knows better about the local culture and the problems of implement-
ing a norm in it. This is also a theological issue, as the restriction of the local
bishops’ authority must be viewed critically with regard to the theological
relevance of the local church. That the pastor of a local church, which is a
realisation of the Church of Christ (see Lumen gentium, nos 23, 26),129 who is
empowered to lead this church with the power of governance (see canons 381
§1, 391 §1 CIC/1983), does not have the authority to protect the culture of his
church from being impaired by global law must be viewed very critically. Here
a remark of the canon lawyer Georg Bier comes to mind. He notes that in the
applicable law of the church, bishops resemble administrative officers of the
pope rather than autonomous leaders of their churches.130 Considering the
theology and theory of the bishop’s office, as taught by the Second Vatican
Council, the bishops should enjoy much greater freedoms. These freedoms
should allow them to decide on the validity of a norm in cases where global
canon law and local culture collide and require adequate balancing.
Dissent, Nonreception, Desuetude

In clashes over the validity of global canon law, diocesan bishops depend on
the papal decision; yet surprisingly, the legal theory of the church also affords
the local legal community some influence in targeting the validity of a norm. I
have already mentioned in Chapter 2.5 the option of desuetude – provided by
the theory of receptio legis – which prevents a law from becoming effective and
impedes its coming into being. Correspondingly, I would like to recall Peter
Scharr’s approach to identifying models within the church for finding the
truth intersubjectively, which can be understood as realisations of the theory of
the sense of faith. As to how the church might organise an intersubjective
finding of the truth, Scharr presents synodic decision-making as a model that
aims at the decision makers’ unanimity, but he also refers to reception as a
proof of truth and a further concretisation of intersubjective perception. In
synodality and reception, Scharr recognises “two forms of realising the con-
sensus fidelium”131 which are active in the life of the church and in ecclesias-
tical lawmaking. In synodality, a small group of decision makers performs the
129
Acta Apostolicae Sedis 57 (1965), 27–29, 31–32.
130
See Bier, Die Rechtsstellung des Diözesanbischofs, Würzburg, Echter, 2001, 374, 376; with his
remark, Bier cites Otto von Bismarck’s scorning the German bishops after the First Vatican
Council’s decision on the papal primacy of jurisdiction.
131
Scharr, Consensus fidelium, 211; original: “zwei Formen der Verwirklichung des consensus
fidelium”.
task of legislation itself, as the whole people of God cannot be involved in the
synodic processes for reasons of a theory of hierarchy, and moreover for simple
pragmatic reasons. The dignity of the people of God, however, necessitates the
participation of the whole church in making law, and this participation inter
alia comes about by reception as a “form of realising the conciliarity of the
universal church and a form of an active consensus fidelium”.132
As he does for synodality, Scharr interprets reception by using the categories
of the consensus theory of truth. Synodic decision-making can be understood as
a realisation of the ideal speech situation, whereas reception is a retrospective but
no less important evaluation of a validity claim: “The faithful by making an issue
of faith a matter of intellectual debate, do what the consensus theory of truth
calls the discursive proofing of a raised validity claim.”133 In the categories of the
consensus theory of truth, the reception of law might be comprehended as the
discursive examination of a legal claim of validity; a successful reception may be
interpreted as an acceptance of this claim. Nonreception, on the other hand,
must be taken as an indication that the legal community is not entirely con-
vinced of the validity of the claim raised by the legislator and doubts the
legitimacy of the law. In these cases, the believers’ sense of faith might manifest
itself as a dissent, as Dominik Burghardt notes: “When it comes to merely
ecclesiastical law, one has to take into account the possibility that a discrepancy
might grow between the norms of merely ecclesiastical law or the parts of it in
canonical laws which also contain divine law, and the sense of faith.”134
But what follows from that? How is the church to react to manifest dissent?
Dominik Burghardt sees the legislator as obliged to listen to the legal community’s
objections, to think about them, and to maybe make them a reason for legal
changes: “In such a case the ‘right to be considered’ inherent to an authentic sense
of faith is an appeal to the ecclesiastical legislator for an unbiased examination,
and if necessary approbation or change in the law.”135 Burghardt therefore argues
in favour of a constructive interplay between the people of God and the hierarchy.
132
Ibid., 225; original: “Verwirklichungsform der gesamtkirchlichen Konziliarität und eine
Form eines aktiven consensus fidelium.”
133
Ibid.; original: “Indem die Gläubigen einen Sachverhalt des Glaubens zum Gegenstand
intellektueller Auseinandersetzung machen, vollziehen sie das, was die Konsenstheorie der
Wahrheit die diskursive Überprüfung eines erhobenen Geltungsanspruchs nennt.”
134
Burghardt, Institution Glaubenssinn, 207; original: “Was das rein kirchliche Recht angeht, so
ist mit der Möglichkeit zu rechnen, daß sich eine Diskrepanz zwischen Normen rein
kirchlichen Rechts bzw. dessen Anteil innerhalb von kanonischen Normen, die auch göt-
tliches Recht beinhalten, und dem Glaubenssinn auftun kann.”
135
Ibid.; original: “In einem solchen Fall bildet das einem authentischen Glaubenssinn inne-
wohnende ‘Recht auf Beachtung’ einen Appell an den kirchlichen Gesetzgeber zu unvor-
eingenommener Prüfung und gegebenenfalls Approbation bzw. Gesetzesänderung.”
This idea of a harmonious solution to conflicts is thoughtful, yet also

somewhat odd. To grant the members of the church a “right to be considered”,
under the conditions of modernity in which the church has scarcely any
instruments of coercion left, is slightly anachronistic, as it misunderstands
the vital significance of reception for the church and its law. With regard to
implementing global canon law, the local reception by the faithful is a key
moment which factually regulates the normative relevance of global canon
law in the local churches – be it with or without a “right to be considered”.
Therefore the ‘appeal’ of the faithful to the ecclesiastical legislator must be
taken more seriously than Burghardt suggests if the law of the church is to
remain relevant.
The Culturality of Customary Law

Local communities may also oppose the global church’s law with customary
law. As the development of customary law is excluded only in cases where it
would conflict with divine law (see canon 24 §1 CIC/1983), local customs may
become customary law according to the law (secundum legem), contrary to it
(contra legem), or beyond it (praeter legem). This flexibility opens up the
opportunity to integrate cultural factors into the law: customs “are safeguard-
ing the local soul of the people and its history”,136 as the theologian Jean
Tillard writes, thereby identifying two dynamics connected with customs. One
is “a movement upwards”, insofar as the local customary law can be inter-
preted as a local offering of communication with the global legislator. In the
light of a theology of communion, Tillard regards it as a duty of the global
legislator to listen to this message, as local customs might be an authentic way
of locally living the Christian faith and might thus be understood as an
expression of the believers’ sense of faith. Therefore, it is the duty of the
legislator to discover elements in the legal customs of local churches which,
as expressions of the sense of faith, might also become influential for the
development of the global law.
A second dynamic is “a descending movement” from the global legislator
into particular churches. To be inculturated into local churches, global law
needs to be received by the members of the church. This happens inter alia
through the establishment of legal customs: “Custom is a major expression of
this entry into the concrete reality of the local church.”137 Establishing legal
136
Tillard, ‘Ecclesiology of Communion’, Canon Law Society of America Proceedings 58
(1996), 33.
137
Ibid.
customs may also be linked with the sense of faith, insofar as it requires the
whole community’s interaction: “Here again we encounter the sensus fide-
lium of clergy and laity at work together, taking into account the specificity of
context, culture, tradition, history, society.”138
That the hierarchy’s contribution must exist for a legal custom to be
endowed with the force of law (see canon 23 CIC/1983), even when customary
law is concerned, relates to the concept of unity, by which leaders of the
church and the people of God unite in shaping a local legal culture. This idea
can be connected with the considerations of the hierarchy’s service to coher-
ence, considerations developed in Chapter 4.1 with particular regard to the
pope’s service to the church’s unity. Nevertheless, one should note that the
hierarchy’s contribution to shaping customary law makes it less likely that
customary law really represents the peculiarities of the local legal culture. The
legal scholar Brian Tamanaha, who did ground-breaking work on the phe-
nomenon of legal pluralism, observed that factual custom and customary law
tend to grow apart as soon as official representatives of the legal order become
involved: “‘customary law’ recognised by official legal systems does not neces-
sarily match actual lived customs.”139 For that reason, it is worth keeping in
mind that the church hierarchy’s contribution to customary law might cause
this body of law to become detached from local customs.
For canon law, this problem was already noted on the level of legal inter-
pretation. Canon 27 CIC/1983 calls custom “the best interpreter of the laws”.
This norm, however, is critically addressed by Ladislas Orsy with regard to its
factual insignificance: “‘Custom is the best interpreter of laws.’ But there is
also a latent irony in the fact that our legal system goes a long way to inhibit the
emergence of customs.”140 As the legislator tends to answer open legal ques-
tions authoritatively and to clarify uncertain norms by himself, he leaves only a
small space for the development of customary law: “If all doubts are decided
by decrees, how could the community ever contribute? What would be the
purpose of canon 27 at all?”141 Orsy’s critique indicates that he recognises
customs as indeed being useful for bringing about a local legal practice, yet
regards it as necessary for the legislator to grant the local churches greater
freedoms to establish legal customs. Only then might customary law become a
relevant factor in creating a culturally sensitive canon law.
138
Ibid.
139
Tamanaha, ‘Legal Pluralism’, 410.
140
141
Ibid., 116, fn. 22; see idem, ‘Reception and Non-Reception’, 67–68.
Revising Interpretation Theory

