Visioli - Theology of Law (Prepared: Hastings)

Question 1

What are the three Catholic schools from 1700-1900?

Answer 1

Ius Publicum Ecclesiasticum (IPE)
Exegetical School
Juridico-Dogmatic (Italian) School

Question 2

Describe the thought of the Ius Publicum Ecclesiasticum school.

Answer 2

In general: Ebi societas ibi est ius. Ecclcesia societas est. Ubi ecclesia ibi est ius. So, the Church is a state sui generis, and does not depend on any external order to accomplish its ends or to give it legitimacy. It recognizes no superior power. Note that this school predominated for a long time, and it is not bad, but simply incomplete. Vatican II does not refer to the Church as the societas perfectas, so the context has changed significantly.

Question 3

Describe the important authors/texts for the IPE.

Answer 3

Two sword theory: Gelasius, Gregory, Augustine

Leo XIII, Immortale Dei

Question 4

Describe the strengths & weaknesses of the IPE.

Answer 4

Strengths: It defends the freedom of the Church against encroachment. It makes dialogue with the world, i.e., state-to-state, possible

Weaknesses: While the Church is a state, this is not its primary identity. This approach can neglect the sacramental, Christological nature of the Church. It can depend too much on secular legal theory over and above revelation and theology. It can be reduced to voluntarism, i.e., the Church is this way because Deus lo vult.

Question 5

Describe the thought of the Exegetical school.

Answer 5

This school grows out of UPE. After the Napoleonic Code (1804), Pius X calls for codification ( d. 1914). Divisions here are based on persons, things and actions, rooted in Roman law.

This is system is as important for what it abrogated as what it promulgated. Law is now fixed, and its study regards shaping life to law, not law to life.

Question 6

Describe the strengths & weaknesses of the Exegetical school.

Answer 6

Strengths: The law becomes comprehensible and accessible, for use and study.

Weaknesses: This school tends to study norms and not foundations. Also, the code can ossify, while life moves on (NB: CIC17 and CIC83).

This school is still around, since it’s a big part of what we study today (basta legge il canone).

Question 7

Describe the thought of the Juridico-Dogmatic Italian Lay school.

Answer 7

This was born in secular universities, in Italy and Spain, where, after the decrease of anti-clericalism and the CCI17. Once the code was available, it was studied by itself, without reference to wider ecclesiastical law.

This approach did not consider the underpinnings of canon law, such as divine law, natural law, etc. The foundation was basically positivist–canon law is the law because the Church’s authority says so.

Question 8

Describe the strengths & weaknesses of the Italian school.

Answer 8

Strengths: The school looks deeper into foundations than did the exegetical school. It also widely diffused knowledge of canon law.

Weaknesses: No theological foundation is explored, so positivism cannot be escaped.

Question 9

What is the cumulative effect of the three Catholic schools of law?

Answer 9

Visioli: Over time, law and theology become separated. This is partly do to the Church’s self-knowledge and partly to do anti-nomianism. Vatican II becomes the moment of re-conversion.

Question 10

What were the four main Vatican II challenges to canon law?

Answer 10

1. Revision of the Code
2. Dealing with anti-juridicism (anti-nomianism)
3. New horizons in ecclesiology
4. A fuller insertion of canon law into the mystery of the Church

Question 11

Describe the relationship between communio and societas perfecta.

Answer 11

The Church is a societas perfecta. However, it is primarily a communio. The s.p. starting point is great for autonomy and law, but not so great for explaining theological underpinnings. It is easier to ask Revelation about communio than s.p..

Question 12

Describe the program of Concilium.

Answer 12

1. Theology gives law its prejuridic base and its metajuridic end, the salvation of souls.
2. The juridic norm is relative, the theological absolute.
3. Law is for service; it is derived from Revelation.
4. The theologization of law makes it like theological truth, i.e., immobile. Thus, life is made immobile, too.
5. Only theology works in the field of Revelation.
6. Law is a church order and is not binding; it is descriptive, not prescriptive.

