Canon Law at the Crossroads

(2016/5) Editor(s): Felix Wilfred(c), Andres Torres Queiruga, Enrico Galvotti
Cover Page

Articles of the issue

Editorial

Canon Law at the Crossroads

Canon law is a practical legal instrument to serve the life of the people of God. It does this   by providing an order that lays down rights, duties and procedures, so that life in the community of faith could take place in communion, and in the spirit of the Gospel and according to the demands of justice. But we should not forget that the community of the faithful is a pilgrim people on the move, with a dynamic faith that seeks to deepen the understanding of the Word of God and put it into practice. The theological, pastoral and spiritual challenges thrown up by Vatican II became, obviously, a challenge to the formulation of laws for the life of the Church. The new Code of Canon Law promulgated in 1983 was followed by the Code of Canons of the Eastern Churches in 1990.  We need to acknowledge the enormous amount of work done by the respective commissions for several years to bring out these codes which involved a lot of discussions, debates, harmonization and even compromises between opposing positions.  

More than three decades have elapsed since the code of 1983 was promulgated, and during this period, confronting the actual life-experience of the people of God has also brought to light several critical questions, demanding significant revision, abrogation and amendments that would correspond more closely to the teachings of the Council and to the signs of the times. They have become necessary for a more attentive dispensation of justice and exercise of freedom.  The great programme of aggiornamento set in motion by Pope John XXIII on the eve of Vatican II, applies to every field of the life of the Church, including the laws that govern its life.  It is the spirit of aggiornamento and sensitivity to the needs of our changing times that prompted Concilium to prepare an issue dedicated to the question of law in the Church. The main articles of this issue are divided into three parts – the first considering history and principles; the second highlighting some areas requiring urgent reforms;  and the third dealing with the issues of application......

Table of Contents

Canon Law at the Crossroads (Concilium 5/2016)

Editors: Felix Wilfred, Andrés Torres Queiruga, Enrico Galavotti

Editorial: Felix Wilfred

Part I –History and the Questions of Principle

  1. Light of the World – Reclaiming the Historic(al) Role of Canon Law – Wim Decock
  2. From the Council to the 1983 Code of Canon Law: Do we need a New Reform? – Jesus Hortal
  3. Legal Relevance of Canon Law – Rik Torfs
  4. Theology and Canon Law: Journeying Together – Felix Wilfred
  5. Ecumenism and the Reform of Canon Law – George Nedungatt

Part II Towards Reform

  1. Human Rights and Canon Law – Peter G. Kirchschläger
  2. From Junior Helpers to Valued Collaborators: Giving the Laity their Rightful Place in the Clergy-centered Church – Sabine Demel 
  3. The Motu proprio Mitis iudex dominus Iesus. Opportunities, Challenges and Potential Pitfalls – Hildegard Warnink

Part III Applications

  1. For an Inculturation of Canon Law – Vincenzo Mosca
  2. More Subsidiarity in Canon Law: Bishops’Conferences and Administrtive Tribunals –Burkhard J. Berkmann
  3. Catholic Inter-Religious marriage in a Moslem Country –  Al. Andang L. Binwan
  4. African Exceptions About a Possible Revision of the 1983 Code of Canon Law –  Robert Kamangala Kamba

Theological Forum

  1. God In Time: On the Apocalyptic Roots of Christianity – J. B. Metz
  2. In Memoriam Virgilio Elizondo (1935-2016), el teólogo de la amistad – Carlos Mendoza-Alvarez

 

Abstracts

Wim Decock – Abstract

From a historical point of view, canon lawyers have made a fundamental contributon to the development of legal cultures around the world. Driven by a spiritual desire to build a new legal culture on the ruins of Roman precedents but imbued with Christian values, the canonists’ regulatory appetite, especially from the age of Gregorian Reform until after the Council of Trent, has left its mark on all fields of life. Their aim was to create a legal culture sufficiently flexible to account for the complexities of life, but strict enough to avoid disturbance of peace. They wanted to advance a model legal system that could become light for the world and salt of the earth. They succeeded. Three issues on which canonists had something to say to the world will be discussed in this article: mercy and justice, mediation and litigation, and the protection of human rights.

Jesus Hortal – Abstract

Pope John XXIII’s desire to promote a new reform of the Code of Canon Law, a fruit, as it were, of Vatican II, took 20 years to materialize. The new Code was to reflect the theology and, very specifically, the ecclesiology of the Council. Was this challenge met? This article analyses the hits and misses of the attempt, in both how the new body of law is structured and its content. it also sets out why a new revision would now be desirable, thirty years of experience since the Code was introduced. The Church’s legislative task did not stop in 1983. Many canons have been affected by subsequent provisions. It is now time for a new Code that brings together the present-day life of the Church.

Rik Torfs – Abstract

This article tries to establish that according primacy to legal texts in their implementation will put in evidence the legal relevance of canonical law as well as its credibility. The topics of debate forming the contents, while anchored in their particular reference to canon 915 0f CIC 1983, point nonetheless to both the problematic inherent in the present canonical system and to the reform of canonical laws desired to match the march of our contemporary society underpinned, as it were, by the rule of law.

Felix Wilfred - Abstract

This article reflects on the multiple services theology could render to canon law. It could help canon law from falling into legalism and legal positivism, by invoking the values and ideals both of them are expected to uphold.  By helping canon law to read the signs of the times, theology could assist canon law to respond to the contemporary exigencies of the people of God and overcome the danger of obsolescence. Further, in the context of the plurality of local Churches, theology could assist the formulation of particular laws that best respond to their concrete situations. What is of divine right (ius divinum) and what is of ecclesiastical law requires theological clarification given the fluidity between these two realms. Continuous dialogue between theology and canon law is the need of the hour to be able to serve effectively the people of God today.