The question of how to prevent the global law of the church from missing the
culturality of local churches and becoming alien to them is inextricably
connected with the question of how local culture might be protected in the
context of the law’s application. The global law’s integration in a local church
does not take place in an abstract evaluation of the norms, but in the applica-
tion of the law. It is therefore in legal practice mostly that a law or single norms
are found to be adequate for use in the local church – or alien to the local
culture.
John Huels explains why it is impossible to apply global canon law in local
churches without interacting with their local culture. He refers to the inter-
pretation of the law by the appliers as one aspect of legal application.
Interpreting the law necessarily happens from the interpreter’s cultural point
of view, as culturality always essentially impregnates human actions: “If the
insights of anthropology, theology, comparative law, and other disciplines are
to be taken seriously, then we must recognize that the interpretation of canon
law always takes place within a culture and is affected by culture, because
human beings cannot act apart from culture.”142 The interpreter’s cultural
point of view is epistemically relevant for perceiving the law: “Interpretations
of canon law should not, and cannot, be uniform. Since interpretation is a
human act and human beings are psychologically and culturally diverse, we
should always expect a variety of interpretations, the more so as the back-
ground and culture of the interpreters are various.”143 This necessary diversity
of interpretations also encourages the global church to reinterpret plurality
with regard to interpretation: “Plurality of canonical interpretation is not
something to be lamented or eradicated, but should be seen as the norm
and the ideal in a ‘world Church’ made up of local churches.”144
In any case, constructively relating to cultural differences in interpreting the
law requires a value change within the church in order for diversity in matters
of interpretation to emerge as a realisation of unity in plurality rather than as a
threat to the church’s unity. In addition, it is necessary to revise the ecclesias-
tical theory of interpretation, which the Code presents in the methodical
norm of canon 17 CIC/1983. This canon fosters a positivistic approach to
interpretation; it leaves relatively little room for a culturally sensitive inter-
pretation of norms. Not only do the methodical restrictions narrowly confine
interpretation; they also oblige interpreters to adjust their interpretations
142
143
Ibid.
144
Ibid.
according to the proper meaning of the terms used in a norm, the genetic
context of its development, and the mind of the legislator. In particular, the
reference to the mind of the legislator centralises local interpretations and
serves to shape a uniform interpretation. The method of interpreting a norm
according to the mind of the legislator binds the interpreter to the legislator’s
fundamental ideas on the law and the principles behind it.145 This perception
of interpretation tends to suppress any local approaches towards the law by
replacing them with the legislator’s concepts. Therefore, further critical dis-
cussion is required with regard to the necessity of interpreting the law in a
culturally sensitive manner. As the interpretation of global canon law is an act
of reception – of locally taking over the law – it might be worth considering a
restriction of the legislator’s relevance for interpretation.146
Dispensation from the Duty to Follow the Law

The instruments of legal flexibility in single cases only are also of particular
value in examining how the global law might be applied in local churches in a
culturally sensitive way. As these instruments address the particular occasions
on which the global law of the church threatens the salvation or the good of an
individual or the community, they do not question the general validity of the
law as such, but focus on situations in which the application of the law causes a
specific conflict.
One such instrument is dispensation.147 The relaxation of a merely eccle-
siastical law in a particular case (see canon 85 CIC/1983) enables the local
ordinaries to release their subjects under certain conditions from the binding
power of a global norm if this norm is not divinely founded. According to the
applicable law, dispensation is also impossible where laws essentially define
the conditions of juridical institutes or acts (see canon 86 CIC/1983). There is
also no local dispensation of penal or procedural norms or of laws that can be
dispensed only by the Apostolic See or another ecclesiastical authority (see
canon 87 §1 CIC/1983).
That a diocesan bishop in any other cases might dispense his subjects from
the duty of following a law promulgated by the highest authority of the church is
a new regulation in the 1983 Code which extends the bishop’s right of dispensa-
tion. This development has its roots in the Second Vatican Council’s theology
145
See May/Egler, Kirchenrechtliche Methode, 207; Brown, Canon 17 CIC 1983, Rome, Editrice
Pontificia Università Gregoriana, 1999, 396.
146
See Orsy, ‘Reception and Non-Reception’, 67–68.
147
See Adam, Legal Flexibility, Farnham, Ashgate, 2011, especially 35–47.
of the local church, which called for diocesan bishops to be given greater
authority. In the 1917 Code, diocesan bishops could dispense their subjects
from papal laws only when the power to do so was explicitly granted to them as a
concession (see canon 81 CIC/1917). The council changed the approach of
concession to an approach of reservation (see Decree Christus dominus, no.
8b),148 so that the bishops are now usually capable of dispensing their subjects
from global norms as well.
Listing reasons that legitimise a dispensation, the applicable law names the
spiritual good (see canon 87 CIC/1983) and the good of the faithful (see canon
88 CIC/1983) that might become endangered by applying a norm. Hubert
Socha explains: “The diocesan bishop may therefore issue a dispensation only
if the observance of a disciplinary law in an exceptional case causes hardship
for the individual which is to be ameliorated or removed because it is detri-
mental or even harmful for her or his spiritual good.”149 For that reason,
cultural conflicts may also justify a dispensation if applying a norm might
have a negative effect on the spiritual well-being of the local faithful.
Epiky and Equity