Question 13

Respond to Concilium:

Answer 13

1. Revelation gives the end of law, not theology.
2. Theological norms and juridic norms can be both absolute and relative. (Theology: content/formulation)
3. This category of service is Protestant and without Catholic origin.
4. The idea that immobile law makes life immobile denies divine law.
5. Hmmm…
6. Corecco says this is not Catholic.

Question 14

Describe Luther’s view on Law.

Answer 14

Law is opposed to Gospel.
Both come from God to men.
Both are good.
But, there are two kinds of men in two kingdoms, that of God and Babylon.
First kingdom is by faith alone. Second is anything else.
The law has no value for salvation.
The disorder of the second kingdom is what necessitates law.

Question 15

Describe Sohm on law.

Answer 15

This is a radicalization of Luther. He divides history into three periods (1st C, 1st-12thC, 12thC to now) (Charisma, Juridic Order, Sacraments)
Gap between two churches is so big that there is no contact. The real church is completely spiritual.

Question 16

Describe Klein on Law

Answer 16

Further afield than Luther and Sohm. Here, law is used as a tool of possession and passion. First, man controls faith via dogma. Then, he controls faith by the juridic norm. The problem is that the Cross requires no mediation via dogma and law; just stand before the Lord.

Question 17

Respond to Luther.

Answer 17

Ghirlanda says that the fundamental response is in anthropology. The question to ask is, “If man is so depraved and sinners cannot be led to salvation, why the Incarnation?” What about James, John, and Hebrews?

Second, considering law, we can say that Luther’s position is a clear break from earlier positions held since the beginning. Even in the Garden, there is law. After the garden, there is law given by Christ which fulfills the old and deepens it with the new. The Sermon on the Mount is not reducible to charity alone. The rejection of the idea of two churches comes from the Church’s continuation of visible and mystical aspects of the Incarnation.

Question 18

Respond to Sohm.

Answer 18

While it is the case that Sohm was responding to a perceived positivism, his givens are incorrect, i.e., that law comes only from man, the early Church was only charismatic without law, etc.

When the Word is incarnate, He accepts law and institution. He gives law and institution. If we say that the Cross destroys law and gives direct access to God, we forget that the Cross only happens via the incarnation. All that is human participates in the redemption, and law is part of this.

Question 19

Describe Morsdorf’s views.

Answer 19

Founder of the Munich School.

Chief insight: The foundation of law is not social philosophy, but the self-understanding of the Church. He and his school want to avoid resting canon law on natural law or voluntarism, but on ecclesiological roots, i.e., word and sacrament.

1. Jesus is the primitive sacrament as the God-man. The Word is verbum dei ad nos, and is intrinsically binding (truth) and extrinsically binding (divine authority). 2. The Word must take visible form. He brings communio and continues it in the Church, which has its visible expression in law. 3. These two points are the foundation of order and jurisdiction. Also, if you don’t need law, you don’t need the incarnation.

Method: Canon law is a theological discipline with a juridic method.

Question 20

Respond to Morsdorf.

Answer 20

Generally, very good, especially starting point and word/sacrament.

Difficulty: Method. Method should be determined by object, says Corecco. If not, how can canon law speak with other types of law? Also, there needs to be a further development of the role of anthropology in Munich system. The order demanded by the word takes the form of rights and duties because it refers to man.

Question 21

Describe the North American School (CUA)

Answer 21

Orsy is the main scholar. (b. 1921. School founded 1889)

In theology, the Church contemplative is speaking to the people, and in canon law the Church active is guiding the faithful. There are not, however, two churches; one and the same Church is contemplative and active. The two operations blend into one without losing their distinctive characters.

Law: A statutory definition: a set of norms created by reason enlightened through faith, it intends to bring order into the life of the ecclesial community, it is articulated and promulgated by those who are entrusted with the community’s care, and its purpose is to serve the common good.

WHY IS THIS SCHOOL CALLED “PRACTICAL”?
Law answers the question: What ought to be done? It is based on this point of Örsy: As faith moves the community to seek insights into the mysteries, so the same faith prompts the community to organize itself and to create norms of action for the reception of God’s gifts. Faith, however, does not articulate the norms: our practical reason does, with the help of some divine wisdom revealed to us and some human ingenuity brought into play.