George Nedungatt - Abstract

For the progress of ecumenism the canon law of the Roman Catholic Church needs to be reformed especially regarding the pope as a monarchic ruler with supreme power. There is need for an organ to exercise supreme power in the Church besides the ecumenical councils when they are not in session. And the pope as the successor of St. Peter is best entitled to do it. However, the present Catholic dogma and canon law regarding the pope are not acceptable to the other Churches and are in need of reform. Two other areas that are under discussion as in need of reform are priestly celibacy and the position of women in the Church.

Peter G. Kirchschläger – Abstract

After a discussion of the relationship between human rights and canon law from a theological and ethical perspective, this article first asks why human rights should have any relevance to canon law. The answer comes from the foundation for human rights to be found in the Bible and the Church’s magisterium, and an explanation of the universal application of human rights. In their consideration of human rights, Church and theology law can more closely imitate its own teaching and its own theology. In a second step, human rights are introduced as a standard for canon law. Third, the article sketches a hermeneutics of human rights in relation to canon law. This leads into a reflection on canon law with the aid of this hermeneutics and of human rights as a reference point, which reveal the potential and the challenges for canon law.

Sabine Demel – Abstract

Lay people are no longer an extension of the clergy, but autonomous members of the Church with their own vocation and mission known as the ‘lay apostolate’. This has been the teaching of the Catholic Church since Vatican II and should have been translated into canon law in the 1983 Code. But the result of this translation is unsatisfactory. The key areas of Church life are still defined in biased clergy-centred or priest-centred terms, from the restriction of decision-making in Church bodies to the clergy via their dominance in Church agencies and posts to the fact that central offices in the Church are reserved exclusively for the clergy. A restructuring towards the laity is urgently necessary. The two teachings of the common and ministerial priesthood (Lumen Gentium 10) and the sensus fidelium (Lumen Gentium 10) need to be included explicitly in the Code of Canon Law and rights for the laity to exercise more power, to be consulted and share in decision making need to be given a legal basis.

Hildegard Warnink - Abstract

On 15 August 2015, Pope Francis promulgated the Motu proprio Mitis iudex dominus Iesus and by doing so he “reformed” the canonical process for the declaration of nullity of marriage. (1)  the new regime removes the requirement of the second instance and (2)  the introduction of an abbreviated procedure under the responsibility of the diocesan bishop. This contribution engages with some aspects of The Motu proprio in order to identify some elements that are likely to require further reflection amongst practitioners. Convinced about the crucial role of canon law in the daily life of our church, three elements seem important: 1) the need for a proper training of all people involved with procedures and the undeniable value of an academic degree in canon law; 2) the importance of equal treatment for all Christian faithful and the need for legal stability; 3) the inevitable distinction between pastoral care and legal decisions.

Vincenzo Mosca – Abstract

This article deals with two questions: on the one hand that of the inculturation of canon law and, on the other, the concrete modalities by means of which such an inculturation is realized via particular law. Over thirty years experience of the appliation of the CIC of 1983 has shown that some systems, offices and institutions can and must increase their role of creativityby producing special norms more adapted to cultures, places, situations and groups of peolpe. These are the Episcopal Conferences, the diocesan bishps and other local ordinaries, the various associative forms such as institutes of consecrated life, associations and movements that live in the Church community on the basis of a just autonomy of life and government. The future of canon law and of reform of its institutions lies in giving more space and attention to particular law that is to its inculturation.

Burkhard J. Berkmann – Abstract

The principle of solidarity is an expert success for Catholic social teaching. The Church demands that states and international organizations follow it, but does the Church itself follow it? It was one of the guiding principles in the reform of canon law after Vatican II, but later its applicability within the Church was increasingly challenged. But if the improtance of the justice dimension in canon law is recognized, it can easily be seen that the principle of subsidiarity is a measure of the just distribution of competences. Efforts at decentralization under Pope Francis are now increasing its popularity. Neverthless, in recent legislation it has not always been taken into account. One proposal for reform consists of giving bishops conferneces more attributions and clarfying the legal status of thier continental association. This would give more weight to the middle level between the Holy See and the dioceses. Another reform proposal concerns the establishment of decentralized administrative coutrs to protect the rights of individual Catholics.

Al. Andang L. Binwan – Abstract

This is a general impression that 1983 Code of Canon Law successfully translated the conciliar spirit and teachings into canonical languages. However, if we begin to note many discrepancies and inadequancies of the present Code. This article, by way of example, goes into the issue of inter-religious marriage between Catholics and Muslims, which shows the weakness of the Code. To what extent do these canons reflect the spirit of Dignitatis Humanae and of Nostra Aetate? That is a real question that calls for a re-examination and re-formulation of the canons relative to the issue of inter-religious marriage in the spirit of Vatican II.

Robert Kamangala Kamba – Abstract

The Code of Canon Law is meant to be a collection of norms for behaviour for the Catholic Church, matched, according to need, by sanctions that seek to protect and promote the common good. In other words, in the short term, the means of salvation, which are principally the word of God and the sacraments, as well as just ecclesial order and the peaceful coexistence of the faithful; in the long term, the salvation of souls. It is made up of norms of divine law, which are unchanging, and norms of human law which are subject to change, given the demands of times and places. It is in this sense that the African Churches have pressing expectations, by way of basic principles or actual norms, of a canon law that is attentive to their Christian and liturgical life, their structural organization, and their apostolate.