One option that every legal subject has is the choice to reject the validity of
global canon law for herself or himself. This option is connected with epiky,
defined as non-compliance with a law for reasons of conscience if following
the law would be incompatible with justice. The subject bound by a norm
may refer to epiky if she or he can argue that the legislator, if he had known the
circumstances of the specific case, would have considered them and would
have regulated differently. For Aristotle, epiky is part of the law – not part of
statutory law, but its correction. Sometimes, the law has to be corrected for the
reason “that all law is universal, but about some things it is not possible to
make a universal statement which shall be correct. In those cases, then, in
which it is necessary to speak universally, but not possible to do so correctly,
the law takes the usual case, though it is not ignorant of the possibility of error”
(Nicomachean Ethics, book 5, chapter 14).150 This lack of distinctness is
grounded in the nature of laws. If a set of circumstances occurs which the
148
149
Socha, ‘canon 87’, in Lüdicke (ed.), Münsterischer Kommentar (suppl. sheets 20, April 1993);
original: “Der Diözesanbischof darf somit nur dispensieren, wenn die Beobachtung eines
Disziplinargesetzes für den Gläubigen ausnahmsweise eine Härte mit sich bringt, die es zu
mildern oder zu beseitigen gilt, weil sie dessen geistlichem Wohl abträglich oder gar
schädlich ist.”
150
Translated by D. Ross, London, Oxford University Press, 1966, 133.
law – due to its generality – does not address adequately, the appliers of the law
need “to correct the omission – to say what the legislator himself would have
said had he been present, and would have put into his law if he had known”
(ibid.).
Already in classical antiquity, epiky – which empowers the individual to do
the illegal but right thing – was accompanied by equity as the official response
to a norm’s defectiveness. Thomas Aquinas developed both instruments
further in his legal theory. Aquinas linked equity with the Aristotelian
approach to epiky. He even used one term to describe both phenomena
when speaking of “epiky which we call equity” (Summa Theologiae II–II,
question 120 article 1).151 He believed that equity should be applied in cases
where positive law contradicts natural law (see Summa Theologiae II–II,
question 60 article 5).152 This problem necessarily arises because human
laws cannot be appropriate for each situation under the conditions of earthly
contingency (this likewise describes the problem of constructively relating
global ecclesiastical laws and local culturality with each other). A human
legislator can consider only the usual circumstances but cannot provide
appropriate legal solutions for all situations. Because of this, general norms
may collide with individual fairness and the common good in unique occa-
sions (see Summa Theologiae II–II, question 120 article 1).153 If this happens, it
would be wrong to adhere to the letter of the law and right to act according to
equity. Applying equity, then, would be the equivalent to following the ‘spirit
of the law’, the voluntas legis.
Unlike Aquinas, canon law today again differentiates between epiky and
equity. Epiky is mostly interpreted in its classical meaning of individual virtue,
empowering the individual to do the right thing in situations of conflict
between the positive law and the prepositive just. Equity, on the contrary,
addresses legal application. It primarily expresses the thought that any applica-
tion of the law must be fair to each individual. This is especially important for
canon law, as the law of the church claims to be relevant for salvation. In
adjudication, equity is effective when those applying the law subsume the case
under the general norm to produce a decision norm whenever a general
norm – confronted with the reality of life – becomes concrete for that
particular situation. Nevertheless, in the application of religious law, equity
must consist of more than simply attentiveness to the circumstances of a
151
In Sancti Thomae Aquinatis opera omnia iussu impensaque Leonis XIII P. M. edita, vol. 9,
Rome, Typographia Polyglotta, 1897, 468.
152
Ibid., 31–32.
153
Ibid., 468.
particular case, something which is also inherent to the secular application of

law. The uniqueness of the religious approach towards equity consists in
joining it with the theological motif of mercy. The legislator uses equity to
transplant mercy – as a leading principle of legal application – into the
church’s legal practice.154
Correcting Norms for Cultural Reasons

Yet the significance of equity for a theory of legal application goes somewhat
deeper. It touches the issue of correcting norms, a matter of core relevance for
this study. Besides applying law with a sensitivity to individual fairness rooted
in a theology of mercy, canon law uses equity to consolidate a dynamic of
transcending norms. Thus, in the legal order of the church, equity encourages
a “jurisdiction that corrects the wording of the law”,155 as Gerhard Neudecker
explains. This correcting effect on norms, according to the church’s under-
standing, is caused not by externally confronting the law but by a dynamic
inherent to the law itself. As the term law refers to positive and prepositive law,
the correction and relativisation of positive law by prepositive law may be
apprehended as a dynamic immanent to the legal system. In that sense, law
and equity are not counterparts. Rather, equity is an inherent principle of the
law which improves the law by directing it towards individual justice and
mercy. As a principle of application, equity creates a dynamic tension between
the positive and the prepositive law which, in some cases of legal application,
allows the application of prepositive law instead of positive law. The correc-
tion of an applicable norm according to equity suspends the coercive power of
positive law on particular occasions in favour of a higher justice. Equity
therefore serves as the principle “that attempts to reconcile the ostensible
incompatibilities of the universal and particular, of the metaphysical and
historical, and of the spiritual and the temporal”,156 John Coughlin notes.
Keeping this in mind and considering global canon law and its tendency to
ignore local cultural peculiarities, the question arises whether an application
principle like equity might represent an instrument of flexibility which can
reconcile the general claim of global canon law with the particular demands
of local churches. Is it so far-fetched to think of epiky as an individual’s
154
See Schüller, Die Barmherzigkeit als Prinzip der Rechtsapplikation, Würzburg, Echter, 1992,
especially chapters 4 and 5, 289–441; Colombo, Sapiens aequitas, Rome, Editrice Pontificia
Università Gregoriana, 2003, 74–75.
155
Neudecker, Ius sequitur vitam, 198; original: “den Wortlaut des Gesetzes korrigierenden
Rechtsprechung”.
156
Coughlin, Law, Person, 101.
response and of equity as the appliers’ response to culturally insensitive law?

Recent legal theory restricts the use of instruments of legal flexibility to
circumstances in which the applicable positive law collides with prepositive
divine law. If cultural factors are also to serve as grounds for applying equity, it
would also be necessary to accredit culture with a modifying effect with regard
to the law of the church.
This step might well be smaller than it seems at first. Even though cultural
issues are regularly not rooted in divine law as such, they are regularly of
theological value. That global canon law and its application require that the
culture of local churches be taken into account can be explained by the
conciliar teaching on the theology of the local church, which, as a realisation
of the Church of Christ, possesses a key ecclesiological value. A natural law
argument is provided by the theology of creation, which emphasises the
significance of ecclesiastical cultures against the background of the plurality
of God’s creation. This argument even attributes a divine normativity to the
plural cultures within the church, as it reveals them to be the natural results of
God’s creative action. Interpreting culture in that way makes the use of
flexibility instruments such as equity not only possible but even necessary in
locally applying global canon law. A conflict between the law and a local
ecclesiastical culture can therefore be settled in favour of the local church if
the affected global norms are not divinely grounded. So ecclesiastical law with
a global validity cannot win the argument if it compromises the salvation or
the good of a legal subject or a local ecclesiastical community for cultural
reasons.
Practical Concordance
Nevertheless, it is of some importance that global law stands back only if the
conflict has theological relevance, lest each cultural clash caused by global
law result in a correction of global norms. It is essential for two reasons to have
a restrictive practice which, in referring to the principle of equity, solves
cultural conflicts in favour of the local cultures only if this is theologically
necessary for protecting the salvation of the local faithful or the common good.
The first reason relates to the theological dignity of global canon law as a
general regulation that frames the global church. That this function of global
law has theological value in itself has been emphasised in Chapter 3.4 with
respect to the ecclesiological paradigm of unity. Interpreting the church as a
unity addresses not only the unity of faith as an essential feature of the
communion, but also the legal unity in which the community of faith
becomes legally real, insofar as the church as a theological entity requires an

