On the role of canon law

Several current commemorations also invite reflection on the role of canon law: the 500th anniversary of the death of Cardinal Cisneros and the beginning of Luther's reform, and the 100th anniversary of the first code of 1917.

Nicolás Álvarez de las Asturias-December 2, 2017-Reading time: 9 minutes
Book of canon law.

A good part of the last century was spent by canonists trying to justify the legitimacy of their task. Not a few considered that canon law was opposed to the teachings of the Gospel, to the Church willed by Jesus and guided by the Holy Spirit. Ultimately, it was considered an eminent expression of the worldliness into which it had fallen. Its disappearance was postulated as an indispensable requirement if the profound renewal of the Church was to be truly achieved.

The doubt that is still lingering

It is true that as the teachings of the Second Vatican Council were received more calmly and, above all, after the promulgation of the new Code in 1983, objections began to diminish and canon law seemed to acquire a new citizenship and a certain legitimacy. In addition, many prominent canonists reflected on the foundations of their science and offered a much more profound and well-argued vision of the role of canon law in the history of canon law. essential in the life of the Church.

However, neither the new Code nor the contribution of canonists have finally dispelled the doubt. The contrast between law and mercy, rigidity and flexibility, are legitimate ways of explaining the newness of the Gospel and a strong shock for the Church to know how to be always at the service of man, of every man. But only colloquially can it be said that canon law is the defender of law and rigidity, in the sense of the oppositions indicated. Indeed, if we turn to the classics, law appears as what belongs to everyone, what is due to him in justice; and if we turn to the great events that shaped our culture in its most recent version, law appears as what guarantees the equality of all men and protects them from the excesses of the powerful. Something similar must be said of its role in the Church, but not only.

In 2017 several historical commemorations have coincided that allow us to reflect on some aspects of the role that canon law plays in the ecclesial community. In light of them, it is hoped to be able to dispel, at least in part, the doubt about its legitimacy and usefulness, as well as to illuminate the meaning of the latest changes introduced by Pope Francis in ecclesial discipline. As can be seen, it is a question, once again, of having recourse to history as magistra vitae.

Two relevant episodes of the 16th century

2017 marks the 500th anniversary of both the death of Cardinal Cisneros and the beginning of Martin Luther's reformation. Both events speak of the reform of the Church, albeit with profoundly different accents. In both, the role of canon law was relevant and illustrative for understanding its function in the ecclesial community and its foundation.

a) Cisneros, paradigm of Spanish reform

Cardinal Cisneros (1436-1517) is one of the great reformers of the Church in Spain and one of those who made possible the significant contribution of our country to the Council of Trent. An observant Franciscan, he understood, also vitally, that any reform consisted fundamentally in the return to the origins; origins that, with the passage of time, were in fact distorted, thus disfiguring the face of the Church. Along this path, both Cisneros and the rest of the Spanish reformers perceived in canon law a double function and, at the same time, a limit.

The first function is gnoseological, since the original charism, at least in religious orders, was embodied in the primitive rule. We must return to it. Indirectly, it is assumed that the law did not denaturalize the charisms, but preserved and consolidated them in the face of the passage of time. 

The second is disciplinary. The law may be said to embody the existence in the Church of a potestasIt is endowed with sufficient means to preserve it from any deviation from what it understands to be a gift received from the Spirit, and to correct the course when such deviations have occurred. Canon law does not appear, therefore, as contrary to the work of the Spirit, but as an instrument to protect and, if necessary, to return to this divine design. This power, in the hands of legitimately constituted pastors (the Pope and the bishops), must be exercised as an essential part of the mission they have received from Christ.