Question 22

Assess the North American school.

Answer 22

This is difficult, as I [Hastings] find Örsy’s presentation to be reasonable. I’ve read the article noted above and his book, “Theology and Canon Law.” I also just don’t recall what Visioli said critically of the school. Certainly, though, it falls between Mörsdorf and Navarre. The former tends to identify theology and law as the same thing, while the latter so restricts law that, while it may be based on theology, it is self-limited by its restrictions. So, Örsy is somewhere in the middle, seeing that theology and law begin in the same place, but are distinguished by process.

Question 23

Describe the Navarre School.

Answer 23

Juridic rigor, based on the notion that the Church is the people of God. The method is determined by the object. Law is the study of and practice or organizing relationships according to justice. Rejects the notion that canon law is a theological science. The Church is not, fundamentally, a theological concept, but a mystery. Firmly based on Augustine, Aquinas, codification, Vatican II. Sees canon law and civil law as manifestations of the same phenomenon, so uses tools from both. Peter of Lombardia is the main guy.

Question 24

Assess the Navarre School.

Answer 24

Positive: Rigor, openness with philosophy, other law

Negative: There tends to be a unitary view of law, without tensions, some of which are inherent in the Church. Visioli: wrong to forget the theological nature of canonical study. The Church may not be a theological construct, but she is based in mystery, so ignoring a theological study is ignoring what is essential to the Church. [Hastings: I am not convinced by this assessment. How can it be anything other than a caricature?]

Question 25

Describe Visioli’s foundation of canon law.

Answer 25

Law is a part of revelation. We need to look at the entirety of revelation to understand law. We should especially look at Christology, Ecclesiology, Anthropology. Anthro is most important, since we see that man’s created nature has law because of limited freedom. (Tree in Garden) We are not made for our own sake, but for others. Christ becomes man, and fully man, i.e., with law and tension. Christ forms the Church, where there are tension and law.

Question 26

Describe Visioli’s tensions.

Answer 26

1. Law limits freedom. We don’t like the limit on us. We like it on others.
2. Juridic science wants closed questions and discreet answers. Theology poses open-ended questions. Theology always asks more questions. Canon law uses both.
3. Public and Private tension.
4. Internal and External Fora tension.
5. Universal and Particular tension. (also, RP and College)

Question 27

Why do Visioli’s tensions exist?

Answer 27

Two natures of Christ. (From Chalcedon)

Tensions between man and God

Question 28

What are Von Balthasar’s three tensions?

Answer 28

Body and Soul
Man and Woman
Individual and Community

Also, note the example of Cain and Abel. When Cain kills Abel, he kills himself as brother. When I wound another to get ahead, I wound myself as well.

Question 29

How do we respond to tensions?

Answer 29

We cannot try to eliminate them. Our guide should be revelation known by faith and lived in charity.

Question 30

What are the obstacles today to developing a theology of law?

Answer 30

1. Fragmentation of thought.
2. Epistemological reduction (i.e., can’t mix theology and law)
3. Assertion that theology is a science and law is an institution
4. Specification of canonical study, and not big-picture works
5. Diverse view of law in different theological disciplines.

Question 31

What is law in the Church?

Answer 31

A law in the church is a declaration about or derivation from the content revelation that orders the community to the salvation of souls, given by one who has jurisdiction over that community in agreement with faith and reason, and promulgated.

Thomas: “rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.” (ST, I-II, 90.4)

Question 32

Fundamental Question 1: Why is there law in the Church?

Answer 32

Begin with Jesus.
Jesus Christ is the Word made Flesh.
He gathers a community around himself.
This community is the Church.

Question 33

Fundamental Question 2: Will order and jurisdiction be expressed by law?

Answer 33

We start again with Jesus.
Jesus Christ reveals God to man and man to man.
He shows us man is made to live in communion with God and fellow-man.

Question 34

Fundamental Summary:

Answer 34

To conclude, with the help of our friends Morsdorf, Ghirlanda and Klein (and Visioli) we have learned that the church has an order (a way of life), people in jurisdiction (you have to be united with them in belief, prayer and will) and many rights and duties.