organisational realisation through law.
One might object, though, that this unity is not identical with the uniformity
of canon law. But it is just as necessary to acknowledge that the two are
interrelated. This is emphasised inter alia by Robert Schreiter, commenting
on the relationship between unity and uniformity: “Unity is not the same as
uniformity. Yet unity and uniformity are not unrelated. To put it into the
language of semiotics: How many different signs can carry the same message
without alteration to the code? . . . How many varieties of church order can be
had before the churches can no longer work together or communicate with
one another?”157 Accordingly, securing the unity of the church requires a
certain degree of uniformity of organisation as well as of the law of the church.
For equity to function as an instrument of flexibility in applying global
canon law in the local churches, both theologically relevant goods – the unity
and the local culturality – must be related constructively. The demand for
unity, realised in the global law of the church, must balance the local
churches’ cultural need for plurality, so that both goods are realised in the
best way possible. To better understand this, it might be helpful to borrow an
idea from secular law: to achieve a balance between colliding norms, the
secular German adjudication on constitutional law has established a method
of dealing with conflicts of norms following the principle of practical con-
cordance (Prinzip der praktischen Konkordanz). This has its roots in the work of
the constitutional legal scholar Konrad Hesse, who argued against one-sided
decisions in solving conflicts between constitutional norms, by strengthening
the idea of realising both conflicting goods in the maximal way possible to find
a solution that would do justice to both:
legal goods protected by the constitution have to be related to each other in
such a way that each of them becomes real. When they collide, neither of
them can be realised in an overhasty balancing of the goods, or in an abstract
consideration of the values of one at the expense of the other. Instead, the
principle of the unity of the constitution sets the task of optimisation: both
goods need to be restricted, so that they both become optimally effective.158
157
158
Hesse, Grundzüge des Verfassungsrechts, Heidelberg, C. F. Müller, 1999, 28 §2 no. 72bb;
original: “verfassungsrechtlich geschützte Rechtsgüter müssen in der Problemlösung einan-
der so zugeordnet werden, daß jedes von ihnen Wirklichkeit gewinnt. Wo Kollisionen
entstehen, darf nicht in vorschneller ‘Güterabwägung’ oder gar abstrakter ‘Wertabwägung’
eines auf Kosten des anderen realisiert werden. Vielmehr stellt das Prinzip der Einheit der
Verfassung die Aufgabe einer Optimierung: beiden Gütern müssen Grenzen gezogen wer-
den, damit beide zu optimaler Wirksamkeit gelangen können.”
This approach is also suitable for relating the conflictive claims of global
canon law with those of local churches. Hesse’s idea of correlating the goods
in such a way as to avoid asymmetric relations balances the claims of the global
church and of local churches. This precludes any one-sided determination of
the colliding demands. Both goods should be realised in the best possible way,
despite the necessity of limiting them. The legislative claim of the global
church which aims at the validity of global canon law in local churches, and
the local request to curb this claim for cultural reasons, is to be responded to by
addressing the particular case in the best possible way. For that reason, the
colliding claims may be limited only to the extent necessary to create con-
cordance. Hesse notes: “The limits therefore have to be appropriate in the
particular concrete cases; they may only go so far as is necessary to create
concordance between both legal goods.”159
The proportionality of limits that Hesse demands reveals the fundamental
equality of the colliding goods: “‘Proportionality’ in this context means the
relationship of two variable entities which does most justice to the task of
optimising, and not a relationship between a constant ‘purpose’ and one or
more variable ‘means’.”160 In a conflict between the global church and a local
church, this likewise implies that a one-sided solution is not an option.
Whereas the actual relationship between the global church and the local
churches rather embodies the previously mentioned relationship “between a
constant ‘purpose’ and one or more variable ‘means’” (as the local law and its
application is closely bound to the global law and its legal understanding), any
future attempts to reflect the dignity of the local cultures implies that it might
well be necessary to limit both claims.
Hesse traces the demand to optimise the effectiveness of both goods back to
the principle of the unity of the constitution, requiring the appliers of the law
to keep in mind the whole of the constitutional order when interpreting norms
or solving conflicts of norms: “The context and the interdependency of single
elements of the constitution . . . mean it is necessary to never look only at the
single norm, but always at the broader context in which it has to be posed.”161
159
Ibid.; original: “Die Grenzziehungen müssen daher im jeweiligen konkreten Falle
verhältnismäßig sein; sie dürfen nicht weiter gehen als es notwendig ist, um die
Konkordanz beider Rechtsgüter herzustellen.”
160
Ibid.; original: “‘Verhältnismäßigkeit’ bezeichnet in diesem Zusammenhang eine Relation
zweier variabler Größen, und zwar diejenige, die jener Optimierungsaufgabe am besten
gerecht wird, nicht eine Relation zwischen einem konstanten ‘Zweck’ und einem oder
mehreren variablen ‘Mitteln’.”
161
Ibid., 27 §2 no. 71aa; original: “Der Zusammenhang und die Interdependenz der einzelnen
Elemente der Verfassung . . . begründen die Notwendigkeit, nie nur auf die einzelne Norm,
sondern immer auch auf den Gesamtzusammenhang zu sehen, in den sie zu stellen ist.”
This unity of the constitution that must be considered when generating

practical concordance can be compared with the church’s paradigm of
unity, which shapes the ecclesiastical law. In conflicts of constitutional
norms, both legal goods have to be seen as necessarily interrelated due to
their common ground in the constitution. The global church and the local
churches, as well as the goods they represent, are similarly interrelated as they
are all elements of the one constitution of the church and therefore form a
unity. This unity requires the optimisation of both goods, as it is the purpose of
the global church to safeguard the church’s unity by homogeneous law, and
the need of the local churches to protect their uniqueness. Thus, a theologi-
cally relevant conflict between a norm of global canon law and a local
church’s culture can be solved with the help of equity. The principle could
bring into practical concordance the claim of general legal effectiveness, on
one hand, and the claim of treating a specific situation differently, on the other
hand, so that both claims might be realised for their own sake as well as limited
for the sake of each other, in order to secure both goods in the best way
possible.
The practical result of this is that global norms are generally valid in local
churches, yet the consequences of the law might be suspended or relativised in
conflicts by interventions undertaken by the local appliers of the law who
ground their decisions on equity. On the rare occasions when a norm of global
canon law is absolutely incompatible with a local culture, it might be neces-
sary not to follow it at all. This, then, actually touches on the question of
validity, as a law that is not followed in a local church does not become a valid
law because of a lack of reception. Consequently, equity provides the possibi-
lity of preventing a global law from coming into being in a local church, even
if only in the cases of complete unsuitability, when observing the law would
cause more damage than good.
In the more common situations of a partial incompatibility between global
canon law and a local culture, it might be appropriate to arrive at a modified
application of the law. In such matters, the local appliers of the law have to
decide how to apply the norm, giving credit to its purpose without harming the
local ecclesiastical culture. The global norm is valid in the local church but is
applied in a modified way. As custom is characterised in canon 27 CIC/1983 as
being the best interpreter of the laws, culture might also be understood in a
similar way as an interpreter of the laws. Any local application of the law, then,
would rely on interpreting the norms according to, contrary to, or beyond the
law to reconcile them with the needs of a particular culture.
Legal Certainty and Justice

A second reason which (in addition to the theological value of global canon
law in its service to the unity of the church) represents an argument for
limiting the correction of norms – restricting it to the cases in which the
observance of global canon law faces theological problems – consists in legal
certainty, a central value of legal orders. The law of the church, like the
law of constitutional states, must provide its subjects with legal certainty.
In that sense, the stable validity and effectiveness of global canon law in
local churches represent both the essential constancy of the law and the
predictability of its consequences.
That legal certainty is vital for the law was prominently emphasised by legal
theorist Gustav Radbruch in his famous article ‘Statutory Lawlessness and
Supra-Statutory Law’, published in 1946. The author explains that apart from
its validity reason, each positive law is valuable by creating legal certainty
through its pure existence alone. This value is closely connected with justice.
Radbruch states that legal certainty is a demand of justice: “That the law be
certain and sure, that it not be interpreted and applied one way here and now,
another way elsewhere and tomorrow, is also a requirement of justice.”162 A
conflict between a positive and a prepositive norm does not therefore actually
represent a tension between legal certainty and justice, but indicates a con-
troversy of justice with itself: “Where there arises a conflict between legal
certainty and justice, between an objectionable but duly enacted statute and a
just law that has not been cast in statutory form, there is in truth a conflict of
justice with itself, a conflict between apparent and real justice.”163 Giving up
legal certainty in favour of prepositive justice therefore misses the core of the
problem, as it mistakes the link between legal certainty and justice and, in
doing so, generates injustice.
In canon law too, legal certainty and the application of the law with respect
to equity are brought into the debate as conflicting perspectives of justice. The
canon lawyer Marcus Nelles, for example, mentions the “danger that equity as
a . . . ‘softener’ creates a tension with the certainty and equality of applying the
law”.164 Even though the pastoral purpose of ecclesiastical law might require
more freedom to deal with particular cases, one also must note the fine line
between an equity practice and legal uncertainty. It is a matter for discussion
162
Radbruch, ‘Statutory Lawlessness’, 6.
163
Ibid., 6–7.
164
Nelles, Summum ius summa iniuria?, St. Ottilien, EOS, 2004, 307; original: “Gefahr, daß die
Billigkeit als ein . . . ‘Weichmacher’ in ein Spannungsverhältnis zu Sicherheit und
Gleichheit der Gesetzesanwendung gerät.”
how the application of canon law may be guided by mercy without margin-
alising the justice of legal certainty. Thus Radbruch’s argument emphasising
legal certainty as a demand of justice is a familiar idea in the church’s legal
theory.
But can this problem be solved? Radbruch’s considerations on the justice
problem of legal certainty resulted in the famous Radbruch formula, which,
for the constitutional state, attempts to secure a balance between prepositive
justice and legal certainty:
The conflict between justice and legal certainty may well be resolved in this
way: The positive law, secured by legislation and power, takes precedence
even when its content is unjust and fails to benefit the people, unless the
conflict between statute and justice reaches such an intolerable degree that
the statute, as ‘flawed law’, must yield to justice.165
If the church adopts this formula to decide which cases require global canon
law to be restricted to protect a local need, it establishes a strong position for
global law. Global law, then, has to give way to the local claim only if it creates
an unbearable conflict with justice in the local legal culture. Here John Huels’
admonition comes to mind, that a value protected by global canon law that is
not essentially relevant and directly important for the faith should not become
an obstacle in the local churches due to its incompatibility with their parti-
cular cultures.166 If global canon law collides with the culture of a local church
in such a way that it has to be regarded as unjust law, it must be restricted in its
validity and substituted by a regulation that meets the local need – despite the
fact that this raises the question of legal certainty.
What follows from this with regard to the questions raised in this chapter?
The instruments of legal flexibility – primarily equity as the principle of legal
application – need to be evaluated as means for mediating between the
centralism of the church and its local culturality. But thus far the church
has scarcely used them for this purpose. In this sense, Huels characterises them
as “quite useful, albeit underutilized, remedies”.167 Nevertheless, one should
note the methodological reasons underlying this reservation. Supporting
instruments of legal flexibility as instruments for correcting norms to better
suit cultural needs makes it necessary to explain exactly how they should be
used. Huels notices the limits of an intercultural hermeneutic of canon law,
also with regard to its methodological challenges, when he remarks “that given
165
Radbruch, ‘Statutory Lawlessness’, 7.
166
167
Ibid., 272.
the complexity of human beings and human society, there cannot be any
precise and concise methodology guaranteeing that canon law will always be
interpreted in the best possible way in each case and in every cultural
context”.168 Because a concise methodology that constructively deals with
the conflicting intersection of global canon law and local churches is not at
hand, regulatory considerations become important that specifically reflect the
process of implementing the global law in local churches. First, regulations on
authority are key, empowering local ordinaries to intervene against the Roman
dominance in local legal cultures if this becomes necessary for theological
reasons. These regulations are also important for clearly describing and limit-
ing the local ordinaries’ authority of intervention. Second, structures of parti-
cipation have to be generated that secure the local churches’ contribution to
identifying cultural conflicts and to developing solutions to solve them, thus
helping to express the people of God’s sense of faith for the right law. Opening
up the processes of legal reform for the idea of culture requires the church to
gradually transform itself into a learning church. Huels also hints at this: a
legal reform open to culture “requires listening to the people of God in the
local churches”.169 One key task in any future revision of global canon law –
and this might sound somewhat paradoxical – has to be a self-imposed
restriction of the law in favour of a broader authority for the local churches
in matters of lawmaking and receiving the church’s global law.
168
Ibid.
169
Ibid., 289.
5
Conclusion
5.1 a final remark