The limit comes from the realization of the ineffectiveness of laws when there are not those who want to apply and live them, and it can only be overcome through adequate formation; of pastors, in the first place. The foundation of the University of Alcalá - not specialized in law - is significant of the genius of the Spanish reform, based first on the formation of people rather than on the promulgation of laws or the creation of institutions: a permanent challenge and lesson, so that canon law can truly play its role.

b) Martin Luther and his "parable" in canon law

If for Cisneros canon law is a source of knowledge of the direction to be taken by the reform and an instrument (even if limited) to achieve it, for Luther (1483-1546) it is the opposite.

Just as the beginning of the Protestant Reformation is linked to an event of tremendous visual force (the posting of the 95 Theses on the door of the Wittenberg Palace church), its evaluation of canon law is marked by another event of no lesser force: the burning at the stake of the corpus iuris canonici on December 10, 1520. Canon law was considered to be an instrument of the Pope, specifically the one with which he held in check both the liberties of the churches and of Christians, as well as the Gospel itself: "If their laws and rites are not abolished, and their liberties restored to the Churches of Christ and diffused among them, they will be guilty of all the souls that perish under this miserable captivity, and the papacy is truly the kingdom of Babylon and of the true Antichrist."he would come to affirm. The initial abolition of all canonical discipline, however, led the reformed communities to organizational chaos and disorder in substantive matters, which also affected public morality. Hence, some provisions that were essential to ensure order in the new communities soon began to be "rescued" from the burned books. Luther himself enthusiastically supported these attempts: "There are many things in the Decretum of Gratian... which are of exceptional value... because in them one can perceive the state of the Church as it was in antiquity, in its origins.". In this way, Luther's thinking on canon law traces a parable, from its most absolute rejection to the recognition of a double usefulness: as a source of knowledge of antiquity and as a discipline that guarantees order.

This recognition is not of the potestas which would be at its origin. In this Luther will remain firm, entrusting ecclesiastical legislation to the temporal authorities: hence his reform cannot be considered "true" (following Congar's terminology), since it in fact breaks communion. However, as far as the foundation of canon law is concerned, the Protestant reformers attuned to and spread a conviction always present in the canonical tradition, the existence in canon law of dispositions that do not derive from pontifical authority, but from divine law, to which even the pope must be subject. These divine provisions will be assumed by the reformers who will consider them - like the Catholics - binding not only for the Church, but also for the civil orders. Thus, the new modern law, which was beginning to emerge in those years, would receive as its ultimate foundation a natural law, whose source of transmission had been canon law.

The lessons of the last hundred years

If the aim of canon law, as it is perceived in the 16th century, is to preserve the original reality, to bring it back to the original reality and to guarantee the ecclesial order, knowing that it is founded on the very authority of God and on the power that He has entrusted to the pastors of the Church, the permanent issue is how to make it happen in fact that function. Both the commemoration of the first centenary of the first canonical codification and the successive reforms that have marked the 20th century and so far in the 21st century shed light on the issue.

a) A cognizable and enforceable law: the 1917 Code

The First Vatican Council (1869-1870) was the occasion for many bishops to ask the Pope to carry out a work of synthesis of the canon law then in force, since it was almost impossible to apply, given the dispersion of laws in collections of diverse nature and their accumulation without the most recent ones necessarily abrogating the older ones. 

This suggestion was carried out by Pope St. Pius X (1903-1914), who began and practically completed the work of preparing the first Code of Canon Law, promulgated one hundred years ago by his successor Pope Benedict XV. It was an adaptation both to the doctrine and to the needs of the Church of a technique that had practically conquered continental law, and which was especially necessary since, unlike the secular codes, the canonical code accepted the superiority of divine law, was interpreted in the light of the preceding tradition, and regulated the life of its members taking into account the differences that the reception of the sacrament of orders or religious profession introduce in the field of rights and duties within the ecclesial community. Thus, the assumption of the codifying technique was not made without due discernment of what might be incompatible with the specificity of the law of the Church.