A global canon law which considers the peculiarities of local churches and
their particular needs in the legislation and application of the law will be
held responsible for fragmenting the ecclesiastical legal order and the
church as such, which is a community of faith in a legal structure.
Reducing the legal frame of the global church to the norms essential for
securing the unity of faith, establishing more local powers for the creation
of particular law, and applying global law with a local flavour also weaken
the idea of the universality of canon law and show that Catholic legal
thought might be closer to Protestant, Jewish, or Islamic approaches than
some might like. Having said that, I do not envisage this study as a
recommendation to fragment the church legally. Instead, I seek to empha-
sise that the idea of unity lies at the core of ecclesiology and at the core of
legal theory as well. Nevertheless, in a plural church of different ecclesiastical
cultures, it is questionable whether a more particularised approach to law can
be avoided. Safeguarding unity by uniformity risks a loss of legal effectiveness
and validity if it generates local incomprehension and alienation. In this case,
little is achieved. On the contrary: ignoring the essential historicity and
culturality of each law and, thus, its necessary particularity, may cause greater
loss than gain.
The Talmudic narrative on the rabbinic dispute over the oven of Akhnai, to
which I have made repeated reference in this study, is also well worth reading
on this issue, as is Daniel Greenwood’s article interpreting the story. On the
question how much fragmentation a legal order can tolerate and remain
effective, Greenwood turns to the oven itself as the matter around which the
narrative evolves. He interprets this fragmented object, about the purity of
which the rabbis quarrel, as a symbol of human law in the time after the
236
Conclusion 237
destruction of the Temple – that is, under the conditions of human contin-
gency, historicity, and culturality:
[J]ust as Akhnai’s oven has been created from the shards of destruction, so too
the rabbis have recreated their legal world. Prayer, acts of loving-kindness and
Torah study will replace sacrifice; kashrut will replace purity. The issue
before Eliezer and the rest of the first post-Destruction generation is the
status of this world made up of broken pieces cemented together over
a core of sand, a world without the comforting absolutes of Temple sacrifice,
divine revelation, and the certain knowledge that the Good and the True will
prevail.1
As a fragmented oven has to be put together again to be of any use, the law
under the conditions of time and history is never of one piece. It is the work of
human minds, which have constructed it with all the limits and faults of
human thinking. By disclosing this view on the Akhnai tale, Greenwood sheds
a constructivist light on the law and its application, yet he also relies on an
ontological realism. The absolute, the true, and the pure may be regarded as
a reality, but nonetheless the question remains whether they are at human
disposal. A practice of piety as well as a legal practice after the destruction of
the Temple – that is, under the conditions of time and history and intended to
serve the community and shape its future – can do so only with the fragments
of the absolute and can relate to the truth only by constructions. That this
approach towards the absolute will never be as pure as the absolute itself must
be tolerated. However, one may trust that the reconstructed reality is linked
with the absolute reality that precedes it.
Greenwood interprets the figure of Eliezer, who considers the rebuilt oven
to be impure, as fundamentally critical of constructivist approaches, as Eliezer
refuses to deal with a fragmented and reconstructed reality:
Eliezer’s position is the nihilism of the fundamentalist: all or nothing.
A reconstructed oven of broken pieces is no oven at all, just broken, mean-
ingless shards. It has no significance in the world of purity: it cannot convey
meaning to us . . . The rabbis, in contrast, are struggling to find meaning in
a world without the perfection that Eliezer demands, one in which all we
have to work with is broken vessels, without absolute truths, divine com-
mands or the rest.2
Whereas dealing with religious law under the conditions of fragmentation is

marked as inadequate by Eliezer, the other rabbis believe they have no
1
2
Ibid.
alternative. Their position symbolises the problem of religious law in its

tension between the absolute and the historicity of each law, which is
a fundamental challenge of religious lawmaking and application.
Greenwood counterpoints both alternative understandings of the Akhnai
oven in another context, where he explicitly refers to the problem of the law’s
historicity. He uses a rhetorical question to challenge his readers to decide
which view they would take:
Akhnai thus confronts familiar problems of unchanging law in changing
times. What does the law mean when the world is turned upside down?
Do we act as if the world has not changed even when it has? Or must we adapt
the law to accommodate new circumstances? Should we follow Eliezer,
teaching nothing that we were not taught by our teachers, as the best way to
maintain a tradition? Or must the law adapt, as Joshua contends, because
Eliezer’s literalism can preserve the tradition only in the sense that amber
preserves, killing the spark and keeping only the outer shell?3
In the same way, the narrative challenges the church to consider the future
quality of canon law. Is the law, as the amber metaphor suggests, to correspond
to amber, preserving absolute and indubitable answers, yet answers so far
removed from the people’s lives that nobody listens to them? Or will it allow
a lively plurality, thereby running the risk of compromising the absoluteness
and universality of its origin? The answer of Akhnai is clear: it depicts Eliezer’s
legal understanding, which preserves tradition in the same way that amber
preserves, as a way of arriving at a beautiful and uniform body – of dead law.
5.2 summing up: fifty theses
Natural Law: Plurality and Unity

1. Natural law as a founding approach to the law is not widely accepted in
modernity’s debates on legal theory. The term nature, as used in natural
law arguments, does not correspond with the term used in modern
sciences, as natural law understands nature to be a source of
normativity.
2. The normative content of nature is open to discussion and debate.
Although there are fundamental human goods – like life, caring for
offspring, property, and religiosity – the normative significance of
3
Ibid., 342–343.
Conclusion 239
which most cultures affirm, there is no consensus about the normative

consequences derived from them.
3. Approaches to natural law are therefore always plural. The content of
the natural ‘ought’ is a ‘matter of faith’, depending on philosophical,
ethical, and religious beliefs and predispositions.
4. It is possible to explain the plurality of natural laws by doubting that an
objective natural normativity exists (ontological doubts about the exis-
tence of natural law).
5. The plurality of natural laws can also be explained as a problem of
perceiving the existing natural normativity (epistemological problem of
perceiving natural law).
6. The Christian approach to natural law believes in the existence of the
naturally right, which is assumed as given by God the creator. Yet, as
with all human thought, Christian thinking is also challenged in
perceiving natural law.
7. The Catholic Church avoids plural natural laws by centralism, by the
magisterium’s generating a homogeneous doctrine on natural law.
The magisterium is comprehended as endowed with the authority to
teach authentically, interpreting the normative content of nature and
binding the faithful to its findings.
8. A formal natural law argument is therefore used to generate
a homogeneous body of Catholic natural law. This argument points
out the supernatural origin of the church’s governance, thus empower-
ing church authorities to perceive the naturally right and to decide
about the means of its normative realisation.
9. The supernaturally grounded governance of the church gives to the
church a ‘natural’ order. Because of this, the legal order of the church as
such may be regarded as the ‘natural law’ of the church.
10. Therefore, natural law in the church addresses two phenomena.
In a narrow sense, it applies to norms perceived by human reason
when studying natural things. In a broader sense, the legal order of
the church itself is a ‘natural law’, as it legally frames the natural order
of the church.
Criticism by the People of God

11. As local churches exist within plural societies, they face alternative
normative ideas. In this competition of ideas, the church’s positions
are taken to be unconvincing, especially when based on neo-Scholastic
natural law, as illustrated by a scepticism about the teachings on sexual

ethics, family, and gender ever since Humanae vitae.
12. The neo-Scholastic approach to natural law is criticised for two
main reasons: the ahistoricity of ecclesiastical legal thought, and
natural law positivism, including the conditions of natural
lawmaking.
13. Ahistoricity is supported by the neo-Scholastic resentment of empirical
thought. As a consequence, neo-Scholastic natural law struggles to deal
with the historicity and culturality of norms.
14. Especially with regard to norms considered to be prepositively founded,
historicity is seen as a threat, as something that relativises the truth
contained in the norms. For this reason, divine law is often thought of
as a static body of norms, detached from its temporal or cultural
context.
15. This static understanding of divine law presents a theological problem,
as an ahistoric understanding of the law misinterprets the incarnation
of divine norms into human law and, consequently, misses the funda-
mental incarnational structure of divinely founded law.
16. It equally presents a sociological problem, as an ahistoric and super-
cultural perception of the law conflicts with the secular understanding
of the law, creating communication problems between the official
church and society, including the faithful who are likewise members
of a society.
17. It also struggles with the modern idea of freedom. As the official church
mistrusts individual freedom as tending towards relativism, the church
perceives the truth as deindividualised and hands it over to the magis-
terium, whose findings the faithful are expected to receive with
obedience.
18. One criticism of this practice relates to matters of authority. As the
magisterium is likewise confronted with the epistemological problem
of perceiving the prepositive just, the question arises why the members
of the church hierarchy are better suited to recognising a prepositive
normativity than the other faithful.
19. Modern theology cannot provide a satisfactory answer to this question.
The theory of the sense of faith rather strengthens the idea that perceiv-
ing the truth in the church is a competence possessed by the entire
people of God.
20. These theological doubts are accompanied by political questions. As it
is unclear whether official norm-finding is based on perceiving prepo-
sitive norms or on a voluntarist norm-making, there is reason to suspect
Conclusion 241
the norm givers of acting positivistically and being strategically

motivated.
21. Further issues arise because universalistic arguments may easily be used
to secure power, the subjects’ duty to follow the norms is described in
the premodern dualism of command and obedience, and the hierarchy
rarely explains or justifies norms, especially legal norms, to the faithful.
22. In the church, this results in the successive diminution of the official
norms’ significance in general and of natural law in particular. Moral as
well as legal norms are widely ignored if they do not convince the
faithful.
23. With regard to the law, the ineffectiveness of unreceived norms under-
mines their validity. If the community’s acceptance of the law is one
precondition for its validity, its nonreception calls into doubt the very
existence of the law.
24. Insofar as, according to the Second Vatican Council’s ecclesiology, the
church in its earthly concretisation essentially takes on the shape of
a legal community, the nonreception of canon law by the faithful is not
only a question of the validity theory of the law but also an ecclesiolo-
gical issue: the loss of relevance of canon law has an ecclesiological
dimension.
A Modern Foundation of Law

25. Because of these problems, the potential of natural law arguments is
doubted in parts of the church and in theology. Nevertheless, there are
two core reasons for retaining it.
26. Recent legal theory reveals that natural law is reflected in the secular
debates on the foundation of law. Natural law itself is not isolated, as
illustrated by the human rights debate. Yet the church’s neo-Scholastic
approach to it does require revision.
27. Concerning theology, natural law answers to the problem of how an
individual might find grace in God’s eyes, even if he or she does not
know or accept revelation. In the discourses among Jews, Christians,
and Muslims, natural law is a resource, contributing to the develop-
ment of an inclusivist view of grace as a core issue in all Abrahamic
religions.
28. In any case, modernising the concept of natural law within the church
requires the historicity and culturality of each law to be revealed,
including natural law. As universalistic normativities are also shaped
by their historical and cultural context, natural law has to be reinter-

preted as a natural normativity in history and culture.
29. This especially challenges the global law of the church, the ‘universal’
validity of which is often explained by its supercultural character.
It must be recognised as a culturally impregnated law that at present
is mostly a result of the Roman Curia’s legal culture.
30. If the church understands the cultural plurality of local churches to be
ecclesiologically significant, then an imperialist legal colonialism over
the local churches through ‘Roman law’ can hardly be justified. Local
legal cultures have to be protected from marginalisation by
a hegemonic Romanity.
31. More subsidiary lawmaking could help to achieve this. In accordance
with the conciliar theology of the local church and the bishop’s office,
local legislators’ legislative authority has to be broadened to include all
matters which do not require homogeneous regulation as
a consequence of the church’s demand for unity.
32. In matters relevant for the church’s unity, the church remains depen-
dent on a shared legal framework. Yet the lawmaking procedures of the
global church have to be revised to overcome its monocultural one-
sidedness.
33. As law in modernity is not acknowledged as being legitimate without
the legal community’s participation in lawmaking, legislative proce-
dures have to allow the church members’ participation.
34. If direct participation is impossible, legitimising law by participation is
best achieved by representation. Representation is most convincing
when it uses a model of descriptive representation.
35. In a legal reform of the church’s global law, this requires a representa-
tion of the church as the people of God of different statuses and cultures
in the bodies of reform.
36. As questions of truth are involved in the core of canon law, the church’s
legislation has to relate to this truth. Therefore, legislative procedures
should aim at consensus, as unanimous decisions may lay claim to
truthfulness due to their intersubjectivity.
37. In the synodic theory of the church, the synod’s unanimity is its way of
expressing the consensus of the faithful as a way of proving a synodic
decision right. Consequently, synodic decision-making that pursues
a unanimous vote by the decision makers is preferable in discovering
the right law.
38. Unanimity, nevertheless, is hard to achieve. Instead of consensus,
majorities are more common. They can be understood as an intermediate
Conclusion 243
step towards consensus. In matters in which no consensus can be reached,