The commemoration of its first centenary has allowed us to reflect on the advantages and disadvantages that this decision has had for canon law and its specific service to the Church. Here I am interested in pointing out just two advantages, which were at the very origin of the decision to codify ecclesiastical law: canon law became from then on an easily knowable and applicable law; two essential characteristics of a reality with an eminently practical purpose (to carry out what is to which must be).

b) Church law: the Second Vatican Council and the Code of 1983

The specificity of canon law with respect to any other juridical order has to do with the peculiarity of ecclesial society. This is a permanent conviction that can be verified in the close relationship that exists between the Church's conception of herself (expressed in ecclesiology and in an authoritative way in magisterial expressions of an ecclesiological nature) and canon law in every historical epoch.

It is understandable that the celebration of the Second Vatican Council (1962-1965), with its profound ecclesiological renewal, postulated an equally profound renewal of canon law. Blessed Paul VI went so far as to speak of a novus habitus mentisThe Code of Canon Law, as a necessary requirement to translate the conciliar renewal into law. St. John Paul II characterized the result of this effort - the 1983 Code - as a translation to the juridical language of the Council's teaching on the Church, which can be seen both in the new system and in the wording and content of the canons. The juridical character (due) of the great specifically ecclesial goods, such as the Word of God, the sacraments and ecclesial communion itself, is expressed with great clarity, and the elements of a more "practical" nature, such as processes or penalties, are ordered to their protection and guarantee.

In this way, the new Code highlights another of the indispensable conditions for canon law to fulfill its mission: it must also be profoundly ecclesial, rooted in its mystery; otherwise, it would not be true law, but a mortifying structure.

c) An effective law: Pope Francis' reforms

Thirty-five years have passed since the 1983 Code was enacted. This is more than enough time to verify whether another of the essential characteristics of law has been fulfilled: its effectiveness, which is the characteristic of any practical science, called upon to transform reality.

It seems unquestionable that, together with the importance of synodality as an inspirational category (cf. what was said in Word, November 2016), the reforms of Pope Francis also move in the field of achieving a more effective canon law. It seems to me, in fact, that this is one of the priorities of the reform of the processes for the declaration of the nullity of marriage, but also of the adaptation of some canons of the Latin code to that of the Eastern Churches (cfr. M.p. De concordia inter Codices, 31-V-2016) and, lastly, the recent modification of the competencies of the Holy See in relation to liturgical translations (cf. M.p. Magnum principium, 3-IX-2017). 

With all these reforms, and with the long-announced reform of criminal law, modifications are introduced in the 1983 Code, seeking to enable it to fulfill its purpose of protecting the great ecclesial goods and, above all, to contribute more effectively to its ultimate mission, which is none other than the salvation of souls, of every soul.


Canon law, which in the eyes of non-specialists may still appear suspicious or even alien to the nature of the Church and an obstacle to its mission, emerges in a completely different way if it is considered in the light of the teachings of history, even when they are as partial as those offered by the happy coincidence of some significant commemorations.

Of course, Luther's case even highlights his absolute practical necessity. But it also indicates its ultimate foundations beyond an earthly power and its close dependence on a divine right that must be guaranteed and never violated. The Spanish reform of which Cisneros can be considered a paradigm, reveals its value for knowing the original moment and for keeping the Church faithful to that moment (or returning her to it). Also the existence, by the will of Christ, of a potestas The experiences of the past century and of the present illustrate, finally, the fundamental characteristics that canon law must have in order to fulfill its mission. The experiences of the last century and of the present illustrate, finally, the fundamental characteristics that canon law must have in order to fulfill its mission: its rootedness in the mystery of the Church, its knowability and applicability, and finally, its efficacy.

It appears, then, as a constitutive dimension of the Church in its historical journey and an indispensable instrument for it to fulfill its mission. The permanent value of the intuition of the Spanish reformers is thus understood: the need for learned pastors, with a deep sense of justice and equity, who know how to adequately preserve the great goods with which God has endowed his Church for the salvation of souls.

The authorNicolás Álvarez de las Asturias

San Dámaso Ecclesiastic University (Madrid) - [email protected]

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