majorities help to obtain a decision.
39. As majoritarian decision-making can be wrong, a moment of control
has to be added to the synodic structure of ecclesiastical legislation to
ensure that the law is in concordance with the Christian faith and the
church’s tradition. This service of coherence has to be rendered by the
bishops and the pope.
40. Due to its historicity and culturality, the law is always temporary in any
case. Therefore, it is necessary to deal cautiously with all legal truth
claims. References to the ‘universal law’ of the church should therefore
be approached critically and should be replaced ideally by the term
global law.
41. The temporariness of the law reflects the need for a continuous accom-
panying discourse. To integrate church members into this discourse,
they must be empowered to critically examine the church’s law to
establish whether it finds the consent of the faithful.
42. To enable this to happen, legal norms must be designed to be under-
stood by the faithful. This requires that legal language be clear and that
globally relevant laws be translated into the world languages. Legislative
acts must be explained, as the plausibility or implausibility of norms is
best revealed by the way they are justified.
43. In any case, justifying legislation is an essential requirement of modern
canon law, as in modernity each restriction of freedom, like law, must
be justified. This is particularly important for the church, grounded as
it is on faith, which by necessity must be free.
44. The link between faith and freedom necessitates the abandonment of
command and obedience as the premodern approach to legal compli-
ance. The lawgiver’s command is to be replaced by persuasive argu-
ments convincing the faithful to consent to the law.
45. This process is related to the idea that canon law is effective and valid
only when it is received by the community. The local community’s
consent – given when global law is adopted into the local legal prac-
tice – is one form in which the faithful’s consensus, consensus fidelium,
is expressed, indicating that the law is right.
46. Only those norms that are compatible with local legal cultures are
likely to find consent in local churches. To protect the effectiveness
and validity of canon law, the global legislator depends on developing
culturally sensitive law that may be accepted in local churches.
47. To prevent culturally unacceptable law from harming the local church
and its members, the validity or effectiveness of global norms in the
local churches must be restricted in cases of theologically relevant

conflicts by instruments of legal flexibility.
48. To solve such cases, instruments of legal flexibility are already in use
today. Customary law and the bishop’s right to remonstrate both con-
front the global law of the church with local needs. Incompatibilities in
single cases might be addressed with dispensation, epiky, and equity.
49. Nevertheless, the theological dignity of local churches requires these
flexibility options to be improved. When global canon law threatens
matters of salvation or the common good in a local church, the law’s
validity claim has to be breached.
50. Concerning the validity of the law, consideration might be given to
expanding the bishop’s right of remonstration. In applying the law,
equity may be discovered in its potential for correcting norms.
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Index
Absolutism. see Governance Civil law, 11, 215–216

Ad gentes Code of Canon Law
no. 2, 65, 161 canon 5, 145
no. 9, 65, 161 canon 6, 145
Akhnai. see Oven of Akhnai canon 7, 97, 110–112, 158
American Catholics Today, 97, 109 canon 11, 130
Anti-legalism, 51–52, 59–60 canon 12, 146, 153
Aristotle, 35, 36, 40–43, 45, 138, 226–227 canon 16, 150
Ash’arites, School of the, 25–26, 127 canon 17, 150, 152, 224–225
Augustine, 35, 36, 37–38, 42 canons 17–19, 152
Autonomy. see Freedom canon 20, 145, 153, 166, 167
Aymans, Winfried, 93–94, 176–177 canon 23, 223
canon 24, 222
Beinert, Wolfgang, 110, 111, 112, 113, canon 26, 145
210–211, 215 canon 27, 223, 232
Benedict XVI, 7, 8, 95, 106, 107, 116–117, 182 canon 51, 205
Biblical references canons 85–88, 225–226
1 Corinthians 11:23 and 15:1, 210 canon 129, 90
Acts 2:37–42, 210 canon 135, 145
Acts 15:1–35, 217 canon 212, 19, 64, 97, 111
Deuteronomy 30:11–14, 37 canon 218, 49, 64
Extodus 23:2, 198 canon 227, 49
Exodus 24:3, 187 canon 274, 90
Galatians 2:1–10, 217 canon 331, 60, 74, 88
Genesis 1:28, 39 canon 337, 60
Matthew 28:19–20, 161 canon 368, 77
Romans 1:19–20, 131 canon 369, 77
Romans 2:14–16, 36–37 canon 372, 77
Romans 7:23, 131 canon 381, 145, 220
Bier, Georg, 23, 73, 74–75, 137, 220 canon 391, 60, 220
Blankenburg, Erhard, 134–135, 137 canon 393, 88
Böckenförde, Ernst-Wolfgang, 38, 51, 66–67, canon 754, 97
140–141 canons 748–754, 64, 69–70
canon 924, 171, 172
Christus dominus, 58, 168, 226 canon 1009, 57, 95
Church and state, 43–47, 62, 66–67 canon 1024, 90
267
268 Index
Code of Canon Law (cont.) Gaudium et spes, 104, 159

canon 1108, 171 Geertz, Clifford, 133, 135
canon 1254, 61 Governance
canon 1260, 61 Absolutism, 45, 73–79, 87, 96
canon 1311, 61 Centralism, 77–79, 157–161, 163, 169, 170, 215
canon 1404, 74 Hierarchical governance. see Hierarchy
Papal redaction, 83, 85, 94–95, 149, 175, Natural governance, 40–43, 51, 69–70, 107
177, 200 Power of governance, 57–58, 235
Preface, 51, 82–83, 84, 86, 91–93, Grace. see Salvation
168–169, 170 Greenwood, Daniel, 33, 34, 187, 197–198, 203,
Principles of Revision (1969), 53, 61, 168, 170 236–238
Reform process (before 1983), 82–95, Gruber, Judith, 47–48, 49, 142–143, 160
147–149, 175–178
Sacrae disciplinae leges, 83–84, 86 Habermas, Jürgen, 133–134, 137, 186–191, 199
Coherence theory of truth, 185–186, 198–201, Halakha. see Judaism
205, 223 Hesse, Konrad, 230–232
Common law, 11, 194, 215 Hierarchy, 40, 41, 49–50, 57–58, 69–70, 71–72,
Congregation for the Doctrine of the Faith, 78, 73, 82, 183, 198–201
92, 93, 106–107, 147, 182 Hollerbach, Alexander, 22, 43, 44, 50
Consensus, 24, 67, 113, 142, 157, 178, 184–204, Huels, John, 79, 104, 139, 148, 154, 160–161,
211, 220–221 164–166, 172, 208, 209–210, 211–213, 214,
Consensus theory of truth. see Consensus 215–218, 224, 234–235
Council of Chalcedon, Christology, 30, 55–56 Human rights, 5, 26–27, 64, 119, 122, 127–128,
Criticism of the law. see Anti-Legalism 137–138
Custom, 114, 145, 146, 157, 159, 218, 219, Equality, 64, 122
222–223, 232 Religious freedom. see Freedom
Customary law. see Custom Humanae vitae, 106, 107, 108, 110, 194
Decretum Gratiani, 23, 42, 219 Immortale Dei, 46–47, 50, 61

Dignitatis humanae, 99 Incarnation, 30, 53, 55–56, 130, 142–143, 162, 165
Dispensation, 18, 23, 29–31, 218, 225–226 International Theological Commission, 2, 4,
Divine law, 8, 15–34, 71, 75, 126–127, 170, 72–73, 113–114, 131–132, 143, 162, 163,
187–188, 196, 221, 222, 225, 229 178–179, 182, 199
Donum veritatis, 182–183 Interpretation, 32–34, 69, 73, 95, 133, 137,
150–153, 157–158, 205, 209, 215, 216, 218,
Effectiveness of the law, 8, 13, 101–102, 105–109, 223–225, 232, 235
116, 119, 166, 206, 218, 233, 236 Interreligious dialogue, 27, 29, 124, 132
Emon, Anver M., 29, 122, 127 Islam, 15, 16, 23–27, 28, 124, 157–158, 236
Ethics, 9, 10, 22, 26–27, 106–109, 117–118, Islamic law. see Islam
119, 121 Ius divinum. see Divine law
Ius Publicum Ecclesiasticum, 9
Farley, Margaret A., 107, 111
Ferrari, Silvio, 15, 16, 30–31, 42, 129, 157, 158–159 Jewish law. see Judaism
Foljanty, Lena, 10, 11, 60, 120–121, 140 Judaism, 15–16, 27–29, 31–34, 124–127, 157–158,
Forsthoff, Ernst, 1, 44 196–198, 236–238
Francis, 161, 169, 185
Freedom, 48–49, 67, 80–81, 91, 98–100, 102, Kehl, Medard, 55, 75–76, 78
104, 122, 132 Kelsen, Hans, 6, 15, 16, 39, 68
Freedom of science, 64–65 Kistner, Peter, 18–19, 21–22, 23, 78, 80, 81,
Religious freedom, 62, 63, 64, 128 169, 170
Index 269
Law of the Sacraments. see Sacraments Oven of Akhnai, 31–34, 196–198, 236–238
Lawgiver. see Legislation
Legislation, 11, 13, 20, 71, 82–97, 132, 146–151, Participation, 79–91, 114, 149, 179–180, 221, 235
155, 157–160, 166–173, 174–209, Representation, 81–91, 175, 176–177, 178–181,
220–221, 235 200–201
Leo XIII, 46–47 Paul (Apostle), 36–37, 131
Levering, Matthew, 3, 29 Perfect society, 43–47, 51–52, 53, 58, 60–62, 63,
Lex Ecclesiae Fundamentalis, 94 73, 206
Locke, John, 84, 119–120 Pitkin, Hanna F., 81–82, 85–86, 87–90, 180
Lüdecke, Norbert, 23, 73, 74–75 Plurality
Luhmann, Niklas, 34, 64 of natural law, 6, 7–8, 34, 39–40, 68
Lumen gentium of the church, 8–9, 13, 76, 156, 159–161, 163,
no. 8, 53–57, 62–63, 68, 76, 115, 116, 130 170, 174–176, 177, 179, 181, 183, 201–202,
no. 12, 178 209, 224, 236–238
no. 16, 129 Pontifical Council for Legislative Texts, 95–96,
no. 18–29, 58, 69, 168 150, 152, 202
no. 20, 58 Positivism of natural law, 50–51, 59–60, 63,
no. 23, 76, 155, 220 68–79, 100, 132
no. 26, 76, 155, 220 Postwar debates, 1, 6, 10, 12, 19, 59–60, 120–121,
no. 28, 57 140, 233–234
no. 31, 104, 159, 180 Power
Papal power, 74–75, 85, 88, 169, 175, 178,
Magisterium, 11, 40, 42, 49, 65, 69–70, 71–72, 200, 205
73, 106–109, 199 Power of governance. see Governance
Maimonides, 28, 125–126, 129 Validity reason of power, 6, 42, 79–80, 91,
Majority rule, 32, 34, 181–185, 189, 190–191, 96, 144
194–198 Presbyterorum ordinis, 57
Mendelssohn, Moses, 125–126, 128
Möllers, Christoph, 4, 33, 54–55, 62, 68–69, 75, Quadragesimo anno, 168
150, 192, 193 Qur’an, 24–25, 27, 127
Moral norms. see Morality
Moral theology. see Ethics Radbruch, Gustav, 233–234
Morality, 10–12, 25, 27, 66–67, 124, 130–132 Reason, 21, 23, 24, 25–26, 28, 31, 34, 44, 122, 126,
Mörsdorf, Klaus, 22–23, 25, 58, 130 130–132
Mu’tazila, School of, 25, 26, 127 Law of reason, 24, 43–44
Müller, Hubert, 98, 111, 114 Reception, 109–115, 118, 150, 153, 205, 206,
Müller, Ludger, 9, 23, 100–101 209–235
receptio legis, 110, 114, 220
Natural goods, 3, 4, 121, 122–123 Representation. see Participation
Neo-Scholasticism, 47–52, 59–60, 68, Revelation, 8, 9, 21–29, 31, 124–132, 142, 203, 211,
106, 132 213, 237
New Natural Law, 38, 106, 119, 121 Rosa, Hartmut, 48, 70–71, 80, 159
Noachide law, 29, 124–127
Novak, David, 28–29, 72, 126–127, 132–133, Sachedina, Abdulaziz, 25, 26–27, 127–128
138–139, 141, 143, 144, 154 Sacrae disciplinae leges. see Code of Canon
Law: Sacrae disciplinae leges
Obedience of the faithful, 49, 65, 69–70, Sacraments, 16, 101, 170–172, 208
97–100, 105, 107, 108, 110–111, 206–207 Salvation, 11, 16–19, 38–39, 65, 101, 123–132, 143,
Ordinatio sacerdotalis, 108, 194 162, 170–171, 217, 225, 227, 229
Orsy, Ladislas, 17, 18, 50, 52, 56, 79, 97–100, 111, Scharr, Peter, 112–113, 141–142, 183–184, 186, 187,
146, 156, 162, 163, 170, 179, 207, 209, 223 190–193, 195, 199, 220–221
270 Index
Schockenhoff, Eberhard, 3, 117–118, 192, 204 Unanimity. see Consensus

Schreiter, Robert, 133, 138–139, 142, 164–165, Unity of the church, 13, 68–70, 73–74, 75, 76,
210, 211–213, 214, 230 79, 155–156, 157, 158, 166, 168–169,
Sense of faith, 12, 112–115, 142, 178–179, 182–184, 170–173, 174–176, 177, 200, 205, 215,
187, 191, 194, 195, 209, 211, 220–223, 235 217, 223, 224, 229–233, 236
Sensus fidelium. see Sense of faith
Shari’a. see Islam Validity of the law, 8, 13, 109–112, 116–173, 204,
Societas perfecta. see Perfect society 206, 215, 216, 218, 220–221, 225, 226, 232,
Sohm, Rudolf, 52 233, 236
Teaching authority. see Magisterium Weber, Max, 36, 43, 99,

Tertullian, 38–39 117–118
Thomas Aquinas, 29, 30, 35, 38, 42–43, 48, 50, Wolfe, Christopher, 49,
119, 227 122–123

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church law in modernity

Books in the series

Cambridge University Press is part of the University of Cambridge.

Preface and Acknowledgements page ix

solutions. So it is helpful and necessary to consider how Jewish and Islamic

intimidating. As an Academic Visitor at the Faculty of Theology and Religion,

natural law as a matter of faith

Being defined by this and other normative pre-decisions, nature – even if

ontology and epistemology

avarice” are “universally recognized as calling for condemnation”11 in all

plurality and homogeneity

community is a homogeneous entity, is somewhat misleading. Church mem-

normativities: law and morality

lawyer’ as a warrant against the return of injustice”32 achieved prominence.

a norm perceived as a divine order by the magisterium or by the faithful’s sense

aim of the study and method

taking into account the diverse perspectives of philosophy and

theologians and legal scholars, as it is certainly my intention to reach beyond

Nature As a Source of Validity for Religious Law

1.1 divine law in the abrahamic religions

between Kelsen’s approach and the foundation of religious law is limited,

Religious Law and Grace

Divine Law As a Source of Norms

As the legally logical expression of a differentiation between the divine and

rule or a group or even a system of positive legal norms.”21 Süsterhenn explains

Consequently, with respect to positive law, Süsterhenn differentiates on one

Revealed Law and Natural Law

Natural Normativity in Islam

God.33 The textual sources of revelation serve as primary sources of legal

the perspective of a theology of creation. This theological background has to

therefore opted for a “theological voluntarism that vindicated the primacy of

The Noachide Laws As Natural Law

animals – as the Jewish concretisation of natural law:49 “These principles

God’s Commands in Human Norms

historicity and contextuality of promulgating and applying norms, dealing

“praecepta communia” (Summa Theologiae I–II, question 97 article 4),61 of the

Akhnai: Divine Law in Changing Times

persuade them discursively. Even God becomes involved to show that

Niklas Luhmann takes a similar view when he describes the interpretation

1.2 landmarks of catholic natural law

The Christian Adoption of Natural Law

Augustine combines pagan legal philosophy and genuine Christian thought.

materially understood as natural show a connection between a theology of

From Factual Issues to Issues of Competence

It was particularly Aquinas’ reception of Aristotle’s thought which was of major

well as in the light of soteriology. This thought became powerful in a twofold

Church and State: Competing Orders

of its value in a religious community such as the Catholic Church today.

Besides polemically criticising modern legal orders, the church invested

everything necessary to perfectly establish and exercise their government. This

Neo-Scholastic Natural Law

nature and supernature, transcendence and immanence, universality and

Marsilius of Padua.112 Similarly, the political scholar Christopher Wolfe – in

Criticism of the Law and Anti-Legalism

1.3 the recent foundation of canon law

The Church As a Complex Reality

same time, an unresolvable tension arises in speaking of ‘the church’:

Referring theologically to the heavenly church as a theological entity is for the